Neighborhood Enter.s Inc. v. City Of St. Louis

718 F.Supp.2d 1025

NEIGHBORHOOD ENTERPRISES, INC., et al., Petitioners,

v.CITY OF ST. LOUIS, MISSOURI, et al., Respondents.

Case No. 4:07CV1546 HEA.

United States District Court,

E.D. Missouri,

Eastern Division.

March 29, 2010.

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John B. Randall, University City, MO, Michael E. Bindas, William R. Maurer, Seattle, WA, for Petitioners.

Matthew M. Moak, Robert M. Hibbs, St. Louis City Counselor's Office, St. Louis, MO, for Respondents.

OPINION, MEMORANDUM AND ORDER

HENRY EDWARD AUTREY, District Judge.

This matter is before the Court on Cross Motions for Summary Judgment, [Doc. No's 61 and 63]. For the reasons set forth below, Respondents' Motion is granted; Petitioners' Motion is denied.

Introduction

Petitioners filed this Petition for Writ of Certiorari and Civil Rights Complaint for Injunctive Relief against the City of St. Louis, the St. Louis Board of Adjustment, the individual members of the Board of Adjustment, in their official capacity, and Mary Hart Burton, in her official capacity as the Zoning Administrator for the City. The Defendants remaining in this action are the City of St. Louis and the City of St. Louis Board of Adjustment. ¹ This Petition/Complaint alleges that the decision by the Board of Adjustment was illegal because the Board utilized a facially unconstitutional Zoning Code to limit Petitioners' Freedom of Speech in violation of the United States and Missouri Constitutions; the decision was unconstitutional as applied in violation of the United States and Missouri Constitutions; the decision was illegal because it was an illegal exercise of prior restraints, in violation of the United States and Missouri Constitutions; that the decision was illegal because it deprived Petitioners of equal protection under the law, in violation of the Fourteenth Amendment of the U.S. Constitution.

Petitioners also seek recovery pursuant to 42 U.S.C. § 1983 for alleged violations of their free speech rights under the U.S. and Missouri Constitutions and for violations of their due process rights under the U.S. and Missouri Constitutions.

Procedural Background ²

On August 31, 2007, Respondents removed this action from the Circuit Court for the City of St. Louis, Missouri based on the Court's federal question jurisdiction. 28 U.S.C. § 1331. Respondents alleged in their Notice of Removal that the Petition raises particular federal questions which arise under the Civil Rights Act of 1871, 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the U.S. Constitution. Specifically, the Notice set forth that

Respondents are specifically accused of violating Petitioners' rights of free speech under the First Amendment to the U.S. Constitution, Petitioners' federal equal protection rights under the 14th Amendment of the Constitution, and pursuant to 42 U.S.C. § 1983, of acting under color of law to deprive Petitioners of their civil rights to due process under law.

The parties agree that the facts are not in dispute and resolution of this matter by summary judgment is appropriate. For the purposes of the Motions for Summary Judgment, the parties have submitted a Joint Statement of Uncontested Facts. Those facts are as follows:

Sanctuary In The Ordinary (“Sanctuary”) is a tax-exempt, not-for-profit organization. Sanctuary's properties are managed by Neighborhood Enterprises, Inc. (“Neighborhood Enterprises”), a property management company. Neighborhood Enterprises describes itself as a “self-supporting housing ministry that manages rental housing mostly on the near south side of St. Louis.”

Missouri Eminent Domain Abuse Coalition (MEDAC) is a civic organization concerned about eminent domain practices. Jim Roos is the founder of Sanctuary, founder of Neighborhood Enterprises, and coordinator and spokesperson for MEDAC.

The City of St. Louis (the “City”) is a Missouri municipal corporation organized under Missouri law.

Roos describes himself as a critic of the City's use of eminent domain for private development. Jim Roos and MEDAC, with tenant approval, commissioned a sign/mural ³ for the south side of 1806-08 S. 13th, a Sanctuary-owned building in the Near Southside Redevelopment Area. Roos described the sign/mural as a “poignant way ... to make a statement.” The sign/mural, which was completed in March 2007, contains the words “End Eminent Domain Abuse” inside a red circle and slash. The design of the sign/mural is similar to the design used by MEDAC in its literature, buttons, and other materials. The sign/mural is approximately 363 or 369 square feet in area. The sign/mural is visible from, among other areas, Interstates 44 and 55 and the Soulard neighborhood.

On April 10, 2007, the City's Division of Building and Inspection (“B & I”) issued to Sanctuary, care of Neighborhood Enterprises, a citation declaring the sign/mural an “illegal sign.” The citation explained that “[p]ermits must be acquired for signs of this type” and gave instructions for how to go about obtaining a permit. Consistent with the instructions in B & I's April 10, 2007, citation, Sanctuary and Neighborhood Enterprises ⁴ filed a sign permit application with B & I on May 14, 2007.

On May 30, 2007, the City's Zoning Administrator sent Sanctuary a letter denying its sign permit application because it did not meet certain requirements of the City Zoning Code. The “Basis for Denial” accompanying the letter stated that the building on which the sign/mural was painted was zoned “D,” or “Multiple Family Dwelling District,” and identified, as the “applicable Zoning Code provisions”: Section 26.68.010; Section 26.68.020(17), (20), (21), (22) & (24); and Section 26.68.080(A), (B), (D) & (E)(2) of the St. Louis City Revised Code. A subsequent explanation of the Zoning Administrator's basis for denial, admitted at the Board of Adjustment hearing, stated: “Appellant has painted a wall sign on the building at this address. The wall face of the building on which the sign has been painted does not have street frontage as defined in the Zoning Code, and is therefore not entitled to signage. In the ‘D’ zoning district any signage can only be erected, altered and maintained for and by a conforming use and must be clearly incidental to the operation of the conforming use; this property is assessed as a two-family dwelling. The maximum allowable square footage for any sign within this district is 30 sq. ft.; based on the diameter of the circular sign it is approximately 363 sq. ft. in area. Variances will be required in order to permit this sign.” The May 30, 2007, letter denying Sanctuary's sign permit application stated that Sanctuary could appeal the denial to the City's Board of Adjustment, which Sanctuary did on June 5, 2007.

On July 11, 2007, the Board of Adjustment heard Sanctuary's appeal of the permit denial. At the hearing, Sanctuary's attorney argued, among other things, that: (I) Sanctuary's sign/mural does not require a permit because, as a “work of art” or a “civic symbol[ ] or crest[ ],” it is exempted from the Zoning Code's definition of “sign”; and, alternatively, (ii) the Zoning Code violates the free speech protections of the U.S. and Missouri Constitutions.

The Board of Adjustment (“Board”) upheld the denial of the sign permit in an order filed on July 25, 2007. The Board's Findings of Fact stated that the “[p]roposed sign is in conflict with Sections 26.68.010, 26.68.020 and 26.68.080 of the Zoning Code of the City of St. Louis.” The Board's “Conclusion of Law and Order” stated, in its entirety:

The sign is located in Zone D, the multiple family dwelling district, and the sign is located on a residential building. The sign is substantially larger than the footage allowed by the Zoning Code and it is located on the side of the building in contravention to the requirements of the Zoning Code. Board Member Hitt made a motion to uphold the decision to deny the sign permit as the size and location of the sign were in violation of the Zoning Code.

The above motion, made by George Hitt and seconded by Joe Klitzing was passed by a 4-0 vote of the Board, with Board member Caruso voting against.

Two of the City's justifications for restricting outdoor signs are traffic safety and aesthetics. Neither the City nor Board of Adjustment possesses any reports, studies, memoranda, or other documents underlying, concerning, or supporting the regulation of outdoor signs in Chapter 26.68 of the St. Louis Revised Code. Neither the City nor the Board of Adjustment is aware of any studies, reports or memoranda conducted by any person regarding whether the City's restrictions on outdoor signs affect traffic safety. Neither the City nor Board of Adjustment is aware of any studies, reports or memoranda conducted by any person regarding whether the City's restrictions on outdoor signs affect the aesthetics of the City or surrounding neighborhood. Neither the City nor Board of Adjustment is aware of any studies, reports or memoranda conducted by any person regarding whether the City's restrictions on outdoor signs affect property values in the City. Neither the City nor Board of Adjustment is aware of any traffic incidents in which any driver involved cited or mentioned Sanctuary's sign/mural, or any “painted wall sign,” as contributing to such incident. Neither the City nor Board of Adjustment is aware of any studies, reports or memoranda discussing the impact of Sanctuary's sign/ mural on the flow of traffic on any street or highway.

The City and Board of Adjustment have no internal memoranda or communications, and no communications to or from them, discussing the adoption or enforcement of the regulations of outdoor signs in Chapter 26.68 of the St. Louis Revised Code. The City and Board of Adjustment have no minutes or transcripts of any City Board of Aldermen meeting, including any committee or subcommittee of such Board, concerning or relating to the...