Roma Outdoor Creations v. City of Cumming, Ga.

599 F.Supp.2d 1332

ROMA OUTDOOR CREATIONS, INC., Plaintiff, v. CITY OF CUMMING, GEORGIA, and Scott Morgan, in his official capacity as Director of the City's Planning and Zoning Department, Defendants.

Civil Action No. 2:07-CV-133-WCO.

United States District Court, N.D. Georgia, Gainesville Division.

March 2, 2009.

Edward Adam Webb, G. Franklin Lemond, Jr., The Webb Law Group, LLC, Atlanta, GA, for Plaintiff.

Cynthia Anne Carson, Dana Kristin Maine, Erin Highland, Freeman Mathis & Gary, Atlanta, GA, Kevin James Tallant Miles & Tallant, Cumming, GA, for Defendants.

ORDER

WILLIAM C. O'KELLEY, Senior District Judge.

The captioned case is before the court for consideration of defendants' motion to exclude the testimony of Kurt McLaughlin [35-1], plaintiff's motion for partial summary judgment [36-1], and defendants' motion for summary judgment [37-1].

I. Introduction

This case arises out of plaintiff's attempt to secure permits to erect two advertising signs in Cumming, Georgia (the "City"). Neither of plaintiff's proposed signs adhered to the requirements of the City's sign ordinance ("Ordinance"). In May 2007, plaintiff applied to the City for two sign permits and two variances to the Ordinance. After the City rejected plaintiff's applications, plaintiff sued under 42 U.S.C. § 1983, alleging violations of both the First and Fourteenth Amendments of the United States Constitution and equivalent provisions of the Georgia Constitution. Plaintiff asks the court to grant summary judgment on just one of its claims: that the ordinance constituted an unconstitutional prior restraint on speech.¹ Defendants ask the court to grant summary judgment on all of plaintiff's claims.

II. Factual Background

A. The Ordinance

On September 20, 1983,² the City adopted the Ordinance for the purposes of promoting the health, safety, morals, convenience, order, prosperity, and the general welfare of the City of Cumming; allowing appropriate advertising and commercial speech in a manner that is not confusing, overcrowded or distracting to the motoring public while at the same time improving the aesthetic appearance of the City of Cumming.³

(Ordinance, Ex. A to Pl.'s Statement Mat. Facts, Preamble). The Ordinance, which required securing a City-issued permit before erecting advertising signs, limited the location and dimensions of all signs erected in the City, (see id. §§ I, II, III), and restricted the messages permitted to be advertised on signs to the following:

1. Travel Services Facilities[,] including lodging, gas, food, camping;

2. Areas of Scenic Beauty;

3. Public Attractions including historic, natural[,] scientific[,] or recreational amenities; and

4. Any combination of the above listed facilities. Further, the content of all advertising shall be directional in nature.

(Id. § III(7)(j)). Among other physical limitations, section III(7)(c) of the Ordinance required signs to be placed a maximum of thirty (30) feet above adjacent interstate pavement, and section III(7)(f) required that signs be located at least 500 feet apart from the next-closest sign. The Ordinance authorized the mayor and city council to enforce the sign requirements but did not instruct officials to process permit applications within any particular time frame.

By contrast, the New Ordinance eliminates the advertising limitation that restricted signs to travel service facilities, areas of scenic beauty, and public attractions. The New Ordinance also imposes a mandatory thirty (30) day processing period for all permit applications and includes timing rules that apply to administrative appeals of application rejections.

B. The Applications

On May 15, 2007, Ralph M. Boyd III, the sole owner of plaintiff, submitted Variance Request Number 070217 and Variance Request Number 070221 to the City. Variance Request Number 070217 sought permission to erect a forty-five (45) foot sign at 908 Buford Highway in violation of Ordinance section III(7)(c), which limited signs to a maximum height of thirty (30) feet. Variance Request Number 070221 sought permission to erect a sign at 889 Buford Highway within 500 feet of a then-existent sign, in violation of the section III(7)(f) separation rule. Plaintiff applied for the latter variance because it recognized that the proposed sign would be located within 500 feet of an existing sign that plaintiff owned. During the application process, plaintiff pledged to relocate the existing sign to avoid the spacing issue. Although both proposed signs would have been located within 500 feet of signs outside the City, neither application requested a variance on those grounds.

The City of Cumming Planning and Zoning Commission planned to consider the variance applications on July 17, 2007. Upon Boyd's request, however, the City postponed the meeting until August 21, 2007. On August 20, 2007, defendant Scott Morgan, the City's Director of the Department of Planning and Zoning, recommended in a memorandum that the city council deny both of plaintiff's variance applications. On September 18, 2007, Morgan reiterated his recommendation to the Planning and Zoning Commission, and the city council denied the applications on October 16, 2007, on the grounds that both of the proposed signs would be located within 500 feet of the signs located in Forsyth County.⁴ Having received variances in the past in the face of what he deemed comparable circumstances, Boyd was surprised by the City's denial of his applications.⁵ Nonetheless, Boyd concedes that he did not take the denials personally: "I do not feel that anyone at the [C]ity was mad at me or had a grudge against me." (Boyd Dep., Ex. A to Defs.' Mot. Summ. J. 30-31).

C. Previous Permit Applications

Plaintiff's claims require the court to summarize two of the City's past actions on variance applications. In one case, Georgia Outdoor Advertising ("Georgia Outdoor"), in which Boyd held a 30% ownership interest, requested a height variance for a forty-five (45) foot sign.⁶ On its variance application, Georgia Outdoor did not indicate that it intended to place the sign within 500 feet of an existing sign that was located outside the City. The City granted that variance. Because there is no record of any public discussion regarding the proximity of the proposed sign to the out-of-city sign or whether the Ordinance spacing rules applied in such circumstances, it is unclear whether the City granted the variance because it interpreted the Ordinance to not apply to out-of-city signs or because it merely overlooked the proximity. The City maintains that it issued the variance in error and that the lapse was probably due to the fact that the map that Georgia Outdoor enclosed with the variance application depicted only the City of Cumming. According to defendants, the City has never approved a variance application that expressly requested permission to erect a sign within 500 feet of another sign, within the city or not.⁷ The City admits, however, that it usually reviews variance applications to determine whether proposals trigger the need for any unrequested variances.

In another case, Boyd applied for a permit for a sign to be located within 379 feet of an existing sign. In a letter submitted with the application, Boyd explicitly represented that there did not appear to be any signs within 500 feet of the proposed location. The City granted the variance. The City acknowledges that it issued that permit in error, but blames Boyd for misrepresenting (intentionally or not) the supposed absence of any other signs within 500 feet of the proposed site.

D. Relevant Procedural History

On November 15, 2007, plaintiff filed a complaint under 42 U.S.C. § 1983, seeking damages and equitable relief. In Count One of the complaint, plaintiff claims that the City violated plaintiff's Fourteenth Amendment Equal Protection rights when the City denied plaintiff's variance requests despite having previously granted similar applications in the past. Plaintiff also claims several First Amendment violations. In Count Two, plaintiff alleges that the Ordinance impermissibly vested city officials with unbridled discretion; in Count Three, plaintiff contends that the Ordinance lacked necessary procedural safeguards; and in Count Four, plaintiff reiterates these claims and also charges that the Ordinance improperly favored commercial speech over noncommercial speech. In Count Five, plaintiff argues that the Ordinance violated the Georgia Constitution. On March 18, 2008, defendants moved for partial judgment on the pleadings. The court denied that motion on May 14, 2008, 558 F.Supp.2d 1283.⁸ On October 10, 2008, defendants filed a motion to exclude the testimony of Kurt McLaughlin, an expert witness proffered by plaintiff. The case is now before the court on defendants' motion to exclude the testimony of Kurt McLaughlin, plaintiff's motion for partial summary judgment, and defendants' motion for summary judgment.

III. Discussion

A. Legal Standard

Summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). Only those claims for which there is no need for a factual determination and for which there is a clear legal basis are properly disposed of through summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court considering a motion for summary judgment must view the evidence in a light most favorable to the nonmoving party. See Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988). It is important to recognize, however, that this principle does not require the parties to concur on every factual point. Rule 56 "[b]y its very terms ... provides that the mere existence of some alleged factual dispute between ...