Sharona Props., L. L.C. v. Orange Vill.

92 F.Supp.3d 672

SHARONA PROPERTIES, L.L.C., et al., Plaintiffs

v.ORANGE VILLAGE, OHIO, Defendant.

Case No. 1:13 CV 1740.

United States District Court, N.D. Ohio, Eastern Division.

Signed Feb. 20, 2015.

Joseph W. Diemert, Jr., Mark V. Guidetti, Daniel A. Powell, Law Office of Joseph W. Diemert, Cleveland, OH, for Plaintiffs.

David Ross, Michelle J. Sheehan, Reminger & Reminger, Sara J. Fagnilli, Stephen L. Byron, Walter & Haverfield, Cleveland, OH, for Defendant.

MEMORANDUM OPINION

DONALD C. NUGENT, District Judge.

This action is before the Court on cross motions for Summary Judgment. Plaintiffs Sharona Investments, L.L.C., and Sharona Properties, L.L.C. (collectively “Plaintiffs”), and Defendant, Orange Village, Ohio, (“the Village”) have filed motions for Summary Judgment, and combined opposition and reply briefs. (ECF # 15, 16, 18, 19, 21). The case centers around the constitutionality of the Village's ordinances regulating signs within the village limits. Plaintiffs contend that the ordinance prohibiting billboards and off-premise signs is unconstitutional both facially and as it was applied to them. The Village argues that Plaintiffs have no standing to challenge the ordinance, and that the ordinance is constitutional as written, and as applied in these circumstances.

FACTS¹

Plaintiff Sharona Investments, LLC is the titled owner of a piece of property located at 27049 Miles Road, within the municipal boundaries of Orange Village, Ohio. (ECF # 16–4: Sonenstein Depo. at 7–8, 10). Plaintiff Sharona Properties, LLC is the property manager and authorized representative of the owner. (ECF # 16–4: Sonenstein Depo. at 11). Howard Sonenstein is the managing partner and primary owner of both Plaintiffs, and the decision maker regarding the use of the subject property. (ECF # 16–4: Sonenstein Depo. at 9–13). The property is currently leased to a separate entity, which operates a garden center/landscaping business. (ECF # 16–4: Sonenstein Depo. at 46–47, 50). The parties agree that there is already one freestanding sign at the entrance of the property. (ECF # 19 at 12).

At some point in 2012, Mr. Sonenstein decided to explore the possibility of erecting an electronic sign at the back of the property where it would be visible to motorists traveling on Route 422. (ECF # 16–4: Sonenstein Depo. at 80). In May of 2012, Mr. Sonenstein, through his counsel, sent a letter to the Village indicating that he was interested in possibly “placing a billboard adjacent to Route 422 on the rear portion of his property.” (ECF # 16–6, Ex. F). The letter further indicated the Village ordinances appeared to be an obstacle to the erection of such a sign, but if the Village was interested in pursuing and arrangement with Mr. Sonenstein, they could make a deal “that would accommodate an attractive billboard and provide financial benefits to the Village at the same time.” (ECF # 16–6, Ex. F). The letter ended with a request that the “appropriate department head contact me to discuss the details, location, type of sign, and financial incentives that would be attached.” (ECF # 16–6, Ex. F).

The Village responded in writing indicating that its ordinances do prohibit “the usage of billboards for off-premises sales.” While indicating the Village's support for these ordinances and its belief that the ordinances are constitutional, the Village invited Mr. Sonenstein to provide any information that would show a contrary conclusion, or to petition Council for a change in the law. (ECF # 16–6, Ex. G). Without any apparent further correspondence, in August of 2012, Sharona Properties, LLC filed a miscellaneous permit application to “construct a bill-board type electrical sign facing Rt. 480[sic] for advertising of both on & off premise business, public service announcements, and political commentary.” (ECF # 16–6, Ex. H; ECF # 16–6, Sonenstein Depo. at 44). The application does not appear to identify the property at issue, but lists Sharona Properties as the owner, with an address in Mayfield Heights, and lists Howard Sonenstein as the general contractor, at the same address. (ECF # 16–6, Ex. H). About five days later, Mr. Sonenstein provided a print out to the Village, identifying the 27049 Miles Rd. address and including a map indicating where the proposed billboard would be located. (ECF # 16–6, Ex. I). The Village responded with a letter listing additional requirements that would be necessary before a permit review could be completed, including: (1) three sets of drawings, (2) three site location plans, (3) a $125.00 fee, and (4) a completed signed application. (ECF # 16–6, Sonenstein Depo. at 71–72, Ex. 13). Mr. Sonenstein indicated that he did not submit three sets of drawings, did not submit three site location plans, and has no idea whether he paid the $125.00 fee. (ECF # 16–6, Sonenstein Depo. at 72–73). He also stated that following the rejection of his application, he never sought a variance, never appealed the rejection, and never sought approval of a different type of sign. (ECF # 16–6, Sonenstein Depo. at 73–75).

Although there is no mention of it in the correspondence between Sharona Properties or Mr. Sonenstein and the Village, Mr. Sonenstein has testified that he hoped to construct a digital billboard that was about 14 ft. by 48 ft. with a single pole, because “cars traveling 80 miles an hour are not going to see a small 6–foot sign.” (ECF # 16–6, Sonenstein Depo. at 45–46; ECF # 19–1, at 6). Mr. Sonenstein also indicated that he had “not determined any singular purpose for the sign at issue” though he wanted one “capable of allowing” business, public service announcements and political commentary. (ECF # 19–1, at 6). Mr. Sonenstein has failed to allege that his proposed billboard met all the uncontested requirements (procedural or size limitations) of the ordinance at issue, and described his alleged loss as a loss of potential income generated by, “among other things, selling advertisement (commercial, political, commentary, etc.) space to third parties.” (ECF # 19–1, at 8).

Mr. Sonenstein has not identified any speech he personally sought to express, nor has he alleged a lack of alternative venues for expressing any such speech. He was unable to identify any purpose of Sharona Investments, other than as a vehicle to hold title to certain properties.² He could not identify any reason for constructing a billboard on the property, and could not identify any specific message he hoped to convey, or any potential off-premises clients who might purchase the advertising space from him. (ECF # 16–6, Sonenstein Depo. at 31–37, 50–51). He had a general idea that he would sell the space for advertising of on and off-premises businesses, campaign advertising, or public service announcements, but doesn't remember ever having a conversation with anyone who would potentially rent the space if the billboard was built. (ECF # 16–6, Sonenstein Depo. at 55–57, 74, 79–80). If approved, he expected to sell the advertising space and to allow the Village to use the billboard to advertise or promote their activities or post other public service announcements. (ECF # 16–6, Sonenstein Depo. at 99–100 (“I was going to make money. They were going to benefit by advertising, whether it's fasten your seatbelts or a missing child or leaf cleanup.”)).

Although both parties agree that Sharona Properties' application for a sign permit was denied, there is no evidence as to how that denial was first communicated or what specific grounds were given for the denial. (ECF # 16–4, Sonenstein Depo. at 69 (“I don't know if I got a notification saying it's denied or if I called or how—I knew—I did know from them somehow that, no, it's not going to happen. I don't know how I did it.”)). The only evidence presented is a pre-application letter from the Village indicating that the ordinances “do not permit the usage of billboards for off-premises sales,” and a January 4, 2013 letter from the Village's Assistant Law Director indicating that after a review of all correspondence, the Village believes that the ordinances are, in fact, constitutional, and although the Village, itself, would not support it, Mr. Sonenstein could still apply for a variance. (ECF # 16–4, Ex. G, J).

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the court is satisfied “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The burden of showing the absence of any such “genuine issue” rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material fact.

Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Civ. P. 56(c) ). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir.1995) (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548 ). Accordingly, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably...