Posted by: Patricia Salkin | August 11, 2015

Fed. Dist. Court in CA Finds Issue of Fact Existed as to Whether Official had Unfettered Discretion in Classifying What Constitutes a Material Change to a Land Use and Development Plan with Respect to the Regulation of Billboards and Advertising Signs

Plaintiffs Citizens for Free Speech, LLC and Michael Shaw brought suit against Defendant County of Alameda, alleging that the County’s regulation of billboards and advertising signs was unconstitutional. Since January 2012, Shaw has maintained a single on-site sign that advertised for his company, Lockaway Storage. Shaw and Citizens entered into an agreement with each other that provided for the construction and display of three additional signs on the Parcel. On June 10, 2014, the County mailed Shaw a “Declaration of Public Nuisance—Notice to Abate,” claiming that the Signs violated Zoning Ordinance §§ 17.18.010 and 17.18.120, and instructed Shaw to remove the Signs or face an abatement proceeding and an escalating schedule of fines. The Court granted Plaintiffs a preliminary injunction, finding that they were likely to succeed on the merits of their arguments that the Zoning Ordinance was facially invalid because it: gave County officials unfettered discretion to make determinations regarding signs, and failed to ensure that those decisions would be made in a timely manner.

As to the Plaintiffs’ “as-applied”, the court found whether the Zoning Ordinance was facially unconstitutional was not relevant to the question of whether it is unconstitutional as applied to Plaintiffs. Here, the County presented substantial evidence that Zoning Ordinances §§ 17.18.010 and 17.18.120 applied to Plaintiffs’ Signs, and that the Plan precluded Plaintiffs from building the Signs on the Parcel. Because the Plaintiffs failed to rebut the County’s evidence or provide any evidence indicating that those provisions were unconstitutionally applied to them, the Court granted summary judgment on both free speech claims. However, as to the facial challenge, in order to determine whether a proposed use requires pursuit of a CUP or a change to the land use and development plan, the court determined that County officials must first decide whether that proposed use “materially changes the provisions of the approved land use and development plan” for the property in question. While the County asserted that “subsections B and C of § 17.52.515 and § 15.52.226 provide substantial guidance” as to the definition of material change if the proposed use involves a sign, the Zoning Ordinance did not direct County officials to consult these other terms or sections in order to determine if the proposed use constituted a material change, and the County did not present any evidence indicating that County officials actually consulted these suggested terms for guidance.

Additionally, County officials could affect which process property owners must undergo by deciding, at their discretion, what constitutes a material change. If officials determine that a proposed use does not constitute a material change, then that use would be permitted subject to securing a CUP. The County also failed to identify any provision in the Zoning Ordinance requiring the planning commission to state the basis upon which it determines that a proposed use is a material change. Finally, the court found that the evidence showed that the County was not using Section 17.52.515 to suppress a particular message; rather, it was primarily interested in curtailing the growth of billboards in unincorporated areas of the County. Because Section 17.52.515 left open ample alternative avenues of communication, it passed intermediate scrutiny. The Court therefore granted summary judgment on the content-regulation aspect of Plaintiffs’ free speech claim under the California Constitution.

Accordingly, the Court granted the County’s motion for summary judgment, but denied it as to the Plaintiffs’ facial challenge and equal protection claim.

Citizens for Free Speech, LLC v County of Alameda, 2015 WL 4365439 (ND CA 7/16/2015)

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