Posted by: Patricia Salkin | November 4, 2015

Fed. Dist. Court in OH Finds Plaintiffs Had Standing to Assert Facial, But Not As-Applied, Challenge to Village Sign Ordinance

Plaintiff Sharona Investments, LLC was the titled owner of a piece of property located at 27049 Miles Road, and Plaintiff Sharona Properties, LLC was the property manager and authorized representative of the owner. Howard Sonenstein was the managing partner and primary owner of both Plaintiffs, and the decision maker regarding the use of the subject property. Mr. Sonenstein, through his counsel, sent a letter to the Village indicating that he was interested in possibly placing an electronic sign adjacent to Route 422 on the rear portion of his property. Following the rejection of his application, he never sought a variance, appealed the rejection, or sought approval of a different type of sign. Plaintiffs contended that the ordinance prohibiting billboards and off-premise signs is unconstitutional both facially and as it was applied to them. The Village argued that Plaintiffs had no standing to challenge the ordinance, and that the ordinance was constitutional as written, and as applied in these circumstances.

Here, Plaintiffs’ application could have been validly denied for several reasons that were completely independent of the ban on billboards and off-premise signs. Mr. Sonenstein did not comply with the application requirements by failing to submit to the Village the required: three sets of drawings, three site location plans, a $125.00 fee, and a completed signed application, as part of the application process. Furthermore, Plaintiff’s application for a freestanding sign was properly denied regardless of the propriety of the ban on off-premise signs and billboards, and regardless of its proposed size because Village ordinances limited each property to one freestanding sign: which the Plaintiff already had. However, because the complaint adequately raised a claim that the Village’s ordinance banning billboards and off-premise signs, as they have defined them, was so substantially overbroad that it could inhibit the constitutionally protected speech of third parties, the Court addressed the constitutionality of that specific ban.

The Village ordinance only banned “any sign structure advertising an establishment, merchandise, event, service, or entertainment that is not sold, produced, manufactured or furnished at the property on which the sign is located.” The court found that this language, on its face, did not operate to ban non-commercial, ideological or political speech. Thus, it determined that the regulating scheme was content neutral in so far as it allows signs communicating both commercial and non-commercial speech to exist on a property so long as they meet certain size and number limitations; however, the regulations did take content into account in so far as they prohibit only off-premise commercial speech. Moreover, even if the ordinance may have been under-inclusive with regard to the issues of traffic safety and aesthetics by allowing some (on-premise) commercial speech, it would not diminish the fact that banning some billboards or off-premise signs directly advances the goal of improving the situation in these regards. Accordingly, the court held that because the Village ordinance, on its face, prohibited only off-premise commercial signs and had no facial prohibition against non-commercial speech, the ordinance at issue did not violate the First Amendment as written.

Sharona Properties, LLC v Orange Village, 92 F. Supp. 3d 672 (ND OH 2/20/2015)


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