Posted by: Patricia Salkin | April 21, 2017

OH Appeals Court Finds Plaintiff had Standing to Challenge the Constitutionality of City’s Off-Site Sign Prohibition Provisions

Fourth National Realty, LLC, appealed from the judgment of the Hamilton County Court of Common Pleas, which granted injunctive relief requiring Fourth National to remove a sign on its building that was in violation of the off-site sign prohibitions in Cincinnati’s zoning code. It was undisputed that the sign violated the city’s zoning code, including Cincinnati Zoning Code 1411-39(a)(1), which expressly prohibited outdoor advertising signs, a type of off-site sign, in the DD Zoning District, and Cincinnati Zoning Code 1427-17, which excluded the DD Zoning District from the list of zoning districts in which off-site signs were permitted. Additionally, it was undisputed that the offsite sign had not been allowed by any permit obtained by Fourth National before its installation and that the city had received a complaint about it. The court granted summary judgment to the city on Fourth National’s selective-enforcement counterclaim, and dismissed Fourth National’s counterclaim which sought a declaration that the offsite sign provisions were unconstitutional because they violated freedom of speech rights.
On appeal, Fourth National first argued the trial court erred by granting summary judgment to the city because a genuine issue of material fact remained as to whether the city selectively enforced the zoning codes in violation of Fourth National’s equal-protection rights. Fourth National presented the affidavit of Joe Vogel, the president of an advertising company that subleased the second floor of Fourth National’s building to the John Morrell Company. However, Vogel’s affidavit failed to provide the requisite foundation to support his conclusion that the city might have illegal off-site signage in the DD district. Moreover, Vogel did not provide any indication that the city had received any complaints about the photographed signs, which the court found to be a material distinction from any would-be comparators. Additionally, Fourth National did not present any evidence to support its claim that the city’s policy that led to this enforcement action was defective: such as the manipulation of the law by private parties or interest groups for purely private purposes. The court found that because Fourth National failed to present evidence to support a prima facie selective-enforcement claim, the trial court did not err by entering summary judgment for the city on Fourth National’s selective-enforcement counterclaim. As such, the court also rejected the Fourth National’s arguments on its claim for injunctive relief.
Fourth National next argued that it had standing to challenge the constitutionality of the off-site prohibition provisions and that those provisions were unconstitutional on their face. The court found that the trial court was correct in not addressing the free-speech challenge when determining the city’s claim for injunctive relief because Fourth National could not meet the redressability requirement of standing for its attack on the provisions as applied to the existing sign. Here, the installed sign greatly exceeded the size restrictions of any sign allowed in the DD district regardless of its exact classification. Even though Fourth National argued it could avoid the size limitations imposed on the sign by seeking a variance once off-site signage was allowed, Fourth National already unsuccessfully pursued a variance related to the existing sign. The city’s May 2015 decision denying that variance request was not appealed and was final.
Fourth National lastly argued the overbroad restrictions inhibited both noncommercial and commercial speech, by containing content-based restrictions that provided a greater degree of protection to certain forms of commercial speech than noncommercial speech, and a greater degree of protection for on-site versus off-site advertising that does not pass the four-part-intermediate-scrutiny test. The court found that the prohibitions on off-site commercial advertising could be unenforceable if the challenged provisions were found unconstitutional due to the impact on noncommercial speech. As such, the court held that Fourth National had standing to challenge the off-site sign provisions as applied.
City of Cincinnati v Fourth National Realty, LLC, 2017 WL 1491028 (OH App 4/26/2017)

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