Fed. Dist Court in Ohio Grants Preliminary Injunction Preventing Town from Enforcing Its Sign Ordinance Against Plaintiff

This post was authored by Matthew Loescher, Esq.

Plaintiff Conteers LLC operated by buying or leasing land upon which to construct, maintain, and operate billboards. The City Council met and voted to deny Conteers’ application for a permit for one of its billboards. The City Council did so because the height of the proposed billboard was over fifty feet, and due to the “aesthetics” of the billboard. Conteers filed a complaint against Defendants, as well as a Motion for Preliminary Injunction, which sought to enjoin Defendants from both enforcing Articles 9 and 14 of the Zoning Code against Conteers and preventing Conteers from erecting the billboard consistent with its permit application.

In support of its application for an injunction, Conteers claimed that it had a strong likelihood of success of proving that the City’s Zoning Code contains unconstitutional prior restraints on speech. Specifically, Conteers submitted an affidavit from one of Conteers’ members attesting to many of the allegations in the Complaint, meeting minutes from the various commissions that reviewed Conteers’ application for a billboard permit, and deposition testimony from the City Council’s President, Margo Sommerville. Accordingly. the court found that Defendants’ arguments with regard to jurisdiction and standing lacked merit, and that Conteers had shown that it was likely to succeed on its First Amendment claims. Additionally, Conteers also demonstrated that it would suffer irreparable injury absent an injunction, that Defendants would not be substantially harmed by an injunction, and that the public interest favored an injunction.

Conteers next contended that Section 153.474 was not severable, as striking that section by itself would fundamentally disrupt the City’s statutory scheme and not give effect to the City’s intent. In response, Defendants argued that Section 153.385(F) incorporating Section 153.474 was severable from the rest of Article 9, as Section 153.385(F) was not added to Article 9 until 2009 – before which the rest of Article 9 operated independently. Defendants further claimed that the City’s Code of Ordinances contained a severability provision. The court therefore found the likelihood of success factor favored the issuance of a preliminary injunction enjoining Defendants from enforcing Sections 153.474(A), (B), (C), and (H) against Conteers, but did not preclude the enforcement of Articles 9 and 14 in their entirety.

Conteers, LLC v City of Akron, 2020 WL 5529656 (ND OH 9/15/2020)