SECOND READING - CONTINUED FROM 09/15/2015...''unfettered discretion" in making decisions on signs....

. Chris Bazar Agency Director

Albert Lopez Planning Director

224 West Winton Ave

Room 111

Hayward California

94544

phone 510.670.5400

fax 510.785.8793

www.acgov.org/cda

ALAMEDA COUNTY COMMUNITY DEVELOPMENT AGENCY

P L A N N I N G D E P A R T M, E N T

Honorable Board of Supervisors County of Alameda 1221 Oak Street, Suite 536 Oakland, CA 94612

Dear Board Members:

Agenda Item: 7 September 15, 2015

SUB.JECT: Amendments to the Zoning Ordinance, Section 17.18.130, petiaining to changes to approved Planned Development (PD) permits

RECOMMENDATION:

Planning Depaitment recommendation: Conduct the first reading of the ordinance amendment; thei1 continue the item to September 291

1i for a second reading.

SUMMARY:

This ordi~iance amendment effort arises from billboards erected on the Lockaway Storage propetiy (on Dublin Canyon Road) in June of 2014. After the Planning Department's Code Enforcei11ent Division issued a notice of violation to Lockaway, Citizens for Free Speech, LLC and Michael Shaw (Lockaway's owner) filed a suit in Federal Court alleging that various provisions of the County's Zoning Ordinance regarding signs violate their First Amendment rights to free speech. Specifically, the suit argues that the County's sign ordinances unlawfully favor commercial speech over non-commercial speech in violation of the First Amendment, and that certain provisions of the County's sign ordinance unconstitutionally allow decision makers ''unfettered discretion" in making decisions on signs.

Citizens for Free Speech sought an injunction blocking the County from enforcing its zoning regarding signs, and on August 5, 2014, the Federal District Court (Judge Breyer) granted the injunction. Although Judge Breyer found that the County was likely to prevail on the conimercial/non-commercial speech issue, the Cou11 found that based on the arguments that the County made, Citizens were likely to prevail on their arguments that ce11ain provisions in the zoning ordinance violate the First Amendment by giving' the County "unfettered discretion" to make decisions about signs based on their content. Specifically, the cou11 found that three provisions of the Zoning Ordinance appeared to give decision makers unconstitutional "unfettered discretion" in making decisions about signs:

Section l 7.52.520(d)(exception allowii1g signs approved by "Historical Landmarks Commission") Section I 7.52.520(r)(exception allowing signs on bus shelters approved by the Public Works Agency director)

SECOND READING - CONTINUED FROM 09/15/2015

Board of Supervisors September 15, 2015

Section 17.18.130 (provides for modifications of uses described in PD zoning if the Planning Commission determines that they are minor)

'f !

To address the Court's ruling, in the Fall of2014, the County made changes to the outdated provisions in the ordinance code, Sections I 7.52.520(d) and I 7.52.520(r), to address the Cou1t's concerns. Specifically, the Board amended the zoning ordinance to eliminate the previous Section I 7.52.520(d) (including its outdated reference to the "Historical Landmarks Commission") and amended Section I 7.52.520(r) to eliminate any concerns regarding the Public Works Director's discretion in allowing signage on bus shelters.

The Office of the County Counsel advised that the County should be able to succeed in defending Section 17.18.130 as it is currently drafted, and this Spring, the attorneys handling the case for the County brought a summary judgment motion. The Federal District Court ruled in the County's favor on most arguments (see attached opinion), but the Court rejected the County's argument that Section 17.18.130 did not allow improper "unfettered discretion" in making decisions on modifications to PD zoning districts. Specifically, the Court found that the zoning ordinance did not provide the Planning Commission enough guidance in determining what constitutes a ''.material change" to a land use and development plan, and that this "unfettered" decision imposed a burden on applicants.

In order to seek to resolve the litigation as expeditiously as possible, the Office of the County Counsel has recommended to Planning staff that the County revise the ordinance in accordance with the District Court's ruling so that the County" can seek to conclude the case on a favorable basis. Toward this end, staff proposed the amendment below.

In seeking to revise the ordinance, it should be noted that the Coimty Board of Supervisors reserves its right to contest the District Cou1t's decision and appeal the matter. While the County's existing ordinance uses some fairly general terms, the County has compelling arguments that since the two paths that the Planning Commission can send an applicant down in modifying a PD district are both constitutional, some generality in the ordinance language does not allow an "unfettered" repression of speech rights or unduly burden an applicant.

ANALYSIS

Currently section 17.18.130 is written with references to the term ·"materially change" (emphasis added) as:

17.18.130 - Minor modification of the land use and development plan. If, in the opinion of the planning commission, a proposed structure, facility or land use not indicated on a land use and development plan approved by the Board of Supervisors in accordance with Section 17.18.020 of this chapter does not materially change the provisions of the approved land use and development plan, the structure, facility or land use may be permitted subject to securing a conditional use permit as provided by Section 17.54.135 of this title. If, in the opinion of the planning commission, a proposed structure, facility or land use not indicated on a land use and development plan approved by the Board of Supervisors in accordance with Section 17.18.020 of this chapter does 111aterial~1' change the provisions of the approved land use and development plan, the structure, facility or land use shall be permitted only if so indicated on a land use and development plan adopted by the Board of Supervisors in accordance with this chapter.

(Ord. 2006-36 ~ I (part): Ord. 2004-61 ~ I (part): prior gen. code ~ 8-31.18)


The ordinance amendment proposed includes two major elements: (I) remove references to "materially change" and (2) require a use permit with new special findings for a change to an approved land use and development plan. The new language is as follows:

17.18.130 - Modification of the land use and development plan.

If an applicant proposes a change to a land use and development plan approved by the Board of Supervisors in accordance with Section 17.18.020 of this chapter, the change may be permitted subject to securing a conditional use permit as provided by Section 17.54.135 of this title .. For purposes of considering such a conditional use permit, in addition to the findings required by Section 17.54.135, the Planning Commission shall only authorize a conditional use permit if it finds that:

a. The proposed change does not increase:

1) the number of housing units beyond that permitted in the existing land use and

development plan; or

2) the number of, or size of, structures; or

3) the number of, or size of, accessory structures; or

4) signage (number and/or aggregate sign area); or

5) the floor area ratio of the structures permitted in the existing land use and

development plan.

b. The original land use and development plan was approved less than five years ago;

c. The proposed change does not reduce public infrastructure provided in the land use and

development plan;:

d. The proposed change does not reduce public uses such as community centers, public parks or

open spaces;

e, The proposed change does not have an adverse financial impact on the county, including the

provision of services;

f. The proposed change does not involve uses not previously approved for the project.

The Planning Commission shall adopt a statement or resolution of findings for each criteria 1'equired for issuance of a conditional use permit. A Planning Commission decision pursuant to this Section is subject to appeal pursuant to Section 17 .54.670.

Under this proposed change, staff anticipates that the Planning Commission will have more guidance in determining when a conditional use permit can be used to modify an approved PD land use and development plan. Staff would anticipate that only a narrow range of changes would be able to be made through the CUP process, and extensive changes would require a rezonmg.

PLANNING COMMISSlON HEARING

The County Planning Commission heard this item at their meeting of August 1711i and voted

unanimously to approve the ordinance amendments. The staff report and resolution are attached.


CONCLUSION

Staff believes this ordinance amendment will adequately respond to and effectively eliminate the "burden on applicants" claim of the District Court by clearly laying out the circumstances under which a change to an approved PD can occur. There are very few instances where an approved land use and development plan should be amended by a CUP alone, and the above findings are designed to provide the Planning Commission guidance when asked to make such a determination.

The staff recommendation is for the Board of Supervisors to hold the public hearing, coqduct the first reading and continue the item to the September 291

h regular Board meeting for a second reading.

The complete record is attached.

Very truly yours,

·Ch~ Chris Bazar, Director Community Development Agency

ATTACHMENTS

A. August 17th, 2015 Planning Commission Staff repo1i and attachments B. Draft Ordinance C. District Court's 2014 Preliminary Injunction Ruling. D. District Court's 2015 Summary Judgment Ruling.

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Case3:14-cv-02513-CRB Document34 Filed08/05/14 Page5 of 19

1 challenges. See S.O.C., 152 F.3d at 1144 (ordmance that improperly restricts fully protected

2 noncommercial speech is overbroad); U.S. v.Linick, 195 F.3d 538, 542 (9th Cir. 1999)

3 · (regulations that vest officials with unbridled discretion to deny exp!essive· activity are

4 overbroad on their face) ... Thus, under the Supreme Court's "overbreadth" doctrine, Plaintiffs . . .... ;.:::i~ . ... .. • . . .

CO..;"~ .

5 may challenge' the other provisions of the Zoning Ordinance by "showing that [those

6 provisions] may inhibit the First Amendment rights of individuals who are not before the

7 court." See 4805 Convoy. Inc. v. City of San Diego, 183 F .3d 1108, 1112 (9th Cir. 1999).

8 B. Likelihood of Success on the Merits

9 An "overbreadth" challenge to a local ordinance must show that the ordinance "seeks

10 to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad."

11 S.O.C., 152 F.3d at 1142 (internal quotations omitted). Plaintiffs argue that the Zoning

12 Ordinance is overbroad and facially unconstitutional because it (1) regulates billboards and

13 advertising signs without identifying a substantial governmental purpose; (2) regulates

14 speech based on its content by allowirig some commercial speech while disallowing all

15 noncommercial speech;5 and {3) gives certain County officials the power to regulate speech

16 based on content by giving them unfettered discretion to allow variances or to permit signs

17 with certain types of content. 6 Mot. at 3. As explained below, Plaintiffs are only likely to

18 . succ~ed on the merits ofth~¥' ~rd argument.

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The Zoning Ordinance States Substantial Government Interests for the County's Restrictions on Commercial Speech

Plaintiffs first contend that "the [Zoning Ordinance] is unconstitutional because it

does not contain a stated purpose for speech restrictions." Mot. at 5. To determine the

constitutionality of restrictions.on commercial speech, courts apply a three-part test. An

ordinance that restricts commercial speech that is not misleading and concerns lawful activity

s Plaintiffs' motion explicitly challenges the regulation of billboards in SC districts and does not explicitly challenge the County-wide billboard ban at section 17 .52.51 S(A) of the Zoning Ordinance. H<?wever, Plaintinffs implicitly challenge the latter by arguing that certain exemptions to that provision create unconstitutional content-based regulation of protected speech. See Mot. at 4.

6 Plaintiffs also assert in passing that enforcement of the Zoning Ordinance will infringe upon thefr Due Process Rights, but they fail to discuss that argument at all. See Mot. at 13.

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1 Signs vfolatedZoning Ordinance sections 17.18.010and17.18.120.4 Id. 4114\f 5, 6; Mot. Exs.

, 2 C~ D (dkt. 11-7, 11-8). Section 17.18.010 states that PD districts are:

'/:',,'..::r ,.:_,.:; · .:-·~.2:i~:::i·i~:;; '.:~;:::-_, .:establ~shed to encourage the arrange~ent of a compatibl!3 variety of uses on suitable :t:·, ~~~[~':.:~~, , , : -.-~ .. , Janus 1!1 such a m8:1111_er that t.h~ resultmg development will: ,

~~~-· ,;:.::;.,..._': .. · , ·. A; Be m accord with the policies of the general plan of the county; · -·5 · B. Provide efficient use of larid that includes preservation of open areas and natural

arid"fop?graphic l'!fldscape featur~s with minimum alteration of natural land forms; 6 C. Provide an envrronment that will encourage the use of common opeh areas for

neighborhood or community activities and other amenities; 7 D. Be compatible with and enhance the development of the general area;

E. Create an attractive, efficient and safe environment. · . 8

9 Zoning Ordinance§ 17.18.010. Section 17.18.120 states that "[a]ny land use within the

boundaries of a [PD] district adopted in accordance with the provisions of this chapter shall 10

conform to the approved land use and development plan." Id. §17.18.120. The Notice to 11

Abate stated that the "specific violation is unlawful signs (billboards)," but did not explain 12

how sections 17.18.010 or 17.18.120 apply to the Signs on the Parcel or signs in general. 13

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·See Mot. Ex. C. The Notice to Abate instructed Shaw to remove the signs or face an

abatement proceeding and an escalating schedule of fines. Id. .

Plaintiffs sued and moved for a temporary restraining order ag~inst the County. See

generally Mot. The parties then stipulated to treat the application for a temporary restraining 17

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order as a motion for preliminary injunction. See Stipulation ( dkt. 1 7). The County waived

any bond requirement. Id. at 2.

II. LEGALSTANDARD

Federal Rule of Civil Procedure 65 governs the issuance of preliminary injunctions.

To obtain a preliminary injunction, a plaintiff "must establish that he is likely to succeed on · 22 . "

the merits, that he is likely to suffer iITeparable harm in the absence of preliminary relief, that 23

the balance of equities tips in his favor, and that an injunction is in the public interest." 24

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). "A preliminary injunction 25

is an extraordinary remedy never awarded as of right. In each case, coruts must balance the 26

27 competing claims of injury and must consider the effect on each party of the granting or \

28 4 Sections 17.18.010 and 17.18.120 relate to PD districts and do not regulate SC districts.

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1 these regulations." Id.§ 17.30.210.

2 Jn addition to the prohibition on new billboards in SC districts, the Zoning Ordinance

3 imposes a county-wide ban on new billboards in all unincorporated areas. It provides that

4 "[n]otwithstanding any other provision in [the Zoning Ordinance], no person shall install,

5 move, alter, expand, modify, replace or otherwise maintain or operate any billboard or

6 advertisu'.ig siim in an unincorporated area of Alameda County." Zoning Ordinance

7 § l 7.52.515(A). Exempted from this prohibition are "billboards or adve1iising signs which . .

8 legally exist as of the time this section is first adopted" or for which a valid permit has been

9 issued and has not expired. Id. § l 7.52.515(A)(l), (2).

10 The County takes t~e position that the Zoning Ordinance's bans on new billboards and

11 advertising signs encompasses noncommercial speech. Opp'n_at 10. The County contends

12 that Zoning Ordinance section 17.04.010 defines billboard as ''a"penilanent structure or sign ,,- .

13 used for the display of offsite commercial messages and shall include and be synonymous

14 with 'advertising sign,"' and that the Zoning Ordinance's definition of "advertising sign" is

15 broad, see Zoning Ordinance§ 17.04.010 (advertising sign defined as "any lettered or

16 pictorial matter or device which advertises or informs about a business organizationor event,

17 goods, products, services or uses, not available on the property upon which the sign is

18 located and does not inchide directional tract sign or community identification sign"); Opp'n

19 at 10-11 ("the phrase 'business organization or event' and the term 'uses' can include a

20 variety of messages that are not 'commercial' in nature ... ").

21 Plaintiffs also contend that the bans encompass noncommercial speech, but they reach

22 that conclusion despite arguing that the Zoning Ordinance "has no provision whatsoever for

23 noncommercial speech, whether on-premises or otherwise," and that "the terms 'billboard'

24 and 'advertising sign' ... must be read as applying only to conm1ercial speech." See Mot. at

25 4-5; Reply' at 10-11 .. Plaintiffs argue that the Zoning Ordinance somehow "ban[ s]

26 noncommercial speech when some commercial speech is pe1mitted," because it "contains

27 content-based exemptions permitting any sign ... if it contains certain speech." Mot. at 4.

28 They argue that "content based exemptions to an otherwise-content neutral sign ordinance

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Case3:14-cv-02513-CRB Document34 Filed08/05/14. Page7 of 19

1 ordinance shall not take effect until 30 days after the date of publication." The Court takes .· ~ .

2 judicial notice of a Proof of Publication for Ordinance No: 2010-49, which satisfies the

3 requirement of California Government Code section 25124 that ordinances be published

4': either in a newspaper or in an official summary posted in the office of the clerk of the Board """'-:_:-: .. -

· 5 of Supervisors. Def.'s ·supplementa11UN, Ex. I (dkt. 31-1); Cal. Gov. Code§§ 25124(a),

6 · (c). Accordingly, the Cow1 finds that sections 17.52.515(B)-(G) are in effect.7

7 In light of section l 7.52.5 l5(B), which states that the purpose of the County-wide ban

·· 8 on new billboards and advertising signs is to "advance the County's interests in community

9 aesthetics by the control of visual clutter; pedestrian and driver safety, and the protection of

10 property values," the Cow1 finds that Plaintiffs are unlikely to show that the Zoning ·. .

11 Ordinance fails to identify a substantial government interest. See Metromedia, Ille. v. City of

12 San Diego, 453 U.S. 490, 507-08 (1981) ("Nor can there be substantial doubt that the twin

13 goals that the ordinance seeks to fw1her-traffic safety and the appearance of the city-are

14 substantial government goals.").

15 The Ninth Circuit has explained that "the burden on the [County] of meeting the first

16 prong of the Central Hudson test is not a great one." Moreno Valley, 103 F .3d at 819 n.2.

17 The Zoning Ordinance only needs "a clear statement of purpose indicating the [County's]

18 interest in eliminating hazards posed by billboards to pedestrians and motorists" or "in

19 preserving and improving its appearance." See id. Plaintiffs cite National Advertising Co. v.

20 Town of Babylon ("National Advertising H"), 900 F.2d 551, 556 (2d Cir. 1990), for the

21 proposition that a "mere incantation of aesthetics as a proper state purpose" is insufficient.

. 22 ~Mot. at 11-12. Plaintiffs' characterization of that case is misleading. In National

23 1 In their supplemental filing, Plaintiffs concede that the County has provided "proof of

24 publication of the foll text" and that it "may have complied with the letter of the Government Code." Pls.' Supplemental Br .. at 1-2. Plaintiffs shift their attack, though, arguing that the County's "failure to

25 include the full ordinance in the print and Internet-based versions of its Code of Ordinances" is the real

26 problem, "injur[ing]the·democratic principle" and "breach[ing] the spirit of the publication ordinance." Id: Plaintiffs ask for leave to engage in discovery into the County's sign rules. Id. at 2~ Leave is denied. The County answered the specific challenge Plaintiffs made in their Reply brief; Plaintiffs may

27 not have another bite at the apple. While the County's apparent failure to include the full ordinance in the print and Internet-based versions of the Code is troubling, Plaintiffs identified in their bri~fing no

28 law requiring such "publication." Moreover, the Court notes that "the ordinance code itself need not be published in the manner required for other ordinances." See Cal. Gov. Code§§ 25128, 25126.

7

Case3:14-cv-02513-CRB Document34 Filed08/0S/14 Page13 of 19

1 procedi.rral safeguards or is completely discretionary, there is a danger that protected speech

2 will be suppressed impermissibly because of the government official's ... distaste for the

3 content of the speech."). In the billboard context, a regulation that prohibits billboards unless

4 a permit has been obtained is unconst.itutional if "officials have unbridled discretion in

5 determining whether a particular stmcture or sign will be harmful to the community's health,

6 welfare, or 'aesthetic quality."' See Moreno Valley, 103 F.3d at 819.

7 Plaintiffs argue that the Zoning Ordinance "contains numerous provisions allowing

8 for signs to be constmcted ... anywhere ... within the County's jurisdiction, if [they are]

9 approved by one or more County instmmentalities or committees, each of which have [sic]

10 unfettered discretion." Mot. at 3., Their argument involves two contentions. First, Plaintiffs

11 contend that County officials can permit certain signs without any "substantive guidelines

12 whatsoever." Id. at 6. That contention applies to four prov.isions of the Zoning Ordinance:

13 (1) section 17.54.080, -which allows County officials to permit a variance from "the strict

14 -terms- of [the Zoning Ordinance]" if they determine that a variance is not detrimental to the

15 "public weifare"; (2) section 17.52.520(R), which allows signs to be "place~ on.or attached

16 ·to bus stop benches or transit shelters in the public right-of-way when approved by the

17 director of the public works agency"; (3) section l 7.52.520(D), which allows "[a]ny sign

,:;;,.l8 "'~hich''lia~ been determined by the historical landmarks committee for iliis county to have ~.-

19 significant historical merit"; and (4) section 17.18.130, whid{allows the planning

20 commission to grant a CUP for any non-conforming use in.-ca·PD district if, in its opinion, a

21 CUP does not "materially change the provisions of the approved land use and development

22 plan." See id. at 6, 8-10. Second, Plaintiffs contend that none of these provisions have any

23 "procedural guidelines to ensure that the officials' decisions will be rendered timely." See

24 id. at 6, 9; Remarkably, the County does not address Plaintiffs' discretion argliment at all in

25 its Opposition. See generally Opp'n. 10 As discussed below, the Court finds that Plaintiffs

26 are likely to succeed on this argument.

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28 10 The County dedicated a significant amount of its briefing to the power of local governments to administer zoning laws. See Opp'n at 7-9.

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granted by Zoning Ordinance§ 17.18.130, and as to Plaintiffs' equal protection claims.

IT IS SO ORDERED.

Dated: July 16, 2015 CHARLES R. BREYER UNITED STATES.DISTRICT JUDGE

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Case3:14-cv-02513-CRB Document34 Filed08/05/14 Pagel? of 19

1 See id.§§ 11.54.080, 17.52.520(D), l 7.52.520(R) 17.18.130. For these reasons, the Court

2 -finds that Plaintiffs are likely to succeed on the merits of their third argument.

3 c. Likelihood of Irreparable Injury

4 Because Plaintiffs are likely to succeed on the me1its of their third-argument, the

5 Court finds that they are also likely to suffer iiTeparable injury if a preliminary injunction is

6 not issued. "The loss of First Amendment freedoms, for even minimal periods-of time,

7 unquestionably constitutes irreparable injury." S.O.C., 152 F.3d at 1148 (quoting Eh"od v.

8 Burns, 427 U.S. 347, 373 (1976)).

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The County argues that there is no chance of irreparable injury because "plaintiffs

have not presented any evidence ... that they, as opposed to purchasers of the:ir billboard

space," will have their First Amendment rights abridged. Opp'n at 12 (emphasis in original).

The County cites no legal authority in support of this position. See id. at 12-13. Also,

"[ v ]endors and those in like positions have been uniformly permitted to resist efforts at

restricting their operations by acting as advocates of the rights of the rights of third parties

who seek access to their market or-function." See Kaahumanu v. Hawaii, 682-F-.3d 789, 797

(9th Cir. 2012) (citing Craig v-. Boren, 429 U.'S. 190, 19S (19_76)).

The County further argues that Plaintiffs will 'suffer no irreparable injury because they

have alternative·means of·expression-rentmg space from any of the legally permitted :r -

billboards in the County. Id. at 13. The County's citedcases discuss alternative means of

expression in the context of the whether a constitutional challenge is meritorious, not

whether enforcement of the regulation is likely to cause irreparable injury. See Opp'n at 13

(citing Reed v. Town of Gilbert ("Reed II"), 707 F.3d 1057, I 063-64 (9th Cir. 2013); Reed v.

Town of Gilbert ("Reed I"), 587 F.3d 966, 980 (9th Cir. 2009); G.K. Ltd Travel-v. City of

Lake Oswego, 436 F.3d 1064, 1074 (9th Cir. 2006); Bland v. Fessler, 88 F.3d 729, 736 (9th

Cir. 1996)). Because infringement of First Amendment freedoms is an irreparable injury,

Plaintiffs will be ilTeparably injured if the County is allowed to enforce the Zoning

27 Ordinance. See S.O.C., 152 F.3d at 1148.

28-

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Case3:14-cv-02513-CRB Document34 FiledOS/05/14 Pagell of 19

1 signs as "exemptions" to a more generalized ban. See id. The Zoning Ordinance does not

2 ban noncommercial speech, and because exceptions cannot exist without a corresponding

3 general rule, the Court does not interpret the "pem1itted" signs to be exceptions to _any

4 general ban on noncommercial speech.

5 This Court previously addressed a billboard ban in Maldonado v. Kempton, 422 F.

6 Supp. 2d 1169 (N.D. Cal. 2006). In that case, the challenged regulation prohibited "all

7 billboard 'advertising displays,"' but made an exception for '"on-premises' advertising."

8 Maldonado, 42i F. Supp. 2d at 1173-74. This Court concluded that the regulation was

9 unconstitutional because "the plain language of the Act prohibit[ ed] noncommercial speech

10 while allowing on-premises commercial advertisements." Id. at 1174. The Court added that

11 this conclusion was supported by a provision which exempted temporary political signs. Id.

12 The regulation at issue in Maldonado defined "adve1iising display" in a way that could

13 include both commercial and noncoinmercial speech. See id. (advertising display refers to a

14 "structure of any kind or character erected, used, or maintained for outdoor advertising .

15 purposes, uponc which any poster, bill, printing, painting, or other adve1iisement of any kind ...... _.

16 whatsoever may be placed"). It made sense, in that context, to understand the regulation's

17 allowance of temporary political signs as an exception to a general ban on: noncommercial

18 signs. Here, in contrast, the Zoning Ordinance bans new "billboards" and "advertising

19 signs," but equates both with off-site commercial speech. See Zoning Ordinance

20 § 17.04.010. Because "billboards" and "advertising signs" are limited to off-site commercial

21 speech, the Court does not understand the list of permitted signs in the Zoning Ordinance to

22 be "exemptions" to bans on both commercial and noncommercial speech.

23 Further underminmg Plaintiffs's position is section 17.52.515(C) of the Zoning

24 Ordinance:· See Def.'s RJN, Ex. A at 13.9 That provision contains the following substitution

25 clause:

26 9 Like section 17.52.515(B), section 17.52.515(C} was inadvertently omitted from the

27 publication of the County's General Ordinance Code. Campbell-Belton Deel. at 2-3. As already discussed, the Court finds that section 17 .52.5 l 5(C) is in effect because, as Plaintiffs concede, the

28 County satisfied its statutory obligation to publish the ordinance amending section 17.52.515. See Def.'s Supplemental RJN, Ex. I; Cal. Gov. Code§§ 25124(a), (c); Pis:' Supplemental Br. at 1-2.

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Case3:14-cv-02513-CRB Document71 Filed07/16/15 Pagel of 31

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IN THE UNITED STA TES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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11 CITIZENS FOR FREE SPEECH, LLC, ETAL.,

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14 COUNTY OF: ALA1v1EDA,

15 Defendant.

16 I

No .. Cl4-02513 CRB

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

17 Plaintiffs Citizens for Free Speech, LLC ("Citizens") and Michael Shaw ("Shaw")

18 (collectively, "Plaintiffs") brought suit against Defendant County of Alameda (the

19 "County"), alleging that the County's regulation of billboards. and advertising signs is

20 . unconstitutional. 1 See generally Compl. Plaintiffs previously obtained a preliminary

21 injlinction in this case to prevent the County from enforcing Title 1 7 of the Alameda County

Z2 General Ordinance Code (the "Zoning Ordinance") against Plaintiffs. See Citizens for Free

23 · Speech, LLC v. Cnty. ofAlameda, 62 F. Supp. 3d 1129 (N.D. Cal. 2014).

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26 1 Plaintiffs assert four claims, for (1) violation of their rights to free speech under the First

27 Amendment; (2) violaHon of their rights to equal protection under the Fourteenth Amendment; (3) .

28 violation of their rights to free speech under Art. I,§ 2 of the California Constitution; and (4) violation of their rights to equal protection under Art. I, § 7 of the California . Constitution. Comp!. (dkt. 1) if'lf 34-39, 43-48. Because Plaintiffs' fifth claim is merely a request for attorneys' fees pursuant to 42 U.S.C. § 1988, id. if'l! 40-42, the Court does not consider it a separate claim for purposes of the motion.

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agency." Zoning Ordinance§ 17.52.520(R) (emphasis added). Similarly, section

l 7.52.520(D) allows "[a]ny sign which has been determined by the historical landmarks

committee for this county to have significant historical merit." Id.§ 17.52.520(D) (emphasis

added). On their face, these provision~B~ve no guidelines and give County officials

unlimited discretion to pick and choose which signs will be approved. The County fails to

respond and, thus, has not pointed to any provision that guides or limits the discretion of

either the director of the public works agency or the historical landmarks committee. See

generally Opp'n. The Court finds that, under the Zoning Ordinance, County officials could

allow some speech and suppress other speech based entirely on content. See Young, 216

10 F.3d at 819.

11 c. The Planning Commission Has Unfettered Discretion to Grant or Deny Conditional Use Permits for Non-Conforming

12 •''" Uses in PD Districts · ·

13 Additionally, the Zoning Ordinance provides that "any use of land" within the

14 boundaries of a PD district must "conform to the approved land use and development plan."

15 Zoning Ordinance§ 17.18.120. However, the planning commission can permit any non-

16 conforming use, subject to a CUP, if in the planning commission's opinion, a CUP would not

17 "materially change the provisions of the approved land use and development plan." Id.

18 § 17.18.130 .. The Zoning Ordinance, as represented by the parties' requests for judicial

19 notice, does not contain any info1mation about the "approved lap.d use and development ~~-·· :

20 plan" or ariy substantive guidelines that expiain what would amount to a material change

21 from that plan.

22 Plaintiffs argue that underlying the planning commission's discretion lies another

23 hurdle: discretion to grant a CUP, as provided in sections 17.54.130 and 17.54.13. Mot. at

24 10. Plaintiffs do not provide the Court with a copy of those sections. See Pls' RJN. Even·

25 without looking to those provisions, however, the Court finds that County officials have

26 unfettered discretion to decide if a CUP would "materially change the provisions of the

27 approved land use and development plan." See Zoning Ordinance§ 17.18.130. The County

28 fails to respond and thus has not identified any provision of the Zoning Ordinance that guides

15

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Case3:14-cv-02513-CRB Document71 Filed07/16/15 Pages of 31

1 applied challenge. First, it argues persuasively that the Zoning Ordinance provisions under

2 which the County required Plaintiffs to remove their.Signs do not even implicate Plaintiff.'l'

· 3 constitutional rights to free speech, since those provisions only examine whether a pai.1:icular

4 use of land in a PD district conforms with the specific land use· and development plan for the

5 land on which the use occurs. See Memo. at 6-7. Second, the County argues unpersuasively

6 that Plaintiffs' intention to display commerciai messages on the Signs in the future would

7 have allowed the County to properly regulate that speech under Zoning

8 Ordinance§ 17.52.515. Id. at 7-11.5

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"An as-applied challenge contends that the law is unconstitutional as applied to the

litigant's particular speech activity, even though the law may be capable of valid application

. to others." Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Such challenge

"does not implicate the enforcement of the law against third parties," but instead "argue[s]

that discriminatory enforcement of a speech restriction amounts to viewpoint discrimination

in violation of the First Amendment." Id. For that reason, a successful as-applied challenge

"does not render the law itself invalid but only the particular application of the law." Id.

: The County a.Sserts that the ~oning ·ordinance is constitutional as applied to Plaintiffs,

since the County sought to remove the Signs "without regard to any issue of content .... "

Id. at 6. The parties do not dispute that the Notice to Abate stated that the County's -basis for . .

. enforcing the Zoning Ordinance as to the Signs was :Plaintiffs' violation of Zoning

5 Even assuming arguendo that the Court should analyze this speculativt,"l as-applied challenge; the County's broad interpretation of Section 17.52.515 fails. The Zonirig Ordinance defines billboard a.s "a permanent structure or sign used for the display of offsite commercial messages .... " Zoning Ordinance.§ 17.52.~15(A) (emphasis added). The County argues that this provision prevents construction of signs currently displaying commercial messages as well as "signs displaying noncommercial messages when constructed, but which are intended by the owr~er to also display I commercial messages .... " Memo. at 8. But courts generally must look at the text of the statute to '"determine whether the ianguage at issue has a plain and unambiguous meaning with regard to the particular dispute in the case."' Royai Foods Co. v. RJR Holdings, foe., 252 F.3d 1102, ii 06 (9th Cir. 2001) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). - Section 17.52.515 does not include any reference to the future intentions of parties using the signs, and a logical understanding of "used" would preclude speech that might be displayed at some indeterminate point in the future.

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Case3:14-cv-02513-CRB Document34 FiledOS/05/14" Page19 of 19

preliminary injunction consistent with this Order and nQt exceeding three (3) pages. The

2 proposed injunctions shall not require a bond. See Stipulation at 2 (the County waived any

3 bond requirement).

· 4 IT IS SO ORDERED.

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6' Dated: August 5, 2014

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CHARLES R. BREYER UNITED STATES DIS1RICT JUDGE

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must consider in analyzing the facial validity of a permitting process: (1) whether limited and

2 objective criteria sufficiently ·confine the .p~rmitting officials' discretion to grant or deny a

3 permit; (2) whether officials are required to state the reasons for a permitting decision, so as I 4 to facilitate effective judicial review; and (3) whether such decision must be made within a

5 reasonable time frame. See City of Oakland 506 F.3d at 806--07 (citing G.K. Ltd. Travel v. ; ·

6 City of Lake Oswego, 436 F.3d 1064, 1082~83 (9th Cir. 2006)). "None of these factors is

7 itself necessariiy determinative of whether a statute confers excess discretion." Seattle

8 Affiliate, -550 F.3d at 799. Ins~ead, courts must"look to the totality of the factors.· ... " Id.

9 The County argues that the provisions Plaintiffs challenge all contain sufficient

10 "standards or guidelines to limit County zoning officials' discretion in making decisions

11 regarding certain uses of property." Memo. at 12. The Court previously held that Plaintiffs .

12 were likely to succeed on the merits of their argument that certain sectiOns of the Zoning . .

13 Ordinance.granted County officials unfettered discretion: (1) Section l 7.52.520(Q),7 which

14 concerns signs to be placed on bus stop benches or transit shelters, and Section

15 17 .52.520(D), 8 which allowed for display of signs with historic.al merit; and (2) Section

16 .17.18.130, which.allows the planning commission to grant a CW for any non-conforming

11 use in a PD district if a CUP does not "materially change" the provisions of the approved .

18 land use and development plan. See Citizens for Free Speech, 62 F. Supp. 3d at 1140-42.9

19 Plaintiffs. also elaborate on a fourth challenge raised in their preliminary injunction motion,

20 regarding Sections 17.54.130 and 17.54.135, which concern the process used to grant CUPs.

21

22 7 The same provision existed as Section 17 .52.520(R) at the time the Court decided ~laintiffs'

23 preliminary injunction motion. See Citizens for Free Speech, 62 F. Supp. 3d at 1140. The County amended the Zoning Ordinance in November 2014, and this change a...ffected the sections' nUm.bering.-

24 See Def.'s Second RJN, Ex. S (dkt. 60-19). ·

e The amendment to the Zoning Ordinance in November 2.014 deleted this section. See id. 25

9 'I11e Court also found that Plaintiffs were unlikely to succeed on the merits of their unfettered· i 26 discretion argument as to another provision, Section 17.54.080, regarding permissible variances from

the Zoning Ordinance. Citizens for Free Speech, 62 F. Supp. 3d at 1141. Given this holding, Plaintiffs 27 concede that the prov~siOn is not at issue here, see Opp'n at 6 n.2, and the Court does not address it

28 further.

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Shaw Deel. if 7; Herson Deel. if 2. The Signs currently consist entirely <:Jf non-commercial

2 messages, but Plaintiffs claim that the Signs will contain commercial messages in the future.

3 Herson Deel.~ 3, Ex. E; Compl ~ 12.

4 A County official visited the Parcel on June 9, 2014 to inform Shaw that the Signs

5 were prohibited. Shaw Deel. 'If 4. On Jline 10, 2014, the County mailed Shaw a "Declaration

6 of Public Nuisarice-Notice to.Abate," ciaiming that the Signs vioiated Zoning

7 Ordinance§§ 17.18;010 and 17.18.120. Id.~~ 5-6, Ex. C. Tne Notice.to Abate instn.icted ·

8 Shaw to remove the Signs or face an abatement proceeding and an escalating schedule of

9 fines. Id., Ex. C.

1 O Plaintiffs sued and moved for a temporary restraining order against the Courity to stop

11 the abatement proceedings and.impending fines. Pls.' Mot. for Temp. Restraining Order

12 (cl.kt. 1 i ). · The Court subsequently granted Plaintiffs a preliminary injunction, finding that

13 they were likely to succeed on the merits of their arguments that the Zoning Ordinance was

14 facially invalid because it (1) gave County officials unfettered discretion to make ~ertain

15 qeterininations regarding signs and (2) failed to ensure that those decisions would be made in·

16 a timely manner. See Citizens for Free Speech, 62 F. Supp. 2d at 1140-42. Following

17 . discovery, the County now moves for summa..'")' judgment.

18 II . LEGAL STANDARD

. 19 Summary judgment is proper w:henthe pleadings, depositions, answers to

20 · interrogatories, affidavits or declarations, or other materials show that there is no genuine

21 dispute as to any material fact and that the movirig party is entitled to a judgment as a matter·

22 ~flaw. Fed. R. Civ. P. 56(a), (c)(l)(A). This occurs where either.the materials.cited do not

23 establish the absence or presence of a genuine dispute, or the nonmoving party cannot

· 24 produce adlnissible evidence to support a fact. Id. 5 6( c )( 1 )(B ) .. Art· issue is "genuine" only if

25 · there is a sufficient evidentiary basis on which a reasonable fact finder could find for t.Jie

26 norl.moving party, and a dispu_te is "material" only if it could affect the outcome of the suit

27 under governing law. See Anderson.v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A

28 principal purpose of the summary· judgment procedure "is to isolate and dispose of factually

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2 The rezoning process appears to be significantly more intensive and time-consuming

3 than the CUP process, and County officials can affect which process property owners must

4 undergo by deciding, at their discretion, ·what constitutes a material change. If officials

5 determine that a proposed use does not constitute a material cha..'lge, then that use will be

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6 1 permitted "subject to securing a [ CUPJ .... " Zoning Ordinance § 17 .18. BO. The CUP

application process requires submitting a writteff application with information about the

proposed use to a municipal advisory. council, which, after conducting a hearing and making ·

an advisory recommendation, then submits it to a zohing board, which either adopts or denies

the CUP. See Lopez Deel.' (dkt. 57) at 3:23-4:4.12 If, h<;>wever, officials determine that a

proposed use does constitute a "material change," then that use will only be permitted "if so

indicated on a land use and development plan .... " Zoning Ordinance§ 17.18.130. Tiris

process requires submission of a land use and development plan and application for rezoning:

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Memo. at 17. These docUm.ents are then submitted to a municipal advisory cmmcil, then to

the planning commission, then to the board of supervisors, all of which hold public hearings

and make advisory recomniendations. Lopez Deel. at 2:16-3:5.13 Planning staff must also

create and release a public report prior to the Planning Commission's and Board of

Supervisors' review of the submitted docunients. Id. at 2 :26-3 :2. The discretion granted to

County officials by Zonirig Ordinance § 17 .18.130 ther~fore potentially "allow[ SJ . .

officials ... to burden a group's speech differently depending on its message." See Seattle

Affiliate, 550 F.3d at 796 n.4. The absence of any definite standards as to the meaning of

231 · · i 2 Plaintiffs object to this portion of the Lopez Declaration as opinion. Opp'n at 4. The Court denies this objection. The statements in lines 3 :23-4:4 about the substance of the CUP process ·are

24 ·admissible. Lopez has worked as the Pfanning Director for the County for seven years, so-he appears to have firsthand knowledge of the CUP process, to which his statements in lines 3:23-4:4 pertain.

25 Lopez Deel. at 1 :23~24; see also Boyd v. City of Oakland, 458 F. Supp. 2d 1015, 1024 (N.D. Cal. 2006) (distinguishing matters "known to the declarant personally" from opinion). .

26 ..

13 Plaintiffs object to this portion of the Lopez Declaration as opinion. Opp'n at 4. The Court 27 denies this objection forthe reasons stated in footnote 12.

28. 13.

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Case3:14-cv-02513-CRB Document71 Filed07/16/15 Page? of 31

[Zoning] Ordinance, which set forth an unconstitutional prior restrninton speech." Opp'n at.

2. Plaintiffs are arguing, in essence, that'because the Zoning Ordinance is facially

unconstitutional as a prior restraint on speech, it is also unconstitutional as applied to them.

But an "as-applied challenge goes to the nature of the application rather than the nature of the

law itself," Desert Outdoor Adver., Inc. v. City of Oakland, 506 F.3d 798, 805 (9th Cir.

2007) (emphasis added), so whethe~ the Zonmg .Ordinance is facially unconstitutionai is not · 1

relevant to the question of whether it is unconstitutionai as applied to Plaintiffs. Here, the

County has presented substantial evidence that Zoning Ordinances-§§ 17.18.010 and

17.18.120 did apply to Plaintiffs' Signs, and that the Plan precluded Plaintiffs from building

the Signs on the.Parcel. Plaintiffs have failed to rebut the County's evidence or provide any

evidence indicating that those_provisions were unconstitutionally appiied to them.

Accordingly, the Court grants summary judgment on both free speech claims to the extent

Plaintiffs bring ah as-applied challenge to those provisions.

2. Plaintiffs' Facial Challenge

The County next argues that Plaintiffs' facial challenges to the Zoning Ordinance lack

merit. "Although facial challenges to legislation are generally disfavored, they have been

_permitted in the First Amendment context where the licensing scheme vests unbridled

discretion in the decisionmaker and where the regulation is challenged as overbroad."

FW/PBS, Inc. v. City ofDallas,493 U.S. 215,'223 (1990). This Court has previously.

recognized that both of Plaintiffs' arguments "are best characterized as 'overbreadth'

challenges." Citizens for Free Speech, 62 F. Supp. 3d at 1134; see also United States v.

Linick, 195 F.3d :538, 542 (9th Cir. 1999) (considering overbroad regulations that vested

officials with unbridled discretion to deny expressive activity); S.0_.C., Inc. v. Cnty. of Clark, ·

24 , 152 F.3d 1136, 1144 (9th Cir. 1998) (finding overbroad an ordinance that improperly ·

25 1 restricted protected noncommercial speech). ·Under this type of challenge, Plaintiffs can

26 establish the. unconstitutionality of provisions of the Zoning Ordinance not applied to

27 Plaintiffs by "showing that [those provisions] may inhibit the First Amendment rights of

28 7

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(emphasis added). But numerous cases contradkt this assertion~ Courts must consider both

2 the criteria themselves and whether the permitting process effectjvely enables judicial

3 review. See. e.g., Seattle Affiliate, 550 F.3d at 799 (requiring consideration of "totality of

4 the factors" to determine if ordinance confers unfettered discretion, including whether

5 . officials must provide explanation for decision and whether decision is reviewable ); Thomas,

6 534 U.S. at 323 (court must examine whether permitting process "contain[sj adequate

7 standards to guide the official's decision and render it subject to effective judicial review")

8 (emphasis added); G.K. Ltd., 436 F.3d at 1083 (considering time frrupe for officials'

9 decisions and requirement that offiCials justify their findings in discussing discretion granted

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~e Court finds that the review procedures for the CUP process appropriately limit the ·

discretion exercised. by County officials pursuant to Zoning Ordinance § 17.54.130, for three

reasons. First, CUP applications are subject to a thoroughly documented process. Parties

seeking CUPs must submit a written application with information about the proposed use to a ·

municipal advisory council, which, after conducting a hearing and making an advisory

recommendation, then submits it to a zoning board, which either adopts or denies the CUP.

See Lopez Deel. at 3 :23-4:4. The relevant zoning board must state its findings in writing as

to the CUP's compliance with the standards in Section 17.54.130. Id. at 4:5-12.16. That

County officials "must clearly explain [their] reasons" for their decisions regarding CUP

15 At the hearing, Plaintiffs' counsel asserted that the standards in the Moreno Valley ordinance · aremore appropriate guidelines to judge the breadth of the discretion granted by Section 17.54.130 than the criteria in other cases cited bv the Countv because those cases were not concerned with permit applications involving billboards. See, e.g., Seattle Affiliate, 550 F.3d at 800-01: Thomas, 534 U.S. at 319 n. l. But the Court mav still relv on the pennitting criteria discussed in those cases for guidance j as to Section l 7.54.130's s.tandards, iust as other cases have considered different types of permit processes to determine the amount of discretion coriferrcd. Sec. e.g., Long Beach Area Peace Network v. Citv of Long Beach. 574 F.3d 101 L I 028 (9th Cir. 2008) (comparing standards for "special event" permit process to standards in cases regarding permits to (1) place newsracks on .oublic propertY and

' (2) gather in national forests) (citing Plain Dealer, 486 U.S. at 753-54 & Linick, 195 F Jd at 53 8). ·

16 Plaintiffs obJect to this portion of the Lopez Deciaration as opinion. Opp'n at 4. The Court denies thi.s objection for the reasons stated in footnote 12.

17

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1 moots any facial challenge Plaintiffs assert regarding the discretion that provision granted

2 CQunty officials. 10

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The same is true of Section 17.52.520(Q), which has no discretionary elements as

currently written. That provision now permits "[ s ]igns placed on or attached to bus stop

benches or transit shelters in the public-tight-of-way either sponsored by, or placed pursuant

to a contract with, AC Transit or another common carrier." Zoning . ! Ordinance ~ 17 .52.520(Q). The existence of a sponsorship or contract is an objective matter

and does not involve any discretfon on the part of County officials. Consequently, the

guideline effectively eliminates County officials' discretion.

Because Plaintiffs cannot sustain their challenges to Sections 17 .52.520(Q) or the

now.,.deleted. l 7.52.520(D), the Court grants summary judgment as to Plaintiffs' claim that

these provisions confer. unfettered discretion.

ii. Section 17.18.130

· The County next argues that Section 1 7 .18 .13 0 does not vest unfettered discretion in

County officials to decide whether a proposed structure or use constitutes a material change

to a land use and development plan. Memo. at 1 T-18. The Cotinty further asserts that

Section 17.18.130 does not vest officials with the power to gt'ant_or deny a permit at their

discretion, but only to determine whether a property owner must seek to implement the

proposed use through a CUP or an· application for rezo~ing. Id. at 17. Plaintiffs argue that

nothing in the Zoning Ordinance limits County officials' discretion in deciding what

constitutes a· material change under Section 17 .18.130, but do not respond at all to the

22 County's second point. See Opp'n at 8.

23 The Court does not accept either of the County's arguments. Ln order to determine

24 whether a proposed use requires pursuit of a CUP or a change to the land use and

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26 . 10 At the hearing, Plaintiffs' counsel claimed. for the first time that despite the deietion of Section

17 .52.520(D), Section l 7.52.520(C) stiU confers unfettered discretion on County officials to determine

27 what constitutes "a location of historic interest .... " Zoning Ordinance § 17.52.520(C). But Plaintiffs have not provided any evidence beyond those cursory remarks to show that that determination involves

28 the exercise of unfettered discretion.

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17.20 Plaintiffs identify four types of signs referenced in Zoning Ordinance§ 17.52.520, the

provision describing the categories of permitted signs,21 as "hav[ing] no content-neutral

criteria"-· Sections l 7.52.520(A), (B), (C), and (Q)-and contend thatthe remaining

categories "are subject to content-neutral criteria only ifthe signs display certain content."

Opp'n at 18. ·

In ~guing that these permitted signs are content-based a exemptions" that preclude

summary judgment, Plaintiffs essentially ask- the Court to overturn its prior holding on this

issue. The Court previously concluded that Section 17.52.515 does not regulate

noncommercial speech at all.· See Citizens for Free Speech, 62 F. Supp. 3d at 1138.

Accordingly, the permitted signs could not be "exemptions" to a noncommercial speech

ban,22 since "exceptions cannot exist without a corresponding general rule .... " Id.

Plaintiffs attempt to skirt this holding by contending that, even i.f Zoning

Ordinance§ 17.52.515 applies only to commercial speech, the reference to some pennitted

signs that are noncommercial in nature means that Section 17.52.515 must also apply to

noncommercial speech "as a matter of statutory construction .... " Opp'n at 20. But

20 _Plaintiffs also argue that Zoning Ordinance§ 17 .52.520(A), allowing signs by public officials, is itself unconstitutional because it is content-based and discriminates based on the speaker. Opp'n at 19. Because this argument is more appropriately discussed with respect to Plaintiffs' equal protection claims-which are considered infra in Section III(B}- the Court does not address it further in this section.

21 Permitted signs include, among others, the following: sale or lease signs; official public signs; no trespass signs; warnings; house and mailbox identifiers; street nan:1es; signs identifying a benefactor; signs identifying a location of historic interest; signs identifying statues or monuments; .pedestrian and · traffic signs; temporary political signs; and announcements related to meetings held at schools, churches, or other places of public assembly. ·Zoning Ordinance § 17.52.520.

22 Plaintiffs also request that the Court reconsidei: its earlier discussion regarding the blanket noncomrnerci~l nature of the permitted signs. See Opp'n at 20 n.8; Citizens for Free Soeech, 62 F. Supp. 3d at 1138. Upon further review of Zoning Ordinance§ 17.52.520, the Court observes thatsom~ of the permitted .signs (for example, sigris for apartment rentals and for sales, rentals, .or leases of. buildings or lots in subdivision developments) could be characterized as commercial in nature. See Zoning Ordinance § I 7.52.520(J), (K). Nonetii.eless, their commercial nature does not change the Court's analysis, since regulation of commercial speech does not invalidate a billboard ordinance. See, ~Nat'! Adver., 861 F.2d at248 ("'[T]he city may distinguish between the relative value of different categories ofcommercial speech .... "'}(quoting Metromedia, 453 U.S. at 514).

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Cas·e3:14-cv-02513-CRB Document71 Filed07/16/15 Page15 of 31

D. Will be contrary to the specific intent clauses or performance standards· established for the district, m which it is to be located.

Id. § 17.54.130(.A}-(D). -The County contends that these standards are sufficiently specific tci

· iimit County officials' discretion. Reply at 2-3. Plaintiffs respond that these guidelines

create "no limitation on what the commission may consider .... " Opp'n at 9. Plaintiffs

furt.11er argue that t..'1e sta..-idards under Section 17.54.130 are "indi.stinguishable" from faase

held to confer unfettered discretio~. Id: at 10; see also Moreno Valley, 103 F.3d at 819.

The Court finds that standards in Section 17.54.130(A)-(D) lie somewhere in between

those that other courts have deemed permissible and .impermissible on the basis of discretion

conferred. On the one hand, Section 17.54.BO's standards contain many of the same general

terms that the Ninth Circuit held· in Moreno Valley granted too much disc!etion. Compare

Moreno Valley, 103 F.3d at 818-19 (holding that ordinance conferred unbridled discretion

where issuance of permit wac; subject to broad findings that proposed use "will not have a

harmful effect upon the health or welfare of the general public and will not be detrimental to

the welfare of the general public and will not be detriinental to the aesthetic quality of the

community or the surrounding land uses") (emphasis added) with Zoning

Ordinance § 17,54.130(C) (requiring· consideration of whether proposed use will "materially.

· affect adversely the. health or safety of persons residing or working in the vicinity, or be

materially detrimental to the public welfare or injurious to property or improvements in the

neighborhood") (emphasis added). Section 17.54.130's insertion of the modifier

"materially" does not substantially change the generality of the phrases "affect adversely"

and "detrimental to," which are practically identical to the discretionary terms in Moreno

Valley. Likewise, "injurious" is merely a synonym of "detrimental." The Collilty also fails

to identify any other provisions in the Zoning Ordinance that provide guidance as to what

"affect adversely," "detrimental to," or "injilrious to" mean in the context of CUP review. In 25

I addition to these flaws, the phrase "required by the public .need" is equally vague and 26

27.

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discretionary. Section 17.54.130(A). Thus, these standards might not be sufficiently

15

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in fact advance the [County]'s interests." Ackerley Commc'ns ofNw. Inc. v. Krochalis, 108

F.3d 1095, 1099-1100 (9th Cir. 1997). In Metromedig, despite a "meager record" reflecting

the ordinance's advancement of its traffic safety goals, the Supreme Court affirmed that "'as.

a matter of law .. : an ordinance which eliminates billboards designed to be viewed from

streets and highways reasonably relates to traffic safety.'" 453 U.S. at 508 (quoting

Meiromedia. Inc. v~ City of San Diego, 610 P.2d 407, 412 (Cal. i980) (en bane)). A I similarly lenient standard exists for showing advancement of an interest in maintaining visual

appearance by banning billboards, s_ince that goal is "necessarily subjective .... '; Id: at 510 ·

("It is not speculativeto recognize that billboards by their very nature, wherever located and

however constructed, can be perceived as an esthetic harm.,;) (internal quotations omitted).

In fact, the County has presented evidence that Section 17.52.515 advances the

County's interests in traffic safety and aesthetics. The County sought to ban the construction

of new billboards in response to concerns about "the proliferation of hill boards in the

unincorporat_ed areas of the County," which were perceived "as a significant problem for

visual blight in some areas .... " Dalton Deel. (dk:t. 56) at 2:14-16,26 2:19-26. Other

evidence provided by the .County demonstrates that Section 17.52.515 was enacted to

advance the County's interest in preventing "visual clutter .... " Def.'s First RJN, Ex. A.

Moreno Valley, in which the ordinance did not even contain ·a statement of purpose; is

inapposite here. See 103 F.3d at 819. Metromedia: requires a minimal showing to satisfy this

part of the intermediate scrutiny test, and the County meets it. See 453 U.S. at 508, 510. As

26 Plaintiffs object to this portion of the Dalto.n Declaration as hearsay. Opp'n at 4. The Court denies this objection for two reasons. First, Plaintiffs' "attempt to assert th[is] objection[] without providing any individualized discussion is procedurally defective," because the objection itself is "unduly vague."· SeeDUkes v. Wal-Mart. Inc., 222 F.R.D. 189, 199 (N.D. Ca!. 2004). Because th.e part of the declaration objected to contains multiple statements, it is impossible to tell which specific statements Plaintiffs consider hearsay. Second, the statement in lines 14--l 6 is· admissible. Dalton worked with the Castro Valley Community Advisory Committet: ("CAC") as part of her role at the County's Redevelopment Agency, so she appears to have firsthand knowledge of the CAC's actions, to which her statement.in lines 14:-16 pertains. Dalton Deel. at 2:10-13; see also Boyd, 458 F. Supp. 2d at 1024 (distinguishing matters "known to the declarant personally" from hearsay).

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.title of the Zoning Ordinance, unrelated to Section 17.54.130, deals with approval to build,

2 and so th~ PSA only applies to decisions under those sectio~s. Opp'n at 14. But the plain

3 language of the Zoning Ordinance indicates that Section 17.54.130 does not govern uses

4 alone. Section 17 .18.13 0 gives the planning commission authority to consider granting a

5 CUP, pursuant to Section 17.54.135, for any "proposed structure, facility, or land use"

6 1 related to an existing iand use and development plan. Zoning Ordinance§ l 7.18.i30

7 (emphasis added). The proposal of a "structure" or "facility" necessarily involves

8 "construction,'' which would subject those CUPs involving structures or facilities to the time

9 limits of the PSA.

10 Plaintiffs assert that even if the PSA applies to CUP applications, the minimum time

11 limit for completing the application process under the PSA-120 days-· is too long. See . . . . .

12 Opp'n at 15-16. At the hearing, the County's counsel responded that a longer time period

13 was necessary in light of the nature of the permitting process, which involves seeking

14 approval from various groups prior to making a final decis_ion on a permit application. The

15 Court finds this argument compelling, and accordingly, considers the 120-day time period

16 under the PSA a reasonable time frame to confine the discretion granted by Section

17 17.54.130. 17

18 ·Based on a review of the "totality of the factors" with respect to Section 17.54.130,

· 19 see Seattle Affiliate, 550 F.3d at 799, the Court grants summary jlidgment on Plaintiffs'

20 facial challenge as to that provision. Although the criteria used to grant or deny CUPs are

21 not as definite as in some other cases~ any deficiencies are mitigated by the availability of

22

23 17 Even asswning that the PSA does not apply to some or even any CUP applications, the absence of a definite time period to grant or deny the CUP does not necessitate a finding of unfettered

24 discretion. "That the [Zoning Ordinance J lack[ s] a tiJrte limit for the processing of applications is not l ,, , fatal." Outdoor Sys., Inc. v. City of Mesa, 997 F .2d 604, 613 (9th Cir. 1993 ). The cases to the contrary . -<-_, cited by Plaintiffs all concern content-based speech restrictions. See City of Littleton, Coio. v. Z.J. Gifts

26 D-4. LLC, 541 U.S. 774 (2004); FW/PBS, 493 U.S. at 215; Teitel Fihn Corp. v. Cusack, 390 U.S. 139 (1968); Freedman v. Maryland, 380 U.S. 51 (1965); Gospel Missions of Arn. v. Bennett, 951 F. Supp.

27 1429 (C.D. Cal. 1997). But as discussed infra in Section III(A)(2)(b)(i), the Zoning Ordinance is content-neutral, and the same procedural requirements do not apply to content-neutral permit schemes.

28 See Thomas, 534 U.S. at 322.

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Case3:14-cv-02513-CRB Document71 · Filed07/16/15 Page29 of 31

this construction acceptable under the California Constitution.29

Because the Court finds Section 17.52.515 to be content-neutral under the California 2

Constitution, the Court examines that provision under California's intermediate scrutiny test.. 3

"A content-neutral regulation offae time, place, or mai.Yier of speech is subjected to 4

iritermediate scrutiny to detennirie if it is '(i) narrowly tailored, (ii) serves a significant. 5 . . .

6 1 government interest, and (iii) leaves open ample alternative avenues of communication."'

1 · 11 Fashion Valley Mall, 172 P.3d at 751 (quoting L.A. Alliance, 993 P .2d at 340). The first two

7 . prongs correspond to extremeiy similar ones in the Central Hudson test, and the Comity has · 1 ..

8 . satisfied both of those elements, as discussed supra in Section lli(A)(2)(b)(i). Thus the sole

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remaining question is whether Section17.52.515 "leaves open ample alternative avenues of.

communication." Id. This part of the test "help[s] ensure that a facially neutral restriction is

not used as a subterfuge to suppress a particular message." L.A. Alliance, 993 P.2d at 357.

The evidence shows that the County. is not using Section 17 .52.515 to suppress a partiCular

. message; rather, it is primarily interested in curtailing the groWth of billboards in

unincorporated areas of the County. See Dalton Deel. at 2:22-23. Nor are persons or.entities

interested in displayuig particular speech precluded from doing so in a different area or in a

different form elsewhere in the County. Because Section 17.52.515 leaves open ample

alte~ative avenues of communication, it passes intermediate scrutiny.· The Court therefore

grants summary judgment on the content-regulation aspect of Plaintiffs' free speech claim

under the California Constitution.

B. Equal Protection Claims

Plaintiffs contend that summary judgment is inappropriate as to both of their equal

23 29 Plaintiffs also cite a single c~se from· the Oregon Supreme Court to argue that the

24 onsite/offsite distinction in Section 17.52.515 runs afoul of the liberty of speech clause. · Opp'n at 24 (citing Outdoor Media Dimensions.Inc. v·. Dep'tofTransp., 132P.3d5, 18 (Or. 2006)). The Court does not consider this case persuasive. The Ninth Circuit has rejected the approach suggested by Outdoor

25 Media Dimensions, expiicitly recognizing that the onsite/offsite distinction is not content-based under

26 the Californja Constitution. See Vanguard Outdoor, LLCv. City of L.A., 648 F.3d 737, 747-48 (9th Cir. 2011) (holding that.offsite sign ban was a content-neutral restriction that was not facially invalid under California Constitution). In the absence of any authority to the contrary, the Court does not·

27 consider the prohibition of "offsite commercial messages" to be content-neutral under the California

28 Constitution.

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Ordiriance."' S.O.c.; 152 F.3d at 1144 (quoting Foti, 146 F.3d at 639-40). Likewise, the

2 Court has a "duty to interpret [the Zoning Ordinance], if fairly possible, in a manner that

· 3 renders it constitutionally valid." Outdoor Sys.,. 997 F .2d at 611. Plaintiffs have not

· 4 provided any additional evidence supporting its interpretation beyond the argument above,

5 which the Court has already rejected. Consequentiy, the Court is not inclined to change its

6 1 e~iier hoiding regarding the scope of the billboard ban in the Zoning Ordinance.

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Plaintiffs have alternatively-argued, in both a supplemental filing and at the hearing,

that the Supreme Court's recent decision .in Reed v. Town of Gilbert, 576 U.S._, No .

. 13-502 (June 18, 2015) makes the exemptions in Section 17.52.520 content-based. See Pls.'

Notice of Suppl. Authority ( dkt. 68) at 1. But the Court agrees with the County that Reed has

"no applicability. to the issues before th.e Court ~ ... " Def.' s Reply to Pls.' Suppl. Filing ( dkt.

69) at 1. Reed was· specifically concerned with a sign code's application of different

restrictions-including temporal and geographic restrictions-to pennitted signs based on

their content. See 576 U.S. at_ (slip op. at 12) (''Ideological messages are given more

favorable treatment ~an messages concerning a political candidate, which are themselves

given more favorable treatment than messages announcing an assembly of like-minded

individuals. That is a paradigmatic example of content-based discriminatfon."). Plaintiffs

have not identified any. distinct temporal or geographic restrictions on different categories of ..

permitted signs in Section 17.52.520 based on those signs' content.. Consequently, Reed

20 does not apply here.

21 Because the Court follows its previous holding that Section 17.52.515 only applies to

22 commercial speech, the Court must examine that provision lU1der intermediate scrutiny, not

23 strict scrutiny. See Cent. Hudson Gas & Elec. Corp. v. Pub. Setv. Comm'n ofN.Y., 447

24 U.S. 557, 561, 564 (1980).· To survive intermediate scrutiny, an ordinance that restricts

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Case3:14-cv-02513-CRB Document34 Filed08/05/14 Pagel of 19

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IN THE UNTTED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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11 CITIZENS FOR FREE SPEECH, LLC, ET AL.,

12

13 v. Plaintiffs,

14 COUNlY OF ALAMEDA,

15 Defendant.

16

. No. C14-02513 CRB

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION .

17 Plaintiffs brought suit ag'ainst the County of Alameda ("County"), alleging that the

18 County's regulation of billboards and advertising signs is unconstitutional.· See generally

19 Compl. (dkt. 1). Plaintiffs now move for a preliminary injunction, claiming that the County's

20 comprehensive zoning law, codified as Title 17 of the Alameda County General Ordinance

21 Code (the "Zoning Ordinance"), violates their First Amendment rights and is facially invalid .

. 22 See Mot. ( dkt. 11) at 2 ("the Code is facially unconstitutional"}. 1 As· explained below, the

23 Court will GRANT the Motion for Preliminary Injunction.

24

25 1 Plaintiffs also claim for the first time in their Reply to be asse1ting an "as applied" challenge,

although they nev~r discuss it further. See Reply ( dkt. 28) at I. The Court does not consider arguments

26 raised for the first time in a reply brief. See United States v. Romin, 455 F.3d 990; 997 (9th Cir. 2006); United States ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000). While as-applied challenges are favored over facial challenges, see. Washington State Grange v. Washington State 27 Republican Party, .552 U.S. 442, 450-5 l (2008), and while, as Plaintiffs point out in their supplemental filing (which the Court allowed only to address the issue of publication), an as-applied challenge need 28 not have been raised in the complaint, see Pls.' Supplemental Br. ( dkt. 33) at 2 (quoting Citizens United v. FEC, 558 U.S. 310, 331 (2010)), here Plaintiffs' failure to ever discuss an as-applied challenge in any

·of their papers leaves the Court unable to adjudicate the merits of such a challenge (aii.d the County unable to defend against one). ·

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some other specifically exempted signs"); Nat'l Adver., 861 F.2d at 248 ("The .City.may

prohibit [commercial] billboards entirely in the interest-of traffic safety and aesthetics, and may also prohibit them except where they relate to activity on the premises on which they are

located.") (internal citations omitted).

Because Section 17;52.515 passes intermediate scrutiny, the County's regulation of

commercial speech is facially valid. Summary judgment as to Plaintiffs' First Amendment

free speech claim is therefore appropriate as to the content-regulation issue.

ii. State Claim

Plaintiffs further argue that even if Section 17.52.515 is not a content-based restriction

of speech under the First Amendment, the provision still violates Art. I, § 2(a) of the

California Constitution: Plaintiffs assert that the protections established by this liberty of

speech clause are broader thari those created by the First Amendment, so the onsite/offsite

and commercial/noncornmercial distinctions in Zoning Ordinance§ l 7.52.515(A)--which

are content-neutral under the First Amendment's free speech clause-become content-based

under the California Constitution framework, subjecting the provision to strict scrutiny.

Opp'n at 23-25. The County contends that no case law supports Plaintiffs' argument. Reply

at 11-12.

The Court agrees with the County, as it cannot find any authority suggesting that the

distinctions identified by Plaintiffs in Section 17.52.515 violate the liberty of speech clause

ofthe California Constitution. That clause states that "[e]very person may freely speak,

write and publish his or her sentiments ori all subjects," and "[a] law may not restrain or

abridge liberty of speech .... " Cal. Const art I,§ 2(a). It is undisputed that California's

liberty of speech clause "is broader and more protective than the free spe·ech clause of the

First Amendment." L.A. Alliance for Survival v. City of L.A., 993 P.2d 334, 342 (Cal.

2000) (collecting cases discussing breadth ofliberty of speech clause). But "[m]erely

because [the liberty of speech clause] is worded more expansively and has been interpreted

as more protective than the First Amendment, however, does not mean that it is broader than

27

ORDINANCE NO.

AN ORDINANCE AMENDING SECTION 17.18.130 OF THE ALAMEDA COUNTY GENERAL ORDINANCE CODE TO REVISE PROCESS FOR MODIFYING THE

LAND USE AND DEVELOPMENT PLANS IN PLANNED DEVELOPMENT ZONES

The Board of Supervisors of the County of Alameda, State of California, does ordain as follows:

SECTION I

Section 17.18.130 of the Alameda County Ordinance Code is amended to provide as follows:

17.18.130:.... Modification of the land use and development plan.

If an applicant proposes a change to a land use and development plan approved by the Board of Supervisors in accordance with Section 17 .18. 020 of this chapter, the change may be permitted subject to securing a conditional use permit as provided by Section 17 .54.135 of this title. . For purposes of considering such a conditional use permit, in addition to the findings required by Section 17 .54.135, the Planning Commission shall only authorize a conditional use permit if it finds that:

a. The proposed change does not increase:

1) the number of housing units beyond that permitted in the existing land use and development plan; or

2) the number of, or size of, structures; or

3) the number of, or size of, accessory structures; or

4) signage (number and/or aggregate sign area); or

5) the floor area ratio of the structures permitted in the existing land use and development plan.

b. The original land use and development plan was approved less than five years ago;

c. The proposed change does not reduce public infrastructure provided in the land use and development plan;:

d. The proposed change does not reduce public uses such as community centers, public parks or open ·spaces;

e. The proposed change does not have an adverse financial impact on the county, including the provision of services;

f. The proposed change does not involve uses not previously approved for the project.

SECOND READING - CONTINUED FROM 09/15/2015

The Planning Commission shall adopt a statement or resolution of findings for each criteria required for issuance of a conditional use permit. A Planning Commission decision pursuant to this Section is subject to appeal pursuant to Section 17 .54.670.

SECTION II

This ordinance shall take effect and be in force thirty (30) days from and after the date of its passage and before the expiration of fifteen (15) days after its passage, it shall be published once with the names of the members voting for and against the same in the Inter-City Express, a newspaper published in the said County of Alameda.

Adopted by the Board of Supervisors of the County of Alameda, State of California on ---2015, by the following called vote:

AYES:

NOES:

EXCUSED:

ATTEST:

Clerk of the Board of Supervisors County of Alameda, State of California

Approved as to Form:

DONNA R. ZIEGLER, County Counsel

By: Title: Deputy County Counsel

Scott Haggerty, President of the Board of Supervisors County of Alameda,

State of California

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SECOND READING - CONTINUED FROM 09/15/2015...''unfettered discretion" in making decisions on signs....

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