CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON, Plaintiffs - Appellants,
CITY OF NORFOLK, VIRGINIA, Defendant - Appellee
Argued: September 17, 2014.
[Copyrighted Material Omitted]
On Remand from the Supreme Court of the United States. (S.Ct. No. 14-1201).
DISMISSED IN PART, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
ARGUED: Michael Eugene Bindas, INSTITUTE FOR JUSTICE, Bellevue, Washington, for Appellants/Cross-Appellees.
Adam Daniel Melita, CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross-Appellant.
ON BRIEF: Robert P. Frommer, Erica Smith, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants/Cross-Appellees.
Melvin W. Ringer, CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross-Appellant.
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court erred in granting summary judgment to the City of Norfolk on claims that the City's sign ordinance violated the plaintiffs' rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs, a radio manufacturing and repair business and two of its managers, asserted that the sign ordinance unconstitutionally exempted certain displays from regulation, effectuated a prior restraint on speech, and was enforced selectively in a discriminatory manner by zoning officials.
Our resolution of this appeal is guided by the Supreme Court's recent decision in Reed v. Town of Gilbert, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). Applying the principles of content neutrality articulated in Reed, we hold that the sign ordinance challenged in the plaintiffs' complaint is a content-based regulation that does not survive strict scrutiny. Accordingly, we reverse the district court's judgment with respect to the plaintiffs' First Amendment challenge and remand that claim to the district court to award nominal damages to the plaintiffs and for consideration of other appropriate relief. However, we find no merit in the plaintiffs' selective enforcement claim, and we affirm the court's disposition of that claim.
Because the City of Norfolk amended the sign ordinance in October 2015 following the Court's decision in Reed, we also conclude that the plaintiffs' request for prospective relief based on the content restrictions in the prior ordinance is moot. On remand, the district court may consider whether the plaintiffs may bring a new claim challenging the constitutionality of the amended ordinance and seek any associated injunctive relief.
The City of Norfolk (the City) adopted a zoning ordinance that included a chapter governing the placement and display of signs (the former sign code). See Norfolk, Va., Code app. A § 16 (2012). The City enacted the former sign code for several reasons, including to " enhance and protect the physical appearance of all areas of the city," and to " reduce the distractions, obstructions and hazards to pedestrian and auto traffic caused by the excessive number, size or height, inappropriate types of illumination, indiscriminate placement or unsafe construction of signs." Id. § 16-1.
The former sign code applied to " any sign within the city which is visible from any street, sidewalk or public or private common open space." Id. § 16-2. However, as defined in the ordinance, the term " sign" did not encompass any " flag or emblem of any nation, organization of nations, state, city, or any religious organization," or any " works of art which in no way identify or specifically relate to a product or service." Id. With respect to signs that were eligible for regulation, the former sign code generally required that individuals apply § 2-3. Such exempted displays were not subject to regulation under the former sign code.
With respect to signs that were eligible for regulation, the former sign code generally required that individuals apply for a " sign certificate" verifying compliance with the code. Id. § § 16-5.1, 16-5.3. Upon the filing of such an application, the City was required to issue a " sign certificate" if the proposed sign complied with the provisions that applied in the zoning district where the sign was to be located. Id. § § 16-5.4, 16-8.
In the " I-1" industrial zoning district in which plaintiff Central Radio Company Inc.'s (Central Radio) property is located, the former sign code restricted the size of signs. Id. § 16-8.3. The size restrictions varied depending on whether a sign was categorized as a " temporary sign," which was permitted to be as large as 60 square feet, a " freestanding sign," which was permitted to be as large as 75 square feet, or an " other than freestanding sign," which was permitted to be as many square feet as the number of linear feet of building frontage facing a public street.Id. The City did not patrol its zoning districts for violations of size ...