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Land Use and Local Government Law and Litigation

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11th Circuit Bounces Billboard Challenges in 2 Cases

The 11th Circuit las week bounced two different cases filed by National Advertising against an the City of Miami's billboard ordinance (well, it's old ordinance). One was a facial challenge to the ordinance, the other a denial of permits under it.

Here are the links:
http://www.ca11.uscourts.gov/opinions/ops/200315593.pdf

http://www.ca11.uscourts.gov/opinions/ops/200315516.pdf

In the first case, the 11th held that when the City amended the ordinance, it made the case moot, and the District Court was right to dismiss it.

Sounds simple? Think about this: the City had adopted and maintained an ordinance that National claimed was unconstitutional. The City didn't change it until after the company filed its federal lawsuit. We don't know what damages were alleged (or not alleged) to have occured due to the presumably illegal ordinance. But if National had been allowed to proceed, it would have been entitled to damages under section 1983 and -- more importantly -- attorney's fees under sction 1988. So what this decision actually is doing is taking another swipe at the civil rights of individuals and companies by limiting their ability to pay for attacks on illegal ordinances. The local government adopts something patently illegal, says "you don't like it, sue," and only changes it if someone spends thousands or tens of thousands of dollars to initiate a lawsuit - and then walks away scott free from its illegal act.

In the second case, the 11th dismissed as unripe National's attack on the City's denial of permits for new signs because it had not recieved a written decision.

OK, so the guy at the desk rejects the permit application (here, there may have been non-speech related reasons - height - for denying the permits, but . .. ) apparently based on height, but also told them that they weren't permitted in the C-1 zone district. National goes right into court on the denials as "as applied" attacks on the grounds that the City denied the permits because it doesn't allow billboards in the C-1 district. District Court granted summary judgment for City based on the ripeness issue.

OK, so on one hand, it does look like National should at least have fixed the height problem and filed a new permit to get a denial clearly based on whether the zone district allowed it (which went to an exclusion and process issue under 1st amendment law). But suppose the clerks had denied them, or refused to accept them, for some other reason?

The real issue here is that local governments in enforcing improper or illegal restrictions will try to hide behind pretextually valid reasons for the illegal action - and in such cases the action is legal. But the other problem lurking here is the one where the agency refuses to actually deny a permit because it knows that the denial will be illegal, and tells you that it won't issue the permit.

Under this case, you MUST go through at least some administrative attack on the refusal to issue or deny the permit to get a denial in writing. So before you can even mount your civil rights attack on an illegal ordinance or interpretation, you probably have to spend thousands of dollars on bringing the issue to the Board of Zoning Appeals (or whoever), then maybe even to a cert challenge of that before the local determination will be final enough to challenge the underlying ordinance as unconstitutional.

My suggestion - file a dec/injunction action in state court along with the cert appeal. You can bring your 1983 claims at the same time and not spend years of litigation getting these issues right.

SO - practice pointers for those of us who have to litigate against potentially unconstitutional local ordinances:

1) Plead damages, not just illegality - if you can claim damage during the enforcement period, you MIGHT avoid the mootness problem that bounced National (we don't know from the opinion if damages were pled).
2) Do it in state court – you can get all of your claims into court at once and may be able to simply abate some counts if they will rely on others
3) Give yourself some other bases for going forward.
4) Exhaust remedies!


(thanks to Larry Sellers for passing these along).

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