United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS (DOC. 6)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
International Outdoor, Inc. alleges that defendant City of
Troy's Sign Ordinance, (Doc. 1-2), violates the First
Amendment. Count I alleges that the Ordinance constitutes an
unconstitutional prior restraint. Count II alleges that the
Ordinance contains content based restrictions imposed without
a compelling government interest, and therefore, is
unconstitutional. The matter is presently before the Court on
defendant's motion to dismiss. (Doc. 6). Oral argument
was held on June 26, 2017. For the reasons stated below,
defendant's motion is granted in part and denied in part.
an outdoor advertising company, erects billboards throughout
Southeast Michigan. (Doc. 1 at PageID 3-4). The billboards
display “truthful commercial messages” and
non-commercial messages including political speech. (Doc. 1
at PageID 4). Plaintiff “earns revenue by charging
advertisers to display” these messages. (Id.).
a Michigan municipal corporation, regulates billboards and
other signs through the Sign Ordinance in Chapter 85 of
defendant's Code of Ordinances. (Doc. 1 at PageID 2, 4).
Section 85.01.04(A) requires a permit for each sign, unless
it meets one of several enumerated exceptions. (Doc. 1-2 at
PageID 18). Billboards are considered “ground signs,
” which are defined as “[a] freestanding sign
supported by one or more uprights, braces, or pylons located
in or upon the ground and not attached to any
building.” (Doc. 1-2 at PageID 17). Ground signs are
subject to specific zoning district regulations outlined in
section 85.02.05(C). (Doc. 1-2 at PageID 26-28). These
regulations set limits on a sign's size, height, and
location. (Id.). Pursuant to section 85.01.08(B)(1),
defendant's Building Code Board of Appeals may grant a
variance to signs that do not comply with the requirements of
the Ordinance. (Doc. 1-2 at PageID 23).
sought to erect two digital billboards in a M-1 district.
(Doc. 1 at PageID 5, 7). Plaintiff applied for a variance
because the billboards did not meet the zoning district
regulations of section 85.02.05(C)(5). (Doc. 1 at PageID7).
The Building Code Board of Directors held a public hearing
that spanned two meeting dates, and thereafter denied the
variance. (Doc. 1 at PageID 8).
Federal Rule of Civil Procedure 12(b)(1)
moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing
that plaintiff lacks standing. Defendant moves under the
wrong rule. The Court, therefore, shall consider the argument
under Fed.R.Civ.P. 12(b)(1). The Court is “bound to
consider the 12(b)(1) motion first, since the Rule 12(b)(6)
challenge becomes moot if this court lacks subject matter
jurisdiction.” Moir v. Greater Cleveland Regional
Transit Authority, 895 F.2d 266, 269 (6th Cir. 1990). It
is the plaintiffs' burden to demonstrate that the court
has subject matter jurisdiction. RMI Titanium Co v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
to dismiss for lack of subject matter jurisdiction fall into
two general categories: facial attacks and factual
attacks.” United States v. Ritchie, 15 F.3d
592, 598 (6th Cir.1994). “A facial attack is a
challenge to the sufficiency of the pleading itself. On such
a motion, the court must take the material allegations of the
petition as true and construed in the light most favorable to
the non-moving party.” Id. (emphasis in
original). “A factual attack, on the other
hand, is not a challenge to the sufficiency of the
pleading's allegations, but a challenge to the factual
existence of subject matter jurisdiction. On such a motion,
no presumptive truthfulness applies to the factual
allegations” and “the court is free to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case.” Id. (emphasis in original).
Defendant's challenge to plaintiff's standing is a
factual attack. Thus, no presumptive truthfulness applies to
the factual allegations in the complaint. Id.
Federal Rule of Civil Procedure 12(b)(6)
party attacks a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must decide whether the
complaint states a claim upon which relief may be granted.
Generally speaking, the court must construe the complaint in
favor of the plaintiff, accept the allegations of the
complaint as true, and determine whether the plaintiff's
factual allegations present plausible claims. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007).
Even though a complaint need not contain
“detailed” factual allegations, its
“factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all
of the allegations in the complaint are true.”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).
“constitutional minimum of standing contains three
elements;” (1) an “injury in fact, ” (2)
“a causal connection between the injury and the conduct
complained of, ” and (3) “it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal quotations and citations omitted).
construes the complaint to challenge only the provisions
relating to permit requirement exceptions. Defendant asserts
that plaintiff failed to satisfy redressability because, even
if the exception provisions were struck down, the permit
provision and specific zoning district requirements would bar
plaintiff's billboards. Defendant's argument mirrors
Midwest Media Property L.L.C. v. Symmes Tp., Ohio,
503 F.3d 456 (6th Cir. 2007). But Midwest Media
differs from this case, because the plaintiff there
challenged specific provisions of the township's sign
regulations. Here, however, plaintiff challenges the entire
Ordinance. Plaintiff's focus on the exception provisions
merely relates to their argument that the Ordinance is
content based. Plaintiff's injury would be redressed if
the Ordinance was struck down, and therefore, defendant's
Count II: Content Based Restriction
parties disagree on which standard governs Count II.
Plaintiff argues that the Ordinance is a content-based
restriction, and therefore, under Reed v. Town of
Gilbert, Ariz., 135 S.Ct. 2218 (2015), strict scrutiny
applies. Defendant argues that plaintiff's claims relate
to commercial speech, and therefore, the applicable standard
is that set forth in Central Hudson Gas & Electric
Corp. v. Public Service Comm'n, 447 U.S. 557 (1980).
Neither case, however, provides a perfect parallel nor
cleanly dictates which standard applies here. The Court,
therefore, conducts an analysis of both lines of cases and,
for the reasons stated below, finds that Central
government, including a municipal government vested with
state authority, ‘has no power to restrict expression
because of its message, its ideas, its subject matter, or its
content.'” Reed 135 S.Ct. at 2226 (quoting
Police Dept. of Chicago v. Mosley,408 U.S. 92, 95
(1972)). Content based laws are those that “target
speech based on its communicative content” including
“the topic discussed or the idea or message
expressed.” Id. at 2226-27 (internal citations
omitted). Courts must “consider whether a regulation of
speech ‘on its face' draws distinctions based on
the message a speaker conveys.” Id. at 2227
(internal citations omitted). Examples of facial distinctions
include “defining regulated speech by particular
subject matter” or “its function or
purpose.” Id. Laws that are facially content
neutral, but “cannot be ‘justified without
reference to the content of the regulated speech' or that
were adopted by the government ‘because of disagreement
with the message [the speech] conveys', ” are also
considered content-based regulations. Id. (citing
Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989). Content-based laws ...