Covenant Media of NC v. City of Monroe, NC, 4th Cir. (2008)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 07-1194
COVENANT MEDIA OF NORTH CAROLINA, L.L.C.; MEI YONG BILLY

XIAO; CHINA BUFFET, L.L.C.,
Plaintiffs - Appellants,
v.
CITY OF MONROE, NORTH CAROLINA,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:04-cv-00586)
Argued:
March 19, 2008
Decided:
July 18, 2008
Before NIEMEYER and KING, Circuit Judges, and David R. HANSEN,

Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Hansen wrote the

opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: Edward Adam Webb, WEBB LAW GROUP, L.L.C., Atlanta, Georgia,
for Appellants.
William David Brinton, ROGERS TOWERS, P.A.,
Jacksonville, Florida, for Appellee. ON BRIEF: Kari R. Johnson,
Patrick H. Flanagan, CRANFILL, SUMNER & HARTZOG, L.L.P., Charlotte,
North Carolina; Ruth Holmes, ROGERS TOWERS, P.A., Jacksonville,
Florida, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
HANSEN, Senior Circuit Judge:

Covenant Media of North Carolina, L.L.C. ("Covenant"), Mei
Yong "Billy" Xiao, and China Buffet, L.L.C. (collectively referred
to as "the Appellants") appeal the district court's grant of
summary judgment in favor of the City of Monroe ("Monroe" or "the
City") in this suit challenging the constitutionality of the City's
sign ordinance.
We affirm.
I.
In July and August of 2004, Covenant, a company in the
business of erecting and operating advertising signs for various
businesses and organizations, leased property in Monroe from Mei
Yong "Billy" Xiao and his business the China Buffet, L.L.C., for
the purpose of erecting billboards.
The Appellants applied for
seven advertising sign permits, and within five days of submission,

the City denied the applications on grounds that the proposed
billboards violated the City's sign regulations, which restrict the
size, location, and spacing of billboards.
Specifically, the City
stated that the area of each proposed billboard totaled 672 square
feet per side, in violation of the size restriction limiting the
area of billboards to 250 square feet per side.
(J.A. at 116.)
See City of Monroe Land-Use Ordinance 156.133(S)(2)(a) (J.A. at

66).
Also, all but one of the proposed sign locations placed the
proposed billboards within 1,000 feet of a preexisting billboard,
and the site plan for the proposed China Buffet billboard placed it
within 50 feet of a building, all contrary to the City's billboard
location setback and spacing restrictions.
See City of Monroe
Land-Use Ordinance 156.133(S)(2)(c)(i), (iii) (J.A. at 66, 67).

The
Appellants
brought
suit
in
November
2004
on
First
Amendment grounds, claiming, in relevant part, that the City's

ordinance
unconstitutionally
favors
commercial
speech,
lacks
procedural safeguards, grants City officials an impermissible level

of discretion, is overbroad in its application, and contains
improper time, place, and manner restrictions. They sought damages
and injunctive relief* pursuant to 42 U.S.C. 1983 (2000).
The
City moved for summary judgment, asserting that the Appellants

lacked standing to challenge any provisions of the ordinance other
than those that formed the basis of the City's denial of their
permit applications.
to
the
City,
The district court granted summary judgment
concluding
that
the
Appellants
suffered
no
constitutional injury to satisfy Article III standing requirements

because
the
"permits
were
denied
on
the
content-neutral
and
constitutionally valid restrictions of height [size], setback and

spacing."
(J.A. at 289.)
The district court also rejected the
Appellants' overbreadth challenge for lack of injury in fact.
The Appellants withdrew their request for injunctive relief

after the City adopted a new sign ordinance in April 2006, and they
do not challenge the new ordinance in this appeal. All references
to the City's sign regulations in this opinion refer to the older
version.
4
II.
We review de novo the district court's grant of summary
judgment, applying the same standards as the district court and
construing the facts in the light most favorable to the nonmoving
party.
2008);
Darveau v. Detecon, Inc., 515 F.3d 334, 338 (4th Cir.

see
also
Fed.
R.
Civ.
P.
56(c)
(summary
judgment
is
appropriate if "there is no genuine issue as to any material fact

and . . . the movant is entitled to judgment as a matter of law").
We
also
apply
de
novo
review
to
the
district
conclusions regarding Article III standing.
court's
legal
See Covenant Media of
S.C., L.L.C. v. City of N. Charleston, 493 F.3d 421, 428 (4th Cir.
2007), cert. denied, 128 S. Ct. 914 (2008).
As an initial matter, the Appellants assert that the district
court impermissibly made factual findings and failed to draw
inferences from the record in their favor, citing the district
court's factual recitation of background material relating to other
businesses
owned
by
Covenant's
strategies in other states.

in
this
case,
we
owners
and
their
litigation
After carefully reviewing the record
conclude
that
the
district
court
did
improperly resolve any genuine issues of material fact.
not
The
disputed background material was not essential to the district

court's legal conclusions, and there is no dispute regarding the
material facts of this case.
The Appellants sought to erect
billboards in Monroe that violated the ordinance's size, location,
and spacing restrictions, and the City promptly rejected each

application
on
these
grounds.
Any
matters
dealing
with
the
business or litigation practices of Covenant's owners and their

other business ventures are not material to the resolution of this
dispute.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)("Only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude the entry
of summary judgment."); see also Drewitt v. Pratt, 999 F.2d 774,
778 (4th Cir. 1993)(same).
The Appellants have not identified any
genuine issue of material fact that precludes summary judgment in

this case.
The Appellants assert that the district court's standing
analysis is flawed because the court addressed the merits of their
constitutional claims in concluding that they lacked standing.
We
agree that it is inappropriate to first consider the merits of a

claim when determining whether a party has standing under Article
III of the Constitution.
See Warth v. Seldin, 422 U.S. 490, 500
(1975) (noting that "standing in no way depends on the merits" of

the claim); Covenant Media of S.C., 493 F.3d at 429 (holding that
the standing analysis must not be confused with the merits of a
case because "[a] plaintiff's standing to bring a case does not
depend upon his ultimate success on the merits underlying his
case").
On the other hand, we also acknowledge the reality that,
"because standing is addressed on a claim by claim basis, an
unfavorable decision on the merits of one claim may well defeat

standing on another claim if it defeats the plaintiff's ability to
seek redress."
Get Outdoors II, L.L.C. v. City of San Diego, 506
F.3d 886, 893 (9th Cir. 2007).
Despite any flaws in the district
court's analysis, we "can affirm on any basis fairly supported by

the record."
Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222
(4th Cir. 2002).
After carefully reviewing the record and the
parties' arguments, we find no reversible error, and for the

reasons that follow, we conclude that the district court reached
the correct result in granting summary judgment to the City.
It
is
well
jurisdictional
established
issue
that
that
must
be
standing
is
determined
threshold
first
because
"[w]ithout jurisdiction the court cannot proceed at all in any

cause."
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94
(1998) (internal quotation marks omitted); see also Pye v. United

States, 269 F.3d 459, 466 (4th Cir. 2001) (citing Steel Co., 523
U.S. at 102). The "irreducible constitutional minimum of standing"
consists of three elements.
U.S. 555, 560 (1992).
Lujan v Defenders of Wildlife, 504
First, there must be "an 'injury in fact'an
invasion of a legally protected interest" that is both "concrete

and particularized" as well as "actual or imminent." Id. (internal
quotation
marks
omitted).
"Second,
there
must
be
causal
connection between the injury and the conduct complained of" such
that the injury can be said "to be fairly traceable" to the
7
defendant's actions.
Id. (internal quotation marks omitted).
Third,
there
must
be
likelihood
redressed by a favorable decision."
"that
the
injury
will
be
Id. (internal quotation marks
omitted); see also Covenant Media of S.C., 493 F.3d at 428.

When challenging an ordinance, even though "there is broad
'latitude given facial challenges in the First Amendment context,'
a plaintiff must establish that he has standing to challenge each
provision of an ordinance by showing that he was injured by
application of those provisions."
Id. at 429-30 (quoting Gonzales
v. Carhart, 127 S. Ct. 1610, 1639 (2007)).
Thus, a finding that a
plaintiff has standing to bring suit challenging one provision of

an ordinance "does not provide it a passport to explore the
constitutionality of every provision of [a] [s]ign [r]egulation."
Id. at 429.
Accordingly, we must consider standing independently
with regard to each provision challenged.

We first address whether the Appellants have standing to
assert an as-applied challenge to the size restriction.
no
dispute
that
(1)
the
City
denied
the
There is
Appellants'
permit
applications--a concrete injury; (2) this denial was the direct

result of the City applying the sign ordinance's 250-square-foot
size restriction--causation; and (3) there is a likelihood of
redress from a favorable decision by this court if the provisions
challenged are all found to be unconstitutional.
But cf. Maverick
Media Group, Inc. v. Hillsborough County, Fla., No. 07-12330, 2008

8
WL
2130477
(11th
Cir.
May
22,
2008)(and
cases
cited
therein
indicating that a sign permit applicant lacks a redressable injury

to challenge the constitutionality of a sign ordinance where the
permit could have been denied on the basis of some alternate but
unchallenged regulation).
The Appellants challenged all three
bases for the denial of their permit applications, thus there is a

likelihood of redressability unless one of the grounds for denial
is found to be constitutional. We conclude that they have standing
to challenge the size restriction.
Billboards are subject to reasonable time, place, and manner
restrictions.
"[W]e begin with the venerable principle that 'each
medium of expression must be assessed for First Amendment purposes

by standards suited to it, for each may present its own problems.'"
Arlington County Republican Comm. v. Arlington County, 983 F.2d
587, 591 (4th Cir. 1993) (alterations omitted) (quoting S.E.
Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)).
Billboards
are large, permanent structures, designed to stand out, and thus

they
"create[] a unique set of problems for land-use planning and
development." Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

502 (1981) (plurality).
In this context, the Supreme Court has
"observed that time, place, and manner restrictions are permissible

if they are justified without reference to the content of the
regulated speech, serve a significant governmental interest, and
leave open ample alternative channels for communication of the
information."
Id.
(internal
quotation
marks
and
alterations
omitted).
The
sign
ordinance
at
issue
defines
billboards
as
off-
premises, outdoor structures of display, either freestanding or

attached to a building, see City of Monroe Land-Use Ordinance
156.14 (J.A. at 73), without any distinction based on the content
of the messages displayed. The prohibition of billboards exceeding
250 square feet in area per side likewise makes no content-based
distinctions.
Id. 156.133(S)(2)(a) (J.A. at 66).
dispute
billboards
that
may
include
either
There is no
commercial
or
noncommercial messages and that all billboards are subject to this

size restriction.
We conclude that the City's billboard size
restriction is a content-neutral regulation.

The Appellants assert that the ordinance is content-based due
to distinctions born out of the definition of "on-premise" and
"off-premise" signs in section 156.133(C) of the ordinance.
at 53.)
(J.A.
They argue that these underlying definitions result in
more favorable spacing and location restrictions for on-premises

commercial
signs,
but
they
point
to
restrictions to support their argument.
no
more
favorable
size
In fact, the on-premises
commercial size limitations are much more restrictive, and neither

commercial
on-premises
signs
nor
any
off-premises
signs
are
permitted to exceed the 250-square-foot size restriction that

applies to all billboards.
10
The
Appellants
assert
that
the
size
restriction
is
not
narrowly tailored to meet a substantial government interest, but

again, the record does not support their assertion.
The express
purpose of the ordinance is to maintain public and traffic safety

and to enhance the aesthetic appearance and attractiveness of the
community.
See City of Monroe Land-Use Ordinance 156.133(A)
(J.A. at 53).
Settled authority in this circuit, as well as in the
Supreme Court, recognizes that, in the context of billboards,

safety and aesthetics are substantial government interests, and
that "'a city may justifiably prohibit all off-premise signs or
billboards for aesthetic and safety reasons.'" Nat'l Adver. Co. v.
City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991) (quoting Major
Media of the S.E. v. City of Raleigh, 792 F.2d 1269, 1272 (4th Cir.
1986), which cites Metromedia, 453 U.S. at 508-11), cert. denied,
504 U.S. 931 (1992); see also Arlington County Republican Comm.,
983 F.2d at 591 (noting that in the Supreme Court's Metromedia
decision, "without an impermissible preference of commercial speech
over noncommercial speech, seven Justices would have upheld the
prohibition
on
billboards
as
an
acceptable
means
to
promote
aesthetics and traffic safety."); Naegele Outdoor Adver., Inc. v.

City of Durham, 844 F.2d 172, 173-74 (4th Cir. 1988) (finding no
free speech violation where the ordinance banned all commercial,
off-premises billboards and avoided any preference of commercial
over noncommercial speech).
11
The content-neutral 250-square-foot size limitation furthers

the City's substantial interests in traffic safety and aesthetics
by permitting billboards only in certain areas and limiting their
size.
The City's size restriction is "not substantially broader
than necessary to protect the [C]ity's interests in traffic safety

and aesthetics, and directly advance[s] the [C]ity's interests";
additionally,
it
leaves
open
ample
alternative
communication by not banning all billboards.

506 F.3d at 894.
avenues
of
See Get Outdoors II,
We conclude that the size restriction is
constitutional, and each one of the Appellants' permit applications

was properly rejected on this ground.
Our conclusion on the merits of the constitutional challenge
to
the
size
restriction
defeats
remaining as-applied claims.
standing
on
the
Appellants'
Because the permit applications were
properly denied on the basis of the independently constitutional

size restriction, the Appellants lack a redressable constitutional
injury to support their challenges to the location and spacing
restrictions.
See id. at 893 (finding no redressability and thus
not reaching additional challenges to an ordinance after one

restriction was found to be constitutionally valid); Covenant Media
of S.C., 493 F.3d at 430 (finding no constitutional injury where
the
permit
unchallenged
applications
spacing
could
violation,
not
be
approved
regardless
of
due
whether
substantive provisions are held to be unconstitutional).
12
to
an
other
The Appellants also assert a facial overbreadth claim, arguing

that they should have been permitted to challenge other provisions
of
the
ordinance.
The
overbreadth
doctrine
constitutes
"'a
departure from traditional rules of standing'" by permitting an

individual
to
challenge
regulation
threatens the speech of others.
on
the
theory
that
it
Giovani Carandola, Ltd. v. Bason,
303 F.3d 507, 512 (4th Cir. 2002) (quoting Broadrick v. Oklahoma,
413 U.S. 601, 613 (1973)).
It does not, however, eliminate the
need to demonstrate an injury in fact.
See Peterson v. Nat'l
Telecomm. & Info. Admin., 478 F.3d 626, 634 (4th Cir. 2007).
Only
those "who have suffered some injury from the application of the
contested provisions to begin with" may bring an overbreadth
challenge.
See id. (internal quotation marks omitted).
Here,
because the permit applications were timely denied on the basis of

a valid size restriction, the Appellants cannot demonstrate an
injury in fact or redressability under any other provision of the
ordinance.
See Covenant Media of S.C., 493 F.3d at 430 (noting
that because the application violated the unchallenged spacing

requirement, it could not have been approved regardless of whether
other provisions could be found to be unconstitutional, and thus,
there
was
provisions
no
substantive
that
might
constitutional
have
been
injury
due
unconstitutional);
to
other
see
also
Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 801
(8th Cir. 2006) (finding that the plaintiff had no standing to
13
challenge restrictions or procedures that were not factors in the

denial of its own permit applications).
The Appellants argue that the prospect of a prior restraint of
speech due to a lack of procedures in the permit application
process
and
the
unbridled
discretion
of
City
officials
constitute an actual injury for an overbreadth challenge.

Supreme
Court
has
"long
held
that
when
licensing
can
The
statute
allegedly vests unbridled discretion in a government official over

whether to permit or deny expressive activity, one who is subject
to the law may challenge it facially without the necessity of first
applying for, and being denied, a license."
City of Lakewood v.
Plain Dealer Publ'g. Co., 486 U.S. 750, 755-56 (1988).
The injury
arises in that instance from the prospect of self censorship; "the

mere existence of the licensor's unfettered discretion, coupled
with
the
power
of
prior
censoring their own speech."
restraint,
intimidates
parties
into
Id. at 757; see Prime Media, Inc. v.
City of Brentwood, 485 F.3d 343, 351 (6th Cir. 2007) (holding that
"the prospect of prior restraint and resulting self-censorship can
itself constitute the required actual injury" for Article III
standing purposes).
The Appellants do not assert that they were intimidated into
censoring their own speech. To the contrary, they submitted to the
permit process, and the record establishes that the City denied
their permit applications in a timely manner in part on the basis
14
of the billboard size restriction, which we have found to be

constitutional. No change in the permit procedures would result in
the approval of their applications to erect oversized billboards.
There is no suggestion that they intend to file future applications
that would comply with the size restriction or that they are
fearful to submit such an application.
See Get Outdoors II, 506
F.3d at 895 (holding plaintiff lacked standing to bring a prior

restraint
claim
where
its
applications
were
denied
on
constitutionally valid grounds and the plaintiff did not show an

intent to file permit applications that comply with the valid
requirements).
Thus, the Appellants suffer no threat of prior
restraint and lack standing to bring the claim.
III.
Accordingly, we affirm the district court's grant of summary
judgment in favor of the City.
AFFIRMED
15

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

COVENANT MEDIA OF NORTH CAROLINA, L.L.C.; MEI YONG BILLY

March 19, 2008

July 18, 2008

Before NIEMEYER and KING, Circuit Judges, and David R. HANSEN,

Affirmed by unpublished opinion. Senior Judge Hansen wrote the

Unpublished opinions are not binding precedent in this circuit.

HANSEN, Senior Circuit Judge:

The Appellants applied for

seven advertising sign permits, and within five days of submission,

Specifically, the City

See City of Monroe Land-Use Ordinance 156.133(S)(2)(a) (J.A. at

proposed billboards within 1,000 feet of a preexisting billboard,

See City of Monroe

Land-Use Ordinance 156.133(S)(2)(c)(i), (iii) (J.A. at 66, 67).

Amendment grounds, claiming, in relevant part, that the City's

procedural safeguards, grants City officials an impermissible level

City moved for summary judgment, asserting that the Appellants

The district court granted summary judgment

constitutional injury to satisfy Article III standing requirements

constitutionally valid restrictions of height [size], setback and

The district court also rejected the

Appellants' overbreadth challenge for lack of injury in fact.

The Appellants withdrew their request for injunctive relief

Darveau v. Detecon, Inc., 515 F.3d 334, 338 (4th Cir.

appropriate if "there is no genuine issue as to any material fact

conclusions regarding Article III standing.

See Covenant Media of

strategies in other states.

After carefully reviewing the record

improperly resolve any genuine issues of material fact.

disputed background material was not essential to the district

The Appellants sought to erect

billboards in Monroe that violated the ordinance's size, location,

and spacing restrictions, and the City promptly rejected each

business or litigation practices of Covenant's owners and their

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)("Only disputes over facts that might affect the outcome of

The Appellants have not identified any

genuine issue of material fact that precludes summary judgment in

agree that it is inappropriate to first consider the merits of a

See Warth v. Seldin, 422 U.S. 490, 500

(1975) (noting that "standing in no way depends on the merits" of

On the other hand, we also acknowledge the reality that,

"because standing is addressed on a claim by claim basis, an

unfavorable decision on the merits of one claim may well defeat

Get Outdoors II, L.L.C. v. City of San Diego, 506

F.3d 886, 893 (9th Cir. 2007).

Despite any flaws in the district

court's analysis, we "can affirm on any basis fairly supported by

Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222

(4th Cir. 2002).

After carefully reviewing the record and the

parties' arguments, we find no reversible error, and for the

"[w]ithout jurisdiction the court cannot proceed at all in any

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94

(1998) (internal quotation marks omitted); see also Pye v. United

Lujan v Defenders of Wildlife, 504