Billboard Fight Costs Bay Area County $1 in Damages

(CN) – Alameda County, California, is on the hook for $38,000 in fees – and a single dollar in damages – for banning a group’s billboards in a so-called scenic corridor, a federal judge ruled.

Citizens for Free Speech and a landowner, Michael Shaw, sued the Golden State county in 2014, claiming an overly broad sign ordinance gave it “unfettered discretion to approve or disapprove a variance application to display a sign of any size, with any content of speech.”

Shaw owned a parcel within an Alameda County area zoned as a “planned development” district, along Interstate 580, and maintained a single on-site sign that advertised for his company, Lockaway Storage.

Interstate 580, an 80-mile east-west interstate in northern California, connects San Francisco to the Central Valley.

Shaw and Citizens for Free Speech agreed to the construction and display of three additional signs on the parcel.

In 2014, a county official told Shaw the signs were prohibited and ordered them removed. An ordinance divided the county’s unincorporated territory into 25 districts, within which only certain buildings, structures or land uses were permitted.

The move, the plaintiffs claimed, restricted their freedom of speech by outlawing signs that expressed opposition to development in the area. They sued the county on violations of their First Amendment rights, the Equal Protection Clause and California’s free speech laws.

U.S. District Judge Charles Breyer granted the plaintiffs’ preliminary injunction in 2014, and directed the parties to provide more information about the “appropriateness” of the ordinance.

Breyer said that “irreparable injury” was likely “if the county was not enjoined from enforcing the zoning ordinance against them.” And, he said, “the balance of hardships and public interest favored the grant of an injunction.”

In 2015, Breyer granted and denied in part Alameda’s request for summary judgment in the back-and-forth lawsuit.

“The county has presented substantial evidence that zoning ordinances sections 17.18.010 and 17.18.120 did not apply to plaintiffs’ signs, and the plan precluded plaintiffs from building the signs on the parcel,” Breyer wrote. “Plaintiffs have failed to rebut the county’s evidence or provide any evidence indicating that those provisions were unconstitutionally applied to them.”

Breyer added that the ordinance’s billboard ban was “not ambiguous: it explicitly regulates only commercial speech.”

He also denied Alameda’s request for summary judgment on the plaintiffs’ equal protection claims and on their facial challenge regarding the unfettered discretion granted by the ordinance.

“The purpose of the ban is to ‘advance the county’s interests in community aesthetics by the control of visual clutter, pedestrian and driver safety, and the protection of property values,’” Breyer wrote. “Plaintiffs do not appear to contest that the county has actually shown a substantial interest underlying the billboard restriction.”

Alameda County prevailed on the remaining claims in 2016.

On Wednesday, Breyer awarded Citizens $38,116 in attorneys’ fees plus costs and $1 in nominal damages.

“Citizens boasts that its litigation ‘sparked a veritable overhaul of the county’s sign restrictions and related laws,’” Breyer wrote. “This is hyperbolic. Still, the equal protection claim that Citizens prevailed upon is significant.”

Per Ninth Circuit mandates, Breyer granted a nominal damage award because Citizens was “able to point to some way in which the litigation succeeded.”

The “greatly reduced” fees, the 18-page ruling said, are the result of the plaintiffs’ “limited success.”

Citizens requested $199,030 in fees, plus costs, at an hourly billing rate of $650.

“Citizens nowhere in its motion even seeks to demonstrate that the litigation ‘placed a burden’ on it ‘out of proportion to [its] individual interests in the matter,’” Breyer pointedly added. “To the contrary, Citizens was financially motivated to bring this suit, as it wanted to eventually rent its signs out for commercial advertisements.”

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