The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER RE: PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Get Outdoors II, LLC ("Plaintiff" or "Get Outdoors")
filed a complaint alleging that Defendant City of Chula Vista,
California's ("Defendant" or "Chula Vista") sign ordinance is
unconstitutional and should be struck down in its entirety.
Plaintiff applied to erect nine billboards in Chula Vista and
argues that "[because] of the substantial constitutional defects
contained in the sign ordinance, this Court should exercise its
equitable powers and order the City to allow Get Outdoors to
erect its signs." Plaintiff's Mem. of Points & Authorities in
Support of Plaintiff's Motion for Partial Summary Judgment ("Pl.
Mot."), p. 1. Chula Vista argues that its sign ordinance is
constitutional under both Supreme Court and Ninth Circuit
precedent. However, Chula Vista urges the Court to grant summary
judgment on grounds that Plaintiff's suit is now moot and that
Plaintiff lacks standing. Following initiation of this lawsuit, Chula Vista enacted
urgency legislation and later enacted a permanent change to its
sign ordinance. Significantly, Chula Vista added (1) a "message
substitution clause" that permits noncommercial speech on any
sign currently displaying commercial speech in Chula Vista; and
(2) new text which restates the ban on new billboards.
The parties each now move for summary judgment. The Court has
entertained extensive briefing on the issues and for the reasons
set forth below GRANTS Chula Vista's motion for summary
judgment and DENIES Plaintiff's motion for summary
Get Outdoors seeks to post signs in Chula Vista for the purpose
of communicating commercial and noncommercial messages regarding
products, services, ideas, candidates, issues, events, and other
topics. Declaration of W. Benham, ¶ 3 (attached to Plaintiff's
Lodgment in Support of its motion for preliminary injunction). On
June 5, 2003, Get Outdoors, through William Benham, presented to
Chula Vista applications for nine new billboards. John Schmitz'
Declaration, ¶ 6. On July 1, 2003, Chula Vista Principal Planner
John Schmitz sent letters to Get Outdoors informing Get Outdoors
that its applications were incomplete. Schmitz' Decl., ¶ 8.
According to Mr. Schmitz, Chula Vista has not received any
supplemental information from Get Outdoors. Id.
On July 8, 2003, the City of Chula Vista adopted revisions to
chapter 19 of the Chula Vista Zoning and Specific Plans
(sometimes referred to as the "sign ordinance"), as an urgency
ordinance. The Chula Vista City Council also adopted the same
revisions by the standard method (i.e. introduction at one
meeting, second reading at next meeting, effective date 30 days
later). The new sign ordinance contains a "message substitution"
provision that provides: Subject to the land owner's consent, a noncommercial
message of any type may be substituted for any duly
permitted or allowed commercial message or any duly
permitted or allowed noncommercial message; provided,
that the sign structure or mounting device is legal
without consideration of message content. Such
substitution of message may be made without any
additional approval or permitting. This provision
prevails over any more specific provision to the
contrary within this chapter. The purpose of this
provision is to prevent any inadvertent favoring of
commercial speech over noncommercial speech, or
favoring of any particular noncommercial message over
any other noncommercial message. This provision does
not create a right to increase the total amount of
signage on a parcel, nor does it affect the
requirement that a sign structure or mounting device
be properly permitted.
Chula Vista, CA., Municipal Code 19.60.050.C. On July 28, 2003,
Plaintiff filed its original complaint. On August 26, 2003, Chula
Vista City Council approved a resolution setting policies for
signs on city-owned property and approved on second reading the
text for the new sign ordinance. On September 25, 2003, the new
sign ordinance took effect.
III. Procedural Background
On September 19, 2003, Plaintiff filed a motion for a
preliminary injunction. On February 12, 2004, this Court filed an
Order denying Plaintiff's motion for a preliminary injunction.
Get Outdoors and Defendant have each filed motions for summary
judgment in this case. On February 3, 2005, the Court took the
parties' cross-motions under submission without oral argument.
Thereafter, both parties filed numerous notices of subsequent
legal authority, each of which the Court has considered.
Plaintiff moves for partial summary judgment on the grounds
that Chula Vista was enforcing unconstitutional restrictions on
signs at the time Plaintiff submitted nine sign applications and
that Chula Vista should be ordered to allow the signs to be
posted. Plaintiff argues that it has standing to challenge Chula
Vista's sign ordinance based on the Supreme Court's decision in
Metromedia v. City of San Diego, 453 U.S. 490 (1981). Pl's
Mot., p. 4. Chula Vista also moves for summary judgment. Chula
Vista argues that it is entitled to summary judgment on grounds
that (1) the case is moot because Chula Vista enacted a new sign
ordinance and the one Plaintiff applied under is no longer in
effect; (2) a ban on new billboards is constitutional; ...