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Citizens for Free Speech, LLC v. County of Alameda

United States District Court, N.D. California

August 5, 2014


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[Copyrighted Material Omitted]

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For Citizens for Free Speech, LLC, Michael Shaw, Plaintiffs: Joshua Reuben Furman, Joshua R. Furman Law Corporation, Sherman Oaks, CA.

For County of Alameda, Defendant: Gregory J. Rockwell, Boornazian Jensen & Garthe, A Professional Corporation, Oakland, CA.

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Plaintiffs brought suit against the County of Alameda (" County" ), alleging that the County's regulation of billboards and advertising signs is unconstitutional. See generally Compl. (dkt. 1). Plaintiffs now move for a preliminary injunction, claiming that the County's comprehensive zoning law, codified as Title 17 of the Alameda County General Ordinance Code (the " Zoning Ordinance" ), violates their First Amendment rights and is facially invalid. See Mot. (dkt. 11) at 2 (" the Code is facially unconstitutional" ).[1] As explained below, the Court will GRANT the Motion for Preliminary Injunction.


The Zoning Ordinance zones the County's unincorporated territory into twenty-five different types of district, within which only certain buildings, structures, or land uses are permitted. Zoning Ordinance § 17.02.050.[2] Michael Shaw owns a parcel of land located at 8555 Dublin Canyon Road (the " Parcel" ) in the County. Shaw Decl. (dkt. 11-3) ¶ 2. The Parcel is located in an area zoned as a Planned Development (" PD" ) district. Id.

Shaw also owns Lockaway Storage, a self-storage business that currently operates on the Parcel. Shaw Decl. ¶ 4. Lockaway Storage operates pursuant to a Conditional Use Permit (" CUP" ) that authorizes the business to operate in a PD district. Id. ¶ 2; Mot. Ex. A (dkt. 11-5). The County issued the CUP in January 2012, and since then Shaw has maintained a single on-site sign that advertises for Lockaway Storage. Shaw Decl. ¶ 3, Mot. Ex. A.

Shaw and Citizens for Free Speech, LLC (collectively " Plaintiffs" ) entered into an agreement that provides for the construction and display of three additional signs (the " Signs" ) on the Parcel. Herson

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Decl. (dkt. 11-4) ¶ 2. They agreed to share in the proceeds earned from displaying the Signs. Id.; Shaw Decl. ¶ 7. The Signs, now constructed, feature entirely noncommercial messages that " challenge the political ideology espoused by County officials," but will contain commercial messages in the future. Herson Decl. ¶ 3; Mot. Ex. E (dkt. 11-9); Compl ¶ 12.

According to Shaw, a County official visited the Parcel on June 9, 2014 to inform him that the Signs were prohibited within an SC district.[3] Shaw Decl. ¶ 4. On June 10, 2014, the County mailed Shaw a " Declaration of Public Nuisance -- Notice to Abate," claiming that the Signs violated Zoning Ordinance sections 17.18.010 and 17.18.120.[4] Id. ¶ ¶ 5, 6; Mot. Exs. C, D (dkt. 11-7, 11-8). Section 17.18.010 states that PD districts are:

established to encourage the arrangement of a compatible variety of uses on suitable lands in such a manner that the resulting development will:
A. Be in accord with the policies of the general plan of the county;
B. Provide efficient use of land that includes preservation of open areas and natural and topographic landscape features with minimum alteration of natural land forms;
C. Provide an environment that will encourage the use of common open areas for neighborhood or community activities and other amenities;
D. Be compatible with and enhance the development of the general area;
E. Create an attractive, efficient and safe environment.

Zoning Ordinance § 17.18.010. Section 17.18.120 states that " [a]ny land use within the boundaries of a [PD] district adopted in accordance with the provisions of this chapter shall conform to the approved land use and development plan." Id. § 17.18.120. The Notice to Abate stated that the " specific violation is unlawful signs (billboards)," but did not explain how sections 17.18.010 or 17.18.120 apply to the Signs on the Parcel or signs in general. See Mot. Ex. C. The Notice to Abate instructed Shaw to remove the signs or face an abatement proceeding and an escalating schedule of fines. Id.

Plaintiffs sued and moved for a temporary restraining order against the County. See generally Mot. The parties then stipulated to treat the application for a temporary restraining order as a motion for preliminary injunction. See Stipulation (dkt. 17). The County waived any bond requirement. Id. at 2.


Federal Rule of Civil Procedure 65 governs the issuance of preliminary injunctions. To obtain a preliminary injunction, a plaintiff " must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). " A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must

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balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Id. at 24 (internal citations omitted). The Ninth Circuit has adopted a sliding scale approach to preliminary injunctions in which " the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

There are two types of facial constitutional challenges. " First, a plaintiff seeking to vindicate his own constitutional rights may argue that an ordinance 'is unconstitutionally vague or . . . impermissibly restricts a protected activity.'" Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 2006) (quoting Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998)). " Second, 'an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not ...

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