Cincinnati v. Fourth Natl. Realty, L.L.C.
2017 Ohio 1523
| Ohio Ct. App. | 2017Background
- Fourth National installed an oversized off-site sign on 108 W. Third Street in Cincinnati's DD zoning district; no permit and sign violated off-site prohibitions.
- Sign approximately 45 feet tall, 40 feet wide and 1,800 square feet, advertising products not conducted on the premises.
- City had previously issued a smaller permit for a building-identification sign but Fourth National rejected it as too small; variance denied May 2015 and not appealed.
- City denied a new permit on July 17, 2015, citing that the copy did not pertain to on-site business; enforcement action for off-site sign prohibition followed.
- City amended complaint to rely on off-site prohibitions 1427-17 and permit requirement 1427-05; Fourth National answered with counterclaims for selective enforcement and free-speech challenges; sought declaratory judgment.
- Trial court granted summary judgment for the city to remove the sign; dismissed Fourth National’s standing to seek declaratory relief; Court of Appeals affirmed-in-part, reversed-in-part, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there a genuine issue of selective enforcement? | Fourth National argues city enforced less against others similarly situated. | City enforces based on complaint-driven process with rational basis. | No prima facie selective enforcement; summary judgment for city affirmed. |
| Does Fourth National have standing to challenge off-site prohibitions on free speech? | Has standing to challenge as applied and facially for noncommercial speech. | Lacks standing to challenge the provisions. | Fourth National has standing as applied to its desired sign and facial as to noncommercial speech; remanded. |
| Is the injunction against removal of the oversized sign proper? | Argues error in granting injunctive relief. | Argues enforcement proper under code. | Trial court’s injunctive relief upheld; removal of oversized sign affirmed. |
Key Cases Cited
- Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (heavy burden in class-of-one equal-protection claims)
- Loesel v. City of Frankenmuth, 692 F.3d 452 (6th Cir. 2012) (class-of-one requires showing irrational treatment)
- Rondingo, L.L.C. v. Twp. of Richmond, 641 F.3d 673 (6th Cir. 2011) (irrational discrimination standard for class-of-one claims)
- Acme Mkts., Inc. v. City of New York, 37 N.Y.2d 326 (N.Y. 1975) (complaint-driven enforcement can violate equal protection)
- Harp Advertising Illinois v. Village of Chicago Ridge, 9 F.3d 1290 (7th Cir. 1993) (standing and redressability considerations in zoning challenges)
- Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995) (standing and redressability in Ohio appellate context)
- Lamar Advertising of Penn, LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004) (overbreadth concept and standing in speech cases)
- XXL of Ohio, Inc. v. City of Broadview Hts., 341 F. Supp. 2d 765 (N.D. Ohio 2004) (overbreadth in mixed commercial/noncommercial speech)
- Tipp City v. Dakin, 186 Ohio App.3d 558 (2010-Ohio-1013) (overbreadth and standing principles in Ohio)
- Dakin, 186 Ohio App.3d 558 (2010) (applied overbreadth standing analysis in zoning)