230 F. Supp. 3d 49
D.N.H.2017Background
- Hillside Baptist Church (with Signs for Jesus) applied in 2015 for a permit to install an electronic (EMC) sign on Church property in Pembroke, NH; the property is in the Limited Office (LO) zoning district where electronic signs are generally prohibited.
- Pembroke’s sign ordinance bans Electronic Changing Signs outside the Commercial district and limited abutting areas; it contains grandfathering and government-use exceptions reflecting state law.
- Code Enforcement Officer Hodge denied the permit based solely on location (LO district); the Zoning Board of Adjustment denied the Church’s administrative appeal and variance request after hearings.
- Church sued the Town, the Board, and Hodge asserting First Amendment free speech and free exercise claims, equal protection, procedural due process, and RLUIPA (substantial burden and equal terms); parties filed cross motions for summary judgment.
- The Town defended the denial as a content-neutral, location-based zoning regulation serving aesthetics and traffic safety; it relied on state-law exemptions for preexisting and governmental uses.
- The court granted defendants’ summary judgment on all federal claims, dismissed state statutory claims without prejudice, and concluded the ordinance and its application did not target religion or speech content and met applicable constitutional and RLUIPA standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge unrelated ordinance provisions | Church contends facial attacks and overbreadth allow broader challenge | Town: Church lacks Article III injury as provisions don't cause its harm | Court: No standing for provisions unrelated to sign denial |
| Free speech (First Amendment) | Ordinance and its application discriminate against Church by treating speakers differently; warrants strict scrutiny | Ordinance is content-neutral; exceptions (grandfathering, gov't uses) follow state law and don't reflect content preference | Court: Regulation is content-neutral; intermediate scrutiny applies and is satisfied (aesthetics & safety; narrowly tailored; alternatives exist) |
| Free exercise / RLUIPA substantial burden | Denial burdens religious exercise by preventing efficient display of religious messages | Ordinance is neutral, generally applicable, and denial does not substantially burden exercise; existing manually-changeable sign suffices | Court: No free exercise violation; no substantial burden under RLUIPA |
| RLUIPA equal terms / Equal protection | Church treated worse than gas station and Pembroke Academy having EMCs | Gas station was grandfathered; Pembroke Academy is a state actor exempt from local zoning — not similarly situated | Court: Comparators not similarly situated; no equal terms or equal protection violation |
| Procedural due process | Board pre-judged appeal / variance, depriving Church of fair process | Church has state-law remedies available (zoning appeal to NH Superior Court); no deprivation without adequate remedies | Court: Due process claim fails for lack of showing that adequate state remedies were unavailable |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (distinguishing content-based from content-neutral regulation)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (municipal regulation of signs can serve substantial interests like traffic safety and aesthetics)
- Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (limits on facial challenges and standing in sign regulation contexts)
- Ward v. Rock Against Racism, 491 U.S. 781 (time, place, manner intermediate-scrutiny framework)
- Employment Division v. Smith, 494 U.S. 872 (neutral laws of general applicability and free exercise)
- Naser Jewelers, Inc. v. City of Concord, 513 F.3d 27 (1st Cir.) (upholding EMC restrictions under intermediate scrutiny)
- Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78 (1st Cir.) (interpreting RLUIPA substantial-burden standard)
- City of New Orleans v. Dukes, 427 U.S. 297 (upholding regulatory distinctions based on expectancy interests of longstanding users)