Agenda - Planning Commission - 09/16/2010 - Special Meeting

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July 25, 2010 1 Volume 4 j No. 14 Zoning Bulletin In September 2009, Herson sought to construct a "pole sign" on property he had leased in the city. He applied to the city for a building permit, as required by the city's municipal code in effect at that time (the "Prior Code"). The city Planning Department (the "City") denied Herson's applica- tion. The denial was based on the City's determination that the proposed sign was actually a billboard that would violate sections of the Prior Code. More specifically, the City determined that Herson's proposed sign would violate Prior Code provisions that: (1) categorically prohibited billboards; and (2) prohibited, with certain exceptions, all off -site signs. Herson filed a legal action in court, challenging the City's denial of his building permit application. He argued that the Prior Code provisions on which his denial was based were unconstitutional in violation of the First Amendment of the U.S. Constitution. The City argued that Herson lacked standing to challenge those provi- sions of the Prior Code about which he complained. The City noted that it was legally entitled to deny Herson's building permit application based on the Prior Code's valid and constitutional size and height restrictions for pole signs (the "Pole Sign Restrictions"). Thus, the City argued, even if those other provisions challenged by Herson were unconstitutional, since the Pole Sign Restrictions were constitutional and allowed the de- nial, any injuries to Herson caused by other unconstitutional restrictions were not redressable. The City asked the court to find that there were no material issues of fact in dispute and to issue summary judgment in its favor on the law alone. The Court's Decision: Motion for Summary Judgment Granted to the City. The United States District Court, North District of California, explained that for Herson to have standing to challenge the constitutionality of the ordinances for which he complained, he had to show: (1) "an injury in fact which is `actual, concrete, and particularized"; (2) "a causal connection be- tween that injury and the [City's] conduct"; and (3) "a likelihood that the injury (could] be redressed by a favorable decision of the court." The court agreed with the City's argument that, "if any of the provisions that the City proffered as justifications for denying [Herson]'s permit ap- plication [were] constitutional, [Herson] would lack standing to challenge the other, potentially unconstitutional provisions." That would be because, in such a case, any injury cased by the other, potentially unconstitutional provisions, would not be redressable by the court. Here, Herson's proposed pole sign exceeded the maximum allow- able size for a pole sign. Its proposed dimensions were: 48 feet by 14 feet on two sides, for a total of 1344 square feet. Reading the Pole Sign Restrictions as a whole, the court concluded that: "the largest possible pole sign that any individual or entity could construct would be 65 feet tall and have a sign area of 1125 square feet total." Also, such a sign 10 ©2010 Thomson Reuters 108