Agenda - Planning Commission - 07/06/2017

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Zoning Bulletin June 10, 2017 I Volume 11 I Issue 11 denied the permit, concluding that the Sign was an "off -site sign" not permitted in the DD district, and that the sign was an "outdoor advertising sign" prohibited in the DD district. After the variance denial and Fourth National's failure to remove the Sign, the City filed a legal action against Fourth National. The City sought injunctive relief, asking the court to order the removal of the Sign for violation of the City's Zoning Code's prohibition on off -site signs in the DD District. Fourth National argued that the City was "selectively enforcing" the Zoning Code in violation of its equal protection rights under the Fourteenth Amendment to the United States Constitution. Fourth National also argued that the City's off -site sign prohibitions violated freedom of speech rights guaranteed by both the federal and Ohio Constitutions. It asked the court to declare the off -site prohibitions of the Zoning Code to be unconstitu- tional because they "defined what is permissible commercial speech based on the content of the message: a sign advertising a business or activity lo- cated on the property is allowed but a sign of the same size and appearance advertising a business or activity off -site is prohibited." Fourth National further argued that "the off -site sign provisions were constitutionally defective because they favored commercial speech over noncommercial speech." Finding no material issues of fact in dispute, and deciding the matter on the law alone, the trial court ultimately granted summary judgment to the City and ordered Fourth National to remove the illegal sign. The trial court also dismissed Fourth National's declaratory -judgment counterclaim on the freedom of speech constitutionality issues for lack of standing (i.e., the legal right to bring the claim). Fourth National then dismissed its remain- ing counterclaims and appealed. DECISION: Judgment of trial court affirmed in part, reversed in part, and matter remanded. The Court of Appeals of Ohio, First District, Hamilton County, first agreed with the trial court that Fourth National failed to present a prima facie (i.e., based on first impression) case of selective enforcement. The court explained that in this "class of one" selective -enforcement claim, Fourth National had a "heavy burden" to show that it was treated differ- ently than those "similarly situated in all material respects." Here, the court concluded that Fourth National failed to meet this burden because Fourth National failed to identify "any other individual or business maintaining an illegal off -site sign in the DD district that the [C]ity continue[d] to allow, despite a complaint." (Emphasis added.) Although Fourth National could point to various other off -site signs in the DD district that had not come under City enforcement for zoning violations, Fourth National failed to establish that the City had received complaints about those other signs and yet failed to take enforcement action. The court highlighted the fact that the City's enforcement of the Zoning Code "is complaint -driven, meaning that [C]ity enforcement officials do not actively search for violations of the [Z]oning [C]ode." © 2017 Thomson Reuters 9