USCA4 Appeal: 23-1242 Doc: 61 Filed: 06/21/2024 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1242
ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP
Plaintiff - Appellant
v.
BEAUFORT COUNTY; ERIC GREENWAY, Beaufort County Administrator; HILLARY AUSTIN, Zoning and Development Administrator for Beaufort County
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina at Beaufort. Bruce H. Hendricks, District Judge. (9:21−cv−01517−BHH)
Argued: May 8, 2024 Decided: June 21, 2024
Before DIAZ, Chief Judge, WILKINSON, Circuit Judge, and MOTZ, Senior Circuit Judge.
Remanded with directions by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Diaz and Senior Judge Motz joined.
ARGUED: Jeffrey Scott Tibbals, BYBEE & TIBBALS, LLC, Mount Pleasant, South Carolina, for Appellant. Scott Dean Bergthold, LAW OFFICE OF SCOTT D. BERGTHOLD, PLLC, Chattanooga, Tennessee, for Appellee. ON BRIEF: Evan P. Williams, BYBEE & TIBBALS, LLC, Mount Pleasant, South Carolina, for Appellant. O. Edworth Liipfert III, Beaufort, South Carolina, for Appellees. USCA4 Appeal: 23-1242 Doc: 61 Filed: 06/21/2024 Pg: 2 of 20
WILKINSON, Circuit Judge:
Adams Outdoor Advertising Limited Partnership constructs, manages, designs, and
repairs billboards across the Midwest, Northeast, and Southeastern United States. But not
all jurisdictions in those regions appreciate billboards like Adams’s. Beaufort County has
sought to phase out billboards within its borders by prohibiting the construction of new
billboards and restricting structural repairs of old ones.
Adams and Beaufort County clashed over the county’s billboard policy twice in the
spring of 2021. First, Adams was issued a criminal citation for performing structural repairs
on two old billboards without seeking authorization. Second, Adams filed eleven
applications requesting permits to construct new commercial billboards with digital
displays, each of which was denied.
Based on these two events, Adams sought to challenge Beaufort County’s local
ordinance regulating billboards, along with several other local sign regulations. The district
court dismissed all of Adams’s claims with prejudice. The claims related to the criminal
citation were dismissed under the Younger abstention doctrine, and those related to the
permit denials were dismissed for lack of jurisdiction. We agree with each of the district
court’s dismissal determinations. But the claims dismissed for lack of jurisdiction ought to
have been dismissed without prejudice, and so we remand those claims with the instruction
that their dismissal be amended to dismissal without prejudice.
I.
We begin with the claims related to the criminal citation—the first, third, fifth and
eighth causes of action in the complaint. Each of these claims challenges the portion of the
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Beaufort County Community Development Code that Adams was accused of violating
when it repaired two billboards in April 2021: § 5.6.50(E) (the “Repair Provision”). 1 The
district court dismissed the Repair Provision claims after Adams consented to abstention
under Younger v. Harris, 401 U.S. 37 (1971).
On appeal, Adams does not argue that the district court should not have abstained
from adjudicating the Repair Provision claims. Instead, it argues that the district court
ought to have stayed those claims rather than dismissing them. For the reasons that follow,
we find this argument unpersuasive.
A.
The challenged Repair Provision stipulates the types of repairs to old billboards that
are and are not permitted in Beaufort County. Signs experiencing “normal” wear-and-tear
can be maintained only by “painting or refinishing the surface of the sign face” or via
“minor” hurricane safety modifications. § 5.6.50(E)(2). No structural or substantive
maintenance is permitted, and signs must be removed once they become structurally
unsound. Id. There is an exception, however, when signs have suffered damage in excess
of normal wear—say, from unusually strong winds. Such signs may be structurally repaired
upon authorization from the county, so long as the damage to the sign was less than fifty
percent of what it would cost to replace the sign entirely. § 5.6.50(E)(4)(c). The Repair
1 As will become important when we discuss the claims related to the permit denials, the Community Development Code was amended shortly after Adams received its criminal citations. But Adams challenges the version that was in effect when it received the citation. In this section, we consider only that version and use the section numbers as they appeared in April 2021.
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Provision makes clear that such authorization must be sought and received before any such
structural repair work is undertaken, see § 5.6.50(E)(4)(a)–(b).
In April 2021, Beaufort County criminally cited Adams for violating the Repair
Provision when Adams undertook the unauthorized structural repair of two billboards that
it claimed had been damaged by strong winds.
That criminal citation against Adams is still being processed in state court. The
Beaufort County Magistrate’s Court held a trial in July 2021 and issued a verdict finding
Adams and one of its managers guilty of violating the Repair Provision. Adams appealed
that verdict and since then the criminal case has been winding its way through South
Carolina’s appeals process as Adams and Beaufort County continue to litigate the validity
of the convictions.
While state proceedings were pending, Adams also filed a complaint in federal
district court that, among other things, attacked the Repair Provision it had been accused
of violating. Adams challenged the Repair Provision as inconsistent with state law (count
one), governed by vague standards that fail to provide fair notice (count three), imposing
an unconstitutional prior restraint (count five), and having been applied unconstitutionally
against Adams (count eight). See J.A. 26, 32, 47, 55.
Beaufort County moved to dismiss those four claims relating to the Repair Provision
under Younger abstention. The Younger abstention doctrine counsels that federal courts
should abstain from adjudicating a case if doing so would interfere in a pending state
criminal proceeding in which the complaining litigant could adequately press his cause.
See Younger v. Harris, 401 U.S. 37, 44–45 (1971). In its motion, Beaufort County pointed
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out that it was enforcing the Repair Provision against Adams in state court proceedings in
which Adams has had the opportunity to raise any federal constitutional challenges.
In its response to Beaufort County’s motion to dismiss, Adams consented to the
application of Younger to its claims related to the Repair Provision. See J.A. 189. It further
“agree[d] to withdraw th[o]se claims without prejudice” and asked for “leave to file an
amended pleading to reflect this withdrawal.” Id. at 189–90.
The district court interpreted Adams to be agreeing not only to the application of
Younger abstention, but also to dismissal of the Repair Provision claims. See Adams
Outdoor Advert. Ltd. P’ship v. Beaufort County, No. CV 9:21-1517-BHH, 2023 WL
1801827, at *2 (D.S.C. Feb. 7, 2023). It thus granted Beaufort County’s motion to dismiss
with respect to those claims.
The district court also gave Adams leave to file a second amended complaint within
fourteen days. But that leave was conditioned upon changes the court wanted to see
regarding claims related to the permit denials and was seemingly unrelated to the Repair
Provision claims dismissed under Younger. See id. at *7. In any event, Adams did not file
that amended complaint. Nor at any point in the proceedings below did it ask the district
court to stay claims relating to the Repair Provision rather than dismissing them. After the
fourteen-day amendment window had elapsed, the district court entered an order
dismissing the Repair Provision claims with prejudice.
B.
A district court abstaining under Younger must dispose of the claims in different
ways depending on the relief requested. When Younger abstention is invoked against
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claims seeking only injunctive or declaratory relief, those claims are usually (as was done
here) dismissed with prejudice. See Nivens v. Gilchrist, 444 F.3d 237, 247–48 (4th Cir.
2006). But when the plaintiff requests monetary damages with respect to a claim, a
“District Court has no discretion to dismiss rather than to stay” that claim. Deakins v.
Monaghan, 484 U.S. 193, 202 (1988). Damages for federal constitutional violations are
not generally available in state criminal proceedings, and so the federal courts will allow a
plaintiff to return to request such damages after the state criminal proceedings against him
have concluded. See id. at 202–03. Finally, when a party “seeks not only injunctive and
declaratory relief but money damages as well,” we have held that “the appropriate course
is to abstain by staying proceedings on monetary as well as injunctive and declaratory
claims.” Traverso v. Penn, 874 F.2d 209, 213 (4th Cir. 1989).
Now, on appeal, Adams argues for the first time that its four Repair Provision claims
should have been stayed rather than dismissed with prejudice. In support, Adams points
out that its complaint includes a request for monetary damages in addition to claims for
injunctive and declaratory relief.
But Adams never asked for a stay below. District courts rely on the parties before
them to ask for the outcome they want. When a party does not ask for a particular outcome
below, we do not look kindly at arguments made on appeal that the district court should
have intuited the party’s wishes. Malbon v. Pa. Millers Mut. Ins. Co., 636 F.2d 936, 941
(4th Cir. 1980) (“It is elementary that an issue not raised below will not, absent
extraordinary circumstances . . . be considered on appeal.”).
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Moreover, Adams’s complaint was not even sufficiently clear about which claims
Adams was seeking damages such that the district court could have been expected to guess
that a stay here was required. Following nineteen prayers for declaratory and injunctive
relief—most of which specified whether they were challenging the Repair Provision or
other parts of the county’s sign ordinance—the complaint simply stated a general request
for monetary relief under § 1983. See J.A. 61. Which claims Adams believed merited
monetary relief was left unspecified. And whether the Repair Provision claims were among
them was known only to Adams.
Given that utter lack of clarity and the absence of responsiveness to the trial court’s
instructions, we think the district court acted within its discretion in declining to stay the
Younger claims. We note, however, that Adams is not foreclosed from pursuing these
claims in state court. A Younger dismissal is not a “judgment on the merits for purposes of
state res judicata law.” Nevins, 444 F.3d at 248 n.9. If the state criminal proceedings against
Adams terminate such that Adams’s claims for damages are viable, Adams can bring its
§ 1983 claims in state court alongside the claims dismissed for jurisdictional defects which
we discuss below.
II.
We turn now to the remaining claims—the second, fourth, sixth, seventh, and ninth
causes of action in the complaint—which challenge provisions of Beaufort County’s
Community Development Code beyond the Repair Provision at issue in the criminal
proceedings against Adams. The district court held that it lacked jurisdiction to consider
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these claims, a determination which we review de novo. See Covenant Media of SC, LLC
v. City of N. Charleston, 493 F.3d 421, 427–28 (4th Cir. 2007).
Before addressing the jurisdictional problems, we must set forth the circumstances
surrounding Beaufort County’s denials of Adams’s eleven permit applications, which form
the core of Adams’s grievances.
As detailed below, when Adams submitted those applications in April 2021, signs
in Beaufort County were still regulated under the version of the Community Development
Code that we shall call the “Old Sign Ordinance”. But that was soon to change. In May,
Beaufort County published its intention to amend the Old Sign Ordinance (to what would
eventually become the “Amended Sign Ordinance”). Shortly thereafter, Adams’s April
applications were deemed incomplete and returned to Adams. Within a week, Adams filed
completed applications, each of which Beaufort County denied.
1. The Old Sign Ordinance
Beaufort County, like many jurisdictions around the country, has long regulated
outdoor signs and advertisements. The Old Sign Ordinance provided both substantive
regulations pertaining to various sign types, see §§ 5.6.10–5.6.190, and procedural
guidelines that governed a permitting process by which to apply for permission to
construct, repair, or relocate a sign, see § 7.2.40.
Different sign types carried different restrictions under the Old Sign Ordinance.
Most sign types required a permit and were subject to size and location restrictions. For
example, freestanding signs like billboards were limited to a maximum height of ten feet
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and a maximum width of fifteen feet. See § 5.6.120(B). But some signs were prohibited
altogether, including off-premises commercial billboards. See § 5.6.20(A).
The Old Sign Ordinance also imposed general aesthetic restrictions. Most
importantly for our purposes, “LED Message board signs” were not permitted, “except for
schools, houses of worship, gasoline price signs, and signs advertising films and live
entertainment which change on a regular basis.” § 5.6.30(C)(1)(f).
2. Adams’s First Applications
In late April 2021, Adams submitted eleven permit applications proposing
billboards clearly prohibited by the Old Sign Ordinance. Not only did the permits request
permission to build brand new commercial billboards (prohibited under § 5.6.20(A)), they
proposed billboards with LED lights (prohibited under § 5.6.30(C)(1)(f)). Moreover,
Adams’s fifteen-foot-tall and twenty-five-foot-wide billboards far exceeded the maximum
dimensions allowed for freestanding signs. In short, the applications could not possibly
have been approved.
The applications submitted by Adams were not only defiant but also incomplete.
They were missing (among other things) information about the properties on which the
signs were to be built, including the names and contact information for the properties’
owners.
3. The Amended Sign Ordinance and Adams’s Subsequent Applications
Meanwhile, the Beaufort County Council had resolved to amend the Old Sign
Ordinance to ensure its constitutional soundness. On May 24, 2021, the Beaufort County
Council conducted a first reading of the Amended Sign Ordinance that, among other things,
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simplified the provisions prohibiting off-premises commercial billboards and altered the
exceptions to the no-LED-signs rule to depend on location (“on a parcel containing a
school, house of worship . . .”) rather than content (“for schools, houses of worship . . .”).
On May 25, the Council advertised in the Beaufort Gazette its intention to hold a public
hearing on June 14, at which the Amended Sign Ordinance would be considered.
The Beaufort County Zoning and Development Administrator returned the
incomplete applications to Adams the on May 26, noting that it could not process any
applications that were not complete. On May 27, two days after notice of the public hearing
was published, Adams submitted the first completed application. It submitted the other ten
a few days after that.
As advertised, a public hearing on the Amended Sign Ordinance was held on June
14, where it underwent a second reading. In South Carolina, however, zoning ordinances
require three readings before they can be adopted. The third and final reading took place
on July 26, and the Amended Sign Ordinance was adopted.
Between the second and third readings, Beaufort County denied Adams’s eleven
applications based on the still-pending Amended Sign Ordinance (ASO). It provided the
same explanation for each of the denials, citing several grounds for why the proposed signs
were not in compliance: First, as in the Old Sign Ordinance, new off-premises commercial
billboards were not permitted under ASO §§ 5.6.20(A) and 5.6.50(A). Second, digital
displays (such as LEDs) were permitted only on parcels containing schools, houses of
worship, gas stations, or theaters under ASO § 5.6.30(C)(1)(f), and none of the relevant
parcels had any such establishments; LED displays were also never permitted on
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commercial billboards under ASO § 5.6.50(A). Third, the dimensions of the proposed signs
exceeded the maximum dimensions permitted for freestanding signs under ASO § 5.6.120
(which was identical to the dimension requirements of the Old Sign Ordinance). Finally,
some of the information on the applications was determined to be inaccurate, and they were
therefore subject to denial under ASO § 7.2.40(C)(4)(a).
Adams appealed the denials to the Beaufort County Zoning Board of Appeals,
which ultimately upheld all eleven denials on the ground that the proposed signs did not
comply with the dimension requirements.
As noted above, Beaufort County applied the Amended Sign Ordinance to deny
Adams’s applications, even though those amendments had not yet become final. Beaufort
County claims that it was permitted to do so under South Carolina’s pending ordinance
doctrine, first articulated in Sherman v. Reavis, 273 S.C. 542 (1979). Under the pending
ordinance doctrine, a municipality can properly refuse a land-use permit “when such use is
repugnant to a pending and later enacted zoning ordinance.” Id. at 545.
Adams, however, did not want to challenge the Amended Sign Ordinance. Its
complaint took aim exclusively at the Old Sign Ordinance, and Adams turned down the
opportunity to amend its complaint to substitute the Amended Sign Ordinance in its place.
To that end, Adams argues that the pending ordinance doctrine is inapplicable, and that
Beaufort County should instead have assessed Adams’s applications under the Old Sign
Ordinance.
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Adams makes several arguments that the pending ordinance doctrine should not
apply here, but none are availing. First, Adams argues that the steps in the amendment
process taken on May 24 and 25 were not sufficient to render the Amended Sign Ordinance
legally pending. For purposes of the pending ordinance doctrine, “[a]n ordinance is legally
pending when the governing body has resolved to consider a particular scheme of rezoning
and has advertised to the public its intention to hold public hearings on the rezoning.” Id.
at 546. Here, Beaufort County satisfied both requirements before Adams submitted its
completed applications. On May 24, the council “resolved to consider” the Amended Sign
Ordinance at its first reading. And, on May 25, it published its intention to hold a public
hearing.
Adams, however, contends that a local council cannot “resolve to consider” an
ordinance unless the relevant local planning or zoning commission has already
recommended it. But, while such a recommendation is required before a South Carolina
land-use ordinance can become final, Adams points to no requirement that the
recommendation occur before a governing body can start the amendment process. And the
Sherman court was clear: the governing body (here, the Beaufort County Council) is the
entity that must resolve to consider the ordinance. Id. It did so here.
Adams suggests other supposed procedural missteps in the early amendment
process. It points out, for example, that (unlike in Sherman) no zoning map was included
in the public notice published here. But we shall not place additional requirements on
municipalities trying to prevent soon-to-be-disallowed land uses. The Supreme Court of
South Carolina has explicitly laid out two steps after which an ordinance is legally pending.
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Id. Both were met here. We thus agree with the district court that the Amended Sign
Ordinance was legally pending in South Carolina when Adams submitted its applications
on May 27 and June 1. Adams Outdoor, 2023 WL 1801827, at *5.
Second, Adams proposes two threshold requirements that it would have us impose
before the pending ordinance doctrine could apply: that the permits must relate to a newly
annexed area, and that the pending ordinance must prohibit a previously permitted use. It
is true, as Adams points out, that Sherman concerned a newly annexed area in which
billboards were not previously permitted. 273 S.C. at 545. But Adams confuses descriptive
context for prescriptive mandate. The Supreme Court of South Carolina never suggested
that those facts were necessary to its disposition or to the application of the pending
ordinance doctrine. And we have previously applied the pending ordinance doctrine when
neither of Adams’s suggested requirements were met. See Covenant Media, 493 F.3d at
426–27, 438. We thus decline to impose such requirements here.
Finally, Adams argues that we should take the April 27 date when it submitted its
incomplete applications as the operative date of submission for the completed applications
as well. But we are loath to impose on municipalities a rule that the submission of an
incomplete application would allow a submitter to guarantee that a later application would
be subject to a particular ordinance. That is not to say that a municipality can delay
application determinations indefinitely while considering a potential amendment. See id.
at 431. Here, however, Beaufort County notified Adams that its applications were
incomplete less than a month from when it received them. This turnaround, while not a
model of alacrity, nonetheless passes muster.
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We agree with the district court, therefore, that Beaufort County’s decision to deny
the permits under the Amended Sign Ordinance was permissible under South Carolina’s
pending ordinance doctrine. Having so determined, we turn to questions of jurisdiction.
C.
We lack jurisdiction over many of Adams’s challenges in the remaining claims
because they are moot. These claims largely take aim at provisions of the Old Sign
Ordinance that were changed in the Amended Sign Ordinance. The district court went
paragraph-by-paragraph through Adams’s complaint and identified which of the
challenged provisions of the Old Sign Ordinance were “significantly altered” in the
Amended Sign Ordinance. See Adams Outdoor, 2023 WL 1801827, at *3–5. Adams does
not critique the district court’s determinations here, and indeed the district court has
categorized the provisions correctly. We therefore adopt its delineation and start by
considering as a group the provisions the district court identified as substantially modified
in the Amended Sign Ordinance.
The district court rightly held that Adams’s challenges regarding those changed
provisions were moot. Injunctive and declaratory challenges to repealed ordinances
become moot if there is little practical likelihood that the ordinance will be reenacted. See
Am. Legion Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601, 606 (4th Cir. 2001).
Here, Adams has not alleged any such likelihood. Its equitable challenges against changed
provisions thus fail to present a live case or controversy eligible for review. See id. The
amended provisions can no longer be enforced against Adams, and Adams needs no
prospective relief from provisions no longer in effect.
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Retrospective damages claims are, of course, treated differently. If a plaintiff
suffered harm from a provision already enforced against him, it is cold comfort that the
provision was subsequently repealed. See Covenant Media, 493 F.3d at 429 n.4. But that
exception applies only to provisions actually enforced against the plaintiff. Here, on the
other hand, the Old Sign Ordinance was never enforced against Adams. As we have noted,
Adams’s applications were properly denied under the Amended Sign Ordinance instead.
In short, Adams is trying to challenge provisions that no longer exist and that were
never used against it. “Federal courts have no power to hear moot cases,” Brooks v. Vassar,
462 F.3d 341, 348 (4th Cir. 2006), and the proper disposition of moot claims is to dismiss
them for lack of jurisdiction. We therefore affirm the district court’s dismissal of challenges
to provisions no longer in effect.
D.
After disposing of challenges to provisions that were amended, we are left only with
challenges to the few provisions that remain consistent between the Old Sign Ordinance
and the Amended Sign Ordinance. But Adams has not established that any of those
remaining provisions have adversely affected its business activities. We thus agree with
the district court that Adams does not have standing to challenge them and affirm the
district court’s dismissal of these challenges for lack of jurisdiction as well.
Standing is a threshold requirement of Article III justiciability. Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153 (4th Cir. 2000) (en banc). It
ensures that the party in front of us is “the proper party to invoke judicial resolution of the
dispute.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Warth v.
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Seldin, 422 U.S. 490, 518 (1975)). To establish standing, a plaintiff must plead facts that
allege (1) that he has suffered or imminently will suffer an injury-in-fact which is (2)
causally connected to the challenged provisions and (3) capable of being redressed by a
favorable outcome in court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992).
A party must demonstrate standing to challenge each provision it opposes. See
FW/PBS, 493 U.S. at 231–33. We must thus march provision-by-provision through those
challenges remaining after the mootness dismissals. We conclude that Adams has not been
injured by any of them. In doing so, we find that the district court properly analyzed each
and every one.
Start with the temporary sign rules in ASO § 5.6.60. These provisions concern signs
posted for limited periods of time—often around thirty days. See ASO § 5.6.60(C).
Adams’s signs, in contrast, are permanent. It argues on appeal that its signs could be
considered “temporary” because the messages on them change from time to time. See
Appellant’s Opening Br. 41. But Adams has not evinced any intention to construct signs
that are subject to the temporary-sign time limits. In each of Adams’s denied billboard
applications, when Adams was asked whether its signs were temporary it said “no.” J.A.
67, 70, 73, 76, 79, 82, 85, 88, 91, 94, 97. These provisions do not adversely affect Adams’s
operations, and so it has no standing to challenge them.
Turn to the sign types covered in ASO § 5.6.40. This provision contains two tables.
Table A provides rules that Adams challenges regarding directional signs and sidewalk
signs. Directional signs must be located within thirty feet of an entrance to a parking lot.
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Adams has not alleged it has any such signs, and so we cannot see how their regulation
would have any impact at all on Adams, let alone an injurious one. As for sidewalk signs,
Adams’s billboards are not located on sidewalks, so those regulations are likewise
inapplicable. Table B fares no better. It governs yard signs up to six square feet and various
signs attached to buildings. But Adams manages large commercial billboards that stand
atop freestanding monopoles. Nowhere in the complaint does Adams purport to have any
interest in signs attached to buildings or signs small enough to post in yards.
Next, move to ASO § 5.6.30, which lays out general requirements that apply to all
signs in Beaufort County. Adams argues against two specific subsections: ASO
§ 5.6.30(D)(4), which requires that signs located in “buffers” be positioned to have the
least impact on trees, and ASO § 5.6.30(E), which lays out design standards. This provision
at least applies to billboards like Adams’s. But standing is not established, as Adams
claims, simply because Adams “must comply with” this provision. See Appellant’s
Opening Br. 43. Standing demands an injury-in-fact, and Adams has failed to show that it
was ever injured (or expects to be injured) by this provision. Adams’s complaint never
alleges that any of its signs are in a buffer zone or affected by the least-impact-on-trees
requirement. And there is no indication that any of Adams’s signs have been rejected
because of the design standards or that Adams has any desire to erect any such design-
nonconforming signs. In short, Adams has not alleged that it was injured by these
provisions either and therefore lacks standing to challenge them alongside the others.
In addition to challenging the determinations of specific provisions, Adams makes
sweeping challenges to the district court’s entire standing analysis. First, it argues that
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Beaufort County did not move below to dismiss any of Adams’s claims based on a lack of
standing. But that is of no moment. Federal courts are required to ensure that they have
jurisdiction and must address standing problems even when the parties do not raise them.
See Buscemi v. Bell, 964 F.3d 252, 258 (4th Cir. 2020).
Second, Adams contends it has pleaded “sufficient harm to adequately allege
standing to challenge the [Old Sign Ordinance] as a whole” based on the supposed chilling
effect of that ordinance. See Appellant’s Opening Br. 40. But the Old Sign Ordinance
governs no more, and any challenges to it are moot per our discussion above.
Finally, Adams argues that it should be allowed to lodge overbreadth challenges
even to provisions that have caused it no injury. It is true that overbreadth claims are subject
to a relaxation of the “traditional rules of standing,” Giovani Carandola, Ltd. v. Bason, 303
F.3d 507, 512 (4th Cir. 2002) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)),
but not in the manner that Adams suggests. The relaxation is to the rule that “a person to
whom a statute may constitutionally be applied will not be heard to challenge that statute
on the ground that it may conceivably be applied unconstitutionally to others.” Broadrick,
413 U.S. at 610. But the person seeking to challenge an overbroad statute must still have
been subject to the statute to have standing. Hence a nude-dancing establishment that had
been penalized for violations of a North Carolina statute prohibiting lewd dancing could
challenge that statute as overbroadly burdening protected activities such as ballet and
theater, even if the dancing at the establishment did not qualify for constitutional
protections. See Giovani Carandola, 303 F.3d at 512. But the challenge to that statute still
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had to be lodged by a party injured by it. It would not be subject to a challenge, say, by a
restaurant with no dancing at all.
Here, Adams is more like the restaurant. It seeks to challenge as overbroad sign
provisions that do not affect its business. Even overbreadth challenges do not stretch
standing to encompass those who have suffered no injury at all. Adams has suffered no
such injury because of the provisions discussed herein, and we therefore affirm the district
court’s dismissal for lack of jurisdiction regarding Adams’s challenges to those provisions.
E.
Although we agree with the district court’s determination that it lacked jurisdiction
to hear these claims, the district court erred when it entered that dismissal with prejudice.
“A dismissal for lack of standing—or any other defect in subject matter jurisdiction—must
be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate
and dispose of a claim on the merits.” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v.
OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013). We thus remand the
case with instructions that the district court make clear that its jurisdictional dismissals are
dismissals without prejudice.
III.
We note, in conclusion, that the district court did a fine job with this litigation. This
case belongs in state court for at least three reasons. One, billboards are plainly related to
the historic state interest in “land-use planning and development.” Metromedia, Inc. v. City
of San Diego, 453 U.S. 490, 502 (1981). Two, the state courts themselves are wrestling
with many of the state and federal questions presented to us here. Three, the jurisdictional
19 USCA4 Appeal: 23-1242 Doc: 61 Filed: 06/21/2024 Pg: 20 of 20
hurdles faced by Adams, both individually and collectively, counsel against federal judicial
review. For the reasons noted, plaintiff’s claims are remanded with directions that they be
dismissed in accordance with the conditions announced herein.
REMANDED WITH DIRECTIONS.