Signs for Jesus v. Town of Pembroke

2017 DNH 016

• Court: District Court, D. New Hampshire
• Decided: January 27, 2017
• Docket: Case No. 15-cv-482-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Signs for Jesus, et al.

v. Case No. 15-cv-482-PB Opinion No. 2017 DNH 016

Town of Pembroke, NH, et al.

MEMORANDUM AND ORDER

Hillside Baptist Church and Signs for Jesus want to install

an electronic sign on the Church’s property in Pembroke, New

Hampshire. They brought this action against the Town of

Pembroke, its Zoning Board of Adjustment, and its Code

Enforcement Officer, Everett Hodge, after defendants denied

plaintiffs’ request for a permit to install the proposed sign.

Plaintiffs allege violations of the United States Constitution,

the New Hampshire Constitution, and the Religious Land Use and

Institutionalized Persons Act (RLUIPA). The matter is before me

on cross motions for summary judgment.

I. BACKGROUND

A. The Pembroke Sign Ordinance

Applications for an electronic sign are governed by

Pembroke’s sign ordinance. Pembroke, N.H., Code ch. 143, art.

VIII, §§ 143-57 to -66, relevant version available at Doc. No. 1-5. The stated purpose of the ordinance is to “[p]romote the

safety, comfort and well-being of the users of streets;”

“improve traffic safety;” “discourage excessive visual

competition among signs;” and “[p]reserve or enhance town

character by requiring new and replacement signage which is . .

. [c]ompatible with the surroundings.” Id. § 143-57.

The ordinance sets out “General requirements” in section

143-58. Subsection A, entitled “Permitted signs,” provides that

“[o]nly signs which refer to any lawful use, permitted use or an

approved special exception use as set forth in Article IV of

this Chapter shall be permitted, provided such signs conform to

the provisions of this article.” Id. § 143-58(A). Below this

subsection, a box of text provides that “[s]igns which are

required by federal, state or municipal laws are permitted.”

Id. Subsection B lists signs that are generally prohibited.

Id. § 143-58(B). Subsection G allows all signs that predate the

adoption of the ordinance. Id. § 143-58(G).

The “General requirements” provisions are followed by

section 143-59, entitled “Administration,” which details the

process that must be followed to procure a sign permit.

Subsection A, entitled “Permits,” provides that “no sign shall

be erected, displayed, altered or enlarged until an application

has been filed” and a permit issued. Id. § 143-59(A). Within

2 that subsection, provision A(8), entitled “Exception to

permits,” identifies five types of signs that “shall be exempt

from the permitting requirements.”1

The remaining sections of the ordinance regulate where and

how particular types of signs may be used. Id. §§ 143-60 to -

66. A Table of Signs divides Pembroke into a number of zoning

districts (e.g., Commercial, Residential, and Limited Office)

and allows certain signs in some districts but not others. Id.

§§ 143-60, -62.

Several years ago, the Town decided to protect its natural

aesthetic by limiting the number of electronic signs.

Accordingly, the ordinance was amended to bar Electronic

Changing Signs in all districts but the Commercial District and

limited parts of other districts that abut the Commercial

District. See id. § 143-62, -63(X). Electronic Changing Signs

1 Section 143-59(A)(8) provides: “Exception to permits: The following signs shall be exempt from the permitting requirements; (a) All temporary SALE/RENT/LEASE covered by § 143- 63F. (b) All political signs covered by § 143-63N. (c) All temporary signs advertising yard sales. These signs shall not exceed six square feet in size and must be removed five days after sale. (d) Signs less than two square feet in size identifying a personal residency by name and street address. (e) Hunting, no trespassing, and other such signs less than two square feet in size. 3 include “electronic message center (EMC), electronic message

sign (EMS), and changeable copy board (CCB) signs.” Id. § 143-

63(X). “These signs are capable of storing and/or displaying

single or multiple messages in various formats at varying

intervals.” Id. Electronic Changing Signs are identifiable by

certain physical criteria, including text, graphics, or patterns

that are illuminated or flash. See id. When allowed,

Electronic Changing Signs are subject to the additional minimum

requirements specified by the ordinance, such as a limitation on

their nighttime brightness, “along with all other requirements

for signage within” the sign ordinance as a whole. Id.

B. Procedural History

Hillside Baptist Church (the “Church”) wants to install its

electronic sign next to the road on its property at 547 Pembroke

Street in Pembroke, New Hampshire. Although the Church has an

existing sign that can be changed manually, it hopes to upgrade

to an electronic sign that can be remotely preprogrammed to

display different messages each day. The new sign would display

religious messages, and it would be provided by Signs for Jesus,

a non-profit corporation “whose purpose is to publicly display

daily Bible scriptures to the public via road signs.”2

2 Signs for Jesus joins in the Church’s claims but it does not present any unique arguments. For ease of discussion, I focus on the Church’s arguments in this Memorandum and Order and apply 4 The Church is located in Pembroke’s Limited Office (“LO”)

district, in which both residential and limited commercial

development is permitted but electronic signs are barred. Two

electronic signs are currently in use on the same road as the

Church in districts that do not permit such signs. The first,

which is on property owned by a gas station in the LO district,

predates the adoption of the sign ordinance. The second is on

property owned by Pembroke Academy, a public school in the

Residential district.3

In April 2015, the Church applied for a permit to install

an electronic sign. Town Code Enforcement Officer Everett Hodge

determined that section 143-64(X) of the ordinance classifies

the Church’s proposed sign as an Electronic Changing Sign.

Because the proposed sign would be erected in Pembroke’s LO

district — where electronic signs are prohibited — Hodge denied

the Church’s application. His decision was based solely on the

Church’s ineligible location, not its religious identity or

proposed messages.

my rulings to both plaintiffs’ claims.

3 Pembroke Academy is operated by School Administrative Unit ("SAU") 53, which is a subdivision of the state. See N.H. Rev. Stat. Ann. § 100-A:20(I) (characterizing SAUs as political subdivisions of the state). 5 In May 2015, the Church filed an administrative appeal and

a variance request with the Town’s Zoning Board of Adjustment

(“the Board”). The Church contended that the permit denial

violated its rights under the Religious Land Use and

Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. 2000(cc),

and the United States and New Hampshire constitutions. The

Board held a public hearing on July 27, 2015, where it heard

from the Church and community members. In rejecting the

Church’s appeal and variance request, the Board found that Hodge

had correctly interpreted the sign ordinance, that a variance

was not required under ordinary variance criteria, and that

federal law did not require a contrary result. When the Board

explained its decision, it emphasized the Town’s interest in

promoting a semi-rural aesthetic by limiting electronic signs in

the LO district.

In August 2015, the Church requested a rehearing.

Following a presentation by the Church, the Board again denied

the Church’s administrative appeal and variance request. In

announcing the Board‘s decision, the Vice Chairman of the Board

read from the draft motion that had been provided by counsel.

It later issued a written Notice of Decision.

In November 2015, the Church filed its complaint here,

claiming state and federal free speech, free exercise of

6 religion, equal protection, and due process violations, along

with claims under RLUIPA’s substantial burden and equal terms

provisions.4 Doc. No. 1 at 9-24. The complaint names as

defendants the Town of Pembroke (the “Town”), its Zoning Board

of Adjustment, and its Code Enforcement Officer, Everett Hodge.5

Id. at 1. The Church seeks declaratory, injunctive, and

monetary relief. Id. at 24–25. The parties have filed cross

motions for summary judgment. Doc. Nos. 32, 34.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and [that] the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The evidence in the record must be considered in the

light most favorable to the nonmoving party, drawing all

4 The Church also seeks to appeal the Board’s decision under N.H. Rev. Stat. Ann. § 677:4. The parties have agreed, however, that the Church’s state statutory claims should be stayed pending the adjudication of its constitutional and RLUIPA claims. Signs for Jesus v. Town of Pembroke, 2016 DNH 059, 9.

5 The Church’s arguments are directed primarily at the Town, and the parties have not argued that a claim may be maintained against either Hodge or the Zoning Board if it fails against the Town. Accordingly, I focus on the Church’s claims against the Town and apply my rulings to the claims against all defendants.

7 reasonable inferences in its favor. See Navarro v. Pfizer

Corp., 261 F.3d 90, 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine dispute of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). A material fact “is one

‘that might affect the outcome of the suit under the governing

law.’” United States v. One Parcel of Real Prop. with Bldgs.,

960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)), abrogated in part on

other grounds. If the moving party satisfies this burden, the

nonmoving party must then “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for it; if that party cannot produce such

evidence, the motion must be granted.” Ayala–Gerena v. Bristol

Myers–Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex,

477 U.S. at 322-23.

On cross motions for summary judgment, the standard of

review is applied to each motion separately. See Am. Home

Assurance Co. v. AGM Marine Contractors, Inc., 467 F.3d 810, 812

(1st Cir. 2006); see also Mandel v. Boston Phoenix, Inc., 456

F.3d 198, 205 (1st Cir. 2006) (“The presence of cross-motions

for summary judgment neither dilutes nor distorts this standard

of review.”). Thus, I must “determine whether either of the

8 parties deserves judgment as a matter of law on facts that are

not disputed.” Adria Int’l Group, Inc. v. Ferré Dev., Inc., 241

F.3d 103, 107 (1st Cir. 2001).

III. ANALYSIS

The principal issue in this case is whether the Town

improperly denied the Church’s request for an electronic sign

permit. The Church argues that the Town’s denial of its request

violates its First Amendment right to free speech, its First

Amendment right to freely exercise its religion, its state and

federal constitutional rights to equal protection, its

Fourteenth Amendment right to procedural due process, and its

rights under RLUIPA’s undue burden and equal terms provisions.

In addition to these claims, the Church challenges other aspects

of the zoning ordinance that have no direct bearing on whether

the Church is entitled to an electronic sign. I begin by

examining the Town’s contention that the Church lacks standing

to challenge aspects of the zoning ordinance that have no direct

connection to its request for an electronic sign.

A. Standing

The Church attacks several sections of the zoning ordinance

that have no bearing on whether it is entitled to install an

electronic sign on its property. For example, it complains that

9 the ordinance improperly authorizes content-based exemptions

from the sign permitting requirement, even though the Church is

barred by the ordinance from installing an electronic sign on

its property regardless of whether it is subject to the

permitting requirement. It also argues that the ordinance

improperly excludes churches from the Commercial district, even

though it has no plans to relocate to that district. The Town

responds by arguing that the Church lacks standing to challenge

aspects of the zoning ordinance that have no bearing on its

alleged injury.

The Supreme Court has explained that “[t]o establish

Article III standing, an injury must be ‘concrete,

particularized, and actual or imminent; fairly traceable to the

challenged action; and redressable by a favorable ruling.’”

Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138, 1147 (2013)

(quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149

(2010)). In the present case, the Church’s inability to obtain

an electronic sign has nothing to do with the sign permitting

requirement because the Church would be barred from installing

an electronic sign on its property even if the permit

requirement were invalidated. Nor is its entitlement to an

electronic sign affected by the fact that it cannot build in the

Commercial district because the Church has no plans to build a

10 church in that district. Accordingly, the Church lacks standing

to raise these claims because its alleged injury is not fairly

traceable to the sections of the ordinance it challenges. See

Tanner Advert. Grp v. Fayette County, 451 F.3d 777, 791 (11th

Cir. 2007) (en banc).

The Church cannot acquire standing by construing its claims

as a facial attack on the ordinance. See Members of City

Council of City of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 796–98 (1984). “[A] holding of facial invalidity

expresses the conclusion that the statute could never be applied

in a valid manner.” Id. But “[t]he seminal cases in which the

Court held state legislation unconstitutional ‘on its face’ did

not involve any departure from the general rule that a litigant

only has standing to vindicate his own constitutional rights.”

Id. Facial challenges do “not create any exception from the

general rule that constitutional adjudication requires a review

of the application of a statute to the conduct of the party

before the Court.” Id.; cf. Maverick Media Grp. v. Hillsborough

County, 528 F.3d 817, 820–23 (11th Cir. 2008) (per curiam).

The overbreadth doctrine also cannot save the Church here.

The Church cites the overbreadth doctrine in only a single line

of its complaint. That bare assertion neither mentions the

connection between overbreadth and standing, nor asserts that

11 the ordinance is substantially overbroad. In any event, “[t]he

overbreadth doctrine does not . . . grant a plaintiff carte

blanche to challenge an entire ordinance merely because some

part of the ordinance — to which the plaintiff is not subject —

might be unconstitutional.” Maverick, 528 F.3d at 822. Rather,

“a plaintiff who has established constitutional injury as to

himself under a provision of a statute may also attack that

provision under the overbreadth doctrine to vindicate the rights

of others not before the court.” Id. at 822; see also FW/PBS,

Inc. v. City of Dallas, 493 U.S. 215, 233-34 (1990), overruled

in part on other grounds by City of Littleton v. Z.J. Gifts D-4,

L.L.C., 541 U.S. 774, 781 (2004). The overbreadth doctrine

“does not, because it may not, waive the Article III requirement

that the plaintiff have suffered a real injury in fact as to a

challenged provision of an ordinance.” Maverick, 528 F.3d at

822; see also Prime Media, Inc. v. City of Brentwood, 485 F.3d

343, 350 (6th Cir. 2007) (“Prime Media’s standing with regard to

the size and height requirements does not magically carry over

to allow it to litigate other independent provisions of the

ordinance without a separate showing of an actual injury under

those provisions.”).

12 For these reasons, the Church lacks standing to challenge

provisions in the ordinance that are unrelated to its request

for an electronic sign permit.

B. Free Speech

The Church first argues that the Town violated the Church’s

First Amendment right to free speech.6 I evaluate this claim by

determining the appropriate level of scrutiny that must be

applied to the Town’s actions and then considering whether those

actions can be justified under the applicable scrutiny standard.

1. The Town’s Actions are Subject to Intermediate Scrutiny

The First Amendment subjects content-based speech

restriction to more exacting scrutiny than content-neutral

restrictions. Rideout v. Gardner, 838 F.3d 65, 71 (1st Cir.

2016), petition for cert. filed, No. 16-838 (U.S. Dec. 27,

2016). “Government regulation of speech is content based if a

law applies to particular speech because of the topic discussed

or the idea or message expressed.” Reed v. Town of Gilbert, 135

S. Ct. 2218, 2227 (2015). Content-based regulations include

both those that “cannot be ‘justified without reference to the

content of the regulated speech’” and those that were “adopted

6 The Church also brings a free speech claim under the New Hampshire constitution, but does not argue that the state constitution affords greater protection. Accordingly, I analyze the federal and state claims using federal law. 13 by the government ‘because of disagreement with the message [the

speech] conveys.’” Id. (alteration in original) (quoting Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Content-

based restrictions trigger strict scrutiny, “which requires the

Government to prove that the restriction furthers a compelling

interest and is narrowly tailored to achieve that interest.”

Id. at 2231 (quoting Ariz. Free Enter. Club’s Freedom Club PAC

v. Bennett, 564 U.S. 721, 734 (2011)).

Content-neutral regulations, in contrast, face less

exacting scrutiny. Such regulations “serve[] purposes unrelated

to the content of expression.” Rideout, 838 F.3d at 71 (quoting

Ward, 491 U.S. at 791). They trigger only intermediate

scrutiny, which permits the government to “impose reasonable

restrictions on the time, place, or manner of protected speech,”

so long as “they are narrowly tailored to serve a significant

governmental interest, and . . . they leave open ample

alternative channels for communication of the information.”

McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (quoting Ward,

491 U.S. at 791). Content-neutral regulations “‘need not be the

least restrictive or least intrusive means of’ serving the

government’s interests.” Rideout, 838 F.3d at 72 (quoting

McCullen, 134 S. Ct. at 2535).

14 The Church does not challenge the Town’s claim that the

electronic sign provision is content-neutral on its face.

Nevertheless, it argues that the Town’s decision to deny its

request for an electronic sign is subject to strict scrutiny

because it draws speaker-based distinctions that improperly

permit some speakers to have an electronic sign but not others.

In particular, it objects to the fact that the provision applies

to new speakers but not grandfathered speakers, and

nongovernmental speakers but not governmental speakers.

The Supreme Court explained in Reed that “laws favoring

some speakers over others demand strict scrutiny when the

legislature’s speaker preference reflects a content preference.”

135 S.Ct. at 2230 (quoting Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622, 658 (1994)); see also Turner, 512 U.S. at 658

(“[S]peaker-based laws demand strict scrutiny when they reflect

the Government’s preference for the substance of what the

favored speakers have to say (or aversion to what the disfavored

speakers have to say).”). Accordingly, “[c]haracterizing a

distinction as speaker based is only the beginning — not the end

— of the inquiry.” Reed, 135 S. Ct. at 2231.

A zoning ordinance that favors grandfathered speakers over

new speakers based on the content of the regulated speech may be

subject to strict scrutiny even if the regulation appears to be

15 content-neutral on its face. See id. at 2230; cf. Ackerley

Communc’ns of Mass. v. Cambridge, 88 F.3d 33, 39 (1st Cir. 1996)

(considering grandfathering provision that conferred benefit “in

content-based terms that have no aesthetic justification and

effectively penalize[d] a category of speakers based on their

prior choice of message.”). Here, however, the grandfathering

provision at issue is derived from N.H. Rev. Stat. Ann. §

674:19, a state law that broadly exempts all preexisting

nonconforming uses of property from local zoning requirements.

Because the exemption does not directly or indirectly regulate

users on the basis of the content of affected speech, it does

not trigger strict scrutiny even though it treats some speakers

differently from others.

The Church next points to the fact that government land

users are not subject to the electronic sign ordinance and

argues that this distinction between government and

nongovernment land users draws improper speaker-based

distinctions that warrant strict scrutiny. Again, I disagree.

The distinction the Town draws between government and

nongovernment land users results from the fact that government

land users are exempt from local zoning ordinances pursuant to

state law. See Region 10 Client Mgt., Inc. v. Town of

Hampstead, 120 N.H. 885, 888 (1980); Opinion of the Justices,

16 113 N.H. 217, 218 (1973); see also N.H. Rev. Stat. Ann. § 674:54

(requiring governmental entity to provide notice of proposed use

to municipality); Pembroke, N.H., Code ch. 143, art. VIII, §

143-58(A), relevant version available at Doc. No. 1-5 (“Signs

which are required by federal, state or municipal laws are

permitted.”).7 This exemption, like the grandfathering

provision, does not discriminate based on the content of

affected speech. Instead, it ensures that New Hampshire’s

interest in using its own land — an interest that extends beyond

municipal concerns — is not thwarted by local land use

restrictions. The state avoids this difficulty by declining to

empower the Town to regulate land uses by the state or political

subdivisions such as SAU 53, which operates Pembroke Academy.

The exemption of governmental land users from local zoning

applies regardless of whether a proposed use implicates speech,

suggesting that the legislature did not have speech in mind,

much less prefer government messages over citizens’ messages.

The record is also devoid of evidence suggesting that the Town

applied the electronic sign ordinance unevenly in a way that

7 The Church also points to an exemption for “temporary governmental agency signs which carry public service announcements and notices.” See § 143-63(P). But the Church does not seek a temporary sign. Moreover, this exemption lacks independent significance because it is subsumed under the broader government land use exemption.

17 suggests a content preference. Thus, the government land use

exemption does not reflect a content preference and does not

trigger strict scrutiny.

Because the Town’s content-neutral regulation of electronic

signs is not subject to strict scrutiny, I review the Town’s

decision to deny the Church an electronic sign permit under the

intermediate scrutiny standard.

2. The Town’s Actions Survive Intermediate Scrutiny

Content-neutral regulations of signs are “permissible so

long as they are narrowly tailored to serve a significant

governmental interest and allow for reasonable alternative

channels of communication.” Naser Jewelers, Inc. v. City Of

Concord, 513 F.3d 27, 33–34 (1st Cir. 2008). The sign ordinance

at issue here states that its goals include aesthetics and

traffic safety. See § 143-57. The electronic sign provision

was intended, for example, to promote a more natural aesthetic

than the neighboring town of Hooksett, especially along the

Pembroke Street/Route 3 corridor. See Doc. No. 34-4 at 10; Doc.

No. 34-2 at 3. The record reveals no ulterior purpose. See

Naser, 513 F.3d at 34 (declining to second-guess stated purpose

of content-neutral sign regulation). Accordingly, I evaluate

the Town’s actions by determining whether its stated goals in

18 furthering aesthetics and traffic safety qualify as significant

governmental interests.

In the abstract, “[b]oth traffic safety and community

aesthetics have long been recognized to constitute significant

governmental interests.” Id. The Church’s assertion that

aesthetic interests alone can never suffice is belied by Supreme

Court and First Circuit case law. See, e.g., Metromedia, Inc.

v. City of San Diego, 453 U.S. 490, 507–08 (1981) (plurality

opinion) (“The twin goals that the ordinance seeks to further —

traffic safety and the appearance of the city — are substantial

governmental goals. It is far too late to contend otherwise

with respect to either traffic safety or esthetics.” (footnote

and citations omitted)); Vincent, 466 U.S. at 807 (“[T]he visual

assault on the citizens of Los Angeles . . . constitutes a

significant substantive evil within the City’s power to

prohibit.”); Naser, 513 F.3d at 34; Globe Newspaper Co. v.

Beacon Hill Architectural Comm'n, 100 F.3d 175, 187 (1st Cir.

1996) (“[A]esthetic interests constitute a significant

government interest.”); id. at 188 n.14 (“The term ‘significant

interest’ is equivalent to the terms ‘important interest’ and

‘substantial interest,’ and these phrases are often used

interchangeably.” (quoting Rodney A. Smolla & Melville Nimmer,

19 A Treatise on The First Amendment, § 3.02[3][A] at 3–36 & n.95

(1994))).

Moving from the abstract to the present case, the

electronic sign ban at issue here advances a significant

government interest in aesthetics. The Town has “a weighty,

essentially esthetic interest in proscribing intrusive and

unpleasant formats for expression” such as electronic signs.

See Vincent, 466 U.S. at 806-07. Such signs can be garish and

otherwise worsen the aesthetic environment in the small

community of Pembroke, especially in the Pembroke Street

corridor. See id.; Naser, 513 F.3d at 34-35 (holding that

Pembroke’s neighboring city “plainly” advanced significant

aesthetic interest by banning EMCs). The Town’s aesthetic

interests “are both psychological and economic” because “[t]he

character of the environment affects the quality of life and the

value of property.” Vincent, 466 U.S. at 817. In the present

case, the Town directly advanced its aesthetic interest by

banning electronic signs, and that interest is not nullified by

other types of development in the LO district.

With respect to traffic safety, I am in no position to

second guess the Town’s determination that its regulation of

electronic signs addresses traffic safety hazards by reducing

distractions. See Metromedia, 453 U.S. at 510 (giving deference

20 to “the accumulated, common-sense judgments of local lawmakers .

. . that billboards are real and substantial hazards to traffic

safety” when not unreasonable). Unwarranted judicial scrutiny

of Pembroke’s traffic safety judgments “would be trespassing on

one of the most intensely local and specialized of all municipal

problems.” See Metromedia, 453 U.S. at 509 (quoting Ry. Express

Agency v. People of State of New York, 336 U.S. 106, 109

(1949)).

Pembroke is a small town with limited resources and it was

not required to conduct controlled empirical studies to

quantifiably substantiate its safety concerns. See Naser, 513

F.3d at 35. The potential hazard of distracting signs such as

Electronic Changing Signs is supported by the record and

precedent, and the Town’s judgment is entitled to deference

because it is not unreasonable. See Metromedia, 453 U.S. at

509-10; Naser, 513 F.3d at 34 (“EMCs, which provide more visual

stimuli than traditional signs, logically will be more

distracting and more hazardous.”). Accordingly, the Town

advances significant government interests in support of its

decision to deny the Church’s request for an electronic sign.

Having determined that the electronic sign ordinance

advances significant government interests, I also must determine

whether it is narrowly tailored to achieve its stated purposes.

21 See Naser, 513 F.3d at 34. The Town’s regulation of electronic

signs may neither be “substantially broader than necessary to

protect” the Town’s interests, nor underinclusive. See Vincent,

466 U.S. at 808, 810–11. The Town must “allow for reasonable

alternative channels of communication,” but “is not required to

choose the least restrictive means possible: ‘[T]he regulation

will not be invalid simply because a court concludes that the

government’s interest could be adequately served by some less-

speech-restrictive alternative.’” Naser, 513 F.3d at 33-35

(quoting Ward, 491 U.S. at 800).

Applying these standards here, the Town’s regulation of

electronic signs is not overinclusive. The Town wishes to

promote a natural aesthetic by restricting electronic signs.

Because such signs pose an aesthetic problem, the Town “did no

more [in banning them] than eliminate the exact source of the

evil it sought to remedy.” See Vincent, 466 U.S. at 808

(finding ban on posted signs was narrowly tailored); see also

Metromedia, 453 U.S. at 510 (noting that billboards, “by their

very nature, wherever located and however constructed, can be

perceived as an ‘esthetic harm’”). Business development in the

area near the Church — such as the warehouse and clean energy

filling station, which are barely visible from the road on

Pembroke Street – neither nullifies the Town’s aesthetic

22 interest, nor sounds a death knell for the efforts to advance

that interest. See Vincent, 466 U.S. at 811–12; Rzadkowolski v.

Village of Lake Orion, 845 F.2d 653, 655 (6th Cir. 1988)

(finding ban on billboards everywhere but village’s industrial

zone satisfied intermediate scrutiny). Thus, the Town’s

regulation of electronic signs did not burden “substantially

more speech than is necessary.” Vincent, 466 U.S. at 799.

The Town also “leave[s] open ample alternative channels for

communication of the information” that the Church wishes to

convey. Ward, 491 U.S. at 791 (quoting Clark v. Cmty. for

Creative Non-Violence, 468 U.S. 288, 293 (1984)). As in Naser,

“signs are not banned, nor is the use of signs with manually

changeable type.” 513 F.3d at 36. The Church may communicate

the same religious messages with its current manually changeable

sign as it could with an electronic sign. See id. (“Even if

EMCs are considered to be a particular ‘medium,’ the fact that a

regulation bans a particular medium does not mean that the

ordinance is not narrowly tailored.”); Globe Newspaper, 100 F.3d

at 193, 195 (finding that ban on street newsracks left open

ample alternative channels of communication because “the

Newspapers are free to distribute their publications from the

very same spot within the public forum where their newsracks

have been located”). Moreover, the Church may communicate its

23 messages using a wide variety of means beyond signs. See Kovacs

v. Cooper, 336 U.S. 77, 89 (1949) (plurality opinion).

The regulation of electronic signs is also not fatally

underinclusive. “Strange as it may seem, the First Amendment

may forbid the regulation of . . . ‘too little’ speech (because

exemptions to the regulation remove an entire topic of speech

from debate, advantage one side of the debate over another or

undermine the credibility of the government’s explanation for

restricting speech at all).” Prime Media, 398 F.3d at 822. But

the Supreme Court has rejected the “argument that a prohibition

against the use of unattractive signs cannot be justified on

esthetic grounds if it fails to apply to all equally

unattractive signs wherever they might be located.” Vincent,

466 U.S. at 810–11. “Even if some visual blight remains, a

partial, content-neutral ban may nevertheless enhance the

[town’s] appearance” and satisfy narrow tailoring. See id. at

811.

The limited exceptions to the ordinance do not render the

regulation of electronic signs fatally underinclusive, as the

Church suggests.8 By allowing electronic signs in the Commercial

8 The ordinance does not, as the town asserts, confer unbridled discretion on the Code Enforcement Officer to approve or deny Electronic Changing Signs. Compare §§ 143-62 (banning electronic signs based on location); 143-63(X) (defining electronic signs using objective physical criteria and cohesive 24 district but not elsewhere, the Town made a reasonable judgment

that a lessened aesthetic interest in that area should cede to a

strong countervailing interest in economic development. See id.

at 810-11; Metromedia, 453 U.S. at 511–12 (“The city has decided

that in a limited instance . . . its interests [in aesthetics

and traffic safety] should yield. We do not reject that

judgment.”). Moreover, as I explain below in analyzing the

Church’s equal protection arguments, the Town has sound reasons

to treat grandfathered and governmental users differently from

new nongovernmental applicants such as the Church.

For these reasons, the Town’s content-neutral regulation of

electronic signs satisfies intermediate scrutiny and the Town is

entitled to summary judgment on the Church’s free speech claim.

B. Free Exercise of Religion

The Church next argues that the Town infringed its First

Amendment right to the free exercise of religion.9 The

government may not “prohibit” the free exercise of religion.

U.S. Const. amend. I; Emp’t Div., Dep’t of Human Res. v. Smith,

examples), with Van Wagner, 770 F.3d at 35, 40 (finding unbridled discretion where enforcement authority was based on capacious, disparate, and non-exhaustive factors, and official had limitless revocation authority).

9 The Church also brings a free exercise claim under the New Hampshire constitution, but does not argue that the state constitution affords greater protection. Accordingly, I analyze the state and federal claims using federal law. 25 494 U.S. 872, 876-77, 904 (1990) (subsequent history omitted).

But “the right of free exercise does not relieve an individual

of the obligation to comply with a ‘valid and neutral law of

general applicability on the ground that the law proscribes (or

prescribes) conduct that his religion prescribes (or

proscribes).’” Smith, 494 U.S. at 879 (quoting United States v.

Lee, 455 U.S. 252, 263 n. 3 (1982) (Stevens, J., concurring in

judgment)). As discussed, the Town’s ban on electronic signs is

valid and neutral, and there is no evidence in the record that

would support a claim that it targets religion. Accordingly,

the Town is entitled to summary judgment on the Church’s free

exercise claim.

C. Equal Protection

The Church claims that the Town violated the Church’s

federal and state constitutional rights to equal protection when

it denied the Church’s request for an electronic sign while

allowing Pembroke Academy to keep its electronic sign. These

claims fail as a threshold matter because the Church and

Pembroke Academy are not similarly situated.

To establish a viable equal protection claim under either

federal or state law, the Church must prove, among other things,

that it was treated differently from other “similarly situated”

entities. McGraw v. Exeter Region Co-op Sch. Dist., 145 N.H.

26 709, 711 (2001); see Davis v. Coakley, 802 F.3d 128, 132 (1st

Cir. 2015). “An individual is ‘similarly situated’ to others

for equal protection purposes when ‘a prudent person, looking

objectively at the incidents, would think them roughly

equivalent and the protagonists similarly situated.’” Davis,

802 F.3d at 133 (quoting Barrington Cove Ltd. P’ship v. Rhode

Island Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir.

2001)).

Applying this standard here, the Church is not similarly

situated to Pembroke Academy because, unlike the Church,

Pembroke Academy is a subdivision of the State of New Hampshire

that the Town has no authority to regulate. Pembroke Academy is

operated by School Administrative Unit (“SAU”) 53, a political

subdivision of the state. See N.H. Rev. Stat. Ann. § 100-A:20.

New Hampshire has delegated zoning power to local municipalities

but it has not empowered them to regulate either the state

itself or its political subdivisions. See Region, 120 N.H. at

888; Opinion of the Justices, 113 N.H. at 218. Instead, when a

governmental entity proposes to undertake a new governmental

land use or to substantially modify an existing use on property

it owns or controls, state law merely requires the governmental

entity to provide notice of the proposed use to the governing

body and planning board of the community where the property is

27 located. See N.H. Rev. Stat. Ann. § 674:54. In contrast, the

state has expressly empowered municipalities to regulate land

uses by nongovernmental entities. See N.H. Rev. Stat Ann. §

674:16. Under these circumstances, no reasonable observer could

conclude that the Church and Pembroke Academy are similarly

situated when it comes to the Town’s ability to regulate

proposed land uses.10

The Church seeks to overcome this obstacle by arguing that

any dissimilarity between the Church and Pembroke Academy is

inconsequential because it arises solely from the operation of

state law. I am unpersuaded by the Church’s argument, but its

equal protection claims fail in any event because the Town had

good grounds both to reject the Church’s request for an

10 In Cmty. Res. for Justice, Inc. v. City of Manchester (Community Resources II), 157 N.H. 152, 153–55 (2008), the New Hampshire Supreme Court invalidated a local zoning ordinance on equal protection grounds because the ordinance barred privately run halfway houses but not similar halfway houses operated directly by the state. The court, however, did not address the substantial similarity requirement in its decision. Construing the court’s holding on this unexamined point narrowly, I understand the decision to merely recognize that a private halfway house operated pursuant to a contract with a governmental entity is sufficiently similar to a halfway house operated directly by a governmental entity to permit an equal protection challenge to be based on a claim of differential treatment between the two types of halfway houses. The decision thus does not support the broader proposition that governmental and nongovernmental entities are similarly situated for zoning purposes, even though local zoning authorities lack the power to regulate governmental land uses.

28 electronic sign permit and to treat the Church differently from

Pembroke Academy.

Whenever a plaintiff bases an equal protection claim on a

contention that it has been treated differently from another

similarly situated entity, the scrutiny that the differential

treatment receives will vary from “strict scrutiny” at one end

of the spectrum to “rational basis” review at the other. The

federal and state constitutions address the issue in similar but

not identical ways. Under both federal law and New Hampshire

law, distinctions that are drawn on the basis of “suspect”

classifications or that target “fundamental” rights are subject

to strict scrutiny. See Mills v. Maine, 118 F.3d 37, 46 (1st

Cir. 1997); Comty. Res., Inc. v. City of Manchester (Community

Resources I), 154 N.H. 748, 758 (2007). Under federal law,

subject only to limited exceptions that are not relevant here,

“[l]egislation or regulation that neither employs a suspect

classification nor impairs fundamental rights will survive

constitutional scrutiny provided the remedy is ‘rationally

related to a legitimate governmental purpose.’” Mederios v.

Vincent, 431 F.3d 25, 29 (1st Cir. 2005), overruled in part on

other grounds by Bond v. United States, 564 U.S. 211, 216–20

(2011). In contrast, the New Hampshire constitutional right to

equal protection subjects most non-suspect classifications to

29 rational basis review but applies intermediate scrutiny to

classifications that affect “important substantive rights,” such

as interests in land. See Community Resources I, 154 N.H. at

758.

The Town’s decision to deny the Church’s request for an

electronic sign is subject to rational basis review under

federal law because the Town neither based its decision on a

suspect classification nor infringed the Church’s fundamental

rights. See Mederios, 431 F.3d at 29; Wirzburger v. Galin, 412

F.3d 271, 282-83 (1st Cir. 2005). Because, however, the Town’s

decision affects an interest in land, its decision is subject to

the more exacting intermediate scrutiny standard under New

Hampshire law. Community Resources I, 154 N.H. at 758. Under

this standard, the burden is on the Town to demonstrate that its

actions are substantially related to important governmental

objectives. Id. at 762.

As I explained in resolving the Church’s free speech claim,

the electronic sign ordinance is narrowly tailored and serves

the important governmental objectives of promoting traffic

safety and aesthetics. The Town also has strong reasons to

treat governmental and nongovernmental landowners differently.

The Town cannot prevent Pembroke Academy from installing an

electronic sign on its property because the state has not given

30 it the power to regulate governmental land uses. New Hampshire

and its political subdivisions will often need to use their

property to benefit the interests of constituencies that extend

well beyond the boundaries of the city or town in which the

property is located. Governmental landowners also have unique

interests as landowners that local zoning ordinances do not

address and that local land use authorities may not value.

Existing New Hampshire law, which requires a governmental entity

to notify and consult with local land use authorities, permits

governmental entities to balance their own interests with those

of local land use authorities without subjugating themselves to

the judgments of municipal officials who in many cases represent

narrower constituencies. Because proposed nongovernmental land

uses ordinarily do not present the same mix of concerns, the

state is justified in treating them differently. For these

reasons, both the Town’s decision to deny the Church’s request

for an electronic sign, and the state’s decision to delegate its

power over zoning issues to its municipal subdivisions while

exempting itself from local zoning ordinances, are substantially

related to important governmental interests.11

11 The Church hints at other potential equal protection arguments but those arguments fail because they have not been properly developed. See Hudon v. Colvin, 2016 DNH 019, 9 n.3. Accordingly, I comment on them only briefly. Any claim that the Town violated the Church’s equal protection rights because it 31 D. RLUIPA

The Church next argues that the Town violated RLUIPA’s

substantial burden and equal terms provisions. I address each

argument in turn.

1. No Substantial Burden

RLUIPA’s substantial burden provision states that “[n]o

government shall impose or implement a land use regulation in a

manner that imposes a substantial burden on the religious

exercise of a person, including a religious assembly or

institution,” unless doing so “is the least restrictive means of

furthering [a] compelling governmental interest.” 42 U.S.C. §

2000cc(a)(1). RLUIPA does not define the term “substantial

burden,” and the Supreme Court has not provided guidance.

was treated differently from prior nonconforming users fails because applicants for new land uses ordinarily are not similarly situated to grandfathered land users. See Cal. Outdoor Equity Partners, LLC v. City of Los Angeles, 145 F. Supp. 3d 921, 931 (C.D. Cal. 2015); Jucha v. City of North Chicago, 63 F. Supp. 3d 820, 831 (N.D. Ill. 2014). Treating grandfathered users differently also serves important governmental interests because grandfathered users have expectancy interests in their ability to use their property that are not shared by new applicants. See City of New Orleans v. Dukes, 427 U.S. 297, 305 (1976) (per curiam), abrogated in part on other grounds by Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 882 (1985); Maldonado v. Morales, 556 F.3d 1037, 1048 (9th Cir. 2009). Any claim that the Town violated the Church’s equal protection rights by allowing electronic signs in the commercial district but not elsewhere fails for similar reasons. Cf. Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 766–67 (7th Cir. 2003). 32 The First Circuit considers the “common-usage

understandings” of the terms “burden” and “substantial” as they

are used in RLUIPA. Roman Catholic Bishop of Springfield v.

City of Springfield, 724 F.3d 78, 96 (1st Cir. 2013). It

construes a “burden” to mean “[s]omething that hinders or

oppresses” or “something oppressive or worrisome.” Id. at 96

(quoting Black’s Law Dictionary 223 (9th ed. 2009); Merriam–

Webster’s Collegiate Dictionary 152 (10th ed. 1993)). It

likewise describes the meaning of “substantial” as

“significantly great.” Id. (quoting Merriam–Webster’s

Collegiate Dictionary at 1174 (10th ed. 1993)). In assessing

whether a land use regulation imposes a substantial burden, the

First Circuit also considers whether the regulation: 1) targets

religious entities “because of hostility to that religion

itself,” 2) appears facially neutral but is “designed to reach a

predetermined outcome contrary to the group’s requests,” or 3)

was imposed in an arbitrary and capricious manner, such as by

“disregard[ing] objective criteria” or relying “on

misunderstandings of legal principles.” Id. at 96-97.

Here, the Town did not substantially burden the Church’s

religious exercise by denying it an electronic sign. The Church

has an existing sign at the same location, at the end of its

driveway, whose message is capable of being changed manually.

33 There is insufficient evidence to conclude that changing the

existing sign manually is “oppressive” or “worrisome” to a

“significantly great” extent. See id. at 96 (quoting Merriam-

Webster’s Collegiate Dictionary at 152, 1174). The Church’s

assertions that it lacks the manpower to change the sign every

single day, and that occasional inclement weather is an

impediment, do not suffice because the Church is not entitled to

the most efficient or inexpensive means of communicating its

message. See Civil Liberties for Urban Believers v. City of

Chicago, 342 F.3d 752, 761-62 (7th Cir. 2003).

The factors that a court may consider when evaluating a

substantial burden claim are also absent here. The electronic

sign ordinance features objective physical criteria, is neutral

with respect to religion, and was not enacted to further anti-

religious motive. See Roman Catholic, 724 F.3d at 96-97.

Further, the Town applied the regulation and the neutral

variance criteria in a well-considered and straightforward

manner, not “arbitrarily, capriciously, or unlawfully.” Id. at

97; cf. Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d

338, 351–52 (2d Cir. 2007) (finding substantial burden where

zoning board’s decision was “characterized . . . by an arbitrary

blindness to the facts,” including a miscalculation and

assumptions unsupported by board’s own experts). Far from

34 acting carelessly or misunderstanding the legal principles at

stake, Board members educated themselves on the issues of

federal law before reaching a final decision on the Church’s

requests. See Roman Catholic, 724 F.3d at 97; cf. Sts.

Constantine and Helen Greek Orthodox Church, Inc. v. City of New

Berlin, 396 F.3d 895, 899–901 (7th Cir. 2005) (“[R]epeated legal

errors” by city suggested city was either “deeply confused about

the law” or “playing a delaying game”). Neither the ordinance

itself nor its application to the Church reflected an outcome-

driven approach masquerading as neutral decisionmaking. See

Roman Catholic, 724 F.3d at 96; cf. Guru Nanak Sikh Soc’y of

Yuba City v. County of Sutter, 456 F.3d 978, 989 (9th Cir. 2006)

(religious group denied permit without adequate explanation or

guidance despite agreeing to requested mitigation measures).

Thus, none of the First Circuit’s factors warrant finding a

substantial burden here.

2. No Treatment on Less Than Equal Terms

The Church also argues that the Town violated RLUIPA’s

equal terms provision by denying the Church an electronic sign

while allowing a nearby gas station and Pembroke Academy to have

electronic signs. The equal terms provision provides that “[n]o

government shall impose or implement a land use regulation in a

manner that treats a religious assembly or institution on less

35 than equal terms with a nonreligious assembly or institution.”

42 U.S.C. § 2000cc(b)(1). “Determining whether a municipality

has treated a religious entity ‘on less than equal terms’

requires a comparison between that religious entity and a

secular one.” Third Church of Christ, Scientist, of N.Y. City

v. City of New York, 626 F.3d 667, 669 (2d Cir. 2010). “The

circuits disagree as to the applicable comparator in a RLUIPA

‘equal terms’ analysis,” and the First Circuit has not yet

articulated its view. See Roman Catholic, 724 F.3d at 100. In

the absence of clear guidance from the First Circuit, I follow

those courts that have concluded that a RLUIPA equal terms

violation requires proof that the plaintiff has been treated

less well than a similarly situated secular comparator. See

generally Tree of Life Christian Schools v. City of Upper

Arlington, 823 F.3d 365, 370 (6th Cir. 2016) (collecting cases).

In conducting this analysis, I ask whether the proposed

comparator is similarly situated “in light of the purpose of the

regulation.” Lighthouse Inst. For Evangelism, Inc. v. City of

Long Branch, 510 F.3d 253, 264-65 (3d Cir. 2007).

The Church compares itself to a gas station that has an

electronic sign in the LO district. The gas station, however,

kept its sign because it was installed prior to the ban, and

thus qualifies under the zoning ordinance’s neutral

36 grandfathering provision. The Church is ineligible for

grandfathering based on chronology, not religious identity. See

Vision Church v. Village of Long Grove, 468 F.3d 975, 1003 (7th

Cir. 2006) (finding comparators invalid where they were “subject

to different standards because of the year” in which they sought

permit), abrogation in part on other grounds recognized by

Brunson v. Murray, 843 F.3d 698, 706 (7th Cir. 2016). Thus, the

gas station is not a valid comparator.

Nor is Pembroke Academy a valid comparator. As I have

explained, the Town cannot prevent Pembroke Academy from having

an electronic sign because the state has deprived the Town of

any power to regulate governmental land uses. Accordingly, the

Church is not similarly situated to Pembroke Academy and thus

cannot base its equal terms claim on a contention that the two

entities were treated differently. See Primera Iglesia Bautista

Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295,

1311 (11th Cir. 2006) (entities are not similarly situated where

“they sought markedly different forms of zoning relief, from

different decision-making bodies, under sharply different

provisions of local law”); Chabad Lubavitch of Litchfield Cty,

Inc. v. Litchfield Hist. Dist. Comm’n, 768 F.3d 183, 197 (2d

Cir. 2014); see also Grace Church of Roaring Fork Valley v.

Board of Cty Comm’rs, 742 F. Supp. 2d 1156, 1163-64 (D. Colo.

37 2010) (public high school not similarly situated to church

because school locations are determined by school district

whereas church sought permission to build from county

commissioners).12

For these reasons, the Town is entitled to summary judgment

on the Church’s substantial burden and equal terms claims.

E. Due Process

The Church asserts that it was denied due process because

the Zoning Board of Adjustment unconstitutionally pre-judged its

appeal and variance request before issuing a formal decision.13

“A sufficient procedural due process claim must allege ‘that

12The Church’s reliance on Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d 612 (7th Cir. 2007) is misplaced. In that case, state law barred the sale of liquor and pornography within specified distances from a church. Id. at 616. The City of Indianapolis cited the state law as a justification for a zoning restriction that required churches to obtain a variance before operating in the city’s commercial district. See id. In rejecting the city’s argument, the court held that a special privilege granted to churches by the state — in this case, the ability to prevent sales of liquor and pornography in the vicinity of a church — could not be used to justify a decision by the city to bar churches from the city’s commercial district. Id. at 616-17. The court’s decision, however, in no way calls into question the reasoning of those courts that have held that entities that are subject to different regulatory regimes and are regulated by different governmental bodies are not similarly situated for purposes of a RLUIPA equal terms claim.

13The Church also brings a due process claim under the New Hampshire constitution, but does not argue that the state constitution affords greater protection. Accordingly, I analyze the federal and state claims using federal law. 38 [the plaintiff] was deprived of [a] constitutionally protected

[interest] because of defendants’ actions, and that the

deprivation occurred without due process of law.’” Rumford

Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 999

(1st Cir. 1992) (quoting Roy v. City of Augusta, 712 F.2d 1517,

1522 (1st Cir. 1983)). But a deprivation alone does not

suffice. The Church must also allege that constitutionally-

adequate state law remedies are unavailable. See id. at 999.

This element is “critically important.” Id. The Church fails

to allege that constitutionally adequate state law remedies,

such as an ordinary zoning appeal of the Board’s decision to the

New Hampshire Superior Court, were unavailable. Because the

Church does not satisfy this requirement, the Town is entitled

to summary judgment on the Church’s due process claim.14

IV. CONCLUSION

My decision in this case is impacted by several conclusions

that affect all of the Church’s claims. First, the Town’s

decision to deny the Church’s request for an electronic sign had

nothing to do with either religion or the content of the

14The parties have agreed to stay the Church’s claims under N.H. Rev. Stat. Ann. § 677:4. Having disposed of all of the Church’s federal claims, I decline to exercise supplemental jurisdiction over these claims. Accordingly, they are dismissed without prejudice. 39 Church’s speech. Second, the decision served the Town’s

important governmental interests in aesthetics and traffic

safety in a manner that was narrowly tailored to serve those

interests. Third, the decision does not unreasonably burden the

Church’s right to practice its religious beliefs, to practice

free speech, or to use its property. Finally, the Town has not

treated the Church differently from any other similarly situated

landowner. In light of these conclusions, the Church’s

contention that it should be free from the effect of the Town’s

electronic sign ordinance amounts to a demand, not for a level

playing field, but instead for a right to be treated differently

from all other private landowners. Neither the state and

federal constitutions nor RLUIPA requires this result.

Accordingly, the plaintiffs’ motion for summary judgment (Doc.

No. 32) is denied, and defendants’ motion for summary judgment

(Doc. No. 34) is granted. Plaintiffs’ state statutory claims

are dismissed without prejudice.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge January 27, 2017 cc: Pierre A. Chabot, Esq. Michael J. Tierney, Esq. Christopher Cole, Esq. Garry R. Lane, Esq. Megan C. Carrier, Esq. 40