Signs for Jesus et al v. Pembroke, NH, Town of et al
ORDER denying 32 Motion for Summary Judgment; granting 34 Motion for Summary Judgment. So Ordered by Judge Paul J. Barbadoro.(jna)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Signs for Jesus, et al.
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
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.
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.
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
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).
subsection, a box of text provides that “[s]igns which are
required by federal, state or municipal laws are permitted.”
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).
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 -
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.
§§ 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
See id. § 143-62, -63(X).
Electronic Changing Signs
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 § 14363F.
(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
(e) Hunting, no trespassing, and other such signs less
than two square feet in size.
include “electronic message center (EMC), electronic message
sign (EMS), and changeable copy board (CCB) signs.”
Id. § 143-
“These signs are capable of storing and/or displaying
single or multiple messages in various formats at varying
Electronic Changing Signs are identifiable by
certain physical criteria, including text, graphics, or patterns
that are illuminated or flash.
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.
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
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
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.
electronic signs are currently in use on the same road as the
Church in districts that do not permit such signs.
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
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
my rulings to both plaintiffs’ claims.
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).
In May 2015, the Church filed an administrative appeal and
a variance request with the Town’s Zoning Board of Adjustment
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.
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.
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
religion, equal protection, and due process violations, along
with claims under RLUIPA’s substantial burden and equal terms
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
Id. at 24–25.
motions for summary judgment.
The parties have filed cross
Doc. Nos. 32, 34.
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.
The evidence in the record must be considered in the
light most favorable to the nonmoving party, drawing all
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.
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.
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.
v. Catrett, 477 U.S. 317, 323 (1986).
A material fact “is one
‘that might affect the outcome of the suit under the governing
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
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
Thus, I must “determine whether either of the
parties deserves judgment as a matter of law on facts that are
Adria Int’l Group, Inc. v. Ferré Dev., Inc., 241
F.3d 103, 107 (1st Cir. 2001).
The principal issue in this case is whether the Town
improperly denied the Church’s request for an electronic sign
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.
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
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
It also argues that the ordinance
improperly excludes churches from the Commercial district, even
though it has no plans to relocate to that district.
responds by arguing that the Church lacks standing to challenge
aspects of the zoning ordinance that have no bearing on its
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
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
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.
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.”
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.”
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
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.
“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
For these reasons, the Church lacks standing to challenge
provisions in the ordinance that are unrelated to its request
for an electronic sign permit.
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.
The Town’s Actions are Subject to Intermediate Scrutiny
The First Amendment subjects content-based speech
restriction to more exacting scrutiny than content-neutral
Rideout v. Gardner, 838 F.3d 65, 71 (1st Cir.
2016), petition for cert. filed, No. 16-838 (U.S. Dec. 27,
“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.”
S. Ct. 2218, 2227 (2015).
Reed v. Town of Gilbert, 135
Content-based regulations include
both those that “cannot be ‘justified without reference to the
content of the regulated speech’” and those that were “adopted
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.
by the government ‘because of disagreement with the message [the
Id. (alteration in original) (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
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
Such regulations “serve purposes unrelated
to the content of expression.”
Ward, 491 U.S. at 791).
Rideout, 838 F.3d at 71 (quoting
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
Rideout, 838 F.3d at 72 (quoting
McCullen, 134 S. Ct. at 2535).
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
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
See Region 10 Client Mgt., Inc. v. Town of
Hampstead, 120 N.H. 885, 888 (1980); Opinion of the Justices,
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
This exemption, like the grandfathering
provision, does not discriminate based on the content of
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
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
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.
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.
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
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.
No. 34-2 at 3.
See Doc. No. 34-4 at 10; Doc.
The record reveals no ulterior purpose.
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
furthering aesthetics and traffic safety qualify as significant
In the abstract, “[b]oth traffic safety and community
aesthetics have long been recognized to constitute significant
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
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
(quoting Rodney A. Smolla & Melville Nimmer,
A Treatise on The First Amendment, § 3.02[A] at 3–36 & n.95
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
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
See Metromedia, 453 U.S. at 510 (giving deference
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
See Metromedia, 453 U.S. at 509 (quoting Ry. Express
Agency v. People of State of New York, 336 U.S. 106, 109
Pembroke is a small town with limited resources and it was
not required to conduct controlled empirical studies to
quantifiably substantiate its safety concerns.
F.3d at 35.
See Naser, 513
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.
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.
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 lessspeech-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
interest, nor sounds a death knell for the efforts to advance
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
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
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
messages using a wide variety of means beyond signs.
v. Cooper, 336 U.S. 77, 89 (1949) (plurality opinion).
The regulation of electronic signs is also not fatally
“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.
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.”
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
The limited exceptions to the ordinance do not render the
regulation of electronic signs fatally underinclusive, as the
By allowing electronic signs in the Commercial
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
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.
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
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.
Free Exercise of Religion
The Church next argues that the Town infringed its First
Amendment right to the free exercise of religion.9
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).
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.
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
Smith, 494 U.S. at 879 (quoting United States v.
Lee, 455 U.S. 252, 263 n. 3 (1982) (Stevens, J., concurring in
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.
the Town is entitled to summary judgment on the Church’s free
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.
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”
McGraw v. Exeter Region Co-op Sch. Dist., 145 N.H.
709, 711 (2001); see Davis v. Coakley, 802 F.3d 128, 132 (1st
“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.’”
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.
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
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. §
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
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
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.
electronic sign permit and to treat the Church differently from
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.
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.’”
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
In contrast, the New Hampshire constitutional right to
equal protection subjects most non-suspect classifications to
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
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
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
Community Resources I, 154 N.H. at 758.
this standard, the burden is on the Town to demonstrate that its
actions are substantially related to important governmental
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
it the power to regulate governmental land uses.
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
Because proposed nongovernmental land
uses ordinarily do not present the same mix of concerns, the
state is justified in treating them differently.
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
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
The Church next argues that the Town violated RLUIPA’s
substantial burden and equal terms provisions.
I address each
argument in turn.
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. §
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).
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).
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)).
likewise describes the meaning of “substantial” as
Id. (quoting Merriam–Webster’s
Collegiate Dictionary at 1174 (10th ed. 1993)).
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.
has an existing sign at the same location, at the end of its
driveway, whose message is capable of being changed manually.
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).
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
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.
sign ordinance features objective physical criteria, is neutral
with respect to religion, and was not enacted to further antireligious 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.”
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).
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
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 outcomedriven approach masquerading as neutral decisionmaking.
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.
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
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
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
Third Church of Christ, Scientist, of N.Y. City
v. City of New York, 626 F.3d 667, 669 (2d Cir. 2010).
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.
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.
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
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
The Church is ineligible for
grandfathering based on chronology, not religious identity.
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).
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.
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
see also Grace Church of Roaring Fork Valley v.
Board of Cty Comm’rs, 742 F. Supp. 2d 1156, 1163-64 (D. Colo.
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
For these reasons, the Town is entitled to summary judgment
on the Church’s substantial burden and equal terms claims.
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
The 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.
The 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.
[the plaintiff] was deprived of [a] constitutionally protected
[interest] because of defendants’ actions, and that the
deprivation occurred without due process of law.’”
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
The Church must also allege that constitutionally-
adequate state law remedies are unavailable.
See id. at 999.
This element is “critically important.”
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.
Church does not satisfy this requirement, the Town is entitled
to summary judgment on the Church’s due process claim.14
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
The 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
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
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
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.
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.
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