Date: 10-21-2020

Case Style:

Case Number: 17-1192

Judge: Howard

Court: United States Court of Appeals for the First Circuit on appeal from the District of New Hampshire (Merrimack County)

Plaintiff's Attorney:

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Defendant's Attorney: Christopher Cole and Megan Carrier, Sheehan Phinney
Bass & Green, PA, Concord, New Hampshire

Description: The Town of Pembroke, New
Hampshire, bans the use of electronic signs in all of its zoning
districts except its commercial district (C1) and certain nearby
areas. In April 2015, Hillside Baptist Church -- located outside
of these areas -- applied for a permit to install an electronic
sign on its property, which would transmit messages provided by
Signs for Jesus, a nonprofit corporation. The Pembroke Zoning
Board of Adjustment (the "Board") denied the permit, citing the
electronic sign provision in the Pembroke Sign Ordinance (PSO).
After a series of unsuccessful administrative appeals,
Signs for Jesus and Hillside Baptist Church (collectively, the
"Church") filed a complaint in district court against Pembroke,
the Board, and Everett Hodge, the Town's Code Enforcement Officer
(collectively, the "Town"), alleging violations of the United
States Constitution, the New Hampshire Constitution, the Religious
Land Use and Institutionalized Persons Act (RLUIPA), and certain
New Hampshire zoning laws. Both parties filed cross-motions for
summary judgment. The court granted the Town's motion and declined
to exercise supplemental jurisdiction over the Church's state
statutory claims. The Church now appeals that ruling. Because we
conclude that the Town has met its summary judgment burden on all
counts, we affirm.
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I.
A. Regulatory Framework
The stated purpose of the PSO is to "[p]romote" street
safety, "[r]educe distractions and obstructions," "[d]iscourage
excessive visual competition," and "[p]reserve or enhance town
character." Pembroke, N.H., Code ch. 143, art. VIII, § 143-57.
To that end, the PSO requires that individuals and businesses
desiring to install signs submit applications for permits to the
Town's Code Enforcement Officer, who is authorized to issue a
permit "only if [he] determines that the sign complies with, or
will comply with all applicable provisions of [the PSO]." Id.
§ 143-59A(3). Certain types of signs, such as political and "for
sale" signs, however, are exempt from the permit requirement. Id.
§ 143-59A(8)(a)-(e).
Regardless of whether a sign is exempt from the permit
requirement, it is always subject to a "Dimensional Table of Signs"
in Section 143-62, which specifies the types of signs that are
allowed in each zone of Pembroke. See id. §§ 143-19, 143-62.
Pursuant to a March 2012 change to the table, at the time of the
Church's application, "Electronic Changing Signs" were banned from
all zones, except in C1 and certain lots "directly abutting
Pembroke Street." Id. § 143-63X.
While the PSO restricts "permitted signs" to signs that
"conform to the provisions of [the sign ordinance]," it specifies
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that two types of signs are always allowed under the PSO. First,
"[s]igns which are required by federal, state or municipal laws"
are categorically allowed under the PSO. Id. § 143-58A.
Additionally, a separate provision allows "non-conforming sign[s]
lawfully existing at the time of adoption" of the PSO to
"continue," unless such signs pose safety problems under the PSO.
Id. § 143-58G(1).
B. Facts and Procedural History
Hillside Baptist Church, located in the Limited Office
(LO) District in Pembroke, displayed a sign on its property that
conveyed religious messages and could be changed manually. In
April 2015, the Church applied for a permit to install an
electronic sign that could be remotely programmed to display
different religious messages each day, with messages provided by
Signs for Jesus.
Hodge denied the Church's application, on the ground
that the Church is located in a zone where electronic signs are
prohibited. At the time, there were three electronic signs on the
same road as the Church. The first was a gas station sign in the
LO district, which predated the adoption of the PSO. The second
was a sign on the property of Pembroke Academy, a public school in
the Residential District, which posted messages advertising school
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events.1 The third sign was a temporary electronic sign, erected
during the summer of 2015 by the New Hampshire Department of
Transportation (NHDOT) to inform motorists of possible
construction delays.2
Following Hodge's denial of its application, the Church
filed an administrative appeal and variance request with the Board.
After a public hearing, the Board denied both the Church's appeal
and its request for a variance. In its Notice of Decision, the
Board emphasized that allowing the electronic sign would "detract
from the rural character of the Route 3 corridor," and noted that
the municipality's interest in maintaining the area's rural
character was "compelling." The Church moved for a rehearing, but
the Board again denied the appeal and variance request in October
2015.
The Church responded to these rejections by filing a
complaint in the district court. After first determining that the
Church had standing to challenge only the electronic sign
provision, the district court granted the Town's motion for summary
1 Pembroke Academy is operated by School Administrative Unit
53, a political subdivision within the state. See N.H. Rev. Stat.
Ann. § 507-B:1.
2 In his declaration submitted to the district court, Hodge
testified that he was aware of "two temporary" NHDOT signs. The
Church mentions only one NHDOT sign in its briefing. Whether NHDOT
erected one or two signs does not affect our analysis of any of
the Church's claims.
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judgment with respect to the Church's constitutional and RLUIPA
claims, and declined to exercise supplemental jurisdiction over
the complaint's state statutory claims. See Signs for Jesus v.
Town of Pembroke, 230 F. Supp. 3d 49, 57-68 & n.14 (D.N.H. 2017).
This appeal followed.
The Church maintains that the court erred in holding
that the PSO does not violate the First Amendment's free-speech
guarantees. As it did in the district court, the Church argues
that it has standing to pursue a First Amendment challenge to the
PSO as a whole, both facially and as applied. And it also contends
that it has standing to challenge the electronic sign provision in
particular, again both facially and as applied.
In addition to its First Amendment claims, the Church
also challenges the district court's dismissal of its claims under
the Federal and New Hampshire equal protection clauses, as well as
its RLUIPA claims. Finally, the Church argues that the district
court erred in declining to exercise supplemental jurisdiction
over its remaining state law claims.
II.
We review a district court's grant of summary judgment
de novo. Specialty Nat'l Ins. Co. v. OneBeacon Ins. Co., 486 F.3d
727, 732 (1st Cir. 2007). In this case, the Church had also filed
its own motion for summary judgment, but "[t]he presence of crossmotions
for summary judgment neither dilutes nor distorts th[e]
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standard of review." Id. (quoting Mandel v. Bos. Phoenix, Inc.,
456 F.3d 198, 205 (1st Cir. 2006)).
A. Standing
Article III, section 2 of the Constitution restricts the
federal judicial power to the resolution of "Cases" and
"Controversies." U.S. Const. art. III, § 2. The "case-orcontroversy"
requirement is satisfied only where a plaintiff has
"standing" to sue. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc.,
554 U.S. 269, 273 (2008). To establish such standing, a plaintiff
must identify an injury in fact that is 1) "concrete,
particularized, and actual or imminent," 2) "fairly traceable to
the challenged action," and 3) "redressable by a favorable ruling."
Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (quoting
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)).
As the party invoking federal jurisdiction, the Church "bears the
burden of establishing these elements." Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
The parties agree that the Church has standing to
challenge the electronic sign provision itself with regard to all
of its claims. In the Church's First Amendment claims in its
appellate briefing, however, the Church focuses on a number of
other regulatory provisions that it contends are content-based.
Those provisions include exemptions from the permitting
provisions, various categories of signs for which special rules
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and conditions apply, and two provisions addressing governmentrelated
signs. And, the Church contends that, in light of these
provisions, the electronic sign provision is itself impermissibly
content-based and is unconstitutional under the First Amendment.
To the extent that the identified exemptions allow a sign to
circumvent the requirements of the electronic sign provision,
there is no standing problem with that contention, as the parties
seem to agree.
Insofar as the Church's argument nevertheless fails,
because even though those exemptions may be content-based they do
not exempt a proposed sign from complying with the electronic sign
provision, the Church appears to have a fallback argument. That
argument suggests that the Church has standing to challenge the
PSO "as a whole" on the basis of the content-based exemptions, no
matter whether those exemptions are relevant to the Town's denial
of the Church's request. Because the Church advances no
affirmative argument that the electronic sign provision is not
severable from different parts of the PSO that may be contentbased,
though, it has no standing to challenge those provisions on
this basis.3 See Ayotte v. Planned Parenthood of N. New Eng., 546
3 To the extent the Church relies in arguing otherwise
on Reed v. Town of Gilbert, 576 U.S. 155 (2015), which did not
address standing, it is mistaken. In Reed, a church pastor was
cited for violating a sign ordinance that treated signs differently
based on the content of their message. 576 U.S. at 160-61. It
was clear in Reed that if the communicative content of the pastor’s
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U.S. 320, 328-29 (2006) ("[W]hen confronting a constitutional flaw
in a statute, . . . . [w]e prefer to . . . sever its problematic
portions while leaving the remainder intact . . . ."); Sabri v.
United States, 541 U.S. 600, 609-10 (2004) (expressing disapproval
of facial challenges "of th[e] sort" where a party claims "the
statute could not be enforced against him, because it could not
[constitutionally] be enforced against someone else").
The Church also challenges the electronic sign provision
facially on the ground that it confers unbridled discretion to the
Town to determine which signs to deem as electronic changing signs
subject to the strictures of the provision.4 See City of Lakewood
sign had been different, the town there would have subjected the
sign to more favorable treatment. Id. For that reason, the
pastor's injury was fairly traceable to the disparate treatment of
his sign relative to other signs falling within the ordinance's
various other content-based sign categories, and thus invalidation
of the ordinance as a whole would have redressed the
injury. See id. at 164 ("The restrictions in the Sign Code that
appl[ied] to any given sign . . . depend[ed] entirely on the
communicative content of the sign."). Here, by contrast, the
plaintiff's injury is fairly traceable only to the electronic sign
provision itself, because that provision barred the plaintiff's
sign regardless of whether or not any of the other allegedly
content-based provisions of the PSO also applied to the
sign. Cf. Maverick Media Grp., Inc. v. Hillsborough County, 528
F.3d 817, 820 (11th Cir. 2008) ("[A] plaintiff whose sign permit
applications were denied on the basis of one provision in a
county's sign ordinance, but which could have been denied on the
basis of some alternate, but unchallenged regulation, does not
have a redressable injury.").
4 While the Church cannot bring this challenge as-applied,
because its challenge targets the nature of the discretionary
authority delegated to the Town rather than its specific denial of
the Church's request to put up its proposed sign, the Church has
made a claim that the electronic sign provision is facially invalid
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v. Plain Dealer Publ'g Co., 486 U.S. 750, 758-59 (1988). It has
standing to do so. See Van Wagner Bos., LLC v. Davey, 770 F.3d
33, 39 (1st Cir. 2014) ("City of Lakewood does not require a
plaintiff to identify instances of self-censorship or contentbased
decisionmaking before a facial challenge may be
mounted. . . . Rather, the federal cases all are in harmony with
the Supreme Court's presumption that regulatory schemes exhibiting
the features it identified pose those threats."). Insofar as that
argument fails, the Church also appears to contend that it has
standing to challenge the PSO as a whole facially due to other
provisions in the PSO that themselves confer unbridled discretion
to the Town to determine which signs to allow. But, so long as
those provisions are unrelated to the denial of the Church's sign
request, we do not see how the Church could have standing to
challenge them, for, again, the Church fails to develop any
argument for why these provisions are not severable from the
electronic sign provision that formed the basis of the Town's
denial of the Church's request. See Sabri, 541 U.S. at 609-10.
Keeping these limitations on the scope of the Church's
standing to challenge different portions of the PSO in mind, we
proceed to consider the Church's First Amendment challenges to the
PSO.
as a conferral of unbridled discretion. See City of Lakewood, 486
U.S. at 758-59.
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B. Content-Based Speech Restriction Claim
The Church first challenges the electronic sign
provision as an unconstitutional restriction on its freedom of
speech. The First Amendment, which applies to the states through
the Fourteenth Amendment, provides that "Congress shall make no
law . . . abridging the freedom of speech." U.S. Const. amend. I.
Evaluating the constitutionality of a speech restriction first
requires a determination about whether the restriction is content
based or content neutral. Reed, 576 U.S. at 165. "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." Id. at 163. Such speech restrictions are
subject to strict scrutiny, which requires the government to
demonstrate that the restriction advances a "compelling interest"
and is "narrowly tailored to achieve that interest." Id. at 171
(quoting Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564
U.S. 721, 734 (2011)).
Content-neutral regulations, by contrast, "serve[]
purposes unrelated to the content of expression," and are subject
to intermediate scrutiny which requires that the restrictions be
"narrowly tailored to serve a significant governmental interest,
and that they leave open ample alternative channels for
communication of the information." Ward v. Rock Against Racism,
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491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984)).
But speech restrictions that are facially contentneutral
are considered content-based and thus subject to strict
scrutiny if they exhibit a speaker preference that "reflect[s] 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)." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622,
658 (1994); see Reed, 576 U.S. at 163-64. To show that a facially
content-neutral regulation is subject to strict scrutiny, the
plaintiff must show not only that the restriction distinguishes
between speakers, but also that it "reflects a content preference."
Reed, 576 U.S. at 170 (quoting Turner, 512 U.S. at 658); see also
Ward, 491 U.S. at 791 ("A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others.").
Thus, where the evidence indicates that the challenged regulation
was enacted to advance a purpose unrelated to content preference,
it is subject only to intermediate scrutiny. See Turner, 512 U.S.
at 658-59 (rejecting the application of strict scrutiny to a law
preferring broadcasters over cable programmers where its purpose
was to promote economic growth for struggling broadcast stations).
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1.
The parties agree that the electronic sign provision
itself is a facially content-neutral restriction. The Church
contends, however, that a number of other provisions in the PSO
are content-based. Because, as we have explained, the Church only
has standing to challenge those other provisions if it is correct
that they excuse a speaker from complying with the electronic sign
provision, we first consider whether the Church correctly
characterizes the allegedly content-based exemptions as limiting
the applicability of the electronic sign provision.
On the Church's own account, a number of these exemptions
are exemptions from the permit requirement in Section 143-59 of
the PSO. The Church makes no sustained argument, however, that
this section of the PSO sets forth any exemption that spares a
sign from having to comply with the electronic sign provision.
Moreover, the plain text of the PSO indicates that the electronic
sign provision applies notwithstanding whether any of the
exemptions set forth in Section 143-59 apply. For, while Section
143-59 specifically exempts certain signs "from the permitting
requirements," it does not exempt them from any other PSO
provisions, such as the electronic sign provision. Bolstering
this reading, both before the district court and in this court,
the Town has maintained that the electronic sign provision is
"entirely independent" of the permit requirement from which
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Section 143-59 sets forth exemptions. See Sullivan v. City of
Augusta, 511 F.3d 16, 26-27, 29 (1st Cir. 2007) (deferring to a
city's interpretation of the applicability of an ordinance where
it was supported by the plain text of the statute and was not
contradicted by any evidence in the record).5
Most of the remaining provisions that the Church
characterizes as content-based are provisions in Section 143-63 of
the ordinance that lay out different categories of signs and the
special conditions that apply to them, as well as corresponding
provisions in Section 143-62 that describe the dimensional
requirements for each such category of sign. Because the
electronic sign provision falls within these sections of the PSO
and itself lays out special rules for "electronic changing signs,"
the Church contends that, in determining that its proposed sign
was an electronic changing sign, the Town necessarily determined
that its sign did not belong to any of the allegedly content-based
categories of signs identified in Section 143-63. Had it
determined otherwise, the Church suggests, the Town could not have
deemed the Church's sign to be an electronic changing one.
Here too, though, the plain text of the PSO stands in
the Church's way. Nothing in the PSO precludes a sign from being
5 The Church makes no argument that being subjected to the
permitting process itself constitutes an injury for standing
purposes even though its proposed sign is prohibited no matter
whether it is subject to that process or not.
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both an "electronic changing sign" and, for instance, a "Political
Sign" or a "For Sale" sign under Section 143-63. If a sign falls
under one of these allegedly content-based categories and is also
an electronic changing sign, moreover, there is no indication in
the ordinance that the sign is exempt from satisfying the
requirements of the electronic sign provision. In accordance with
this reading of the PSO, the Town represents that if a sign meets
the definition of an electronic changing sign, "it is an Electronic
Sign, irrespective of the content of its message." We thus accept
the Town's reasonable reading of its law. See Sullivan, 511 F.3d
at 26-27.
There is one provision in Section 143-63 that bears
additional discussion. That provision is the PSO's "public service
exception," which not only identifies a category of sign and
subjects it to special rules but also provides that "temporary
governmental agency signs which carry public-service announcements
and notices may be permitted to exceed the dimensional requirements
of [the PSO]." Pembroke, N.H., Code ch. 143, art. VIII, § 143-
63P. Here, too, the Church asserts that the provision is
impermissibly content-based. But, we conclude that this
provision, like the others in Section 143-63, does not excuse a
sign from compliance with the electronic sign provision.
That exemption, by its own terms, only enables the
government to "exceed . . . dimensional requirements" that would
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otherwise constrain its choice of signage. Id. Despite its easing
of these "dimensional" rules, as with the permitting exceptions
and the other provisions for special categories of signs, the
public service announcement provision does not negate the
government's obligation to comply with non-dimensional aspects of
the PSO. As the Town represented to the district court, this
provision thus does not "create an 'exemption' from the restriction
on electronic signs." If a qualifying public service announcement
were "displayed as an electronic sign," according to the Town, it
"would still be banned at the Church's location."
To be sure, the restrictions on electronic signs are
regulated in part in a section of the PSO labeled "Dimensional
Table of Signs." But, we see no reason to think that the Town's
representation to us that the restrictions are not "dimensional
requirements" that temporary public service announcements may
exceed is incorrect. Nor does the Church mount an argument for
why the Town's reading of the PSO on this point is implausible.
Indeed, in its opening brief, it simply brushes past the question
by omitting the portion of the ordinance that references
"dimensional requirements" altogether. And, thus, we accept the
Town's reading of its own ordinance, see Sullivan, 511 F.3d at 30,
particularly as it avoids a constitutional concern that the
contrary reading would create.
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The final exception that we need to address that the
Church contends is content-based does not appear in either Section
143-59's permitting provisions or Section 143-63's special
provisions.6 That exception states, without qualification, that
"[s]igns which are required by federal, state or municipal laws
are permitted." Pembroke, N.H., Code ch. 143, art. VIII, § 143-
58A. The Town argues that there is no textual basis in the
ordinance for concluding that these signs are allowed without the
signs having to "conform to the provisions [applicable to other
signs]," id., but we are not convinced.
Rather than specifically referencing signs required by
law, the "conform to" language caveats a different sentence of the
ordinance, which reads in full as follows: "Only 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. (emphasis added). While the required-by-law exemption appears
in the same subsection of the ordinance as the provision with the
6 At oral argument, the Church suggested that it had standing
to challenge yet other exemptions in the PSO related to electronic
signs, namely, the time and temperature exceptions and the
provisions allowing holiday lights. These arguments, however,
were only cursorily mentioned in the briefs and are accordingly
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
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language regarding conformance with the provisions of the article,
the required-by-law exemption is codified in a sentence that is
displayed in a box separated off from the rest of the text of the
ordinance, including the conformance language that the Town reads
as qualifying the exception. Thus, there is no reason to conclude
that signs required by law, which the ordinance generally deems to
be "permitted," are only "permitted" if they "conform to the
provisions of this article." Such signs are allowed even if they
violate the electronic sign provision, and the ordinance draws a
distinction in its application of the electronic sign provision
between signs required by law and the sign the Church requested to
display. Even with the limitations on the scope of the Church's
challenge that we have recognized, then, the Church may challenge
the electronic sign provision as expressing a preference for
government speakers based on this assertedly content-based
exemption from it.
2.
The Church contends that the required-by-law exception
to the electronic sign provision reflects an impermissible
preference for government speech. The district court concluded
that the required-by-law exception did not reflect a content
preference, however, and proceeded to apply intermediate scrutiny.
We agree with the district court's approach.
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We have previously found that a broader exemption for
government signage did not render an otherwise content-neutral
ordinance to be content-based. See John Donnelly & Sons v.
Campbell, 639 F.2d 6, 8-9 & n.4 (1st Cir. 1980) (holding that a
sign ordinance was content neutral despite excepting "[s]igns of
a duly constituted governmental body"). In Campbell, we reasoned
that the government signage exception reflected an "appropriate
governmental interest" and was "justified by sheer public
necessity." Id. at 9 (first quotation quoting Police Dep't of
Chi. v. Mosley, 408 U.S. 92, 95 (1972)).
We can identify no reason to reach a contrary conclusion
here. The exemption for signs required by state law appears
primarily intended to codify the New Hampshire state government's
general exemption from local zoning ordinances. See Region 10
Client Mgmt., Inc. v. Town of Hampstead, 424 A.2d 207, 209 (N.H.
1980) ("[Z]oning restrictions do not apply to the State or its
agencies 'unless the legislature has clearly manifested an intent
that they shall.'") (quoting City of Portsmouth v. John T. Clark
& Son, Inc., 378 A.2d 1383, 1384 (N.H. 1977)). Moreover, this
state government exemption from local zoning ordinances extends to
other government subdivisions, including school districts. See
City of Manchester Sch. Dist. v. City of Manchester, 843 A.2d 966,
972 (N.H. 2004) ("[T]here is a comprehensive statutory scheme that
evidences a legislative intent not to permit municipalities to
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exercise broad control over the establishment, powers and
functioning of school districts."). The underlying purpose of the
state law exemption is to allow New Hampshire to carry out
"legitimate state functions," unimpeded by the cost of complying
with the variable signage restrictions across different
municipalities and zones within those municipalities. Region 10
Client Mgmt., Inc., 424 A.2d at 209 (quoting John T. Clark & Son,
Inc., 378 A.2d at 1384-85).
To the extent that the ordinance also exempts signs that
state or federal law requires non-governmental entities to
display, moreover, it merely reflects the limits of the Town's
authority to regulate behavior that these other governmental
entities require. See Prolerized New Eng. Co. v. City of
Manchester, 103 A.3d 217, 221 (N.H. 2014) (holding that a local
ordinance is preempted where it "permits that which a State statute
prohibits or vice versa" (quoting N. Country Envtl. Servs. v. Town
of Bethlehem, 843 A.2d 949, 954 (N.H. 2004))); Hillsborough Cnty.
v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (noting
that state law must give way when "compliance with both federal
and state regulations is a physical impossibility" and that "for
the purposes of the Supremacy Clause, the constitutionality of
local ordinances is analyzed the same way as that of statewide
laws" (first quoting Fla. Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142-43 (1963))). And, while we note that the PSO
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exception for legally required signs extends to signs required by
"municipal laws" as well as state and federal laws, we read the
reference to "municipalities" in the required-by-law exemption to
only reflect that fact that, as we have noted, state law prohibits
the Town from regulating the land use of other municipalities,
like school districts. In line with this reading, the Church fails
to identify any laws imposed by the Town of Pembroke itself that
would require the use of electronic signs that would otherwise
violate the terms of the PSO, much less any specific signs that
are required by such laws.
It is true that Campbell predates the Court's decision
in Reed, which held that facially content-discriminatory laws
cannot be content-neutral. See 576 U.S. at 165-66. But, while
the law at issue in Campbell was speaker-based, it was contentneutral
on its face, see 639 F.2d at 8-9 & n.4, and Reed recognized
that such laws are only subject to strict scrutiny when the
speaker-based discrimination "reflects a content preference," 576
U.S. at 170 (quoting Turner, 512 U.S. at 658). Thus, Campbell's
holding on this point remains good law.
Accordingly, because the exception for legally required
signs only reflects the existence of external limits on the Town's
power to regulate the signs displayed or required by other
governments, it is neither speaker-based nor content-based. The
Town has applied the electronic sign provision equally to all signs
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that are within its power to regulate; the required-by-law
exception merely acknowledges a legal limit to the scope of that
power.
3.
Separate from any exemptions in the PSO itself, the
Church argues that restricting the allowance of electronic signs
to the C1 district -- and requiring churches to apply for variances
in order to locate in that district -- reflects a preference for
commercial speech and thus is content-based in that respect. But,
the Town's treatment of electronic signs by the Town's zoning
scheme is not a content-based or speaker-based restriction,
because it applies equally to all property owners within their
given area of the Town. All property owners within the C1 district
and certain nearby lots abutting Pembroke Street, including the
two churches that have applied for and received variances to locate
in the C1 district, can display electronic signs adhering to
certain requirements on their property. All property owners
outside those areas cannot. Thus, the ordinance simply imposes a
location-based restriction on speech.
We recognize that a location-based restriction on
speech, like other facially content-neutral laws, may be treated
as content-based if it "cannot be 'justified without reference to
the content of the regulated speech,' or [was] adopted by the
government 'because of disagreement with the message [the speech]
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conveys,'" Reed, 576 U.S. at 164 (second set of alterations in
original) (quoting Ward, 491 U.S. at 791). But, here, the Church
develops no argument for why the locational rules imposed on
churches are a pretext for the Town to regulate the content of
speech with regard to the use of electronic signs. Thus, this
aspect of the Town's ordinance is also a content-neutral time,
place, and manner restriction on speech, which we subject to
intermediate scrutiny. See Ward, 491 U.S. at 791.
C. Time, Place, and Manner Speech Claim
The electronic sign provision withstands intermediate
scrutiny because it is "narrowly tailored to serve a significant
governmental interest." Ward, 491 U.S. at 796 (quoting Clark, 468
U.S. at 293). With respect to the Church's proposed sign, the
Town asserts an interest in "preserv[ing] the existing
neighborhood characteristics and aesthetics, including the rural
and natural look of [Pembroke]."7 It is well established that, in
the realm of content-neutral regulations, aesthetic concerns are
significant governmental interests. See Members of City Council
of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805-06 (1984);
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981);
7 The district court considered the Town's traffic safety
concerns as well, but the Town concedes that traffic safety was
not at issue with the Church's proposed sign. Because the Church
is pressing an as-applied challenge here, we accordingly focus on
the Town's asserted aesthetic interest.
- 24 -
Naser Jewelers, Inc. v. City of Concord, 513 F.3d 27, 34 (1st Cir.
2008).
We hold that the electronic sign provision is narrowly
tailored to achieve this stated goal. A speech restriction is
sufficiently narrowly tailored so long as the "regulation promotes
a substantial government interest that would be achieved less
effectively absent the regulation." Ward, 491 U.S. at 799 (quoting
United States v. Albertini, 472 U.S. 675, 689 (1985)). Here, we
can identify no basis to doubt that the Town's interest in
maintaining its "quaint little New England village" aesthetic
would be achieved less effectively without the electronic sign
provision. See Naser, 513 F.3d at 35 (concluding that the city's
goal of "not rendering [its] visual image and community character
to be that of a potential Times Square" would be achieved "far
less effectively" absent its ban on electronic messaging signs)
(alteration in original).
The Church maintains that the scope of the electronic
sign provision nonetheless renders it unconstitutional. It first
argues that the provision is underinclusive because the PSO allows
property owners to erect "less aesthetically pleasing" signs --
"sandwich board signs" and "neon signs" among them -- without
obtaining a permit. However, the First Amendment does not require
that a municipality, in advancing its aesthetic interests through
a content-neutral regulation, eliminate all possible sources of
- 25 -
visual blight. See Metromedia, 453 U.S. at 511 (concluding that
an ordinance allowing onsite advertising while banning offsite
advertising satisfied intermediate scrutiny); Vincent, 466 U.S. at
811 ("[T]he validity of the esthetic interest in the elimination
of signs on public property is not compromised by failing to extend
the ban to private property."). Here, as the district court
explained, in banning electronic signs outside of the commercial
district, Pembroke has made a reasonable attempt to balance its
aesthetic interest with a countervailing interest in economic
development. Such a balance does not upset narrow tailoring. See
Metromedia, 453 U.S. at 511.
We likewise reject the Church's argument that the
electronic sign provision is unconstitutional because it is
overinclusive. Although the Town may not "burden substantially
more speech than is necessary to further [its] legitimate
interests," it need not choose the least restrictive means
possible, as "the 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." Ward, 491
U.S. at 799-800.8
8 We reject the Church's invitation, drawing from language in
McCullen v. Coakley, 573 U.S. 464, 495 (2014), to require the Town
to "affirmatively prove that less restrictive measures have been
tried." In both McCullen and Rideout v. Gardner, 838 F.3d 65 (1st
Cir. 2016), another case upon which the Church relies, the
connection between the speech restriction and the asserted
- 26 -
Moreover, the electronic sign provision leaves open
"alternative channels for communication." Ward, 491 U.S. at 791.
To assess whether the alternatives are adequate, we examine "the
ability of a party to disseminate its message to the same general
audience despite the restrictions at issue." Sullivan, 511 F.3d
at 49 (Lipez, J., dissenting in part). Here, the Church remains
free to communicate its religious messages to passers-by through
its existing, manually changing sign, or through any other nonelectronic
sign. We doubt that the Church's inability to
communicate the same message to the same audience through an
electronic sign frustrates its goals, particularly where, as here,
the Church has proposed a static electronic sign that "will not
flash or scroll." Although the Church maintains that an electronic
sign would be a more convenient means of achieving its goals,
"[t]he First Amendment does not guarantee a right to the most costeffective
means of distribution." Globe Newspaper Co. v. Beacon
Hill Architectural Comm'n, 100 F.3d 175, 193 (1st Cir. 1996)
governmental interest was more tenuous. See McCullen, 573 U.S. at
494-95, 497 (striking down a buffer zone around abortion clinics
statewide when "the problem appears from the record to be limited
principally to [a single] clinic on Saturday mornings [and] the
police appear perfectly capable of singling out lawbreakers");
Rideout, 838 F.3d at 73 (striking down New Hampshire's ban on
"ballot selfies" enacted for purposes of reducing voter fraud and
coercion despite the fact that the state "ha[d] not received any
complaints of vote buying or voter intimidation since at least
1976"). Here, the connection between an electronic sign ban and
an interest in preserving a town's rural character is immediately
apparent.
- 27 -
(upholding ban on newspaper racks despite the higher cost of
employing street vendors). Because the electronic sign provision
is narrowly tailored to further the Town's aesthetic interest and
leaves open ample alternative channels for communication, we
affirm the district court's entry of summary judgment on the
Church's free speech claim in favor of the Town.
D. Unbridled Discretion Claim
There remains one loose end. As we noted before, the
Church contends that various provisions of the PSO "grant[]
unbridled discretion to determine which signs are and are not
permitted without narrow, objective and definite criteria."
However, as we have already explained, the Town denied the Church's
sign on the basis of its status as an electronic changing sign,
and the other provisions that the Church identifies as conferring
unbridled discretion do not enable the Town to allow a sign that
would otherwise be barred by the electronic sign provision. Nor,
as we have already noted, does the Church make any argument that
the electronic sign provision would not survive even if the other
provisions were invalidated on this ground. Thus, we narrow our
focus to the electronic sign provision itself.
That provision describes the "Electronic Changing Signs"
it regulates as follows:
Electronic Changing Signs include, but are not
limited to, electronic message center (EMC),
electronic message sign (EMS), and changeable
- 28 -
copy board (CCB) signs that display
illuminated messages that can change
frequently, can flash, display and/or convey
messages in text, graphics, pictures, symbols,
multiple colors, rhythms, animation, and/or
patterns. This sign's message may be changed
by the electronic switching of lamps,
illuminated tubes, bulbs, and/or through the
apparent movement of light. These signs are
capable of storing and/or displaying single or
multiple messages in various formats at
varying intervals.
Pembroke, N.H., Code ch. 143, art. VIII, § 143-63X. The Church
contends that the provision's use of the "include, but are not
limited to" language gives the Town overly broad discretion to
determine what constitutes an electronic changing sign. And, it
argues, the Town's treatment of the Church's proposed sign, which
the Church characterizes as "static" and not "changing," as falling
under the scope of the statute is evidence of the standard-less
discretion that the Town has to treat proposed signs as prohibited
electronic changing signs.
The Supreme Court has long recognized that "a licensing
statute placing unbridled discretion in the hands of a government
official or agency constitutes a prior restraint." City of
Lakewood, 486 U.S. at 757. The mere existence of some measure of
discretion in implementing a licensing regime, however, does not
render such a regime constitutionally suspect. Rather, "perfect
clarity and precise guidance have never been required even of
regulations that restrict expressive activity," and accordingly,
- 29 -
the Court has upheld even standards for regulating expression that
are "undoubtedly flexible" and require officials to "exercise
considerable discretion." Ward, 491 U.S. at 794.
Here, the Town's ordinance quite specifically lays out
the criteria used to determine whether a sign is an electronic
changing sign. These criteria are, as the District Court found,
objective ones. It is clear, for instance, that a sign using light
bulbs that turn on and off to display a rotating series of textual
messages over the course of a day would constitute an electronic
changing sign. Moreover, given the well-defined examples that the
ordinance identifies as electronic changing signs, we do not read
the "including, but . . . not limited to" language in the ordinance
as a free-floating grant of authority to treat any sign as
potentially falling within the scope of the ordinance, but instead
as reaching only other signs similar to the ones specifically
identified. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105,
114–15, 121 (2001) ("[W]here general words follow specific words
in a statutory enumeration, the general words are construed to
embrace only objects similar in nature to those objects enumerated
by the preceding specific words.") (quoting 2A N. Singer,
Sutherland on Statutes and Statutory Construction § 47.17 (1991)).
The Church contends that the Town's application of the
electronic sign provision to the Church's proposed sign, which the
Church characterizes as "static," demonstrates that the Town's
- 30 -
reading of the statute must not be so limited, as the Church asks
us to conclude that the Church has not proposed a "changing" sign
within the meaning of the statute. But, despite its
characterization of its own sign, the Church concedes that its
proposed sign could "change" as often as once per day, which puts
it squarely within the scope of the ordinance. The Church also
fails to identify any other reason to suspect the Town applies its
statute in anything but the commonsense way we do here. Thus, we
see no reason to think that the Town, in reviewing proposed signs
under the electronic sign provision, exercises the sort of
unfettered discretion that the First Amendment prohibits.
E. RLUIPA Claims
The Church brings two distinct claims under RLUIPA on
appeal, the first under the "equal terms" provision, and the second
under the "substantial burden" provision.
1. Equal Terms
The "equal terms" provision of RLUIPA 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). The first step in the RLUIPA "equal
terms" analysis is to identify a relevant secular comparator.
Although several circuits have articulated different approaches,
they all generally require that the comparators be similarly
- 31 -
situated with respect to the purpose of the underlying regulation.
See, e.g., Lighthouse Inst. for Evangelism, Inc. v. City of Long
Branch, 510 F.3d 253, 268 (3d Cir. 2007) ("[A] religious plaintiff
under the Equal Terms Provision must identify a better-treated
secular comparator that is similarly situated in regard to
the objectives of the challenged regulation") (emphasis in
original); River of Life Kingdom Ministries v. Village of Hazel
Crest, Ill., 611 F.3d 367, 371 (7th Cir. 2010) (en banc) (holding
that plaintiff must point to a similarly situated comparator with
respect to "zoning criteria") (emphasis removed).
The Church points to Pembroke Academy and NHDOT as
comparators.9 Both were allowed to erect electronic signs in the
LO (Limited Office) district. However, the district court rejected
Pembroke Academy and NHDOT as viable comparators "because the state
has deprived the Town of any power to regulate governmental land
uses." Signs for Jesus, 230 F. Supp. 3d at 67 (citing Primera
Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County,
9 Before the district court, the Church offered the filling
station in the LO district as a comparator but does not pursue
that argument here. In its briefing, the Church also posits that
commercial entities allowed in the C1 zone are comparators.
However, entities located in the C1 zone are subject to completely
different zoning restrictions, which would disqualify them as
comparators under any formulation of the test. Moreover,
distinguishing between commercial and non-commercial entities is
an "accepted zoning criterion." River of Life, 611 F.3d at 373.
- 32 -
450 F.3d 1295, 1311 (11th Cir. 2006)). Here, too, we agree with
the district court.
The Town's power to regulate land use is derived from
the state. See N.H. Rev. Stat. Ann. § 674:16; John T. Clark &
Son, Inc., 378 A.2d at 1384 ("Cities and towns have only such
powers as are granted to them by the state."). But the Town's
regulatory power, as mentioned above, does not extend to regulating
governmental land uses, which include any governmental use of land
owned or occupied by the state or school district "for any public
purpose which is statutorily or traditionally governmental in
nature." N.H. Rev. Stat. Ann. § 674:54. Accordingly, the PSO's
exemption for legally-required signs merely reflects Pembroke's
lack of authority to regulate governmental land use.
The Church is not similarly situated with Pembroke
Academy and NHDOT because it is not a governmental entity and its
proposed sign is not for a public purpose that is statutorily or
traditionally governmental in nature. The Church and its sign are
therefore subject to the Town's regulatory authority, while
Pembroke Academy and NHDOT are not. While we agree with the Church
that all three entities may be alike in that their signs affect
the aesthetic landscape in the LO district in a similar way, the
parties are not appropriate comparators for purposes of the RLUIPA
- 33 -
equal terms analysis because only the Church is subject to the
regulatory authority of the Town.10
This analysis accords with the Eleventh Circuit's
decision in Primera. There, the Eleventh Circuit held that a
church that was denied a variance was not similarly situated to a
school that had been granted rezoning because the entities sought
relief from different governing bodies (the school from the zoning
board, and the church from the board of adjustment) and sought
different forms of relief (rezoning versus a variance). 450 F.3d
at 1311-12. Given these differences in regulatory schemes, the
court held that the church and the school were not appropriate
comparators under RLUIPA. Id. at 1313-14.
The Church also puts forth no evidence that a nongovernmental
secular entity is treated on other than equal terms,
in light of the PSO's objectives. Absent the existence of such a
similarly-situated comparator, the Church's equal terms claim
10 The Church cites Digrugilliers v. Consol. City of
Indianapolis, 506 F.3d 612 (7th Cir. 2007), for the proposition
that the Town is an instrumentality of the state and therefore we
must look to the combined effect of the state and municipal law to
appreciate the RLUIPA violation. But, Digrugilliers was not
engaged in looking for an appropriate comparator under the RLUIPA
equal terms analysis as we are here. Moreover, as the district
court noted, Digrugilliers "in no way calls into question" the
principle that entities who are subject to different regulatory
schemes and decision-making bodies are not similarly situated.
See Signs for Jesus, 230 F. Supp. 3d at 68 n.12. Without a
similarly-situated comparator, our RLUIPA equal terms analysis is
halted.
- 34 -
fails. See River of Life, 611 F.3d at 373 ("[I]f religious and
secular land uses . . . are treated the same . . . that is enough
to rebut an equal-terms claim."). We thus hold that the district
court correctly entered summary judgment on the Church's RLUIPA
equal terms claim.
2. Substantial Burden
We proceed to the Church's next RLUIPA challenge, that
the electronic sign provision imposes a substantial burden on its
religious exercise. RLUIPA provides:
No government shall impose or implement a land use
regulation in a manner that imposes a substantial
burden on the religious exercise of . . . a religious
assembly or institution, unless the government
demonstrates that imposition of the burden . . . is
in furtherance of a compelling governmental
interest; and is the least restrictive means of
furthering that compelling governmental interest.
42 U.S.C. § 2000cc(a). Although the statute does not define
"substantial burden," we have applied a "common-usage
understanding[]" of its terms. Roman Catholic Bishop of
Springfield v. City of Springfield, 724 F.3d 78, 95 (1st Cir.
2013). A "burden" is "[s]omething that hinders or oppresses," or
"something oppressive or worrisome," while something "substantial"
is "important" or "significantly great." Id. at 96 (alterations
in original) (citations omitted).
We have outlined factors that are helpful in determining
whether a particular regulation imposes a substantial burden:
- 35 -
1) "whether the regulation at issue appears to target a religion
. . . because of hostility to that religion itself"; 2) whether
the regulation was "imposed on the religious institution
arbitrarily, capriciously, or unlawfully"; and 3) "whether local
regulators have subjected the religious organization to a process
that may appear neutral on its face but in practice is designed to
reach a predetermined outcome contrary to the group's requests."
Id. at 96-97 (citations omitted).
The Town contends that any "inconvenience" the
electronic sign provision imposes on the Church cannot be
"significant enough to rise to the level of a 'substantial burden'
as contemplated by RLUIPA." After all, requiring the Church to
continue using a manually changeable, non-electronic sign is
hardly an "oppressive" imposition on the Church's religious
exercise. Roman Catholic Bishop of Springfield, 724 F.3d at 95;
see Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338,
349 (2d Cir. 2007) ("There must exist a close nexus between the
coerced or impeded conduct and the institution's religious
exercise for such conduct to be a substantial burden on that
religious exercise"); Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1227 (11th Cir. 2004) ("'[S]ubstantial burden'
requires something more than an incidental effect on religious
exercise."). As we discussed in the free-speech context, though
an electronic sign may be more convenient, the Church nonetheless
- 36 -
remains free to convey its desired messages to the same audience.
See id. at 99 ("[T]he mere existence of some expenses does not put
'substantial pressure on [the religious institution] to modify its
behavior'") (quoting Bethel World Outreach Ministries v.
Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir. 2013)); Civil
Liberties for Urban Believers v. City of Chicago, 342 F.3d 752,
761-62 (7th Cir. 2003) (holding that law created no substantial
burden under RLUIPA even though plaintiff churches "expended
considerable time and money" to relocate to certain districts).
But, we need not resolve this case on this ground because
the Church does not contend that the extent of the burden imposed
by the electronic sign provision, standing alone, constitutes a
RLUIPA violation. Instead, the Church focuses its argument on the
third factor we have identified as an indicator of the
substantiality of the burden imposed on a religious institution,
as it contends that the Board "prejudged" its application before
denying the Church's permit at the public hearing.11
The Church's theory of prejudgment hinges largely on
actions that Hodge and members of the Board took prior to the
11 In a footnote, the Church makes reference to the other two
factors, arguing that prohibiting churches from the C1 district
"targets religious signs" and that the PSO vests "unbridled
discretion" in the Code Enforcement Officer to determine whether
certain signs are eligible for exemptions. Not only are these
arguments underdeveloped and thus waived, but they also target
provisions of the PSO that the Church does not have standing to
challenge. See supra Part II.A.
- 37 -
Board's meeting in October of 2015. The record indicates the
following facts that the Church identifies as supporting its
position.
A week before that meeting, Hodge and the chair and vice
chair of the Board, William Bonney and Bruce Kudrick, met with a
lawyer to discuss the Church's application for a variance. Bonney
and Kudrick were the only Board members present at the meeting, in
order (according to Bonney's deposition), to avoid triggering the
requirements for a public meeting. Such a pre-meeting gathering
was "rare," and Bonney could not remember any similar ones during
his thirty years on the Board. At the meeting, on request the
attorney provided the Board members a draft motion that would deny
the Church's request. He did not pass on an equivalent draft of
a motion for approval.
But, while the Church argues that, on the basis of this
evidence, a jury could find that the Board was colluding to deny
the Church a permit prior to its October meeting, the evidence
could not support that inference. Bonney testified that the
purpose of drafting the motion to deny was to ensure that the Board
"knew the motion that we had to make if we were going to deny,"
and he further testified that he "didn't know whether we were going
to approve or deny [the request] until the end of the meeting."
(emphasis added). The Church identifies nothing in the record
that would suggest that the Board's explanation for this meeting
- 38 -
was false or that the Board otherwise prejudged the outcome of the
Church's request. As Bonney testified, the Board consulted with
an attorney because the Church had hired "expensive counsel," who
had noted that the Church's request implicated issues of federal
law and, again, no evidence contradicts that assertion. Thus, a
juror would have nothing but speculation to rely on to conclude
that the purpose of the meeting was not, as Bonney testified, to
discuss "matters that were outside [the Board's] normal
jurisdiction," namely issues related to RLUIPA, which the Board
members considered to be more complicated than the standard
variance factors that usually guided their decisions.
Accordingly, the fact that the Board had counsel ready
is not a basis on which a jury could conclude that the Board
improperly prejudged the decision. Likewise, Bonney's
uncontradicted deposition testimony was that the Board members
only received a draft motion regarding denial, not approval,
because a motion for approval would have been simple to draft:
"you have to state the reasons for denial" but "you don't have to
state the reasons for approval." The Church again fails to note
anything in the record that would provide a juror with a reasonable
basis to dispute that conclusion.
The Church separately alleges that "the Town doctored
the minutes" of the October meeting, which it apparently views as
evidence in support of its theory that the Board's denial of the
- 39 -
Church's request for a variance was pre-determined. But, it
neither explains what discrepancies exist between the actual
events at the meeting and the recorded minutes nor why any such
discrepancies could be best explained by deliberate "doctor[ing]."
To the extent such doctoring occurred, the Church also fails to
explain how it would be indicative of a pre-cooked resolution of
the Church's request for a variance. Thus, we treat this aspect
of the Church's challenge as waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
F. Equal Protection
The Church next asserts that the Town's disparate
treatment of its sign violates equal protection guarantees under
both the New Hampshire and United States Constitutions. See N.H.
Const. pt. 1, art. 2; U.S. Const. amend. XIV. Because the
framework used for evaluating claims raised under the Equal
Protection Clause of the National Constitution mirrors that used
for evaluating claims raised under the equivalent guarantee in the
New Hampshire Constitution, we address both claims together. See
In re Sandra H., 846 A.2d 513, 517 (N.H. 2004).
An equal protection claim first requires identifying a
similarly-situated individual who has been subject to a different
classification, and thus different treatment, under the relevant
- 40 -
law. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985); In re Sandra H., 846 A.2d at 518. If the plaintiff
identifies an appropriate comparator, we then determine the
appropriate level of scrutiny. Under both federal and New
Hampshire law, classifications based on suspect classes such as
"race, alienage, or national origin," or those affecting certain
fundamental rights are subject to strict scrutiny. See City of
Cleburne, 473 U.S. at 440; In re Sandra H., 846 A.2d at 517. Under
New Hampshire law, classifications that implicate an "important
substantive right," including "the right to use and enjoy private
real property subject to zoning regulations," engender
intermediate scrutiny. Petition of Hamel, 629 A.2d 802, 804 (N.H.
1993); see also In re Sandra H., 846 A.2d at 517-18.
Here, the district court found that the Church's equal
protection claims "fail[ed] as a threshold matter" because the
Church and Pembroke Academy are not similarly situated. Signs for
Jesus, 230 F. Supp. 3d at 63. It nonetheless proceeded to analyze
the claims and held that, "in any event," the differential
treatment withstood constitutional muster. Id. at 64.
We agree with the district court that the Church and
Pembroke Academy are not similarly situated, nor is the Church
similarly situated to NHDOT. Pembroke Academy is a subdivision of
the state. Id. Likewise, NHDOT is an agency of the state. See
N.H. Rev. Stat. Ann. § 21-L:2. As already noted, the Town has no
- 41 -
power to regulate either Pembroke Academy's or NHDOT's sign use
absent the clearly manifested intent of the New Hampshire
legislature to give the Town that power. See Region 10 Client
Mgmt., Inc., 424 A.2d at 209. In contrast, the Town's zoning
ordinances authorize it to regulate non-governmental entities.
See N.H. Rev. Stat. Ann. § 674:16; see also Signs for Jesus, 230
F. Supp. 3d at 64. This is not a case in which the Town has
treated a non-governmental religious organization differently than
a non-governmental secular organization. In fact, the Town has
not treated the proposed comparators at all under its zoning laws
because it lacks the legal authority to impose any zoning
restrictions on either Pembroke Academy or NHDOT. The governmental
entities cannot be comparators because they experienced no
treatment against which to compare the Town's treatment of the
Church. Even if the Town had attempted to restrict the Pembroke
Academy or NHDOT signs, the Town would have had no basis in its
zoning power to take action against Pembroke Academy or NHDOT.
Hodge himself testified that he signed the permit for the Pembroke
Academy sign despite noting that it violated the zoning laws
because he "believed state law required [him] to" do so.
Accordingly, we affirm the district court's ruling on the Church's
federal and state equal protection claims because the Church is
not similarly situated to its proposed comparators.
- 42 -
G. Supplemental Jurisdiction
Finally, the Church asserted state statutory claims
challenging the zoning laws before the district court. Having
disposed of all the Church's federal claims, the district court
declined to exercise supplemental jurisdiction over these claims.
Signs for Jesus, 230 F. Supp. 3d at 68 n.14.
We review a district court’s decision regarding the
exercise of supplemental jurisdiction for abuse of discretion.
Allstate Interiors & Exteriors, Inc. v. Stonestreet Const., LLC,
730 F.3d 67, 72 (1st Cir. 2013). We have held that a district
court may decline to exercise supplemental jurisdiction when it
has dismissed all claims over which it has original jurisdiction,
28 U.S.C. § 1367, and absent certain circumstances inapplicable
here, doing so is not an abuse of discretion. See Rivera-Díaz v.
Humana Ins. of Puerto Rico, Inc., 748 F.3d 387, 392 (1st Cir.
2014). Thus, the district court did not abuse its discretion in
declining to exercise supplemental jurisdiction over the Church's
state statutory claims once the federal claims were dismissed.

Outcome: For the foregoing reasons, the judgment of the district
court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: