Signs for Jesus v. Pembroke, NH

United States Court of Appeals
For the First Circuit

No. 17-1192

SIGNS FOR JESUS; HILLSIDE BAPTIST CHURCH,

Plaintiffs, Appellants,

v.

TOWN OF PEMBROKE, NH; PEMBROKE ZONING BOARD OF ADJUSTMENT;
EVERETT HODGE, Code Enforcement Officer, Town of Pembroke, in
both his individual and official capacities,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Barron, Circuit Judges.

Michael J. Tierney, with whom Wadleigh, Starr & Peters,
P.L.L.C. was on brief, for appellants.
Christopher Cole, with whom Megan Carrier and Sheehan Phinney
Bass & Green, PA were on brief, for appellees.

October 7, 2020
 HOWARD, Chief Judge. 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 cross-

motions 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-or-

controversy" 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 government-

related 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 content-

based, 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 content-

based 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 content-

neutral 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 content-

neutral 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.

- 23 -
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

- 24 -
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

- 25 -
 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 non-

electronic 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 cost-

effective 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.

- 26 -
(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

- 27 -
 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,

- 28 -
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

- 29 -
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

- 30 -
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.

- 31 -
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

- 32 -
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 non-

governmental 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.

- 33 -
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:

- 34 -
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

- 35 -
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.

- 36 -
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

- 37 -
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

- 38 -
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

- 39 -
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

- 40 -
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.

- 41 -
 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.

III. Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

- 42 -