[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 21, 2005
No. 03-15516 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-20556-CV-JLK
NATIONAL ADVERTISING CO., a Delaware corporation,
Plaintiff-Appellant,
versus
CITY OF MIAMI, a Florida municipality,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(MARCH 21, 2005)
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and RESTANI*,
Judge.
PER CURIAM:
* Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by
designation.
In this case, we decide whether a billboard company’s challenge to a City’s
sign permitting procedure is ripe for judicial review. Plaintiff-Appellant, National
Advertising Company (“National”) appeals the district court’s order granting final
summary judgment in favor of Defendant-Appellee, the City of Miami. National,
claiming that the City’s refusal to grant National six permits to construct new
billboards violated the First and Fourteenth Amendments to the United States
Constitution, brought suit against the City. Because National never obtained an
official rejection of its permit applications, we find that it failed to present the
district court with a ripe case. We therefore affirm the district court’s grant of
summary judgment with instructions to dismiss the case without prejudice for lack
of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
National is a Delaware corporation and a wholly-owned subsidiary of
Viacom Outdoor Inc., a corporation formerly known as Infinity Outdoor, Inc.
National, a leader in the outdoor advertising industry, specializing in the leasing of
billboards, has operated in the City of Miami for approximately forty years.
National normally constructs its billboards on either leased or purchased property
and then rents space on the billboards to advertisers. National operates more than
forty outdoor advertising signs in various locations throughout the City of Miami.
2
Most of National’s billboards display commercial messages, however a few of
them display non-commercial, public interest messages.
In December of 2001, against the backdrop of on-going litigation between
National and the City,1 National sought permits to erect seven new billboards on
private property located in the City of Miami. Under the City’s comprehensive
zoning plan, six of the seven proposed billboards were to have been located in an
area zoned “C-1, commercial zone.” City zoning clerks did not issue permits to
National because the billboards it sought to construct exceeded the zoning
ordinance’s height limits for signs. In addition, the clerk orally informed
National’s agents that billboards were not permitted in the C-1 zone.
On February 19, 2002, National filed this action alleging that the City denied
their applications because the City’s “Sign Code”2 prohibited offsite signs in the
City’s C-1 commercial zone, in violation of the First Amendment. National further
alleged that the City’s “Sign Code” was constitutionally suspect because it failed to
1
In addition to this action, National filed a preceding action against the City. That case,
National Advertising Co. v. City of Miami, Case No. 01-03039-CV-JLK (National I), challenged
the constitutionality of the City’s Zoning Ordinance in its entirety. National I and National II
were consolidated in the district court below. However, we ordered the cases to be briefed
separately. In the instant case, we asked the parties to focus solely on the denial of National’s
permit applications.
2
National makes frequent references to the City’s “sign code.” However, the City does
not have a sign code, as such. The City does have, as required by Florida law, a comprehensive
zoning code that regulates, among other things, signs and billboards.
3
contain adequate procedural guidelines and vested excessive discretion in the
hands of City officials to either approve or deny applications to construct signs.
After both parties conducted discovery, they filed cross summary judgment
motions in March of 2003. The district court heard arguments for both cases in
August of 2003. On September 25, 2003, the district court entered summary
judgment for the City in National I and found that the City’s Zoning Ordinance
was constitutional in all respects.3 The following day, the district court granted the
City’s motion for summary judgment in this action. The district court held that
National’s claims were not ripe pursuant to our holding in Digital Props., Inc. v.
City of Plantation, 121 F.3d 586 (11th Cir. 1997), because National had failed to
obtain a written denial of its permit application. National appeals.
STANDARD OF REVIEW
We review the district court's order granting a motion for summary
judgment de novo. We construe all facts and make all reasonable inferences in the
light most favorable to the non-moving party. Kesinger Ex Rel. Estate of Kesinger
v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004). Under F ED. R. C IV. P. 56,
summary judgment is proper if the pleadings, depositions, and affidavits “show
3
We reversed the district court’s entry of summary judgment in National I and remanded
with instructions to dismiss for lack of subject matter jurisdiction after we found that subsequent
amendments to the City’s zoning code mooted National’s claims.
4
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”
DISCUSSION
The jurisdiction of federal courts is limited. The constitution dictates that
the power of the federal courts is constrained by the requirement that they consider
only “cases” and “controversies.” U.S. C ONST. art. III, § 2; see, e.g., Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S. Ct. 2130, 2136, 119 L. Ed.2d
351 (1992); Granite State Outdoor Adver. Co. v. City of Clearwater, 351 F.3d
1112, 1116 (11th Cir. 2003). “This case-or-controversy doctrine fundamentally
limits the power of federal courts in our system of government, and helps to
‘identify those disputes which are appropriately resolved through judicial
process.’” Ga. State Conference of NAACP Branches v. Cox, 183 F.3d 1259, 1262
(11th Cir. 1999) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct.
1717, 1722 109 L. Ed.2d 135 (1990)). In addition to the textual constitutional
constraints on the power of federal courts to decide cases, we also recognize
important prudential limitations. Granite State, 351 F.3d at 1116 (citing Bennet v.
Spear, 520 U.S. 154, 162, 117 S. Ct. 1154, 1161, 137 L. Ed.2d 281 (1997) and
Lujan, 504 U.S. at 560). While the constitutional aspect of our inquiry focuses on
whether the Article III requirements of an actual “case or controversy” are met, the
5
prudential aspect asks whether it is appropriate for this case to be litigated in a
federal court by these parties at this time. Hallandale Prof’l Fire Fighters Local
2238 v. City of Hallandale, 922 F.2d 756, 759-60 (11th Cir. 1991).
When determining if a claim is ripe for judicial review, we consider both
constitutional and prudential concerns. In some circumstances, although a claim
may satisfy constitutional requirements, prudential concerns “counsel judicial
restraint.” See Digital, 121 F.3d at 589 (quoting Action Alliance of Senior Citizens
v. Heckler, 789 F.2d 931, 940 n.12 (D.C. Cir. 1986)). Our inquiry focuses on
whether the claim presented is “of sufficient concreteness to evidence a ripeness
for review.” Id. Strict application of the ripeness doctrine prevents federal courts
from rendering impermissible advisory opinions and wasting resources through
review of potential or abstract disputes. See id.
Our ripeness inquiry requires a two part “determination of (1) the fitness of
the issues for judicial decision and (2) the hardship to the parties of withholding
court consideration.” Id. (citing Abbot Lab. v. Gardner, 387 U.S. 136, 148-49, 87
S. Ct. 1507, 1515-16, 18 L. Ed.2d 681 (1967); Cheffer v. Reno, 55 F.3d 1517, 1524
(11th Cir. 1995)). When a plaintiff is challenging a governmental act, the issues
are ripe for judicial review if “a plaintiff . . . show[s] he has sustained, or is in
immediate danger of sustaining, a direct injury as the result of that act.”
6
Hallendale, 922 F.2d at 760. As the district court correctly noted, while it is true
that our review of a suit’s ripeness is at its most permissive in cases concerning
putative violations of the First Amendment, id., that requirement may not be
ignored.
We have also recognized that the ripeness doctrine not only protects courts
from abusing their role within the government and engaging in speculative
decision-making, but that it also protects the other branches from judicial
meddling. One of the “basic rationale[s]” for the ripeness doctrine is “to protect
the [administrative] agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete way by the
challenging parties.” Digital, 121 F.3d at 590 (internal quotation marks and
citations omitted). When a court is asked to review decisions of administrative
agencies, it is hornbook law that courts must exercise patience and permit the
administrative agency the proper time and deference for those agencies to consider
the case fully.
Turning to the facts in this case, it is clear that National never properly
pursued its claim through the administrative process that the City’s zoning
ordinance made available to them. National’s claim is not ripe because it failed to
obtain a final denial of its applications. Although National’s initial request for a
7
permit was not granted by the clerks in Miami’s zoning department, National never
received a final, written denial of their applications. Our reasoning in Digital is
directly on point. As we held there, “[a] challenge to the application of a city
ordinance does not automatically mature at the zoning counter.” Digital, 121 F.3d
at 590.
In Digital, we upheld the district courts dismissal of Digital’s First
Amendment challenge to the constitutionality of the City of Plantation’s zoning
ordinance because Digital failed to present a ripe case or controversy. In that case,
Digital sought to establish an adult book and video store in Plantation. Digital
assumed that Plantation’s zoning scheme unconstitutionally barred adult
businesses from operating anywhere within the city. However, Digital applied for
a building permit to remodel a pre-existing structure for the purpose of opening an
adult business. At the time Digital applied, they assumed their application would
be rejected. Therefore, when an “Assistant Zoning Technician” did not
immediately grant its permit, Digital filed suit in federal court alleging that
Plantation’s zoning scheme was unconstitutional, both facially and as applied.
“Digital contended that [the zoning technician’s] statement impaired its
constitutional rights and constituted injury-in fact.” Id. at 589. Because Digital
never obtained an actual denial of their application, the district court dismissed the
8
suit without prejudice for lack of subject matter jurisdiction, and we affirmed that
decision. Id. at 591.
In this case, as in Digital, National “at a minimum . . . had the obligation to
obtain a conclusive response from someone with the knowledge and authority to
speak for the City regarding the application of the zoning scheme” to National’s
permits. Id. at 590. While there is some dispute why the City did not grant
National’s initial application, National failed to demonstrate that their application
was conclusively denied. A zoning clerk’s verbal statement or written notation on
National’s application that its proposed billboards were “too tall” or “in the wrong
zone” is not conclusive evidence of a denial and does not amount to evidence of a
dispute of “sufficient concreteness” for judicial review. Id. at 589. “Without the
presentation of a binding conclusive administrative decision, no tangible
controversy exists.” Id. at 590.
The necessity of a “binding conclusive administrative decision” to ensure
that the facts of a case are mature enough to permit meaningful review is amply
demonstrated by this case. National has at various times (including during oral
argument) claimed both that Miami’s zoning ordinance is too vague for it to know
what is required to get a permit and that it did not obtain a written denial because it
was certain that its application would be denied. Conversely, the City has alleged
9
that National could have pursued a number of administrative options to protest its
denial or it could have merely fixed specific deficiencies in the applications they
presented.4 It is precisely for this reason that without a “binding conclusive
administrative decision, no tangible controversy exists.” Id. As this case currently
stands, a court is incapable of determining if, let alone why, National’s applications
were denied. Without that crucial information, it would be impossible to determine
if the City’s zoning ordinance violates the constitution. As in Digital, National’s
“erroneous presumptions and impatience led it to rush to the courthouse and
present an insufficiently concrete claim.” Id. at 591.
Having determined that National’s claims are not fit for judicial review at
this time, we turn to the second part of our inquiry: the hardship to the parties of
withholding court consideration. We agree with the district court that National has
failed to produce evidence demonstrating that it would sustain undue hardship as a
result of withholding court consideration. It would have been far easier, and
quicker, for National to have exhausted its administrative remedies or received a
final written denial of its application instead of rushing to the federal courts for
relief.
4
It is relevant to note that National originally applied for seven permits. They were all
initially rejected because the proposed billboards were too tall. Later, National resubmitted an
application for a billboard that conformed to the height requirement in an area zoned C-2. The
city granted National a permit to construct the billboard.
10
CONCLUSION
We agree with the district court that National fails to present an actual case
or controversy that is ripe for judicial review. Therefore, we affirm the district
court’s entry of summary judgment. However, we instruct the district court to
dismiss the case without prejudice, so that National may re-file the case if it
becomes ripe at some later date.
AFFIRMED WITH INSTRUCTIONS.
11