Conteers LLC v. City of Akron, Summit County, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CONTEERS LLC, CASE NO. 5:20-CV-00542

Plaintiff,

-vs- JUDGE PAMELA A. BARKER

CITY OF AKRON, SUMMIT COUNTY,

OHIO, et al., MEMORANDUM OF OPINION AND

ORDER

Defendants.

This matter comes before the Court upon the Second Motion for Preliminary Injunction of

Plaintiff Conteers LLC (“Conteers”), filed on October 9, 2020. (Doc. No. 30.) Defendants City of

Akron, Summit County, Ohio (the “City”) and Akron City Council (the “City Council”) (collectively,

“Defendants”) filed a brief in opposition to Conteers’ Second Motion for Preliminary Injunction on

November 23, 2020, to which Conteers replied on December 7, 2020. (Doc. Nos. 33, 36.) On

December 21, 2020, Defendants also filed a Motion for Leave to File Sur-Reply in Opposition to

Plaintiff’s Second Motion for Preliminary Injunction (“Motion for Leave to File Sur-Reply”),

attaching their proposed Sur-Reply. (Doc. No. 38.) Conteers opposed Defendants’ request on

January 4, 2021. (Doc. No. 39.)

Also, currently pending is Defendants’ Objection and Motion to Strike (“Motion to Strike”),

filed on December 21, 2020. (Doc. No. 37.) Conteers filed a brief in opposition to Defendants’

Motion to Strike on January 4, 2021, to which Defendants replied on January 11, 2021. (Doc. Nos.

40, 41.)

For the following reasons, Defendants’ Motion to Strike (Doc. No. 37) is DENIED,

Defendants’ Motion for Leave to File Sur-Reply (Doc. No. 38) is GRANTED IN PART and DENIED

IN PART, and Conteers’ Second Motion for Preliminary Injunction (Doc. No. 30) is DENIED.

I. Background

a. Factual Background

Conteers is in the business of buying or leasing land upon which to construct, maintain, and

operate billboards. (Doc. No. 5-2 at ¶ 3.) Conteers leased property located at 475 East North Street,

Akron, Ohio with the intention of erecting a billboard on it. (Id. at ¶¶ 4-7.) The intended location of

the billboard is on a surface street—North Street—adjacent to State Road 8. (Id. at ¶ 8.) State Road

8 crosses North Street via an approximately 152-foot tall bridge over North Street. (Id. at ¶ 9.)

Because of the difference in elevation between the leased property and the bridge above, Conteers

sought to erect a 202-foot tall billboard so that passengers in vehicles on State Road 8 could see it.

(Id. at ¶ 10.) The intended billboard would be a double-faced digital billboard, with the face made

primarily of steel. (Id. at ¶¶ 24-26.)

On August 2, 2019, Conteers submitted an application to the City for a sign permit for its

intended billboard. (Id. at ¶ 23.) Chapter 153 of the City’s Code of Ordinances, which is entitled

“Zoning Code,” regulates the placement of outdoor advertising displays, which includes billboards.

See Akron Code of Ordinances (“A.C.O.”) § 153.140. Pursuant to the Zoning Code, a billboard may

be permitted as a conditional use. A.C.O. § 153.464(Y). The City Council has the authority to grant

or deny a conditional use for a billboard, although its decision may be appealed in court. See A.C.O.

§§ 153.476(D), 153.488, 153.498.

2

Article 9 of the Zoning Code lays out the specific requirements for billboards. Article 9

contains only one section—Section 153.385. Thus, the Court will refer to Article 9 and Section

153.385 interchangeably. As relevant here, Section 153.385(A) sets forth the “[d]evelopment

requirements for outdoor advertising displays permitted as a conditional use,” including certain size,

height, and set-back requirements. A.C.O. § 153.385(A). With respect to height limits, Section

153.385(A)(6) provides that “[n]o ground bulletin whose supports and braces are of steel or other

approved noncombustible material, and whose face is of noncombustible construction FRTW wood

as approved by the Superintendent of Building Inspection and Regulation shall exceed the height

district as found in this code or of a maximum height of fifty feet, whichever is less.” A.C.O. §

153.385(A)(6).

Section 153.385(F) of Article 9 also incorporates the general standards applicable to all

conditional uses set forth in Section 153.474 of Article 14 of the Zoning Code. A.C.O. § 153.385(F)

(“The outdoor advertising display must conform to the requirements of Section 153.474.”). Article

14 governs the approval of conditional uses generally. Section 153.474 provides:

The planning staff, the City Planning Commission, and Council, when studying a

petition for a conditional use, shall review the particular facts and circumstances of

each proposed use in terms of the following standards, and if taking favorable action

on the proposal, shall find adequate evidence that the use:

A. Will be harmonious with and in accordance with the general objectives of

the City’s Comprehensive Plan;

B. Will be designed, constructed, operated, and maintained so as to be

harmonious and appropriate in appearance with the existing or intended

character of the general vicinity and will not change the essential character of

the same area;

C. Will not be hazardous or disturbing to existing or future neighboring uses;

3

D. Will be served adequately by essential public facilities such as highways,

streets, police and fire protection, drainage structures, refuse disposal, water

and sewers and schools; or that the person or agency responsible for the

establishment of the proposed use shall be able to provide adequately any such

services;

E. Will not create excessive additional requirements at public cost for public

facilities and services, and will not be detrimental to the economic welfare of

the community,

F. Will not involve uses, activities, processes, materials, equipment, and

conditions of operation that will be detrimental to any person or property or

the general welfare by reason of excessive production of traffic, noise, smoke,

fumes, glare, or odors;

G. Will have vehicular approaches to the property which shall be so designed

as not to create an interference with traffic on surrounding public streets or

roads;

H. Will not result in the destruction, loss, or damage of a natural, scenic, or

historic feature of major importance.

A.C.O. § 153.474.

If these criteria are met, the City Council may also permit a billboard to vary from the specific

size, height, and set-back requirements set forth in Article 9 or other sections of the Zoning Code.

See A.C.O. § 153.385(F) (“Council may except or increase any of the provisions in this chapter

consistent with the provisions of Section 153.474.”). For example, the City Council has allowed at

least three billboards within the City that are over fifty feet tall. (Doc. No. 5-2 at ¶¶ 43-46.)

In addition to the height limit noted above in Section 153.385(A)(6) that is specific to

billboards, the Zoning Code also divides the City into eight classes of height districts. A.C.O. §

153.210. The property on which Conteers intends to construct its billboard is in a Class H2 District.

(Doc. No. 5-4 at 2.) Structures, including billboards, in excess of fifty feet in height are prohibited

in a Class H2 District. A.C.O. §§ 153.140, 153.335(C).

4

Before Conteers’ application for a permit for its billboard reached the City Council for a final

decision based on the standards described above, it underwent several reviews by other commissions.

First, the Urban Design and Historic Preservation Commission (“UDHPC”) conducted an

independent aesthetic review. (Doc. No. 5-2 at ¶ 27.) On November 5, 2019, UDHPC recommended

denying the application because the billboard was “not suitable” for the location. (Id. at ¶ 36; Doc.

No. 5-3 at 2.) UDHPC noted that the adjacent State Road 8 bridge was being completely replaced

and that “[g]reat attention” had been given to creating an “attractive design” for that bridge. (Doc.

No. 5-3 at 2.) UDHPC believed that, due to the height of the billboard, it would “appear out of place,

both adjacent to the bridge and overlooking the forested Little Cuyahoga River valley below.” (Id.)

The City’s Planning Department then issued a report and recommendation that also recommended

the denial of Conteers’ permit application for similar reasons. (Doc. No. 5-4 at 2-3.) Subsequently,

on November 15, 2019, the City’s Planning Commission met and voted to deny the permit application

as well. (Id. at 4.)

Finally, on February 10, 2020, the City Council met and voted to deny Conteers’ application.

(Doc. No. 5-2 at ¶¶ 40-41; Doc. No. 14-5 at ¶ 3.) The City Council noted two reasons for denying

Conteers’ permit application: (1) the height of the proposed billboard was over fifty feet, and (2) the

“aesthetics” of the billboard. (Doc. No. 5-2 at ¶ 42.)

b. Procedural History

On March 11, 2020, Conteers filed a Complaint against Defendants in this Court, setting forth

three causes of action. (Doc. No. 1.) In its first cause of action, Conteers alleges that the City’s Code

of Ordinances violates the First and Fourteenth Amendments of the United States Constitution, as

well as the Ohio Constitution, because it contains unconstitutional prior restraints on speech since it

5

lacks certain procedural safeguards and provides Defendants unbridled discretion with respect to

permitting decisions. (Id. at ¶¶ 74-87.) In its second cause of action, Conteers alleges that Defendants

have favored certain speakers over Conteers by allowing three other similar billboards that are over

fifty feet to be operated within the City in violation of the First Amendment and the Equal Protection

Clause. (Id. at ¶¶ 88-93.) Finally, in its third cause of action, Conteers appeals the City Council’s

decision denying its permit application. (Id. at ¶¶ 94-99.) Conteers seeks a declaration that the City’s

Code of Ordinances is unconstitutional, either in whole or in part, on its face and as applied to

Conteers, a permanent injunction precluding Defendants from enforcing the City’s Code of

Ordinances against Conteers, an award of damages pursuant to 42 U.S.C. § 1983, and an order

overturning the City Council’s denial of Conteers’ permit application. (Id. at Pg. 13-14.)

On March 17, 2020, about a week after the filing of its Complaint, Conteers filed a Motion

for Preliminary Injunction, seeking to preliminarily enjoin Defendants from enforcing Articles 9 and

14 of the Zoning Code against Conteers and from preventing Conteers from erecting the billboard

consistent with its permit application. (Doc. No. 5.) Conteers asserted that the Zoning Code

contained impermissible prior restraints on speech, and a preliminary injunction precluding

Defendants from enforcing the unconstitutional portions of the Zoning Code was necessary to protect

Conteers’ ability to exercise its First Amendment rights. (Id.) While Conteers’ Motion for

Preliminary Injunction was pending, Defendants filed a Motion for Judgment on the Pleadings,

seeking to dismiss Conteers’ claims based on a lack of jurisdiction, a lack of standing, and/or the

failure to establish that the challenged provisions of the Zoning Code were unconstitutional. (Doc.

No. 14.)

6

On September 15, 2020, after the parties had engaged in limited discovery and fully briefed

both motions, the Court denied Defendants’ Motion for Judgment on the Pleadings. (Doc. No. 27 at

7-24.) As part of the Court’s decision, the Court addressed Defendants’ argument that Conteers

lacked standing to challenge the City’s conditional use ordinances because even a successful

challenge would not allow Conteers to erect its proposed billboard, as the billboard exceeds the height

limit contained in Section 153.385(A)(6). (Id. at 15-16.) The Court found this argument lacked merit,

holding that Conteers had adequately alleged that the height limit in Section 153.385(A)(6) does not

apply to its proposed billboard. (Id.) Specifically, the Court reasoned that Conteers had alleged that

the face of its proposed billboard is made primarily of steel, and the plain language of Section

153.385(A)(6) limited the application of its height limit to billboards “whose face is of

noncombustible construction FRTW wood.” (Id.) The Court found Defendants’ other arguments in

support of dismissal unpersuasive as well. (Id. at 9-12, 17-24.)

In the same opinion, the Court also granted Conteers’ Motion for Preliminary Injunction in

part. The Court found that Conteers had established that the City’s Zoning Code likely contains

unconstitutional prior restraints on speech, namely that Sections 153.474(A), (B), (C), and (H) that

the City Council had relied on to deny Conteers’ permit application on the basis of aesthetics were

too vague and subjective and did not contain adequate standards to guide the City Council’s decision.

(Id. at 22-27.) However, the Court held that these provisions likely were severable from the rest of

the Zoning Code, and therefore did not declare Articles 9 and 14 unconstitutional in whole, as

Conteers had requested. (Id. at 27-30.) Instead, the Court only enjoined Defendants “from enforcing

Sections 153.474(A), (B), (C), and (H) of Article 14 of the City’s Zoning Code” against Conteers.

(Id. at 33.)

7

Approximately a month after the Court’s decision, Conteers filed a Second Motion for

Preliminary Injunction. (Doc. No. 30.) This time, Conteers seeks a preliminary injunction enjoining

Defendants from enforcing Section 153.385(A)(6) or any other height limit in the Zoning Code

against Conteers. (Id.) It appears that after the Court’s initial preliminary injunction order, in

conversations between the parties, Defendants represented to Conteers that the construction of its

billboard was still barred by the Zoning Code based on the fifty-foot height limit for structures in a

Class H2 District, prompting Conteers’ Motion. (See Doc. No. 30-1 at 9; Doc. No. 36 at 6.) Neither

party addressed the Zoning Code’s height district limits in the briefing on either Conteers’ original

Motion for Preliminary Injunction or Defendants’ Motion for Judgment on the Pleadings. Defendants

filed a brief in opposition to Conteers’ Second Motion for Preliminary Injunction on November 23,

2020, to which Conteers replied on December 7, 2020. (Doc. Nos. 33, 36.) On December 21, 2020,

Defendants filed a Motion for Leave to File Sur-Reply, attaching their proposed Sur-Reply. (Doc.

No. 38.) Conteers opposed Defendants’ request on January 4, 2021. (Doc. No. 39.)

On December 21, 2020, Defendants’ also filed a Motion to Strike, seeking to strike certain

evidence submitted by Conteers in support of its Second Motion for Preliminary Injunction. (Doc.

No. 37.) Conteers filed a brief in opposition to Defendants’ Motion to Strike on January 4, 2021, to

which Defendants replied on January 11, 2021. (Doc. Nos. 40, 41.)

II. Defendants’ Motion to Strike

In Defendants’ Motion to Strike, they assert that any evidence outside the record of

proceedings before the City Council cannot be considered by the Court and must be stricken. (Doc.

No. 37 at 1-2.) In support of this position, Defendants point out that Conteers has argued in its Second

Motion for Preliminary Injunction that Defendants waived any application of the height district limits

8

by not raising the issue in the proceedings before the City Council. (Id. at 1.) According to

Defendants, by making this argument, Conteers has conceded that the scope of this case is confined

to Conteers’ administrative appeal of the City Council’s decision. (Id. at 1-2.) Pursuant to Ohio

Revised Code § 2506.03, the record on appeal from the decision of an administrative body is limited

to the record of the proceedings before the administrative body. Thus, Defendants contend that

Conteers’ submission of additional evidence—specifically, the deposition testimony of City Council

President Margo Sommerville, the affidavit of John Kirirah, the draft meeting minutes from the

October 5, 2020 meeting of City Council, and the conditional use permits for other outdoor

advertising displays—is improper. (Id. at 2.)

In response, Conteers asserts that its Second Motion for Preliminary Injunction “is not limited

to Conteers’ administrative appeal, as the Defendants wrongly posit.” (Doc. No. 40 at 3.) Rather,

Conteers contends that “[t]he Second PI Motion is a continuation of the constitutional issues raised

in the initial preliminary injunction motion,” that “at no point in the Second PI Motion does Conteers

say that it is limiting its claims to the administrative appeal,” and that “Conteers is clear that the

Second PI Motion relates to the First Amendment issues in the case.” (Id. at 2.) Conteers appears to

indicate that it does not necessarily disagree with Defendants that the only admissible evidence with

respect to the administrative appeal portion of its claims is the record of proceedings before the City

Council, but that there is no such limitation on the evidence the Court can consider for its

constitutional analysis. (Id. at 3.) Finally, Conteers also argues that it would be unfair to limit the

Court’s analysis to the record of proceedings when Defendants themselves have failed to provide the

record despite Conteers’ request for them to do so pursuant to Ohio Revised Code § 2506.02. (Id. at

4; Doc. No. 10.)

9

In Defendants’ reply in support of their Motion to Strike, they only address Conteers’ last

point regarding their failure to file the record of proceedings. Defendants argue that Conteers’

praecipe requesting Defendants to prepare the record of proceedings did not comply with Ohio

Revised Code § 2506.02 because Conteers only filed it in this Court and did not serve it on the

appropriate administrative body. (Doc. No. 41 at 1-3.) Thus, Defendants argue that Conteers is at

fault for failing to comply with the procedural requirements for prosecuting its administrative appeal,

not Defendants. (Id.)

Upon review of the parties’ arguments, the Court finds that striking the challenged evidence

is not warranted. In addition to its administrative appeal, Conteers brings two claims under 42 U.S.C.

§ 1983 for alleged constitutional violations. (Doc. No. 1 at ¶¶ 74-93.) Neither party contends that

evidence from outside the record of administrative proceedings may not be considered with respect

to those independent constitutional claims. Because Conteers has made clear that its Second Motion

for Preliminary Injunction is based on its constitutional claims, the evidence that may be considered

is not limited to the administrative record. As a result, Defendants’ Motion to Strike is denied.

III. Defendants’ Motion for Leave to File Sur-Reply

In Defendants’ Motion for Leave to File Sur-Reply, Defendants request leave to file their

proposed Sur-Reply to respond to arguments raised in Conteers’ Reply Brief in Support of Second

Motion for Preliminary Injunction (“Reply”) that Defendants contend were not raised in the original

Motion. (Doc. No. 38.) In opposing Defendants’ request, Conteers asserts that it did not raise any

new arguments in its Reply and simply responded in an appropriate manner to arguments made by

Defendants in their Memorandum in Opposition to Plaintiff’s Second Motion for Preliminary

Injunction (“Opposition”). (Doc. No. 39 at 2-4.) To the extent the Court allows the Sur-Reply,

10

Conteers requests permission to file a response thereto. (Id. at 4.) The Court finds that, in large part,

Defendants’ proposed Sur-Reply sets forth arguments that could have been raised in their Opposition,

and the Court will therefore not consider those portions of the Sur-Reply. However, Conteers did

raise one new legal theory in its Reply, and the Court will allow the Sur-Reply to the extent it replies

to this new argument.

“Although the Federal Rules of Civil Procedure do not expressly permit the filing of sur-

replies, such filings may be allowed in the appropriate circumstances, especially ‘[w]hen new

submissions and/or arguments are included in a reply brief, and a nonmovant’s ability to respond to

the new evidence has been vitiated.’” Key v. Shelby Cty., 551 F. App’x 262, 265 (6th Cir. 2014)

(quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003)); accord Eldridge v. Cardif

Life Ins. Co., 266 F.R.D. 173, 175 (N.D. Ohio 2010) (“This Court grants leave to file a sur-reply to

afford a party an opportunity to address new issues raised for the first time in the reply.”). On the

other hand, when a reply does not include new arguments or evidence, a sur-reply is “an

impermissible attempt to have the last word.” Attractive Surgical, LLC v. Cleveland Clinic Found.,

No. 1:19 CV 1212, 2019 WL 11075734, at *4 (N.D. Ohio Oct. 31, 2019).

In their proposed Sur-Reply, Defendants make additional arguments related to the Zoning

Code’s height districts (including whether Defendants waived their application), whether to strike

certain evidence submitted by Conteers, whether Conteers waived its challenge to the

constitutionality of the height districts, and the alleged improper successive nature of Conteers’

Second Motion for Preliminary Injunction. (Doc. No. 38 at 1-7.) None of these arguments respond

to new arguments in Conteers’ Reply. Rather, all of these issues were either raised in or implicated

by the filing of Conteers’ Second Motion for Preliminary Injunction, and Defendants had the

11

opportunity to address them in their Opposition. (See Doc. No. 33 at 3-4, 6-7.) As such, these

portions of Defendants’ proposed Sur-Reply are an improper attempt to have the last word, and the

Court will not consider them.

However, in their proposed Sur-Reply, Defendants also assert that “[f]or the first time in its

Reply, Conteers has attempted to explain its rationale for asserting that the existence of billboards

that exceed 50 feet is relevant to its claims in this case.” (Doc. No. 38 at 7.) The Court agrees. While

Conteers noted that Defendants have permitted other billboards that exceed fifty feet in its Second

Motion for Preliminary Injunction, Conteers did not fully explain their legal significance. (See Doc.

No. 30-1 at 10-11.) It was not until Conteers’ Reply that it argued those billboards are evidence of

Defendants’ unconstitutional actions in choosing and favoring certain outdoor advertisers over others

that are similarly situated. (See Doc. No. 36 at 3-4.) Conteers had the opportunity to raise this

argument in its initial Motion, but failed to do so, which left Defendants unable to fully respond in

their Opposition. (See Doc. No. 33 at 9.) Accordingly, the Court will grant Defendants’ Motion for

Leave to File Sur-Reply to the extent their proposed Sur-Reply responds to this new argument and

deny it in all other respects.1

IV. Conteers’ Second Motion for Preliminary Injunction

a. Standard of Review

“In general, courts must examine four factors in deciding whether to grant a preliminary

injunction: (1) whether the movant has demonstrated a substantial likelihood of success on the merits,

(2) whether the movant will suffer irreparable injury absent injunction, (3) whether a preliminary

1 The Court also denies Conteers’ request to file a response to Defendants’ Sur-Reply. Because Conteers raised a new

argument in its Reply that could have been raised in its initial Motion, the Court does not find it necessary to permit yet

another filing by Conteers to address the issue.

12

injunction would cause substantial harm to others, and (4) whether the public interest will be served

by an injunction.” Flight Options, LLC v. Int’l Bhd. of Teamsters, Local 1108, 863 F.3d 529, 539-40

(6th Cir. 2017). “These factors are not prerequisites, but are factors that are to be balanced against

each other.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).

However, “a finding that there is simply no likelihood of success on the merits is usually fatal.”

Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000). In addition, “[a]

preliminary injunction is an extraordinary remedy which should be granted only if the movant carries

his or her burden of proving that the circumstances clearly demand it.” Overstreet, 305 F.3d at 573.

“The party seeking the injunction must establish its case by clear and convincing evidence.” Draudt

v. Wooster City Sch. Dist. Bd. of Educ., 246 F. Supp. 2d 820, 825 (N.D. Ohio 2003).

b. Analysis

i. Whether Conteers’ Second Motion for Preliminary Injunction Should Be

Denied as an Improper Successive Motion

Before reaching an assessment of the factors described above, the Court will first address

Defendants’ argument that the Court should deny Conteers’ Second Motion for Preliminary

Injunction because it is a successive motion not based on new facts and an attempt to engage in

piecemeal litigation of the issues in this case. (Doc. No. 33 at 3-4.) Defendants assert Conteers’

Motion is not based on any new information because it was previously aware of the Zoning Code’s

height limits. (Id.) Moreover, Defendants contend that the Court has already preliminarily concluded

that Section 153.385(A)(6) is inapplicable to Conteers’ proposed billboard, making Conteers’ request

to enjoin its enforcement a moot point. (Id. at 4.) In response, Conteers argues its Motion is based

on new facts, namely Defendants’ post-hoc argument that the applicable height district limit prevents

the erection of its billboard. (Doc. No. 36 at 6-8.) In addition, Conteers points out that in the Court’s

13

previous order, it only addressed Section 153.385(A)(6)’s applicability in the context of Defendants’

Motion for Judgment on the Pleadings, not in the preliminary injunction context. (Id. at 4-6.)

The Court agrees with Conteers that its Second Motion for Preliminary Injunction is not an

improper successive motion. Conteers’ Motion addresses the height district argument not previously

raised by Defendants and seeks additional relief regarding the enforcement of Section 153.385(A)(6).

As such, this case is easily distinguishable from the sole case relied upon by Defendants that warned

against the filing of successive motions for preliminary injunction that “were virtually identical.” See

F.W. Kerr Chem. Co. v. Crandall Assoc., Inc., 815 F.2d 426, 429 (6th Cir. 1987). Accordingly, the

Court will move on to the assessment of the four factors courts generally consider when deciding

whether to grant a preliminary injunction.

ii. Likelihood of Success on the Merits

First, the Court considers whether Conteers “has demonstrated ‘a strong likelihood of success

on the merits.’” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535,

543 (6th Cir. 2007) (quoting Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005)). “In

order to establish a likelihood of success on the merits of a claim, a plaintiff must show more than a

mere possibility of success.” Six Clinics Holding Corp., II v. Cafcomp Systems, Inc., 119 F.3d 393,

402 (6th Cir. 1997). Nonetheless, “it is ordinarily sufficient if the plaintiff has raised questions going

to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation

and thus for more deliberate investigation.” Id.

In its Second Motion for Preliminary Injunction, Conteers asserts that after the Court’s initial

preliminary injunction order, the only impediment to Conteers erecting its proposed billboard is the

Defendants’ flawed reliance on the Zoning Code’s fifty-foot height limit. (Doc. No. 30-1 at 2.) As

14

such, Conteers requests that the Court declare Section 153.385(A)(6) and any other height limits in

the Zoning Code inapplicable to Conteers’ billboard and enjoin Defendants from enforcing Section

153.385(A)(6) or any other height limit against Conteers. (Id. at 13.) In support of this request,

Conteers contends it has established a substantial likelihood of success on the merits because (1)

based on the plain language of Section 153.385(A)(6), its fifty-foot height limit does not apply to

Conteers’ billboard; and (2) Defendants waived the enforcement of the fifty-foot height limit based

on the billboard’s height district by not raising it in the administrative proceedings below, or,

alternatively, the height district limit cannot be enforced against Conteers because the process the

City adopted to seek a variance from the height limit is unconstitutional. (Id. at 7-11.) As discussed

above, in its Reply, Conteers also raises an additional argument that Defendants’ enforcement of the

height limit against Conteers is unconstitutional because Defendants have permitted other similarly

situated outdoor advertisers to erect billboards that exceed fifty feet. (Doc. No. 36 at 3-4.)

In response, Defendants appear to concede that Section 153.385(A)(6)’s height limit is not

applicable to Conteers’ billboard or, at least, they do not challenge the Court’s previous holding with

respect to that issue. (Doc. No. 33 at 4.) However, Defendants argue that they have not waived the

enforcement of the height limit based on the proposed billboard’s height district—which they contend

was specifically referenced in the proceedings below and was one of the reasons that Conteers applied

to the City Council for an exception—and that Defendants did not even have the authority to waive

the requirement during the conditional use application process. (Doc. No. 33 at 6-7.) Defendants

also construe Conteers’ argument regarding the existence of other billboards exceeding fifty feet in

height as an equal protection claim, and assert Conteers’ claim is without merit because Conteers has

15

not shown it is similarly situated to the other entities whose billboards were approved. (Doc. No. 38

at 7-8.)

Before addressing the parties’ arguments, the Court notes that in its Second Motion for

Preliminary Injunction, Conteers has not identified which of its claims it is attempting to establish a

likelihood of success on the merits. However, in its opposition to Defendants’ Motion to Strike,

Conteers states that its “Second PI Motion is a continuation of the constitutional issues raised in the

initial preliminary injunction motion” and that “the Second PI Motion relates to the First Amendment

issues in the case.” (Doc. No. 40 at 2.) Thus, the Court will construe Conteers’ Motion as relying on

its first and second causes of action, which are Conteers’ constitutional claims.2

With this in mind, the Court finds that Conteers’ argument that Defendants waived application

of the height district limit lacks merit. Conteers argues Defendants waived this issue by not raising

it in the administrative proceedings below, relying on two cases regarding administrative appeals that

held courts may not consider arguments not previously raised before the administrative agency. See

LeBlanc v. E.P.A., 310 F. App’x 770, 776 (6th Cir. 2009); Kentucky Utilities Co. v. U.S. F.E.R.C.,

766 F.2d 239, 241-42 (6th Cir. 1985). However, Conteers has not provided any authority

demonstrating that such a waiver would extend to Defendants’ defense against Conteers’

constitutional claims under 42 U.S.C. § 1983 that are independent of Conteers’ administrative appeal.

As such, the Court finds Conteers’ waiver argument unpersuasive.

2 Further, to the extent that Conteers has in fact asserted that a preliminary injunction is warranted based on a showing of

its likelihood of success on the merits of its third cause of action, its administrative appeal, Conteers has not met its burden

in that regard. The parties agree that the Court’s assessment of Conteers’ administrative appeal is limited to the record

of proceedings before the City Council pursuant to Ohio Revised Code § 2506.03. (See Doc. No. 37 at 1-2; Doc. No. 40

at 3.) However, that record has not been filed with the Court. Moreover, even assuming, arguendo, that Defendants are

at fault for failing to properly file the record, the Court is not aware of any reason why Conteers could not have moved to

compel its production before filing its Second Motion for Preliminary Injunction. Indeed, Conteers’ request for the record

was filed over nine months ago. (Doc. No. 10.)

16

Next, Conteers argues that it has shown that the height district limit cannot be enforced against

it because the process for obtaining a variance or exception from that limit is unconstitutional, which

appears to be a continuation of the argument in Conteers’ first Motion for Preliminary Injunction

based on the Zoning Code’s alleged unconstitutional prior restraints on speech. (See Doc. No. 30-1

at 9-11.) Specifically, Conteers notes that under Section 153.385(F), the City Council may allow an

exception to the Zoning Code’s height requirements if the criteria in Section 153.474 are met. (Id. at

9.) In its initial preliminary injunction order, the Court held that Sections 153.474(A), (B), (C), and

(H) likely were unconstitutional, as the standards provided in those sections were too vague to guide

the City Council’s discretion. (Doc. No. 27 at 22-27.) Conteers asserts it was denied an exception

to the fifty-foot height limit based on these unconstitutional provisions, that the entire variance

process is unconstitutional, and that Defendants therefore should not be allowed to enforce the height

district limits against it. (Doc. No. 30-1 at 11.)

However, the Court never invalidated the entire process for applying for an exception to the

Zoning Code’s height requirements under Section 153.385(F). Rather, the Court found that Sections

153.474(A), (B), (C), and (H) likely were severable from the rest of the Zoning Code. (Doc. No. 27

at 27-30.) The Court specifically noted that without the unconstitutional provisions, Section 153.474

would contain only the requirements set forth in Sections 153.474(D)-(G), and that Section

153.385(F) would only incorporate those remaining requirements. (Id. at 28-29.) Thus, the Court

never held that the process for seeking an exception to the height district limits was unconstitutional.

As a result, the Court has already enjoined Defendants from enforcing the likely unconstitutional

provisions of the Zoning Code, and Conteers has not established it is entitled to any additional relief

17

enjoining the enforcement of the process for obtaining an exception to the height district limits or

enjoining the enforcement of the applicable height limit itself.

Finally, in Conteers’ Reply in support of its Second Motion for Preliminary Injunction,

Conteers asserts Defendants should be enjoined from enforcing the height limits in the Zoning Code

because Defendants have allowed other outdoor advertisers that are similarly situated to Conteers to

operate billboards that exceed fifty feet in height. (Doc. No. 36 at 3-4.) This appears to be an

argument in support of Conteers’ likelihood of success on the merits of its claim under the Equal

Protection Clause in its second cause of action. (See Doc. No. 1 at ¶ 91.) Defendants also construed

Conteers’ argument as setting forth an equal protection claim. (See Doc. No. 38 at 7-8.)

The Equal Protection Clause states that “[n]o State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. The Equal Protection

Clause “protects similarly situated individuals against disparate treatment through government action

that ‘either burdens a fundamental right, targets a suspect class, or has no rational basis.’” Center for

Powell Crossing, LLC v. City of Powell, Ohio, 173 F. Supp. 3d 639, 680 (S.D. Ohio 2016) (quoting

Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011)). “The latter is

known as the ‘class of one’ theory.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986

(6th Cir. 2012).

In this case, Conteers has not asserted that it has been targeted because of its membership in

a suspect class. Further, although Conteers asserts its First Amendment rights are at issue, a

fundamental rights analysis is not appropriate because Conteers has only asserted that it was deprived

of those rights, not a class of people or entities. Id. (“Although Bench Billboard claims its First

Amendment rights are at issue, the record reveals that Bench Billboard alleges only it was deprived

18

of those rights. The Supreme Court has only applied [heightened] scrutiny to equal protection claims

where the plaintiff alleges that the government infringes on the fundamental right of a class of

people[,] and this Court has declined to extend the fundamental rights analysis to classes of one.”)

(internal quotations and citations omitted); accord Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d

250, 260-61 (6th Cir. 2006).

Thus, Conteers must proceed on a class of one theory. To prevail on this theory, a plaintiff

must establish that it suffered “disparate treatment from similarly situated individuals and that the

government actors had no rational basis for the difference . . . or that the ‘challenged government

action was motivated by animus or ill-will.’” Paterek v. Vill. of Armada, Mich., 801 F.3d 630, 650

(6th Cir. 2015) (quoting EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 864 (6th Cir. 2012)).

To be similarly situated, a comparator business “must be similar in ‘all relevant respects.’” Id.

(quoting United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011)). Courts should not demand

precise correlation, but rather should seek relevant similarity. Center for Powell Crossing, 173 F.

Supp. 3d at 681.

Here, Conteers has not established that it is similarly situated to the other outdoor advertisers

that were permitted to erect billboards over fifty feet tall. Most notably, Conteers’ proposed billboard

is approximately 200 feet tall, which is four times the applicable height limit in the height district in

which the billboard will be located. (Doc. No. 5-2 at ¶ 10.) Conteers has not shown that any of the

other approved billboards that exceeded fifty feet were nearly as tall as Conteers’ billboard or

exceeded the applicable height limit by a similar amount. Indeed, one of the billboards is sixty feet

in height, and it does not appear that Conteers has even identified the exact height of the other

billboards. (Doc. No. 30-2 at 13; Doc. No. 36-1 at 12.) As such, Conteers has not identified other

19

similarly situated individuals that were treated more favorably. See Braun v. Ann Arbor Charter

Twp., 519 F.3d 564, 575 (6th Cir. 2008) (“Although the plaintiffs claim that they have been treated

differently from other individuals seeking rezoning, they fail to allege any specific examples of

similarly situated individuals, let alone evidence of situations where the proposed rezoning was

similar in scale or impact.”); Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036-37

(6th Cir. 1992) (“Although Silver asserts that the Board has issued conditional zoning certificates to

other condominium developments, he has presented no evidence that these other developments were

similarly situated to his development. Accordingly, Silver has not established an equal protection

claim.”). Therefore, Conteers has not established a substantial likelihood of success on the merits of

its claim under the Equal Protection Clause.

Accordingly, the Court finds that Conteers has not established a sufficient likelihood of

success on the merits of any of its claims to warrant a preliminary injunction precluding Defendants

from enforcing the fifty-foot height limit on structures in the height district in which Conteers’

proposed billboard is located. “The failure to show any likelihood of success on the merits—let alone

a strong or substantial likelihood of success—is enough, by itself, to warrant denial of preliminary

injunctive relief.” Barrio Bros., LLC. v. Revolucion, LLC, No. 1:18CV2052, 2018 WL 5960772, at

*6 (N.D. Ohio Nov. 14, 2018) (quoting Essroc Cement Corp. v. CPRIN, Inc., 593 F. Supp. 2d 962,

969 (W.D. Mich. 2008)). Therefore, the Court will deny Conteers’ Second Motion for Preliminary

Injunction.3

3 The Court also declines to grant the preliminary injunction in part to enjoin the enforcement of the height limit in Section

153.385(A)(6). Defendants have apparently conceded that this height limit does not apply to Conteers. In addition, such

a partial injunction would have no practical effect and is not necessary to prevent irreparable harm because Defendants

would continue to enforce the equivalent height limit pursuant to the height district limit applicable to Conteers’ proposed

billboard.

20

V. Conclusion

For the reasons set forth above, Defendants’ Motion to Strike (Doc. No. 37) is DENIED,

Defendants’ Motion for Leave to File Sur-Reply (Doc. No. 38) is GRANTED IN PART and DENIED

IN PART, and Conteers’ Second Motion for Preliminary Injunction (Doc. No. 30) is DENIED.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: January 26, 2021 U. S. DISTRICT JUDGE

The Court also notes that no hearing in conjunction with Conteers’ Second Motion for Preliminary Injunction was

necessary because no facts material to the preliminary injunction are in dispute. See Certified Restoration, 511 F.3d at

552 (“[A] hearing is only required when there are disputed factual issues, and not when the issues are primarily questions

of law.”).

21