# James Outdoor LLC v. City of Northport Alabama

> District Court, N.D. Alabama · May 28, 2024

URL: https://www.frixlaw.com/law-library/cases/9992180

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** May 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9992180

## How later opinions describe it (automated extraction)

- holding that a plaintiff lacked standing to bring a First Amendment as-applied challenge to various municipal ordinances
- holding that a regulation violated the First Amendment where the regulation permitted decisionmakers to deny permit applications based on “only . . . their own ideas of ‘public welfare, peace, safety, health, decency, good order, morals or convenience’”
- explaining that certain jurisdictional challenges “must begin” with “[t]he injury alleged . . . in the[] . . . complaint”
- discussing Supreme Court precedent that upheld “‘a first-come, first-served’ method of allocating booths at the state fair”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

JAMES OUTDOOR, LLC, )
)
Plaintiff, )
)
v. ) Case No.: 7:23-cv-1092-ACA
)
CITY OF NORTHPORT, )
ALABAMA, )
)
)
Defendant. )

MEMORANDUM OPINION
Plaintiff James Outdoor, LLC operates a billboard advertising business. In
2021, James Outdoor invested a substantial amount of money and time to develop a
billboard on property which it believed to be within Tuscaloosa County limits. James
Outdoor later learned the property is within the limits of the Defendant City of
Northport. The City notified James Outdoor that the proposed billboard was on
property within the City limits, and James Outdoor: (1) sought to file an
administrative appeal of that determination; (2) requested to apply for a special
exemption; and (3) applied for a variance.
The City did not permit James Outdoor to pursue an administrative appeal or
special exemption request, and after two hearings, the City’s zoning board denied
James Outdoor’s variance application. James Outdoor then filed suit, alleging the
following claims 1 through 42 U.S.C. § 1983:
• Count One: The City’s regulations for sign permit applications and
variance procedures violate the First Amendment to the United States
Constitution;

• Count Two: The City’s refusal to give James Outdoor the opportunity
to file an administrative appeal or seek a special exemption violated its
right to due process as guaranteed by the Fourteenth Amendment to the
United States Constitution; and

• Count Three: The City’s regulations for sign permit applications violate
equal protection under the law as guaranteed by the Fourteenth
Amendment to the United States Constitution.

(Doc. 1 ¶¶ 26, 46, 48, 52–53, 61–89). In Count One and Count Three, James Outdoor
challenges the regulations both facially and as applied. (Id. ¶¶ 56, 87).
After James Outdoor commenced this lawsuit, the City amended its sign
permit regulations. (See doc. 7-1). The City now moves to dismiss the complaint,
contending that: (1) it is a shotgun pleading; (2) revised regulations moot the facial
challenges to the City’s former regulations; (3) James Outdoor lacks standing for its
as-applied challenges to the sign permit regulations; and (4) James Outdoor has not
adequately alleged its claims. (See doc. 7). The court WILL GRANT IN PART and
WILL DENY IN PART the City’s motion.

1 James Outdoor also asserts that the City’s regulations for sign permit applications and
variance procedures violate Article I, Section Four of the Alabama Constitution and that the City
violated Alabama’s zoning procedures law. (See doc. 1 ¶¶ 26, 46, 48, 52–53, 61–79, 90–94).
Because the court will decline to exercise supplemental jurisdiction over the state law claims, see
infra at 22–23, the court’s discussion of James Outdoor’s claims is limited to the federal claims.
Although James Outdoor could have alleged its claims with more precision,
the court is unpersuaded that the complaint is so incomprehensible that dismissal on

shotgun pleading grounds is appropriate. Accordingly, the court WILL DENY the
City’s motion on that ground.
Regarding the City’s challenges to the court’s jurisdiction, because the City’s

revised sign permit regulations resolve many of James Outdoor’s constitutional
critiques and the City’s disavows any intent to return to the former sign permit
regulations, the court WILL FIND AS MOOT all facial challenges in Count One
and all but one facial challenge in Count Three. But because James Outdoor does

not allege that it applied for a sign permit and does not allege that it intends to do so,
James Outdoor lacks standing to pursue its as-applied challenge to the sign permit
regulations in Count One and its facial and as-applied challenges to the sign permit

regulations in Count Three. Accordingly, the court WILL DISMISS WITHOUT
PREJUDICE all of Count Three and all but the part of Count One that challenges
the variance procedures for lack of subject matter jurisdiction.
With this court’s jurisdiction are James Outdoor’s as-applied challenge to the

variance procedures (Count One) and its due process claim (Count Two), but James
Outdoor has not adequately alleged those claims. Accordingly, the court WILL
GRANT the City’s motion and WILL DISMISS James Outdoor’s remaining

federal law claims WITH PREJUDICE. Having resolved all claims arising under
federal law, the court WILL DECLINE to exercise supplemental jurisdiction over
the state law claims and WILL DISMISS those claims WITHOUT PREJUDICE.

I. BACKGROUND

In deciding a motion to dismiss for failure to state a claim, the court must
accept as true the factual allegations in the complaint and construe them in the light
most favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cnty., 685 F.3d 1261,
1265 (11th Cir. 2012). Accordingly, these are the facts alleged by James Outdoor
construed in the light most favorable to it:
James Outdoor “seeks to enter into the outdoor advertising business” by

maintaining billboards for various commercial and noncommercial entities. (Doc. 1
¶ 1). The City’s code does not permit billboards like James Outdoor’s within City
limits. (Id. ¶ 5). But James Outdoor can put up signs outside the Tuscaloosa County’s

limits so long as James Outdoor complies with Tuscaloosa County’s rules. (See id.).
James Outdoor found a property that, based on maps available to it, was not
within the City’s limits. (Id. ¶¶ 6–8). So James Outdoor began the process of
obtaining lease agreements, funding, and applications with other government

agencies to begin its billboard construction. (Doc. 1 ¶¶ 9–17). During this process,
representatives with the City confirmed to the state transportation department that
the intended billboard location was not in City limits. (Id. ¶¶ 12–13). But when

James Outdoor applied for an electrical permit, the City refused that application,
contending that the property became part of the City’s limits in 2015 and that the
City had merely failed to update its maps. (Id. ¶¶ 19–21).

James Outdoor alleges that it sought three potential remedies for the City’s
change in position: (1) the ability to file an administrative appeal; (2) the opportunity
to apply for a special exemption; and (3) applied for a variance with the City’s zoning

board. (Id. ¶ 22). The City did not permit James Outdoor to file an administrative
appeal or request a special exemption, but the zoning board did consider James
Outdoor’s variance application. (See doc. 1 ¶ 23).
The City’s zoning board held two hearings on James Outdoor’s application at

which James Outdoor presented evidence and testimony that the City’s failure to
update its maps “led to the expenditure of over $180,000 on the” billboard “and
hundreds of hours of work.” (Id. ¶¶ 27–28, 40; see also id. ¶¶ 31–33) (describing the

supplemental information James Outdoor provided the City’s zoning board). James
Outdoor had to establish a “case of an extreme hardship” to obtain a variance. (Id.
¶ 26). Because neither “[a]cts of God” nor “economic conditions” qualify as extreme
hardships (doc. 1 ¶ 26), the board ultimately “voted to deny the variance request”

(id. ¶ 40). James Outdoor has appealed that decision. (Id. ¶ 41).
James Outdoor wants to post other signs in the City in the coming year and
contends that “it is essential that the City’s rules and procedures for sign approvals

be corrected as soon as possible.” (Id. ¶ 44). After James Outdoor filed its lawsuit,
the City “spent substantial money revising its regulations to ensure that they
address[ed]” some of James Outdoor’s concerns. (Doc. 7-1 at 6 ¶ 10). And the City

has disavowed any intent to “revert[] to [the] former regulations.” (Id.).
II. DISCUSSION

The City contends that dismissal is appropriate for three general reasons. First,
the City contends that James Outdoor’s complaint is an impermissible shotgun
pleading. (Doc. 8 at 7–9). Second, the City contends that the court lacks jurisdiction
over the claims in Count One and Count Three. (Id. at 9–23). Third, the City
contends that James Outdoor has not adequately alleged its claims. (Id. at 23–36).

The court ordinarily considers challenges to the court’s jurisdiction first. See
United States v. Meyer, 50 F.4th 23, 31 (11th Cir. 2022) (“[A] federal court cannot
address the merits of a dispute unless it satisfies itself that subject-matter jurisdiction

exists.”). But resolving the City’s challenges to the court’s jurisdiction requires the
court to first discern what claims James Outdoor has alleged. (See, e.g., doc. 8 at 10–
16); see also, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 476–77 (1982) (explaining that certain

jurisdictional challenges “must begin” with “[t]he injury alleged . . . in the[] . . .
complaint”).
So the court will first explain how the court construes James Outdoor’s claims
and then consider whether the court has jurisdiction over those claims. The court’s

analysis will then proceed to the merits of any claims properly before the court.
1. The complaint is not a shotgun pleading.

The City contends that James Outdoor’s complaint is a shotgun pleading
because (1) the complaint does not separate each cause of action into a different
count and (2) the complaint is replete with conclusory and vague allegations. (Doc.
8 at 7–9). “A dismissal on shotgun pleading grounds is appropriate where it is
virtually impossible to know which allegations of fact are intended to support which

claim(s) for relief.” Turner v. Williams, 65 F.4th 564, 576 n.11 (11th Cir. 2023)
(quotation marks omitted; emphasis in original). Although the complaint is not a
model of clarity, dismissal is inappropriate.

The court instead “strip[s] [the complaint] of [its conclusory statements of fact
and legal conclusions] and focus[s] on the facts alleged and the legal theories they
allegedly support.” Id. at 577. In doing so, the court construes the complaint to allege
the following federal law claims through 42 U.S.C. § 1983:

• Count One: The City’s regulations for sign permit applications and
variance procedures violate the First Amendment to the United States
Constitution;

• Count Two: The City’s refusal to give James Outdoor the opportunity
to file an administrative appeal or seek a special exemption violated its
right to due process as guaranteed by the Fourteenth Amendment to the
United States Constitution; and
• Count Three: The City’s regulations for sign permit applications violate
equal protection under the law as guaranteed by the Fourteenth
Amendment to the United States Constitution.

(Doc. 1 ¶¶ 26, 46, 48, 52–53, 61–89). In Count One and Count Three, James Outdoor
challenges the regulations both facially and as applied. (Id. ¶¶ 56, 87).
2. The Court’s Jurisdiction

The judicial power of the United States extends only to actual cases and
controversies. See U.S. Const. art. III. “This case-and-controversy requirement
demands [federal courts] can hear only justiciable matters . . .” Baughcum v.
Jackson, 92 F.4th 1024, 1030 (11th Cir. 2024) (emphasis omitted). “Though there
are many related doctrines, a justiciability inquiry is typically composed of three
strands: standing, ripeness, and mootness.” Id. (quotation marks omitted). And the
failure of any strand divests the court of jurisdiction. Id.
In Count One and Count Three, James Outdoor challenges the City’s sign

regulations as constitutionally infirm both facially and as applied. (Doc. 1 ¶¶ 26, 46,
48, 52–53, 61–79; 86–89). The City challenges two aspects of justiciability for these
claims: mootness and standing. (See doc. 8 at 9–23). The court “can address
jurisdictional issues in any order [the court] choose[s],” Acheson Hotels, LLC v.

Laufer, 601 U.S. 1, 4 (2023), so the court will begin with the City’s mootness
argument because the City presented that argument first, see, e.g., Baughcum, 92
F.4th at 1030 (considering jurisdictional challenges in the order the parties presented
them).

a. Mootness

After James Outdoor filed its complaint, the City “spent substantial money
revising its regulations to ensure they address any concerns” that James Outdoor had
raised. (Doc. 7-1 at 6 ¶ 10; see also id. at 4–5 ¶¶ 6–9). And “the City does not intend
to . . . revert[] to [its] former regulations that have been challenged in this case.” (Id.
at 6 ¶ 10). The City asserts that because it has revised these regulations and does not
intend to return to them, James Outdoor’s facial challenges to the regulation in Count

One and Count Three are moot. (Doc. 8 at 12; see also doc. 7-1 at 11–36). James
Outdoor “concedes that its request for injunctive relief . . . is moot.” (Doc. 12 at 12).
Faced with this concession, the court WILL GRANT the City’s motion as to James

Outdoor’s request for injunctive relief.
But James Outdoor contends that its claims are not completely moot because
it requests monetary damages. (See doc. 12 at 12). On reply, the City clarifies that
its mootness argument applies only to James Outdoor’s facial challenge to the

regulations and argues that James Outdoor’s request for monetary damages is
relevant only for its as-applied challenge to the regulations. (See doc. 15 at 4).
“[G]enerally, a challenge to the constitutionality of a statute is mooted by

repeal of the statute.” Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th
Cir. 2005) (quotation marks omitted). But this general rule is subject to two
limitations. See, e.g., id. at 1333; Del Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th

1214, 1218 n.1 (11th Cir. 2022). First, “it must be absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.” Nat’l Advert. Co.,
402 F.3d at 1333 (quotation marks omitted; alterations accepted). In this regard,

“governmental entities and officials have been given considerably more leeway than
private parties in the presumption that they are unlikely to resume illegal activities.”
Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328–29 (11th Cir.
2004). And second, “when an ordinance is repealed by the enactment of a

superseding statute, then the superseding statute or regulation moots a case only to
the extent that it removes challenged features of the prior law.” Del Castillo, 26 F.4th
at 1218 n.1.

“Damage claims can save a § 1983 claim from mootness, but only where such
claims allege compensatory damages or nominal damages for violations of
procedural due process.” DA Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254,
1259 (11th Cir. 2007) (footnote omitted). James Outdoor does not claim either

compensatory or monetary damages for violations of procedural due process in
Count One or Count Three. (See doc. 1 ¶¶ 26, 46, 48, 52–53, 61–79; 86–89). So the
court considers whether the City has established that it is “absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur” and that the
revised regulations “remove[] [all] challenged features.” Nat’l Advert. Co., 402 F.3d
at 1333 (quotation marks omitted; alterations accepted); Del Castillo, 26 F.4th at

1218 n.1.
In Count One, James Outdoor alleges the City’s former sign permit
regulations violate the First Amendment because the former regulations are content-

based and provide decisionmakers with unfettered discretion. (Doc. 1 ¶¶ 55–79).
And in Count Three, James Outdoor alleges that the City’s former sign permit
regulations violate the Equal Protection Clause because they “favor the speech of
governments and other favored speakers and organizations” over other speakers.

(See, e.g., id. ¶ 87; see also id. ¶¶ 86–89). The City argues that it corrected this defect
by “eliminat[ing] the challenged provisions at issue,” except where “excluded [from
regulation] by law, such as signs erected as a governmental function or public duty

of a sovereign.” (Doc. 8 at 13). And the City disavows any intent to return to the
previous regulations. (Doc. 7-1 at 6 ¶ 10).
The court is persuaded that all facial challenges in Count One are moot
because the City’s new sign permit regulations “remove[] [the] challenged features

of the prior” regulations and the City does not intend to revert to the previous sign
permit regulations. See Del Castillo, 26 F.4th at 1218 n.1; see also Butler v. Alabama
Jud. Inquiry Comm’n, 261 F.3d 1154, 1158 (11th Cir. 2001) (observing that

subsequent repeal of the challenged action can moot a facial challenge to
government action on First Amendment grounds). Accordingly, the court WILL
GRANT the City’s motion and WILL FIND AS MOOT all facial challenges to the

former regulations in Count One.
The court is not persuaded that the City’s new sign permit regulations moot
all of Count Three. Indeed, the City appears to concede that its new regulations

maintain the favoritism between governmental and private speech that James
Outdoor challenges. (Compare doc. 8 at 13, with doc. 1 ¶¶ 52, 65, 87). But the City
contends—without dispute—that it has otherwise corrected the “constitutional
critiques” James Outdoor alleges. (See doc. 8 at 13). So the court WILL GRANT

the City’s motion and WILL FIND AS MOOT all aspects of Count Three that
facially challenge the sign permit regulations. The remainder of Count Three alleges
that the City maintains constitutionally infirm distinctions between governmental

and private speech. The court addresses this allegation, infra at 15–16.
b. Standing

The City contends that James Outdoor lacks standing to pursue its challenges
to the former sign permit regulations in Count One and Count Three because “James
Outdoor does not allege it ever submitted any sign permit application to the City,
and therefore it could not have been harmed by rules governing such permit
applications.” (Doc. 15 at 6) (emphasis omitted); (see also doc. 8 at 16–23). James

Outdoor does not address this argument, focusing instead on its allegations that the
City rejected James Outdoor’s electrical permit application and delegated
substantial discretion to the zoning board. (See doc. 12 at 17; see also doc. 1 ¶¶ 19,

23, 71, 73–74).
Article III standing has three requirements: “(1) an injury in fact,” i.e., “an
invasion of a legally protected interest”; (2) traceability, i.e., “a causal connection

between the plaintiff’s injury and the challenged action of the defendant”; and
(3) redressability, i.e., “a likelihood, not merely speculation, that a favorable
judgment will redress the injury.” Rojas v. City of Ocala, 40 F.4th 1347, 1350 (11th
Cir. 2022) (quotation marks omitted). The City focuses its arguments on the first and

second standing requirements, contending that James Outdoor has not alleged that it
suffered an injury in fact caused by the allegedly constitutionally infirm sign permit
regulations because James Outdoor did not submit a sign permit application. (See

doc. 8 at 18).
“[T]he injury in fact test requires more than an injury to a cognizable interest”
but rather, “that the party seeking review be himself among the injured.” Koziara v.
City of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004) (quotation marks omitted)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Put differently,
James Outdoor must establish its “concrete stake in this suit.” See Banks v. Sec’y,
Dep’t of Health & Hum. Servs., 38 F.4th 86, 93 (11th Cir. 2022) (quotation marks

omitted). “Although standing in no way depends on the merits of the plaintiff’s
contention that particular conduct is illegal, it often turns on the nature and source
of the claim asserted.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 976 (11th Cir.

2005) (quotation marks omitted). The analysis therefore “must begin” with “[t]he
injury alleged . . . in the[] . . . complaint.” Valley Forge Christian Coll., 454 U.S. at
476–77 (1982); see also, e.g., Baughcum, 92 F.4th at 1034 (starting with the

plaintiff’s “claimed injury”); Bochese, 405 F.3d at 977.
The traceability component of Article III standing considers whether the
plaintiff’s “injury fairly can be traced to the challenged action.” Valley Forge
Christian Coll., 454 U.S. at 472 (quotation marks omitted; emphasis added). This

analysis “is not an exacting standard” and “is less stringent than the tort-law concept
of proximate cause.” Walters v. Fast AC, LLC, 60 F.4th 642, 650 (11th Cir. 2023)
(quotation marks omitted). But “traceability [is] lacking if the plaintiff would have

been injured in precisely the same way without the defendant’s alleged misconduct.”
Id. (quotation marks omitted) (collecting cases).
In Count One, James Outdoor alleges that the following former sign permit
regulations violate the First Amendment to the United States Constitution as applied

to James Outdoor: (1) Section 802 (the “Exempt Signs” provision); (2) Section 803
(the “Prohibited Signs” provision); (3) Sections 804.01 to 804.08 (the “Permitted
Signs” provisions); (4) Section 806.01(B) (the “Procedure for Permanent Signs”

provision); and (5) Section 808 (the “Variances and Waivers” provision). (Doc. 1
¶¶ 62, 67, 70; see also id. ¶¶ 26, 46, 52–53). In Count Three, James Outdoor
challenges the former sign permit regulations facially and as-applied to the extent

those regulations distinguish between governmental and private speech. (Id. ¶ 87);
see also supra at 12. Because James Outdoor can maintain its facial challenges for
only the regulations that affected its activities, see CAMP Legal Def. Fund, Inc. v.

City of Atlanta, 451 F.3d 1257, 1274 (11th Cir. 2006), the court discusses James
Outdoor’s challenges in Count Three together.
The problem, however, is that James Outdoor does not allege that it submitted
a sign permit application. (See doc. 1 ¶¶ 5–21). Instead, James Outdoor submitted a

variance application. (Id. ¶ 22). To have standing for its challenges to the City’s
former sign permit regulations, James Outdoor must establish that the allegedly
constitutionally infirm regulations were applied to it. See, e.g., Granite State

Outdoor Advert., Inc. v. City of Clearwater, 351 F.3d 1112, 1117 (11th Cir. 2003)
(observing that in an as-applied challenge, a plaintiff “has standing to challenge the
constitutionality of only” the provisions of a municipal permit regulation that were
applied to the plaintiff’s application). But because James Outdoor does not allege

that it submitted a sign permit application or that it intended to do so, James Outdoor
lacks standing to make an as-applied challenge to the regulations that apply to sign
permits in Count One, i.e., the Exempt Signs provision, the Prohibited Signs
provision, the Permitted Signs provisions, or the Procedure for Permanent Signs
provision, and the facial and as-applied challenges in Count Three.

The court acknowledges that Granite State Outdoor Advertising, Inc. was
decided on a different procedural posture than this case, and James Outdoor
emphasizes that it has not had the benefit of developing an evidentiary record. (See

doc. 12 at 17–18). But irrespective of the procedural posture, to establish Article III
standing for an as-applied challenge, James Outdoor must allege that the regulations
were—or could reasonably be expected to be—“applied to it.” Club Madonna, Inc.
v. City of Miami Beach, 924 F.3d 1370, 1382–83 (11th Cir. 2019) (holding that a

plaintiff lacked standing to bring a First Amendment as-applied challenge to various
municipal ordinances). And James Outdoor has not carried that burden.
Accordingly, the court WILL GRANT the City’s motion as to those aspects of

James Outdoor’s claims and WILL DISMISS those claims WITHOUT
PREJUDICE for lack of jurisdiction.
But James Outdoor does have standing as to one aspect of Count One, in
which James Outdoor alleges that it (1) submitted a variance application and (2) the

zoning board denied that application due to the allegedly unconstitutional scope of
its discretion. (See doc. 1 ¶¶ 22, 40). Accordingly, the court’s analysis will proceed
to the extent that Count One asserts that the Variances and Waivers provision
violates the First Amendment as applied to James Outdoor’s variance application
and the zoning board’s discretion to deny that application.

3. Whether James Outdoor has adequately alleged its claims

The City contends that James Outdoor has not adequately alleged its claims.
(See doc. 8 at 24–34). The court examines each claim in turn.
a. Count One

In Count One, James Outdoor alleges that the Variances and Waivers
provision of the City’s sign regulations created an unacceptable prior restraint on
speech by giving the zoning board too much discretion to conduct its “extreme
hardship” analysis. (See doc. 1 ¶¶ 27, 73); see also supra at 16. The City contends
that James Outdoor has not adequately alleged a claim for relief because “there are
clear and mandatory standards for granting or den[ying] . . . a variance.” (Doc. 8 at

27). In response, James Outdoor contends that the criteria used for evaluating zoning
variances is “vague and undefined.” (Doc. 12 at 27).
“A prior restraint on expression exists when the government can deny access
to a forum for expression before the expression occurs.” United States v. Frandsen,

212 F.3d 1231, 1236–37 (11th Cir. 2000). Prior restraints generally occur in the
context of licensing or permitting schemes. See Wright v. City of St. Petersburg, 833
F.3d 1291, 1298 (11th Cir. 2016) (collecting cases). “To pass constitutional muster

a law subjecting the exercise of First Amendment freedoms to the prior restraint of
a [variance] must contain narrow, objective, and definite standards to guide the
[issuing] authority.” Id. at 1299 (quotation marks omitted); see also, e.g., Barrett v.

Walker Cnty. Sch. Dist., 872 F.3d 1209, 1220 (11th Cir. 2017) (“[T]he plainest
example of an unconstitutional grant of unbridled discretion is a law that gives a
government official power to grant permits but that provides no standards by which

the official’s decision must be guided.”).
At the time of James Outdoor’s variance application, the Variances and
Waivers provision provided: “the [zoning board] shall only grant a variance in the
case of an extreme hardship. Acts of God and economic conditions shall not be

considered hardships for purposes of this section.” (Doc. 1 ¶ 26). So the provision
directed the zoning board to deny variances unless the applicant could show an
“extreme hardship” unrelated to acts of God or economic conditions. (See id.). And

James Outdoor alleges that it adduced evidence and testimony that it had expended
a substantial amount of money and “hundreds of hours of work” on the billboard
project. (Id. ¶ 27). The court is not persuaded that this regulation reflects “an
unconstitutional grant of unbridled discretion.” Barrett, 872 F.3d at 1220.

Undeniably, the “extreme hardship” analysis appears less objective than other
prior restraints that have been upheld by federal courts. See, e.g., Lady J. Lingerie,
Inc. v. City of Jacksonville, 176 F.3d 1358, 1362 (11th Cir. 1999) (discussing

Supreme Court precedent that upheld “‘a first-come, first-served’ method of
allocating booths at the state fair”). But the “unbridled discretion” standard “implies
that some measure of discretion is acceptable.” Id. So the fact that the zoning board

had some discretion does not mean that James Outdoor has alleged that the zoning
board had constitutionally infirm discretion. See id. And perhaps most fatal for
James Outdoor’s First Amendment claim: “None of the grounds for denying a

[variance] has anything to do with what a speaker might say.” Thomas v. Chicago
Park Dist., 534 U.S. 316, 322 (2002); but see, e.g., Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 150 (1969) (holding that a regulation violated the First
Amendment where the regulation permitted decisionmakers to deny permit

applications based on “only . . . their own ideas of ‘public welfare, peace, safety,
health, decency, good order, morals or convenience’”).
Implicit in James Outdoor’s allegations and arguments is not that the zoning

board had constitutionally impermissible discretion, but rather, that the board’s
conclusion that James Outdoor had not established an “extreme hardship” was
incorrect. (See, e.g., doc. 1 ¶¶ 30–33). But “federal courts do not sit as zoning boards
of review and should be most circumspect in determining that constitutional rights

are violated in quarrels over zoning decisions.” Spence v. Zimmerman, 873 F.2d 256,
262 (11th Cir. 1989) (collecting cases). Accordingly, the court concludes that James
Outdoor has not adequately alleged a claim for relief in Count One and WILL

GRANT the City’s motion to dismiss.
b. Count Two

In Count Two, James Outdoor contends that the City’s refusal to give it an
appeal of the City’s determination that the property at issue was within City limits
or process the separate request for a special exception has deprived James Outdoor
of procedural due process. (Doc. 1 ¶¶ 80–85; see also doc. 8 at 28; doc. 12 at 28;

doc. 15 at 12). To adequately allege a procedural due process claim through § 1983,
James Outdoor must allege: “(1) a constitutionally protected interest in life, liberty
or property; (2) governmental deprivation of that interest; and (3) the constitutional
inadequacy of procedures accompanying the deprivation.” Bank of Jackson Cnty. v.

Cherry, 980 F.2d 1354, 1357 (11th Cir. 1992). The City contends that James Outdoor
has not adequately alleged the third prong: the constitutional inadequacy of
procedures accompanying the deprivation. (See, e.g., doc. 8 at 29–30; doc. 15 at 13).

As an initial matter, City’s brief exceeds the scope of what James Outdoor has
alleged in Count Two. The court’s analysis therefore begins with the allegations in
the complaint. James Outdoor identifies the three separate forms of relief that he
sought from the City: (1) the opportunity to file what James Outdoor calls an

“administrative appeal” (see doc. 12 at 29); (2) the opportunity to apply for a “special
exception” (doc. 1 ¶ 22); and (3) a variance (id.). But in Count Two, James Outdoor
alleges that the City deprived it of due process “[b]y refusing to schedule [James

Outdoor’s] request for an [administrative] appeal and separate request for a special
exception.” (Id. ¶ 83; see also doc. 1 ¶¶ 81–85). So the court disregards the City’s
arguments regarding the variance hearings because James Outdoor has not sought

relief on that basis. (See id. ¶¶ 81–85).2
The City contends that it did not deny James Outdoor any process because
James Outdoor “has an array of adequate state remedies at its disposal, including

filing a writ of mandamus.” or challenging the City’s conduct through its appeal of
the zoning board’s decision. (See doc. 8 at 30; doc. 15 at 13). In response, James
Outdoor argues that its appeal of the variance denial is an insufficient remedy
“because Alabama law limits the scope of appeals . . . to a review of the issues heard

by the” zoning board. (Doc. 12 at 28–29). James Outdoor does not address the
availability of a mandamus petition. (See id.).
First, James Outdoor correctly describes Alabama law: on appeal, “[t]he scope

of inquiry is the same as that before the” zoning board. Bd. of Zoning Adjustment of
Hueytown v. Warren, 366 So. 2d 1125, 1128 (Ala. 1979). And because the zoning
board did not decide the issues James Outdoor wanted to raise in its administrative
appeal and request for special exemption, an appeal of the zoning board’s decision

is no remedy at all. See id.

2 And James Outdoor clarifies in its briefing on the City’s motion that its procedural due
process claim is based only on “the City’s refusal to allow James [Outdoor] to pursue an
administrative appeal and a special exemption.” (See doc. 12 at 28–29).
But the City has correctly identified the availability of other state remedies,
including a mandamus petition. A mandamus petition is generally unavailable when

a party can appeal a zoning board’s decision. See, e.g., Bradley Outdoor, Inc. v. City
of Florence, 962 So. 2d 824, 834 (Ala. Civ. App. 2006). But when a plaintiff
complains of matters outside the scope of what the zoning board can resolve a

mandamus is available. E.g., Beaird v. City of Hokes Bluff, 595 So. 2d 903, 905
(Ala. Civ. App. 1992) (“The board of zoning adjustment has no power to consider
the issues raised in [the plaintiff’s] complaint, since an administrative body has no
power to declare an ordinance unconstitutional.”). Accordingly, there are adequate

remedies available to James Outdoor under Alabama law and WILL GRANT the
City’s motion as to Count Two and WILL DISMISS Count Two WITH
PREJUDICE.

4. Supplemental Jurisdiction

Because the court will dismiss all claims arising under federal law, only the
claims arising under Alabama law remain. A “district court[] may decline to exercise
supplemental jurisdiction” where, as here, it “has dismissed all claims over which it
has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Eleventh Circuit encourages
district courts to do so if all federal claims are dismissed before trial. Raney v.
Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004); accord Silas v. Sheriff of

Broward Cnty., 55 F.4th 863, 866 (11th Cir. 2022) (“A district court . . . will rarely
err by declining supplemental jurisdiction after the federal claims that supported its
jurisdiction are dismissed.”). The court therefore WILL DECLINE to exercise
jurisdiction over the remaining claims and WILL DISMISS those claims
WITHOUT PREJUDICE.
Hl. CONCLUSION
The court WILL GRANT IN PART and DENY IN PART the City’s motion
to dismiss. (Doc. 7). The court will enter a separate final order of dismissal consistent
with this memorandum opinion.
DONE and ORDERED this May 28, 2024.
fo
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9992180. Public record. Not legal advice.