Valley Outdoor, Inc. v. City of Riverside ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALLEY OUTDOOR, INC., a 
California corporation,
Plaintiff-Appellant, No. 04-55029
v.
 D.C. No.
CV-00-00370-DT
CITY OF RIVERSIDE, a California
municipal corporation; STEPHEN OPINION
WHYLD, an individual; DOES, 1-50,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Argued and Submitted
October 18, 2005—Pasadena, California
Filed April 27, 2006
Before Daniel M. Friedman,* Diarmuid F. O’Scannlain, and
Richard A. Paez, Circuit Judges.
Opinion by Judge O’Scannlain;
Concurrence by Judge Friedman
*Daniel M. Friedman, Senior United States Circuit Judge for the Fed-
eral Circuit, sitting by designation.
4805
VALLEY OUTDOOR v. CITY OF RIVERSIDE 4809
COUNSEL
Eliot G. Disner, Van Etten Suzumoto & Becket LLP, Santa
Monica, California, argued the cause for the plaintiff-
appellant. Darrel C. Menthe, Van Etten Suzumoto & Becket
LLP, Santa Monica, California, was on the briefs.
Timothy T. Coates, Greines, Martin, Stein & Richland LLP,
Los Angeles, California, argued the cause for the defendant-
appellee. Gregory P. Priamos, City Attorney, and James E.
Brown, Office of the City Attorney, Riverside, California;
Michael A. Bell, Bell, Orrock & Watase, Riverside, Califor-
nia; and Alan Diamond, Greines, Martin, Stein & Richland
LLP, Los Angeles, California, were on the brief.
4810 VALLEY OUTDOOR v. CITY OF RIVERSIDE
OPINION
O’SCANNLAIN, Circuit Judge:
In this challenge to a municipal billboard ordinance, we
must decide whether a billboard company has standing to
assert various claims under the First and Fourteenth Amend-
ments of the U.S. Constitution.
I
Valley Outdoor, Inc. (“Valley”) leases outdoor advertising
space. Though it owns billboards throughout Southern Cali-
fornia, of particular concern in this case are five billboards
which it erected within the City of Riverside, California.
A
Without having applied for permits to do so, Valley began
to pour the foundations for five billboards on January 8, 2000.
A then-effective provision of the Riverside Municipal Code
prohibited billboards within 750 feet of a freeway. See RIVER-
SIDE, CAL., MUN. CODE § 19.76.020(B)(2)(a)(vii) (enacted
1983). See generally id. ch. 19.76 (“Original Ordinance”).
Valley concedes that each of the five billboards at issue is
located within 100 feet of the 91 Freeway. Before completing
construction, Valley commenced this action against the City
on January 10, 2000, initially contending, under 42 U.S.C.
§ 1983, that the Original Ordinance infringed upon Valley’s
First Amendment rights.
Three days later, however, the California Court of Appeal,
in unrelated litigation, issued a decision invalidating certain
provisions of the Original Ordinance. See City of Riverside v.
Outdoor Media Group, Inc., No. E022351 (Cal. Ct. App.
2000). Specifically, the court struck down Sections
19.76.020(1)(C) (a ban on off-premises billboards) and
19.76.020(2)(A)-(N) (various content-based exceptions to the
VALLEY OUTDOOR v. CITY OF RIVERSIDE 4811
ban), which included the prohibition on signs within 750 feet
of a freeway.
Ten days after filing this lawsuit, J. Keith Stephens, presi-
dent of Valley, attempted to tender permit application materi-
als but was rebuffed at the City’s filing window because, he
was told, the City still would not permit billboards within 750
feet of a freeway. By February 20, 2000, Valley completed
construction of all five billboards. On February 25, Valley
again attempted to apply for the required permits. This time,
the City accepted the applications, and city officials stated
that if additional information became necessary Valley could
provide it by filing a “correction letter.”
While Valley’s applications were pending, the City,
impelled by the Outdoor Media Group decision, enacted a
new ordinance with an effective date of March 2, 2000
(“Amended Ordinance”), restoring the prohibition on com-
mercial off-site signage. Among other things, the Amended
Ordinance re-adopted the 750-foot freeway exclusion zone.1
Subsequently, Valley received a letter from the City, dated
March 1, 2000, which again rejected its permit applications.
The reasons stated for rejection were: (1) Valley had provided
an imprecise identification of the color and materials used for
the sign uprights; and (2) Valley had failed to provide specific
street addresses for two sign locations. Rather than request a
correction letter, the City returned Valley’s applications and
fee payment.
1
We note that the City has yet again rewritten the section of its zoning
code governing signs. See Riverside, Cal., Ordinance 6804 (June 14,
2005), available at http://www.riversideca.gov/planning/application-
forms/O-6804-signs.pdf. Unless otherwise indicated, we cite to the munic-
ipal code as it appeared at the time of the events at issue here. We leave
to the district court the opportunity to consider whether the new code pro-
visions (which were not brought to our attention by the parties) have any
relevance to disposition of the merits. See Jacobus v. Alaska, 338 F.3d
1095, 1102-04 (9th Cir. 2003).
4812 VALLEY OUTDOOR v. CITY OF RIVERSIDE
On March 3, 2000, the City issued a “Stop Work Notice”
for each billboard. Also, by letter dated March 21, 2000, it
explained that the signs “d[id] not comply with one or more
of the various non-content based physical criteria of the City’s
sign ordinance including such things as sign area, sign height
and proximity to the freeway” (emphasis added). The City
subsequently issued five “Notice[s] to Remove Signs,” which
explicitly relied, in part, on the substantive restrictions reen-
acted by the Amended Ordinance.
B
In its Third Amended Complaint, Valley seeks declaratory
relief that the Original and Amended Ordinances violate the
First and Fourteenth Amendments by drawing content-based
distinctions and denying equal protection of the law; injunc-
tive relief to prevent the City from enforcing the Original and
Amended Ordinances to require Valley to remove its bill-
boards; declaratory relief that the ordinances effect a Fifth
Amendment taking; and damages under 42 U.S.C. § 1983 for
a violation of Valley’s constitutional rights for actions taken
“under color of law.”
1
On July 10, 2000, in response to the City’s motion to dis-
miss for lack of subject matter jurisdiction, the district court
disposed of Valley’s argument that the Original Ordinance
violated the First Amendment. The district court held that the
constitutionality of the Original Ordinance was a moot issue;
its unconstitutionality had already been determined in Out-
door Media Group, and, in any case, the City had repealed it.
The district court contemporaneously issued a permanent
injunction forbidding the City from applying the invalidated
provisions of the Original Ordinance against Valley.
On April 29, 2002, the district court denied both parties’
cross-motions for summary judgment. In its order, the court
VALLEY OUTDOOR v. CITY OF RIVERSIDE 4813
held as a matter of law that “[t]he sections of the amended
ordinance which regulate off-premises signs are unenforce-
able against the billboards at issue in this action which were
erected prior to March 2, 2000” (emphasis added). As a result,
Valley’s billboards are governed only by those sections of the
Original Ordinance left standing after the Outdoor Media
Group decision. The City does not appeal this ruling.
2
At trial, based solely on Valley’s failure to apply for and to
obtain the required permits before beginning construction on
the five billboards at issue, the City filed a motion in limine
to exclude all evidence that the City “improperly, unlawfully
or unconstitutionally handled or refused to accept or process
permit applications . . . allegedly submitted to the City by
plaintiffs,” which the district court granted on October 21,
2003. In a ruling from the bench, the court explained that a
plaintiff may not challenge the constitutionality of one munic-
ipal code provision where it is in violation of another “inde-
pendently enforceable” provision. Because Valley violated
the City’s permit provisions by beginning construction with-
out applying for a permit, it had no standing, the court stated,
to challenge the substantive provisions of the billboard ordi-
nances.
On November 4, 2003, the district court granted the City’s
motion for judgment as a matter of law. Having granted the
motion in limine excluding all critical evidence, the court
found “no legally sufficient evidentiary basis for a reasonable
jury to find for plaintiff Valley Outdoor, Inc.” FED. R. CIV. P.
50(a)(2). The court subsequently denied Valley’s motion for
a new trial, and Valley timely filed its notice of appeal.2
2
Despite our scheduling of a mediation conference for April 14, 2004,
the City filed an abatement action in the California state court. The trial
court there merely issued an injunction prohibiting Valley from displaying
commercial advertising. The City appealed, and the California Court of
4814 VALLEY OUTDOOR v. CITY OF RIVERSIDE
II
In reviewing the district court’s grant of judgment for the
City, we note the complex procedure by which this case pro-
ceeded: the district court granted judgment as a matter of law
because of an evidentiary ruling which the court based on an
application of standing doctrine. We unravel this controversy
in the same sequence, considering whether Valley had stand-
ing to assert any claims; whether the district court abused its
discretion in granting the motion in limine; and finally,
whether the City was entitled to judgment as a matter of law.
A
On appeal, Valley contends that it has standing to proceed
with claims that fall under one of two categories: a facial
challenge to the substantive provisions of the Original and
Amended Ordinances, e.g., the 750-foot freeway exclusionary
Appeal reversed and remanded with instructions that the trial court enter
an injunction requiring Valley to remove the billboards to their founda-
tions. The California Supreme Court denied review. Because the injunc-
tion would have required removal of the billboards, on January 4, 2006 we
granted a stay of state court proceedings in order to preserve our jurisdic-
tion. See 28 U.S.C. §§ 1651(a), 2283; Sandpiper Village Condo. Ass’n,
Inc. v. Louisiana-Pacific Corp., 428 F.3d 831, 843-44 (9th Cir. 2005);
Bennett v. Medtronic, Inc., 285 F.3d 801, 805-07 (9th Cir. 2002).
On March 2, 2006, Valley moved this court for an order clarifying our
order staying the state court proceedings. Reasoning that the California
Court of Appeal had reversed the state trial court’s injunction, Valley
sought to resume the publication of commercial advertising on its bill-
boards pending our decision. The City responded on March 8, arguing that
our stay order somehow revived the state trial court’s invalidated prelimi-
nary injunction. The City further requested that we confirm “that Valley
remains subject to the prior injunction foreclosing it from placing new
commercial copy on the signs,” or that we lift the stay order insofar as
necessary to enable that restriction. Valley and the City each filed
responses dated March 13 and 14, respectively. In light of our opinion
today, we deny as moot all requests for clarification of the stay order.
VALLEY OUTDOOR v. CITY OF RIVERSIDE 4815
zone, under the First Amendment; and claims arising from the
allegedly arbitrary and unlawful manner in which the City
refused to process Valley’s permit applications.
We consider Valley’s standing on a claim-by-claim basis.3
See, e.g., Donahue v. City of Boston, 304 F.3d 110, 116 (1st
Cir. 2002) (citations omitted). The City argues that Valley
lacks standing across the board because it began construction
before obtaining the required permits.
1
Valley’s first claim is that the Original and Amended Ordi-
nances are facially invalid because their substantive restric-
tions, such as the 750-foot freeway exclusion zone, violate
various First Amendment principles. Valley contends that its
standing is not affected by its failure to obtain permits before
beginning construction because any attempt to do so would
have been futile.
[1] As noted above, the district court held that the City can-
not apply the substantive restrictions of the Original or
Amended Ordinances against Valley. The Original Ordinance
is irrelevant because its substantive restrictions were invali-
dated by Outdoor Media Group; the district court has already
determined its mootness in this case and enjoined its applica-
tion. Further, the Amended Ordinance, as a matter of law,
does not apply to Valley’s signs, which Valley installed prior
to the Amended’s Ordinance’s effective date. Thus, both par-
ties have missed the obvious and most relevant point: because
neither the invalidated provisions of the Original Ordinance
nor the entirety of the Amended Ordinance can be enforced
3
Virtual Media Group, Inc. v. City of San Mateo, 2002 WL 485044(N.D. Cal. 2002), aff’d 66 Fed. Appx. 129, 2003 WL 21259923 (9th Cir.
2003), and Valley Outdoor, Inc. v. County of Riverside, 337 F.3d 1111(9th Cir. 2003), the two cases upon which the district court relied, are
straightforward applications of severability and standing doctrines.
4816 VALLEY OUTDOOR v. CITY OF RIVERSIDE
against the billboards in this case, Valley lacks standing to
challenge the constitutional validity of the substantive restric-
tions. See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S.
383, 392 (1988).4
[2] Thus, the district court properly held that Valley lacked
standing to challenge the substantive provisions of the bill-
board ordinances.
2
Valley also contends that it has standing to assert the sec-
ond category of claims: its challenges to the City’s authority
to accept or to deny late-filed permit applications at its com-
plete discretion, as well as the City’s allegedly arbitrary con-
duct in exercising that discretion in this case.5 Valley argues
4
For the same reason, Valley lacks standing to challenge the Amended
Ordinance under the California Constitution.
We also note that even if Valley had standing because of the City’s pur-
ported application of the Amended Ordinance, the claim became moot
when the district court held that the ordinance does not apply. Cf. Dream
Palace v. County of Maricopa, 384 F.3d 990, 1000 (9th Cir. 2004) (hold-
ing that there is a possibility of immediate injury if the government is “in
the process of amending [the law] so that the challenged restrictions will
apply to pre-existing businesses”).
5
Valley points to circumstantial evidence that suggests, as a factual mat-
ter, an illicit motivation behind the City’s actions. At the time of Valley’s
attempt to avail itself of the Riverside Municipal Code’s “late-filed” per-
mit application process, the City’s original sign ordinance had been invali-
dated. Nonetheless, a city official rejected Valley’s application in reliance
on one of the invalidated provisions, stating that the City would not accept
the materials because the proposed signs were located within 750 feet of
a freeway. The City denied Valley’s second attempt to submit application
materials because, according to the City’s explanation, the papers impre-
cisely stated the shade of gray used on the billboards and the street
addresses at which they were located. Whereas deficiencies of this meager
variety were typically remedied by a simple correction letter, here the City
returned the application materials and instructed Valley to apply anew.
Perhaps not coincidentally, the City penned this rejection only one day
prior to the Amended Ordinance’s effective date. “Instead of granting per-
mits,” Valley concludes, “the City made sure it kept the ball in the air until
it could pass a new statute, which it could then employ to deny permits
to Valley.” Appellant’s Opening Brief at 16.
VALLEY OUTDOOR v. CITY OF RIVERSIDE 4817
that “[i]t was improper to discard the evidence in the record
of selective application” of the permitting requirements, and
we agree.
[3] To establish standing, Valley must show: (1) that there
is an actual or imminent injury, which is concrete and particu-
larized, not hypothetical or conjectural; (2) that the injury is
fairly traceable to the City’s actions; and (3) that it is likely,
not merely speculative, that the injury will be redressed by a
favorable decision. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992); Nat’l Audubon Soc’y, Inc. v. Davis,
307 F.3d 835, 848 (9th Cir. 2002). The City seeks to prevent
Valley from maintaining its billboards, and, as such, the par-
ties do not contest the first two elements. The crucial issue is
redressability.
[4] It is important first to note that the City’s billboard ordi-
nance contains a detailed procedure by which the City will
process an application filed after the beginning of construc-
tion, i.e., a “late-filed” permit application. See RIVERSIDE,
CAL., MUN. CODE § 19.76.210(E).6 Notwithstanding that pro-
cedure and Valley’s compliance therewith, the City refused to
process Valley’s permit applications, and it continues to assert
that Valley lacks standing simply because it filed permit
applications after beginning construction. In essence, then, it
claims complete, discretionary authority to dispose of a late-
filed application as it sees fit in any given case.
[5] If indeed the City possesses authority to seek abatement
in the case of a late filing, then a court order invalidating a
substantive restriction such as the 750-foot freeway perimeter
6
Late-filing applicants are not deemed per se ineligible to receive the
permits and inspections necessary to construct a billboard; the ordinance
indicates only that they must pay a modest penalty fee. RIVERSIDE, CAL.,
MUN. CODE § 19.76.210(E)(1)-(3). Moreover, the code provided explicitly
for a 45-day grace period within which sign builders could file the neces-
sary applications. Id. § 19.76.210(F).
4818 VALLEY OUTDOOR v. CITY OF RIVERSIDE
would not redress Valley’s alleged injury. But an order
reversing the City’s allegedly arbitrary treatment of Valley’s
late-filed application or rejecting the City’s authority to do so
would accomplish that result. See, e.g., IDK, Inc. v. Clark
County, 836 F.2d 1185, 1196 (9th Cir. 1988) (noting that
when the government “revokes or denies licenses for arbitrary
or constitutionally suspect reasons, the aggrieved party may
challenge the application of the regulation in that specific
context”). This is precisely Valley’s claim. Valley’s com-
mencing construction before applying for the required permits
does not constitute disqualifying “self-help,” as the district
court concluded, but actually gives rise to this very case or
controversy. Thus, the district court erred in ruling that Valley
lacked standing to assert constitutional claims related to the
City’s conduct in refusing to process the late-filed permit
applications.
B
[6] Having determined that Valley has standing to the fore-
going extent, we next consider the district court’s ruling on
the motion in limine excluding evidence of the City’s conduct.
Of course, as noted, the City asserts unbridled discretion
under its municipal code to decide which late-filed applicants
get to erect billboards and which do not. As such, there exists
a tenable claim that discretionary authority of this nature over
expressive activity is facially violative of the First Amend-
ment. See Thomas v. Chicago Park Dist., 534 U.S. 316, 323
(2002); Young v. City of Simi Valley, 216 F.3d 807, 819 (9th
Cir. 2000); Desert Outdoor Adver., Inc. v. City of Moreno
Valley, 103 F.3d 814, 818-19 (9th Cir. 1996).7 Given this
7
Upon review of the record, we are satisfied that this argument was suf-
ficiently raised in the complaint, see Yamaguchi v. United States Dep’t of
the Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) (holding that the com-
plaint need only provide “fair notice” to defendant of the claim asserted);
contemplated in the pretrial conference order, see United States v. First
Nat’l Bank of Circle, 652 F.2d 882, 886 (9th Cir. 1981) (holding that such
VALLEY OUTDOOR v. CITY OF RIVERSIDE 4819
claim, the evidence of the City’s allegedly improper rejection
of Valley’s permit applications is indeed relevant. Quite sim-
ply, it goes to whether the City’s exercise of its statutory
authority to grant or to deny late-filed permits for expressive
activity was arbitrary.
Valley has also argued that the City violated its right to
equal protection by arbitrarily, maliciously, and dishonestly
denying the permit applications. See Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000) (holding that a “class of
one” may assert an equal protection claim); Lockary v. Kay-
fetz, 917 F.2d 1150, 1155-56 (9th Cir. 1990). Valley offered
to present evidence showing that the City’s motivation was
malicious, stemming from Valley’s having filed a permit
application during the gap in which the City was legally pow-
erless to prevent the placement of Valley’s signs in proximity
to the freeway. See Esmail v. Macrane, 53 F.3d 176, 180 (7th
Cir. 1995) (holding that the government may not engage in “a
spiteful effort to ‘get’ [an individual] for reasons wholly unre-
lated to any legitimate state objective”). A jury could find that
any differential treatment of Valley’s late-filed application
may have been irrational and wholly arbitrary, in violation of
equal protection principles. See Armendariz v. Penman, 75
F.3d 1311, 1326-27 (9th Cir. 1996) (en banc); Lockary, 917
F.2d at 1155-56. As such, we agree that the evidence of the
City’s allegedly “improper or unlawful” handling of Valley’s
orders are to be liberally construed and that an issue is sufficiently pre-
served if it is at least “implicitly” embraced by the text); preserved in Val-
ley’s offer of proof on the motion in limine, see United States v. Lui, 941
F.2d 844, 846 (9th Cir. 1991) (holding that an issue is preserved for appeal
if “the substance of the objection has been thoroughly explored during the
hearing”); and further preserved on appeal, cf. Indep. Towers of Washing-
ton v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (requiring the parties
to provide reasoned, legal arguments on appeal). The theory as to the
unconstitutionality of the City’s conduct was fully and consistently articu-
lated.
4820 VALLEY OUTDOOR v. CITY OF RIVERSIDE
permit applications is relevant because it is indicative of gov-
ernmental conduct that the Equal Protection Clause may forbid.8
[7] In sum, therefore, the district court abused its discretion
in granting the motion in limine because its exclusion of the
evidence was predicated upon an inaccurate application of
standing doctrine. See Richard S. v. Dep’t of Developmental
Servs., 317 F.3d 1080, 1085-86 (9th Cir. 2003). Evidence of
the manner in which the City “handled or refused to accept or
process permit applications” is clearly relevant to a claim
challenging precisely that conduct.
C
[8] Because the district court erred in granting the motion
in limine, it also wrongly granted the City’s motion for judg-
ment as a matter of law. Viewing the evidence in the light
most favorable to Valley (including the evidence which the
district court wrongly excluded), the challenge to the City’s
allegedly unguided and arbitrary denial of the late-filed permit
applications presents a sufficient basis upon which a reason-
able juror could find for Valley. See El-Hakem v. BJY Inc.,
415 F.3d 1068, 1072 (9th Cir. 2005).
III
It is clear that the City’s aim, perhaps a noble one, is to
keep visual clutter “to a minimum, specifically with regard to
signs adjacent to freeways.” RIVERSIDE, CAL., MUN. CODE
§ 19.76.005. Nevertheless, whatever Valley’s ultimate success
8
Like the First Amendment argument discussed above, Valley articu-
lated this equal protection argument in its complaint, see In re Lopez, 345
F.3d 701, 705 (9th Cir. 2003) (requiring adequate notice of the claim such
that the pleadings would have compelled the trial court to rule on the
issue); preserved the argument in the corrected final conference order, see
First Nat’l Bank of Circle, 652 F.2d at 886; preserved the argument for a
challenge to the motion in limine during the offer of proof; and preserved
the argument for appeal.
VALLEY OUTDOOR v. CITY OF RIVERSIDE 4821
on the merits, the evidence excluded in limine is clearly rele-
vant to the determination of this case. Finding otherwise
based on its application of the rules of standing, the district
court abused its discretion in granting the motion in limine
and in rendering judgement as a matter of law.
AFFIRMED in part and REVERSED in part and
REMANDED for trial proceedings consistent with this opin-
ion.
FRIEDMAN, Circuit Judge, concurring in the result:
Although I disagree with some of the court’s statements in
its opinion, I agree that the district court’s judgment for the
City as a matter of law cannot stand, and that the case should
be remanded to that court for trial proceedings.
The City requires that before beginning the construction of
a billboard, one must apply for and receive a permit. Valley
did not do so. Instead, it began construction and laid concrete
foundations for five billboards. After this work had been done
without a permit, it then sought a permit from the City, which
rejected its request.
If that were all the case involved, the outcome would be
clear and simple. Because Valley had not complied with the
City’s permit requirement and offered no explanation, reason-
able or otherwise, for its failure to do so, the City justifiably
rejected Valley’s belated efforts to cure its noncompliance by
its attempt retroactively to obtain a permit. Although Valley
now states that applying for a permit before starting construc-
tion would have been futile, there is no way of knowing what
the City would have done if an application had been filed. If
Valley had made a good faith endeavor to obtain a permit
before beginning construction, perhaps the differences
4822 VALLEY OUTDOOR v. CITY OF RIVERSIDE
between Valley and the City over the appropriate location of
the billboards could have been settled through compromise.
The situation, however, is not that simple. The City’s per-
mit procedure includes detailed provisions by which it may
grant a permit after construction has been begun or even been
completed. Valley attempted to invoke that procedure, but the
City rejected Valley’s belated attempt to obtain a permit on
grounds that at least suggest that the City had already decided
not to authorize retroactively Valley’s billboards. The City’s
stated reasons for returning the second permit application,
after construction of the billboards had been completed, were
that Valley had improperly identified the color and material
used for the uprights and had not given precise street
addresses for two of the billboards. As the court suggests in
its opinion, these deficiencies seem more appropriate to be
dealt with through a correction letter than by rejecting the
application.
I concur in the result in this case because I think that the
further explication and development of the facts that the
court’s opinion apparently contemplates would facilitate the
ultimate final disposition of this complex and complicated
case. I hope that evidence would be developed addressing
these items: (1) Valley’s reasons, if any, for not seeking a per-
mit before beginning construction of the billboards (other than
its claim that such application would have been futile); and
(2) the City’s reasons for apparently not considering the mer-
its of Valley’s retroactive request for a permit or for denying
that request (other than the City’s apparent position that it has
absolute discretion to grant or deny a permit without stating
a reason).