Desert Outdoor v. City of Oakland ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESERT OUTDOOR ADVERTISING, 
INC., a California corporation, No. 05-15501
Plaintiff-Appellant,
v.  D.C. No.
CV-03-01078-MJJ
CITY OF OAKLAND, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
March 21, 2007—San Francisco, California
Filed October 30, 2007
Before: Betty B. Fletcher and Richard R. Clifton,
Circuit Judges, and Edward F. Shea,* District Judge.
Opinion by Judge Clifton
*The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
14267
14270 DESERT OUTDOOR ADVERTISING v. OAKLAND
COUNSEL
Alan R. Herson (argued), Jacksonville, Oregon, for plaintiff-
appellant Desert Outdoor Advertising, Inc.
Christopher Kee (argued), Deputy City Attorney, John Russo,
City Attorney, Randolph W. Hall, Assistant City Attorney,
James F. Hodgkins, Supervising Trial Attorney, Oakland,
California, for defendant-appellee City of Oakland.
OPINION
CLIFTON, Circuit Judge:
Desert Outdoor Advertising, Inc., wants to display three
billboards, each of which would be primarily viewed from a
freeway, in Oakland, California. The City of Oakland has
refused to permit the signs, citing specific City ordinances.
Desert filed this action to challenge those ordinances on First
Amendment grounds, seeking injunctive relief and money
damages. In particular, Desert argues that Oakland Municipal
Code § 1501, which generally prohibits advertising signs
designed to be seen from a freeway, favors commercial over
noncommercial speech and imposes content-based restrictions
on noncommercial speech. Desert also contends that Oakland
Planning Code § 17.148.050(A), which limits advertising
signs more generally, provides City officials with unbridled
discretion to permit or deny the display of signs. Finally,
Desert challenges the specific application of these ordinances
to the signs it erected or attempted to erect.
The district court concluded that one provision of § 1501
was a content-based regulation of noncommercial speech in
DESERT OUTDOOR ADVERTISING v. OAKLAND 14271
violation of the First Amendment. It severed this provision
and held that the remainder of that ordinance, as well as
§ 17.148.050(A), was constitutional. Desert appeals. We
affirm.
I. Background
Desert challenges two separate provisions. The first ordi-
nance is contained in the Oakland Municipal Code (OMC).
The second ordinance is found in the Oakland Planning Code
(OPC).
OMC § 150161 seeks to prohibit signs adjacent to freeways,
several of which pass through the City. It provides that “[n]o
sign shall be erected, constructed, relocated or maintained in
the City of Oakland if such sign is designed to have or has the
advertising thereon maintained primarily to be viewed from a
freeway.” There are certain specified exceptions to this ban:
(a) signs limited to identifying the “name of the person, firm
or corporation occupying the premises and the type of busi-
ness conducted by such person, firm or corporation”; (b) signs
limited to the “name of the product manufactured on the
premises”; (c) signs “not exceeding six square feet in area
[and] appertaining only to the lease, hire, sale, or display of
the building premises”; and (d) “time and temperature units.”
In addition, the ordinance permits signs “in the M-40 Heavy
Industrial Zone as part of a billboard relocation agreement
authorized by the City,” subject to limitations. This freeway
sign ordinance does not permit variances.
Since 1997, OPC Chapter 17.104, § 17.104.010 et seq., has
banned the construction of new “advertising signs” anywhere
within the City.2 Unlike the freeway sign ordinance described
1
Section 1501 is also referred to as “chapter 15” and as section
14.04.270. As the parties generally refer to it as “section 1501,” we will
as well.
2
OPC § 17.10.850 defines “advertising signs” as signs that (1) “direct
[ ] attention to, or otherwise pertain[ ] to, a commodity, service, business,
14272 DESERT OUTDOOR ADVERTISING v. OAKLAND
above, however, the OPC provision allows for variances.
Originally, OPC § 17.148.050(A) allowed City officials to
grant a sign-related variance only if four conditions were met.
First, strict compliance would have to “result in practical dif-
ficulty or unnecessary hardship inconsistent with the purposes
of the zoning restrictions, due to unique physical or topo-
graphic circumstances or conditions of design.” Second, strict
compliance would have to “deprive the applicant of the privi-
leges enjoyed by owners of similarly zoned property.” Third,
a variance could “not adversely affect the character, livability,
or appropriate development of abutting properties or the sur-
rounding area, and [could] not be detrimental to the public
welfare.” Fourth, a variance could “not constitute a grant of
special privilege.”3 As described below, this ordinance was
amended while this lawsuit was pending to delete the third
condition.
Desert erected or attempted to erect signs at three locations
in Oakland. At two of the locations, the company erected
freeway-visible signs with commercial advertising unrelated
to the premises. At the third location, Desert applied for a
variance to erect a 50-foot tall, 14- by 48-foot permanent
structure displaying the messages “Volunteer to Be a Big
Brother” and “Pray at First Baptist Church.” This proposed
sign would also be visible from a freeway.
The City concluded that Desert’s freeway-visible commer-
cial advertising violated OMC § 1501 and demanded the
or profession which is not sold, produced, conducted, or offered by any
activity on the same lot” or (2) “direct[ ] attention to, or otherwise pertain
[ ] to, a commodity or service which is sold, produced, conducted, or
offered by a Commercial, Manufacturing, or Agricultural or Extractive
Activity on the same lot but which does not constitute a major function
thereof . . . .”
3
OPC § 17.148.050(A) also includes additional criteria for proposals
involving “one or two dwelling units on a lot.” These criteria are not rele-
vant here.
DESERT OUTDOOR ADVERTISING v. OAKLAND 14273
removal of those signs. The City denied Desert’s variance
application for its noncommercial signs under OPC
§ 17.148.050(A), concluding that the proposed structure failed
to meet any of the four conditions required to grant a vari-
ance.
Desert sued the City, challenging the OMC and the OPC
sign regulations under the First Amendment. It argued that the
ordinances lacked a sufficient statement of legislative pur-
pose, imposed content-based restrictions on noncommercial
speech, favored commercial speech over noncommercial
speech, and created a variance procedure vesting City offi-
cials with unbridled discretion to permit or deny the display
of signs. In addition, Desert argued that the ordinances were
unconstitutional as applied to its signs. It sought declaratory
and injunctive relief prohibiting the City from enforcing the
ordinances and money damages under 42 U.S.C. § 1983.
The City filed a motion to dismiss Desert’s complaint,
which the district court denied. Both Desert and the City filed
motions for summary judgment. After both parties had argued
their motions before the district court, the City amended the
variance procedure in OPC § 17.148.050(A) “to address the
constitutional issues” and “to remove (moot) the issue.” By an
“emergency ordinance,” the City deleted the prior
§ 17.148.050(A) requirement that a variance not “adversely
affect the character, livability, or appropriate development of
abutting properties or the surrounding area . . . [or] be detri-
mental to the public welfare.” This was the only amendment
made.4
4
The other conditions remained in place, meaning that after this amend-
ment, just as before, a variance could be granted only if (1) “strict compli-
ance with the specified regulation would result in practical difficulty or
unnecessary hardship inconsistent with the purposes of the zoning regula-
tions,” (2) strict compliance “would deprive the applicant of privileges
enjoyed by owners of similarly zoned property,” and (3) the variance
would not “constitute a grant of special privilege.”
14274 DESERT OUTDOOR ADVERTISING v. OAKLAND
After taking judicial notice of the amended
§ 17.148.050(A), the district court granted in part and denied
in part both parties’ motions. With regard to the claims on
appeal, the district court held that OMC § 1501 did not favor
commercial speech over noncommercial speech and granted
the City’s motion for summary judgment on this claim. The
court held one provision of § 1501 unconstitutional — the
exception for time and temperature displays — but severed
that provision and left the remainder of § 1501 intact. The
court ruled against Desert’s challenge of the OPC
§ 17.148.050(A) variance procedure because the City’s
amendment eliminated any potentially impermissible criteria.
Finally, the court denied Desert’s as-applied challenges.
Both parties filed motions for reconsideration. The district
court denied the motions, and Desert filed a timely notice of
appeal.
II. Discussion
We review grants of summary judgment de novo. ACLU of
Nev. v. City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006).
The relevant question is whether genuine issues of material
fact exist when the evidence is viewed in the light most favor-
able to the nonmoving party.
A. OMC § 1501 (Signs visible from freeways)
1. The facial challenge
Sign ordinances are unconstitutional if they impose greater
restrictions on noncommercial speech than on commercial
speech or if they regulate noncommercial speech based on
content. Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
516 (1981) (plurality); G.K. Ltd. Travel v. City of Lake
Oswego, 436 F.3d 1064, 1081 (9th Cir. 2006). Desert con-
tends that OMC § 1501 is unconstitutional on its face because
it violates both of these limitations. The premise of Desert’s
DESERT OUTDOOR ADVERTISING v. OAKLAND 14275
argument is that § 1501 applies to signs with noncommercial
messages. The City disputes that premise, contending that
§ 1501 does not limit noncommercial speech at all. The dis-
trict court agreed with the City’s interpretation of the ordi-
nance, and so do we.
To begin with, we note, as did the district court, that we are
obligated to interpret a statute, if it is fairly possible, in a man-
ner that renders it constitutionally valid. See Office of Senator
Mark Dayton v. Hanson, ___ U.S. ___, 127 S. Ct. 2018, 2021
(2007); The Ecology Center v. Castaneda, 426 F.3d 1144,
1148 (9th Cir. 2005). The City’s interpretation of § 1501 is
plausible.
[1] Section 1501 provides that “[n]o sign shall be erected,
constructed, relocated or maintained in the City of Oakland if
such sign is designed to have or has the advertising thereon
maintained primarily to be viewed from a freeway.” (Empha-
sis added). Thus, § 1501 bans only signs bearing freeway-
visible “advertising.”
[2] Though the OMC does not define the term “advertis-
ing” by itself, it does define “advertising sign” in OMC § 202:
“any sign, poster, placard, device, graphic display, or any
other form of advertising promoting the sale of a commodity
which is not sold, produced, conducted, or offered by any
activity on the same lot.” Speech “promoting the sale of a
commodity” is commercial speech. Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 66 (1983). The definition of “ad-
vertising sign” does not appear to cover noncommercial
speech at all.
It is appropriate for the City to apply the same interpreta-
tion — that the reference to “advertising” does not encompass
noncommercial speech — to that word as it is used in § 1501.
See Freeman v. Gonzales, 444 F.3d 1031, 1039 (9th Cir.
2006) (holding that we “should interpret statutes to be coher-
ent and internally consistent”).
14276 DESERT OUTDOOR ADVERTISING v. OAKLAND
The notion that “advertising” as used in the OMC refers
only to commercial speech is supported by the City’s imple-
mentation and interpretation of § 1501. See Forsyth County,
Ga. v. Nationalist Movement, 505 U.S. 123, 131 (1992) (“In
evaluating respondent’s facial challenge, we must consider
the county’s authoritative constructions of the ordinance,
including its own implementation and interpretation of it.”).
Evidence provided by the City indicates that it “does not con-
strue, nor has it . . . ever construed ‘advertising’ as set forth
in the OMC, to apply to noncommercial speech.”
[3] Desert argues that § 1501 prevents a variety of noncom-
mercial messages, including “Pray on Sunday for Your Soul,”
“Give to Our Blood Drive Here on Tuesday,” “Register to
Vote Here” or “Elect Jane Doe.” This argument regarding
hypothetical signs is not supported by the record, however.
The City did not in fact apply § 1501 to turn down Desert’s
application to erect freeway-visible signs bearing the noncom-
mercial messages “Volunteer to Be a Big Brother” and “Pray
at First Baptist Church.” The City applied only the OPC regu-
lations, denying Desert’s application without any reference to
§ 1501. The OPC provides that an OPC variance application
“cannot be processed until any issues relating to the OMC
have been resolved.” Thus, if § 1501 regulated noncommer-
cial speech, the City would presumably have applied that
ordinance before reviewing Desert’s OPC variance applica-
tion. It did not.
Desert also argues that § 1501 contains exceptions for some
noncommercial speech, which would be unnecessary if
§ 1501 did not regulate noncommercial speech in the first
instance. A similar argument was made by the plaintiff in
National Advertising Co. v. City of Orange, 861 F.2d 246 (9th
Cir. 1988). In that case, a municipality’s billboard ordinance
was challenged on the ground that the ordinance, while alleg-
edly aimed only at commercial speech, allowed content-based
exceptions for some noncommercial speech. Id. at 246. The
contested ordinance banned all “general or billboard advertis-
DESERT OUTDOOR ADVERTISING v. OAKLAND 14277
ing signs” in the city but exempted “governmental signs and
flags, memorial tablets, recreational signs, and temporary
political, real estate, construction, and advertising signs.” Id.
While the city argued that the ordinance’s prohibition was
limited to commercial speech, we held that the ban’s many
noncommercial exceptions “would be rendered meaningless
by the City’s interpretation.” Id. at 247.
Desert argues that § 1501 is analogous to the unconstitu-
tional ordinance in National Advertising in light of its alleg-
edly noncommercial exceptions. But § 1501 does not contain
any exceptions resembling the National Advertising excep-
tions for obviously noncommercial signs, like governmental
signs and flags or memorial tablets. The only arguably
content-based exceptions to § 1501 are those allowing the
“name of the person, firm or corporation occupying the prem-
ises and the type of business conducted by such person, firm
or corporation”; the “name of the product manufactured on
the premises”; signs of a certain size that “appertain[ ] only
to the lease, hire, sale, or display of the building or premises”;
and “time and temperature units.”5 Placing the exception for
“time and temperature units” aside for the moment, none of
the other exceptions compels a finding that the use of “adver-
tising” in § 1501 covers noncommercial speech. All of them
could apply to signs that are commercial in nature, so these
exceptions do not “render meaningless” the City’s position
that § 1501 only applies to commercial speech. Id. at 247.
[4] The severed exception for time and temperature dis-
plays is somewhat different, since time and temperature infor-
mation is not itself “advertising” and is inherently
5
While the district court severed the § 1501 exception for time and tem-
perature displays, a decision which the City of Oakland does not chal-
lenge, we consider it here in order to construe the proper reach of § 1501.
Section 1501 also exempts signs located “in the M-40 Heavy Industrial
Zone as part of a billboard relocation agreement authorized by the City,”
but this exception is based on a sign’s location rather than its content.
14278 DESERT OUTDOOR ADVERTISING v. OAKLAND
noncommercial. We do not conclude, however, that by pro-
viding an exception for time and temperature units, the City
of Oakland necessarily expressed an intent that the ordinance
should apply to noncommercial speech or contradicted its
interpretation of the ordinance as applying only to commercial
advertising. Time and temperature displays are commonly
used to attract attention to commercial messages contained on
the same sign. Often, time and temperature information is
included on signs displaying the name of the business located
at the location of the sign, such as a bank. That display of the
name of the commercial business could fall within the “on-
site” exception under § 1501. The City may have provided an
exception for time and temperature units in § 1501 simply to
make clear that it was permissible to include time and temper-
ature displays as part of on-site commercial signs. Though it
could be argued that the exception for time and temperature
was unnecessary if the ordinance only applies to commercial
speech, the redundancy was both understandable and insignif-
icant. The time and temperature exception is not enough to
demonstrate that the City intended § 1501 to apply to non-
commercial speech.
[5] Because § 1501 can be fairly read to regulate only com-
mercial speech, and because it can function effectively if so
limited, we conclude that the ordinance does not impose any
content-based restrictions on noncommercial speech. This
forecloses Desert’s claim that § 1501 impermissibly favors
commercial over noncommercial speech and regulates non-
commercial speech based upon content.
2. Severance of § 1501’s time and temperature exception
The district court severed § 1501’s exception for time and
temperature displays after holding that it imposed an uncon-
stitutional, content-based restriction on noncommercial
speech by favoring one form of noncommercial speech, time
and temperature, over other forms of noncommercial speech.
DESERT OUTDOOR ADVERTISING v. OAKLAND 14279
The City does not appeal that decision.6 Desert contends this
severance was an improper solution to the identified problem
with the time and temperature exception, because severing the
provision resulted in more speech being restricted than if the
time and temperature exception remained in place.
[6] Desert’s argument relies on Rappa v. New Castle
County, 18 F.3d 1043 (3d Cir. 1994). In Rappa, the Third Cir-
cuit refused to sever an unconstitutional exception to a sign
ordinance when doing so would subject more speech to regu-
lation than was formerly permissible under the statute. Id. at
1072-73 (“Eliminating the offending exception would mean
that we would be requiring the State to restrict more speech
than it currently does.”). We do not need to decide whether
we would adopt the holding of Rappa, because the situations
are not the same. Severing the exception for time and temper-
ature displays did not cause § 1501 to restrict more speech.
Since noncommercial speech is not covered under § 1501 at
all, eliminating the exception had no actual impact on the
legality of time and temperature displays under that ordi-
nance.
3. Desert’s “as-applied” challenge
“An as-applied challenge contends that [a] law is unconsti-
tutional as applied to [a] litigant’s particular speech activity,
even though the law may be capable of valid application to
others.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th
Cir. 1998). Desert purports to raise an as-applied challenge to
OMC § 1501, but it misunderstands the nature of such chal-
lenges. As-applied challenges are not based solely on the
application of an allegedly unconstitutional law to a particular
litigant. Rather, they “separately argue that discriminatory
enforcement of a speech restriction amounts to viewpoint dis-
6
As a result, we do not rule on the constitutionality of the time and tem-
perature provision or on whether the severance of that provision was nec-
essary.
14280 DESERT OUTDOOR ADVERTISING v. OAKLAND
crimination in violation of the First Amendment.” Id. (empha-
sis added). It is for this reason that a “successful as-applied
challenge does not render the law itself invalid but only the
particular application of the law.” Id. An as-applied challenge
goes to the nature of the application rather than the nature of
the law itself.
Desert does not argue that the City’s refusal to let it main-
tain its freeway-visible commercial advertising resulted from
discriminatory enforcement.7 Nor could it. OMC § 1501 pro-
vides a flat ban on such advertising and does not allow for
variances. City officials thus had no discretion when applying
§ 1501 to Desert’s signs, and Desert cannot show that the
City’s “particular application of the law” evidenced any
degree of subjectivity or undue discretion. Foti, 146 F.3d at
635. We thus reject Desert’s purported as-applied challenge
of § 1501 and affirm the finding of the district court with
regard to that challenge.
B. OPC § 17.148.050(A) (Restrictions on advertising signs
generally)
1. The amended ordinance
As described above, while this case was before the district
court, the City amended the variance procedure “to address
the constitutional issues” and “to remove (moot) the issue.”
7
In its reply brief, Desert argues for the first time, in a highly unspecific
fashion, that the City “did not apply its invalid regulations in an objective
manner” and that “numerous unconstitutional standards were applied to
[Desert’s] application.” Ordinarily, we will not “consider matters on
appeal that are not specifically and distinctly argued in appellant’s opening
brief.” Koerner v. Grigas, 328 F.3d 1039, 1048-49 (9th Cir. 2003) (cita-
tion omitted). Even if we wished to consider this argument, Desert fails
to explain which standards it considers unconstitutional or how the City
applied its regulations in an unobjective manner. Consequently, it has not
raised the issue adequately. See Washington v. Daley, 173 F.3d 1158, 1169
n.15 (9th Cir. 1999).
DESERT OUTDOOR ADVERTISING v. OAKLAND 14281
The City later extended the duration of the amendment “until
90 days after a final decision from the Court of Appeals, when
the City Council will adopt permanent amendments to the
Planning Code and/or Municipal Code regarding the subject
matter of this ordinance for codification.” The amendment
eliminated one of the four conditions required before a vari-
ance could be issued. After that deletion, OPC
§ 17.148.050(A) provides that a variance for the new con-
struction of advertising signs may be granted only when (1)
strict compliance “would result in practical difficulty or
unnecessary hardship inconsistent with the purposes of the
zoning restrictions, due to unique physical or topographic cir-
cumstances or conditions of design”; (2) strict compliance
“would deprive the applicant of privileges enjoyed by owners
of similarly zoned property”; and (3) a variance would “not
constitute a grant of special privilege.”
[7] Desert argues that, even as amended, OPC
§ 17.148.050(A) continues to violate the First Amendment by
granting City officials undue discretion to permit or deny vari-
ances.8 “[A] law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license, without narrow,
objective, and definite standards to guide the licensing author-
ity, is unconstitutional.” Arkansas Educ. Television Com’n v.
Forbes, 523 U.S. 666, 684 (1998) (quoting Shuttlesworth v.
Birmingham, 394 U.S. 147, 150-151(1969)). The requirement
of sufficient direction for City officials “seeks to alleviate the
threat of content-based, discriminatory enforcement that
arises ‘[w]here the licensing official enjoys unduly broad dis-
cretion in determining whether to grant or deny a permit . . . .’
” G.K. Ltd. Travel, 436 F.3d at 1082 (internal citation omit-
ted). For this reason, a permit requirement “cannot condition
the free exercise of First Amendment rights on the ‘unbridled
8
Desert also appears to challenge the constitutionality of OPC condi-
tional use permit requirements and design review procedures. We do not
address this claim because Desert prevailed on it below, and the City does
not appeal.
14282 DESERT OUTDOOR ADVERTISING v. OAKLAND
discretion’ of government officials.” Desert Outdoor Adver-
tising, Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th
Cir. 1996) (internal citations omitted).
In Moreno Valley, we invalidated a sign ordinance provid-
ing for permits subject to a finding that a structure or sign
would “not have a harmful effect upon the health or welfare
of the general public” and would not be “detrimental to the
welfare of the general public . . . [or] to the aesthetic quality
of the community or the surrounding land uses.” 103 F.3d at
818. We found that this abstract scheme placed “no limits on
the authority of [c]ity officials to deny a permit” and allowed
the city to deny permit applications without offering any evi-
dence in support of its denial. Id. at 819. Because city officials
had “unbridled discretion” to determine whether a particular
sign would “be harmful to the community’s health, welfare,
or ‘aesthetic quality,’ ” the sign ordinance did not comport
with the First Amendment. Id.
Subsequently, in G.K. Limited Travel, we upheld a sign
code requiring permits for sign display and authorizing city
officials to review signs for “compatib[ility] with the sur-
rounding environment.” 436 F.3d at 1082-83. The plaintiff
alleged that this “compatibility” review placed insufficient
limits on the discretion of permitting officials, but our court
disagreed. Id. We upheld the permit requirements on three
grounds. First, “surrounding environment” and “compatibili-
ty” were explicitly defined in the relevant code by “a limited
and objective set of criteria.”9 Id. at 1083. The code also
required that most applications be processed within 14 days
of receipt, instructed applicants what to include in an applica-
9
In determining whether a sign was “compatible” under the challenged
code, for example, the code instructed “permitting officials to consider a
limited and objective set of criteria, namely ‘form, proportion, scale, color,
materials, surface treatment, overall sign size and the size and style of let-
tering.’ ” G.K. Ltd. Travel, 436 F.3d at 1083. The “surrounding environ-
ment” included “other nearby signs, other elements of street and site
furniture and with adjacent structures.” Id.
DESERT OUTDOOR ADVERTISING v. OAKLAND 14283
tion, and allowed for appeal. Id. Finally, a permitting official
was required to “state the reasons for his or her decision to
either grant or deny a permit so as to facilitate effective
review of the official’s determination.” Id. These criteria were
sufficiently specific and objective to survive a First Amend-
ment challenge.
The amended OPC variance procedure falls somewhere
between the abstract standards invalidated in Moreno Valley
and the more explicit criteria and procedural requirements
upheld in G.K. Limited Travel. Compared to the ordinance
challenged in Moreno Valley, § 17.148.050(A) does provide
“limits on the authority of City officials to deny a permit.”
Moreno Valley, 103 F.3d at 818. At issue in Moreno Valley
were abstract appeals to “health, welfare, or ‘aesthetic quali-
ty,’ ” all of which required broadly subjective determinations.
Id. at 819. The three variance prerequisites contained in the
amended version of OPC § 17.148.050(A) are significantly
more concrete and allow far less subjectivity.
[8] Whether denial of a variance “would deprive the appli-
cant of privileges enjoyed by owners of similarly zoned prop-
erty” depends on objective comparisons to similarly situated
properties. Whether a variance constitutes a “grant of special
privilege” likewise turns on an objective inquiry: whether the
variance allows the applicant to engage in conduct otherwise
forbidden by the City. Questions of “practical difficulty” and
“unnecessary hardship” are less concrete, but § 17.148.050(A)
defines these criteria specifically in terms of “unique physical
or topographic circumstances or conditions of design.” This
limitation is “reasonably specific,” G.K. Ltd. Travel, 436 F.3d
at 1083, and sufficiently constrains “the authority of City offi-
cials to deny a permit.” Moreno Valley, 103 F.3d at 818.
[9] Section 17.148.050(A) provides less explicit guidance
overall than the ordinance upheld in G.K. Ltd. Travel. Even
so, its criteria are significantly more concrete than the abstract
“aesthetic” standards invalidated in Moreno Valley. The pro-
14284 DESERT OUTDOOR ADVERTISING v. OAKLAND
visions of § 17.148.050(A) are “somewhat elastic” and
require “reasonable discretion to be exercised by the permit-
ting authority,” but this “does not make [the ordinance] an
unconstitutional prior restraint.” Id. Satisfied that
§ 17.148.050(A) “contains appropriate standards cabining the
[City’s] discretion,” id., we agree with the district court that
the ordinance is constitutional as amended.
2. OPC § 17.148.050(A) as originally adopted
We next consider the original version of OPC
§ 17.148.050(A), as applied by the City when it rejected
Desert’s variance application. That version contained the
three conditions retained in the amended version, while also
providing that City officials could not grant a variance if
doing so would “adversely affect the character, livability, or
appropriate development of abutting properties or the sur-
rounding area . . . [or] be detrimental to the public welfare.”
Desert argues that this original version of § 17.148.050(A) is
unconstitutional on its face and as applied to Desert’s vari-
ance application.
[10] Desert’s facial challenge to the original version of the
ordinance is moot.10 While the current version of OPC
§ 17.148.050(A) is set to expire 60 days after our decision in
this case, there is no indication that the City intends to re-
adopt the provision it deleted voluntarily from the ordinance,
and Desert makes no argument that it will. Compare Dream
Palace v. County of Maricopa, 384 F.3d 990, 999, 1001 (9th
Cir. 2004) (holding that the plaintiff, though not covered by
the challenged ordinance, still had a “live controversy” given
the defendant’s “expressed intention to amend the provision”
to cover the plaintiff).
10
Although a claim for damages already incurred from application of the
original version of the ordinance might not be moot, Desert has not made
that argument on appeal or sought remand to the district court for that pur-
pose, so we need not consider that possibility.
DESERT OUTDOOR ADVERTISING v. OAKLAND 14285
Desert does argue that the City violated the First Amend-
ment by applying the original version of § 17.148.050(A) to
its request for a variance. As we have already discussed, this
is not truly an as-applied challenge. Desert does not argue that
the City’s denial of its variance application resulted from
some particular exercise of undue discretion. It argues only
that the City violated the First Amendment by denying its
application under an unconstitutional ordinance. This argu-
ment is unsuccessful because the City denied Desert’s appli-
cation on three constitutionally permissible, individually
sufficient, bases.
[11] Under the original version of § 17.148.050(A), the
City was required to deny Desert’s variance application unless
it met four independent requirements. The City determined
that Desert’s application failed on all four. We have already
concluded that three of the conditions were constitutionally
permissible. This means the City denied Desert’s application
based on three constitutionally permissible grounds, each of
which was sufficient to preclude issuance of a variance.
Desert does not have a viable claim that it was injured by the
City’s denial of Desert’s request for a variance.
III. Conclusion
We conclude that the two sign ordinances challenged by
Desert, OMC § 1501 and OPC § 17.148.050(A), the latter in
its current form, are both constitutional, facially and as
applied to Desert. Desert is not entitled to relief beyond that
already granted by the district court.
AFFIRMED.