8th U.S. Circuit Court of Appeals: Denial of sign permit can be

St. Louis Daily Record & St. Louis Countian, Sep 2, 2008 by Donna Walter

A man protesting St. Louis' use of eminent domain with a three- story mural got the go-ahead from a federal appeals court to pursue his claims against one of the city agencies that denied his application for a sign permit.

The city argued the Land Clearance for Redevelopment Authority lacked the authority to deny building permits and therefore shouldn't be a defendant. U.S District Judge Henry E. Autrey, of the federal court in St. Louis, agreed and in November dismissed the lawsuit filed by Jim Roos and the two nonprofits he created to provide low-cost housing -- Neighborhood Enterprises and Sanctuary in the Ordinary.

On Friday, the 8th U.S. Circuit Court of Appeals ordered that the suit against the LCRA be reinstated.

"The importance of the 8th Circuit's decision is that even when a government agency acts outside of its powers ... it can still be held accountable for its actions under the federal civil rights laws," said William R. Maurer, a lawyer from the Institute for Justice in Seattle who represents Roos.

But Matt Moak, associate city counselor, called the decision a "minor speed bump." In the case against the LCRA, the plaintiffs asked for declarative relief that the agency can't approve or deny permits, "and we agree with that," he said.

The controversial mural, which overlooks Interstates 44 and 55, has the words "End Eminent Domain Abuse" inside a red circle with a slash through them.

The city says it's an illegal sign, put up without a permit. But Roos says it's speech protected by the First Amendment.

"We will prevail on the merits of the cases, and it can't happen soon enough," Moak said, noting that by suing, Roos has been allowed to keep his sign.

Neighborhood Enterprises applied for a sign permit from the city's Building and Inspection Division after the mural was painted. An LCRA employee urged the Building and Inspection Division to deny the permit. The letter, which was also sent to Neighborhood Enterprises, said the nonprofit could contest this denial at one of two upcoming LCRA meetings.

The Building and Inspection Division then denied the permit, saying the sign didn't meet the city's zoning requirements. That denial letter told Neighborhood Enterprises it could appeal to the Board of Adjustment. Roos pursued both avenues of appeal.

After losing to the city, Roos and his nonprofits filed separate federal lawsuits -- one against the LCRA and the other against the Board of Adjustment.

Friday's decision means the LCRA is a proper defendant.

"It is immaterial, for purposes of the plaintiffs' [section] 1983 claim, that the LCRA had no authority to deny the plaintiffs' sign permit application because the LCRA actually took action to deny the permit," Circuit Judge Lavenski R. Smith wrote for the unanimous panel.

In addition, the court said, "the plaintiffs plausibly alleged that the LCRA, a municipal entity, acted under color of state law when it interfered with their constitutionally protected speech in violation of their First and Fourteenth Amendment rights."

The lawsuit against the Board of Adjustment is still pending in Autrey's court. Maurer said he expects the two cases to be reconsolidated for trial. As of now, a jury trial is scheduled for next March.

The case is Neighborhood Enterprises Inc. et al. v. City of St. Louis et al., 07-3673, and may be accessed from www.ca8.uscourts.gov.