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Icon Groupe, LLC v. Washington County

United States District Court, D. Oregon

May 20, 2013

ICON GROUPE, LLC, a Washington limited liability company, Plaintiff,
WASHINGTON COUNTY, a local county government within the State of Oregon; and ANDREW SINGELAKIS, in his official and individual capacities, Defendants

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[Copyrighted Material Omitted]

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For Icon Groupe, LLC, a Washington limited liability company, Plaintiff: Stephen F. English, LEAD ATTORNEY, Erick J. Haynie, Misha A.D. Isaak, Perkins Coie, LLP, Portland, OR.

For Washington County, in his official and individual capacities, Andrew Singelakis, a local county government within the State of Oregon, Defendants: Christopher A. Gilmore, Office of Washington County Counsel, Hillsboro, OR.


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JOHN V. ACOSTA, United States Magistrate Judge.


Plaintiff Icon Groupe, LLC, (" Icon" ), filed this action alleging defendants Washington County(" County" ) and Andrew Singelakis (" Singelakis)(collectively " Defendants" ), violated Icon's constitutional rights to equal protection, procedural due process, and freedom of speech when they failed to grant Icon's applications for permits to erect and maintain seventeen freestanding signs displaying the message " Celebrate the Holiday Safely -- Happy Memorial Day" . (Compl. ¶ 11.) Defendants now move to dismiss or, in the alternative, stay this action pending the resolution of related state appellate proceedings. Defendants assert that Icon has failed to allege viable claims based on equal protection, procedural due processes, and freedom of speech violations, and that Icon's due process claim is not ripe.

The court finds that Icon has failed to allege that similarly-situated entities were treated differently in support of the First Claim for Relief, is unable to allege a deprivation of a property interest in support of the Second Claim for Relief, and has adequately alleged a First Amendment violation in the Third Claim for Relief. Accordingly, Defendants' motion to dismiss should be granted with regard Icon's First and Second Claims for Relief, with leave to Icon to add factual allegations identifying similarly-situated entities that were treated differently by Defendants in support of its equal protection claim, and should be denied with regard to Icon's Third Claim for Relief. Further, the court finds that the state court mandamus proceedings will not dispose of the issues raised in this action and that Defendants' alternative motion for abstention and a resulting stay should be denied.


Icon is a sign company engaged in applying for and maintaining freestanding signs within the State of Oregon. (Compl. ¶ 3.) From March to June, 2010, Icon filed seventeen permit applications with the County seeking the approval of freestanding signs to be located in unincorporated potions of the County (the " Applications" ). (Compl. ¶ 11.) Because the signs contained the message " Celebrate the Holiday Safely -- Happy Memorial Day", Icon believed they qualified for an exemption from the otherwise applicable size and height restrictions. (Compl. ¶ 14.) The exemption, found at section 414-5.9 of the County Community Development Code (" CDC" ) provided that " safety signs" identified as " [d]anger signs, trespassing signs, warning signs, traffic signs, memorial plaques, signs of historical interest, holiday signs, public and service information signs such as rest rooms, mailbox identification, [and] newspaper container identification" were " exempted from development permit requirement[s] and from the standards set

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forth above; however, a permit may be required as determined by the Building Official." (Compl. Ex. 2 at 6-7.)

Rather than approve the Applications, Singelakis, the director of the County's Land Use & Transportation Department, denied all of the Applications in two, substantially similar, one-page opinions. (Compl. ¶ 15.) The opinions stated that " Article XI[ sic ], section 8 of the Oregon Constitution precludes application of the content based exemptions cited in the application" and that the proposed signs exceeded the size and height provisions in the applicable zones. (Compl. ¶ 15.) Icon timely appealed the denials to the County's hearings officer, who failed take final action within the 120 days required under Ore. Rev. Stat. 215.427(1). (Compl. ¶ 16.) Icon then timely petitioned for writs of mandamus under Ore. Rev. Stat. 215.429, asking the Washington County Circuit Court for the State of Oregon to compel the County to approve all of the Applications. (Compl. ¶ 20.)

In a letter opinion issued on January 6, 2012, the state court found that under the plain language of the state statutes relied on by Icon in filing the appeal, and in the absence of evidence that the applications violated any substantive provision of the CDC as it existed at the time the applications were filed, the court was obligated to issue a peremptory writ requiring the County to approve the Applications and issue the requested permits to Icon. (Compl. Ex. 3 at 1.) The state court, assuming that his ruling would be appealed, also addressed the issue of whether Defendants' denial of the Application, based on what they perceived as an unconstitutional regulation, was appropriate. (Compl. Ex. 3 at 1-2.) The state court explained that:

[t]his being a Mandamus decision, the County can only rely on the constitutionality (or unconstitutionality) if by following CDC 414-5.9 the county official having to follow CDC 414-5.9 would either violate that [official']s oath of office or cause the official to be personally liable in some way.

(Compl. Ex. 3 at 1.) Initially, the state court found that Singelakis could not be held personally liable for enforcing the questionable exemption. The state court then reasoned that because the questionable exemption was not unconstitutional on its face, but only as applied by Defendants who considered the contents of the proposed sign messages in deciding that the questionable exemption did not apply, Defendants could not rely on the unconstitutionality of the questionable exemption in denying the applications. (Compl. Ex. 3 at 2.) On June 5, 2012, the court entered a final judgment issuing the peremptory writ. (Compl. ¶ 20.) Defendants appealed the state court ruling and sought to stay enforcement of the judgment pending resolution of the appeal. The appellate court denied Defendants' motion for a stay and Defendants have since issued a few permits under the Applications.

Icon filed this action on June 20, 2012, alleging that Defendants' action violated their equal protection, procedural due process, and freedom of speech rights guaranteed by the United States Constitution. Icon alleges that Defendants' denial of, and failure to take final action on, the Applications are based on Defendants' " discriminatory animus toward Icon and/or the class of similarly situated private sign companies" and " distaste for the for-profit messages that Icon might in the future put on the signs." (Compl. ¶ ¶ 17-18.) Icon further generally alleges that Defendants' actions " lacked a rational relationship to a legitimate government interest" and that, " [o]n information and belief, had substantially the same applications been filed by another entity (for example, a nonprofit or civic group), the applications would have been approved." (Compl. ¶ 17.)

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Preliminary Procedural Matter

Icon asks the court to disregard arguments raised by Defendants for the first time in their reply brief. The case relied on by Icon in support of this request addressed a summary judgment motion in which the nonmoving party was not afforded the opportunity to respond to the argument and evidence offered for the first time by the moving party in their reply brief. See Weaving v. City of Hillsboro, No. 10-CV-1432-HZ, 2012 WL 526425, at *15 n.5 (D. Or. Feb. 16, 2012). The motion presently before the court is a motion to dismiss, not a motion for summary judgment. Additionally, Icon requested, and received, leave to file a surreply in which it responded to each of the new arguments. The court finds that Icon will not be prejudiced by the consideration of the arguments made for the first time in Defendants' reply brief and denies Icon's request to disregard these arguments.

Legal Standard

A well-pleaded complaint requires only " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (2011). A federal claimant is not required to detail all factual allegations; however, the complaint must provide " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). " Factual allegations must be enough to raise a right to relief above the speculative level." Id. While the court must assume that all facts alleged in a complaint are true and view them in a light most favorable to the nonmoving party, it need not accept as true any legal conclusion set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Additionally, a plaintiff must set forth a plausible claim for relief -- a possible claim for relief will not do. " In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678); Sheppard v. David Evans and Assoc., 694 F.3d 1045, 2012 WL 3983909 at *4 (9th Cir. 2012) (" The Supreme Court has emphasized that analyzing the sufficiency of a complaint's allegations is a 'context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" (quoting Iqbal, 556 U.S. at 679)).


I. Equal Protection Clause

Defendants move to dismiss Icon's First Claim for Relief for violation of the Equal Protection Clause, arguing that Icon has failed to allege that Defendants' actions were intentionally directed solely at Icon or that Icon is similarly situated to others that were treated more favorably. The Equal Protection Clause commands that no state shall " deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. In other words, states are required to treat all persons similarly situated in a like manner. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Consequently, to state a claim under the Equal Protection Clause, a plaintiff must establish that he was treated differently from other similarly situated individuals with respect to a governmental act, statute, or regulation.

A plaintiff generally alleges a violation of the Equal Protection Clause by asserting ...

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