                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-1194



COVENANT MEDIA OF NORTH CAROLINA, L.L.C.; MEI YONG “BILLY”
XIAO; CHINA BUFFET, L.L.C.,

                Plaintiffs - Appellants,

           v.


CITY OF MONROE, NORTH CAROLINA,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:04-cv-00586)


Argued:   March 19, 2008                   Decided:   July 18, 2008


Before NIEMEYER and KING, Circuit Judges, and David R. HANSEN,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.


Affirmed by unpublished opinion. Senior Judge Hansen wrote the
opinion, in which Judge Niemeyer and Judge King joined.


ARGUED: Edward Adam Webb, WEBB LAW GROUP, L.L.C., Atlanta, Georgia,
for Appellants.    William David Brinton, ROGERS TOWERS, P.A.,
Jacksonville, Florida, for Appellee. ON BRIEF: Kari R. Johnson,
Patrick H. Flanagan, CRANFILL, SUMNER & HARTZOG, L.L.P., Charlotte,
North Carolina; Ruth Holmes, ROGERS TOWERS, P.A., Jacksonville,
Florida, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
HANSEN, Senior Circuit Judge:

       Covenant Media of North Carolina, L.L.C. ("Covenant"), Mei

Yong "Billy" Xiao, and China Buffet, L.L.C. (collectively referred

to as "the Appellants") appeal the district court's grant of

summary judgment in favor of the City of Monroe ("Monroe" or "the

City") in this suit challenging the constitutionality of the City's

sign ordinance.   We affirm.



                                I.

       In July and August of 2004, Covenant, a company in the

business of erecting and operating advertising signs for various

businesses and organizations, leased property in Monroe from Mei

Yong "Billy" Xiao and his business the China Buffet, L.L.C., for

the purpose of erecting billboards.    The Appellants applied for

seven advertising sign permits, and within five days of submission,

the City denied the applications on grounds that the proposed

billboards violated the City's sign regulations, which restrict the

size, location, and spacing of billboards.   Specifically, the City

stated that the area of each proposed billboard totaled 672 square

feet per side, in violation of the size restriction limiting the

area of billboards to 250 square feet per side.     (J.A. at 116.)

See City of Monroe Land-Use Ordinance § 156.133(S)(2)(a) (J.A. at

66).   Also, all but one of the proposed sign locations placed the

proposed billboards within 1,000 feet of a preexisting billboard,


                                 3
and the site plan for the proposed China Buffet billboard placed it

within 50 feet of a building, all contrary to the City's billboard

location setback and spacing restrictions.                  See City of Monroe

Land-Use Ordinance § 156.133(S)(2)(c)(i), (iii) (J.A. at 66, 67).

     The    Appellants      brought    suit     in    November    2004   on   First

Amendment grounds, claiming, in relevant part, that the City's

ordinance    unconstitutionally         favors       commercial    speech,    lacks

procedural safeguards, grants City officials an impermissible level

of discretion, is overbroad in its application, and contains

improper time, place, and manner restrictions. They sought damages

and injunctive relief* pursuant to 42 U.S.C. § 1983 (2000).                     The

City moved for summary judgment, asserting that the Appellants

lacked standing to challenge any provisions of the ordinance other

than those that formed the basis of the City's denial of their

permit applications.        The district court granted summary judgment

to   the    City,   concluding        that     the    Appellants    suffered    no

constitutional injury to satisfy Article III standing requirements

because    the   "permits    were     denied    on    the   content-neutral     and

constitutionally valid restrictions of height [size], setback and

spacing."    (J.A. at 289.)         The district court also rejected the

Appellants' overbreadth challenge for lack of injury in fact.


     *
      The Appellants withdrew their request for injunctive relief
after the City adopted a new sign ordinance in April 2006, and they
do not challenge the new ordinance in this appeal. All references
to the City's sign regulations in this opinion refer to the older
version.

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                                          II.

      We review de novo the district court's grant of summary

judgment, applying the same standards as the district court and

construing the facts in the light most favorable to the nonmoving

party.      Darveau v. Detecon, Inc., 515 F.3d 334, 338 (4th Cir.

2008);   see   also      Fed.     R.   Civ.       P.    56(c)    (summary     judgment    is

appropriate if "there is no genuine issue as to any material fact

and . . . the movant is entitled to judgment as a matter of law").

We   also   apply   de     novo    review         to    the    district   court's   legal

conclusions regarding Article III standing.                      See Covenant Media of

S.C., L.L.C. v. City of N. Charleston, 493 F.3d 421, 428 (4th Cir.

2007), cert. denied, 128 S. Ct. 914 (2008).

      As an initial matter, the Appellants assert that the district

court impermissibly made factual findings and failed to draw

inferences from the record in their favor, citing the district

court's factual recitation of background material relating to other

businesses     owned       by   Covenant's         owners       and   their    litigation

strategies in other states.             After carefully reviewing the record

in   this   case,     we    conclude     that          the    district    court   did    not

improperly resolve any genuine issues of material fact.                                  The

disputed background material was not essential to the district

court's legal conclusions, and there is no dispute regarding the

material facts of this case.                  The Appellants sought to erect

billboards in Monroe that violated the ordinance's size, location,


                                              5
and spacing restrictions, and the City promptly rejected each

application    on   these   grounds.       Any   matters   dealing   with   the

business or litigation practices of Covenant's owners and their

other business ventures are not material to the resolution of this

dispute.     See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)("Only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude the entry

of summary judgment."); see also Drewitt v. Pratt, 999 F.2d 774,

778 (4th Cir. 1993)(same).      The Appellants have not identified any

genuine issue of material fact that precludes summary judgment in

this case.

     The Appellants assert that the district court's standing

analysis is flawed because the court addressed the merits of their

constitutional claims in concluding that they lacked standing.               We

agree that it is inappropriate to first consider the merits of a

claim when determining whether a party has standing under Article

III of the Constitution.       See Warth v. Seldin, 422 U.S. 490, 500

(1975) (noting that "standing in no way depends on the merits" of

the claim); Covenant Media of S.C., 493 F.3d at 429 (holding that

the standing analysis must not be confused with the merits of a

case because "[a] plaintiff's standing to bring a case does not

depend upon his ultimate success on the merits underlying his

case").    On the other hand, we also acknowledge the reality that,

"because standing is addressed on a claim by claim basis, an


                                       6
unfavorable decision on the merits of one claim may well defeat

standing on another claim if it defeats the plaintiff's ability to

seek redress."       Get Outdoors II, L.L.C. v. City of San Diego, 506

F.3d 886, 893 (9th Cir. 2007).         Despite any flaws in the district

court's analysis, we "can affirm on any basis fairly supported by

the record."     Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222

(4th Cir. 2002).         After carefully reviewing the record and the

parties' arguments, we find no reversible error, and for the

reasons that follow, we conclude that the district court reached

the correct result in granting summary judgment to the City.

     It     is   well    established   that     standing     is    a      threshold

jurisdictional       issue   that   must   be   determined        first       because

"[w]ithout jurisdiction the court cannot proceed at all in any

cause."   Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94

(1998) (internal quotation marks omitted); see also Pye v. United

States, 269 F.3d 459, 466 (4th Cir. 2001) (citing Steel Co., 523

U.S. at 102). The "irreducible constitutional minimum of standing"

consists of three elements.          Lujan v Defenders of Wildlife, 504

U.S. 555, 560 (1992).        First, there must be "an 'injury in fact'–an

invasion of a legally protected interest" that is both "concrete

and particularized" as well as "actual or imminent." Id. (internal

quotation    marks      omitted).    "Second,    there     must    be     a   causal

connection between the injury and the conduct complained of" such

that the injury can be said "to be fairly traceable" to the

                                       7
defendant's actions.          Id. (internal quotation marks omitted).

Third,   there    must   be   a     likelihood      "that      the   injury   will   be

redressed by a favorable decision."               Id. (internal quotation marks

omitted); see also Covenant Media of S.C., 493 F.3d at 428.

      When challenging an ordinance, even though "there is broad

'latitude given facial challenges in the First Amendment context,'

a plaintiff must establish that he has standing to challenge each

provision of an ordinance by showing that he was injured by

application of those provisions."               Id. at 429-30 (quoting Gonzales

v. Carhart, 127 S. Ct. 1610, 1639 (2007)).                  Thus, a finding that a

plaintiff has standing to bring suit challenging one provision of

an ordinance "does not provide it a passport to explore the

constitutionality of every provision of [a] [s]ign [r]egulation."

Id. at 429.      Accordingly, we must consider standing independently

with regard to each provision challenged.

      We first address whether the Appellants have standing to

assert an as-applied challenge to the size restriction.                       There is

no   dispute   that   (1)     the    City       denied   the    Appellants'    permit

applications--a concrete injury; (2) this denial was the direct

result of the City applying the sign ordinance's 250-square-foot

size restriction--causation; and (3) there is a likelihood of

redress from a favorable decision by this court if the provisions

challenged are all found to be unconstitutional.                     But cf. Maverick

Media Group, Inc. v. Hillsborough County, Fla., No. 07-12330, 2008

                                            8
WL   2130477   (11th   Cir.   May    22,   2008)(and   cases   cited   therein

indicating that a sign permit applicant lacks a redressable injury

to challenge the constitutionality of a sign ordinance where the

permit could have been denied on the basis of some alternate but

unchallenged regulation).           The Appellants challenged all three

bases for the denial of their permit applications, thus there is a

likelihood of redressability unless one of the grounds for denial

is found to be constitutional. We conclude that they have standing

to challenge the size restriction.

       Billboards are subject to reasonable time, place, and manner

restrictions.    "[W]e begin with the venerable principle that 'each

medium of expression must be assessed for First Amendment purposes

by standards suited to it, for each may present its own problems.'"

Arlington County Republican Comm. v. Arlington County, 983 F.2d

587, 591 (4th Cir. 1993) (alterations omitted) (quoting S.E.

Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)).            Billboards

are large, permanent structures, designed to stand out, and thus

they   "create[] a unique set of problems for land-use planning and

development." Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

502 (1981) (plurality).        In this context, the Supreme Court has

"observed that time, place, and manner restrictions are permissible

if they are justified without reference to the content of the

regulated speech, serve a significant governmental interest, and

leave open ample alternative channels for communication of the


                                       9
information."       Id.    (internal     quotation     marks      and   alterations

omitted).

     The    sign   ordinance     at     issue   defines     billboards     as    off-

premises, outdoor structures of display, either freestanding or

attached to a building, see City of Monroe Land-Use Ordinance

§ 156.14 (J.A. at 73), without any distinction based on the content

of the messages displayed. The prohibition of billboards exceeding

250 square feet in area per side likewise makes no content-based

distinctions.      Id. § 156.133(S)(2)(a) (J.A. at 66).                 There is no

dispute     that   billboards      may     include     either      commercial      or

noncommercial messages and that all billboards are subject to this

size restriction.         We conclude that the City's billboard size

restriction is a content-neutral regulation.

     The Appellants assert that the ordinance is content-based due

to distinctions born out of the definition of "on-premise" and

"off-premise" signs in section 156.133(C) of the ordinance.                     (J.A.

at 53.)     They argue that these underlying definitions result in

more favorable spacing and location restrictions for on-premises

commercial    signs,      but   they    point   to    no   more   favorable      size

restrictions to support their argument.               In fact, the on-premises

commercial size limitations are much more restrictive, and neither

commercial    on-premises       signs    nor    any   off-premises       signs    are

permitted to exceed the 250-square-foot size restriction that

applies to all billboards.


                                         10
     The   Appellants    assert    that     the   size   restriction    is   not

narrowly tailored to meet a substantial government interest, but

again, the record does not support their assertion.                The express

purpose of the ordinance is to maintain public and traffic safety

and to enhance the aesthetic appearance and attractiveness of the

community.    See City of Monroe Land-Use Ordinance § 156.133(A)

(J.A. at 53).    Settled authority in this circuit, as well as in the

Supreme Court, recognizes that, in the context of billboards,

safety and aesthetics are substantial government interests, and

that "'a city may justifiably prohibit all off-premise signs or

billboards for aesthetic and safety reasons.'" Nat'l Adver. Co. v.

City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991) (quoting Major

Media of the S.E. v. City of Raleigh, 792 F.2d 1269, 1272 (4th Cir.

1986), which cites Metromedia, 453 U.S. at 508-11), cert. denied,

504 U.S. 931 (1992); see also Arlington County Republican Comm.,

983 F.2d at 591 (noting that in the Supreme Court's Metromedia

decision, "without an impermissible preference of commercial speech

over noncommercial speech, seven Justices would have upheld the

prohibition     on   billboards   as   an   acceptable     means   to   promote

aesthetics and traffic safety."); Naegele Outdoor Adver., Inc. v.

City of Durham, 844 F.2d 172, 173-74 (4th Cir. 1988) (finding no

free speech violation where the ordinance banned all commercial,

off-premises billboards and avoided any preference of commercial

over noncommercial speech).


                                       11
       The content-neutral 250-square-foot size limitation furthers

the City's substantial interests in traffic safety and aesthetics

by permitting billboards only in certain areas and limiting their

size.       The City's size restriction is "not substantially broader

than necessary to protect the [C]ity's interests in traffic safety

and aesthetics, and directly advance[s] the [C]ity's interests";

additionally,        it   leaves   open        ample    alternative       avenues    of

communication by not banning all billboards.                 See Get Outdoors II,

506 F.3d at 894.              We conclude that the size restriction is

constitutional, and each one of the Appellants' permit applications

was properly rejected on this ground.

       Our conclusion on the merits of the constitutional challenge

to    the    size    restriction   defeats       standing    on     the   Appellants'

remaining as-applied claims.         Because the permit applications were

properly denied on the basis of the independently constitutional

size restriction, the Appellants lack a redressable constitutional

injury to support their challenges to the location and spacing

restrictions.        See id. at 893 (finding no redressability and thus

not reaching additional challenges to an ordinance after one

restriction was found to be constitutionally valid); Covenant Media

of S.C., 493 F.3d at 430 (finding no constitutional injury where

the     permit      applications   could       not     be   approved      due   to   an

unchallenged        spacing    violation,       regardless     of    whether     other

substantive provisions are held to be unconstitutional).


                                          12
      The Appellants also assert a facial overbreadth claim, arguing

that they should have been permitted to challenge other provisions

of   the    ordinance.      The     overbreadth       doctrine     constitutes      "'a

departure from traditional rules of standing'" by permitting an

individual       to   challenge     a    regulation    on    the   theory    that   it

threatens the speech of others.             Giovani Carandola, Ltd. v. Bason,

303 F.3d 507, 512 (4th Cir. 2002) (quoting Broadrick v. Oklahoma,

413 U.S. 601, 613 (1973)).               It does not, however, eliminate the

need to demonstrate an injury in fact.                      See Peterson v. Nat'l

Telecomm. & Info. Admin., 478 F.3d 626, 634 (4th Cir. 2007).                       Only

those "who have suffered some injury from the application of the

contested provisions to begin with" may bring an overbreadth

challenge.        See id. (internal quotation marks omitted).                     Here,

because the permit applications were timely denied on the basis of

a valid size restriction, the Appellants cannot demonstrate an

injury in fact or redressability under any other provision of the

ordinance.       See Covenant Media of S.C., 493 F.3d at 430 (noting

that because the application violated the unchallenged spacing

requirement, it could not have been approved regardless of whether

other provisions could be found to be unconstitutional, and thus,

there      was   no   substantive       constitutional      injury   due    to    other

provisions       that   might   have      been   unconstitutional);         see   also

Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 801

(8th Cir. 2006) (finding that the plaintiff had no standing to


                                           13
challenge restrictions or procedures that were not factors in the

denial of its own permit applications).

       The Appellants argue that the prospect of a prior restraint of

speech due to a lack of procedures in the permit application

process      and   the      unbridled    discretion    of   City     officials   can

constitute an actual injury for an overbreadth challenge.                        The

Supreme      Court    has     "long   held    that   when   a    licensing   statute

allegedly vests unbridled discretion in a government official over

whether to permit or deny expressive activity, one who is subject

to the law may challenge it facially without the necessity of first

applying for, and being denied, a license."                     City of Lakewood v.

Plain Dealer Publ'g. Co., 486 U.S. 750, 755-56 (1988).                   The injury

arises in that instance from the prospect of self censorship; "the

mere existence of the licensor's unfettered discretion, coupled

with   the    power      of   prior     restraint,    intimidates     parties    into

censoring their own speech."             Id. at 757; see Prime Media, Inc. v.

City of Brentwood, 485 F.3d 343, 351 (6th Cir. 2007) (holding that

"the prospect of prior restraint and resulting self-censorship can

itself constitute the required actual injury" for Article III

standing purposes).

       The Appellants do not assert that they were intimidated into

censoring their own speech. To the contrary, they submitted to the

permit process, and the record establishes that the City denied

their permit applications in a timely manner in part on the basis


                                             14
of the billboard size restriction, which we have found to be

constitutional. No change in the permit procedures would result in

the approval of their applications to erect oversized billboards.

There is no suggestion that they intend to file future applications

that would comply with the size restriction or that they are

fearful to submit such an application.     See Get Outdoors II, 506

F.3d at 895 (holding plaintiff lacked standing to bring a prior

restraint   claim   where   its     applications   were   denied   on

constitutionally valid grounds and the plaintiff did not show an

intent to file permit applications that comply with the valid

requirements).   Thus, the Appellants suffer no threat of prior

restraint and lack standing to bring the claim.



                                  III.

     Accordingly, we affirm the district court's grant of summary

judgment in favor of the City.

                                                            AFFIRMED




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