United States Court of Appeals 

For the First Circuit 

No. 17-1192 

SIGNS FOR JESUS; HILLSIDE BAPTIST CHURCH, 

Plaintiffs, Appellants, 

v. 

TOWN OF PEMBROKE, NH; PEMBROKE ZONING BOARD OF ADJUSTMENT; 

EVERETT HODGE, Code Enforcement Officer, Town of Pembroke, in 

both his individual and official capacities, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Paul J. Barbadoro, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Torruella and Barron, Circuit Judges. 

Michael J. Tierney, with whom Wadleigh, Starr & Peters, 

P.L.L.C. was on brief, for appellants. 

Christopher Cole, with whom Megan Carrier and Sheehan Phinney 

Bass & Green, PA were on brief, for appellees. 

October 7, 2020 
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HOWARD, Chief Judge. The Town of Pembroke, New 

Hampshire, bans the use of electronic signs in all of its zoning 

districts except its commercial district (C1) and certain nearby 

areas. In April 2015, Hillside Baptist Church -- located outside 

of these areas -- applied for a permit to install an electronic 

sign on its property, which would transmit messages provided by 

Signs for Jesus, a nonprofit corporation. The Pembroke Zoning 

Board of Adjustment (the "Board") denied the permit, citing the 

electronic sign provision in the Pembroke Sign Ordinance (PSO). 

After a series of unsuccessful administrative appeals, 

Signs for Jesus and Hillside Baptist Church (collectively, the 

"Church") filed a complaint in district court against Pembroke, 

the Board, and Everett Hodge, the Town's Code Enforcement Officer 

(collectively, the "Town"), alleging violations of the United 

States Constitution, the New Hampshire Constitution, the Religious 

Land Use and Institutionalized Persons Act (RLUIPA), and certain 

New Hampshire zoning laws. Both parties filed cross-motions for 

summary judgment. The court granted the Town's motion and declined 

to exercise supplemental jurisdiction over the Church's state 

statutory claims. The Church now appeals that ruling. Because we 

conclude that the Town has met its summary judgment burden on all 

counts, we affirm. 
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I. 

A. Regulatory Framework 

The stated purpose of the PSO is to "[p]romote" street 

safety, "[r]educe distractions and obstructions," "[d]iscourage 

excessive visual competition," and "[p]reserve or enhance town 

character." Pembroke, N.H., Code ch. 143, art. VIII, § 143-57. 

To that end, the PSO requires that individuals and businesses 

desiring to install signs submit applications for permits to the 

Town's Code Enforcement Officer, who is authorized to issue a 

permit "only if [he] determines that the sign complies with, or 

will comply with all applicable provisions of [the PSO]." Id. 

§ 143-59A(3). Certain types of signs, such as political and "for 

sale" signs, however, are exempt from the permit requirement. Id. 

§ 143-59A(8)(a)-(e). 

Regardless of whether a sign is exempt from the permit 

requirement, it is always subject to a "Dimensional Table of Signs" 

in Section 143-62, which specifies the types of signs that are 

allowed in each zone of Pembroke. See id. §§ 143-19, 143-62. 

Pursuant to a March 2012 change to the table, at the time of the 

Church's application, "Electronic Changing Signs" were banned from 

all zones, except in C1 and certain lots "directly abutting 

Pembroke Street." Id. § 143-63X.

While the PSO restricts "permitted signs" to signs that 

"conform to the provisions of [the sign ordinance]," it specifies 
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that two types of signs are always allowed under the PSO. First, 

"[s]igns which are required by federal, state or municipal laws" 

are categorically allowed under the PSO. Id. § 143-58A. 

Additionally, a separate provision allows "non-conforming sign[s] 

lawfully existing at the time of adoption" of the PSO to 

"continue," unless such signs pose safety problems under the PSO. 

Id. § 143-58G(1). 

B. Facts and Procedural History 

Hillside Baptist Church, located in the Limited Office 

(LO) District in Pembroke, displayed a sign on its property that 

conveyed religious messages and could be changed manually. In 

April 2015, the Church applied for a permit to install an 

electronic sign that could be remotely programmed to display 

different religious messages each day, with messages provided by 

Signs for Jesus. 

Hodge denied the Church's application, on the ground 

that the Church is located in a zone where electronic signs are 

prohibited. At the time, there were three electronic signs on the 

same road as the Church. The first was a gas station sign in the 

LO district, which predated the adoption of the PSO. The second 

was a sign on the property of Pembroke Academy, a public school in 

the Residential District, which posted messages advertising school 
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events.1 The third sign was a temporary electronic sign, erected 

during the summer of 2015 by the New Hampshire Department of 

Transportation (NHDOT) to inform motorists of possible 

construction delays.2

Following Hodge's denial of its application, the Church 

filed an administrative appeal and variance request with the Board. 

After a public hearing, the Board denied both the Church's appeal 

and its request for a variance. In its Notice of Decision, the 

Board emphasized that allowing the electronic sign would "detract 

from the rural character of the Route 3 corridor," and noted that 

the municipality's interest in maintaining the area's rural 

character was "compelling." The Church moved for a rehearing, but 

the Board again denied the appeal and variance request in October 

2015. 

The Church responded to these rejections by filing a 

complaint in the district court. After first determining that the 

Church had standing to challenge only the electronic sign 

provision, the district court granted the Town's motion for summary 

1 Pembroke Academy is operated by School Administrative Unit 

53, a political subdivision within the state. See N.H. Rev. Stat. 

Ann. § 507-B:1. 

2 In his declaration submitted to the district court, Hodge 

testified that he was aware of "two temporary" NHDOT signs. The 

Church mentions only one NHDOT sign in its briefing. Whether NHDOT 

erected one or two signs does not affect our analysis of any of 

the Church's claims. 
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judgment with respect to the Church's constitutional and RLUIPA 

claims, and declined to exercise supplemental jurisdiction over 

the complaint's state statutory claims. See Signs for Jesus v. 

Town of Pembroke, 230 F. Supp. 3d 49, 57-68 & n.14 (D.N.H. 2017). 

This appeal followed. 

The Church maintains that the court erred in holding 

that the PSO does not violate the First Amendment's free-speech 

guarantees. As it did in the district court, the Church argues 

that it has standing to pursue a First Amendment challenge to the 

PSO as a whole, both facially and as applied. And it also contends 

that it has standing to challenge the electronic sign provision in 

particular, again both facially and as applied. 

In addition to its First Amendment claims, the Church 

also challenges the district court's dismissal of its claims under 

the Federal and New Hampshire equal protection clauses, as well as 

its RLUIPA claims. Finally, the Church argues that the district 

court erred in declining to exercise supplemental jurisdiction 

over its remaining state law claims. 

II. 

We review a district court's grant of summary judgment 

de novo. Specialty Nat'l Ins. Co. v. OneBeacon Ins. Co., 486 F.3d 

727, 732 (1st Cir. 2007). In this case, the Church had also filed 

its own motion for summary judgment, but "[t]he presence of crossmotions for summary judgment neither dilutes nor distorts th[e] 
- 7 - 

standard of review." Id. (quoting Mandel v. Bos. Phoenix, Inc., 

456 F.3d 198, 205 (1st Cir. 2006)). 

A. Standing 

Article III, section 2 of the Constitution restricts the 

federal judicial power to the resolution of "Cases" and 

"Controversies." U.S. Const. art. III, § 2. The "case-orcontroversy" requirement is satisfied only where a plaintiff has 

"standing" to sue. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 

554 U.S. 269, 273 (2008). To establish such standing, a plaintiff 

must identify an injury in fact that is 1) "concrete, 

particularized, and actual or imminent," 2) "fairly traceable to 

the challenged action," and 3) "redressable by a favorable ruling." 

Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (quoting 

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). 

As the party invoking federal jurisdiction, the Church "bears the 

burden of establishing these elements." Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 561 (1992). 

The parties agree that the Church has standing to 

challenge the electronic sign provision itself with regard to all 

of its claims. In the Church's First Amendment claims in its 

appellate briefing, however, the Church focuses on a number of 

other regulatory provisions that it contends are content-based. 

Those provisions include exemptions from the permitting 

provisions, various categories of signs for which special rules 
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and conditions apply, and two provisions addressing governmentrelated signs. And, the Church contends that, in light of these 

provisions, the electronic sign provision is itself impermissibly 

content-based and is unconstitutional under the First Amendment. 

To the extent that the identified exemptions allow a sign to 

circumvent the requirements of the electronic sign provision, 

there is no standing problem with that contention, as the parties 

seem to agree.

Insofar as the Church's argument nevertheless fails, 

because even though those exemptions may be content-based they do 

not exempt a proposed sign from complying with the electronic sign 

provision, the Church appears to have a fallback argument. That 

argument suggests that the Church has standing to challenge the 

PSO "as a whole" on the basis of the content-based exemptions, no 

matter whether those exemptions are relevant to the Town's denial 

of the Church's request. Because the Church advances no 

affirmative argument that the electronic sign provision is not 

severable from different parts of the PSO that may be contentbased, though, it has no standing to challenge those provisions on 

this basis.3 See Ayotte v. Planned Parenthood of N. New Eng., 546 

3 To the extent the Church relies in arguing otherwise 

on Reed v. Town of Gilbert, 576 U.S. 155 (2015), which did not 

address standing, it is mistaken. In Reed, a church pastor was 

cited for violating a sign ordinance that treated signs differently 

based on the content of their message. 576 U.S. at 160-61. It 

was clear in Reed that if the communicative content of the pastor’s 
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U.S. 320, 328-29 (2006) ("[W]hen confronting a constitutional flaw 

in a statute, . . . . [w]e prefer to . . . sever its problematic 

portions while leaving the remainder intact . . . ."); Sabri v. 

United States, 541 U.S. 600, 609-10 (2004) (expressing disapproval 

of facial challenges "of th[e] sort" where a party claims "the 

statute could not be enforced against him, because it could not 

[constitutionally] be enforced against someone else"). 

The Church also challenges the electronic sign provision 

facially on the ground that it confers unbridled discretion to the 

Town to determine which signs to deem as electronic changing signs 

subject to the strictures of the provision.4 See City of Lakewood 

sign had been different, the town there would have subjected the 

sign to more favorable treatment. Id. For that reason, the 

pastor's injury was fairly traceable to the disparate treatment of 

his sign relative to other signs falling within the ordinance's 

various other content-based sign categories, and thus invalidation 

of the ordinance as a whole would have redressed the 

injury. See id. at 164 ("The restrictions in the Sign Code that 

appl[ied] to any given sign . . . depend[ed] entirely on the 

communicative content of the sign."). Here, by contrast, the 

plaintiff's injury is fairly traceable only to the electronic sign 

provision itself, because that provision barred the plaintiff's 

sign regardless of whether or not any of the other allegedly 

content-based provisions of the PSO also applied to the 

sign. Cf. Maverick Media Grp., Inc. v. Hillsborough County, 528 

F.3d 817, 820 (11th Cir. 2008) ("[A] plaintiff whose sign permit 

applications were denied on the basis of one provision in a 

county's sign ordinance, but which could have been denied on the 

basis of some alternate, but unchallenged regulation, does not 

have a redressable injury."). 

4 While the Church cannot bring this challenge as-applied, 

because its challenge targets the nature of the discretionary 

authority delegated to the Town rather than its specific denial of 

the Church's request to put up its proposed sign, the Church has 

made a claim that the electronic sign provision is facially invalid 
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v. Plain Dealer Publ'g Co., 486 U.S. 750, 758-59 (1988). It has 

standing to do so. See Van Wagner Bos., LLC v. Davey, 770 F.3d 

33, 39 (1st Cir. 2014) ("City of Lakewood does not require a 

plaintiff to identify instances of self-censorship or contentbased decisionmaking before a facial challenge may be 

mounted. . . . Rather, the federal cases all are in harmony with 

the Supreme Court's presumption that regulatory schemes exhibiting 

the features it identified pose those threats."). Insofar as that 

argument fails, the Church also appears to contend that it has 

standing to challenge the PSO as a whole facially due to other 

provisions in the PSO that themselves confer unbridled discretion 

to the Town to determine which signs to allow. But, so long as 

those provisions are unrelated to the denial of the Church's sign 

request, we do not see how the Church could have standing to 

challenge them, for, again, the Church fails to develop any 

argument for why these provisions are not severable from the 

electronic sign provision that formed the basis of the Town's 

denial of the Church's request. See Sabri, 541 U.S. at 609-10. 

Keeping these limitations on the scope of the Church's 

standing to challenge different portions of the PSO in mind, we 

proceed to consider the Church's First Amendment challenges to the 

PSO. 

as a conferral of unbridled discretion. See City of Lakewood, 486 

U.S. at 758-59. 
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B. Content-Based Speech Restriction Claim 

The Church first challenges the electronic sign 

provision as an unconstitutional restriction on its freedom of 

speech. The First Amendment, which applies to the states through 

the Fourteenth Amendment, provides that "Congress shall make no 

law . . . abridging the freedom of speech." U.S. Const. amend. I. 

Evaluating the constitutionality of a speech restriction first 

requires a determination about whether the restriction is content 

based or content neutral. Reed, 576 U.S. at 165. "Government 

regulation of speech is content based if a law applies to 

particular speech because of the topic discussed or the idea or 

message expressed." Id. at 163. Such speech restrictions are 

subject to strict scrutiny, which requires the government to 

demonstrate that the restriction advances a "compelling interest" 

and is "narrowly tailored to achieve that interest." Id. at 171 

(quoting Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 

U.S. 721, 734 (2011)). 

Content-neutral regulations, by contrast, "serve[] 

purposes unrelated to the content of expression," and are subject 

to intermediate scrutiny which requires that the restrictions be 

"narrowly tailored to serve a significant governmental interest, 

and that they leave open ample alternative channels for 

communication of the information." Ward v. Rock Against Racism, 
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491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293 (1984)). 

But speech restrictions that are facially contentneutral are considered content-based and thus subject to strict 

scrutiny if they exhibit a speaker preference that "reflect[s] the 

Government's preference for the substance of what the favored 

speakers have to say (or aversion to what the disfavored speakers 

have to say)." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 

658 (1994); see Reed, 576 U.S. at 163-64. To show that a facially 

content-neutral regulation is subject to strict scrutiny, the 

plaintiff must show not only that the restriction distinguishes 

between speakers, but also that it "reflects a content preference." 

Reed, 576 U.S. at 170 (quoting Turner, 512 U.S. at 658); see also 

Ward, 491 U.S. at 791 ("A regulation that serves purposes unrelated 

to the content of expression is deemed neutral, even if it has an 

incidental effect on some speakers or messages but not others."). 

Thus, where the evidence indicates that the challenged regulation 

was enacted to advance a purpose unrelated to content preference, 

it is subject only to intermediate scrutiny. See Turner, 512 U.S. 

at 658-59 (rejecting the application of strict scrutiny to a law 

preferring broadcasters over cable programmers where its purpose 

was to promote economic growth for struggling broadcast stations). 
- 13 - 

1. 

The parties agree that the electronic sign provision 

itself is a facially content-neutral restriction. The Church 

contends, however, that a number of other provisions in the PSO 

are content-based. Because, as we have explained, the Church only 

has standing to challenge those other provisions if it is correct 

that they excuse a speaker from complying with the electronic sign 

provision, we first consider whether the Church correctly 

characterizes the allegedly content-based exemptions as limiting 

the applicability of the electronic sign provision. 

On the Church's own account, a number of these exemptions 

are exemptions from the permit requirement in Section 143-59 of 

the PSO. The Church makes no sustained argument, however, that 

this section of the PSO sets forth any exemption that spares a 

sign from having to comply with the electronic sign provision. 

Moreover, the plain text of the PSO indicates that the electronic 

sign provision applies notwithstanding whether any of the 

exemptions set forth in Section 143-59 apply. For, while Section 

143-59 specifically exempts certain signs "from the permitting 

requirements," it does not exempt them from any other PSO 

provisions, such as the electronic sign provision. Bolstering 

this reading, both before the district court and in this court, 

the Town has maintained that the electronic sign provision is 

"entirely independent" of the permit requirement from which 
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Section 143-59 sets forth exemptions. See Sullivan v. City of 

Augusta, 511 F.3d 16, 26-27, 29 (1st Cir. 2007) (deferring to a 

city's interpretation of the applicability of an ordinance where 

it was supported by the plain text of the statute and was not 

contradicted by any evidence in the record).5 

Most of the remaining provisions that the Church 

characterizes as content-based are provisions in Section 143-63 of 

the ordinance that lay out different categories of signs and the 

special conditions that apply to them, as well as corresponding 

provisions in Section 143-62 that describe the dimensional 

requirements for each such category of sign. Because the 

electronic sign provision falls within these sections of the PSO 

and itself lays out special rules for "electronic changing signs," 

the Church contends that, in determining that its proposed sign 

was an electronic changing sign, the Town necessarily determined 

that its sign did not belong to any of the allegedly content-based 

categories of signs identified in Section 143-63. Had it 

determined otherwise, the Church suggests, the Town could not have 

deemed the Church's sign to be an electronic changing one.

Here too, though, the plain text of the PSO stands in 

the Church's way. Nothing in the PSO precludes a sign from being 

5 The Church makes no argument that being subjected to the 

permitting process itself constitutes an injury for standing 

purposes even though its proposed sign is prohibited no matter 

whether it is subject to that process or not. 
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both an "electronic changing sign" and, for instance, a "Political 

Sign" or a "For Sale" sign under Section 143-63. If a sign falls 

under one of these allegedly content-based categories and is also 

an electronic changing sign, moreover, there is no indication in 

the ordinance that the sign is exempt from satisfying the 

requirements of the electronic sign provision. In accordance with 

this reading of the PSO, the Town represents that if a sign meets 

the definition of an electronic changing sign, "it is an Electronic 

Sign, irrespective of the content of its message." We thus accept 

the Town's reasonable reading of its law. See Sullivan, 511 F.3d 

at 26-27. 

There is one provision in Section 143-63 that bears 

additional discussion. That provision is the PSO's "public service 

exception," which not only identifies a category of sign and 

subjects it to special rules but also provides that "temporary 

governmental agency signs which carry public-service announcements 

and notices may be permitted to exceed the dimensional requirements 

of [the PSO]." Pembroke, N.H., Code ch. 143, art. VIII, § 143-

63P. Here, too, the Church asserts that the provision is 

impermissibly content-based. But, we conclude that this 

provision, like the others in Section 143-63, does not excuse a 

sign from compliance with the electronic sign provision. 

That exemption, by its own terms, only enables the 

government to "exceed . . . dimensional requirements" that would 
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otherwise constrain its choice of signage. Id. Despite its easing 

of these "dimensional" rules, as with the permitting exceptions 

and the other provisions for special categories of signs, the 

public service announcement provision does not negate the 

government's obligation to comply with non-dimensional aspects of 

the PSO. As the Town represented to the district court, this 

provision thus does not "create an 'exemption' from the restriction 

on electronic signs." If a qualifying public service announcement 

were "displayed as an electronic sign," according to the Town, it 

"would still be banned at the Church's location." 

To be sure, the restrictions on electronic signs are 

regulated in part in a section of the PSO labeled "Dimensional 

Table of Signs." But, we see no reason to think that the Town's 

representation to us that the restrictions are not "dimensional 

requirements" that temporary public service announcements may 

exceed is incorrect. Nor does the Church mount an argument for 

why the Town's reading of the PSO on this point is implausible. 

Indeed, in its opening brief, it simply brushes past the question 

by omitting the portion of the ordinance that references 

"dimensional requirements" altogether. And, thus, we accept the 

Town's reading of its own ordinance, see Sullivan, 511 F.3d at 30, 

particularly as it avoids a constitutional concern that the 

contrary reading would create. 
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The final exception that we need to address that the 

Church contends is content-based does not appear in either Section 

143-59's permitting provisions or Section 143-63's special 

provisions.6 That exception states, without qualification, that 

"[s]igns which are required by federal, state or municipal laws 

are permitted." Pembroke, N.H., Code ch. 143, art. VIII, § 143-

58A. The Town argues that there is no textual basis in the 

ordinance for concluding that these signs are allowed without the 

signs having to "conform to the provisions [applicable to other 

signs]," id., but we are not convinced. 

Rather than specifically referencing signs required by 

law, the "conform to" language caveats a different sentence of the 

ordinance, which reads in full as follows: "Only signs which refer 

to any lawful use, permitted use or an approved special exception 

use as set forth in Article IV of this Chapter shall be permitted, 

provided such signs conform to the provisions of this article." 

Id. (emphasis added). While the required-by-law exemption appears 

in the same subsection of the ordinance as the provision with the 

6 At oral argument, the Church suggested that it had standing 

to challenge yet other exemptions in the PSO related to electronic 

signs, namely, the time and temperature exceptions and the 

provisions allowing holiday lights. These arguments, however, 

were only cursorily mentioned in the briefs and are accordingly 

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 

1990) ("[I]ssues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are 

deemed waived."). 
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language regarding conformance with the provisions of the article, 

the required-by-law exemption is codified in a sentence that is 

displayed in a box separated off from the rest of the text of the 

ordinance, including the conformance language that the Town reads 

as qualifying the exception. Thus, there is no reason to conclude 

that signs required by law, which the ordinance generally deems to 

be "permitted," are only "permitted" if they "conform to the 

provisions of this article." Such signs are allowed even if they 

violate the electronic sign provision, and the ordinance draws a 

distinction in its application of the electronic sign provision 

between signs required by law and the sign the Church requested to 

display. Even with the limitations on the scope of the Church's 

challenge that we have recognized, then, the Church may challenge 

the electronic sign provision as expressing a preference for 

government speakers based on this assertedly content-based 

exemption from it. 

2. 

The Church contends that the required-by-law exception 

to the electronic sign provision reflects an impermissible 

preference for government speech. The district court concluded 

that the required-by-law exception did not reflect a content 

preference, however, and proceeded to apply intermediate scrutiny. 

We agree with the district court's approach. 
- 19 - 

We have previously found that a broader exemption for 

government signage did not render an otherwise content-neutral 

ordinance to be content-based. See John Donnelly & Sons v. 

Campbell, 639 F.2d 6, 8-9 & n.4 (1st Cir. 1980) (holding that a 

sign ordinance was content neutral despite excepting "[s]igns of 

a duly constituted governmental body"). In Campbell, we reasoned 

that the government signage exception reflected an "appropriate 

governmental interest" and was "justified by sheer public 

necessity." Id. at 9 (first quotation quoting Police Dep't of 

Chi. v. Mosley, 408 U.S. 92, 95 (1972)). 

We can identify no reason to reach a contrary conclusion 

here. The exemption for signs required by state law appears 

primarily intended to codify the New Hampshire state government's 

general exemption from local zoning ordinances. See Region 10 

Client Mgmt., Inc. v. Town of Hampstead, 424 A.2d 207, 209 (N.H. 

1980) ("[Z]oning restrictions do not apply to the State or its 

agencies 'unless the legislature has clearly manifested an intent 

that they shall.'") (quoting City of Portsmouth v. John T. Clark 

& Son, Inc., 378 A.2d 1383, 1384 (N.H. 1977)). Moreover, this 

state government exemption from local zoning ordinances extends to 

other government subdivisions, including school districts. See 

City of Manchester Sch. Dist. v. City of Manchester, 843 A.2d 966, 

972 (N.H. 2004) ("[T]here is a comprehensive statutory scheme that 

evidences a legislative intent not to permit municipalities to 
- 20 - 

exercise broad control over the establishment, powers and 

functioning of school districts."). The underlying purpose of the 

state law exemption is to allow New Hampshire to carry out 

"legitimate state functions," unimpeded by the cost of complying 

with the variable signage restrictions across different 

municipalities and zones within those municipalities. Region 10 

Client Mgmt., Inc., 424 A.2d at 209 (quoting John T. Clark & Son, 

Inc., 378 A.2d at 1384-85). 

To the extent that the ordinance also exempts signs that 

state or federal law requires non-governmental entities to 

display, moreover, it merely reflects the limits of the Town's 

authority to regulate behavior that these other governmental 

entities require. See Prolerized New Eng. Co. v. City of 

Manchester, 103 A.3d 217, 221 (N.H. 2014) (holding that a local 

ordinance is preempted where it "permits that which a State statute 

prohibits or vice versa" (quoting N. Country Envtl. Servs. v. Town 

of Bethlehem, 843 A.2d 949, 954 (N.H. 2004))); Hillsborough Cnty. 

v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (noting 

that state law must give way when "compliance with both federal 

and state regulations is a physical impossibility" and that "for 

the purposes of the Supremacy Clause, the constitutionality of 

local ordinances is analyzed the same way as that of statewide 

laws" (first quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 

373 U.S. 132, 142-43 (1963))). And, while we note that the PSO 
- 21 - 

exception for legally required signs extends to signs required by 

"municipal laws" as well as state and federal laws, we read the 

reference to "municipalities" in the required-by-law exemption to 

only reflect that fact that, as we have noted, state law prohibits 

the Town from regulating the land use of other municipalities, 

like school districts. In line with this reading, the Church fails 

to identify any laws imposed by the Town of Pembroke itself that 

would require the use of electronic signs that would otherwise 

violate the terms of the PSO, much less any specific signs that 

are required by such laws. 

It is true that Campbell predates the Court's decision 

in Reed, which held that facially content-discriminatory laws 

cannot be content-neutral. See 576 U.S. at 165-66. But, while 

the law at issue in Campbell was speaker-based, it was contentneutral on its face, see 639 F.2d at 8-9 & n.4, and Reed recognized 

that such laws are only subject to strict scrutiny when the 

speaker-based discrimination "reflects a content preference," 576 

U.S. at 170 (quoting Turner, 512 U.S. at 658). Thus, Campbell's 

holding on this point remains good law. 

Accordingly, because the exception for legally required 

signs only reflects the existence of external limits on the Town's 

power to regulate the signs displayed or required by other 

governments, it is neither speaker-based nor content-based. The 

Town has applied the electronic sign provision equally to all signs 
- 22 - 

that are within its power to regulate; the required-by-law 

exception merely acknowledges a legal limit to the scope of that 

power. 

3. 

Separate from any exemptions in the PSO itself, the 

Church argues that restricting the allowance of electronic signs 

to the C1 district -- and requiring churches to apply for variances 

in order to locate in that district -- reflects a preference for 

commercial speech and thus is content-based in that respect. But, 

the Town's treatment of electronic signs by the Town's zoning 

scheme is not a content-based or speaker-based restriction, 

because it applies equally to all property owners within their 

given area of the Town. All property owners within the C1 district 

and certain nearby lots abutting Pembroke Street, including the 

two churches that have applied for and received variances to locate 

in the C1 district, can display electronic signs adhering to 

certain requirements on their property. All property owners 

outside those areas cannot. Thus, the ordinance simply imposes a 

location-based restriction on speech. 

We recognize that a location-based restriction on 

speech, like other facially content-neutral laws, may be treated 

as content-based if it "cannot be 'justified without reference to 

the content of the regulated speech,' or [was] adopted by the 

government 'because of disagreement with the message [the speech] 
- 23 - 

conveys,'" Reed, 576 U.S. at 164 (second set of alterations in 

original) (quoting Ward, 491 U.S. at 791). But, here, the Church 

develops no argument for why the locational rules imposed on 

churches are a pretext for the Town to regulate the content of 

speech with regard to the use of electronic signs. Thus, this 

aspect of the Town's ordinance is also a content-neutral time, 

place, and manner restriction on speech, which we subject to 

intermediate scrutiny. See Ward, 491 U.S. at 791. 

C. Time, Place, and Manner Speech Claim 

The electronic sign provision withstands intermediate 

scrutiny because it is "narrowly tailored to serve a significant 

governmental interest." Ward, 491 U.S. at 796 (quoting Clark, 468 

U.S. at 293). With respect to the Church's proposed sign, the 

Town asserts an interest in "preserv[ing] the existing 

neighborhood characteristics and aesthetics, including the rural 

and natural look of [Pembroke]."7 It is well established that, in 

the realm of content-neutral regulations, aesthetic concerns are 

significant governmental interests. See Members of City Council 

of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805-06 (1984); 

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981); 

7 The district court considered the Town's traffic safety 

concerns as well, but the Town concedes that traffic safety was 

not at issue with the Church's proposed sign. Because the Church 

is pressing an as-applied challenge here, we accordingly focus on 

the Town's asserted aesthetic interest. 
- 24 - 

Naser Jewelers, Inc. v. City of Concord, 513 F.3d 27, 34 (1st Cir. 

2008). 

We hold that the electronic sign provision is narrowly 

tailored to achieve this stated goal. A speech restriction is 

sufficiently narrowly tailored so long as the "regulation promotes 

a substantial government interest that would be achieved less 

effectively absent the regulation." Ward, 491 U.S. at 799 (quoting 

United States v. Albertini, 472 U.S. 675, 689 (1985)). Here, we 

can identify no basis to doubt that the Town's interest in 

maintaining its "quaint little New England village" aesthetic 

would be achieved less effectively without the electronic sign 

provision. See Naser, 513 F.3d at 35 (concluding that the city's 

goal of "not rendering [its] visual image and community character 

to be that of a potential Times Square" would be achieved "far 

less effectively" absent its ban on electronic messaging signs) 

(alteration in original). 

The Church maintains that the scope of the electronic 

sign provision nonetheless renders it unconstitutional. It first 

argues that the provision is underinclusive because the PSO allows 

property owners to erect "less aesthetically pleasing" signs -- 

"sandwich board signs" and "neon signs" among them -- without 

obtaining a permit. However, the First Amendment does not require 

that a municipality, in advancing its aesthetic interests through 

a content-neutral regulation, eliminate all possible sources of 
- 25 - 

visual blight. See Metromedia, 453 U.S. at 511 (concluding that 

an ordinance allowing onsite advertising while banning offsite 

advertising satisfied intermediate scrutiny); Vincent, 466 U.S. at 

811 ("[T]he validity of the esthetic interest in the elimination 

of signs on public property is not compromised by failing to extend 

the ban to private property."). Here, as the district court 

explained, in banning electronic signs outside of the commercial 

district, Pembroke has made a reasonable attempt to balance its 

aesthetic interest with a countervailing interest in economic 

development. Such a balance does not upset narrow tailoring. See 

Metromedia, 453 U.S. at 511. 

We likewise reject the Church's argument that the 

electronic sign provision is unconstitutional because it is 

overinclusive. Although the Town may not "burden substantially 

more speech than is necessary to further [its] legitimate 

interests," it need not choose the least restrictive means 

possible, as "the regulation will not be invalid simply because a 

court concludes that the government's interest could be adequately 

served by some less-speech-restrictive alternative." Ward, 491 

U.S. at 799-800.8 

8 We reject the Church's invitation, drawing from language in 

McCullen v. Coakley, 573 U.S. 464, 495 (2014), to require the Town 

to "affirmatively prove that less restrictive measures have been 

tried." In both McCullen and Rideout v. Gardner, 838 F.3d 65 (1st 

Cir. 2016), another case upon which the Church relies, the 

connection between the speech restriction and the asserted 
- 26 - 

Moreover, the electronic sign provision leaves open 

"alternative channels for communication." Ward, 491 U.S. at 791. 

To assess whether the alternatives are adequate, we examine "the 

ability of a party to disseminate its message to the same general 

audience despite the restrictions at issue." Sullivan, 511 F.3d 

at 49 (Lipez, J., dissenting in part). Here, the Church remains 

free to communicate its religious messages to passers-by through 

its existing, manually changing sign, or through any other nonelectronic sign. We doubt that the Church's inability to 

communicate the same message to the same audience through an 

electronic sign frustrates its goals, particularly where, as here, 

the Church has proposed a static electronic sign that "will not 

flash or scroll." Although the Church maintains that an electronic 

sign would be a more convenient means of achieving its goals, 

"[t]he First Amendment does not guarantee a right to the most costeffective means of distribution." Globe Newspaper Co. v. Beacon 

Hill Architectural Comm'n, 100 F.3d 175, 193 (1st Cir. 1996) 

governmental interest was more tenuous. See McCullen, 573 U.S. at 

494-95, 497 (striking down a buffer zone around abortion clinics 

statewide when "the problem appears from the record to be limited 

principally to [a single] clinic on Saturday mornings [and] the 

police appear perfectly capable of singling out lawbreakers"); 

Rideout, 838 F.3d at 73 (striking down New Hampshire's ban on 

"ballot selfies" enacted for purposes of reducing voter fraud and 

coercion despite the fact that the state "ha[d] not received any 

complaints of vote buying or voter intimidation since at least 

1976"). Here, the connection between an electronic sign ban and 

an interest in preserving a town's rural character is immediately 

apparent. 
- 27 - 

(upholding ban on newspaper racks despite the higher cost of 

employing street vendors). Because the electronic sign provision 

is narrowly tailored to further the Town's aesthetic interest and 

leaves open ample alternative channels for communication, we 

affirm the district court's entry of summary judgment on the 

Church's free speech claim in favor of the Town. 

D. Unbridled Discretion Claim 

There remains one loose end. As we noted before, the 

Church contends that various provisions of the PSO "grant[] 

unbridled discretion to determine which signs are and are not 

permitted without narrow, objective and definite criteria." 

However, as we have already explained, the Town denied the Church's 

sign on the basis of its status as an electronic changing sign, 

and the other provisions that the Church identifies as conferring 

unbridled discretion do not enable the Town to allow a sign that 

would otherwise be barred by the electronic sign provision. Nor, 

as we have already noted, does the Church make any argument that 

the electronic sign provision would not survive even if the other 

provisions were invalidated on this ground. Thus, we narrow our 

focus to the electronic sign provision itself. 

That provision describes the "Electronic Changing Signs" 

it regulates as follows: 

Electronic Changing Signs include, but are not 

limited to, electronic message center (EMC), 

electronic message sign (EMS), and changeable 
- 28 - 

copy board (CCB) signs that display 

illuminated messages that can change 

frequently, can flash, display and/or convey 

messages in text, graphics, pictures, symbols, 

multiple colors, rhythms, animation, and/or 

patterns. This sign's message may be changed 

by the electronic switching of lamps, 

illuminated tubes, bulbs, and/or through the 

apparent movement of light. These signs are 

capable of storing and/or displaying single or 

multiple messages in various formats at 

varying intervals. 

Pembroke, N.H., Code ch. 143, art. VIII, § 143-63X. The Church 

contends that the provision's use of the "include, but are not 

limited to" language gives the Town overly broad discretion to 

determine what constitutes an electronic changing sign. And, it 

argues, the Town's treatment of the Church's proposed sign, which 

the Church characterizes as "static" and not "changing," as falling 

under the scope of the statute is evidence of the standard-less 

discretion that the Town has to treat proposed signs as prohibited 

electronic changing signs.

The Supreme Court has long recognized that "a licensing 

statute placing unbridled discretion in the hands of a government 

official or agency constitutes a prior restraint." City of 

Lakewood, 486 U.S. at 757. The mere existence of some measure of 

discretion in implementing a licensing regime, however, does not 

render such a regime constitutionally suspect. Rather, "perfect 

clarity and precise guidance have never been required even of 

regulations that restrict expressive activity," and accordingly, 
- 29 - 

the Court has upheld even standards for regulating expression that 

are "undoubtedly flexible" and require officials to "exercise 

considerable discretion." Ward, 491 U.S. at 794. 

Here, the Town's ordinance quite specifically lays out 

the criteria used to determine whether a sign is an electronic 

changing sign. These criteria are, as the District Court found, 

objective ones. It is clear, for instance, that a sign using light 

bulbs that turn on and off to display a rotating series of textual 

messages over the course of a day would constitute an electronic 

changing sign. Moreover, given the well-defined examples that the 

ordinance identifies as electronic changing signs, we do not read 

the "including, but . . . not limited to" language in the ordinance 

as a free-floating grant of authority to treat any sign as 

potentially falling within the scope of the ordinance, but instead 

as reaching only other signs similar to the ones specifically 

identified. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 

114–15, 121 (2001) ("[W]here general words follow specific words 

in a statutory enumeration, the general words are construed to 

embrace only objects similar in nature to those objects enumerated 

by the preceding specific words.") (quoting 2A N. Singer, 

Sutherland on Statutes and Statutory Construction § 47.17 (1991)). 

The Church contends that the Town's application of the 

electronic sign provision to the Church's proposed sign, which the 

Church characterizes as "static," demonstrates that the Town's 
- 30 - 

reading of the statute must not be so limited, as the Church asks 

us to conclude that the Church has not proposed a "changing" sign 

within the meaning of the statute. But, despite its 

characterization of its own sign, the Church concedes that its 

proposed sign could "change" as often as once per day, which puts 

it squarely within the scope of the ordinance. The Church also 

fails to identify any other reason to suspect the Town applies its 

statute in anything but the commonsense way we do here. Thus, we 

see no reason to think that the Town, in reviewing proposed signs 

under the electronic sign provision, exercises the sort of 

unfettered discretion that the First Amendment prohibits. 

E. RLUIPA Claims 

 The Church brings two distinct claims under RLUIPA on 

appeal, the first under the "equal terms" provision, and the second 

under the "substantial burden" provision. 

1. Equal Terms 

The "equal terms" provision of RLUIPA provides that 

"[n]o government shall impose or implement a land use regulation 

in a manner that treats a religious assembly or institution on 

less than equal terms with a nonreligious assembly or institution." 

42 U.S.C. § 2000cc(b)(1). The first step in the RLUIPA "equal 

terms" analysis is to identify a relevant secular comparator. 

Although several circuits have articulated different approaches, 

they all generally require that the comparators be similarly 
- 31 - 

situated with respect to the purpose of the underlying regulation. 

See, e.g., Lighthouse Inst. for Evangelism, Inc. v. City of Long 

Branch, 510 F.3d 253, 268 (3d Cir. 2007) ("[A] religious plaintiff 

under the Equal Terms Provision must identify a better-treated 

secular comparator that is similarly situated in regard to 

the objectives of the challenged regulation") (emphasis in 

original); River of Life Kingdom Ministries v. Village of Hazel 

Crest, Ill., 611 F.3d 367, 371 (7th Cir. 2010) (en banc) (holding 

that plaintiff must point to a similarly situated comparator with 

respect to "zoning criteria") (emphasis removed). 

The Church points to Pembroke Academy and NHDOT as 

comparators.9 Both were allowed to erect electronic signs in the 

LO (Limited Office) district. However, the district court rejected 

Pembroke Academy and NHDOT as viable comparators "because the state 

has deprived the Town of any power to regulate governmental land 

uses." Signs for Jesus, 230 F. Supp. 3d at 67 (citing Primera 

Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 

9 Before the district court, the Church offered the filling 

station in the LO district as a comparator but does not pursue 

that argument here. In its briefing, the Church also posits that 

commercial entities allowed in the C1 zone are comparators. 

However, entities located in the C1 zone are subject to completely 

different zoning restrictions, which would disqualify them as 

comparators under any formulation of the test. Moreover, 

distinguishing between commercial and non-commercial entities is 

an "accepted zoning criterion." River of Life, 611 F.3d at 373. 
- 32 - 

450 F.3d 1295, 1311 (11th Cir. 2006)). Here, too, we agree with 

the district court. 

The Town's power to regulate land use is derived from 

the state. See N.H. Rev. Stat. Ann. § 674:16; John T. Clark & 

Son, Inc., 378 A.2d at 1384 ("Cities and towns have only such 

powers as are granted to them by the state."). But the Town's 

regulatory power, as mentioned above, does not extend to regulating 

governmental land uses, which include any governmental use of land 

owned or occupied by the state or school district "for any public 

purpose which is statutorily or traditionally governmental in 

nature." N.H. Rev. Stat. Ann. § 674:54. Accordingly, the PSO's 

exemption for legally-required signs merely reflects Pembroke's 

lack of authority to regulate governmental land use. 

The Church is not similarly situated with Pembroke 

Academy and NHDOT because it is not a governmental entity and its 

proposed sign is not for a public purpose that is statutorily or 

traditionally governmental in nature. The Church and its sign are 

therefore subject to the Town's regulatory authority, while 

Pembroke Academy and NHDOT are not. While we agree with the Church 

that all three entities may be alike in that their signs affect 

the aesthetic landscape in the LO district in a similar way, the 

parties are not appropriate comparators for purposes of the RLUIPA 
- 33 - 

equal terms analysis because only the Church is subject to the 

regulatory authority of the Town.10

This analysis accords with the Eleventh Circuit's 

decision in Primera. There, the Eleventh Circuit held that a 

church that was denied a variance was not similarly situated to a 

school that had been granted rezoning because the entities sought 

relief from different governing bodies (the school from the zoning 

board, and the church from the board of adjustment) and sought 

different forms of relief (rezoning versus a variance). 450 F.3d 

at 1311-12. Given these differences in regulatory schemes, the 

court held that the church and the school were not appropriate 

comparators under RLUIPA. Id. at 1313-14. 

The Church also puts forth no evidence that a nongovernmental secular entity is treated on other than equal terms, 

in light of the PSO's objectives. Absent the existence of such a 

similarly-situated comparator, the Church's equal terms claim 

10 The Church cites Digrugilliers v. Consol. City of 

Indianapolis, 506 F.3d 612 (7th Cir. 2007), for the proposition 

that the Town is an instrumentality of the state and therefore we 

must look to the combined effect of the state and municipal law to 

appreciate the RLUIPA violation. But, Digrugilliers was not 

engaged in looking for an appropriate comparator under the RLUIPA 

equal terms analysis as we are here. Moreover, as the district 

court noted, Digrugilliers "in no way calls into question" the 

principle that entities who are subject to different regulatory 

schemes and decision-making bodies are not similarly situated. 

See Signs for Jesus, 230 F. Supp. 3d at 68 n.12. Without a 

similarly-situated comparator, our RLUIPA equal terms analysis is 

halted. 
- 34 - 

fails. See River of Life, 611 F.3d at 373 ("[I]f religious and 

secular land uses . . . are treated the same . . . that is enough 

to rebut an equal-terms claim."). We thus hold that the district 

court correctly entered summary judgment on the Church's RLUIPA 

equal terms claim. 

2. Substantial Burden 

 We proceed to the Church's next RLUIPA challenge, that 

the electronic sign provision imposes a substantial burden on its 

religious exercise. RLUIPA provides: 

No government shall impose or implement a land use 

regulation in a manner that imposes a substantial 

burden on the religious exercise of . . . a religious 

assembly or institution, unless the government 

demonstrates that imposition of the burden . . . is 

in furtherance of a compelling governmental 

interest; and is the least restrictive means of 

furthering that compelling governmental interest. 

42 U.S.C. § 2000cc(a). Although the statute does not define 

"substantial burden," we have applied a "common-usage 

understanding[]" of its terms. Roman Catholic Bishop of 

Springfield v. City of Springfield, 724 F.3d 78, 95 (1st Cir. 

2013). A "burden" is "[s]omething that hinders or oppresses," or 

"something oppressive or worrisome," while something "substantial" 

is "important" or "significantly great." Id. at 96 (alterations 

in original) (citations omitted). 

We have outlined factors that are helpful in determining 

whether a particular regulation imposes a substantial burden: 
- 35 - 

1) "whether the regulation at issue appears to target a religion 

. . . because of hostility to that religion itself"; 2) whether 

the regulation was "imposed on the religious institution 

arbitrarily, capriciously, or unlawfully"; and 3) "whether local 

regulators have subjected the religious organization to a process 

that may appear neutral on its face but in practice is designed to 

reach a predetermined outcome contrary to the group's requests." 

Id. at 96-97 (citations omitted). 

The Town contends that any "inconvenience" the 

electronic sign provision imposes on the Church cannot be 

"significant enough to rise to the level of a 'substantial burden' 

as contemplated by RLUIPA." After all, requiring the Church to 

continue using a manually changeable, non-electronic sign is 

hardly an "oppressive" imposition on the Church's religious 

exercise. Roman Catholic Bishop of Springfield, 724 F.3d at 95; 

see Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 

349 (2d Cir. 2007) ("There must exist a close nexus between the 

coerced or impeded conduct and the institution's religious 

exercise for such conduct to be a substantial burden on that 

religious exercise"); Midrash Sephardi, Inc. v. Town of Surfside, 

366 F.3d 1214, 1227 (11th Cir. 2004) ("'[S]ubstantial burden' 

requires something more than an incidental effect on religious 

exercise."). As we discussed in the free-speech context, though 

an electronic sign may be more convenient, the Church nonetheless 
- 36 - 

remains free to convey its desired messages to the same audience. 

See id. at 99 ("[T]he mere existence of some expenses does not put 

'substantial pressure on [the religious institution] to modify its 

behavior'") (quoting Bethel World Outreach Ministries v. 

Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir. 2013)); Civil 

Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 

761-62 (7th Cir. 2003) (holding that law created no substantial 

burden under RLUIPA even though plaintiff churches "expended 

considerable time and money" to relocate to certain districts). 

But, we need not resolve this case on this ground because 

the Church does not contend that the extent of the burden imposed 

by the electronic sign provision, standing alone, constitutes a 

RLUIPA violation. Instead, the Church focuses its argument on the 

third factor we have identified as an indicator of the 

substantiality of the burden imposed on a religious institution, 

as it contends that the Board "prejudged" its application before 

denying the Church's permit at the public hearing.11

The Church's theory of prejudgment hinges largely on 

actions that Hodge and members of the Board took prior to the 

11 In a footnote, the Church makes reference to the other two 

factors, arguing that prohibiting churches from the C1 district 

"targets religious signs" and that the PSO vests "unbridled 

discretion" in the Code Enforcement Officer to determine whether 

certain signs are eligible for exemptions. Not only are these 

arguments underdeveloped and thus waived, but they also target 

provisions of the PSO that the Church does not have standing to 

challenge. See supra Part II.A. 
- 37 - 

Board's meeting in October of 2015. The record indicates the 

following facts that the Church identifies as supporting its 

position. 

A week before that meeting, Hodge and the chair and vice 

chair of the Board, William Bonney and Bruce Kudrick, met with a 

lawyer to discuss the Church's application for a variance. Bonney 

and Kudrick were the only Board members present at the meeting, in 

order (according to Bonney's deposition), to avoid triggering the 

requirements for a public meeting. Such a pre-meeting gathering 

was "rare," and Bonney could not remember any similar ones during 

his thirty years on the Board. At the meeting, on request the 

attorney provided the Board members a draft motion that would deny 

the Church's request. He did not pass on an equivalent draft of 

a motion for approval.

But, while the Church argues that, on the basis of this 

evidence, a jury could find that the Board was colluding to deny 

the Church a permit prior to its October meeting, the evidence 

could not support that inference. Bonney testified that the 

purpose of drafting the motion to deny was to ensure that the Board 

"knew the motion that we had to make if we were going to deny," 

and he further testified that he "didn't know whether we were going 

to approve or deny [the request] until the end of the meeting." 

(emphasis added). The Church identifies nothing in the record 

that would suggest that the Board's explanation for this meeting 
- 38 - 

was false or that the Board otherwise prejudged the outcome of the 

Church's request. As Bonney testified, the Board consulted with 

an attorney because the Church had hired "expensive counsel," who 

had noted that the Church's request implicated issues of federal 

law and, again, no evidence contradicts that assertion. Thus, a 

juror would have nothing but speculation to rely on to conclude 

that the purpose of the meeting was not, as Bonney testified, to 

discuss "matters that were outside [the Board's] normal 

jurisdiction," namely issues related to RLUIPA, which the Board 

members considered to be more complicated than the standard 

variance factors that usually guided their decisions. 

Accordingly, the fact that the Board had counsel ready 

is not a basis on which a jury could conclude that the Board 

improperly prejudged the decision. Likewise, Bonney's 

uncontradicted deposition testimony was that the Board members 

only received a draft motion regarding denial, not approval, 

because a motion for approval would have been simple to draft: 

"you have to state the reasons for denial" but "you don't have to 

state the reasons for approval." The Church again fails to note 

anything in the record that would provide a juror with a reasonable 

basis to dispute that conclusion. 

The Church separately alleges that "the Town doctored 

the minutes" of the October meeting, which it apparently views as 

evidence in support of its theory that the Board's denial of the 
- 39 - 

Church's request for a variance was pre-determined. But, it 

neither explains what discrepancies exist between the actual 

events at the meeting and the recorded minutes nor why any such 

discrepancies could be best explained by deliberate "doctor[ing]." 

To the extent such doctoring occurred, the Church also fails to 

explain how it would be indicative of a pre-cooked resolution of 

the Church's request for a variance. Thus, we treat this aspect 

of the Church's challenge as waived. See United States v. Zannino, 

895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a 

perfunctory manner, unaccompanied by some effort at developed 

argumentation, are deemed waived."). 

F. Equal Protection 

 The Church next asserts that the Town's disparate 

treatment of its sign violates equal protection guarantees under 

both the New Hampshire and United States Constitutions. See N.H. 

Const. pt. 1, art. 2; U.S. Const. amend. XIV. Because the 

framework used for evaluating claims raised under the Equal 

Protection Clause of the National Constitution mirrors that used 

for evaluating claims raised under the equivalent guarantee in the 

New Hampshire Constitution, we address both claims together. See 

In re Sandra H., 846 A.2d 513, 517 (N.H. 2004). 

An equal protection claim first requires identifying a 

similarly-situated individual who has been subject to a different 

classification, and thus different treatment, under the relevant 
- 40 - 

law. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 

439 (1985); In re Sandra H., 846 A.2d at 518. If the plaintiff 

identifies an appropriate comparator, we then determine the 

appropriate level of scrutiny. Under both federal and New 

Hampshire law, classifications based on suspect classes such as 

"race, alienage, or national origin," or those affecting certain 

fundamental rights are subject to strict scrutiny. See City of 

Cleburne, 473 U.S. at 440; In re Sandra H., 846 A.2d at 517. Under 

New Hampshire law, classifications that implicate an "important 

substantive right," including "the right to use and enjoy private 

real property subject to zoning regulations," engender 

intermediate scrutiny. Petition of Hamel, 629 A.2d 802, 804 (N.H. 

1993); see also In re Sandra H., 846 A.2d at 517-18. 

Here, the district court found that the Church's equal 

protection claims "fail[ed] as a threshold matter" because the 

Church and Pembroke Academy are not similarly situated. Signs for 

Jesus, 230 F. Supp. 3d at 63. It nonetheless proceeded to analyze 

the claims and held that, "in any event," the differential 

treatment withstood constitutional muster. Id. at 64. 

We agree with the district court that the Church and 

Pembroke Academy are not similarly situated, nor is the Church 

similarly situated to NHDOT. Pembroke Academy is a subdivision of 

the state. Id. Likewise, NHDOT is an agency of the state. See 

N.H. Rev. Stat. Ann. § 21-L:2. As already noted, the Town has no 
- 41 - 

power to regulate either Pembroke Academy's or NHDOT's sign use 

absent the clearly manifested intent of the New Hampshire 

legislature to give the Town that power. See Region 10 Client 

Mgmt., Inc., 424 A.2d at 209. In contrast, the Town's zoning 

ordinances authorize it to regulate non-governmental entities. 

See N.H. Rev. Stat. Ann. § 674:16; see also Signs for Jesus, 230 

F. Supp. 3d at 64. This is not a case in which the Town has 

treated a non-governmental religious organization differently than 

a non-governmental secular organization. In fact, the Town has 

not treated the proposed comparators at all under its zoning laws 

because it lacks the legal authority to impose any zoning 

restrictions on either Pembroke Academy or NHDOT. The governmental 

entities cannot be comparators because they experienced no 

treatment against which to compare the Town's treatment of the 

Church. Even if the Town had attempted to restrict the Pembroke 

Academy or NHDOT signs, the Town would have had no basis in its 

zoning power to take action against Pembroke Academy or NHDOT. 

Hodge himself testified that he signed the permit for the Pembroke 

Academy sign despite noting that it violated the zoning laws 

because he "believed state law required [him] to" do so. 

Accordingly, we affirm the district court's ruling on the Church's 

federal and state equal protection claims because the Church is 

not similarly situated to its proposed comparators. 
- 42 - 

G. Supplemental Jurisdiction 

Finally, the Church asserted state statutory claims 

challenging the zoning laws before the district court. Having 

disposed of all the Church's federal claims, the district court 

declined to exercise supplemental jurisdiction over these claims. 

Signs for Jesus, 230 F. Supp. 3d at 68 n.14. 

We review a district court’s decision regarding the 

exercise of supplemental jurisdiction for abuse of discretion. 

Allstate Interiors & Exteriors, Inc. v. Stonestreet Const., LLC, 

730 F.3d 67, 72 (1st Cir. 2013). We have held that a district 

court may decline to exercise supplemental jurisdiction when it 

has dismissed all claims over which it has original jurisdiction, 

28 U.S.C. § 1367, and absent certain circumstances inapplicable 

here, doing so is not an abuse of discretion. See Rivera-Díaz v. 

Humana Ins. of Puerto Rico, Inc., 748 F.3d 387, 392 (1st Cir. 

2014). Thus, the district court did not abuse its discretion in 

declining to exercise supplemental jurisdiction over the Church's 

state statutory claims once the federal claims were dismissed. 

III. Conclusion 

 For the foregoing reasons, the judgment of the district 

court is affirmed.