NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0179n.06
No. 10-5129
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BEN CH BI L L BO ARD COMPANY, Plaintiff-Appellant,

v.
CI TY OF COVI

NGTON , KENTUCKY ; TRANSI T AUTHO RI TY OF NORTHERN KEN TUCKY,
Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM T HE UNI TED STA TES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF KENTUCKY
OP INION

Before: WHITE and STRANCH, Circuit Judges, and COHN, District Judge

. *

HELE NE N. WHITE , Circuit Judge. Plaintiff Be nch Billboard Com p an y ap p eals the
district court’s dismiss al of its First Amendment and Equal Protection cl ai m s aga inst Def endant
Transit Authority of Norther n Kentucky for lack of standing

. BB C also appea ls the dismiss al of its
First Amendment and Equal Protection claims ag ainst Def endant City of Covington, and the district
court’s de clar ation that Covington Ordina nce O -2-09 is constitutional. We AF F IRM

. I.
Be nch Billboard Company (B BC) installs adver tising benche s on both public and pri vate

proper ty in Kentucky , usually near bus stops. After Def enda n t C i ty of Covington (Covington)

remove d a number of BB C’s benche s from Covington’s public rig hts-of-wa y pursuan t t o its

The Honora

ble Aver n Cohn, United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation.
1ordinanc es, BB C broug ht suit ag ainst Covington, challeng ing sever al ordin an ces as violative of

BBC’s Fr ee Speech and Equal Protection rig hts. BB C later added as a defe ndant the Transit Authority of Norther

n Kentucky (TANK ). TANK opera tes buses in Covington and environs. The
district court’s opinions thoroug hly set forth the fac ts, Benc h Billboard Co. v. City of Covington, Ky. , No. 06-75-DL B, 2009 WL 580213 (E.D. Ky ., Mar. 4, 2009), and Benc h Billboard Co. v. City of Covington, Ky. , 2010 WL 420064 (E.D. Ky ., Fe b. 1, 2010), which we repe at here in only as neede d.
A. Cross- m otions f

or sum m ary judgm ent
TANK moved for summary judgme nt on the basis that BB C lacke d constitutional standing

to asser t its claims. BB C filed a cross-motion for partial summary judgme nt, seeking a decla ratory judgme nt that TANK’ s conduct violated its First Amendment and Equ al P ro t ec tion rig hts; preliminary and perma

nent injunctive relief requiring TANK to aff irmatively allow p lace ment of

BB C’s bench billboa rd s at b u s stops in Covington and throug hout Norther n Kentucky ; and a
decla ration that TANK

is liable for B BC’s damag es.
The dist rict cour

t gr anted TA

NK summary

judgme nt, holding that BB C failed to establish

sever al requisite elements of standing (injury -in-fa ct and redr essability), and that it was thus without subject-matter jurisdiction to hear BB C’s claims. T h e co u rt denied BB C’s motion for partial

summary judgme nt.
This c ourt revie ws de novo a district court’s deter minations on cross-motions for summary judgme nt. Prime Media, Inc. v. City of Brentwood , 485 F.3d 343, 348 (6th Cir. 2007). When
revie wing a g rant of summary judgme nt on cross-motions, this court applies the same leg al standards

as the district court: “whe ther, with the evidenc e viewed in the light most favor able to the non2moving party , there are no g enuine issues of material fa ct, so that the moving party is entitled to a judgme nt as a matter

of law.” In re Arc tic Exp. Inc

. , 636 F.3d 781, 791 ( 6th Cir. 2011).
Courts must decide j urisdictional issues as a threshold matter. Steel Co. v. Citi zens for a
Better Env ironment , 532 U.S. 83, 94-95 (1998). The require ment that a claimant have standing is

an essential and unchang ing part of the case -or- controve rsy require ment of Article I I I

. Davis v. Fed.
Elec. Comm’n , 554 U.S. 724, 733-34 (2008). The party invoking fede ral jurisdiction bear s the
burden of establishing standing

. Rosen v. Tenn. Comm’r of Fin. & Admin. , 288 F.3d 918, 927 (6th Cir. 2002).

To meet the “irre ducible minimum ” require ments of constitutional standing , plaintiffs must de monstrate (1) that they “have suffe red injury in fac t – an invasion of a leg ally protec ted interest which is (a) concr ete and particula rized, and (b) actua l
or imminent, not conjec tural or hy pothetical,” Lujan v. Defende rs o f W ildlif e , 504 U.S. 555, 560 [] (1992) [ ], (2) that a causal l i n k ex i sts “betwe en the injury and the conduct complained of,” id. – i

. e. , t hat the “injury

. . . fairly can be trac ed to the challeng ed action of the defe ndant,” Simon v. E. Ky. W elfare Rights Org. , 426 U.S. 26, 41 [] (1976), and (3) that it is “likely , as opposed to mere ly specula tive, that the injury will be redr essed by a fa v o ra b l e decision,” Lujan , 504 U.S. at 561 []

. Eac h require ment is “an indispensable part of the plaintiff’s case ” and “must be supported in the same way as any other matter on which the plaintiff bear s the burden of proof.” Id. Midwest Media Prop., L.L.C. v. Symme s Twp., Ohio , 503 F.3d 456, 461 ( 6th Cir. 2007).

B.

BB C argues t hat i t suffe red a concr ete and particula rized injury from TANK’s prohibit ing

BB C from placing its bench bill boards at TANK bus stops. BB C challeng es the district court’s
deter mination that TANK did not ref use to a llow pla ceme nt of , or ban, BB C’s bench billboards at TANK bus stops, but rathe r, simply failed to re spond to BB C’s two letters.

3BB C acknow ledg es that TANK play ed no role in the enac tment of C o v i n gt on, Ky .,

Ordinanc e O-48-05, pursuant to which Covington remove d BB C’s bench billboards from public rig hts-of-wa

y
. Nonethele ss , BBC maintains that, since TANK is exempt from local zoning

reg ulations under Kentucky l aw , TANK could have circ umvented O-48-05 by adopting BB C’s
benche s as TANK ’s own. As discussed be low, the re cord e vidence is to the contrar y
. Moreove r, TANK’ s failure to respond to BB C’s letters was not equivalent to TANK banning

BB C benche s from it s bus stops. As explain ed below, TANK has no proce ss by which it permits private adver

tising benche s at its bus shelters and BB C was awa re from prior dealing s with TANK (as oppose d to with Covington) that it did not need TAN K’s per mission t o place bench billboar ds
at TANK bus stops. I n sum, B BC’s injury – Covington’s remova l of BB C’s benche s from public rig hts-of-wa

y including in the are a of TA NK bus stops pur suant to a Covington ordinanc e – is not fairly trac eable to TANK.

BB C’s first letter to TANK stated that it wished t o install four BB C benche s at three
locations in Coving ton, R. 88-2, and the second letter advised TANK of B BC’s “ong oing eff ort to
install” 350 benche s at transit stops throug hout Boone , Campbell, and Kenton counties, R. 88-3.

BB C’s second letter reque sted that TANK d escr ibe its proce ss to obtain the nece ssary approva l, permit(s) or license( s) to install b enches. Howeve r, BB C does not dispute the district court’s
deter mination that BB C was aw ar e fr o m its prior dealing s with TANK that BBC did not need permission from TANK to place be nches at TANK bus stops.

BB C also protests t h at “[ a] t the t ime BB C was attempting t o have TANK put its stamp of authority on the place ment of [BBC’s] adver tising benche s at TANK bus stops, TANK was placing third-par ty adver tising on its bus shelters.” Pl.’s B r. at 20. The flaw in this argument is that BB C

4prese nted no evidenc e that TANK had authority to permit private corpor ations to instal l b ench

billboards at TANK bus stops that would be exempt from local ordinanc es like O-48- 05 by virtue
of TANK ’s status as a public utility

. I n fact, the rec ord evidenc e supports that TANK cannot authorize place ment of privately
owned benche s at TANK bus stops. “TAN K admit[ ted] that it has soug ht and obtained permission
of various municipalities throug hout Northern Kentucky for the place ment of its own benche s and
bus shelters.” R. 87-2 at 10 (empha sis added)

. Wit h respe ct to Covington specific ally , TANK
disclosed that it
has place d its own blue steel benche s at cer tain bus stops. These are not adver tising benche s
. . . The place ment of these benche s was with permission from the City afte r application therefor

. Wit h reg ard to t h e o t h er areas of Norther n Kentucky , TANK follows the same proce dure

. . . . Whenever it place s a bench at a bus stop, it reque sts permission from the applicable city or county wher e the stop is loca ted. TANK is
awa re that Be nch Billboard has place d its ben ch es at various bus stop locations around the are a. Such has been done by the Plaintiff without TANK’ s involvement
or conse nt.
Id

. at 16. Although there was no evidenc e that TANK could authorize private corpor ations to install
bench billboards at TANK bus stops that would be exempt from local ordinanc es, “TAN K has never objected to t h e p l ac ement of advertising benche s in either Covington or Northern Kentucky .” Id

. at 17.

Be cause BB C pr oduced no evidenc e that TANK (as opposed to Covington) took any steps

to remove or prohibit the place ment of BB C adver tising benche s at TANK bus stops, BB C failed to
demonstrate an injury in f act direc tly trac eable to TANK, depriving it of constitutional standing to

asser t its claims aga inst TANK.

5The district court proper ly g rante d TANK’ s motion for summary jud g ment beca use BB C
failed to establish an injury in fac t, one of the irreduc ible require ments of standing

. Midwest Media

P r o p

. , 503 F.3d at 461 (noting that eac h of the “irre ducible require ments” of standing is “an indispensable par

t of the plaintiff’s c ase” ).

II. Issu es P ert ainin g only to Defendan t City of Covington
Neither party takes issue with the district court’s backg round summary in its opinion ruling

on BB C’s and Covington’ s cross-motions for summary judgme nt:
On Au g ust 26, 2005, the City of Covington enac ted Ordinanc e O-48-05 which regulated the place ment of “enc roac hments” in the public rig hts-of-wa y
. By its terms, O-48-05 specific ally prohibited the place ment of adver tising benche s in the public rig hts-of-wa

y unless the person seeking to install the bench first obtained a permit and/or f

ranc hise ag ree ment from the City of Covington. Following the enac tment of [] O-48-05, the City advised all owner s o f adver t i s i n g b en ches located within the City that their benche s, as violative of the
encr oachme nt ordinanc e, must be voluntarily remove d, or they would be confiscated by the Covington Public Works Depa rtment. (D o c. # 7 3, Ex

. I ). All of the bench
owner s complied with the City ’s reque st – except Be nch Billboard. Benc h Billboard protested, and attempted to find a way around the or dinance by mov i n g seve ral of its benche s onto private property, remov ing othe rs from the City of Covington, and requesting that the City grant it a franchise agreem ent under the Ordinance. Be nch Billboard’ s eff

orts we re u n succe ssful; in October 2005, the City confiscated any rema ining benche s that Be nch Billboard had failed to voluntarily remove and place d them in a storag e fa cility . (Doc . #73, Ex . K).

I n addition to reque sting the remov al o f all adver tising benche s from Covington’s rig hts-of-wa y , the City also contac ted the Transit Authority of Norther n Kentucky (TANK ) – a Kentucky public utilit y which provides mass transit service s to Boone , Campbell and Ken t o n co u n ties as well as downtown Cincinnati – and requested [that] TANK comply with the encroac hment ordinance by remo ving all advertising panels from its bus shelters located withi n the City of Covington

. After d et er m i n ing that very littl e income was g ener ated from the adver tising panels i n question, TANK agreed to voluntarily cease placing paid advertiseme nts on its bus shelters in Covington. Howeve r, TANK made clea r to the City that its actions wer e purely voluntary , asser

ting that, as a pub l i c utilit y , it was exempt from comply ing

6with municipal zoning laws which attempt to regulate the place ment or

char acte ristics of TANK ’s servic e fa cilities. (Doc. #73, Ex. N).
The City also reque sted that TANK place new benche s at sever al of its hightraff ic bus stops in Covington. TANK ag ree d, purcha sing new painted metal benche s that had the logo “TANK ” worked i nto the metal back of each bench. Over thirty of these benche s wer e place d at TANK bus stops throughout Coving ton, se vera l of them repla cing B e n c h B il lb o ard adver tising benche s previously remove d by the City

. (Doc . #79, 29:3-30:5; 65:8-66:5).

Be nch Billboard commence d the instant action ag ainst the City of Covington
on April 6, 2006, alleg ing that Ordinanc e O-48-05violate d Be nch Billboard’ s rig hts under the Fir st and Four

teenth Amendme nts of the United States Constit ution ( and analog ous provisions in the Kentucky Constit ution), and seeking relief under Section 1983

. . . . Since commencing this action, Be nch Billboard has continued to place its adver tising benc hes on sidewa lks throughout the City of Covington.
On J anuar

y 20, 2009, the City repe aled Ordinanc e O-48-05, and adopted a new ordinanc e g overning the place ment of items in the public rig hts-of-wa y
. Titled “Enc roac hments on or i n the P ublic Right-of -Way ,” Or dinance O-2-09 ma intained the previous ordinanc e’s prohibition on encr oachme nts in the public rig hts-of-wa y , but car ved out eig ht ex ce p t ions which allow: sandwich boards abutti ng a li cense d business, planters, tables or chairs listed in a valid permit, s et -o uts of m erc handise abutting a business establishment, p ro p er t y place d in the rig ht-of-w ay by a g overnme ntal or quas i-g overnme ntal ag ency or body , temporar y signs promoting festivals or specia l events, temporar y scaf fo l ding, and encr oachme nts otherwise allowed by the City of Covi n gt o n C o d e of Ordinanc es. Covington, Ky ., Code § 96.01 (2009). I n addition, the new encr oachme nt ordinanc e eliminated the licensing scheme contained in O- 4 8 -0 5, and added new restric tions on the siz e, appea ranc e, and plac ement of ne wsrac ks.

I n light of the repe al of Ordinanc e O-48-05, the City moved to dismiss Be nch Billboard’ s Second Amended Complaint in its entirety

. The Court g rante d the City ’s motion with respe ct to Be nch Billboard’ s claims for injunctive relief , and denied without pr ejudice the rema inder of the motion. The parties subsequently settled all claims rela ting to the constitu ti o nality and enfor ceme nt of Ordinanc e O-48-05. (Doc

. #125).
Prio r t o t h i s partial settlement, the C ity wrote to Be nch Billboard, advisi ng it of the new ordinanc e, and reque s t i n g that Be nch Billboard remove all of its adver tising benche s curr ently place d in the City ’s rig hts of way
. Be nch Billboard ag ain ref used, and threa tened – in l i ght of its belief that Ordinanc e O-02-09 was u n const itutional, and its asser tion that its benche s qualify as non-conf orming , pre7exis ting uses under K entucky law – to file sui t in fede ral court if the C ity remove d Be nch Billboard’ s ad v er t i sing benche s from the City ’s sidewalks, or otherwise attempted to enf

orce the new or dinance ag ainst Be nch B illboard.

I n response to Be nch Billboard’ s threa ts, the City reque sted, and was g rante d, leave to amend its Answer to asser t a countercla im for a declaratory judgme nt that Ordinanc es O-2-09 (“Enc roac hments on or in the Public Right-of -Way ”) and O-37- 08 (“Sig n Reg ulations”) are constitutional. Be nch Billboard filed an Answer to the City ’s counter claim denying its alleg ations, and asser ting a rec iproca l counter claim ag ainst the City

. As with its prior challeng e to Ordinanc e O-48-05, Be nch Billboard alleg es that the new ordinanc e violates the First and Four teenth Amendments to the United States Constit ution, and seeks compensa tory and punitive damag es, decla ratory relief , and attorne y ’s fe es and c osts. The ac tion has now culminated in cross-motions for summar y judgme nt, which ar e ripe for a djudication.

Benc h Billboard Co. v. City of Covington, Ky. , No. 06-75-DL B, 2010 WL 420064 (E.D. Ky ., Fe b. 1, 2010) (some inter

nal citations to the rec ord omitted, emphasis adde d).

A. BBC’s 1 Am endm ent Claim s against Covin gton

st

BB C argues that Covington, Ky

. Ordinanc e § O-2-09 (her eaf ter O-2-09) unconstitutionally
burdens or restric ts its exercise of its First Amendment rig ht to place its adver tising benche s in Covington’s rig hts-of-wa y
. BB C’s challeng e is to the constitutionalit y of the Ordinanc e as applied.
Id. at *8 n.9.
As to O -2-09’ s regulation of comme rcial speec h, BB C arg ues that the district court should
have applied Central Hudson ’s form of intermediate scrutiny , and that Covington failed to establish 1
Central Hudson ’s require ments : 1 ) t h at Covington had a substantial g overnme ntal interest in

reg ulating bench billboards, 2) that O-2-09 direc tly advanc ed Covington’ s g overnme ntal interest,
and 3) that O-2-09 is no more extensive than nece ssary to serve Covington’s alleg ed g overnme ntal
interests.

Central Hudson Gas & Elec. Corp. v. Pub. Se rv. Comm’n , 447 U.S. 557 (1980). 1 8Reg arding O-2-09’ s regulation of BB C’s non-com merc ial speec h, BB C asser ts that the
district c ourt should ha

ve applied stric t scrutiny . BB C argues that Covington c annot show that its
i n t erest in regulating BB C’s non-com merc ial speec h are compelling and that O-2-09 is narr owly
tailored to ser

ve that intere st.
1 . Pertinent Covington Reg ulations and Ordinanc es Covington’s 1984 Z oning Code made unlawful the place ment of signs/messag es of any kind

on courte sy benche s. Covington, Ky ., Z oning Code O-65-84, § 158.151(J), now § 10.04.04 of O- 2
37-08, re mains in effe ct and pr ovides:
ARTI CL E 10 SI GN REGUL ATI ONS
10.04.04 COMPL I ANCE REQUI RED: I t shall be unlawful and a violation of this Article for any person to fasten, place , paint, or attach in any way : any sign, handbill, poster, adver

tisement, or notice of any kind, or cause the same to be done in or upon any curb- stone, lamp post, utilit y pole, hy drant, bridg e, culvert, public drinking fountain, public trash container , courte sy benche s, rest room, bus stop kiosk or shed, station building, tree , or in or upon any portion of any public sidewalk, street, or sign, except as spec ifically

allowed within this Article. R. 97-3/Covington, Ky ., Z oning Code O-37-08, § 10.04.04.
Ordinan ce O- 2-09

BB C challeng es as violative of its First Amendment rig hts O-2-09, whic h provides: WHEREAS, C ity

. . . has deter

mined that prohibiting e ncroa chments in the public rig ht-of-w ay is nece ssary t o en sure the health, safety and gene ral welfar e of the City of Covington a

nd its citiz ens; and WHEREAS, the Boa

rd of Commi ssioners has deter mined th at prohibiting
encr oachme nts in the public rig ht-of-w ay assists in ensuring aesthe ticall y pleasing City sidewalks, stree ts, neig hborhoods, and business districts; and

Section 10.04.04, former ly § 158.151(J) of Covington’s 1984 Z oning Code (O -6 5 -8 4 ) 2
rema ined intact afte r Covington enac ted its new sign ordinanc e on September 9, 2008 (Z oning Code O-37-08) and its new rig ht-of-w ay encr oachme nt ordinance on J anuar y 20, 2009 (O-2- 09)). 9W HEREAS, the Boa rd of Commi ssioners acknow ledg e[s] that newsr ac k s cannot be expressly prohibited and must rec eive specia l reg ulation, in par t d u e to protec tions unique to them under the Constit ution an d their role in disseminating information to the g ener al public; and WHEREAS, it nece ssary [ sic ] and prudent to regulate items in or o n t h e public rig ht of way to ensure the s af et y o f pedestria

ns and operators of vehicles trave rsing City

streets, sidewa lks and rig ht of way s [ sic ]; and WHEREAS, per its police powers and other statutory authority , the C ity of Covington has the e x clusive rig ht to reg ulate its public rig ht-of wa y s [ sic ]. NOW, THEREFORE, B E I T ORDAI NED . . . :

. . . . Section 2 That a new § 96.01 “Enc roac hments on or in the Public R i gh t -of-Way ” is here by cre ated: § 96.01 ENCROACHMENTS ON THE PUB L I C RI GHT-O F- WAY (A) Definitions. For the purpose of thi s ch ap t er the following definitions shall apply

unless the context clear ly indicates or r equire s a diffe rent mea ning.
BENCH

. A seat or seats located on public sidewalks, along any public way or rig htof-wa y , for the acc ommodation of persons awa iting transporta tion or for other purposes. This definition i n cl u des benche s that may or may not have advertising located anywhe re on their ex terior.

. . . . (B ) Encroachm ents on or in the Public Right-of-W ay Prohibited

. (1) No encr oachme nt shal l b e al l owed on or in a public right-of-way including public sidewalks or streets , unless otherwise provided here in or elsewhe re in the Covington Code of Ordinanc es. Prohibited items include , but are not limit ed to, items such as: shelters, benche s and vendingmachines.

. . . . (3) Ex ceptions. The following exceptions shall be allowed, subject t o t h e condition that the item(s) place d on or in a rig ht-of-w ay do not cre ate safe ty hazards by blocking rea sonable acc ess to or passag e throug h a rig ht-of-w ay , or eg ress and ingr ess to an adjoining entra ncew ay , or by

obstructing vehicular

traff ic sig ht lines:

a. Sandwich board adver

tising abutting a licensed business, as permitted by the City of Covington Z oning O rdinanc e. b. Planters or landsc aping items.
c. Any table and/or chair s listed in a valid permit issued pursuant to § 96.70.

10d. Set-outs of merc handise or othe r re lated it ems in the right-of- way of the abutting business establishment during that business’ regular operating hours, as set forth in Section C of this ordinanc e, unless otherwise prohibited in th e C i t y of Covington Z oning O rdinanc e.

e. Any property placed in the right-of -w ay by a governm ental or quasigovernm ental agency or body , including but not limit ed to traff ic control and direc tional signs and device s, fire hy drants, emer g ency call box es, Unit ed S t at es Postal Service mail rec eptac les or box es, telephones, elec trical and light p oles, public transportat ion shelters, benche s and identifying signs as required or permitted by law , and stree t identification signs.
f. Tempora

ry signa g e that promote[s] festivals, concerts or other specia l events that are open to the public, subject to the condition that the event has been issued a valid Specia l Events Permit by the Off ice of the City Manag er. . . .

. . . . h. Any encr oachme nt otherwise allowed in the City of Covington Code of Ordinanc es. (C) Merc handise Display

. The displ ay of m erc handise is permitted on sidewalks, only subject to the following restric tions:

. . . . (D) Newsracks

. Newsr acks may be place d in public rig ht-of-w ay s [ sic ], subject to the following conditions and/or re strictions: (1) I t shall be unlawfu l fo r an y owner to place , aff ix , ere ct, construct or maintain a newsrac k upon any public sidewalk or public rig ht-of-w ay without first having obtained written permission for the plac ement and loc ation from the Offic e of the City Manag er or i t s desig nee, in acc ordanc e with the provisions of this subchapte r. . . . . (2) Ne wsrac ks shall have the f ollowing dimensions: d. The he ight sha ll not ex cee d 60 inches; e. The width . . . shall not ex cee d 25 inches; f. The de pth . . . shall not ex cee d 25 inches. (3) Newsr acks m ay n ot be bolted or perma nently aff ix ed to any public sidewalk or improved rig ht-of-w ay unless such installation is approve d by the Offic e of the City

Manag er or

its designe e . . . .

. . . . (9) Newsr acks shall be placed in locatio n s t h at do not obstruct or interfe re wi t h i n g ress to or eg ress from abutting proper ties and which do not imped e o r endang er pe destrians or ve hicular tra ffic. (10) Ne wsrac ks shall not be place d:
a. Upon a public sidewalk or public rig ht-of-w ay in a manner that blocks ingr ess or eg ress to a building or rea dily identi fi ab l e or

11marke d bus stop loading zone, or other loading zone, or handica pped parking space ; or

. . . . e. At an y l o ca t i o n wh er eb y t h e cl ea r s p ac e o n th e p u b l i c sidewalk for passag ewa

y of pedestria

ns is reduc ed to less than 4 fee t; or f. I n such a manner as to obstruct the sight lines at s t reet intersec tions that cre ates safe ty hazards for pedestria ns and vehicle operators . . .

. . . . Section 5 I f any section, subsection, sentenc e, or clause of this ordinanc e is held invalid
or unconstitutional by a court of competent jurisdiction, such portion shall be deeme d
a separ ate, distinct, and independe nt provision and such holding shall not a ffe ct the validity of the re maining por

tions of this ordinance. R. 131-2/Covington, Ky ., Ordinanc e § O- 2-09 (some e mphasis added)

. B.
We first addre ss BBC ’s argument that the district court should have applied Central
Hudson ’s form o f i n t er m ediate scrutiny to Ordinanc e O-2-09’ s regulation of BB C’s comme rcial

speec h. The district court declined to apply Central Hudson , concluding that “bec ause Ordinanc e

3

O-2-09 reg ulates the place ment of item s

– s u ch as benche s – on which commerc ial or noncommerc ial signs may be posted – rathe r than ad v ertising signs alone, the Court finds that it is

appropr iately analy

zed a s a content-ne utral time, pla ce, and manner restric tion on speec h.” Benc h
Billboard Co. , 2010 WL 420064 at *6 n.7 (c iting Prime Me dia, Inc. , 398 F.3d at 824).
This court noted in Prime Me dia :
Billboards and other visual s ig ns, it is clea r, repr esent a medium of expression that the Fr ee Speech Clause has long protec ted. But, in contra st to oral speec h, they “pose distinctive problems” that also have long been subjected to the “police power s”

BB C does not challeng e the district court’s deter mination that O-2-09 is content-ne utral. 3 See Benc h B i l l b o ard Co. , 2010 WL 420064 at *5-6. “Unlike content-ba sed regulations that are subject to the ‘most exacting scrutiny ,’ regulations ‘unre lated to the content of speec h are subject to an intermediate level of scrutiny .” Richland Bookmart, Inc. v. Knox Cnty., Tenn. , 555 F.3d 512, 521 (6th Cir. 2009) (quoting Turner Broad. Sys., Inc. v . F.C.C. , 512 U.S. 622, 642 (1994)).

12of States and cities beca use billboards and signs “take u p space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that leg itimately call for regulation.” City of Ladue v. Gilleo , 5 1 2 U.S. 43, 48 [] (1994). I t thus is “comm on g round that g overnme nts may regulate the phy sical char acte ristics” of signs and billboards in muc h the same way that “they can within
rea sonable bounds and absent censor ial purpose, regulate audible expression in its capa city as noise.” Id. (citing W ard v. Rock Against Racism , 491 U.S. 781 [] (1989); Kovacs v. Coope r , 336 U.S. 77 [ ] (1949).

J ust as t he First Amendment “does not g uara ntee the ri gh t t o communicate one’s views at all times and place s or in any manner ,” W heele r v. Comm’r of Highways, Commonwealth of Kentucky , 822 F.2d 586, 5 8 9 (6 t h Cir. 1987),

. . . it does not permit municipalities to regulate methods of expression howeve r, whene ver and wher ever they wish. Be cause the regulation of a medium of ex p ression “inevitably affects communication itself,” Gilleo , 512 U.S. at 48 [] , the Court has subjected time, place and manner restric tions on speec h to the following test: They “ar e valid provided [1] that they are justified without ref ere nce to the content of the
re gulated speec h, [2] that they are narr owly tailored [3] to serve a signific ant g overnme ntal interest, and [4 ] t h at t h ey leave open ample alternative channe ls for communication of the informati o n
. ” Cl a r k v

. Community

for Creative Non-Violence , 468 U.S. 288, 293 [ ] (1984) . . . .

Prime Me dia, Inc. , 398 F.3d a t 818.

The district court applied the form of intermediate scrutiny appli cable to time, place , and

manner restric tions on speec h, which, as a prac tical matter, is s u b stantially simil ar to Central
Hudson ’s form of intermediate scrutiny

. As the Supreme Court observe d in Loril lard Tobacco Co.

v. Re illy, 533 U.S. 525, 554 (2001):

I n rec og nition of t h e “distinction betwee n speec h proposing a commerc ial transac tion, whic h occur s in an are a tra ditionally subject to g overnme nt r eg ulation, and other varie ties of speec h,” Central Hudson, supra , at 562, [] (interna l quotation marks omitted), we develope d a framework for analy zing regulations of commerc ial speec h that is “substantially sim i l ar ” to the test for time, place , and manner restric tion s , B o a r d o

f Trustees of State Univ. of N.Y

. v. Fox , [492 U.S. 469,] 477 [1989]

. . . . See also Prime Media, Inc. , 398 F.3d at 824 (ana ly zing ordinanc e restric ting commerc ial-billboard
siz e as a content-ne utral time, p l ace , and manner restric tion on speec h, and noting that
13the“f

rame work for analy

zing regulations of commerc ial speec h is ‘substantially simil ar’ to the test for time, plac e, and ma

nner r estrictions.” (br acke ts omit ted.))

Fur ther, Central Hudson ’s fo rm of intermediate scrutiny advocated by BB C is no more demanding than the time, pla ce, and manne r intermedia te scrutiny applied by the district c ourt. I n apply ing the Central Hudson tes t t o p ro v isions of a fede ral statute prohibiting the broadc ast of

cer tain lottery adver

tisements, t h e S upreme Court made clea r that the validity of g overnme ntal
restric tions o n commerc ial speec h should not be judge d by standards more stringe nt than those applied to expressive conduct entitled to full First Amendment protec tion or to rele vant time, place ,

or manner restric tions. Board of Trustees of State Univ. of

N.Y

. v. Fox, 492 U.S. 469, 477-78 (1989);

see also United States v. Edge Broad. Co ., 509 U.S. 418, 429 (1993) (discussing Fox ). Thus we fail

to perc eive any harm to BB C arising from the district court’s application of time, place , and manner
intermediate scrutiny

rathe r than Central Hudson intermediate scrutiny

. I n any event, the district court’s ap p l i ca t i on of the time, place , and manner scrutiny is supported by Cleveland Area Bd. of Realtors v. City of Euclid , 88 F.3d 382, 386 (6th Cir. 1996), in
which this court deter

mined that Central Hudson ’s form of intermediate scrutiny is not appropr iately applied to content-ne utral ordinanc es that regulate both commerc ial and non-commer cial speec h.
C.
We further ag ree with the district court that O-2-09 is narr owly -tailored to serve Covington’s leg itimate and signific ant content-ne utral interests, and leaves open ample channe ls of communication, see Prime Media, Inc. , 398 F.3d at 819; Cleveland Area Bd. of Realtors , 88 F.3d
at 388. The district c ourt held:

The rec ord demonstr a

te s th a t th e Ci ty ’ s interests in aesthe tics and safe ty is not mere ly specula tive; rathe r, i t co n t ai n s evidenc e – such as the testimony of City
14Manag er J ohn J ay Fossett[ ] – which indicates that citizen c omplaints provide d the 4 i m p et us for the enac tment of the encr oachme nt ordinanc es. See Covington, Ky

. , Code § 9 6

. 7 1 (2005) (re peale d) (“[T]he Boa rd of Commi ssioners of the City of Covington has rec eived numerous complaints from citizens rega rd ing the
encr oachme nt of t h e public rig ht-of way s [ sic ] by benche s, planters, vending machines and other it ems th at h i n d er pedestria ns’ abili ty to use city sidewalks and public way s . . . .”).

Be nch Billboard does not dispute that a municipality ’s interest in a esthetics
an d s afe ty may constitute signific ant gover nment interests which justify a contentneutra l restric tion on speec h. Rather, Be nch Billboard contends that Ordinanc e O-2- 09 is underinc lusive, and that its exceptions call into qu es t i o n whether the City actua lly has an interest in improving safe ty and aesthe tics. The Supreme Court ha s rec og nize d t h at an ordinanc e’s exceptions may “diminish the cre dibilit y of the g overnme nt’s rationale for restric ting speec h in the fi rs t place .” City of Ladue v. Gilleo , 512 U.S. 43, 52 (1994). Specifica lly Be n ch Billboard contends that the ordinanc e’s exceptions reg arding newsra cks, and bus shelters and benche s place d by g o v e r n mental or quasi-g overnme nta l o r g a n iz a ti o n s r e n d e r th e o r d in a

n c e ’ s p r o h ib it io n on other e ncroa chments – such a s benche s – meaning less and inef fec tive.

This argum en t i s unpersua sive for two rea sons. First, Ordinanc e O-2-09 cannot be deeme d underinc lusive b ec au s e i f fails to reg ulate items place d in the rig hts-of-wa

y by quasi-g overnme ntal org anizations such as TANK, beca use the City is arg uably without power to reg ulate the activities of such org anizations. See, e.g., Ky

. Rev. S t at. § 100.324(1) (stating that public utilit ies “shall not be require d to rec eive approva l from the [m unicipality ] for the location or reloc ation of any of their
ser v i ce fac iliti es.” There fore , rathe r than repr esenting a choice by the City to aff irmatively allow TANK, and other simil ar entities, to place items in Covington’s rig hts-of-wa

y , exception (e) mere ly re fl ec ts limit s of the City ’s power to regulate such entitie s
. S

e e Co v in g ton, Ky ., Code § 96.01(B )(3) (e) (exempting from regulation “public transporta t i o n s helters, benche s and identify ing signs as required or permitted by law” (empha sis added))

. Second, the City ’s decision to allow newsra cks to rema in in its rig hts-of-wa y does not call into question the City ’s stated interest in clea r and aesthe tically -plea sing sidewalks; rathe r this exception mere ly demonstrates that the City has conclude d that its int ere st in allowing c erta in messag es – such a s the transmittal of cur rent ne ws – to be fre ely convey ed to its citizens outweig hed the[] City ’s aesthe tic interest in

I n a footnote here , the district quoted from Fossett’s deposition testimony : “Residents wer e 4 complaining that the benche s wer e ug ly , and that they wer e reduc ing their proper ty values when they
wer e place d in front of their residenc e. And they felt they wer e on city proper ty and that this should be re g ulated for

[ sic ] prohibit ed.” 15eliminating all encr oachme nts from its sidewalks. See City of Ladue , 512 U.S. at 53 (“[T]he exemptions from L adue’ s ordinanc e demonstrate that L adue has conclude d that the interest in allowing cer tain messag es to be convey ed by means of residential
s i gn s outweig hs the City ’s aesthe tic interest in eliminating outdoor signs.” ) Fur thermore , th e C ity is allowed to make a subjective deter mination that the
newsra cks – althoug h by

no means be autiful – are more a esthetica lly pleasing than adver tising benc hes: “A city may fairly pref er smaller objects of visual blig ht over larg er ones.” Prime Media , 398 F.3d at 822 (“A nd it does not undermine the City ’s rationale for the reg

ulation bec au s e the banned billboards and the permitted billboards are not ‘equa lly unattrac tive.’” (quoting Taxpayers for Vincent , 466 U.S. at 811)). Sim ply

stated, the ex ceptions t o Ordinanc e O-2-09 do not undermine the stated purpose of the re g ulation.

For these rea sons, the Court finds that the encr oachme nt ordinanc e advanc es the sig nificant g overnme nt interests of sidewa lk and traf fic saf ety and ae sthetics.

c. Ordinanc e O-2-09 is Nar rowly -T ail ored and L eave s Open Ample Channels of Communi cation
“Gove rnment may not regulate expression in such a manner that a substantial portion of the burden on speec h does not advanc e its g oals.” Prime Media, Inc. , 398 F.3d at 819[]

. There fore , to survive First Amendment revie w, an ordinanc e must be “nar rowly tailored to serve a signific ant g overnme ntal intere s t , ” and must “leave open ample alternatives for communication of the information.” W ard , 491 U.S. at 791. An ordinance is “narrowly tailored” if it does not “burde n substantially more speec h than is nece ssary to further the g overnme nt’s leg itimate interests.” W ard , 491 U.S. at 799.

Howeve r, the require ment that an ordinanc e be “nar rowly tailored” does not re q u ire that the ordinanc e be “the least restric tive or least intrusive means ” o f
acc omplishi ng the g overnme nt’ s go al

. W ard , 491 U.S. at 798. “Rather , the require ment of nar

row tailoring is satisfied ‘so long as the .

. . regulation promotes
a substantial g overnme nt interest that would be achie ved less eff ectively absent the reg ulation.’” W

ard , 491 U.S. 799 (quoting United States v. Albertini , 472 U.S. 675, 689 (1985))

. Acc ording ly , “[a] co m p lete ban can be narr owly tailored, but only if
eac h activity within the proscr iption’s scope is an appropr iately t ar g eted evil.” Frisby , 487 U.S. at 425.

Be cause the City ’s ban on encr oachme nts, such as benche s, is direc tly rela ted to the purpose of Ordinanc e O-2-09 – eliminating items from the City ’s sidewalks

– it satisfies the tailoring prong of time-place -and- manner scrutiny

. Her e, as in City Council v. Taxpayers for Vinc ent , 466 U.S. 789, 806 (1984), in which the Supreme Court upheld a complete ban on posting sig ns on telephone pole s, the “substantive evil” tar g eted by

the subject re g ulation – visual blight there , unsightly items on the
16p u b l i c s idewalks here – “is not mere ly a possible-by -produc t of the activity , but i s

cre ated by the medium of expression itself

. . . . [T] he application of the ordinanc e in this case responds prec isely to the substantive problem wh i ch leg itimately
conce rns the City

. The ordinanc e curta ils no more speec h than nece ssary t o acc omplish i ts purpose.” Taxpayers for Vince nt , 466 U.S. at 810.
The “fit” betwee n the City ’s means and ends is a rea sonable one. By banning adver tising benche s from Covington’s sidewalks, “the C i t y d i d no more than el i m i n at e the exact source of the evil it soug ht to reme dy .” Id. at 808; s ee Metrome dia , 453 U. S

. at 5 08 (plurality ) (“I f the city has a sufficie nt basis for believing that billboards are traff ic hazards and are unattrac tive, then obviously the most direc t an d p er haps the only eff ective approa ch to solving the problems they
cre ate is to prohibit them.”).

I n addition, beca

use Ordinance O-2-09 arg uably only bans one ty

pe of sign within the City of Covington, it leave s open ample alternatives for the communication of the information d i s p l ay ed on Be nch Billboard’ s adver tising benche s. The ordinanc e does not “af fe ct an y i n dividual’s fre edom to exercise the rig ht to speak and distribute literature in the same place wher e [advertising benche s]
are prohibited, ” T

a xp ayers for Vincent , 466 U.S. at 812, and Be nch Billboard’ s customer’ s [ sic ] rema in fre e to adver tise thei r busi nesses or cause s on the i nterne t, radio, or in printed periodica ls. I n addition, to the extent that its signs are not prohibited by Covington’s z onin g co d e, Be nch Billboard remains fre e to neg otiate with pr ivate prope rty

owner s to secure new proper ty on which to pla ce its be nches.

I n conclusion, the Court finds Or d in ance O-2-09 to be a rea sonable restric tion
on the time, p lace , and manner of speec h that leave s open ample channe ls of communication and de clar es that Ordina nce O -2-09 is constit utional in that it does not, as applied to Be nch Billboard, violate the First Amendment to the United States Constit ution.

Benc h Billboard Co. , 2010 WL 420064 at *6-8. B BC’s r emaining arguments are without merit. 5

BB C’s argument that O-2-09 prohibits only BB C adver tis i n g benche s is patently 5 d i singe nuous; the rec ord is clea r that Covington remove d benche s place d by a number of p ri v at e bench billboard companies on its rig hts-of-wa y
. BB C’s asser

tion that adver

tising benche s and bus shelters are s till permitted under O-2-09 is inacc urate ; as discussed supra , Covington does not, throug h its Ordinanc e or otherwise, authorize transit authorities/quasi-g overnme ntal bodies such as TANK to locate bus shelters and/or benche s, rathe r, Kentucky statutes provide that tran s it authorities possess the s tatus of a political subdivision of the State, and a uthorize them to inst all and relocate fac iliti es without approva l of local planning units such as the City of Covington. See Ky

. Rev. Stat. Ann. §§ 96A.020, 100.324, 100.361(2)

. 17III. Equ al P rote ction

BB C asser

ts that the district court err ed in holding that O-2-09 does not viola t e i t s E qual Protection rig hts under the F ourtee nth Amendment. We disag ree
. The Equal Protection Clause require s that g overnme nt laws trea t simil arly situated persons equally and not classify arbitra rily

. See U.S. Const. Amen d

. XIV; City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985); Richland Bookmart, Inc. v. Nichols , 278 F.3d 570, 574 (6th
Cir. 2002). I f a challeng ed law neither interfe res with fundame ntal rig hts nor targ ets a suspect class,
then that law will survive a n equal- protec tion challeng e so long as it bear s “a r ational re lationship

to a leg itimate state interest.” Richland Bookmark , 278 F.3d at 574. We r eview O-2-09 under the
rati o n al-ba sis standard beca use both parties ag ree that this is the proper standard. Under this standard, the rational basis supporting a law “nee d not be stated in the statute or in it s l egislative history ; it is sufficie nt that a co u rt can conce ive of a rea sonable justification for the statutory
distinction.” United States v. Dunham , 2 9 5 F.3d 605, 611 (6th Cir. 2002) (interna l citations omitted).
The g ist of BB C’s equal- protec tion claim is that O-2-09 is unconstitutional beca use it is
underinc lusive. O-2-09 exempts newsr a c k s , s a n d w ic h b o a r ds, and bus shelters and benche s of quasig overnme ntal ag encie s like public utilit ies (e.g ., TAN K) from the ban on encr oachme nts on the public rig hts-of-wa

y
. BB C argues t hat t his is irrational because these it ems impact t he safety and beauty of public rig hts-of-w ay just as much as privately owned benche s like BB C’s, which the
ordinanc e bans. “The problem with this argument [i .e., that an act is unconstitutional be cause it is
underinc lusive], howeve r, is that an exemption will rar ely , i f ev er , invalidate a statute, unless the

18distinction cre ated by the exemption is the result of invidious discrimination.” Richland Bookmart ,

278 F.3d a t 576. As expl ained by the Supreme Court, [t ]he problem of leg islative classification is a pere nnial one, admitting of no doctrinaire definition. Ev i l s i n the same field may be of differ ent dimensions and proportions, requiring differ ent rem ed i es
. Or so the leg islature may think. Or the
re fo rm may take one step at a time, addre ssing itself to the phase of th e p ro b l em which seems most acute to the leg islative mind. The leg islature may selec t one phase of one field and apply a reme dy there , neg lecting the others. The prohibition of the Equal Protection Clause g oes no fur ther than the invidious di scrimination.

W illiamson v. Lee Optical of Okla. Inc. , 348 U.S. 483, 489 (1955) (interna l citations omitted). BB C
offe rs no evidenc e that Covington acted with invidious intent in distinguishing betwee n privately
owned benche s and newsra cks, sandwich boards, and bus shelters and benche s o f q u as i

g overnme ntal ag encie s.
Rational rea sons support the distinction. Covington is arguably without authority to prohibit
bus shelters and benche s place d by pu b l i c u t i l ities such as TANK. See, e.g., Ky

. Rev. Stat. § 100.324(1). Sandwich boards are much smaller than BB C’s benche s, are temporar y as opposed to

perma nent, and are permissibly located on public rig hts-of-wa y only if they abut a licensed business.

Newsr acks are also smaller than the benche s, which weig h 475 pounds and are approximately 6 fee t long, 2 fee t deep, and 3.5 fee t tall. Covington was there fore entitled to conclude that these benche s
aff ecte d the aesthe tics and safe ty of public rig hts-of-wa y – interests that are undisputedly leg itimate

– differ ently than the sandwich boards and newsra cks that Covington could also eff ectively regulate.
The ordina

nce the ref ore doe s not violate BB C’s rig ht to equal protec tion of the laws.

IV.

BB C purports to challeng e the district court’s dismiss al of all claims rela ting to the
constitutionalit y of C o v i n gt o n Z oning Code § O-37-08. Howeve r the basis of this challeng e is

19unclea

r. Covington filed a counter claim seeking a decla ratory judgme nt that Ordinanc e O- 2 -09 (“Enc roac hments on or in the Public Right-of -Way ”) and Z oning Ordinanc e O- 3 7-08 (“Sig n Reg ulations”) are constitutional. Covington argued that O-37-08 and O-2-09 s u p ported its prohibition of adver

tising benche s on its rig hts-of-wa y
. BB C then asser

ted a rec ipr ocal counter claim

ag ainst Covington, alleg ing that O-37-08 violated its First and Four teenth Amendments rig hts, and

soug ht decla

ratory relief

. Covington soug ht summary judgme nt on its counte r c la im and BB C arg ued
in response that O-37-08 applied only to signa g e on private proper ty or signa g e on Covington-owne d

str u ct u re s , and did not apply to BB C benche s, but that to the extent that O-37-08 and O-2-09 prohibited its benche s while permitting, inter alia, g o v e r n me n ta l or quasi-g overnme ntal entities from placing adver

ti s i n g b enche s and bus shelters, it unconstitutionally infring ed on BB C’s First
Amendment and E qual Protection rig hts.
The district court dismiss ed the claims rela ting to O-37-08 for lack of subject-matter jurisdiction afte r it deter

mined that Covington took no action reg arding BB C as a result of O-37-08. Thus, BB C’s proff

ere d interpre tation of the ordinanc e as not apply ing to its benche s did not establish

a substantial controve rsy reg arding its constitutionalit y
. Simi larly , if Covington did not rely on O37-08 in prohibitin g BBC ’s b enche s, the parties have no true controve rsy reg arding its
constitutionalit y
. I n any event, BB C links its challeng e to O-37-08 to its challeng e to O-2-09, which
we ha ve alr eady

reje cted.

V.
BBC ’s final argument is that the district court err ed in failing to rec og nize BB C’s b en ch
billboards as non-c onforming uses under Covington and K entucky law. We disag ree
. The district cour

t concluded:

20[] Be nch B illboard contends that, pursuant to Kentucky Revised S tatu[t ]es Section

100.253, its benche s are entitled to non-c o n forming use status and should be permitted to rema in on the City ’s sidewalks despite the encr oachme nt ord i n ance’s prohibition on benche s. Section 100.253(1) states that “[t] he lawful use of a building
or premises, exis ting at the time of the adoption of any zoning reg ulations aff

ecting it, may be continued, althoug h such use does not c onform to the provisions of such reg ulations . . . .” K.R.S. § 100.253.
Section 100.253, howeve r, has no application to the instant case beca use Ordinanc e O-2-09 is not a zoning ordinanc e. By its very terms, t h at s ec t i o n only applies to uses which become illega l due to the adoption of a zoning ordinanc e. The Kentucky Court of Appea ls has rec og nized that n o t all ordinanc es adopted by a municipality aff

ecting the use of land or commer cial signa g e qualify as zoning ordinanc es. See, e.g., LM Entertainment, Inc. v. City of Mt. Sterling , No. 2008-CA000469 MR, 2009 WL 197549, at *3 (Ky

. Ct. App. J uly 10, 2009) (holding that a city ordi n an ce requiring a separ ate license for sexually -oriente d businesses was “not a zoning ordinanc e and K.R.S. 100.253 does not apply ”); Mr. B’s Bar & Lounge, Inc. v. C ity of Louisvill e , 630 S.W .2d 564, 567 (Ky

. Ct. App. 1981) (holding that a city ordinanc e reg

ulating the appea

ranc e of signs belong ing to sexually -oriente d businesses was “ not a zoning ordina nce” ).
The conclusion that the encr oachme nt ordinanc e is not a “zoning” ordinanc e is supported by the codified location of Ordinanc e O-2-09 within the City of Covington Code of Ordinanc es. The encr oachme nt ordinanc e is n o t part of Covington’s zoning code: Or d i n an ce O-2-09 is part of Title I X “Ge nera l Reg ulations” while the City ’s zoning code is located in Title XV “L and Usag e.” I n addition, the proce dure utiliz ed by Covington’s Boa rd of Commi ssioners to enac t the
encr oachme nt ordinanc e – a simple vote – indicates that the Boa rd did not consider
or intend Ordinanc e O-2-09 to operate as an amendment to the City ’s zoning code. Cf. Ky

. Rev. Stat. § 100.211 (re quiring the publication of no t i ce, a public hear ing, and a rec ommendation by the county planning commission befor e amendments may be made to the text of a zoning regulation).

Be cause Ordinanc e O-2-09 is not a zoning ordinanc e, its enac tment does not entitle Be nch Billboard’ s adver tising benche s to non-conf orm i ng use status. Consequently , the City ’s encr oac h m en t ordinanc e prohibits Be nch Billboard from placing its b en ch es in the City ’s rig hts-of-wa y , reg ardle ss of how many y ear s the benche s have be en located within Covington.

Benc h Billboard , 2010 WL 420064 at *10.

21A.

I n Kentucky , “[n] onconfor ming use is authorized by KRS [§] 100.253, an enabling act.” Dempse y v. Newport Bd. of

Adjustments , 941 S.W .2d 483, 484 (Ky

. App. 1997). Kentucky Revised Statute § 100.253 provides in pertinent pa rt: (1) The lawful use of a building or premises, exis ting at the time of the adoption of any zoning regulations aff ecting it, may be continued, althoug h s u ch use does not confor m to the provisions of such regulations, except as otherwise provided here in.

. . . . (3) Any use which has exis ted illega lly and does not confor m to the provisions of the zoning regulations, and has been in continuous exis t en ce for a period of ten (10) y ear s, and which has not been the subject of any adver se order or other adver se action by the administrative officia l dur ing said period, sha ll be deeme d a nonconfor ming
use. There afte r, such use shall be g overne d by the provisions of subsection (2) of this section. Kentucky Revised Statute § 100.111 sets forth definitions of “nonconf orming use or structure ” and
“structur e”: (13) “Nonc onforming use or structure ” means an activity o r a building, sign, structure , or a portion there on which lawfully exis ted befor e the adoption of the zoning regulation, but which does not confor m to all of the regulations contained in the zoning re g ulation which per tain to the zone in which it is l ocate d;

. . . . (2 1 ) “Structure ” means any thing constructe d or made, the use of which requir es p er m an ent location in or on the g round or attachme nt to something havin g a perma nent location in or on the g round, including buildings and sig ns . . . . Covington’s Z oning Code addre sses nonconfor ming use s in § 14.05:

14.05.01 Desc ription A nonconfor

ming use is a land use that was lawfully established in acc ordanc e with zoning regulations in eff ect at the time of i t s est ablishment but that is no longe r allowed by

the use re g ulations of the zone in which it is now located.

. . . . 14.05.05 Nonconf

orm ing Use Status Deem ed Pursuant to KRS [§] 100.253(3), any use that has exis ted illega lly and does n o t confor m to the provisions o f t h e city ’s zoning regulations, has been in continuous exis tence for a period of 10 y ear s, and has not been the subject of any adver se order 22or other adver se action by the administrative officia l dur ing this period is deeme d a

no n co n fo rm i n g use. There afte r, t he use will be gover ned by the provisi ons of t his article

. R. 131-8/Covington Z oning Code Art. 14.

B.

BB C asser

ts that the district court improperly deter mined that Ky

. Rev. Stat. Ann. § 100.253
“has no application to the instant case beca use Ordinanc e O-2-09 is not a zoning ordinanc e. By its

very terms, t hat s ection only applies t o uses which become i l l egal due to the adoption of a zoning
ordinanc e.” Benc h Billboard , 2010 WL 420064 at *10.

BB C asser

ts that its a dvertising benche s have been on Covington rig hts-of-wa y since 1955
and that, u n ti l 2 0 0 5 , Co v in g ton Z oning Code § 158.057 specific ally permitted its adver tising benche s

to b e i n s talled there on. BB C is incorre ct. Although §158.057(B )(7) and (8) permitted “bus stop
benche s” on Covington’s public rig hts-of-wa y from 1984 until J une 7, 2005, § 158.151(J) prohibited
adver tising and sig ns on benche s.
BB C also arg ues that bec ause its adve rtising be nches ha d been in c ontinuous e x istence for

ten y ear s, they beca

me non-conf

orming uses in 2005 under Covington Z oning Code § 14.05.05 and Ky

. Rev. Stat. Ann. § 100.253(3), quoted supra
. But BB C ignor es that its status i n rela tion to Covington befor e Ordinanc e O-2-09 took eff ect in 2009 was as a licensee that soug ht permission to place its adver

tising b enche s, paid a fee , and removed t hem at Covington’s direction – Ordinanc e
O-48-05 a

nd prede cessor s prohibited the place ment of any bench in a

public rig ht-of-w ay

without having obtained a permit and Covington submitt ed below in support of its motion for summary judgme nt copies of lice nses it had g rante d BB C going as fa r bac k as 1964.

23We a g ree with Covington that a mere licensee cannot asser t r ights acquir ed by a prior land

use without some form of owner ship of the land. “The rig ht to continue a nonconfor ming proper

ty

use is a vested proper

ty rig ht.

. . . [i t] is not a persona l rig ht but one that runs with the land.” 101A
C.J .S, Zoning & L and Planning § 160.

BB C’s arg ument that its advertising benche s constituted non-confor ming use s thus fails.

VI.
We AF F IRM the district court’s g rant of summary judgme nt to TANK on the basis that BB C
lacke d standing

. As to Def endant City of Covington, we AF F IRM the district court’s dismiss al of

BB C’s First Amendment and Equal Protection claims ag ainst Covington and the court’s decla ration

t h at O- 2-09 is constitutional, in that it does not, as applied to BB C, violate either the First o r
Four teenth Amendme nts.

24