UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1148

TRINITY OUTDOOR, L.L.C.,

Plaintiff - Appellant,

versus

THE CITY OF ROCKVILLE, MARYLAND,

Defendant - Appellee.

--------------------

SCENIC AMERICA, INC.; AMERICAN PLANNING

ASSOCIATION; SCENIC MARYLAND, INC.; APAMARYLAND CHAPTER,

Amici Supporting Appellee.

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. J. Frederick Motz, District Judge. (CA03-2372-8-JFM)

Argued: October 26, 2004 Decided: February 24, 2005

Before LUTTIG, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

ARGUED: Edward Adam Webb, WEBB & PORTER, Atlanta, Georgia, for

Appellant. Samantha M. Williams, VENABLE, L.L.P., Rockville,

Maryland, for Appellee. ON BRIEF: Paul T. Glasgow, Sr., VENABLE,

L.L.P., Rockville, Maryland; Joann Robertson, OFFICE OF THE COUNTY

ATTORNEY, Rockville, Maryland, for Appellee. Michael C. Worsham,

Forest Hill, Maryland; William D. Brinton, Cristine M. Russell,
2

ROGERS TOWERS, P.A., Jacksonville, Florida, for Amici Supporting

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
3

PER CURIAM:

Plaintiff Trinity Outdoor, LLC (“Trinity”), an outdoor

advertising business, appeals the district court’s dismissal, for

lack of standing, of its civil action against The City of

Rockville, Maryland. According to the court, Trinity lacked

standing to sue, and the court thus lacked subject matter

jurisdiction in this dispute, pursuant to Federal Rule of Civil

Procedure 12(b)(1). By its Opinion of January 15, 2004, the court

concluded that Trinity’s alleged injuries were not caused by the

conduct it complained of and that its asserted injuries were not

redressable by the court. Trinity Outdoor, LLC v. City of

Rockville, Md., No. JFM-03-2372, 2004 WL 78054 (D. Md.) (the

“Opinion”). On appeal, Trinity maintains that the district court

erred in its Opinion, in that standing to maintain suit was not

dependent upon Trinity’s registration with Maryland to do business

or acquiring a state license to engage in outdoor advertising. As

explained below, we affirm.

I.

Trinity, which is organized under the laws of Georgia,

sought, during the summer of 2003, to pursue opportunities in the

outdoor advertising industry in Maryland. Trinity first entered

into lease agreements with respect to seven separate parcels of

real estate located in Rockville’s commercial or industrial

districts. In July 2003, Trinity submitted to Rockville seven
1

 In connection with proceedings in the district court on the

jurisdictional issue, Rockville submitted the affidavit of its

Chief of Inspection Services to the court, reflecting that the

seven Trinity applications were rejected as prohibited off-site

advertising. Trinity’s Complaint, on the other hand, alleged that

it received letters from Rockville dated July 11, 2003, and August

8, 2003, informing Trinity that all applications for billboards

were “refused at the counter.” Compl. at ¶ 33. This conflict over

the manner in which Rockville denied Trinity’s applications is not

pertinent to our analysis. 

4

applications for permission to erect freestanding “off-site” signs

on those seven parcels, adjacent to major roads and highways

(publicizing products, services, or activities available somewhere

other than on the premises where the signs were to be erected). At

that time, however, Trinity had not registered to do business in

Maryland and it had not obtained a Maryland license to engage in

the outdoor advertising business there. See Md. Code Ann., Corps.

& Ass’ns, § 7-202 (requiring foreign corporations to register

before doing business in Maryland); Md. Code Ann., Transp. § 8-708

(providing that persons may not engage in outdoor advertising

business for profit in Maryland without license from State). 

Rockville promptly rejected each of Trinity’s seven

applications, on the asserted basis that granting them would

violate the Rockville City Code. Def.’s Mem. in Supp. of Mot. to

Dismiss, Ex. 3 at ¶¶ 6, 8.1 The Rockville zoning ordinance then in

effect, see Rockville, Md., Code, ch. 25, art. I, § 25-1 (providing

for definitions), and ch. 25, art. XI, §§ 25-456 to -485 (providing

for sign regulations) (collectively the “Sign Ordinance”), created
2

 Among other requirements, the Sign Ordinance prohibited

“signs which contain the name of a building, product, business,

service or institution which is not located on the same lot as the

sign,” except for “temporary signs, permanent subdivision

identification signs, and political signs erected in accordance

with the requirements of this article.” Id. at § 25-461(a)(3).

While Rockville’s Sign Review Board possessed limited discretion to

authorize modifications of the Sign Ordinance’s requirements on a

case-by-case basis — where application of the Ordinance would

result in “peculiar and unusual practical difficulties” or

“exceptional or undue hardship,” id. at § 25-458(c) — no such

modification was available to circumvent the Sign Ordinance’s

prohibition of off-site signs. Id. 

5

a comprehensive scheme for regulating signs in the City, including

provisions relating to permitting, placement, number, construction,

size, height, design, operation, and maintenance. The Sign

Ordinance mandated that no sign could be erected without

Rockville’s prior issuance of a sign permit, id. at § 25-462, and

that no such permit would be issued by Rockville unless the

proposed sign was of a type specifically authorized by the Sign

Ordinance, id. at § 25-461(a).2

On August 15, 2003, Trinity filed its complaint against

Rockville in the District of Maryland, alleging that the Sign

Ordinance was unconstitutional as applied to Trinity and that it

was facially unconstitutional as applied to third parties. More

specifically, the complaint alleged, inter alia, that the Sign

Ordinance “defines many signs based upon the content of the

message” to be posted, and that it favors commercial over

noncommercial speech. Compl. at ¶¶ 9, 67-70. As relief for

Rockville’s alleged transgressions, Trinity sought, inter alia, to
3 While this proceeding was pending, and as a result thereof,

Rockville adopted a new sign ordinance, Ordinance No. 26-03, in

October 2003, which added Chapter 19.5, entitled “Signs,” to

Rockville’s municipal code. Rockville, Md., Code, Ch. 19.5, §§

19.5-1 to 19.5-32. By Chapter 19.5, Rockville explicitly sought to

enact safeguards that would stand even if Trinity succeeded in

invalidating the Sign Ordinance. See Preamble to Chapter 19.5.

Chapter 19.5 provided that the Mayor and the City Council of

Rockville intended to limit the size of any erected signs and to

ensure their safe construction and design. See id. One such

safeguard was an overarching, absolute size limit on freestanding

signs of 100 square feet. Id. at § 19.5-12.

6

enjoin enforcement of the Sign Ordinance. On September 23, 2003,

Rockville filed a motion to dismiss Trinity’s complaint under Rule

12(b)(1), asserting that Trinity lacked the constitutionally

mandated standing to sue — and that the district court thus lacked

subject matter jurisdiction — because the claims asserted in

Trinity’s complaint were not redressable by the court. More

specifically, Trinity had not registered to do business in

Maryland, it had not secured a license from the State to engage in

the outdoor advertising business, and its proposed signs failed to

comport with the size restrictions established by the Sign

Ordinance.3

On January 9, 2004, the district court heard argument on

Rockville’s motion to dismiss. Promptly thereafter, on January 15,

2004, the court issued its Opinion dismissing Trinity’s complaint

under Rule 12(b)(1), concluding that Trinity lacked standing to

challenge the constitutionality of the Sign Ordinance. By its

Opinion, the court held that Trinity’s alleged injuries were not
4

 On July 12, 2004, six months after the Opinion was filed,

Rockville amended the Sign Ordinance itself, in Ordinance No. 26-

04. This amended Sign Ordinance purports to cure many of the

alleged defects in the original Sign Ordinance; most significantly

by providing that (1) the prohibition against off-premise signs

does not pertain to noncommercial signs, id. at § 25-1, and (2)

businesses may use otherwise permitted sign space to post

noncommercial messages, id. at § 25-473. 

7

caused by Rockville’s conduct and those injuries were not

redressable by the remedy it sought, in that Trinity was neither

registered to do business in Maryland nor licensed to engage in the

outdoor advertising business in that State. The court also noted

a number of other probable defects with Trinity’s complaint, and it

observed that the subsequent enactment by Rockville, see supra note

3, likely impacted on Trinity’s claims. Opinion at *3. 

On January 29, 2004, Trinity filed its notice of appeal

from the order of dismissal entered on January 15, 2004.4 On

appeal, Trinity contends that the district court erred in

concluding that Trinity had failed to satisfy the criteria for

constitutional standing. 

II.

A district court’s dismissal for lack of standing is a

ruling of law that we review de novo. Bryan v. BellSouth

Communications, Inc., 377 F.3d 424, 428 (4th Cir. 2004).

Importantly, we examine jurisdictional facts for clear error and as

they existed at the time of the filing of the lawsuit. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 571 n.4 (1992).
8

III.

The question of standing to sue is an issue of

constitutional dimension, in that Article III of the Constitution

“limits the judicial power of the federal courts to resolving

actual cases and controversies.” Finlator v. Powers, 902 F.2d

1158, 1160 (4th Cir. 1990). The essence of the inquiry into

constitutional standing simply focuses on whether the plaintiff is

a proper party to institute suit. In order to possess standing, a

plaintiff must demonstrate to the court: (1) an injury-in-fact that

is concrete and particularized, rather than conjectural or

hypothetical; (2) that the injury was caused by the conduct

complained of; (3) and that such injury is likely to be redressed

by a favorable judicial decision. Lujan, 504 U.S. at 560-61; see

also Burke v. City of Charleston, 139 F.3d 401, 405 (4th Cir.

1998). 

When an issue of standing is asserted as a basis for lack

of subject matter jurisdiction under Rule 12(b)(1), the plaintiff

bears the burden of proof. Richmond, Fredericksburg & Potomac R.R.

Co. v. United States, 945 F.2d 765, 768-69 (4th Cir. 1991). And in

assessing a question of standing, a district court “may consider

evidence outside the pleadings without converting the proceeding to

one for summary judgment.” Id. The elements of standing are then

subjected to the same degree of proof that governs other contested

factual issues. See Lujan, 504 U.S. at 561. At the pleading
5 Trinity represented to us at oral argument that it has now

complied with, or that is in the process of complying with, the

Maryland registration and licensing requirements. Because

jurisdiction is assessed at the time a complaint is filed, see

Lujan, 504 U.S. at 571 n.4, such after-the-fact compliance by

Trinity does not affect this appeal. Any such compliance may, of

course, be a factor should Trinity initiate a new lawsuit.

9

stage, “general factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss we

‘presume that general allegations embrace those specific facts that

are necessary to support the claim.’” Id. (quoting Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 889 (1990)). 

In these circumstances, we are constrained to agree with

the analysis of the district court, as spelled out in its Opinion,

that Trinity has failed to meet the second and third requirements

of Lujan, 504 U.S. at 560-61, that is the causation and

redressability elements of standing. It is undisputed that, when

this litigation was initiated, Trinity had not registered to do

business in the State of Maryland and it had not obtained an

outdoor advertising license in that State. See Md. Code Ann.,

Corps. & Ass’ns, § 7-202; Md. Code Ann., Transp. § 8-708.5 As more

thoroughly explained in the Opinion, Trinity’s alleged injuries,

i.e., its inability to erect signs, were neither caused by

Rockville’s denial of its applications pursuant to the Sign

Ordinance nor redressable by the court. Put simply, had Rockville

granted Trinity’s sign applications, or had the Sign Ordinance been

invalidated in court, Trinity would yet have been unable, because
10

of its lack of registration and licensing, to engage in the outdoor

advertising business in Maryland. We therefore reject Trinity’s

appeal of the district court’s ruling, and we are content in so

doing to adopt the reasoning of its Opinion. See Trinity Outdoor,

LLC v. City of Rockville, Md., No. JFM-03-2372, 2004 WL 78054 (D.

Md. Jan. 15, 2004).

 

IV.

Pursuant to the foregoing, we affirm the judgment of the

district court.

AFFIRMED