Trinity Outdoor, L.l.c v. City of Rockville, Md., No. JFM-03-2372, 2004 WL 78054 D. Md. the “Opinion”

UNPUBLISHED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.; APA-
MARYLAND CHAPTER,
Amici Supporting Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. J. Frederick Motz, District Judge. (CA-
03-2372-8-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Affirmed by unpublished per curiam opinion.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,

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ROGERS TOWERS, P.A., Jacksonville, Florida, for Amici Supporting
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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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

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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.
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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

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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.
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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

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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.
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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

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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.
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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).

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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

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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.
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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

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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

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