Prelim Injunction

Case 1:10-cv-01349-CCB Document 8 Filed 06/17/10 Page 1 of 42
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
STEVEN B. KOLBE *
Plaintiff *
v. * Civil Action No: CCB-10-1349
BALTIMORE COUNTY, MARYLAND *
Defendant *
BALTIMORE COUNTY’S MEMORANDUM IN OPPOSITION TO

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Baltimore County, Maryland, Defendant, respectfully submits this
Opposition to Plaintiff’s Motion for Preliminary Injunction.
TABLE OF CONTENTS
Page
INTRODUCTION………………….………………………………………. 3
STATEMENT OF FACTS ……..…………………………………………. 6
Declaration of Michael Mohler …………………………………….. 6
Declaration of David Kirby ………………………………………… 9
ARGUMENT ………………………………………………………………. 13
A. Plaintiff’s Claims With Respect To BCZR § 450.7.F

Are Nonjusticiable Because That Regulation Is Not
And Has Not Been Enforced …………………………………. 13
1
B. The 8 Square Foot Limitation Is Not Content-Based And

Reasonably Regulates All Temporary Signs In Residential
Zones in the Same Fashion …………………………………… 15
C. Plaintiff Is Not Entitled To A Preliminary Injunction Under

The Four-Part Test Of Winter v. Natural Resources Council … 16
1. Legal Standard for Preliminary Injunction …….………… 16
2. Plaintiff is Not Likely to Succeed on the Merits Because

The Great Weight of Authority Upholds Similar Size
Limitations, BCZR § 450.4.14 is Content-Neutral,
Serves Substantial Interests of the County, Is Narrowly
Tailored to Further Those Interests, and Leaves Open
Ample Alternative Means for Communicating Desired
Political Messages………………………………………… 17
(a) Introduction………………………………………… 17
(b) City of Ladue v. Gilleo……………………………… 18
(c) Arlington Co. Republican Comm. v. Arlington Co… 22
(d) BCZR § 450.4.14 Does Not Violate the First
Amendment………………………………………… 24
i. Existing Precedent ………………………. 24

ii. Burden on Speech……………………….. 28
iii. Content Neutral………………………….. 29
iv. Substantial Interests of Baltimore County.. 30
v. Narrowly Tailored………………………… 30
iv. Ample Alternative Means………………… 33
(e) Discussion of Plaintiff’s Authorities…………………. 35
Taylor v. Baltimore County……………………………… 35
3. Plaintiff is Not Likely to Suffer Irreparable Harm in the

Absence of Preliminary Relief…………………………….. 37
4. The Balance of Equities Does Not Tip in Plaintiff’s Favor.. 39
5. Granting This Injunction Will Not Serve the Public
2
Interest………………………………………………………. 41
CONCLUSION ……………………………………………………………… 42
INTRODUCTION
On May 28, 2010, Plaintiff filed a Verified Complaint (Complaint) alleging
that three (3) provisions of the Baltimore County Zoning Regulations (BCZR)
unconstitutionally interfered with and unlawfully restricted his First and Fourteenth
Amendment Rights by preventing him from displaying a temporary thirty-two (32)
square foot political campaign sign on his residentially-zoned, private property in
Baltimore County.
Count I of the Complaint alleges that BCZR §§ 450.7.F, 450.4.13 and
450.4.14 are unlawful restraints on free speech, facially and as enforced, and
violate the First and Fourteenth Amendments (Complaint ¶¶ 38-55). Plaintiff is
seeking declaratory relief, a preliminary injunction, a permanent injunction, and
has requested this Court to enjoin Baltimore County (the County) from enforcing
these allegedly unconstitutional provisions of the BCZR. Plaintiff has also
requested an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
Count II of the Complaint alleges a “concerted effort and/or conspiracy by
certain members of Baltimore County Government (the ‘Conspirators’) to infringe
upon [Plaintiff’s right] to display political messages on [his] private property in
order to protect the interests of [the Democratic party]” (Complaint ¶ 47). Plaintiff
3
seeks damages against Baltimore County and the “individual actors and
conspirators” for an unspecified amount, but not less than the fees and costs
pursuant to 42 U.S.C. § 1988 (Complaint ¶ 50).
Simultaneously with the filing of the Complaint, Plaintiff filed a Motion for
Preliminary Injunction and supporting Memorandum pursuant to Fed. R. Civ. P.
65, requesting the Court to bar Baltimore County “from denying Plaintiff his free
speech rights” under BCZR §§ 450.7.F, 450.4.13 and 450.4.14.
As this Memorandum will demonstrate, the allegations pertaining to BCZR
§ 450.7.F are nonjusticiable because Baltimore County is not enforcing, and has
not enforced, BCZR §450.7.F since the entry of this Court’s Order of July 31, 2007
in Bell v. Baltimore County. The reference in the Correction Notice (Correction
Notice) to BCZR § 450.7.F was a mistake by Inspector David W. Kirby (Inspector
Kirby), as reflected in his attached Declaration. The text of the Correction Notice
refers only to the size of Plaintiff’s sign, “Ehrlich sign in front yard too large. Sign
can only be 8 sq. ft. Please remove or replace with appropriate sign.” As stated in
Inspector Kirby’s Declaration, the correct BCZR reference was § 450.4.14.
Additionally, Inspector Kirby considered the sign to be a “political campaign sign”
as defined by BCZR § 450.4.14, and not a “personal message sign.” Therefore,
BCZR § 450.4.13 is not implicated in Plaintiff’s “as applied” attack on BCZR §
450.4.13, which defines and governs “personal message signs.”
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Plaintiff’s allegations are based on a misunderstanding of the BCZR sign
regulations. Section 450 of the BCZR regulates two broad categories of signs—
permanent signs and temporary signs. There are six (6) categories of temporary
signs: construction, personal message, political campaign, real estate, special
event, and commercial special event. All temporary signs contain the exact same
limitations on size. Signs in commercial/business/industrial zones are limited to
fifty (50) square feet. Signs in residential zones are limited to eight (8) square feet,
except for unimproved lots, which are limited to fifty (50) square feet. This
regulatory scheme is clearly not content-based, and reasonably regulates all
temporary signs in residential zones in the same manner.
Significantly, the conspiracy alleged by Plaintiff is easily shown to be a
figment of his imagination. As stated in his Declaration, Inspector Kirby is a
registered Republican and likely to vote for Robert L. Ehrlich in the upcoming
gubernatorial election. Inspector Kirby unequivocally states that he issued the
Correction Notice because the Plaintiff’s sign violated the eight (8) square feet
limitation of BCZR § 450.4.14 and for no other reason.
Finally, and for the reasons discussed below, Plaintiff is not entitled to a
Preliminary Injunction under the four-part test articulated by the United States
Supreme Court in Winter v. Natural Resources Defense Council, 129 S. Ct. 365
(2008). Plaintiff is not likely to succeed on the merits, as the great weight of legal
5
authority has upheld the constitutionality of zoning regulations that limit the size of
political campaign signs, including signs both smaller and larger than eight (8)
square feet. Plaintiff is not likely to suffer irreparable harm absent preliminary
relief. The balance of equities tips in favor of the County. Lastly, an injunction
prohibiting the County from enforcing BCZR §§ 450.4.13 and 450.4.14 is
decidedly not in the public interest.
STATEMENT OF FACTS
Declaration of Michael Mohler
This portion of the Statement of Facts is based upon the appended
Declaration of Michael Mohler (Mr. Mohler). Mr. Mohler is currently Baltimore
County’s Department of Permits and Development Management (DPDM) Deputy
Director, and is in charge of Code Enforcement (App. 1).
On or about Friday, May 7, 2010, Mr. Mohler was in the office of the
Director of DPDM, Tim Kotroco for a brief meeting. During this meeting, Mr.
Kotroco told Mr. Mohler that he had received a phone call about a large political
sign on Dulaney Valley Road and asked Mr. Mohler to send an inspector from
DPDM to check on it (App. 1).
Mr. Mohler asked Inspector Kirby, a Code Enforcement Inspector employed
with DPDM, to visit the property and check on the sign. Mr. Mohler supervises
thirty-one (31) employees. Based on phone calls, e-mails, and conversations with
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citizens, elected officials, and community association leaders, during any given
week, Mr. Mohler will request DPDM inspectors to make site visits or follow-up
on complaints at least twenty-fine (25) times per week. Such requests are not
unusual for Mr. Mohler or DPDM’s inspectors (App. 1-2).
Inspector Kirby visited the site, saw a thirty-two (32) square feet sign, and
subsequently issued a Correction Notice that contained a compliance date of one
(1) week. Mr. Mohler, however, did not visit the site, and to this day has never
physically been to the property. Mr. Mohler was simply directing a DPDM
inspector to follow up on a direction given to him by his Director (App. 2).
On Monday May 10, 2010, a hand-delivered letter, addressed to County
Attorney John Beverungen, came into Mr. Mohler’s possession. Clerical staff of
DPDM had originally placed the letter in Inspector Kirby’s mailbox. Inspector
Kirby subsequently delivered a copy of the letter to Mr. Mohler’s mail slot. The
letter was written by Mr. Stephen B. Kolbe (Mr. Kolbe) who was protesting the
Correction Notice and generally voicing his displeasure with what he believed was
an overreaction to his political campaign sign (App. 2).
As is Mr. Mohler’s standard operating procedure, whenever he receives an
e-mail, phone call, or letter that has something to do with DPDM or one of
DPDM’s inspectors, Mr. Mohler will attempt to contact the individual to discuss
the matter (App. 2).
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Mr. Mohler called Mr. Kolbe and they spoke for around twenty-five (25)
minutes. Mr. Mohler explained the Correction Notice process. Mr. Mohler
explained that DPDM had received a complaint about the sign on Mr. Kolbe’s
property (App. 3).
Mr. Mohler informed Mr. Kolbe about the federal court ruling restricting
many of Baltimore County’s regulations. He also informed him that it was the
opinion of the County’s law office that DPDM could legally enforce regulations
relative to the size and placement of signs. Mr. Mohler then explained that Mr.
Kolbe’s sign exceeded the square feet size limitations for his zoning (the Kolbe
property is residentially-zoned). Mr. Mohler added, however, that while there was
no limitation on the number of signs Mr. Kolbe could display, he could not display
a sign over eight (8) square feet (App. 3).
Mr. Mohler then discussed the DPDM enforcement process with Mr. Kolbe
at length. Mr. Mohler explained that DPDM would reinspect the property one (1)
week from the May 7, 2010 Correction Notice. Mr. Mohler then explained that if
the sign remained, DPDM would issue a citation, and a hearing date would be set
where Mr. Kolbe could take his case before an administrative hearing officer. If
Mr. Kolbe did not like the results of this hearing, he would be permitted to appeal
the decision to the County Board of Appeals, then the Circuit Court, and ultimately
the Court of Special Appeals (App. 3).
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Mr. Kolbe thanked Mr. Mohler profusely for the time he spent with him in
clarifying DPDM’s procedures and process. Mr. Kolbe informed Mr. Mohler that
he was unaware what he was going to do next, but continued to thank Mr. Mohler
for taking the time to call. Mr. Kolbe was very appreciative and the entire
conversation was very cordial. Mr. Mohler has not had any additional
communication with Mr. Kolbe since that day (App. 3-4).
Upon reinspection by Inspector Kirby, the sign on Mr. Kolbe’s property had
been removed, and DPDM’s case regarding the sign is now closed (App. 4).
As to BCZR § 450.7.F, that regulation has not been enforced by either DPDM
or the County since this Court entered its Order in July 31, 2007. (App. 4).
Declaration of David Kirby
This portion of the Statement of Facts is based upon the Declaration of David
Kirby. Inspector Kirby is currently a Code Enforcement Inspector employed with
the DPDM. He has been employed by Baltimore County as a Code Enforcement
Inspector for approximately three (3) years and nine (9) months (App. 5).
He first began working for Baltimore County as a Code Enforcement
Inspector in August of 2007. Shortly after he was hired, he was assigned the task
of enforcing the Baltimore County Zoning Regulations with respect to political
campaign signs. Once the election was concluded, he was assigned a territory for
purposes of code inspection and enforcement (App. 5).
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Inspector Kirby’s involvement in this particular case began on Friday, May
7, 2010. There are typically very few inspectors available on Fridays, as many of
the inspectors work a four-day workweek. Inspector Kirby happened to be
working on Friday, May 7, 2010 and was approached in the morning by Mike
Mohler. Mr. Mohler requested him to go out and take a look at a sign on Dulaney
Valley Road. This request was not unusual and is something that happens all the
time. For example, after Mr. Mohler requested him to go to the Dulaney Valley
Road property, he also requested Inspector Kirby to check a high grass case in the
Catonsville area. It is not unusual for DPDM to operate in this fashion (App. 5-6).
That same morning Inspector Kirby went to 1233 Dulaney Valley Road
(App. 66) and immediately recognized that the sign on the property was too large.
He took photographs of the sign (App. 64 & 65) and then returned to the office to
determine the record owner of the property. Inspector Kirby did an SDAT search
and discovered the property was owned by Stephen and Samantha Kolbe (App. 6).
Inspector Kirby then completed a Correction Notice and posted that Notice
on the door of 1233 Dulaney Valley Road on his way home that same evening.
The Correction Notice gave the owners one (1) week to remove or replace the sign
with a sign that met the size limitations of the BCZR (App. 6).
When Inspector Kirby completed the Correction Notice, he erroneously
made reference to § 450.7.F of the BCZR. The correct citation is § 450.4.14 which
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governs the size of political campaign signs. His hand-written explanation clearly
states that the reason for the issuance of the Correction Notice was the size of the
sign (App. 6-7).
Inspector Kirby knows for a fact that §§ 450.7.F1 and 450.7.F.2 are no
longer enforced by him or any of the other inspectors in Code Enforcement, as a
result of a prior federal lawsuit. Recently, as the current election approached, he
was instructed that Code Enforcement could no longer enforce § 450.7.F. (App. 7).
On Monday, May 10, 2010, Inspector Kirby reviewed a letter (App. 59-60)
that had been hand-delivered by Mr. Kolbe to his office. He then spoke with Mr.
Mohler and Inspector Kirby was advised that Mr. Mohler had had a very cordial
conversation with Mr. Kolbe earlier that morning lasting approximately one-half
hour (App. 7).
On May 14, 2010, DPDM received another hand-delivered letter (App. 61-
62) from Mr. Kolbe basically stating that he had removed the sign (App. 7).
On May 17, 2010, Inspector Kirby verified by personal visit that the sign
had been removed from the Kolbe property (App. 7).
It is Inspector Kirby’s understanding that Mr. Kolbe has alleged in his
lawsuit that there is a conspiracy by high level political appointees and employees
of the Baltimore County Government to coerce and intimidate citizens from
exercising their free speech rights in an effort to create an environment in which is
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hostile to Baltimore County citizens expressing political persuasion for any party
other than the Democratic Party. This is absolutely not true (App. 7-8).
Inspector Kirby is a registered Republican and is likely to vote for Robert
Ehrlich for Governor in the upcoming election. To the best of Inspector Kirby’s
knowledge, he and all of the other Code Inspectors evenly enforce all of the
Baltimore County Zoning Regulations, including the regulations governing signs.
There is no discrimination against any property owner based on the political party
of the person whose sign is being displayed (App. 8).
The issue is not whether a property owner is supporting a Republican or
Democratic candidate; the issue is whether or not the sign complies with the
BCZR. In Plaintiff’s case, his sign did not comply with the BCZR. That is the
sole reason why Inspector Kirby issued the Correction Notice (App. 8).
To the best of Inspector Kirby’s knowledge, Mr. Mohler did nothing
unusual. Mr. Mohler simply requested Inspector Kirby to determine whether or
not a sign on the Kolbe property met the requirements of the Baltimore County
Zoning Regulations. Inspector Kirby properly determined that it did not and
accordingly issued a Correction Notice (App. 8).
Inspector Kirby noted that there is a big difference between a Correction
Notice and an actual Citation. This difference is clearly set forth in the Baltimore
County Code. The Correction Notice gives the property owner the opportunity to
12
correct whatever violation has been identified. A Citation actually cites the
individual for the violation and affords them an opportunity to request a hearing
before a County Administrative Hearing Officer who determines whether or not
there was in fact a violation of Baltimore County Law (App. 8-9).
To illustrate the difference between a Correction Notice and a Citation, a
copy of a blank Citation is attached to Inspector Kirby’s Declaration as Exhibit A
(App. 10-11).
ARGUMENT
A. Plaintiff’s Claims With Respect To BCZR § 450.7.F Are

Nonjusticiable Because That Regulation Is Not And Has Not Been
Enforced
At the outset, it is important to dispel any notion that Baltimore County is
enforcing BCZR § 450.7.F. Since the Correction Notice issued by Inspector Kirby
contained a reference to BCZR § 450.7.F, it is understandable that the Plaintiff
might think otherwise. However, as Inspector Kirby’s sworn Declaration makes
clear, the reference to BCZR § 450.7.F. was simply a mistake and the correct
reference should have been to BCZR § 450.4.14 (App. 6-7).
The text of Inspector Kirby’s Correction Notice makes this clear:
Ehrlich sign in front yard too large. Sign can only be 8

sq. ft. Please remove or replace with appropriate sign.
(App. 60).
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The fact that BCZR § 450.7.F has not been enforced since this Court’s Order
of July 31, 2007 is further supported by Inspector Kirby’s sworn Declaration (App.
7), the sworn Declaration of Michael Mohler, Deputy Director for Code
Enforcement (App. 4), and emails sent by Assistant County Attorney Michael
Field to the Register of Wills and the County Elections Board (App. 55-58).
Plaintiff will not be able to present any evidence that the County has enforced
BCZR § 450.7.F since this Court’s 2007 Order. Accordingly, Plaintiff cannot
succeed on his BCZR § 450.7.F claims, as those claims are nonjusticiable.
Therefore, there is no actual case or controversy before this Court involving BCZR
§ 450.7.F.
As the Fourth Circuit explained in Arlington County Republican Committee
v. Arlington County, 983 F.2d 567, 596-97 (4th Cir. 1993),
In the present case, the County’s uncontradicted evidence

indicates that its historical interpretation and application
of the commercial establishment, portable sign, and
waiting period provisions did not result in enforcement of
those provisions as written. Thus, we think the Political
Parties’ challenges to those three provisions were
nonjusticiable.
Thus, the sole question raised by Plaintiff’s Motion is whether the County
should be enjoined from enforcing an eight (8) square feet limitation on all
temporary signs in residentially-zoned property.
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B. The Eight (8) Square Foot Limitation Is Not Content-Based and

Reasonably Regulates All Temporary Signs In Residential Zones
In The Same Fashion.
The starting point to answer the above question is to examine the BCZR sign
regulations (App. 14-54).
§ 450.1 of the BCZR contains a statement of general findings and policies,
including: the existence in Baltimore County of excessive signage which unduly
distracts drivers and creates traffic and safety hazards (§ 450.1C, App. 14);
Baltimore County’s appearance is marred by excessive and incompatible signage
(§ 450.1D); and Baltimore County has a substantial interest in promoting the
public health, safety and general welfare in reducing or eliminating excessive and
incompatible signate (§ 450.1.F).
To those ends, Section 450 of the BCZR regulates two broad categories of
signs—permanent signs and temporary signs. There are six (6) categories of
temporary signs: construction, personal message, political campaign, real estate,
special event, and commercial special event. All temporary signs contain the exact
same limitations on size. Signs in commercial/business/industrial zones are limited
to fifty (50) square feet. Signs in residential zones are limited to eight (8) square
feet, except for unimproved lots, which are limited to fifty (50) square feet.
This regulatory scheme is clearly not content-based and reasonably regulates
all temporary signs in residential zones in the same manner.
15
C. Plaintiff is Not Entitled to A Preliminary Injunction Under the

Four-Part Test of Winter v. Natural Resources Council
1. Legal Standard for Preliminary Injunction
The Supreme Court, in Winter v. Natural Resources Defense Council, 129 S.
Ct. 365, 374 (2008), held that a plaintiff seeking a preliminary injunction must
establish: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of
equities tips in his favor; and (4) that an injunction is in the public interest.
In light of this holding, the Fourth Circuit overruled Blackwelder Furniture
Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977), and
applied the Winter standard in The Real Truth About Obama, Inc. v. the Federal
Election Commission 575 F. 3d 342, 346-348 (4th Cir. 2009), vacated and
remanded on different grounds, 2010 WL 1641299 (U.S. 2010).
In The Real Truth, supra a political advocacy organization sued the Federal
Election Commission and Department of Justice alleging that the Election
Commission’s regulations and enforcement policy violated plaintiffs’ rights under
the First and Fourteenth Amendments to disseminate information about a
presidential candidate’s position on abortion. Id. at 344. The district court denied
plaintiff’s Motion for Preliminary Injunction and the plaintiff appealed. The
Fourth Circuit affirmed, and applied the preliminary injunction standard articulated
in Winter. The court held that plaintiff was not likely to succeed on the merits, that
16
the plaintiff failed to make a clear showing of irreparable harm in the absence of an
injunction, and that the injunction sought would not be in the public interest. The
Real Truth, supra at 349-351.
The Fourth Circuit again followed the Winter standard in WV Association of
Club Owners and Fraternal Services, Incorporated v. Musgrave, 553 F. 3d 292 (4th
Cir. 2009). In Musgrave, a retailers’ association challenged the constitutionality of
West Virginia’s limited video lottery act, which banned limited video lottery
advertising. Id. at 294. The district court granted the Association’s Motion for
Preliminary Injunction. Id. at 297. The Fourth Circuit, applying Winter, reversed.
Id. at 298.
In an unreported decision, this court cited Winter and The Real Truth in its
denial of an inmate’s injunctive relief request for transfer to Clifton Perkins State
Hospital Center. See Bailey v. Warden, 2009 WL 2884758 (D. Md.) (Blake, J.).
2. Plaintiff is Not Likely to Succeed on the Merits Because The

Great Weight of Authority Upholds Similar Size Limitations,
BCZR § 450.4.14 is Content-Neutral, Serves Substantial Interests
of the County, Is Narrowly Tailored to Further Those Interests,
and Leaves Open Ample Alternative Means for Communicating
Desired Political Messages.
(a) Introduction
The First Amendment provides, “Congress shall make no law…abridging
the freedom of speech, or of the press…”. The Fourteenth Amendment makes this
limitation applicable to the States, see Gitlow v. New York, 45 S.Ct. 625 (1925),
17
and to their political subdivisions, see Lowell v. City of Griffin, 58 S.Ct. 666
(1938).
(b) City of Ladue v. Gilleo
The starting point to answer the question of whether Baltimore County has
violated the First Amendment is City of Ladue v. Gilleo, 114 S.Ct. 2038 (1994).
The City of Ladue, a suburb of St. Louis, Missouri, passed an ordinance
prohibiting all residential signs except those failing with one of ten enumerated
exceptions. Id. 2040. The ordinance permitted “residence identification” signs,
“for sale” signs, and signs warning of safety hazards. Id. The ordinance also
permitted commercial establishments, churches, and non-profit organizations to
erect certain signs that were not permitted at residences. Id. at 2041. In December
of 1990, Margaret Gilleo, a Ladue resident, placed a 24- by 36- inch sign on her
front lawn stating “Say No To War in the Persian Gulf, Call Congress Now.” Id.
The “Peace” sign and another sign in its place were subsequently knocked down.
Id. Ms. Gilleo, upon contacting the police, was advised her that such signs were
prohibited in the City of Ladue. Id. Ms. Gilleo applied for a variance to the
ordinance, but Ladue City Council denied the application. Id.
Ms. Gilleo then filed an action under 42 U.S.C. § 1983 against the City and
various officials alleging violation of her First Amendment Rights. Id. After the
District Court entered a preliminary injunction against the City, Ms. Gilleo placed
18
an 8.5- by 11- inch sign in the second story window of her home stating “For Peace
in the Gulf.” Id. In response to the injunction, Ladue City Council repealed its
initial ordinance and enacted the more restrictive ban, the precepts of which were
at issue before the Supreme Court. Although the ordinance had numerous
exceptions, it prohibited any homeowner from erecting any sign on his or her
property. 1 Id. Ms. Gilleo amended her Complaint to challenge the
constitutionality of the second ordinance. Id. The District Court held the amended
ordinance unconstitutional on summary judgment and the Court of Appeals for the
Eighth Circuit affirmed. Id. The Eight Circuit analyzed the ordinance as a
“content based regulation.” Id.
In a unanimous opinion authored by Justice Stevens, the Supreme Court also
invalidated the ordinance, however, the opinion acknowledged that while signs are
a form of protectable expression, they do pose distinctive problems that
“legitimately call for [municipality] regulation.” Id. Significantly, the Court did
not treat the ordinance as a content-based restriction which would have required a
“compelling” state justification under the Supreme Court’s “strict scrutiny” review.
Id. at 2044. The Court, in examining the propriety of Ladue’s near-total
prohibition of residential signs, assumed, arguendo, that “the various exemptions
[were] free of impermissible content or viewpoint discrimination.” Id.
1
The definition of “sign” in the City of Ladue ordinance was identified as “broad” by the Supreme Court. Ladue,
512 U.S. at 46.
19
The Court then proceeded to analyze the ordinance as a content-neutral
restriction, reasoning that Ladue’s aesthetic interests, while valid, must be weighed
against the effects of a near-total ban that would result in the event the exemptions
were removed. Id. at 2045-46. The Court examined the effect the ordinance had
on the banning of an entire medium of expression, placing great importance on
messages communicated by lawn and window signs. Id. The Court stated its
general distaste for regulations foreclosing an entire medium of expression, noting
the significant role that lawn and window signs play in political elections. Id. The
Court was ultimately unconvinced that an adequate substitute existed for the
important medium of speech that Ladue had closed off. Id. at 2046.
The Court likewise noted the ordinance’s effect on private property
ownership, recognizing a “special respect for individual liberty in the home” and
indicating that regulation of speech in the home was particularly unwarranted. Id.
at 2047.
However, the Court was careful to point out that the City was not entirely
powerless to address the problems associated with residential signs, stating that
“[d]ifferent considerations might well apply” to residential signs displayed for a
fee, or to “off-site commercial advertisements on residential property.” Id.
Ultimately, the Court found that the homeowners’ free speech interests were too
great to be trumped by the City’s aesthetic concerns and the Court invalidated the
20
ordinance even under the relatively low scrutiny of the Court’s content-neutral
approach. Id (“We are confident that more temperate measures could in large part
satisfy Ladue’s stated regulatory needs [of traffic safety and aesthetics] without
harm to the First Amendment rights of its citizens.”) (Emphasis added).
In her concurrence, Justice O’Connor objected to the analysis of the
ordinance as content-neutral. Id. at 2047-48. Nevertheless, Justice O’Connor
recognized that cogent criticisms had been leveled at the Supreme Court’s previous
approach of first determining whether a regulation is content based or content-
neutral and then applying the proper level of scrutiny. Id. (“[I]t is quite true that
regulations are occasionally struck down because of their content-based nature,
even though common sense may suggest that they are entirely reasonable). See
Farber, Content Regulation and the First Amendment: A Revisionist View, 68
GEO. L.J. 727 (1980); Stephan, The First Amendment and Content Discrimination,
68 VA. L. REV. 203 (1982).
In Stephan’s article, the author points out that, “[d]espite its repeated
invocations of a near-absolute content neutrality rule, the Court has not followed
its own precept.” Id. at 205. The author’s thesis is that “a broad content-neutrality
rule not only obscures free speech questions, but is antithetical to any rational
analysis of freedom of expression.” Id. at 206.
21
Presumably, it is this type of critical analysis which resulted in the standard
of review employed by the Court in City of Ladue. In a lengthy analysis of City of
Ladue which appeared in 1996, Bunting, Unsightly Politics: Esthetics, Sign
Ordinances and Homeowners’ Speech in City of Ladue v. Gilleo, 20 HARV.
ENVIR. L. R. 473 (1996), the author asserts that the Court’s interpretation of the
Ladue ordinance as a content neutral total ban “is perhaps the most salient aspect
of this decision.” Id. at 493. The author then goes on to state:
At first blush, the Court’s content-neutral interpretation

appears a remarkable departure from precedent,
particularly in comparison with the analysis in Metro-
media. However, upon further inspection, and quite apart
from the justifications given in the decision, the Court’s
assessment of the Ladue ordinance as content neutral is
consistent with its decisions in other land-use cases
involving the First Amendment. As shall be seen,
comparison with such decisions reveals that sign
ordinances like the one in Gilleo are unlikely to warrant
the stricter scrutiny usually applied to regulations that
target the message of the speaker. Furthermore,
analyzing the ordinance as a content-neutral ban may
allow more narrowly tailored sign ordinances to
withstand judicial scrutiny in the future.
Id. at 493-94
The above passage has direct application to § 450.4.14 of the BCZR.
(c) Arlington Co. Republican Comm. v. Arlington Co.
In Arlington Co. Republican Comm. v. Arlington Co., Va., 983 F. 2d 587 (4th
Cir. 1993) (decided one year before City of Ladue), the Fourth Circuit found that
22
Arlington County failed to narrowly tailor a two-sign limit to further its interests in
promoting aesthetics and traffic safety. Id. at 595. The court also found that the
two-sign limit left absolutely no other viable alternative means of political speech,
citing the County’s suggestions as either insufficient or too expensive. Id. at 594-
595. This case is significant to the instant action for the following three reasons.
First, the challenged ordinance in Arlington stands in stark contrast to the
viable means of political speech available to any and all Baltimore County
property owners living in a residential zone. Namely, county property owners are
free to display political campaign and personal political message signs virtually
without numerical limit as long as those signs are not larger than 8 square feet. By
contrast, The Arlington ordinance only allowed two temporary signs for each
principal dwelling unit. Id. at 589.
Second, the court supplied the proper analytical framework to be used when
considering the Plaintiff’s challenge to § 450.4.14 of the BCZR. Even though
Arlington was decided one year before City of Ladue, the court accurately
predicted the approach adopted by the Supreme Court in City of Ladue and
similarly assumed that the two sign limit was content-neutral. Id. at 594.
Baltimore County submits that this court is bound to make the same assumption in
determining the constitutionality of Baltimore County’s ordinance.
23
Third, Judge Niemeyer wrote a concurring and dissenting opinion,
expressing his belief that the two-sign limit furthered the public interest in
promoting aesthetics and safety, made no effort to regulate the content to the
message conveyed, and left open ample alternative for communication. Id. at 597.
He read controlling precedent as recognizing that government may exercise its
police power to regulate sign structures for safety and aesthetic reasons so long as
speech is not targeted and the regulation of the signs’ non-communicative aspects
are narrowly tailored so as not to unreasonably infringe on speech. Id. In
believing that the two-sign limitation satisfied all constitutional demands, he voted
to uphold the constitutionality of the ordinance. Id. Baltimore County believes
that when this same analysis is applied to the disputed regulations in this case, they
pass constitutional muster.
(d) BCZR § 450.4.14 Does Not Violate the First Amendment
i. Existing Precedent
In reviewing the challenge to the two-sign limit in Arlington, the Fourth
Circuit first analyzed whether existing case law would control its decision.
Arlington County, supra at 590. Finding an absence of controlling case law, the
Fourth Circuit then employed the test established by the Supreme Court to
determine the constitutionality of statutes under the First Amendment. Id. at 590-
591.
24
Baltimore County does not believe there presently exists any Fourth Circuit
or Supreme Court controlling precedent with respect to the eight (8) square foot
size limitations on political campaign signs proscribed by BCZR § 450.4.14.
However, the great weight of existing case law supports the constitutionality
of size limitations on signs. See Prime Media, Inc. v. City of Brentwood, Tenn.,
398 F. 3d 814, 816-823 (6th Cir. 2005) (city ordinance limited the size of billboards
to a face area of 120 square feet and a height of six (6) feet; content-neutral
restrictions imposed by municipal billboard ordinance, which limited signs to six
(6) feet in height and 120 square feet in size, were narrowly tailored to serve
municipal interest in reducing visual blight and aiding traffic in compliance with
First Amendment.); Kennedy v. Avondale Estates, Ga., 414 F. Supp. 2d 1184,
1188-1205 (N.D. Ga. 2005) (city ordinance limited each residence to three (3)
signs with each sign being no higher than three (3) feet and no larger than four (4)
square feet in size: First Amendment rights of property owners were not violated
by content-neutral ordinance restricting lawn signs, in residential areas, to
maximum height of three (3) feet and four (4) square feet, in effect limiting owner
to maximum of four (4) signs.); Sugarman v. Village of Chester, 192 F. Supp. 2d
282, 292-295 (S.D.N.Y. 2002) (city ordinance required that temporary signs
advertising political parties or candidates for election are permitted if the size of
such sign is not in excess of four (4) square feet; city’s durational, numerical and
25
size limitations were content-neutral, and court found the size limitation to be a
reasonable restriction furthering city's interests in aesthetics, property values and
safety that did not unduly restrict political speech); Baldwin v. Redwood City, 540
F. 2d 1360, 1367 (9th Cir. 1976) (city ordinance with stated limitations of
individual temporary political campaign signs to a maximum area of 16 square feet
and the aggregate area of signs on a single parcel to 80 square feet did not offend
First Amendment, due to fact that neither limitation significantly deterred exercise
of First Amendment rights and both limitations contributed to appearance of
community and furthered other legitimate municipal interests).
In addition, numerous treatises and law review articles recognize the
constitutionality of reasonable limitations on the size of signs.
“[A]n ordinance limiting the size of temporary signs and their placement
may be constitutional and not violative of the First Amendment where the
ordinance is properly related to the municipality’s governmental interest in
promoting public safety and the protection of public property through the
attainment of clean sight lines and the abatement of visual clutter.” Eguene
McQuillin, 7 McQuillin Mun. Corp., § 24.446.10 (3d ed., West 1997) (citing
Candidates’ Outdoor Graphic Serv. v. City & Co. of S.F., 574 F. Supp. 1240 (N.D.
Cal. 1983)).
26
“Assuming an appropriate enabling act, municipal ordinances which regulate
the height, size, and construction of signs are upheld where the restrictions are
reasonable. Such restrictions have a reasonable relation to public safety and are
within the police power [of a municipality].” Patricia E. Salkin, American Law of
Zoning, § 26:3 (5th ed., West 2010) (citing Donrey Communications Co., Inc. v.
City of Fayetteville, 280 Ark. 408 (1983)).
“Municipalities can regulate the size of the sign.” Patricia E. Salkin,
American Law of Zoning, § 26:4 (5th ed., West 2010) (citing Blum & Bellino, Inc.
v. Town of Greenburgh, 58 A.D. 3d 835 (2d Dept’ 2009)).
“Another option for cities that wish to limit the aesthetic problems caused by
signs is to enact regulations limiting size, shape, number, and duration of those
signs…ordinances regulating the physical attributes of signs on public and non-
residential private property have generally been upheld—so long as the regulations
are applied without regard to the content of the signs.” Daniel N. McPherson,
Municipal Regulations of Political Signs: Balancing First Amendment Rights
Against Aesthetic Concerns, 45 Drake L. Rev. 767, 784-85 (1996).
“Regulation of sign size and aggregate sign area per location on private
property is likely to be upheld, even as applied to political or idelogoical signs, as
long as the regulations are not unreasonably and unnecessarily restrictive. Arden
H. Rathkopf, The Law of Zoning and Planning. vol. 1, § 17.16 (3d ed., West 2005)
27
(citing Baldwin v. Redwood City, 540 F. Supp. 1360 (9th Cir. 1976)) (upholding, as
Constitutional, a city ordinance prohibiting signs more than 16 square feet on a
single parcel of land as a reasonable time, place, and manner regulation of political
speech)).”
“Reasonable content-neutral restrictions on height or setback also are likely
to be upheld as applied to political and ideological signs so long as the restrictions
are not unnecessarily burdensome and leave open ample alternative means for
political speech.” Id. (citing Messer v. City of Douglasville, Ga., 975 F. 2d 1505
(11th Cir. 1992)).
If this court does not believe that the above authorities can be relied upon to
decide this case, then the court should undertake the multi-step analysis that was
suggested by the Fourth Circuit in Arlington and that is discussed below.
ii. Burden on Speech
First, the court must analyze, under the Supreme Court’s test for determining
whether a statute violates the First Amendment, whether the size limitation of
BCZR §450.4.14 burdens any speech. See Arlington, 983 F. 2d at 539. Baltimore
County concedes the size limitations burden speech rather than conduct, though in
a very limited and reasonable manner. (“Communications by signs and posters are
virtually pure speech” Id (quoting Baldwin v. Redwood, 540 F. 2d 1360, 1366 (9th
Cir. 1976)).
28
iii. Content Neutral
Since there is a conceded burden on speech, the next determination this court
must make is whether the size limitations impose content-neutral or content-based
restrictions. Arlington, 983 F. 2d at 594. In light of the assumptions in both City
of Ladue and Arlington that the questioned provisions were content neutral, that
same assumption should apply in this case. See pages 14-20, supra.
Moreover, this court previously found that a durational limit on political
campaign signs was content-neutral. In Bell v. Baltimore County, 500 F. Supp. 2d
590 (D. Md. 2008), the court stated:
It appeared to me that the regulation [BCZR §450.7.F] was content-

based, as it applied only to certain types of political signs, and indeed
most courts considering the issue have reached this conclusion. See
McFdden v. City of Bridgeport, 422 F. Supp 2d 659, 671-74
(N.D.W.Va. 2006) (discussing cases); Curry¸33 F. Supp 2d at 452
(collecting cases). Recognizing that Baltimore County did not direct
the regulation at any particular political party or viewpoint, however,
see Covenant Media v. City of North Charleston, 493 F. 3d 421, 432-
34 (4th Cir. 2007) I acknowledged the question was at least debateable
and proceeded to rule [in Bell] on the assumption the regulation was
content-neutral, as did the Court in City of Ladue and Arlington
County.
Bell, 500 F. Supp. 2d at 592 (emphasis added).
Finally, the size limitations in the BCZR are content neutral on their face,
because they apply across the board to all temporary signs.
29
iv. Substantial Interests of Baltimore County
The next step in this analysis is to determine whether the size limitations of
BCZR §450.4.14 serve any substantial interest of Baltimore County. See Arlington
County, supra at 594 (“Under the content-neutral test, we must assess whether the
two-sign limit furthers any substantial governmental interest.) Clearly, the size
limitations serve the substantial interests of the County by, (1) preventing, for
aesthetic reasons, the proliferation of visual clutter caused by campaign signs, such
clutter being analogous to a traditional “nuisance,” and (2) promoting traffic safety.
The Supreme Court, in City of Ladue, supra at 48, 54, recognized the validity of
“the [c]ity’s interest in minimizing the visual clutter associated with signs” and
acknowledged that unlike oral speech, signs “take up space and may obstruct
views, distract motorists, displace alternative uses for land, and pose other
problems that legitimately call for regulation.”
Similarly, the Fourth Circuit in Arlington agreed with the district court,
holding that Arlington County’s interests of aesthetics and traffic safety qualified
as substantial governmental interests. Arlington County, supra at 594.
v. Narrowly Tailored
The next determination is whether the County narrowly tailored the size
limits to further the County’s stated interests of promoting community aesthetics
and traffic safety. See Arlington County, supra at 594. (“Having found two
30
substantial governmental interests, we next focus on whether the County narrowly
tailored the two-sign limit to further these interests.”) Generally speaking, these
provisions are aimed at visual clutter. They apply equally to all temporary signs,
candidates and all messages without regard to content.
As to the size limitations of 8 square feet, it is eminently reasonable, given
the fact that the 8 square feet limitations only applies to residentially-zoned
property with improvements (meaning people live there). As a matter of common
sense, billboard-sized signs are not appropriate in residential zones.
As Arlington clearly articulated, the Court could not question whether
“narrowly tailoring the statute require[d] allowing more than two signs.” Arlington
County, supra at 594. According to the Fourth Circuit, such a decision rests with
the legislative body, and is not a decision reviewable by the court system. Id.
(quoting Bd. of Trustees of State University of New York v. Fox, 492 U.S. 469, 478
(1989) (“Narrowly tailoring a statute does not mean ‘require elimination of all less
restrictive alternatives’”). However, this Court may require the County to justify
its chosen restrictions by demonstrating a necessity for the size limitation.
Arlington County, supra at 594.
The aesthetic repugnancy of this visual clutter is self-evident. After being
subjected to the elements for a period of time, the signs become tattered and
broken and ultimately become street or yard litter. Therefore, larger signs create
31
larger visual blights. Additionally, large signs can limit vehicular visibility and
pose a serious traffic safety problem. Even signs slightly larger than 8 square feet,
depending on where they are placed, can be hazardous and distracting to vehicular
traffic.
In Ward v. Rock Against Racism, 491 U. S. 781, 798-99 (1989), the Court
clarified that a regulation of the time, place or manner of protected speech need not
be the least restrictive or least intrusive means of doing so. Narrow tailoring is
satisfied “so long as the … regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation.” Id.
BCZR §450.4.14 meets this test. The substantial government interests of
aesthetics and traffic safety will be achieved less effectively if the County’s
reasonable limitations on the size of campaign signs on private property is
invalidated. The 8 square feet limit is a reasonable limitation of sign size.
Significantly, this limit is not substantially broader than necessary to achieve the
County’s interests. As the Supreme Court in Ward noted, the “validity of [time,
place or manner] regulations does not turn on a judge’s agreement with the
responsible decision maker concerning the most appropriate method for promoting
significant government interests’ or the degree to which those interests should be
promoted.” Id. at 800 (quoting US v. Albertini, 472 U.S. 675, 689 (1984); also see
Arlington County, supra at 594.
32
Candidates for political office are rightfully subject to numerous laws and
regulations to ensure the integrity of the election process. There is no logical
reason why their respective campaign signs on residential property cannot be
limited to 8 square feet to reduce visual clutter and to improve traffic safety in
Baltimore County.
vi. Ample Alternative Means
Finally, this Court must assess whether the size limitation leaves open ample
alternative means for communicating the desired message and/or political speech.
In this case, unlike in many of the cases cited by Plaintiff, the Plaintiff has every
right to display political campaign signs and personal message signs containing
political messages virtually without limit.
Plaintiff has repeatedly drawn an analogy between the ordinances in Ladue
and the BCZR. This analogy is singularly misplaced. But for one of ten stated
exemptions, the City of Ladue ordinance operated as a total ban. The BCZR
meanwhile places virtually no restrictions on political signs other than the size.
Significantly, Margaret Gilleo, the Plaintiff in City of Ladue, would not have
been prohibited by the BCZR from placing on her front lawn a 24- by 36- inch sign
with the printed words “Say No To War In The Persian Gulf, Call Congress Now,”
nor would she have been prohibited from displaying a 8.5- by 11- inch sign in the
33
second story of her home stating “For Peace in the Gulf.” Neither of these signs
would be prohibited by the BCZR.
Similarly, the Plaintiffs in Arlington would not have been prohibited from
posting more than two political signs on their front lawns, as long as those signs
were not larger than 8 square feet.
Candidates and homeowners have an expansive number of ways to convey
their political affiliations, hot button political messages, and to obtain name
recognition. This would include, but not be limited to, standing at busy
intersections during rush hour traffic waving name or message signs; distributing
handbills; canvassing door to door; advertising by radio, television, newspaper, the
internet, or other media; developing email lists; maintaining websites; purchasing
automatic personal message calling; making public appearances; granting
interviews; using airplane banners; and any number of other imaginative campaign
techniques. All of these alternative means are available to the Plaintiff and any
candidate he chooses to support.
Lastly, and most significantly, contrary to the characterizations by the
Plaintiff that his voice is being “silenced,” Plaintiff is free to continue displaying
an “Ehrlich for Governor,” sign so long as that sign is 8 square feet or smaller.
In sum, § 450.4.14 of the BCZR is a reasonable time, place and manner
restriction that furthers the public interest in promoting aesthetics and traffic
34
safety, while making no effort to regulate the content of the message conveyed and
subsequently leaving open ample alternatives for communication.
(e) Discussion of Plaintiff’s Authority
Taylor v. Baltimore County
The Plaintiff relies on Judge Murnaghan’s unreported Order in Warren
Taylor, Jr. v. Baltimore County, Maryland, United States Court of Appeals for the
Fourth Circuit, No. 98-2090 (filed July 28, 1998). In that case, Warren Taylor, a
voter and resident of Baltimore County, wished to post a sign on his lawn
announcing his support for Eileen M. Rehrmann (“Rehrmann”), a candidate for the
Democratic nomination for Governor of Maryland. Baltimore County Code §3-2,
as enforced by Section 1-8, and Baltimore County Zoning Regulations §450.4.15
barred the posting of political campaign signs on private property, except within
thirty days before and five days after an election. The primary election in which
Ms. Rehrmann was a candidate was scheduled for September 15, 1998. Violators
of the ban were subjected to criminal or civil prosecution and could be fined up to
$200.00 a day or imprisoned for ninety days.
Taylor had become aware that other Rehrmann supporters had been cited for
posting similar signs on their property, therefore Taylor decided against posting a
sign for fear that enforcement action could be taken against him. He then brought
an action in the United States District Court on July 20, 1998 for declaratory and
35
injunctive relief, claiming that the ordinances violated the First and Fourteenth
amendments on their face and “as applied.” After a hearing on July 22, 1998, the
District Court denied Taylor’s Motion for Preliminary Injunction because he was
not convinced that Taylor would suffer any imminent irreparable harm. Taylor
then brought an emergency appeal.
Applying the now-overruled standard of Blackwelder Furniture Co. v. Seilig
Mfg. Co., 550 F. 2d 189 (4th Cir. 1977), Judge Murnaghan determined that, even
though the balancing of harms did not decidedly tip in favor of Mr. Taylor, he had
demonstrated an extraordinarily high showing of likelihood of success on the
merits. This was based upon Judge Murnaghan’s conclusion that the ordinances
were content-based regulations of speech, and therefore subject to the strict
scrutiny standard, which more likely than not, would not survive review.
Strangely, Judge Murnaghan failed to even make a cursory mention City of
Ladue, which had been decided four years previously. Baltimore County believes
that Judge Murnaghan’s analysis is flawed because he did not assume, as in City of
Ladue and Arlington, that Baltimore County’s enactment was free of impermissible
content or viewpoint discrimination. Additionally, Judge Murnaghans’s analysis
failed to give proper consideration to the fact that Baltimore County’s current
zoning regulations permit the posting of personal political messages. Lastly, Judge
Murnaghan’s unpublished Order is not a precedent binding on this Court. In fact,
36
it is not even persuasive, given the fact that it failed to mention the Supreme
Court’s landmark decision in City of Ladue, let alone apply the analytical standard
employed in that case.
The point of the above discussion is that Baltimore County does not believe
that the cases cited by the Plaintiffs apply the appropriate analytical standard to the
questioned BCZR. The proper standard is to be found in the content-neutral
approach of City of Ladue and in Arlington County and the more deferential
standard of Ward v. Rock Against Racism, supra. As noted above, if those
standards are applied, then the BCZR sign regulations do not violate the First
Amendment. They are reasonable time, place and manner regulations that further
the public interest in promoting aesthetics and traffic safety while making no effort
to regulate the content of the message conveyed and leaving open ample
alternatives for communication.
3. Plaintiff is Not Likely to Suffer Irreparable Harm in the

Absence of Preliminary Relief
To be afforded the “extraordinary remedy” of a preliminary injunction, after
showing a likelihood of success on the merits, the Plaintiff must demonstrate that
he “is likely to suffer an irreparable harm in the absence of preliminary relief.”
The Real Truth About Obama, 575 F. 3d at 345-46 (citing Winter, 129 S. Ct. at
374). Thus far, the Plaintiff has failed to elucidate one convincing argument that
he is likely to suffer irreparable harm if his preliminary injunction is not granted.
37
Plaintiff’s contentions that he will suffer irreparable harm if Baltimore
County is permitted to continue enforcing sign size regulations are devoid of any
substantive merit and are particularly vague. In fact, given that the Winter standard
focuses on each of the four factors independently, it is incumbent upon the Plaintiff
to adequately demonstrate an irreparable harm. Real Truth About Obama, 575 F.
3d at 346 (“And all four requirements must be satisfied.”)
Plaintiff’s only argument supporting “irreparable harm” is that, by having to
remove the 32 square foot sign from his yard, he loses his “rights to engage in
political speech on his private property.” However, Plaintiff fails to acknowledge
that he is legally permitted to put up any number of signs supporting any number
of political candidates. Plaintiff claimed “irreparable harm” based only on the fact
he cannot put up a billboard-sized sign in a residential neighborhood. Unlike City
of Ladue or Arlington County, Plaintiff is free to display as many signs with as
many messages as he deems necessary. Thus, Plaintiff’s participation in this
year’s election cycle is not severely curtailed or lost forever as he alleges.
Plaintiff’s “irreparable harm” is his own creation. He can post any number
of 8 square foot signs supporting his chosen candidate; but has chosen not to do so.
His political voice and core expressive First Amendment freedoms are in no more
danger today than they were on May 7, 2010. Accordingly, Plaintiff has failed to
38
meet his burden of demonstrating a likelihood of suffering irreparable harm in the
absence of preliminary relief.
4. The Balance of Equities Does Not Tip in Plaintiff’s Favor
The third requirement a Plaintiff must establish in order to be awarded a
preliminary injunction is that the balance of equities tips in his favor. The Real
Truth About Obama, supra at 346. To effectively do so, the Plaintiff must
demonstrate that the harms he will likely suffer in the absence of relief outweigh
the harms the Defendant is likely to suffer in the event relief is granted. Winter,
supra at 376 (“courts must balance the competing claims of injury and must
consider the effect on each party of the granting or withholding of the requested
relief…and should pay particular regard for the public[.]”)
The Plaintiff has briefly alleged that this case does not implicate the
County’s authority to regulate signs that pose an imminent danger to society and
that granting the injunction will not harm the Defendant. This is emphatically
untrue.
It is uncontroverted that municipalities have the right to exercise its police
power to promulgate and enforce regulations regarding the placement of signs in
an effort to protect its citizens’ aesthetic and safety interests. City of Ladue, 114 S.
Ct. at 2041. BCZR §450.4.14 is a measure by which Baltimore County exercises
this given police power.
39
The Plaintiff’s sole demonstrative harm is his obdurate, self-inflicted refusal
to display an Ehrlich sign that complies with the BCZR size limitation. Any
burden on Plaintiff is further mitigated by the fact that Plaintiff can display
numerous political campaign signs, so long as they comport with the BCZR size
limitations. At the end of the day, Plaintiff’s injury is virtually non-existent.
Meanwhile, Defendant, and its citizens, stand to suffer substantial injuries if
the Plaintiff’s preliminary injunction is granted. Some of these injuries are
obvious—more signs in residentially-zoned areas, larger signs that create
unforeseen traffic and safety concerns, and a visual blight that the regulations are
designed to prevent. As one example, who can say that Plaintiff’s 32 square foot
sign could not cause an accident at the intersection of Dulaney Valley Road and St.
Francis Road. See photos and map (App. 64-66)
A less obvious injury, but one with far larger implications, is that the
Defendant’s ability to properly exercise its police power over all signs in the
County will be severely curtailed if the Plaintiff’s relief is granted. An injunction
of this magnitude could ultimately prohibit the Defendant from employing a
measure of authority that nearly every jurisdiction in the United States recognizes
as necessary.
40
Accordingly, the Defendant’s likely and substantial injuries, when weighed
against the Plaintiff’s limited and feigned injury, decidedly tip the balance of
equities in Defendant’s favor.
5. Granting This Injunction Will Not Serve the Public Interest
The final requirement a Plaintiff must meet when requesting preliminary
relief is to convince the court that granting the injunction is largely in the public’s
interest. The Real Truth About Obama, 575 F. 3d at 345-46 (citing Winter, 129 S.
Ct. at 374).
By characterizing BCZR §450.4.14 as a total ban, Plaintiff has painted
Baltimore County as an authoritarian body, seeking to subvert Republican ideas
and manipulate public discourse through intimidation and coercion. Through this
incendiary tactic, Plaintiff portrays himself as a victim and Baltimore County as a
supreme violator of the First Amendment, in order to gain a political advantage for
his candidate. In doing so, Plaintiff contends that enjoining the BCZR is wholly in
the public interest, yet he provides no real or substantive support for his position.
Plaintiff contends that his sign is small enough, and set back far enough, that
it does not impede or distract traffic on Dulaney Valley Road. Baltimore County
disputes this allegation. Moreover, an injunction would affect not only the
Plaintiff and his property. If the injunction were granted, any citizen in Baltimore
County could erect a sign to comport with his or her own desires. In fact, this sort
41
of lawlessness seems to have been encouraged in the publicity surrounding this
lawsuit. One could certainly conceive of a situation wherein a citizen erects a 100-
foot sign whose practical effect is both an unsightly eyesore as well as a visual
obstruction of oncoming traffic. Yet, if the Defendant is enjoined from enforcing
BCZR §450.4.14, the County’s ability to remove such signs would be nullified.
The Defendant is not enforcing abhorrent speech restrictions. The
Defendant is enforcing zoning regulations that are designed to protect the aesthetic
and traffic safety interests of its citizens. Accordingly, granting the Plaintiff’s
injunction is not in the best interests of the public.
CONCLUSION
For all of the above reasons, Baltimore County respectfully requests that the
court deny the Plaintiff’s Motion for Preliminary Injunction.
John E. Beverungen
County Attorney
__________/s/__________________
James J. Nolan, Jr., Bar No. 1865
Assistant County Attorney
Baltimore County Office of Law
400 Washington Avenue
Towson, Maryland 21204
Attorney for Defendant
Date Electronically Filed: June 17, 2010
42

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Case 1:10-cv-01349-CCB Document 8 Filed 06/17/10 Page 1 of 42

UNITED STATES DISTRICT COURT

v. * Civil Action No: CCB-10-1349

BALTIMORE COUNTY, MARYLAND *

BALTIMORE COUNTY’S MEMORANDUM IN OPPOSITION TO

Baltimore County, Maryland, Defendant, respectfully submits this

Opposition to Plaintiff’s Motion for Preliminary Injunction.

STATEMENT OF FACTS ……..…………………………………………. 6

Declaration of Michael Mohler …………………………………….. 6

Declaration of David Kirby ………………………………………… 9

A. Plaintiff’s Claims With Respect To BCZR § 450.7.F

B. The 8 Square Foot Limitation Is Not Content-Based And

C. Plaintiff Is Not Entitled To A Preliminary Injunction Under

1. Legal Standard for Preliminary Injunction …….………… 16

2. Plaintiff is Not Likely to Succeed on the Merits Because

i. Existing Precedent ………………………. 24

(e) Discussion of Plaintiff’s Authorities…………………. 35

Taylor v. Baltimore County……………………………… 35

3. Plaintiff is Not Likely to Suffer Irreparable Harm in the

4. The Balance of Equities Does Not Tip in Plaintiff’s Favor.. 39

5. Granting This Injunction Will Not Serve the Public

On May 28, 2010, Plaintiff filed a Verified Complaint (Complaint) alleging

Amendment Rights by preventing him from displaying a temporary thirty-two (32)

square foot political campaign sign on his residentially-zoned, private property in

Count I of the Complaint alleges that BCZR §§ 450.7.F, 450.4.13 and

violate the First and Fourteenth Amendments (Complaint ¶¶ 38-55). Plaintiff is

seeking declaratory relief, a preliminary injunction, a permanent injunction, and

these allegedly unconstitutional provisions of the BCZR. Plaintiff has also

requested an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

Count II of the Complaint alleges a “concerted effort and/or conspiracy by

certain members of Baltimore County Government (the ‘Conspirators’) to infringe

upon [Plaintiff’s right] to display political messages on [his] private property in

pursuant to 42 U.S.C. § 1988 (Complaint ¶ 50).

Preliminary Injunction and supporting Memorandum pursuant to Fed. R. Civ. P.

speech rights” under BCZR §§ 450.7.F, 450.4.13 and 450.4.14.

As this Memorandum will demonstrate, the allegations pertaining to BCZR

in Bell v. Baltimore County. The reference in the Correction Notice (Correction

Notice) to BCZR § 450.7.F was a mistake by Inspector David W. Kirby (Inspector

Inspector Kirby’s Declaration, the correct BCZR reference was § 450.4.14.

Additionally, Inspector Kirby considered the sign to be a “political campaign sign”

as defined by BCZR § 450.4.14, and not a “personal message sign.” Therefore,

BCZR § 450.4.13 is not implicated in Plaintiff’s “as applied” attack on BCZR §

450.4.13, which defines and governs “personal message signs.”

Plaintiff’s allegations are based on a misunderstanding of the BCZR sign

signs: construction, personal message, political campaign, real estate, special

limitations on size. Signs in commercial/business/industrial zones are limited to

regulatory scheme is clearly not content-based, and reasonably regulates all

temporary signs in residential zones in the same manner.

Significantly, the conspiracy alleged by Plaintiff is easily shown to be a

figment of his imagination. As stated in his Declaration, Inspector Kirby is a

gubernatorial election. Inspector Kirby unequivocally states that he issued the

limitation of BCZR § 450.4.14 and for no other reason.

prohibiting the County from enforcing BCZR §§ 450.4.13 and 450.4.14 is

decidedly not in the public interest.

Declaration of Michael Mohler

This portion of the Statement of Facts is based upon the appended

Declaration of Michael Mohler (Mr. Mohler). Mr. Mohler is currently Baltimore

County’s Department of Permits and Development Management (DPDM) Deputy

Director, and is in charge of Code Enforcement (App. 1).

DPDM to check on it (App. 1).

Mr. Mohler asked Inspector Kirby, a Code Enforcement Inspector employed

unusual for Mr. Mohler or DPDM’s inspectors (App. 1-2).

subsequently issued a Correction Notice that contained a compliance date of one

inspector to follow up on a direction given to him by his Director (App. 2).