Dolls, Inc. v. City of Coralville (425 F. Supp. 2d 958, 2006)

ORDER

GRITZNER, District Judge.

This matter comes before the Court on Defendant’s Motion to Dismiss (Clerk’s No. 9). The Plaintiff, Dolls, Inc., is represented by Edward J. Krug and Luke C. Lirot. The Defendant, City of Coralville, is represented by Terry J. Abernathy and Thad J. Collins. Following a hearing held on Friday, January 20, 2006, this matter is fully submitted and is ready for disposition.

Resolving the pending motion today does not require surveying much of the Supreme Court’s rather complex First Amendment jurisprudence applicable to cities’ licensing and zoning ordinances regulating whether and where adult-oriented businesses may operate. Instead, this case turns on whether the Plaintiff is the correct party to challenge certain ordinances which have not been applied and, in some instances, cannot be applied, to its business, and, if so, whether it is in the proper posture to do so. The Court resolves both issues in the negative.

FACTS

The Defendant, City of Coralville, Iowa (“Coralville” or “the City”), is a political subdivision of the State of Iowa located in Johnson County. The Plaintiff, Dolls, Inc. (“Dolls”), is an Iowa corporation with its principal place of business in Coralville, Iowa. The company has been in existence since 1996. Wayne Grell is Dolls’ president.

For a number of years, Dolls claims it has operated an establishment “predicated on public appeal in the expressive dance performances performed by independent professional artists” who “re-eeive[d] compensation in the form of gratuities from patrons pleased with the expressive performances presented.” Dolls claims it facilitated the provision of “First Amendment protected dance performances” emphasizing human sexuality. Artists performing there were not nude but were “scantily attired in more than ... ‘pasties and g-strings.’ ”

In 2004, Dolls sold the building it operated and the land upon which the building stood to the City pursuant to the terms of a negotiated Settlement Agreement. Dolls claims its was forced out of business under threat of condemnation as a result of a concentrated effort by the City to rid itself of adult-oriented businesses. Finding a new place for Dolls in Coralville is the focus of this litigation. Coralville, like many communities, has in effect zoning and licensing ordinances governing where businesses, including those like Dolls, may operate.

I. Coralville’s Zoning and Licensing Scheme.

Among the stated purposes of Coral-ville’s comprehensive zoning scheme is “to promote the public health, safety, morals, order, convenience, prosperity and general welfare; [and] to conserve and protect the value of property throughout the City and to encourage the most appropriate use of land ____” Coralville, Iowa, Ordinances, § 165.02 (2005). To that end, Coralville has established a variety of zoning districts, each of which is eligible to house different types of residences or businesses. Three types of industrial zones exist. See id. § 165.30-.32. Relevant here are “1-2,” or “light industrial districts,” and “1-3,” or “general industrial districts.” Id. § 165.31-32.

1-2 areas are “low impact industrial, business and research area[s] set aside for the location of enterprises that have negligible environmental impacts beyond their property limits.” Id. § 165.31. The minimum lot size for these types of areas is 10,000 square feet. Id. § 165.31(6)(A). Only certain types of businesses may operate in 1-2 areas, some with and some without a provisional, conditional use, or special exception permit issued by the City Zoning Administrator (“Administrator”) and the City’s Board of Adjustment (“Board”). See id. § 165.31(2)-(5).

Land zoned 1-3 is to be “a general purpose industrial and business area for the location of activities and enterprises that might be otherwise objectionable in other areas of the community and by the nature of their activity may result in some negative impacts upon their environment.” Id. § 165.32. The stated purpose of 1-3 districts “is to provide for such uses in the community and to properly insure their negative impacts are properly mitigated.” Id. Left unexplained are these “negative impacts” or how these enterprises could be “otherwise objectionable” to surrounding property owners. See id. The minimum lot size for land zoned 1-3 is 250,000 square feet, or just under six acres. Id. § 165.32(6)(A).

Only waste water treatment plants may operate in 1-3 areas without some kind of license. Id. § 165.32(2)(A). Other businesses require provisional use permits issued by the Administrator, id. § 165.32(3), conditional use permits issued by the Board, id. § 165.32(4), or special exception permits issued by the Board, id. § 165.32(4). Requiring conditional use permits are “[s]exual activity establishments], massage establishments], adult bookstore[s], adult cabaretfs], adult motion picture theaterfs], or other similar forms of adult entertainment” (collectively, “adult-oriented businesses”). Id. § 165.32(4)(D). In addition to adult-oriented businesses, the conditional use permit requirement applies to less exotic businesses such as animal by-product rendering facilities, chemical manufacturing plants, slaughter plants, and businesses conducting quarrying and mining operations. Id. § 165.32(4)(A)-(C). In addition to a conditional use permit, some businesses, including adult-oriented businesses, must also submit a site plan, id. § 165.32(4)(B)-(D), but only adult-oriented businesses must propose “one non-lighted sign no larger than four square feet,” id. § 165.32(4)(D).

Nowhere in its Complaint does Dolls challenge the City’s site plan procedures, nor does it challenge the City’s regulations regarding signs. Dolls only specifically challenges procedures applicable to provisional use permits and special exception permits, which are not required to operate an adult-oriented business. See, e.g., Compl. ¶¶ 36-40. (To this end, the City’s Complaint appears to contain a typographical error. Compare Compl. ¶ 34 (listing section 165.49 as containing conditional use permit procedures), with Compl. exh. H, at 1 (listing section 165.50 as containing conditional use permit procedures)). Elsewhere in its Complaint, Dolls challenges the “conditional use provision[s]” generally, without specifically identifying a section of the City’s ordinances. E.g., Compl. ¶ 43. Consequently, the Court will construe Dolls’ Complaint as, inter alia, a challenge to the City’s conditional use permit procedures.

Coralville’s ordinances provide detailed procedures regulating when conditional use permits will issue. See generally Cor-alville, Iowa, Ordinances § 165.50. In addition to a fee, an applicant must submit “[supporting information” and “documentation” indicating compliance with the City’s zoning ordinances. Id. § 165.50(1)-(4). The property owner must also submit to the Administrator “[a] signed and attested statement ... indicating compliance with all provisions [of the City’s zoning-ordinances] and a detailed explanation of any permitted nonconformities on the subject property.” Id. § 165.50(4). After a complete application is submitted, the Administrator must set a public hearing before the Board within thirty days. Id. § 165.50(5). Before a conditional use permit issues, the Board must “determine[] on the basis of specific information presented at the public hearing or contained in the application” the satisfaction of a number of conditions as follows:

A. The proposed conditional use will comply with all applicable regulations of the Zoning Ordinance, including, but not limited to lot requirements, use limitations and all other standards and conditions contained in the provision authorizing such use.

B. Adequate utility, drainage and other necessary facilities or improvements have been provided or will be provided.

C. Adequate access will be provided and designed so as to prevent traffic hazards and to minimize traffic congestion on public streets and alleys and on site.

D. All necessary licenses and permits required for the operation of the conditional use have been obtained, or it clearly appears that such permits are obtainable for the proposed conditional use on the property.

E. The location and size of the conditional use, the nature and intensity of the activities to be involved or conducted in connection with it, the size of the site in relation thereto and the size of the site with respect to streets giving access to the conditional use, shall be such that it will be in harmony with appropriate and orderly development of the district and the neighborhood which it is located.

F. The location, nature and height of buildings or structures on the site and nature and extent of the landscaping and screening on the site shall be such that the use will not reasonably hinder or discourage appropriate development, use or enjoyment of adjacent land, buildings or structures.

G. The proposed conditional use will not cause substantial injury to the value of other property in the neighborhood in which it is located and will contribute to and promote the convenience and welfare of the public.

Id. § 165.50(6)(A)-(G).

Unless the Board “acts” on an application within thirty days, it is deemed denied. Id. § 165.50(7). However, the Board is required to “render a written decision on the application for a conditional use permit within thirty ... days after the close of the hearing.” Id. § 165.50(8). Any decision of the Board must include “specific findings of fact supporting or granting the denial” of a permit or detailing conditions or restrictions imposed on such a grant. Id.

The impact of these procedures is that if an owner of a parcel of land zoned 1-3 wishes to operate an adult-oriented business, he may do so upon obtaining a conditional use permit, so long as he complies with other zoning procedures unchallenged in this litigation.

II. Factual History of This Litigation.

Seven years before Dolls began operating in 1996, Coralville adopted an Urban Development Plan, where it contemplated condemning certain parcels of land as part of a broader development project. One such parcel was that upon which Dolls was operating. Although ownership of the property where Dolls was once located has since been transferred to the City, Coral-ville did not actually condemn any land owned by Grell. See Settlement Agreement 7, at ¶ 12 (indicating the agreement was “negotiated under threat of condemnation” (emphasis added)). Instead, Grell and the City reached a negotiated agreement on October 29, 2004, wherein the City paid $6.3-million for the property where Dolls was operating and a number of other properties. Pursuant to the agreement, Grell received $134,393 for relocation expenses. The agreement further indicates Grell was required to vacate- the property by April 1, 2005, or face a liquidated damages penalty. Dolls later stopped operating on the parcel of land sold to the City.

Before ceasing operations, Dolls was located in an area zoned 1-2. It is undisputed that the City never attempted to enforce its ordinance requiring adult-oriented businesses to operate only on land zoned 1-3. In fact, Coralville claims it has never enforced that provision against any adult-oriented business.

While negotiating the sale of his land to the City, Grell explored other parcels of land for relocation of Dolls. He claims to have “engaged in extensive consultations with City officials” to identify such a parcel. Grell claims the City Manager indicated that if Grell could locate a parcel zoned 1-3, Dolls could be rebuilt there. Grell eventually purchased two parcels of land in Coralville separated by a highway (the “Bigelow property”). The parcel on one side of the highway was zoned R-l; the parcel on the other was zoned 1-3. Grell contends he purchased these parcels at the suggestion of the City Administrator. The record does not show when Grell purchased the Bigelow property, but it is clear the purchase was complete before he sold to the City the property where Dolls was previously located. The parties do not appear to dispute that'the parcel zoned 1-3 was improperly zoned, as it was fewer than 250,000 square feet in area.

On July 26, 2004 (well before the sale of his land to the City was finalized), the City issued a Notice of Rezoning, indicating the City’s Planning and Zoning Commission (the “Commission”) was considering rezoning both parcels of the Bigelow property to 1-2. On August 4, 2004, Grell filed a Notice of Protest with the Commission. The Commission considered the rezoning issue later that same day. Grell and his wife, accompanied by their attorney, attended the meeting, where Grell expressed his opposition. Members of the Commission explained rezoning the Bigelow property was necessary to bring the lots into conformity with those around them, which were zoned 1-2. The Commission also noted that the parcel zoned 1-3 was not large enough to qualify for the 1-3 zoning classification. The Commission recommended to the City Council that both properties be rezoned 1-2. Following the meeting, one Commissioner told Grell that “[the Commission didn’t] make the final decision on this, it will go on to [the City] Council.”

On August 24, 2004, the Coralville City Council passed Ordinance 2004-1005, which rezoned both parcels of the Bigelow property to 1-2. Neither Grell nor another representative of Dolls attended the meeting. Grell, after meeting with his attorney, decided he would not attend the meeting or protest the rezoning, as such a protest would have been a “futile and vacuous remedy.” The City’s decision to rezone the 1-3 parcel to 1-2 has not been appealed or otherwise challenged.

As noted above, Grell signed the Settlement Agreement with the City on October 29, 2004, nearly one month after the City Council finalized rezoning the Bigelow property. It is therefore undisputed Grell knew he could not relocate Dolls to the Bigelow property upon the sale of the parcel where Dolls had been operating.

According to Dolls, rezoning the Bigelow property eliminated the only area in Coral-ville where an adult-oriented business could operate. However, in an affidavit submitted by Grell, he admits there is other 1-3 property in Coralville but claims much of it is owned by the City. Grell Aff. ¶¶ 6, 9. Coralville points out that Dolls has not attempted to relocate to another properly zoned parcel in the City since signing the Settlement Agreement. The record shows Dolls has not submitted a site plan, applied for a building permit, sought a zoning variance, or taken any other action to relocate or reopen.

Dolls filed a fifteen count Complaint on February 23, 2005. Counts 1 through 14 allege the occurrence of numerous constitutional violations, and Count 15 sets forth an equitable estoppel claim. Dolls’ constitutional claims are summarized in the following table:

First Amendment__Count 1 (Compl. ¶ 56) “Free Expression”_

_Count 2 (Compl. ¶ 57) “Prior Restraint”_

_Count 3 (Compl. ¶ 58) “Chilling Effect”_

_Count 8 (Compl. ¶ 63) “Free Association”_

Count 10 (Compl. ¶ 65) “Inadequate Safeguards [f]or Prompt _Judicial Review”_

_Count 11 (Compl. ¶ 66) “Free Speech Suppression”_

_Count 12 (Compl. ¶ 67) “Overbreadth”_

_Count 13 (Compl. ¶ 68) “Restrictions Without Alternatives”

_Count 14 (Compl. ¶ 69) “Unbridled Government Discretion”

Fifth Amendment_Count 9 (Compl. ¶ 64) “Illegal Taking”_

Fourteenth Amendment Count 4 (Compl. ¶ 59) “Equal Protection”_

_Count 5 (Compl. ¶ 60) “Arbitrary and Capricious” Application

_Count 6 (Compl. ¶ 61) “Unlawful Exercise of Police Power”

_Count 7 (Compl. ¶ 62) ‘"Vague and Indefinite”_

With two exceptions, each constitutional claim is made on facial and as-applied bases. Dolls’ overbreadth claim (Count 12) is made on a facial basis only. Dolls’ claim that the City’s regulatory scheme was “arbitrary and capricious as applied ” to Dolls (Count 5) is clearly made on an as-applied basis only.

Coralville has moved to dismiss each claim on varying grounds. First, citing Federal Rule of Civil Procedure 12(b)(1), Coralville argues the Court cannot exercise jurisdiction over the constitutional claims presented in Dolls’ Complaint. Coralville also claims each count should be dismissed as moot because Dolls has gone out of business. Finally, Coralville claims dismissal is proper because Dolls’ claims are not ripe and Dolls lacks standing to bring them.

Second, citing Federal Rule of Civil Procedure 12(b)(6), Coralville claims Dolls’ facial constitutional challenges fail to set forth claims upon which relief could be granted. Coralville also urges dismissal of Dolls’ equitable estoppel claim because the Complaint does not establish what Coral-ville would be estopped from doing should Dolls succeed. The City also argues that Dolls forfeited any potential estoppel claim it could have had by signing the Settlement Agreement. It claims that “[t]o the extent [Dolls] attempts to retain the benefits of settlement and assert equitable claims which functionally attempt to undue [sic] the agreement, [Dolls] has ‘unclean hands’ which would deny [it] any equitable relief, including estoppel.”

DISCUSSION

Before embarking on a discussion of the state of the record in this case, a small number of issues may be hewed out up front, particularly with respect to Dolls’ numerous (and overlapping) First Amendment claims. The First Amendment guarantees that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. The First Amendment’s Free Speech Clause has been incorporated into the Fourteenth Amendment’s due process clause, making it applicable to state actors. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336 n. 1, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). This is true even though the text of the Amendment applies only to restrictions drafted by Congress. See U.S. Const, amend I. The panoptic patchwork of jurisprudence pieced together by the Supreme Court in its opinions carved from the text of the First Amendment is therefore applicable to the City.

Although by its terms the First Amendment applies only to speech, it has been interpreted to protect “ ‘live entertainment, such as musical and dramatic works,’ and artistic expression containing nudity or simulated sexual conduct.” Ways v. City of Lincoln, 274 F.3d 514, 518 (8th Cir.2001) (quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); citing Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 43 L.Ed.2d 448; Doran v. Salem Inn, Inc., 422 U.S. 922, 933, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)). No activities that have occurred or would occur within Dolls’ walls are obscene, see Compl. ¶ 16 (“[Dolls] does not intend the performance to be, nor are the performances, obscene.”), and thus denied First Amendment protection, see Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene .... ” (footnote omitted)); Republican Party of Minn. v. White, 416 F.3d 738, 749 n. 4 (8th Cir.2005) (en banc) (recognizing that lewd and obscene speech “enjoy no First Amendment protection”). As a result, the activities Dolls wishes to foster are entitled to some, but not absolute, First Amendment protection; how much is the issue with respect to the bulk of Dolls’ claims. See SOB, Inc. v. County of Benton, 317 F.3d 856, 859 (8th Cir.2003) (“Non-obscene erotic and sexually explicit speech are entitled to some First Amendment protection.” (emphasis added)).

I. Applicable Procedural Standards.

Rule 12(b)(1) requires dismissal if the Court lacks jurisdiction over the subject matter of an action. Fed.R.Civ.P. 12(b)(1), (h)(3). Rule 12(b)(6) requires dismissal if a plaintiff fails to state a claim upon which relief could be granted. Id. R. 12(b)(6). Coralville argues each of Dolls’ claims should be dismissed because none are jus-ticiable under constitutional principles of mootness, ripeness, and standing. Coral-ville argues that under any (or all) of these doctrines, the Court lacks jurisdiction, rendering dismissal proper. Coralville also claims each of Dolls’ facial constitutional challenges as well as its equitable estoppel claim fail to state claims upon which relief could be granted. As a result, Coralville urges the Court to dismiss these claims as well.

II. The City’s Motion to Dismiss for Lack of Jurisdiction.

Article III of the United States Constitution limits the subject matter jurisdiction of federal courts to actual cases or controversies. U.S. Const. Art. Ill § 2. Over a century ago, the Supreme Court articulated the elementary requirement that a court have jurisdiction over a cause of action before proceeding. See Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). There, the Court ruled that if jurisdiction is found lacking, “the only function remaining to the court is that of announcing the fact and dismissing the case.” Id. This principle has been oft repeated. E.g., Vt. Agency of Nat’l Res. v. United States, 529 U.S. 765, 778-79, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); Steel Co. v. Citizens for A Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Starr v. Mandanici, 152 F.3d 741, 747 (8th Cir.1998); Flittie v. Solem, 882 F.2d 325, 326-27 (8th Cir.1989) (collecting cases); Lewis v. Internal Rev. Serv., 691 F.2d 858, 859 (8th Cir.1982). Consequently, the Court begins with an analysis of whether subject matter jurisdiction exists over each of Dolls’ claims in light of principles of standing, mootness, and ripeness divined from the case-or-controversy requirement of Article III.

A. Legal Principles Governing Rule 12(b)(1) Motions.

To succeed on its Rule 12(b)(1) motion, Coralville must successfully “challenge [Dolls’ Complaint] on its face or the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). Herein lies a distinction between “facial” and “factual” challenges to subject matter jurisdiction. See Biscanin v. Merrill Lynch & Co., 407 F.3d 905, 907 (8th Cir.2005); Titus, 4 F.3d at 593; Osborn v. United States, 918 F.2d 724, 729-30 & n. 6 (8th Cir.1990). Facial challenges are limited to analyzing the face of the complaint, Biscanin, 407 F.3d at 907; factual challenges invoke facts other than those pled in the complaint, Osborn, 918 F.2d at 729 n. 6. See BP Chems. Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 680 (8th Cir.2002) (construing a challenge as facial “because [the defendant] limited its attack to allegations in [the plaintiffs] amended complaint”).

If a party makes a facial challenge, each factual statement the complaint contains is presumed true. Biscanin, 407 F.3d at 907; BP Chems., 285 F.3d at 680; Titus, 4 F.3d at 593; Osborn, 918 F.2d at 729 n. 6. A moving party’s motion can be “successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Titus, 4 F.3d at 593. If a party mounts a factual challenge, however, the Court may look outside the pleadings to determine whether jurisdiction exists, and the nonmoving party loses the benefit of favorable inferences from its factual statements. Id.; Osborn, 918 F.2d at 729 n. 6. “[Supplemental affidavits,” Douglas v. Brownell, 88 F.3d 1511, 1515 n. 6 (8th Cir.1996), deposition testimony, Satz v. ITT Fin. Corp., 619 F.2d 738, 742 (8th Cir.1980), “other documents,” Osborn, 918 F.2d at 730, and live testimony, Osborn, 918 F.2d at 730, are all appropriate for consideration.

Coralville does not claim Dolls failed to comply with Federal Rule of Civil Procedure 8(a)(1), and rightly so: the Complaint sufficiently avers the existence of subject matter jurisdiction. Instead, relying in part on affidavits submitted by Olson, Cor-alville alleges Dolls lacks standing and is bringing unripe and moot claims. Thus, the City challenges the truthfulness of facts in the Complaint. Accordingly, the Court construes the City’s challenge as factual, not facial. As a result, where appropriate, the Court will consider documents spanning the entirety of the record when ruling upon the instant motion, see Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir.2002) ((“ ‘[T]he trial court is free to ... satisfy itself as to the existence of its power to hear the case.’ ”) (quoting Osborn, 918 F.2d at 730) (omission by the Faibisch court)), resolving factual conflicts it contains along the way, see McClain v. Am. Econ. Ins. Co., 424 F.3d 728, 734 (8th Cir.2005); W. Neb. Res. Council v. Wyo. Fuel Co., 641 F.Supp. 128, 129-30 (D.Neb. 1986), cited in Faibisch, 304 F.3d at 801, and Osborn, 918 F.2d at 728 n. 5.

As always, the Court will do so mindful of the fact that Dolls, as the party urging the Court to exercise jurisdiction, bears the burden of proving by a preponderance of the evidence that it has standing, Young Am. Corp. v. Affiliated Computer Servs. (ACS), Inc., 424 F.3d 840, 843 (8th Cir.2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), and is bringing ripe claims, Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir.2005), but that the City, which asserts some of Dolls’ claims are moot, bears a “heavy burden of proving” so, Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir.2004).

B. Standing.

The analysis begins with whether Dolls has standing to bring its claims because “[wjhether a plaintiff has standing to sue ‘is the threshold question in every federal case, determining the power of the court to entertain the suit.’ ” McClain, 424 F.3d at 731 (quoting Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000)).

In its motion, Coralville argues Dolls lacks standing to bring any of the claims set forth in its Complaint. In its brief, the City refines its challenge to address only Dolls’ constitutional claims, so the Court will restrict its analysis to Dolls’ constitutional claims. See LR 7.1(d) (2006) (requiring a brief to “contain[ ] a statement of the grounds for the motion”); id. R. 7.1(i) (a brief “must address only the particular facts and legal issues under consideration” (emphasis added)).

“[Sjtanding ‘is perhaps the most important of [the jurisdictional] doctrines.’ ” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)) (second alteration by the FW/PBS Court). It is firmly established that “ ‘[i]f a party lacks standing, the district court has no subject matter jurisdiction.’ ” Young Am. Corp., 424 F.3d at 843 (quoting Faibisch, 304 F.3d at 801). It is also “long-settled ... that standing cannot be ‘inferred argumentatively from averments in the pleadings.’ ” FW/PBS, 493 U.S. at 231, 110 S.Ct. 596 (quoting Grace v. Am. C. Ins. Co., 109 U.S. 278, 284, 3 S.Ct. 207, 27 L.Ed. 932 (1883)). Instead, standing “ ‘must affirmatively appear in the record.’ ” Id. (quoting Mansfield C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)).

As noted above, Dolls, “the ‘party who seeks the exercise of jurisdiction in [its] favor,’ ” bears the burden of proving each element of standing. Id. (quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); see Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Young Am. Corp., 424 F.3d at 843. To meet this burden, Dolls must adduce “ ‘facts demonstrating that [it] is a proper party to invoke judicial resolution of the dispute.’ ” FW/PBS, 493 U.S. at 231, 110 S.Ct. 596 (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). And because the standing requirement is not a “mere pleading requirement! ],” Dolls must support each element “in the same way as any other matter on which [it] bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Delorme v. United States, 354 F.3d 810, 815 (8th Cir.2004). Because this case is “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss [it is] presumed] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (quotation marks omitted); accord Bennett v. Spear, 520 U.S. 154, 168, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Delorme, 354 F.3d at 815-16.

Dolls must establish facts sufficient to satisfy both constitutional and prudential standing requirements. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004); Delorme, 354 F.3d at 815. The three-part test articulated by the United States Supreme Court in Lujan v. Defenders of Wildlife guides the constitutional standing analysis:

First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (citations and footnote omitted); accord Newdow, 542 U.S. at 12, 124 S.Ct. 2301; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Young Am. Corp., 424 F.3d at 843; McClain, 424 F.3d at 731; Delorme, 354 F.3d at 815. To be injured in a “particularized” way, a plaintiff must be injured “in a personal and individual way.” Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130.

1. Dolls’ As-applied Claims (Excluding Counts 2, 3, and 12).

a. Injury in Fact Traceable to Conduct of the City.

First, Dolls must have suffered an injury in fact that is fairly traceable to conduct of the City. Newdow, 542 U.S. at 12, 124 S.Ct. 2301; Friends of the Earth, 528 U.S. at 180-81, 120 S.Ct. 693; Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Young Am. Corp., 424 F.3d at 843; McClain, 424 F.3d at 731; Delorme, 354 F.3d at 815.

The City argues Dolls has suffered no injury resulting from its ordinances requiring conditional use permits or ordinances regulating where adult-oriented businesses may locate. The City claims “[t]he only suggested injury relates to [Dolls] having to vacate its [old] location by April 1, 2005, or pay the $16,000 of [sic] contractual liquidated damages the City bargained for and [Dolls] agreed to in return for $6,300,000.” The City further contends that because Dolls has gone out of business, “there is no real or even possible affect [sic] on it from the ordinance.” Finally, the City posits that because Dolls has not requested a zoning variance, submitted a site plan, or attempted to reopen, many of the challenged ordinances have not been applied to Dolls, making an injury resulting from their application impossible.

Dolls responds by arguing that it “clearly has suffered an injury due to the City’s actions,” because it “is out of business due to the City’s actions, and there are no relocation sites available” for it to reopen. From this statement, it follows that the harm Dolls complains of is its closure and subsequent inability to reopen.

When a plaintiff challenges an ordinance as applied to its conduct, it must have “ ‘experienced a direct injury or will soon sustain a direct injury.’ ” Int’l Ass’n of Fire Fighters, Local 2665 v. City of Clayton, 320 F.3d 849, 850 (8th Cir.2003) (quoting Harmon v. City of Kansas City, Mo., 197 F.3d 321, 326 (8th Cir.1999)). Typically, and not surprisingly, regulations must actually be applied before a plaintiff can challenge them on an as-applied basis. E.g., United States v. Neset, 235 F.3d 415, 420 n. 3 (8th Cir.2000) (holding that the plaintiff could not establish a “causal connection between the alleged violation of his First Amendment rights and the FCC’s failure to issue” a license or grant a waiver because the plaintiff “ha[d] not applied for a license or requested a waiver”); T.L.J. v. Webster, 792 F.2d 734, 739 n. 5 (8th Cir. 1986) (holding that a plaintiff lacked standing to challenge a statute on an as-applied basis because “it was not alleged that [the plaintiff] sought to use” the statute). Consequently, the analysis focuses on whether Dolls has been harmed by an application of the challenged ordinances.

In this action, Dolls challenges section 165.30(4)(D) of Coralville’s ordinances, which restricts adult-oriented businesses to areas of the City that are zoned 1-3 and requires them to submit a site plan and propose a sign of particular dimensions. Also challenged is 165.32(6)(A), requiring 1-3 zoned areas to be at least 250,000 square feet in area. Dolls also challenges section 165.50, which contains the City’s conditional use licensing procedures, as well as sections 165.49 and 165.51, which contain provisional use permit and special exception permit procedures, respectively.

i. Section 165.30(4)(D).

Section 165.30(4)(D) contains three general requirements applicable to adult-oriented businesses. First, adult-oriented businesses can be placed only in areas zoned 1-3. Second, the owner must provide a site plan. Third, the owner must propose one non-lighted sign no larger than four square feet.

Dolls (or its owner) is not the current owner of any 1-3 zoned land. Dolls has not submitted a site plan and has not proposed a sign. Dolls therefore cannot trace an injury to an application of this section of Coralville’s ordinances. Consequently, it lacks standing to challenge this ordinance on an as-applied basis.

ii. Section 165.32(6).

Section 165.32(6)(A) requires areas zoned 1-3 to be at least 250,000 square feet in area. It is undisputed that one parcel of the Bigelow land was zoned 1-3 when Grell purchased it, but because the parcel was not large enough, it was rezoned to a different classification. The record therefore shows that the City’s application of section 165.32(6)(A) made a parcel of land owned by Grell ineligible to house adult-oriented businesses like Dolls. Consequently, Dolls can trace its inability to place its business on the Bigelow property, in part, to the City’s application of this section. For purposes of the current analysis the Court accepts Dolls has thus alleged the occurrence of an injury traceable to an action of the City with respect to this section.

iii. Section 165.49.

Section 165.49 sets forth the requirements for provisional use permits. Only certain businesses are required to seek provisional use permits, and adult businesses are not among them. This section cannot have harmed Dolls, because it does not apply to Dolls’ business.

Dolls does not have standing to challenge this section on an as-applied basis.

iv. Section 165.50.

By generally challenging the “conditional use procedures” used by the City, Dolls is in reality challenging section 165.50. Unfortunately for Dolls’ claim, the City has never had an opportunity to apply this section to Dolls. Dolls has not submitted a conditional use permit application, has not paid an application fee, and has not submitted a site plan, as required by the City’s conditional use permit procedures. Because this section has never been applied to Dolls, Dolls cannot have suffered an injury traceable to its application. Consequently, Dolls does not have standing to challenge this section on an as-applied basis.

v. Section 165.51.

Section 165.51 contains procedures an applicant must follow to obtain a special exception permit. As with section 165.49, special exception permits are only required for certain types of businesses. Adult businesses are not among them. Therefore, Dolls cannot claim to be harmed by an application of this section. Dolls lacks standing to challenge this section on an as-applied basis.

vi. Conclusion.

With the arguable exception of section 165.32(6)(A), the Complaint does not allege an application of any section of Coralville’s ordinances. To the extent survival of its claims depends upon the City actually applying the challenged ordinances, Dolls lacks standing to bring them.

b. Injury Redressed by Favorable Result.

The analysis now turns to whether any harm alleged by Dolls would be redressed by a favorable result. Necessarily, then, Dolls must demonstrate it has standing to pursue each type of relief it seeks. Friends of the Earth, 528 U.S. at 185, 120 S.Ct. 693 (2000). Dolls seeks two forms of relief. First, Dolls wishes the Court to declare the City’s regulatory scheme relating to adult-oriented businesses violative of a number of constitutional provisions. Second, Dolls asks the Court to temporarily and permanently enjoin the City from applying and enforcing the challenged ordinances in the future.

i. Standing to Seek Injunctive Relief.

First, Dolls must demonstrate it has standing to seek injunctive relief. That is, Dolls must show that enjoining enforcement of the challenged sections of the City's ordinances will redress some alleged harm. See, e.g., Am. Ass’n of Orthodon-dists v. Yellow Book USA, Inc., 434 F.3d 1100, 1103-04 (8th Cir.2006) (concluding, that to qualify for injunctive relief, an injunction barring the conduct alleged must redress the injury alleged); Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689 (8th Cir.2003) (requiring that in-junctive. relief “will prevent the harm it identifies”).

The analysis proceeds in two steps. First, Dolls must have alleged sufficient facts to show it has satisfied the threshold showing for injunctive relief established by the Supreme Court. Second, the analysis focuses on whether Dolls’ decision to close its doors in search of a new place to open has any bearing on its ability to seek in-junctive relief.

(1) Threshold Showing for Injunctive Relief.

Dolls must allege that there is a “ ‘real and immediate threat of repeated injury’ ” to have standing to seek injunc-tive relief. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)); see Park v. Forest Serv. of the United States, 205 F.3d 1034, 1037 (8th Cir.2000) (recognizing that where a plaintiff seeks “injunctive relief, the ‘injury in fact’ element of standing requires a showing that the plaintiff faces a threat of ongoing or future harm”). Past harm can be evidence of whether a real and immediate injury is threatened, but that evidence alone cannot suffice to show a plaintiffs standing to seek an injunction. See Rizzo v. Goode, 423 U.S. 362, 372, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); O’Shea, 414 U.S. at 496, 94 S.Ct. 669; see also Mosby v. Ligon, 418 F.3d 927, 933 (8th Cir.2005) (holding that “a plaintiff seeking prospective relief against future conduct of defendants who caused injury in the past must show that she faces a real and immediate threat that she would again suffer similar injury in the future” (quotation marks omitted)). In fact, to have standing to seek an injunction, it is necessary for the Plaintiff to allege that the challenged conduct is “likely” to occur again, resulting in some kind of future injury. Lyons, 461 U.S. at 105, 103 S.Ct. 1660.

The analysis begins with the City’s zoning ordinances. Dolls claims it “is and will be threatened with prosecution for continuing the presentation of expressive dance performances at ... any alternative location not approved by the City.” However, the record demonstrates the City has not enforced the vast majority of the challenged ordinances against Dolls or any other business. See Young Am. Corp., 424 F.3d at 845 (holding that a plaintiff must produce evidence showing that it is “more than merely speculative that the relief requested would have any effect to redress the harm to the plaintiff’ (quotation marks omitted)). The City Attorney contends that the City, to his knowledge, “has never ... enforced the adult entertainment business zoning plan against [Dolls] or any other business.” See First Olson Aff. ¶¶ 13. In fact, record shows that Coral-ville’s ordinances were not enforced to close Dolls when it was operating in its previous location, even though it was operating on land zoned 1-2. Id. ¶ 12. The tacit threat created by the very existence of the ordinance structure must be assessed against this backdrop of nonen-forcement.

Dolls’ Complaint shows the only challenged section the City has ever actually applied is section 165.32(6)(A), which requires areas zoned 1-3 to be at least 250,-000 square feet in area. However, Dolls cannot show that a future or ongoing harm is likely to occur from an application of section 165.32(6)(A). If the City is barred from applying section 165.32(6)(A), dancers cannot immediately begin performing on the Bigelow property, because a number of other requirements must be met. See, e.g., Coralville, Iowa, Ordinances § 165.32(4)(D) (requiring a site plan); id. § 165.52 (containing the (unchallenged) site plan procedures). Consequently, even if the Court entered an injunction barring the City from enforcing section 165.32(6)(A), the harm claimed, i.e., being out of business, would not be remedied. Therefore, Dolls lacks standing to seek an injunction which would enjoin enforcement of section 165.32(6)(A).

Each of the other zoning regulations Dolls challenges are simply not applicable to the parcel of land Grell owns. If Dolls wishes to open an adult-oriented business, it must be located on land zoned 1-3. The property Grell now owns is zoned 1-2. Determining when (or if) the land will be rezoned is a matter of pure conjecture. As a result, whether the City will apply any zoning ordinances relevant to adult-oriented businesses in the future is a speculative endeavor the Court cannot pursue. See Mosby, 418 F.3d at 933-34; cf. OShea 414 U.S. at 497, 94 S.Ct. 669 (“Attempting to anticipate whether and when these respondents will be charged with crime and will be made to [be subject to the challenged conduct] takes us into the area of speculation and conjecture.”). But even if Dolls could show that the parcel were to be rezoned, it has not presented evidence showing the City intends to bar it from operating there. Compare Eckles v. City of Corydon, 341 F.3d 762, 767-68 (8th Cir.2003) (finding a plaintiff had standing upon showing that a city had “clearly outlined the actions it plan[ned] to take” upon cessation of the plaintiffs litigation), with Alexander v. City of Minneapolis, 928 F.2d 278, 282 (8th Cir.1991) (concluding a plaintiff lacked standing when “[t]he record revealed absolutely no attempt, threat, or plan by the City to enforce the adult ordinance against [the plaintiff]”). In short, it is speculative whether invalidating any of the zoning ordinances would allow Dolls to reopen.

Turning to the licensing ordinances, Dolls faces a similar fate. Guessing whether Dolls will one day apply for a conditional use permit is beyond the Court’s power. See O’Shea, 414 U.S. at 497, 94 S.Ct. 669; Mosby, 418 F.3d at 934.

Dolls lacks standing to seek injunctive relief against the City with respect to each ordinance it challenges.

(2) The Impact of Dolls’ Inactive Status.

Citing In re Milk Products Antitrust Litigation, the City argues Dolls cannot seek injunctive relief because it is no longer open for business. In that case, the court dismissed a proposed class action brought by wholesale purchasers of milk and milk products alleging price fixing by a group of milk processors. In re Milk Prods. Antitrust Litig., 195 F.3d 430, 432 (8th Cir.1999). The district court ruled that the proposed class representative lacked standing to seek injunctive relief because the representative had sold any interest in its potential class claims when it sold the assets of its business before joining the lawsuit. Id. at 433. The Eighth Circuit noted that even if the named plaintiff had retained an interest in the antitrust claims, “its sale of the business cut[ ] against its adequacy and typicality as a sole class representative.” Id. at 437. The court ruled the business was “out of business and therefore lack[ed] standing to seek injunctive relief.” Id. Pertinently, the Milk Products court did not hold that no party had standing to bring the claims advanced, it merely held that the sale of the proposed representative’s business assets meant it could not pursue the class claims. See id. (implying that the claim had not been extinguished because the proposed representative “faces the prospect of litigating with the ... purchasers over ownership of the ... claim”).

Dolls concedes it is not presently operating an establishment where dancing occurs. However, the record does not show Dolls has sold the intangible assets of its business. For example, Dolls is still incorporated and possesses a liquor license. Additionally, the Settlement Agreement shows that a portion of the money Grell received from the sale of his land was to be used for relocation expenses. That a portion of the money Grell received was earmarked for relocation expenses shows the sale of the land upon which Dolls previously operated was not equivalent to the sale of the business as a going concern. Unlike Dolls, the plaintiff in Milk Products owned 'nothing. That case is therefore distinguishable.

In response to the City’s argument, Dolls quotes at length from the Ninth Circuit’s opinion in Clark v. City of Lakewood, 259 F.3d 996 (9th Cir.2001). In that case, the plaintiff closed the adult business he operated after a city’s regulatory scheme imposed unsustainable financial losses upon his business. Id. at 1001, 1003, 1007. In an action against the city, the owner sought monetary, injunctive, and declaratory relief. Id. at 1003. The business owner, like Grell, made clear his intent to reopen if the ordinances were invalidated. Id. at 1006, 1008. The city, like Coralville, argued the plaintiff lacked standing to seek injunctive relief because his business was closed and was therefore no longer being harmed by the ordinances. Id. at 1008. The court ruled that the plaintiff had standing to seek injunctive and declaratory relief, finding that,

the Ordinance’s indirect forced closing of [the plaintiff’s business by allegedly rendering it unprofitable is also sufficient to give [the plaintiff) standing to request an injunction. The claimed inability to operate his business (or continued daily losses if he reopened his business) is an injury in fact, that injury is caused by the Ordinance and an injunction stopping enforcement of the Ordinance would redress [the plaintiff’s injury by allowing him to reopen his business free from the Ordinance’s restrictions.

Id. at 1008. The City attempts to distinguish Clark by arguing that Dolls can point to no action by the City leading to Dolls’ closure.

The record shows Grell purchased the Bigelow property, which the City subsequently rezoned. As a result of the City’s application of section 165.32(6)(A), the City disqualified the Bigelow property from being able to house Dolls. Clark salvages this much for Dolls. But even if Coralville was enjoined from enforcing section 165.32(6)(A), Grell must still apply for, and be granted conditional use and zoning permits, which is a speculative endeavor. Unlike the plaintiff in Clark, preventing an application of the challenged ordinances that have been applied to Dolls would not allow Dolls to immediately reopen. See id.

At bottom, Dolls’ presently being out of business does not alter the standing analysis with respect to Dolls’ request for in-junctive relief. Dolls still lacks standing to seek that type of relief, because it cannot show that an invalidation of the only ordinance that has ever potentially harmed it would allow it to open.

ii. Standing to Seek Declaratory Relief.

Having concluded Dolls cannot seek in-junctive relief, the analysis turns to whether Dolls can seek a declaration that the challenged ordinances are unconstitutional, as applied.

To have standing to seek declaratory relief, there must be “ ‘a substantial controversy between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Marine Equvp. Mgmt. Co. v. United States, 4 F.3d 643, 646 (8th Cir.1993) (quoting Caldwell v. Gurley Refining Co., 755 F.2d 645 (8th Cir.1985)). However, because this test “is imprecise, the decision of whether such controversy exists is made upon the facts on a case by case basis.” Id. (citing Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)).

The analysis here largely tracks that above. See United Food & Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422, 426-27 (8th Cir.1988) (requiring in a declaratory judgment action that the plaintiff show, inter alia, they have suffered some injury likely redressable by a favorable outcome). As above, most of the ordinances Dolls wishes the Court to declare unconstitutional are simply not applicable to the type of property Grell owns. And invalidating the one that has been applied (section 165.32(6)(A)) would not put Dolls back in business because Grell must still comply with the City’s conditional use permit requirements. Just as before, speculating whether Grell will apply for such a permit is something the Court cannot do.

Dolls lacks standing to seek declaratory relief on its as-applied claims.

c. Conclusion.

Dolls lacks standing to challenge many of the ordinances listed in its Complaint on an as-applied basis because many of them have not been applied, and still others cannot be applied to the type of property Dolls’ owner presently owns. This reality makes it impossible for Dolls to have suffered some kind of harm resulting from those ordinances’ application. Even with respect to the ordinance that arguably has been applied, Dolls has not alleged facts showing that either declaratory or injunc-tive relief would redress the harm Dolls claims, it has suffered from that ordinance’s application.

2. Dolls’ Facial Claims (Excluding Counts 2, 3, and 12).

Dolls also seeks to have the conditional use and zoning ordinances applicable to adult-oriented businesses invalidated because they are facially unconstitutional. Most of Dolls’ facial claims can be discarded up front. The Supreme Court recently noted that facial challenges,

[n]ot only ... invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand. Accordingly, we have recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific reasons weighty enough to overcome our well-founded reticence.

Sabri v. United States, 541 U.S. 600, 609-10, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (citations omitted). Although the Court’s discussion centered on a challenge to a criminal statute, the Court noted more broadly that “facial challenges are best when infrequent,” because such an approach “carries too much promise of ‘premature interpretatio[n] of statutes’ on the basis of factually bare-bones records.” Id. at 608-09, 124 S.Ct. 1941 (quoting United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)) (alteration in the original). Here, Dolls has not pointed to authority allowing the Court to relax traditional standing rules with respect to nearly all of its non-First Amendment claims. For example, Dolls has not explained why it should be permitted to pursue a facial challenge on Equal Protection grounds without some evidence that the City could treat an adult entertainment club differently than a quarry. See Coral-ville, Iowa, Ordinances § 165.32(4)(B)-(C). Dolls has not claimed why it should be permitted to allege that the City’s adult-use regulatory scheme effects a taking on its face when it has alleged neither it, nor any other business, has been deprived of anything as a result of anything the City has done. And Dolls has not demonstrated why the Court should allow Dolls to strike Coralville’s ordinances wholesale because they are vague and indefinite without explaining which terms are vague or indefinite and who, if anyone, those terms could harm.

The bulk of the parties’ arguments are devoted to where Dolls’ facial claims intersect with purported violations of the First Amendment. In that restricted arena, facial challenges permit plaintiffs to challenge laws “not because their own rights ... are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, this relaxed version of traditional jus tertii rules only lowers the bar with respect to the prudential limitations on standing, not the constitutional limitations. That is, a plaintiff must still meet each Article III standing requirement. See Newdow, 542 U.S. at 15 n. 7, 124 S.Ct. 2301 (classifying the general bar on litigating the rights of third parties not before the court as a “prudential limitation”) (citing Duke Poiver Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59-80, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978)); City of Chicago v. Morales, 527 U.S. 41, 55 n. 22, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (Stevens, Souter, & Ginsburg, JJ.) (“[T]he threshold for facial challenges is a species of third party ... standing, which we have recognized as a prudential doctrine, and not one mandated by Article III of the Constitution.” (citing Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984))); Whitmore v. Arkansas, 495 U.S. 149, 161 n. 2, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (finding, in dicta, unnecessary to decide whether “to relax the general prudential rule that a litigant ‘must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties’ ”) (quoting Warth, 422 U.S. at 499, 95 S.Ct. 2197) (emphasis added); Mosby, 418 F.3d at 933-34 (requiring a claimant to demonstrate Article III standing on facial claims). Therefore, to challenge the City’s ordinances facially, Dolls must demonstrate a harm fairly traceable to conduct (or anticipated conduct) by the City. See Osediacz v. City of Cranston, 414 F.3d 136, 141 (1st Cir.2005) (requiring a plaintiff mounting a facial attack on a collection of city policies to “demonstrate that she satisfies the constitutional minima essential to establish standing,” including, most pertinently, an injury in fact).

Unlike Dolls’ as-applied challenges, it is not necessary for an ordinance to be applied before an injury in fact can be alleged when alleging a First Amendment violation. Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). However, if a statute has not been applied, one of two types of injuries must be alleged. First, the plaintiff must have “ ‘alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by [the] statute, and there [must] exist[] a credible threat of prosecution.’ ” Ramirez v. Sanchez Ramos, 438 F.3d 92, 98 (1st Cir.2006) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). Alternatively, a plaintiff must be “chilled from exercising [its] right to free expression or forego[] expression in order to avoid enforcement consequences.” Id. (quotation marks omitted). In either situation, there must exist an actual threat that the challenged ordinances would be applied if the plaintiff exercised its right to free expression.

A recent First Circuit opinion provides an excellent illustration. In Osediacz v. City of Cranston, the plaintiff sued a city and a number of its officials for policies allowing private entities to erect holiday and other seasonal displays on public land subject to approval of the mayor. Ose-diacz, 414 F.3d at 137. The plaintiff argued, among other things, that the policies constituted a violation of the First Amendment’s free speech guarantee, and that the policies were facially unconstitutional. Id. at 138. The plaintiff “did not aver ... that she herself harbored any interest in erecting a display.” Id.

The First Circuit held that the plaintiff lacked standing to mount a facial challenge to the policies. Id. at 143. Although the plaintiff did not have to “show that the mayor actually denied her permission to erect a display,” or that she had ever made such a request, she needed to present “evidence sufficient to indicate an objectively reasonable possibility that she would be subject to the allegedly unconstitutional mayoral approval requirement” to give her standing to bring a facial claim. Id. Because the plaintiff did not allege she was deterred from proposing a display as a result of the policy or that it was reasonable to foresee the policy being enforced against her, she lacked standing. See id. at 142-43.

A like situation exists here. Unless and until Dolls owns a parcel of 1-3 land, the conditional use permit procedures cannot be applied to any land Dolls owns. Dolls is therefore not threatened by their existence. Although Grell avers he wishes to reopen Dolls if it succeeds in this litigation, he has not submitted that he intends to apply for a conditional use permit. Dolls therefore cannot claim to be within the class of persons or businesses chilled by those procedures, if, in fact, such deterrence has in the past occurred or will occur in the future. See id. at 142 (“ ‘Allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.’ ” (quoting Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972))).

The foregoing demonstrates why Dolls lacks Article III standing to bring most of its facial challenges premised on alleged First Amendment violations. Two claims in particular, however, require more detailed discussion.

3. Dolls’ Prior Restraint Claim (Count 2).

This analysis first focuses on Dolls’ claim that the City’s licensing scheme, on its face, is an unconstitutional prior restraint. Dolls argues it is unnecessary for it to apply for or be denied a conditional use permit before it has standing to challenge ordinances requiring such a license on a facial basis as an unconstitutional prior restraint.

In classic form, prior restraint occurs where the government requires some type of permit or license in order for speech to occur. Requiring permission from a city manager before being permitted to distribute literature, see Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938), requiring a permit before being permitted to use sound amplification devices, see Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948), and requiring a permit before being allowed to hold a parade or demonstration, see Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), all constitute prior restraints. The Supreme Court has recognized “that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive a