Transcript Protecting Your Sign Code Against Attack (S634)

Sign Codes that Stand Up in
Court
APA 2011 National Planning Conference
April 12, 2011 Boston, MA
Professor Daniel Mandelker, FAICP
Washington University, St. Louis
Adjunct Professor John M. Baker
Greene Espel P.L.L.P., Minneapolis and
William Mitchell College of Law, St. Paul
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Overview
 Why regulating expressive conduct is
different
 Code provisions that  Prevent litigation
 Attract litigation
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The refresher course
 Ordinarily, preserving
discretion is a good thing in a
zoning ordinance
 You can’t foresee everything
 Rigid rights to build can have
unforeseen consequences
3
Signs are more than just a
“use”
 For sign codes, preserving discretion can
create problems
 Because signs are expressive conduct,
courts distrust discretion
 Even if you never exercise discretion, an
ordinance that allows you to exercise it over
sign applications may be unconstitutional
 Courts will worry about the chilling effect of
overly broad laws, even if not enforced in
that way
 Courts often do not defer to local leaders
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For more on discretion in sign
codes
 “Decision Making in Sign Codes: How
to Comply with the First Amendment
and Avoid Litigation,” Zoning Practice,
November 2009.
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The need for content-neutrality
 A central value of First Amendment
law for several decades:
 Laws regulating expression and
expressive conduct should not
discriminate on the basis of content
 Judges often disagree about what
constitutes “content discrimination”
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The value of planning ahead of
the lawsuit
The most effective strategy:
fix flaws in your sign code
before plaintiffs’ signs or
their applications arrive
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Preventing litigation
No sign code should be without these
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1. An effective statement of
purpose and intent
 NOT just “to protect the health,
welfare, safety . . . .”
 A statement that
 tracks the objectives courts view as
legitimate,
 shows respect for citizens’ need for selfexpression, AND
 will assist your city to justify all
distinctions between legal and illegal
signs
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2. a “message substitution” clause
 The problem:
 You must be
sure that sign
code regulations
will not give
commercial
speech a kind or
degree of
protection
unavailable to
noncommercial
speech
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Will only one sign pass muster?
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The solution: add a “Message
Substitution Clause” to your code
 Whenever commercial speech would
be permitted, allow noncommercial
speech to be substituted
 Lakeville, MN Section 9-3-4: “Signs
containing noncommercial speech are
permitted anywhere that advertising
or business signs are permitted,
subject to the same regulations
applicable to such signs.”
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3. Time limits on your action
 Background
 Sign law is overshadowed by “parade
permit” caselaw
 The result: courts fear that a permitting
scheme will enable expressive conduct to
be suppressed through inaction
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Time limits (cont’d)
 A 2002 decision by the Supreme
Court suggests time limits are not
required for content-neutral sign
codes
 Thomas v. Chicago Park District, 534
U.S. 316 (2002)
 However, the risk that some future
judge will find your sign code
content-based is hard to completely
eliminate
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Time limits (cont’d)
 The solution:
 Self-imposed, formal time limits
(preferably in the ordinance itself) on the
ability of staff (or a board or council) to
refrain from acting on the application or
on an appeal
15
Time limits on action (cont’d)
 These may be needed unless you’re
sure that no judge will consider your
ordinance content-based
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4. A broad severability clause
 Its role: to tell a judge what should
survive if part of a sign code is
unconstitutional
 A broad clause is designed to
minimize the scope of invalidation
 Otherwise: a judge, not the council,
may decide if the ordinance still
works without the invalid terms
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A broad severability clause (cont’d)
 Features of a broad clause:
 It preserves as many words as possible:
 “If any part, section, subsection,
paragraph, subparagraph, sentence,
phrase, clause, term, or word are
declared invalid . . .
 It’s unconditional
 “. . . such invalidity shall not affect the
validity or enforceability of the remaining
portions.”
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3. Properly distinguish between onsite and off-site signs
 Off-site and on-site signs can be
treated differently
 Commercial off-site signs can be
prohibited
 Noncommercial off-site signs may
have to be allowed
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Off-site and on-site signs can be
treated differently (cont’d)
 Noncommercial messages must be
allowed on on-premise signs
 Reasonable height, size and spacing
requirements are permissible for onsite signs
 Signs on residential property require
special treatment
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Attracting litigation
Provisions to remove from your sign
code
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“Undue discretion”
 Have you reserved too much discretion?
 Sources of discretion that may raise
concerns:
 Provisions authorizing permit denial even
if the application satisfies all specific
requirements
 Look at aesthetic review provisions
 Provisions that treat signs as conditional
or special uses
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Content-based treatment of
message signs
 Examples of types of sign code exceptions that
at least one judge has viewed as contentbased: For sale and for rent signs, directional
signs, construction signs, time-andtemperature signs, grand opening signs,
restrictions on flags
 Content-based exceptions for message
signs can invalidate the prohibition itself
 This is the holding in Metromedia and
many circuits
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Content-based treatment of
message signs (cont’d)
 Wrong: A sign offering property for
sale or rent
 Right: A sign on property that is
offered for sale or rent
 The definition of “flag” must allow all
flags
 The definition of “sign” must not
specify any content
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Special treatment of political
(temporary election) signs
 Political and election signs carry
noncommercial speech and receive
more protection under the Free
Speech clause
 It is impossible to define a political sign
without violating the rule against content
discrimination
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Special treatment of political
(temporary election) signs
 There must be a “compelling interest”
to regulate the content of
noncommercial speech – this is
hardly ever found
 If an ordinance treats political signs (or
election signs) more restrictively than
commercial or other noncommercial
speech, it will be struck down
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Special treatment of political
(temporary election) signs
 They should be governed by contentneutral provisions for temporary signs
 The temporary sign provision should
allow political and election signs, and be
drafted in an even-handed way
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Sign Code provisions that
can help cities win suits
Case studies
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Melbourne, FL statement of
purpose
 The purpose of this Sign Ordinance is to
provide the minimum control of signs
necessary to promote the health, safety, and
general welfare of the citizens of Melbourne,
Florida,
 By lessening hazards to pedestrians and
vehicular traffic, by preserving property
values,
 by preventing unsightly and detrimental signs
that would detract from the aesthetic appeal
of the city and lead to economic decline and
blight ,
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Melbourne, FL statement of
purpose (cont’d)
 by preventing signs from reaching such
excessive size or numbers that they obscure
one another to the detriment of the city,
 by ensuring good and attractive design that
will strengthen the city’s appearance and
economic base, and
 by preserving the right of free speech and
expression in the display of signs.
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Collier County FL definition of a
temporary sign
 A sign bearing a message which is
displayed before, during and after an
event, to which the sign relates, and
which is scheduled to take place at a
specific time and place.
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How Hopkins, MN, satisfied a
strict content-neutrality judge
 “The content of the message or
speech displayed on the sign shall
not be reviewed or considered in
determining whether to approve or
deny a sign permit.” §570.07.
 No exemptions from the
regulations; only 2 exemptions
from permit requirement. §570.09.
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Hopkins, MN (cont’d)
 Exemption for signs 6 sq. ft. or less.
§570.09(b).
 Strong content-substitution clause.
§570.45.
 Strong severability clause severing
unconstitutional words from all other
words. §570.03.
 http://www.hopkinsmn.com/archives/
pdf/code/section570-signs.pdf
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Related questions
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When is it too late to fix the
sign code?
 Nonconforming use and vested rights
doctrines often leave communities
with room to fix problems on the fly
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Photography credits (and locations)
The photographs in this presentation are used
with permission of the following sources:
 Slide 10: John M. Baker (Eden Prairie,
Minnesota)
 Slide 11 (left): David Alkire Smith (Monroe,
Michigan)
 Slide 10 (right): John M. Baker (Eden Prairie,
Minnesota)
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 This presentation is a teaching tool that is
useful only in conjunction with the
accompanying remarks of the presenters.
 It does not constitute legal advice, but and
is no substitute for legal advice.
 It does not fully reflect the views of every
judge, or even of every presenter.
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Other resources
 For links to this and earlier
presentations at the APA planning
conference, go to
law.wustl.edu/landuselaw
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Professor Daniel Mandelker
Howard A. Stamper Professor of Law
Washington University School of Law
One Brookings Drive
Campus Box 1120
St. Louis, MO 63130
[email protected]
(314) 968-7233
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John M. Baker
Greene Espel P.L.L.P.
200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
[email protected]
(612) 373-8344
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