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Sign Codes that Stand Up in Court
APA 2011 National Planning ConferenceApril 12, 2011 Boston, MAProfessor Daniel Mandelker, FAICP
Washington University, St. Louis
Adjunct Professor John M. BakerGreene Espel P.L.L.P., Minneapolis and William Mitchell College of Law, St. Paul
Overview
Why regulating expressive conduct is different
Code provisions that - Prevent litigation Attract litigation
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The refresher courseOrdinarily, preserving
discretion is a good thing in a zoning ordinance You can’t foresee everything Rigid rights to build can have
unforeseen consequences
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
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 self-
expression, 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
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
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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 on-site 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 on-site signs
Signs on residential property require special treatment
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 content-based: For sale and for rent signs, directional signs, construction signs, time-and-temperature 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 content-neutral provisions for temporary signs The temporary sign provision should
allow political and election signs, and be drafted in an even-handed way
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 33
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Related questions
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.
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 LawWashington University School of LawOne Brookings DriveCampus Box 1120St. 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 1200Minneapolis, MN [email protected](612) 373-8344
