1

Sign Codes that Stand Up in CourtAPA 2011 National Planning ConferenceApril 12, 2011 Boston, MAProfessor Daniel Mandelker, FAICP

Washington University, St. LouisAdjunct Professor John M. Baker

Greene 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

2

3

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 leaders4

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.

5

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”

6

7

The value of planning ahead of the lawsuitThe 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

8

9

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

10

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

11

Will only one sign pass muster?

12

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.”

13

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

14

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

16

17

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

18

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.”

19

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

20

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

21

22

“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

23

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

24

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

25

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

26

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

27

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

28

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 ,

29

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.

30

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.

31

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.

32

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

34

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

35

36

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)

37

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

38

39

Professor Daniel MandelkerHoward A. Stamper Professor of LawWashington University School of LawOne Brookings DriveCampus Box 1120St. Louis, MO 63130 mandelker@wulaw.wustl.edu(314) 968-7233

40

John M. BakerGreene Espel P.L.L.P.200 S. Sixth Street, Suite 1200Minneapolis, MN 55402JBaker@greeneespel.com(612) 373-8344