Protecting Your Sign Code Against Attack (S634)

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Protecting Your Sign Code Against Attack (S634)

• APA 2007 National Planning Conference
• Professor Daniel Mandelker, FAICP
• Washington University, St. Louis
• Professor Emeritus Charles Floyd, AICP
• University of Georgia, Athens
• Adjunct Professor John M. Baker
• Greene Espel P.L.L.P., Minneapolis and
• William Mitchell College of Law, St. Paul

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Recent trends

• Billboard permit lawsuits designed to take down
  entire sign codes
• The plaintiff-sign companies objectives
• Erecting many large, profitable billboards
• through court orders, or
• through settlements extracted to end litigation
• -- where none are currently allowed.
• More surgical attacks on certain types of sign
  regulations

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Pre-empting such lawsuits

• The most effective strategy fix flaws in your
  sign code before plaintiffs signs or their
  applications arrive

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Seven questions to ask about your current sign
code

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1. Does the code have 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. Does your code include a message
substitution clause?

• The problem
• You must be sure that sign code regulations will
  never give commercial speech a kind 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. Does it 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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3. Does it properly distinguish between on-site
and off-site signs?

• Off-site and on-site signs can be treated
  differently (contd)
• 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

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4. Are its procedural safeguards sufficient?

• 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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4. Are its procedural safeguards sufficient?
(contd)

• Ordinarily, preserving discretion is a good thing
• You cant foresee everything
• Rigid rights to build can have unforeseen
  consequences
• 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

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4. Are its procedural safeguards sufficient?
(contd)

• How quickly must you act on an application or an
  appeal?
• Are there self-imposed, formal time limits (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?
• These may be needed unless youre sure that no
  judge will consider your ordinance content-based

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5. Does the code have 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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5. Does the code have a broad severability
clause? (contd)

• 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 . . .
• Its unconditional
• . . . such invalidity shall not affect the
  validity or enforceability of the remaining
  portions.

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6. Does it properly address political (temporary
election) signs?

• Political and election signs carry noncommercial
  speech and receive more protection under the Free
  Speech clause
• Sign ordinances must be content-neutral
• It is impossible to define a political sign
  without violating this rule

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6. Does it properly address political (temporary
election) signs? (contd)

• There must be a compelling interest to regulate
  the content of noncommercial speech this is
  hardly ever found
• If an ordinance treats political signs more
  restrictively it will be struck down
• The temporary sign provision should allow
  political and election signs and drafted in an
  even-handed way

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7. Does it properly address message signs?

• Message sign provisions are content-based and
  will be struck down
• This is the holding in Metromedia and many
  circuits
• Examples For sale and for rent signs,
  directional signs, construction signs,
  time-and-temperature signs, grand opening signs,
  restrictions on flags

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7. Does it properly address message signs?
(contd)

• 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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Related questions

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When can an applicant ask a court to invalidate
an entire sign code?

• Plaintiffs strategy assumes any part of a sign
  code is fair game for attack by a disappointed
  applicant, including rules of law that did not
  apply to what the plaintiff
• actually did,
• requested to do, or
• showed any interest in doing.
• Thats a question of standing does the denial
  of a permit give the applicant standing to attack
  the whole sign code?

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Conflicting views of standing

• Some Plaintiffs view
• Most standing requirements dont apply to us when
  we allege that some rules are overbroad in
  violation of the First Amendment
• Billboard companies deserve standing to attack
  limits on window signs, front yard signs, and
  flags

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Conflicting views of standing

• In 2006, 3 U.S. Courts of Appeals ruled
• The challenged action of the defendant must have
  caused the plaintiffs injury, even where
  overbreadth is alleged.
• Rules that did not affect the plaintiff are
  beyond attack by that plaintiff (although not by
  others)
• When a permit application is denied for
  constitutional reasons, that denial causes no
  injury worthy of redress

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Is a total ban on billboards legal?

• In theory
• Federal law prohibits billboards within 660 ft.
  of the edge of federal highway right-of-way
• With local approval as a customary use,
  billboards are allowed in bona fide industrial
  and commercial zones
• States administer the federal law and can usually
  adopt stricter standards

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Is a total ban on billboards legal? (contd)

• Four states prohibit billboards entirely
• Many nonconforming billboards still remain and
  amortization is prohibited
• State law may allow prohibition, but a total
  prohibition can raise questions under free speech
  law

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Photography credits (and locations)

• The photographs in this presentation are used
  with permission of the following sources
• Slide 3 Bill Brinton (Florida)
• Slide 4 (simulation) Bill Brinton (Florida)
• Slide 8 John M. Baker (Eden Prairie, Minnesota)
• Slide 9 (left) David Alkire Smith (Monroe,
  Michigan)
• Slide 9 (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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Professor Daniel Mandelker

• Howard A. Stamper Professor of Law
• Washington University School of Law
• One Brookings Drive
• Campus Box 1120
• St. Louis, MO 63130
• mandelker_at_wulaw.wustl.edu
• [phone]

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Professor Emeritus Charles Floyd

• AICP (retired)
• P.O. Box 448
• Cleveland, NC 27013
• chasfloyd_at_earthlink.net
• [phone]

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John M. Baker

• Greene Espel P.L.L.P.
• 200 S. Sixth Street, Suite 1200
• Minneapolis, MN 55402
• JBaker_at_greeneespel.com
• [phone]