protecting your sign code against attack (s634)
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Protecting Your Sign Code Against Attack (S634)
APA 2007 National Planning ConferenceProfessor Daniel Mandelker, FAICP
Washington University, St. Louis
Professor Emeritus Charles Floyd, AICPUniversity of Georgia, Athens
Adjunct Professor John M. BakerGreene 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 (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
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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? (cont’d) Ordinarily, preserving discretion is a
good thing You can’t 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? (cont’d) 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 you’re 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? (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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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? (cont’d)
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? (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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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.
That’s 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 don’t
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 plaintiff’s 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? (cont’d)
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 LawWashington University School of LawOne Brookings DriveCampus Box 1120St. Louis, MO 63130 mandelker@wulaw.wustl.edu(314) 968-7233
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Professor Emeritus Charles Floyd
AICP (retired)P.O. Box 448Cleveland, NC 27013chasfloyd@earthlink.net(704) 278-3620
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John M. Baker
Greene Espel P.L.L.P.200 S. Sixth Street, Suite 1200Minneapolis, MN 55402JBaker@greeneespel.com(612) 373-8344
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