1

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

2

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

3

4

5

Pre-empting such lawsuits

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

6

Seven questions to ask about your current sign code

7

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

8

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

9

Will only one sign pass muster?

10

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.”

11

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

12

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

13

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

14

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

15

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

16

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

17

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.”

18

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

19

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

20

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

21

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

22

Related questions

23

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?

24

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

25

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

26

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

27

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

28

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)

29

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.

30

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

31

Professor Emeritus Charles Floyd

AICP (retired)P.O. Box 448Cleveland, NC 27013chasfloyd@earthlink.net(704) 278-3620

32

John M. Baker

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