ZONING – SPECIFIC ZONING – SPECIFIC APPLICATIONSAPPLICATIONS

Aesthetic and Signs & Some ArtAesthetic and Signs & Some Art

Communication as Communication as EducationEducation

A Stroll Through the A Stroll Through the TownTown

Regulation and BeautyRegulation and Beauty

Reasons For Aesthetic Reasons For Aesthetic RegulationRegulation Theories of RegulationTheories of Regulation

– Aesthetic HarmsAesthetic Harms– Environmental BenefitEnvironmental Benefit– Economic Harms (property values)Economic Harms (property values)– Safety – impairment of drivingSafety – impairment of driving– Historicity and Historic PreservationHistoricity and Historic Preservation

Aesthetic Harms?Aesthetic Harms?

Freedom to Choose, Or Freedom to Choose, Or Bound to Lose?Bound to Lose?

Economic Harms?Economic Harms?

And the Art ArgumentAnd the Art Argument

Berman v ParkerBerman v Parker

Prior to Berman v Parker beauty and aesthetics was Prior to Berman v Parker beauty and aesthetics was not considered a valid exercise of the police power in not considered a valid exercise of the police power in most statesmost states

Beauty, it was said, lies in the eyes of the beholder Beauty, it was said, lies in the eyes of the beholder and is not an objective standard equal to health, and is not an objective standard equal to health, safety and welfaresafety and welfare

The one exception to this rule is that historic The one exception to this rule is that historic preservation and design had long been accorded preservation and design had long been accorded some weight in land use decisionssome weight in land use decisions

The Washington D.C. The Washington D.C. SlumsSlums

Background to BermanBackground to Berman

The District of Columbia Redevelopment Act The District of Columbia Redevelopment Act allows the National Capital Planning allows the National Capital Planning Commission to prepare plans and designate Commission to prepare plans and designate land for redevelopmentland for redevelopment

The first redevelopment took place in The first redevelopment took place in Southwest Washington D.C. in Area BSouthwest Washington D.C. in Area B

65% of the dwellings were beyond repair65% of the dwellings were beyond repair 57% had no inside toilets57% had no inside toilets 82% had no wash basins82% had no wash basins 17% of the units were in satisfactory condition17% of the units were in satisfactory condition P.S. – 97% of the residents were African-AmericanP.S. – 97% of the residents were African-American

Berman’s ArgumentBerman’s Argument

Berman owned a department store building in the Berman owned a department store building in the redevelopment arearedevelopment area

It is commercial – not residentialIt is commercial – not residential The building is in satisfactory shape and since it is not The building is in satisfactory shape and since it is not

a “slum” it cannot be takena “slum” it cannot be taken To take property for the clearance of slums is one To take property for the clearance of slums is one

thing – but to take property just to build and more thing – but to take property just to build and more balanced, more attractive community is balanced, more attractive community is unconstitutionalunconstitutional

Supreme Court Supreme Court

Public safety, public health, quiet, land and order – these are Public safety, public health, quiet, land and order – these are some of the conspicuous examples of the traditional some of the conspicuous examples of the traditional application of the police power by governmentapplication of the police power by government

Yet, these examples merely illustrates the range of the Yet, these examples merely illustrates the range of the power police and do not delimit itpower police and do not delimit it

The concept of the public welfare is broad and inclusiveThe concept of the public welfare is broad and inclusive

DecisionDecision

It was important to redevelop the entire area – not to just to It was important to redevelop the entire area – not to just to pick slum buildingspick slum buildings

It was important to redesign the whole area so as to It was important to redesign the whole area so as to eliminate the conditions that cause slums – the over-eliminate the conditions that cause slums – the over-crowding of dwellings, the lack of parks, the lack of crowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational adequate streets and alleys, the absence of recreational areas, the lack of light and airareas, the lack of light and air

The values it represents are spiritual as well as physical, The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.balanced as well as carefully patrolled.

Today’s PicksToday’s Picks

City Nichols Hill v City Nichols Hill v Peggy RichardsonPeggy Richardson

BackgroundBackground Peggy Richardson was cited on March 22, 1992, for Peggy Richardson was cited on March 22, 1992, for

violating a City of Nichols Hills (City) ordinance by violating a City of Nichols Hills (City) ordinance by parking her pickup in the driveway of her Nichols Hills parking her pickup in the driveway of her Nichols Hills home between the hours of 2:00 and 5:00 a.mhome between the hours of 2:00 and 5:00 a.m

She was fined $100.00 and the judge suspended the She was fined $100.00 and the judge suspended the finefine

She asked for a variance from this ordinance on the She asked for a variance from this ordinance on the basis the the pickup was her only vehicle but was basis the the pickup was her only vehicle but was denieddenied

She challenged the ordinance in district court and the She challenged the ordinance in district court and the judge found the ordinance unconstitutional on its face judge found the ordinance unconstitutional on its face as arbitrary, capricious, and unreasonableas arbitrary, capricious, and unreasonable

FactsFacts

Her profession and livelihood as a horse Her profession and livelihood as a horse trainer necessitate her ownership and use trainer necessitate her ownership and use of a pickup and her economic of a pickup and her economic circumstances are such that she cannot circumstances are such that she cannot afford to purchase a separate 'town car' to afford to purchase a separate 'town car' to park in her driveway, just so she can park in her driveway, just so she can comply with the ordinance.comply with the ordinance.

Her pickup is used for both personal and Her pickup is used for both personal and business purposes; it is not tagged as a business purposes; it is not tagged as a commercial vehicle and displays no commercial vehicle and displays no commercial vehicle markings or signs. commercial vehicle markings or signs.

The OrdinanceThe Ordinance

It shall be unlawful to park any commercial vehicle, It shall be unlawful to park any commercial vehicle, recreational vehicle, trailer, taxi-cab or mobile home recreational vehicle, trailer, taxi-cab or mobile home or any vehicle of any kind except a private passenger or any vehicle of any kind except a private passenger vehicle on private property located within the U-1 use vehicle on private property located within the U-1 use district, between the hours of 2:00 a.m. and 5:00 district, between the hours of 2:00 a.m. and 5:00 a.m., unless such vehicle is parked on a permanently a.m., unless such vehicle is parked on a permanently hard surfaced area or driveway completely to the rear hard surfaced area or driveway completely to the rear of the front wall of the main building located on the of the front wall of the main building located on the property, and unless such vehicle shall be screened property, and unless such vehicle shall be screened from view from the main and any side street upon from view from the main and any side street upon which the property abuts. which the property abuts.

Appeals CourtAppeals Court

• The governmental power to interfere by zoning The governmental power to interfere by zoning regulations with the general rights of the land regulations with the general rights of the land owner by restricting the character of its use is not owner by restricting the character of its use is not unlimited and such restriction cannot be imposed unlimited and such restriction cannot be imposed if it does not bear a substantial relationship to if it does not bear a substantial relationship to the public health, safety, morals or general the public health, safety, morals or general welfare. welfare.

• Any vehicle that meets the definition of a "private Any vehicle that meets the definition of a "private passenger vehicle" - no matter how ugly, rusted passenger vehicle" - no matter how ugly, rusted or offensive, may be parked in this municipality or offensive, may be parked in this municipality between the hours of 2:00 a.m. and 5:00 a.m.between the hours of 2:00 a.m. and 5:00 a.m.

• However, not a single pickup - no matter how However, not a single pickup - no matter how new, expensive, or "pleasing to the eye", may be new, expensive, or "pleasing to the eye", may be parked in any driveway during these hoursparked in any driveway during these hours

DecisionDecision

During the hours from 2:00 a.m. to 5:00 During the hours from 2:00 a.m. to 5:00 a.m., persons that could be offended by a.m., persons that could be offended by the sight of a pickup, cannot see a pickup, the sight of a pickup, cannot see a pickup, or any other vehicle for that matter, as it is or any other vehicle for that matter, as it is normally dark during these hoursnormally dark during these hours

• However, these same people can see an However, these same people can see an operational rusted-out jalopy, classified as operational rusted-out jalopy, classified as a "private passenger vehicle", parked in a "private passenger vehicle", parked in any driveway during the daylight hours. any driveway during the daylight hours.

• We cannot distinguish how one vehicle We cannot distinguish how one vehicle could negatively affect property values and could negatively affect property values and the other could notthe other could not

The OutcomeThe Outcome

However, we find this ordinance, does not promote However, we find this ordinance, does not promote aesthetics as allegedaesthetics as alleged

This is not OK This is OK

Stoyanoff v Berkeley Stoyanoff v Berkeley

A suburban or Colonial, French Provincial or English Tudor Homes - Architectural Review Board – Ugly House?

Hint – This is not

English Tudor

This Really Is English This Really Is English TudorTudor

A Matter of Taste?A Matter of Taste?

Even Rednecks Have Even Rednecks Have TasteTaste

Or Just Plain Butt Or Just Plain Butt Ugly?Ugly?

The BackgroundThe Background

Ladue establishes an architectural review Ladue establishes an architectural review board for all structuresboard for all structures

Buildings must “conform to certain minimum architectural standards of appearance and conformity with surrounding structures, and that unsightly, grotesque and unsuitable structures, detrimental to the stability of value and the welfare of surrounding property, structures and residents, and to the general welfare and happiness of the community, be avoided, and that appropriate standards of beauty and conformity be fostered and encouraged."

Unusual Appearance?Unusual Appearance?

SituationSituation

Plaintiffs purchase a lot Plaintiffs purchase a lot in a neighborhood filled in a neighborhood filled with Tutor and French with Tutor and French Provincial design homesProvincial design homes

They seek to have an They seek to have an ultra modern house ultra modern house approvedapproved

Actually, This Is A Actually, This Is A Similar Model Of the Similar Model Of the HomeHome

Inside, Rear ViewInside, Rear View

FindingsFindings

The intrusion into this neighborhood of this unusual, grotesque and nonconforming structure would have a substantial adverse effect on market values of other homes in the immediate area.

Opposition Fires BackOpposition Fires Back

There exists no provision providing for an architectural board and no entity even remotely resembling such a board is mentioned under the enabling legislation in Missouri

Can’t deny a building permit just because it looks different

Court NotesCourt Notes

This residential suburb is composed primarily of high This residential suburb is composed primarily of high end Cottage, Tutor, Provincial, and traditional housingend Cottage, Tutor, Provincial, and traditional housing

The stabilizing of property values, and giving some assurance to the public that, if property is purchased in a residential district, its value as such will be preserved, is probably the most cogent reason back of this zoning ordinance

FindingFinding

The aesthetic factor to be taken into account by the Architectural Board is not to be considered alone.

Along with that inherent factor is the effect that the proposed residence would have upon the property values in the area

In this time of burgeoning urban areas, congested with people and structures, it is certainly in keeping with the ultimate ideal of general welfare that the Architectural Board, in its function, preserve and protect existing areas in which structures of a general conformity of architecture have been erected.

ConclusionConclusion

Architectural review does not vest standard less Architectural review does not vest standard less powers in a review boardpowers in a review board

General standards are sufficient for determining whether the proposed building would or would not promote the "health, safety, morals or general welfare of the community" or would or would not adversely affect "the character of the neighborhood, traffic conditions, public utility facilities and other matters pertaining to the general welfare

The – “What? No The – “What? No Trailers Case!”Trailers Case!”

Livingston Township Livingston Township v Marchev, N.J. 1964v Marchev, N.J. 1964

The Local SceneThe Local Scene

The Marchevs reside in a single family home in The Marchevs reside in a single family home in Livingston N.JLivingston N.J

They purchase a camping/travel trailer. It is about 7’ They purchase a camping/travel trailer. It is about 7’ long and 6’ wide When they were not using their long and 6’ wide When they were not using their trailer, they park it near their housetrailer, they park it near their house

The local ordinance - It shall be unlawful for any The local ordinance - It shall be unlawful for any person to park any trailer or camp car on any street in person to park any trailer or camp car on any street in the Township of Livingston or on any premises within the Township of Livingston or on any premises within the limits of the Township except for the purpose of the limits of the Township except for the purpose of repair or storage. Any such trailer or camp car repair or storage. Any such trailer or camp car undergoing repairs or being stored shall be kept undergoing repairs or being stored shall be kept within a building and shall not during such period of within a building and shall not during such period of repairs or storage be used by person as a dwelling or repairs or storage be used by person as a dwelling or sleeping place."sleeping place."

The Trailer In QuestionThe Trailer In Question

Claim and Counter Claim and Counter ClaimClaim The Marchevs maintain that the parking of a camp The Marchevs maintain that the parking of a camp

trailer adjacent to their home involved a permissible trailer adjacent to their home involved a permissible right incident to a family hobby or recreational activity right incident to a family hobby or recreational activity and therefore it was a valid accessory use. and therefore it was a valid accessory use.

The maintenance of a family home includes uses for The maintenance of a family home includes uses for private, educational, cultural and recreational private, educational, cultural and recreational activities. Also, that the pursuit of a hobby is activities. Also, that the pursuit of a hobby is customarily a part of recreational activity. customarily a part of recreational activity.

Court ConcludesCourt Concludes

The ordinance under review is aimed at preventing unsightly The ordinance under review is aimed at preventing unsightly appearances and diminution of property values which attend appearances and diminution of property values which attend the outdoor parking or open-air storage of trailers in a the outdoor parking or open-air storage of trailers in a residential area of the communityresidential area of the community

The reasonableness of the prohibitory enactment is The reasonableness of the prohibitory enactment is evidenced by the provision which permits the storing of evidenced by the provision which permits the storing of trailers "within a building." Defendants were not deprived of trailers "within a building." Defendants were not deprived of a right to own a trailer or to store it on their premises; they a right to own a trailer or to store it on their premises; they were only restricted from indulging in a use that would were only restricted from indulging in a use that would impinge upon the rights of other property ownersimpinge upon the rights of other property owners

The ordinance is constitutionalThe ordinance is constitutional

Figarsky v Historic Figarsky v Historic District Commission - District Commission - 19761976

BasicsBasics

The Figariski are owners of a house and lot located within the Norwich historic district

One hundred buildings and lots surrounding, or in close proximity to, the green.

LocationLocation

Figarsky owns a two-story building zoned for commercial uses and is located just inside the bounds of the district.

The property faces the green but is bounded on two sides by a Mickey Dees’ hamburger stand and parking lot.

The Rose of New England

Mickey DsMickey Ds

London

ControversyControversy

The building is in need of some repairs, which the Norwich building inspector has ordered the plaintiffs to undertake.

Rather than make the repairs, however, the plaintiffs would prefer to demolish the building.

The HearingThe Hearing

The defendant held a public hearing on the application on January 25, 1973. The hearing was attended by more than 100 persons, none of whom, except for the plaintiffs and their attorney, spoke in favor of granting the application.

On the following day, the commission voted unanimously to deny the plaintiffs' application.

Round TwoRound Two

Figarsky files in district courtFigarsky files in district court They maintain that the costs of the repairs necessary

for the building are prohibitive. The building inspector has ordered the plaintiffs to repair the foundation and replace a door sill and hall floor, and the health department has ordered the plaintiffs to tie in to a newly accessible public sewer.

The Figarskys offered the testimony of a local contractor to the effect that the cost of these repairs, together with the cost of reroofing the building, would amount to between $ 15,000 and $ 18,000. They lose the case.

On AppealOn Appeal

In their appeal, the plaintiffs allege that they will be forced to undergo economic hardship and loss as a result of not being permitted to demolish their building, and that the historic district commission, in denying their application for a certificate of appropriateness, acted illegally, arbitrarily and in abuse of its discretion.

The Key QuestionThe Key Question

Although the Figarskys recognize the right Although the Figarskys recognize the right and the power of the Historic Commission to and the power of the Historic Commission to regulate the building of new structures, or regulate the building of new structures, or renovate existing buildings, they do not have renovate existing buildings, they do not have the power to prevent the lawful removal of the power to prevent the lawful removal of an existing building in the district. an existing building in the district.

This is "vague aesthetic legislation," incapable of application in accordance with mandates of due process

Three Strikes – You’re Three Strikes – You’re OutOut The plaintiffs went no further than to present

evidence that their house was unoccupied and in need of extensive repairs. There was no evidence offered that the house, if repaired, would not be of some value, or that the proximity of the McDonald's hamburger stand rendered the property of practically no value as a part of the historic district.

What Can Be Done In A What Can Be Done In A Case Like ThisCase Like This Obtain certificate of necessity to show why Obtain certificate of necessity to show why

the building is of only marginal historic valuethe building is of only marginal historic value Demonstrate that the building is in a state of Demonstrate that the building is in a state of

structural decay that would prohibit a structural decay that would prohibit a profitable use if rehabilitatedprofitable use if rehabilitated

Yadda yadda yaddaYadda yadda yadda

But, Take Note – Some Historic But, Take Note – Some Historic Icons Are Highly ControversialIcons Are Highly Controversial

Metromedia v San Metromedia v San DiegoDiego A San Diego ordinance permits onsite commercial

advertising (a sign advertising goods or services available on the property where the sign is located), but forbids other commercial advertising and noncommercial advertising using fixed-structure signs,

Unless permitted by 1 of the ordinance's 12 specified exceptions, such as– temporary political campaign signs

Appellants, companies that were engaged in the outdoor advertising business in the city when the ordinance was passed, brought suit in state court to enjoin enforcement of the ordinance.

Through the CourtsThrough the Courts

Trail court holds the ordinance invalid as over Trail court holds the ordinance invalid as over inclusiveinclusive

Appeal Court affirmsAppeal Court affirms CA Supreme Course ReversesCA Supreme Course Reverses U.S. Supreme Court Takes the CaseU.S. Supreme Court Takes the Case

11stst Line of Reasoning Line of Reasoning

Insofar as it regulates commercial speech, the ordinance meets the constitutional requirements of Central Hudson

Improving traffic safety and the appearance of the city are substantial governmental goals.

The ordinance directly serves these goals and is no broader than necessary to accomplish such ends

HoweverHowever

However, the city's general ban on signs carrying non-commercial advertising is invalid under the First and Fourteenth Amendments. – The fact that the city may value commercial messages

relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying his own ideas or those of others.

Furthermore, because under the ordinance's specified exceptions some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, the city must allow billboards conveying other noncommercial messages throughout those zones. The ordinance cannot be characterized as a reasonable "time, place, and manner" restriction.

So – Its InvalidSo – Its Invalid

You cannot regulate the type of communication that you feel is more correct that others. Is the message of a church or a charity more important than the communication of others?

Long Hill Twsp. V Long Hill Twsp. V CalabriaCalabria

Controversy – Lights?Controversy – Lights?

In 1997 Calabrai & Gillette In 1997 Calabrai & Gillette Liquors & Diane’s Country Liquors & Diane’s Country Kitchen were charged with a Kitchen were charged with a violation of the sign control violation of the sign control section of the Township's zoning section of the Township's zoning ordinance.ordinance.

The ordinance required that all The ordinance required that all illuminated signs have an illuminated signs have an external light source. Direct external light source. Direct lighting of signs is prohibitedlighting of signs is prohibited

Who Had What?Who Had What?

Calabria II had two green neon "open" signs in script illuminated during business hours.

Diane's Country Kitchen had two neon "open" signs and three white neon signs stating "deli“ "catering" and "subs.“

Gillette Liquors had six neon signs advertising different beers and one neon "open" sign.

ExampleExample

ReasoningReasoning

Specifically, the issues are whether the restrictions– are justified without reference to content;– whether the restrictions serve a significant

government interest;– And whether the restrictions leave open ample

alternative channels for communication of the information.

The court found no intent or effect of the ordinance to regulate content and found that it was a legitimate

Remaining IssuesRemaining Issues

Does the regulation serve a significant governmental Does the regulation serve a significant governmental interest?interest?– Courts have acknowledged that advancement of a town's

aesthetic interests is a valid justification for regulation of commercial activity

– A town can act to regulate lighting, or to restrict size and number of signs or structures

– Such aesthetic judgments are necessarily subjective and must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose

– If there is no ulterior motive for the suppression of a certain form of speech, the court cannot reject a

legislative judgment.

Well Does It?Well Does It?

The record is devoid of evidence, facts or analysis why the mere existence of neon is offensive to the town’s goal of beautification

There is no evidence that there are unusual problems in the use of neon that cannot otherwise be regulated as other forms of lighting, specifically, – As to degree of illumination;– Amount of light used within a given space or size of

structure;– Direction of the light;– Times when the light may be used;– Or number of lights used on the interior of the store.

ConclusionConclusion

The Township failed to show that a municipal-wide ban on neon "serves a significant government interest."

The record is devoid of evidence that establishes that neon in and of itself - without other less restrictive methods to regulate its use, such as through size, degree of illumination or brightness, or number - improperly contributes to the unwanted "highway“ commercial look.

Georgia Manufactures Georgia Manufactures Assoc. v Spalding - Assoc. v Spalding - 19971997 Spalding County, Georgia (County), amended its Spalding County, Georgia (County), amended its

ZoningZoning Ordinance to require that manufactured Ordinance to require that manufactured homes be built with a 4:12 roof pitch to qualify for homes be built with a 4:12 roof pitch to qualify for placement in most residential districtsplacement in most residential districts

The district court struck down the 4:12 requirement, The district court struck down the 4:12 requirement, holding that the 4:12 requirement violates equal holding that the 4:12 requirement violates equal protection, substantive due process, and the dormant protection, substantive due process, and the dormant Commerce Clause and that the 4:12 requirement is Commerce Clause and that the 4:12 requirement is preempted by federal law. preempted by federal law.

ResultResult

District judge held a bench trial to determine District judge held a bench trial to determine damagesdamages

The district court awarded $28,580 in The district court awarded $28,580 in damages pursuant to 42 U.S.C. § 1983, and damages pursuant to 42 U.S.C. § 1983, and awarded $236,715.60 in attorneys' fees and awarded $236,715.60 in attorneys' fees and $17,878.99 in expenses pursuant to 42 $17,878.99 in expenses pursuant to 42 U.S.C. § 1988U.S.C. § 1988

After the district court issued its order, the After the district court issued its order, the County filed this appealCounty filed this appeal

Appeals CourtAppeals Court

Applies the rational basis test to the requirementApplies the rational basis test to the requirement– Determine if there is a legitimate government

purpose-a goal-which the enacting government body could have been pursuing. The actual motivations of the enacting governmental body are entirely irrelevant....

– The next inquiry is concerned with the existence of a conceivably rational basis, not whether that basis was actually considered by the legislative body. As long as reasons for the legislative classification may have been considered to be true, and the relationship between the classification and the goal is not so attenuated as to render the distinction arbitrary or irrational, the legislation survives rational-basis scrutiny

And. …And. …

County could have been pursuing the goal of County could have been pursuing the goal of "aesthetic compatibility," seeking to reduce friction "aesthetic compatibility," seeking to reduce friction between the appearance of site-built homes and between the appearance of site-built homes and manufactured homes by requiring manufactured manufactured homes by requiring manufactured homes to conform with standard characteristics of homes to conform with standard characteristics of site-built homes, such as roof pitch and foundation site-built homes, such as roof pitch and foundation

But – HUD Pre-EmptionBut – HUD Pre-Emption

Is this not preempted by the National Is this not preempted by the National Manufactured Housing Construction and Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. §§ Safety Standards Act of 1974, 42 U.S.C. §§ 5401-5426(Act), because the 4:12 5401-5426(Act), because the 4:12 requirement "interferes with the Act's requirement "interferes with the Act's construction and safety requirements and construction and safety requirements and cannot be enforced without impairing the cannot be enforced without impairing the Federal government's superintendence of the Federal government's superintendence of the manufactured home industry manufactured home industry

No – It Is NotNo – It Is Not

The language of the statute clearly precludes states The language of the statute clearly precludes states and municipalities from imposing and municipalities from imposing construction and construction and safetysafety standards upon mobile homes that differ in any standards upon mobile homes that differ in any respect from those developed by HUD. respect from those developed by HUD.

A roof pitch is not a construction or safety standard – A roof pitch is not a construction or safety standard – it is an aesthetic considerationit is an aesthetic consideration

Benefit of Signs and Benefit of Signs and Advertising DevicesAdvertising Devices Information and Public CommunicationInformation and Public Communication

BenefitsBenefits

Diversity and EnjoymentDiversity and Enjoyment Economic ActivityEconomic Activity Public ServicePublic Service

BenefitsBenefits

First Amendment FreedomsFirst Amendment Freedoms

Union City v Justice Union City v Justice Outdoor DisplaysOutdoor Displays Justice Outdoor Displays rents numerous tracts of land Justice Outdoor Displays rents numerous tracts of land

and erects billboardsand erects billboards Two of the billboards exceed the allowed 70’ height by Two of the billboards exceed the allowed 70’ height by

14’14’ Justice applies for a variance but is deniedJustice applies for a variance but is denied Justice brings suit against the city appealing the denial Justice brings suit against the city appealing the denial

of the variance and alleging that certain parts of the of the variance and alleging that certain parts of the sign control ordinance are unconstitutionalsign control ordinance are unconstitutional

First Court TrialFirst Court Trial

The trial court upholds the city’s denial of the The trial court upholds the city’s denial of the variance but rules that certain parts of the variance but rules that certain parts of the ordinance are unconstitutionalordinance are unconstitutional– The ordinances favors some signs based on the The ordinances favors some signs based on the

content of their messagescontent of their messages– The ordinance limits the use of political signs to The ordinance limits the use of political signs to

certain zoning districts for a limited period of timecertain zoning districts for a limited period of time– The ordinance discriminates in favor of signs for The ordinance discriminates in favor of signs for

schools, libraries, and other quasi-governmental schools, libraries, and other quasi-governmental agenciesagencies

Message of the SignMessage of the Sign

Appeals Court ReviewAppeals Court Review

This is the major concern with the ordinance:This is the major concern with the ordinance:– All signs are classified as either on-site, off-site, or All signs are classified as either on-site, off-site, or

temporarytemporary– If the sign is on-site, it must contain a commercial If the sign is on-site, it must contain a commercial

message – non-commercial messages are not message – non-commercial messages are not allowedallowed

– In other words, the ordinance limits on-premise In other words, the ordinance limits on-premise signs to messages advertising a product, person, signs to messages advertising a product, person, service, place, activity, event, or idea directly service, place, activity, event, or idea directly connected with the property, it effectively bans connected with the property, it effectively bans signs bearing noncommercial messages in zoning signs bearing noncommercial messages in zoning districts where a sign of the same size and districts where a sign of the same size and structure may display commercial advertisements.structure may display commercial advertisements.

ExamplesExamples

This is an On-Site sign

This is an Off-Site Sign

ExamplesExamples

This on-site sign complies with the ordinance

This sign does has no commercial message and does not comply

Can’t Have These Can’t Have These EitherEither

Now Residential SignsNow Residential Signs

That portion of the ordinance that restricts That portion of the ordinance that restricts residential signs toresidential signs to– Temporary political signsTemporary political signs– For sale signsFor sale signs– Special events signsSpecial events signs

Is not constitutional because there is no way Is not constitutional because there is no way for people to express opinions and people for people to express opinions and people are left with no meaningful alternative are left with no meaningful alternative avenue of expressionavenue of expression

Expression Is The Expression Is The HeartHeart

Of The 1Of The 1stst Amendment Amendment

But What About Justice But What About Justice Outdoor?Outdoor? The prohibition against off-site billboards The prohibition against off-site billboards

greater than 70 feet in height is a time, greater than 70 feet in height is a time, manner, place restrictionmanner, place restriction

These types of restrictions do not These types of restrictions do not discriminate based upon the content of the discriminate based upon the content of the message and thus are reasonable unless the message and thus are reasonable unless the complaining party can show, by a complaining party can show, by a preponderance of evidence, that they are preponderance of evidence, that they are arbitrary and capricious arbitrary and capricious

Globe Newspapers v Globe Newspapers v Beacon Hill Arch. Dist.Beacon Hill Arch. Dist. Beacon Hill guidelines regulate exterior architectural

features such as masonry, roofs, windows, sash and shutters, doors, trim, paint, and ironwork. One of the guidelines states that “freestanding signs are not permitted." In the District, the Newspapers distribute their publications via home delivery, mail, store sales, street vendors, and "newsracks.“

Beacon Hill Architectural Commission enacted a regulation, the Street Furniture Guideline, which effectively bans newspaper distribution boxes from the public streets of the Historic Beacon Hill District in Boston

Globe Newspapers v Globe Newspapers v Beacon Hill Arch. Dist.Beacon Hill Arch. Dist.

Beacon Hill is a 19th-century downtown Boston Beacon Hill is a 19th-century downtown Boston residential neighborhood situated directly north of the residential neighborhood situated directly north of the Boston Common and the Boston Public Garden. Most Boston Common and the Boston Public Garden. Most people think of city living as anonymous and isolating. people think of city living as anonymous and isolating. But this cozy enclave, filled with nearly 10,000 people, But this cozy enclave, filled with nearly 10,000 people, is more like a village than an anonymous city. is more like a village than an anonymous city.

It Is a Historic Gem It Is a Historic Gem Centered Around the Centered Around the Boston CommonBoston Common

This Is The Pike’s Place This Is The Pike’s Place Fish Market And The Fish Market And The Public GardensPublic Gardens

And These Are The And These Are The NewsracksNewsracks

District Court RulingDistrict Court Ruling

After the bench ruling in the trial case, but before judgment had entered, the Commission adopted a new guideline -- the present Street Furniture Guideline -- that bans all "street furniture," not just newsracks, from the District

Several publishers content that the ban is a form of censorship – because publications that rely on newsracks are at a disadvantage

Court rules against the regulations

ClaimsClaims

The publishers argue that there is disparate The publishers argue that there is disparate treatment because governmental street treatment because governmental street furniture is exempt and so are all the furniture is exempt and so are all the features of the storefrontsfeatures of the storefronts

ConclusionConclusion

As we see it, the Newspapers' complaint boils down to the potential reader passing through the District or the non-subscribing resident and, as we discuss later, ample alternative channels exist for the Newspapers to reach even these accidental transients passing through the District as well as those readers with more frequent ties to the District

Review of PointsReview of Points

Regulation must be content neutral

Aesthetics – A Significant Governmental Interest

Narrowly Tailored – Limits Speech No More Than Necessary

Does it Leave Ample Alternative Channels