1. 1 Sign Codes that Stand Up in Court APA 2011 National Planning Conference April 12, 2011 Boston, MA Professor Daniel Mandelker, FAICP Washington University, St. Louis Adjunct Professor John M. Baker Greene Espel P.L.L.P., Minneapolis and William Mitchell College of Law, St. Paul

2. Overview  Why regulating expressive conduct is different  Code provisions that - Prevent litigation Attract litigation 2

3. 3 The refresher course  Ordinarily, preserving discretion is a good thing in a zoning ordinance You can’t foresee everything Rigid rights to build can have unforeseen consequences

4. 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 leaders 4

5. 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

6. 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. 7 The value of planning ahead of the lawsuit  The most effective strategy: fix flaws in your sign code before plaintiffs’ signs or their applications arrive

8. Preventing litigation No sign code should be without these 8

9. 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. 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. 11 Will only one sign pass muster?

12. 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. 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

14. 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

15. 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

16. 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. 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. 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. 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. 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

21. Attracting litigation Provisions to remove from your sign code 21

22. 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. 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. 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. 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. 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. 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

28. Sign Code provisions that can help cities win suits Case studies 28

29. 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

30. 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

31. 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

32. 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

33. 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 http://www.hopkinsmn.com/archives/ pdf/code/section570-signs.pdf 33

34. 34 Related questions

35. 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. 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. 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.

38. Other resources  For links to this and earlier presentations at the APA planning conference, go to law.wustl.edu/landuselaw 38

39. 39 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@wulaw.wustl.edu (314) 968-7233

40. 40 John M. Baker Greene Espel P.L.L.P. 200 S. Sixth Street, Suite 1200 Minneapolis, MN 55402 JBaker@greeneespel.com (612) 373-8344