12/17/2014 Overview Legal Issues in Sign Unique Considerations - - PDF document

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Legal Issues in Sign Regulation

James B. Carpentier AICP Legal Issues Workshop Portland, Oregon December 5, 2014

Overview

• Unique Considerations – More than advertising
• Constitutional Issues
• “Time, Place and Manner”
• Judicial Review: Rational Basis, “Scrutiny”
• Prior Restraint
• Due Process
• Takings
• Equal Protection
• Key Legislation
• Trademark protection
• Highway Beautification Act
• Statutory Law

Legal Issues in Sign Regulation Present Unique Considerations

• Statement of Purpose
• Signs contain protected speech (political, religious,

commercial)

• Moratoria and Interim Ordinances
• Temporary Signs: Real Estate, Political, Handheld,

Banners, Balloons,etc

• State DOT rules
• Digital Signs
• Permit Fees
• Special uses: vehicles, CUP, street furniture, etc

Legal Issues in Sign Regulation Present Unique Issues City Council City Attorney Stakeholders (community/business)

Overarching Principle

Advertising one’s business is a property right.

• Science-based reasonable, time, place,manner
• 1. Narrowly tailored (not burden more speech

than necessary to achieve the gov’t purpose)

• 2. Significant government purpose
• 3. Ample alternative avenues of communication
• 4. Restriction justified w/o reference to content

First Amendment Issues

Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976)

• U.S. Supreme Court declared that “commercial

speech, like other varieties, is protected.”

• This exposed sign regulations to a host of new

potential challenges. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commission of New York (1980)

• Commercial speech is protected by First

Amendment but to a lesser degree than other constitutionally guaranteed expression.

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First Amendment Issues

“Central Hudson Test”

• Four-part test for courts to analyze

regulations on commercial speech

1) Does the speech at issue concern lawful activity and is it not misleading? 2) Is the asserted government interest “substantial”? 3) Does the regulation directly advance the governmental interest asserted? 4) Is it not more extensive than is necessary to serve that interest?

Tests for Constitutionality of Regulation First Amendment Issues

Metromedia, Inc. v. City of San Diego (1981)

• Very confusing case; multiple concurring
• pinions with often conflicting language
• Three Key Principles widely established

1.Objectives (specifically safety and aesthetics) are “substantial governmental goals” sufficient for regulating speech. 2.“Time, place and manner” restrictions on speech are allowed, if not content-based 3.Commercial speech may not be permitted where non- commercial speech is prohibited

Oregon and the First Amendment

• G.K. Ltd. Travel v City of Lake Oswego

upheld content neutrality, pole sign restriction and amortization

• Outdoor Media Dimensions, Inc. v. Dept.
• f Transp, 340 Or. 275, 132 P.3d 5 (2006)
• n-premise and off-premise distinction ok

under first amendment, violates Oregon Constitution

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Oregon Contd.

• Ackerley Communications, Inc. v.

Multnomah County Sign Code is a “land use regulation” if it implements a comprehensive plan provision

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Signs Usually Not Governed By “Rational Basis” Rules

• Well-written content-neutral sign regulations have

“Intermediate Scrutiny” under Central Hudson test

• These are usually upheld by courts
• Content-Based sign regulations are subject to

“Strict Scrutiny”

• Unlikely to survive a court challenge
• Especially if addressing non-commercial speech

(political, religious)

• Cannot favor one over the other in form or effect

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Crafting an Ordinance to Comply with Courts

• Statement of governmental
• bjectives

– Traffic safety and aesthetics:

• Definitely lawful purposes

– Other objectives not addressed by court: “promote commerce”

• Substitution Clause

– Allow noncommercial speech to occur anywhere that commercial speech is permitted

Avoid Prior Restraint

• A governmental regulation or restriction
• n speech before the speech is actually

expressed (“permission to speak”)

“When a government regulation requires an official approval as a pre-condition to ‘speaking’—for example, displaying a sign—courts are concerned that the approval requirement could be an unlawful ‘prior restraint’ on freedom of expression by prohibiting or unnecessarily delaying the communication.”

• Prof. Alan Weinstein

Avoid Prior Restraint

• 1. The ordinance could lack procedural safeguards,

which means that it does not set out a prompt timeframe for review of a permit application.

• 2. The ordinance could grant government officials

unbridled discretion in approving or denying the permit if the language of the ordinance does not provide sufficient direction for review of the permit application.

Example - Prior Restraint

Peru, Illinois City Council (May 5, 2014): No new commercial signs until August 4 or passage of new sign ordinance Avoid Vagueness

• A law which “impermissibly delegates basic

policy matters to administrators and judges to such a degree as to lead to arbitrary and discriminatory application.”

• Applicant has right to know criteria
• Leaving it up to DRB insufficient
• Careful, well-written definitions help

– “Sign,” “flag,” “holiday display”… “obscene,” “indecent,” “abandoned,” “disrepair”

Avoid Overbreadth

• Regulations can reasonably control

“time, place, and manner” of signs, but must provide for some form of speech and provide some alternatives to be heard

• Overbroad restrictions include:

– Total ban on residential yard signs – Limit on total number of political signs – Allowing only illegibly small real estate signs

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Due Process

• 14th Amendment: “Nor shall any State

deprive any person of life, liberty, or property without due process of law”

• Procedural Due Process

– Sufficient Notice, Prompt, Fair Hearing – Example: Vague Standards

• Substantive Due Process

– If Substance of Regulation Deprives a Fundamental Right – Example: “Unreasonable” Permit Fees

Takings

5th Amendment: “nor shall private property be taken for public use without just compensation” – Direct Taking (Eminent Domain) – Amortization – Regulatory Taking

• U.S. Supreme Court’s test (Lingle v Chevron

(2005))

1. Is there a physical invasion of property? 2. Denial of economically viable use of land (for owner) 3. Ad-hoc economic analysis finds either: (1) serious economic impact; (2) interference with distinct investment-backed expectations; (3) character of government action warrants compensation

Outdoor Advertising Act

• Act mandated states to maintain effective control
• f billboards/outdoor advertising along its

Interstate and federally aided primary highways.

• Highway Beautification Act
• Generally applies to off-premises signs
• May apply to some on-premises signs within 660

feet of highways

• Especially if a sign also advertises

product/service not offered on property

• Landscaped highways
• Redevelopment Project Signage

Other: Lanham Act

• Protects federally registered names,

marks, emblems, slogans, colors, etc.

• Prohibits the government from requiring

the alteration of a trademark

Supreme Court of the United States

PASTOR CLYDE REED AND GOOD NEWS COMMUNITY CHURCH, Petitioners, v. TOWN OF GILBERT, ARIZONA AND ADAM ADAMS, IN HIS OFFICIAL CAPACITY AS CODE COMPLIANCE MANAGER, Respondents

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Recommendations

• Consult with your attorney early on in

process of drafting regulations

• Do not copy language from other cities;

may be borrowing unconstitutional rules

• As always, main consideration is

tolerance of risk from legal exposure

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Any Questions?

James Carpentier AICP James.carpentier@signs.org 480-773-3756 www.signs.org