Protecting Your Sign Code Against Attack (S634)

1. Protecting Your Sign Code Against Attack (S634) APA 2007 National Planning Conference Professor Daniel Mandelker, FAICP Washington University, St. Louis Professor Emeritus Charles Floyd, AICP University of Georgia, Athens Adjunct Professor John M. Baker Greene 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

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 challengedaction 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 Law Washington University School of Law One Brookings Drive Campus Box 1120 St. Louis, MO 63130 mandelker@wulaw.wustl.edu (314) 968-7233

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

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