Legal Considerations in Sign Code Development

Main Article Content

Alan Weinstein

Abstract

Legal considerations have always played a critical role in the development of a sign code, but that role has taken on renewed importance in the wake of the U.S. Supreme Court's recent ruling in Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015).  A detailed analysis of Reed is obviously beyond the scope of this paper.[1] For our purposes, it is sufficient to note that the Reed Court announced a far more stringent test to determine whether a sign code's provisions are "content-neutral" or "content-based." In short, the Court ruled that any sign code provision that "on its face" considers the message on a sign to determine how it will be regulated is content-based.[2]  The practical effect of finding that a sign code provision is content-based is to heighten the judicial scrutiny of such a provision if challenged. A provision that is content-neutral is subjected only to intermediate judicial scrutiny: the provision will be upheld if government can demonstrate that the regulation serves a substantial governmental interest and is narrowly-tailored to achieve that interest. In contrast, a provision that is content-based is subjected to strict judicial scrutiny: the provision will be upheld only if government can demonstrate that the regulation serves a compelling governmental interest and is the least restrictive alternative to achieve that interest.[3]


A case exemplifying how much Reed has affected court review of sign regulations that contain content-based provisions, normally found in "exemptions" is Central Radio Co. Inc. v. City of Norfolk, Va.[4]  There, in a challenge first decided before Reed, the Fourth Circuit Court of Appeals had concluded that a sign regulation exempting flags, emblems and works of art was content-neutral and, applying intermediate scrutiny, held that the regulation was a constitutional exercise of the city's regulatory authority.[5]  But when the challenge was renewed after Reed, the Court of Appeals reversed its decision and agreed with the plaintiffs that, under Reed, the regulation was a content-based restriction that cannot withstand strict scrutiny.[6] Similarly, in Wagner v. City of Garfield Heights,[7] the Sixth Circuit had first reversed a district court ruling that the city's restrictions on political signs was content-based regulation that violated the first amendment under strict scrutiny. After granting certiorari, the Supreme Court vacated the Sixth Circuit's judgment and remanded for reconsideration under Reed. The Sixth Circuit on remand applied strict scrutiny and found that the ordinance was not narrowly tailored to achieve the city's asserted interests in aesthetics and traffic safety.


While the Supreme Court's Reed decision is still fairly new and the decision's complete impact remains to be seen, when developing sign codes lawyers, planners, and local government officials can take steps to minimize legal risk in the wake of the court's decision.  Even before Reed, most local sign codes contained at least some provisions of questionable constitutionality, and the fact is that developing a 100% content neutral sign code may be impossible for some, or even most, local governments.  Further, as Justice Kagan's concurring opinion in Reed noted, such a code might not function well in addressing legitimate aesthetic and traffic safety concerns.[8]  Sign code drafting is an often imprecise exercise, subject to the influences of planning, law, and, perhaps most importantly, local politics.  Planners and local government lawyers should therefore view sign regulation with an eye toward risk management.  If the local government is willing to tolerate some degree of legal risk, it may be appropriate to take a more aggressive, if less constitutionally-tested approach to sign regulation.  Conversely, if the local government is unwilling to accept the risks associated with more rigorous regulation of signs, it would be advisable to adopt a more strictly content neutral - if less aesthetically effective -approach.


In a risk management approach to sign regulation, the local government's adopted regulations should reflect a balance between the community's desire to achieve certain regulatory objectives and the community's tolerance for legal risk.  Regardless of some of the uncertainties that remain about the substantive reach of the Reed decision,[9] Reed clearly increases the level of legal risk associated with many aspects of sign regulation, and most particularly regulation of non-commercial signs. Thus, while communities are well-advised to review sign regulations for potential areas of content discrimination and to take precautions against potential sign litigation, when developing a sign code communities should also consider (or perhaps reconsider) the level of legal risk that the community is willing to tolerate in order to achieve the community's aesthetic goals and interests in traffic safety.  In some areas of sign regulation and for some local jurisdictions, achieving aesthetic goals may run counter to minimizing legal risk, and it will be up to planners, lawyers, political leaders, and community members to determine the appropriate balance between the community's desired planning outcomes and the community's risk tolerance.


In all communities, special care should be taken to avoid regulating signs that have minimal impact on the community's established interests in sign regulation.  For example, avoiding regulation of signs which are not visible from a public right-of-way, or which are so as to have a negligible visual impact, is good sign regulation practice and is in keeping with the notion that regulations should only go as far as necessary to further the interests of the regulating body.  In the same vein, communities should focus on addressing "problem areas" of sign regulation specific to the community instead of regulating for problems that do not exist.  Employing this approach to sign regulation will likely result in the outcomes desired by the community while providing an appropriate level of protection against costly and time-consuming litigation.  With these observations in mind, here is some practical advice on dealing with legal issues in sign code development and regulation in the post-Reed world.


 


[1] For a comprehensive analysis of the Reed decision, see Brian J. Connolly and Alan C. Weinstein, Sign Regulation After Reed: Suggestions for Coping with Legal Uncertainty, 47 Urb. Law. 569 (2015) in which portions of this articled were previously published.


[2] Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2227 (2015).


[3] Strict scrutiny normally leads to the invalidation of the challenged provision since few courts have found that traffic safety or aesthetics, the governmental interests normally used to support sign regulation, are compelling interests. Further, most sign codes cannot demonstrate that a challenged provision is the least restrictive alternative. See, Connolly & Weinstein, n. 1 supra at 605-608.


[4] Central Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625 (4th Cir. 2016).


[5] Central Radio Co. Inc. v. City of Norfolk, Virginia, 776 F.3d 229 (4th Cir.2015), cert. granted, judgment vacated, sub nom. Cent. Radio Co. Inc. v. City of Norfolk, Va.135 S. Ct. 2893, 192 L. Ed. 2d 919 (2015).


[6] Central Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625 (4th Cir. 2016). See also Geft Outdoor LLC v. Consolidated City of Indianapolis and County of Marion, Indiana, 187 F. Supp. 3d 1002 (S.D. Ind. 2016) (noting amendment of ordinance to comply with Reed).


[7] Wagner v. City of Garfield Heights, 675 Fed. Appx. 599 (6th Cir. 2017). See also Marin v. Town of Southeast, 136 F. Supp. 3d 548 (S.D.N.Y. 2015) (ruling that a regulation that exempted certain signs, but not political signs, from


restrictions placed on temporary signage, was a content-based restriction that did not withstand strict scrutiny).


[8] Reed v. Town of Gilbert, Ariz., 135 S.Ct. at 2236-2239.


[9] See, Connolly & Weinstein, n. 1 supra at 587-610.

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References

Brian J. Connolly and Alan C. Weinstein, Sign Regulation After Reed: Suggestions for Coping with Legal Uncertainty, 47 Urb. Law. 569 (2015) in which portions of this articled were previously published.

Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2227 (2015).

Central Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625 (4th Cir. 2016).

Central Radio Co. Inc. v. City of Norfolk, Virginia, 776 F.3d 229 (4th Cir.2015), cert. granted, judgment vacated, sub nom. Cent. Radio Co. Inc. v. City of Norfolk, Va.135 S. Ct. 2893, 192 L. Ed. 2d 919 (2015).

Central Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625 (4th Cir. 2016). See also Geft Outdoor LLC v. Consolidated City of Indianapolis and County of Marion, Indiana, 187 F. Supp. 3d 1002 (S.D. Ind. 2016).

Wagner v. City of Garfield Heights, 675 Fed. Appx. 599 (6th Cir. 2017). See also Marin v. Town of Southeast, 136 F. Supp. 3d 548 (S.D.N.Y. 2015).

Reed v. Town of Gilbert, Ariz., 135 S.Ct. at 2236-2239.

Schneider v. City of Ramsey, 800 F.Supp. 815 (D.Minn. 1992), aff'd sub nom. Holmberg v. City of Ramsey, 12 F.3d 140, 144-45 (8th Cir. 1994).

Brian J. Connolly & Mark A. Wyckoff, MICHIGAN SIGN GUIDEBOOK: THE LOCAL PLANNING AND REGULATION OF SIGNS, 12-3, 13-3 (2011), available at http://scenicmichigan.org/sign-regulation-guidebook.

Daniel R. Mandelker, Andrew Bertucci & William Ewald, STREET GRAPHICS AND THE LAW 51, PLANNING ADVISORY SERV. REP. NO. 527, (Am. Plan. Ass'n rev. ed. 2004).

BOERNE, TEX., SIGN ORDINANCE § 18 (2008).

CITY OF FARMINGTON, MICH. ZONING ORDINANCE § 35-233.

FEDERAL HIGHWAY ADMIN., THE EFFECTS OF COMMERCIAL ELECTRONIC VARIABLE MESSAGE SIGNS (CEVMS) ON DRIVER ATTENTION AND DISTRACTION: AN UPDATE, Publ'n No. FHWA-HRT-09-018 (Feb. 2009), available at http://www.fhwa.dot.gov/real_estate/cevms.pdf.

Dawn Jourdan et al, AN EVIDENCE BASED MODEL SIGN CODE (2011), available at http://www.dcp.ufl.edu/files/8c71fa03-9cbf-4af2-9.pdf.

LaTrieste Restaurant and Cabaret, Inc. v. Vill. of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994).