A New Challenge To Effective Sign Regulation

Brandon L. Bowen
Jenkins & Olson, P.C.
15 South Public Square
Cartersville, Georgia 30120
(770) 387-1373
bbowen@jnlaw.com

Over the years, many local governments have found sign ordinances useful tools to protect community character and aesthetics.  Whether it be counties with interstate corridors trying to control the proliferation of billboard signs, or municipalities that want to keep illuminated signs from lighting up residential neighborhoods at all hours of the night, sign ordinances are a common component of local government zoning and land use regulations.  They are also a frequently challenged type of local government regulation, and a substantial body of case law has developed regarding the constitutionality of sign ordinances.  A new decision has been handed down by the Eleventh Circuit Court of Appeals which makes drafting an enforceable sign ordinance more challenging than ever before, and makes many existing sign ordinances vulnerable to challenge.  Before discussing that case, and some ideas for drafting lawful sign ordinances, a review of the background of sign ordinance challenges may be helpful.

Background

Sign ordinances are frequently challenged because the Courts have held that if a party can successfully challenge any substantive provision of a sign ordinance, the entire ordinance may be struck down, even if the section in issue does not apply to the challenging party.  This is what is called a facial challenge – the ordinance is challenged as being unconstitutional on its face, rather than as applied in a particular context.  Thus, attorneys representing outdoor advertising companies have become very skilled in picking out troublesome portions of sign ordinances that don't necessarily even apply to outdoor advertising signs.  Courts allow this because sign ordinances regulate free speech, a fundamental right under the First Amendment to the United States Constitution.1 Normally, government restrictions on free speech are subject to strict scrutiny – the most difficult burden to meet under the law.  The courts have told us that we can avoid strict scrutiny if we regulate the time, place and manner of speech, rather than the speech itself, in what is called a content-neutral manner.2 This lowers the local government's burden in proving that the ordinance is valid, and makes it much more likely to survive a challenge.

With this in mind, local governments have been told that they cannot regulate on the basis of on-premises and off-premises uses. 3 Such regulations implicitly regulate message content, because they refer to the use of the property, and are not content-neutral time, place and manner regulations.  We have learned to avoid references to the advertising purpose of signs, because such regulations place a different burden on commercial speech than on non-commercial speech, and are not content-neutral.  We have also learned that if a local government is going to require a permit for a sign, then the permit must be issued as a matter of right when certain specified requirements are met, and within a period of time clearly set forth in the ordinance.

More-or-less consistent with these previously-established rules, sign ordinances frequently follow a common pattern.  Permits are required for large signs, which are allowed in certain zoning classifications, such as in commercially or industrially zoned areas, or along highway corridors.  In other zoning classifications, permits may not be required, but there are restrictions on the number, size and structure of the signs.  Local government sign ordinances then often exempt from permitting requirements certain types of signs, such as real estate signs, historical markers and week-end directional signs (an attempt at a content-neutral name for a yard sale).  Such permit exemptions are suspect, because they clearly relate to the message of the sign.  Ordinances also frequently exempt government signs (i.e. traffic signs) and things of that nature, presumably under the belief that a permitting exception for roadway signs and the like would meet even the strict scrutiny test.  Certainly a local government should not need to require the Department of Transportation to get a permit to place a road sign?

Solantic, LLC v. City of Neptune Beach

The Eleventh Circuit Court of Appeals disagreed in Solantic, LLC v. City of Neptune Beach, a recent case that is going to require local governments to return to the drawing board and devise a new scheme for sign ordinances.4 The ordinance in issue was that of Neptune Beach, Florida, but of course the Eleventh Circuit's ruling applies equally in Georgia and Alabama.  Neptune Beach's sign ordinance followed the scheme discussed above:  permits were required for certain larger signs and in certain zoning classifications, but many types of signs were exempt from permitting requirements either in all zoning classifications or in certain zoning classifications.  Some of these types of signs were clearly content-based, rather than content-neutral, and it is not surprising that the Eleventh Circuit strictly scrutinized the ordinance and struck it down based on these provisions.5 More problematic is that the Court made a remarkable effort to imagine situations where the particular exemptions could be abused to inappropriately restrict free speech.  Further, the breadth of the Court's reasoning calls into questions the permit required / permit exempt structure commonly used in sign ordinances.

The Court found that because it required permits for some uses, but exempted others based upon their content, the ordinance was a content-based restriction.  Similarly, the Court found that the ordinance regulated content because it allowed some signs to have different (and presumably more favorable) structures, based upon the content.  For example, the ordinance allowed directional signs in residential areas to be illuminated, but not traditional yard signs.  Finally, the Court reaffirmed the rule that if a permit is required, the prerequisites must be clearly stated in the ordinance, along with a time-period within which a permit must be issued.  Of course, if no discretion is allowed in the issuance of a permit, what real purpose does the permitting process serve, other than as an aid to recordkeeping?  Thus, it is worth reconsidering the way that a sign ordinance ought to be structured to make it both effective and enforceable.

Moving Forward

A sign ordinance is a type of land use regulation, which normally restricts the use of property and the size and type of buildings located on property.  The best way to make a sign ordinance truly content-neutral is to strip it down to its fundamental land use regulation heart, and simply regulate the number, size and structure of signs that can be allowed as a matter of right in each particular zoning classification.  The ordinance would not differentiate between the content of signs, only how big and how many signs may be located in a certain zoning classification.  The ordinance might provide for properties adjacent to highways – which would be an appropriate location for billboards.  At the same time, there could be special provisions for each zoning classification.  For example, signs in residential areas might be prohibited from being illuminated between the hours of 10:00 p.m. and 7:00 a.m.  A local government might also prohibit signs within a certain distance of public right-of-ways to avoid clutter.

Under this scheme, there would be no permitting requirement.  If the owner of property zoned for commercial uses wished to post a 100 square foot sign, and the sign ordinance allowed for the posting of a 100 square foot sign in commercial districts, then he could post the sign without any permit from the local government.  One potential detraction from this is that permit records help local governments determine when a particular property owner vested rights to build a sign, or if a sign is grandfathered if the ordinance subsequently changes.  However, the law puts the burden on property owners, rather than the government, to prove vested rights and grandfathered status, so this should not be a great concern.  Another reason for permitting, like any building permit, is to make sure that the structure is safe and up-to-code.  It would be appropriate to require building permits for signs deemed to be structures, so long as the permit requirement was triggered by the structure, and not the message content.

Another concern raised by the Solantic, LLC v. City of Neptune Beach decision is the status of traffic signs.  As in many jurisdictions, Neptune Beach exempted government signs from permitting requirements, probably to avoid regulating traffic signals and the like.  The Court found this, too, to be a content-based restriction.  Again, exercising strict scrutiny, the Court determined that this provision would theoretically allow the government to approve certain types of messages to the exclusion of other messages, fostering and even controlling public discourse, even though it does not appear that there was actual evidence that the local government was abusing the ordinance in that manner.   This raises the question of whether a local government might effectively remove from permitting requirements those governmental signs that we reasonably expect to see, such as traffic signs.  Under Georgia law, however, it is doubtful that any such regulation is necessary, because government entities acting for public purposes are normally exempt from local government land use regulation.  In other words, a local government need not worry with exempting traffic signs, because it probably could not validly require permits for traffic signs in the first place.  Therefore, it should not have any real effect if such provision was excluded from the ordinance altogether.

Some will object to this proposed scheme as over-simplified, and constituents will likely suggest that special provision should be made for certain types of signs.  However, Solantic, LLC v. City of Neptune Beach makes it very clear that whenever a local government tries to foster certain types of messages, no matter how reasonable, the courts' will strictly scrutinize the ordinance, and not hesitate to strike it down.

A Procedural Note

The Solantic case provides an important procedural lesson for local government attorneys, as well.  The plaintiff used a tactic that is commonly employed by lawyers for sign companies and adult entertainment businesses when challenging local government ordinances on constitutional grounds.  After the case is filed, the plaintiff immediately moves for an interlocutory injunction, when little or no discovery has yet taken place.  Local government attorneys unfamiliar with this tactic may not realize what is coming:  at the interlocutory hearing, the plaintiff will put up their entire case, expert witnesses and all.  If the interlocutory injunction is denied, then the plaintiff immediately files a direct appeal.  The result is that the case gets to the appellate court very quickly, and when the local government attorney is unfamiliar with this tactic, the record will likely be devoid of favorable evidence necessary to support and justify the ordinance.



1See generally Tanner Advertising Group, LLC v. Fayette County, 411 F.3d 1272 (11th Cir., 2005)

2 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

3Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393, 467 S.E.2d 875 (1996).

4 410 F.3d 1250 (11th Cir., 2005)

5 The list of signs exempt from permitting including:
- Flags and insignia of any government, religious, charitable, fraternal, or other organization;
- Signs erected by, on behalf of, or pursuant to authorization of a governmental body, including, but not limited to the following: legal           notices, identification signs, and informational, regulatory, or directional signs;
- Signs on private premises directing and guiding traffic and parking on private property, but bearing no advertising matter;
- Holiday lights and decorations.
- Merchandise displays behind storefront windows so long as no part of   the display moves or contains flashing lights.
- Memorial signs or tablets, names of buildings and dates of erection when cut into any masonry surface or when constructed of bronze or other incombustible materials and attached to the surface of a building.
- Signs incorporated into machinery or equipment by a manufacturer or distributor, which identify or advertise only the product or service dispensed by the machine or equipment, such as signs customarily affixed to vending machines, newspaper racks, telephone booths, and gasoline pumps.
- Public warning signs to indicate the dangers of trespassing, swimming, animals, or similar hazards.
- Works of art that do not constitute advertising.
- Religious displays (e.g. nativity scenes).
- Temporary signs for the following purposes: 
(1) On-site for sale/rent/lease signs;
(2) Grand opening signs;
(3) Construction-site identification signs;
(4) Signs to indicate the existence of a new business or business location;
(5) On-site signs to announce or advertise such temporary uses as fairs, carnivals, circuses, revivals, sporting events, festivals or any public, charitable , educational or religious event; and
(6) Election or political campaign related signs.