Legal and Legislative Updates, GAZA, 08-21-15

Georgia Association of Zoning Administrators
Summer Conference
August 21, 2015
Legal and Legislative updates

BY

FRANK E. JENKINS, III

JENKINS, OLSON & BOWEN, P.C.
fjenkins@joandb.com

15 South Public Square
Cartersville, Georgia 30120
(770) 387-1373


11 Cedar View Drive

Savannah, Georgia  31401
(912) 443-4049

I.       GETTING THE SIGN ORDINANCE RIGHT

Does your sign ordinance impose limits on the time a resident may display a political sign or a "for sale" sign? Does your ordinance specify certain districts in which a sign may only display a message related to an activity on property other than where the sign is located? (the so-called off-premises sign) If either or both of these provisions are found in your sign ordinance, it probably is unconstitutional and unlikely to withstand a legal challenge to its validity.

Both federal and state courts have laid down rules we must follow to protect against unconstitutional restriction of speech guaranteed under the First Amendment of the U.S. Constitution and the Free Speech Amendment of the Georgia Constitution. Yes, putting a message on a sign is a form of speech, and local governments may not restrict that speech in a sign ordinance unless constitutional protections are put in place.

The First Amendment and the Free Speech Amendment permit a local government to prohibit sign messages promoting unlawful activity or messages that are misleading. But any other restriction of otherwise protected speech is valid only if it "...seeks to implement a substantial government interest, ...directly advances that interest, [and] reaches no further than necessary to accomplish the given objective."

Some specific rules or conditions must be included in a sign ordinance for it to survive constitutional scrutiny. Following is a list of constitutional safeguards that often are missing from sign ordinances. Hopefully, this article will help you examine your sign ordinance and apply these judicial rules and thus determine if your sign ordinance will withstand a lawsuit challenging its constitutionality.

Rule No. 1        Adopt a Statement of Legislative Purpose

A sign ordinance, to be constitutional, must satisfy a "substantial government interest"; otherwise, it restricts speech without a basis for imposing limits on speech. We, as a government, are authorized to restrict signs if it advances the aesthetic interests of a local government, e.g. limits clutter and protects the visual landscape, or it promotes traffic safety. These purposes as justification for imposing limits on signs must be amply laid out as the underlying basis and purpose for a sign ordinance. Accompanying this purpose should be studies, including treatises, which have demonstrated the benefit of sign restrictions to advance the aesthetic and safety interests of a local government. These studies and treatises should be incorporated into and made a part of the preface or introduction to the sign ordinance. It is only upon

showing that a local government's aesthetic interests and traffic safety are advanced that it may constitutionally limit speech and thus restrict sign usage within a local government's jurisdiction.

Rule No. 2        Sign Ordinances must be Content- Neutral

Content-neutral means that a sign ordinance must not regulate signs based upon the message. The introduction to this article shows an example of this, i.e. signs identified and regulated by a political message. There are exceptions to this rule, but the better practice is to regulate signs by the size, construction, materials, number, and location, but not by the message on the sign. If your ordinance identifies a sign by its message, it probably is not content-neutral.

Rule No. 3        Sign Ordinances must have Standards for Granting or Denying Sign Permit Applications

Your ordinance must set forth standards which an administrative official or board must apply in determining whether a sign may be permitted. Giving the permit official unbridled discretion to decide whether a sign may be permitted is typically a constitutional problem. The better approach is to grant a permit for a sign if it satisfies the ordinance provisions; that is, an objective standard not based on the discretion of an administrative official or a board. In any event, the sign ordinance should set out those standards which have to be applied in determining whether a sign permit should be granted.

Rule No. 4        Limit the Time in which a Decision on Sign Permit Applications must be Made

If your ordinance does not specify the time within which a decision for a sign permit application must be made, it has serious constitutional problems. According to many court decisions, allowing a sign permit application to languish indefinitely without a decision is a denial of free speech. Fifteen to thirty days is usually adequate for a decision to be made, and your ordinance should state a specific time within which an applicant may expect a decision.

Rule No. 5        Include a Provision that a Decision Denying a Sign Application Permit may be Judicially Appealed within 30 Days

A local government may establish a procedure for appeal of an initial decision denying a sign permit application to a separate administrative official or board. That is to say, an initial decision may be made by an administrative official, and an aggrieved applicant may then appeal to a planning commission or even the city council or the board of commissioners. But what is essential as mandated by a number of court decisions is that a judicial appeal be provided within the ordinance. That is, an ordinance should

provide that an unhappy applicant for a sign permit may appeal the final decision of the local government to the appropriate superior court within 30 days of the decision. Such a provision will satisfy the requirement that an aggrieved applicant has a right to immediate judicial review of the local government's decision.

These rules are not intended to be exhaustive of all constitutional requirements necessary for a local government's sign ordinance, but these are the most significant deficiencies in sign ordinances and the ones most often subject to challenge in either the federal or the state courts. Put your ordinance on the examining table, and if any of these rules are violated, you should immediately revise the ordinance or it may not withstand a judicial challenge.

1.               Reed v. Town of Gilbert, Arizona, 135 S.Ct. 2218 (2015).

In this case, the United States Supreme Court struck down a sign ordinance approved by the town of Gilbert, Arizona, as violating the First Amendment of the United States Constitution. The First Amendment, applicable to the states under the Fourteenth Amendment, prohibits the enactment of laws "abridging the freedom of speech." Regulation of speech by a local government is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed. The city's sign code, in this case, defines "temporary directional signs" on the basis of whether the sign conveys a message of directing the public to church or some other event. It defines "political signs" on the basis of whether the message is intended to influence the outcome of an election. And it defines "ideological signs" on the basis of whether it communicates a message or ideas that does not fit the other categories of the code.

If a sign ordinance is content based on its face, it is subject to strict scrutiny which requires the local government to prove that the sign restrictions further a compelling interest and are narrowly tailored to achieve that interest. This, the town cannot do in its attempt to preserve the constitutionality of its ordinance. The town appropriately also regulates many aspects of signs which have nothing to do with the message, such as size, building materials, lighting, moving parts, and portability. Certain other signs which are content based may survive strict scrutiny, however, such as signs narrowly tailored to protecting the safety of pedestrians, drivers, and passengers, including warning signs marking hazards on private property, signs directing traffic, or street numbers for private houses or commercial establishments. These types of content based signs may survive strict scrutiny as they do promote the safety of the public and control aesthetics of the community.

The keen lesson here is that local government sign ordinances are unconstitutional if the ordinance specifies that the message contained in the sign must be determined in regulating the sign.

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

In a multifaceted challenge to the Union City sign ordinance, the court made the following holdings, among others:

A.        The city's sign ordinance which distinguishes between "off-premise signs" and "on-premise signs" violates the First Amendment to the United States Constitution and the Free Speech Clause of the Georgia Constitution. Since the city restricts the content of a sign based upon its location, it will not survive strict scrutiny. The city effectively prohibits signs bearing non-commercial messages in zoning districts where a sign of the same size and structure may display commercial messages.

B.        The city's sign ordinance is also unconstitutional to the extent that it limits the messages on specific categories of signs, which are principal identification signs, marketing signs, construction signs, instructional signs, real estate directional signs, real estate signs, and special event signs. The effect of the ordinance was to limit the message of certain signs to those identifying the type of sign that may be used.

C.        The ordinance provisions which restrict signs in residential zoning districts to on-premise signs and certain temporary or special signs, such as political signs, are likewise unconstitutional. The court reasoned that the ordinance prohibits vital expression through the unique medium of residential signs without providing a viable alternative.

D.        The city's time limitation on political signs during a period of six weeks prior to and one week after an election is likewise unconstitutional. Since the ordinance does not place time limits that a resident may post a sign selling his house, for example, restrictions on political signs are necessarily content based and unconstitutionally restricted.

3.               Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (2005).

Neptune Beach's sign code violated the First Amendment in two ways: it exempted from regulation certain categories of signs based on their content without compelling justification for the differential treatment, and it contained no time limits for responding to applications for sign permits.

An example of the types of signs exempt from the regulations and thus not requiring a permit are: 1) flags and insignia of any government, religious, charitable, fraternal or other organizations; 2) signs on private premises directing and guiding traffic and parking on private property; and 3) holiday lights and decorations. Thus, the city's sign code discriminates against certain types of speech (signs) based on content. It exempts from regulation some categories of signs based on content, but does not exempt others based on content. Generally, laws that distinguish favored speech from unfavored speech on the basis of the ideas or views expressed are content based. A content-neutral ordinance applies equally to all and not just those with a particular message or subject matter in mind. But where the city exempts certain signs based upon the content or message within, the sign is not content neutral.

Where the sign code is a content based restriction on speech, to be constitutional it must serve a compelling state interest and be narrowly drawn to achieve that end. The city's sign ordinance was based on general purposes of aesthetics and traffic safety, but these reasons are not "compelling government interests" for purposes of First Amendment analysis. Moreover, the sign code's exemptions are not narrowly tailored to achieve the city's traffic safety or aesthetic goals. The code thus is not justified by a compelling government purpose and therefore fails to survive strict scrutiny required under First Amendment analysis.

The ordinance is also unconstitutional because it fails to impose time limits for permitting decisions and thus is an invalid prior restraint on speech. To satisfy time limit requirements, an ordinance must insure that permitting decisions are made within a specified time period. But here the city's sign code contains no time limits on permitting and therefore is an unconstitutional restraint on speech for that reason.

4.               Tinsley Media, LLC v. Pickens County, Georgia, United States Court of Appeals, Eleventh Circuit, decided October 12, 2006.

Plaintiff filed eleven applications with the county for permission to erect billboards, which were prohibited under the existing sign ordinance. The applications were denied, and the plaintiff filed suit claiming several provisions of the county's sign ordinance violated the U.S. and Georgia Constitutions.

Regulations that restrict expression of protected speech are analyzed under a four-part analysis, as follows: (1) commercial speech is protected "only if that speech concerns lawful activity and is not misleading"; (2) a restriction is valid if it seeks to implement a substantial government interest; (3) the restriction directly advances that interest; and (4) it reaches no further than necessary to accomplish the given objective.

The court found that the county's ordinance contained no statement of purpose at all. Without a statement of purpose, according to the court, the statute cannot satisfy the "substantial government interest" requirement under federal law.

In its decision, the court pointed out other constitutional requirements in a sign ordinance. The ordinance must contain standards for approval, a time limit for granting or denying a permit, and procedures for appeal. If a sign ordinance lacks any of these provisions, it is subject to challenge that it is unconstitutional.

II.        APPEAL OF SPECIAL USE PERMITS

Bulloch County Board of Commissioners v. Williams, Ga.App., 773 S.E.2d 37 (decided June 10, 2015).

In a discretionary appeal to the Court of Appeals, the Bulloch County Board of Commissioners appealed a superior court order reversing its denial of a conditional use permit for a personal care home. The Court of Appeals reversed the trial court and upheld the board of commissioners' denial of the special use permit finding that the superior court in reviewing a special use permit decision must apply the "any evidence" standard of review. Whether there is any evidence supporting the decision of the local governing body is the important consideration, not whether there's any evidence supporting the decision of the superior court. There was evidence presented to the board of commissioners that the proposed personal care home could only be reached down an unpaved road, the driveway was narrow and hard to find, the distance from the home to the nearest hospital was over 18 miles, and the adjacent property owner was concerned about liability if a resident fell into his pond. The Bulloch County Zoning Ordinance had several standards for considering a special use permit, including the type of street providing access to the use, access into and out of the property for the anticipated volume of traffic and emergency vehicles. The court concluded that in this case the board of commissioners acted in a quasi-judicial capacity to determine the facts and apply the law. Due process requires only an informal hearing and not strict adherence to the rules of evidence. While a verbatim transcript is preferred on appeal, comprehensive discussion in the minutes provides an adequate basis for review. In its finding in favor of the board of commissioners, the court concluded that the greater distance from the nearest hospital in comparison to other personal care homes and the dirt road access supported the board's decision under the "any evidence" standard of review.

III.        CUSTOMARY USE OF SINGLE-FAMILY ZONING DISTRICT

Burton v. Glynn County, 2015 WL 4183018 (Ga. Court of Appeals, decided July 13, 2015).

Evidence supported the county's efforts to enforce its zoning ordinance to prohibit use of property as an event venue in a single-family residential zoning district as such use is beyond that expected or customary for a one-family dwelling in violation of the county zoning ordinances.

IV.        ADOPTING THE ZONING MAP

Newton County v. East Georgia Land and Development Company, LLC, 296 Ga. 18, 764 S.E.2d 830 (2014).

The county's zoning ordinance that purported to incorporate a map identified as the official zoning district map was void from its enactment, absent any evidence that maps were made part of the record at the time of the enactment of the zoning ordinance.

V.        NON-CONFORMING USES AND VESTED RIGHTS

Southern States - Bartow County, Inc. v. Riverwood Farm Property Owners Association, Inc., 331 Ga.App. 878, 769 S.E.2d 823 (2015).

Appellant sought approval for operation of a solid waste landfill. It first applied for a certificate of zoning compliance in 1989 after the county zoning ordinance was struck down in 1991. In 1994 the superior court of Bartow County issued an order ruling that since no valid zoning ordinance controlled in 1989 (the date upon which the zoning ordinance was invalid) and that appellant had a vested right for a certificate of zoning compliance. That certificate was issued, but the appellant did nothing to commence the construction or operation of the landfill for almost 20 years.

In 1993 Bartow County adopted the following provision of its zoning ordinance:

Any intended non-conforming use for which a vested right was acquired prior to the adoption of this ordinance or the adoption of an amendment thereto shall be prohibited unless such is actually commenced within one year of the adoption of this ordinance or the adoption of an amendment thereto regardless of the intent or expectation to commence or abandon such non-conforming use.

The court looked at the ordinance amendment to see if it was clear and unambiguous. It found that it was. Commencement of the non-conforming use required more than submitting mere paperwork. The trial court was correct in finding that the appellant failed to comply with the 1993 zoning ordinance and that its vested right to operate the landfill lapsed. But the appellant raised a constitutional challenge to that provision of the ordinance which "forbids passage of retroactive laws which injuriously affect the vested rights of citizens." Article I, Section I, Paragraph X. The case was remanded to the trial court to consider the developers constitutional challenge.

VI.        EXHAUSTION OF ADMINISTRATIVE REMEDIES

Elbert County v. Sweet City Landfill, LLC, 2015 WL 3937396, No. S15A0489 (Ga. Supreme Court, June 29, 2015).

The defendant, Sweet City Landfill, LLC, sought a solid waste landfill special use permit from Elbert County. Following a hearing before the board of commissioners, a vote approved a motion made "not to enter into a 'Host Agreement' with Sweet City Landfill and to terminate a tolling agreement." No action was taken at that meeting on the special use permit. The court found that the board's decision was a "siting decision" and was a final decision which Sweet City did not appeal. It found that Sweet City failed to exhaust its administrative remedy by failing to appeal the siting decision within 30 days as required under O.C.G.A. § 5-3-20. "Final determinations by county authorities regarding the application of land use restrictions to a particular property constitute 'decisions' within the meaning of O.C.G.A. § 5-3-20." Mortgage Alliance Corp. v. Pickens County, 294 Ga. 212 (2013). In addition, Sweet City contended it had a vested right to a letter of zoning compliance for the solid waste landfill. But the court rejected that on the basis that its long-standing procedure is to address vested rights claims only after the local zoning authority has refused to issue permits for the proposed project or has imposed unconstitutional restrictions on an existing project.

The case shows us that a final administrative decision made by a local government must be appealed within 30 days of the decision for redress from the superior court. Moreover, challenges to the county's refusal to recognize vested rights may only be made after the local government has refused to issue a permit requested for the proposed project.

VII.        REPORTING ALCOHOL VIOLATIONS

AMENDMENTS TO O.C.G.A. § 3-3-2.1 RELATING TO DISCIPLINARY ACTION AGAINST AN ALCOHOL LICENSEE AND REQUIRED REPORTING BY A CITY OR COUNTY

O.C.G.A. § 3-3-2.1

(a)(1)       'Disciplinary action' means any citation or arrest arising out of the violation of any law, rule, regulation, resolution, or ordinance of a governmental entity relating to the manufacture, distribution, sale, or possession of alcoholic beverages against a licensee, an employee of a licensee, or any person holding a financial interest in the license of the licensee on the premises or place of business of any licensee.

(c)       Every county or municipality which issues licenses to a licensee authorizing the manufacture, distribution, or sale of alcoholic beverages shall by resolution or ordinance adopt a policy and implement a process by which any disciplinary action against a licensee shall be reported to the department within 45 days of any officer, department, agency, or instrumentality of such county or municipality taking such disciplinary action.

(d)       The commissioner shall determine and make available the format for the reporting of disciplinary actions and shall promulgate rules and regulations as to the implementation and use of such reporting method.


Tinsley Media, LLC v. Pickens County, Georgia, 203 Fed.Appx. 268, 273 (11th Cir., 2006)

Tinsley Media, LLC v. Pickens County, Georgia, 203 Fed.Appx. 268, 273 (11th Cir., 2006)

Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir., 2005); Dimmitt v. City of Clearwater, 985 F.2d 1565 (11th Cir., 1993); Café Erotica of Florida, Inc. v. St. Johns County, 360 F.3d 1274 (11th Cir., 2004); and Union City Board of Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393, 467 S.E.2d 875 (1996)

Camp Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257 (11th Cir., 2006)

Café Erotica of Florida, Inc. v. St. Johns County, 360 F.3d 1274 (11th Cir., 2004)

Boss Capital, Inc. v. City of Casselberg, 187 F.3d 1251 (11th Cir., 1999) (applying free speech safeguards to adult entertainment ordinances)