The SIGN REGULATION / PUBLIC FORUM BULLETIN is a free newsletter, national in scope, featuring quick-read summaries of new court decisions on sign regulation, public forum and related topics. It is distributed only by email. Newsletter Summer 2012
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RANDAL R. MORRISON'S SIGN REGULATION / PUBLIC FORUM BULLETIN
In this issue:
Constitutional right to lie?
Religious symbols on public land and in public school classrooms
Digital billboards on city property
Bus advertising – controversial messages
U.S. SUPREME COURT
(Note: "cert granted" means "writ of certiorari granted," that is, U.S. Supreme Court has accepted the case for review; "cert denied" means that the Court has declined to consider the case, and thus the decision of the lower court will stand.)
Constitutional Right to Lie?
Xavier Alvarez, director of a water district (a government agency), falsely introduced himself as a retired Marine, recipient of the Congressional Medal of Honor, and wounded during military service. He was charged with violating the Stolen Valor Act, a federal law that criminalizes false statements about certain military honors. Held: The Stolen Valor Act criminalizes speech defined by content and fails the "strict scrutiny" standard of review because there is no causal connection between the government’s interest–protecting the integrity of the military honors system–and the law. Justice Kennedy: "The remedy for speech that is false is speech that is true." Since the U.S. Supreme evenly split 4-4 (Kagan abstained), the effect is to uphold the lower court (9th Circuit) decision, which held the Stolen Valor Act unconstitutional. U.S. v. Alvarez, June 28, 2012; 2012 WL 2427808, http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf. In response to this ruling, the Pentagon has announced plans to set up a searchable database of all persons who have ever received military valor awards.
Latin Cross on Public Land
The legal status of the Mount Soledad Cross on public land in the La Jolla section of San Diego has been in litigation since 1989. In January 2012 the Ninth Circuit Held: "[A]fter examining the entirety of the Mount Soledad Memorial in context–having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the dominance of the Cross–we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause [of the First Amendment]. This result does not mean that the Memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans’ memorial. We take no position on those issues." Trunk v. San Diego, 9th Cir. Nos. 08–56415, 08–56436, 629 F.3d 1099, 1/4/2011 (http://www.ca9.uscourts.gov/datastore/opinions/2011/02/03/08-56415.pdf.) U.S. Supreme denied cert on June 25, 2012; 2012 WL 2368746. The case now returns to the U.S. District (trial) Court in San Diego.
Roadside Crosses Memorializing Slain Troopers
Twelve foot high memorial crosses, installed on the side of public roadways in Utah to honor slain state troopers, constituted an Establishment Clause violation because to a reasonable observer they conveyed the message that the state was endorsing Christianity. The Latin crosses stood in isolation, rather than being part of a larger display using other symbols. American Atheists v. Duncan, 637 F.3d 1095 (10th Cir. 08-4061, 12/20/2010) http://www.ca10.uscourts.gov/opinions/08/08-4061.pdf. U.S. Supreme denied cert on October 31, 2011, No. 10-1297.
Money Judgment Against Billboard Company
The City of Oakland CA sued billboard company Desert Outdoor for installation of illegal signs and unlawful business practices, and won a federal court money judgment for $124K in statutory civil penalties + $263K in disgorged profits + $92K in costs and attorney fees. When Oakland tried to enforce the judgment in Nevada, that state’s supreme court (voting 4-3) held that the judgment was penal in nature, thus not subject to the Full Faith and Credit Clause, and could not be enforced by Nevada courts. Oakland v. Desert Outdoor Advertising, Inc., 267 P.3d 48 (NV 2011). U.S. Supreme denied cert on Mar. 5, 2012, No. 11-555.
Mural / Sign Protesting Eminent Domain
Protestor / leader of a property management company painted a 363 square foot mural on the wall of a two unit residence, consisting of "End Eminent Domain Abuse" inside a red circle and slash. The city refused to permit the sign because the wall space did not have the required street frontage and the sign exceeded the applicable size limit, 30 sf. Protestor claimed the mural was a work of art, not a sign, and thus not subject to the sign rules. Held: "[T]o determine whether a particular object qualifies as a "sign" . . . and is therefore subject to the regulations, or is instead a "non-sign or exempt from the sign regulations . . . one must look at the content of the object." "[T]he zoning code’s definition of ‘sign’ violates the Free Speech Clause of the First Amendment because of the presence of content-based exemptions and exceptions . . ." Neighborhood Enterprises v. City of St. Louis MO, 8th Cir. No. 10-1937, 7/13/ 2011, 644 F.3d 728. Both sides petitioned U.S. Supreme, which denied the petitions on 2/21/2012, No. 11-616.
God Posters in Public School Classroom
A public school district did not violate the Equal Protection rights of a teacher, or the Establishment Clause, when it ordered the him to remove a religious poster ("IN GOD WE TRUST"; "ONE NATION UNDER GOD"; "GOD BLESS AMERICA"; and, "GOD SHED HIS GRACE ON THEE") from his classroom. Held: "We consider whether a public school district infringes the First Amendment liberties of one of its teachers when it orders him not to use his public position as a pulpit from which to preach his own views on the role of God in our Nation's history to the captive students in his mathematics classroom. The answer is clear: it does not." Johnson v. Poway Unified School Dist., 9th Cir. No. 10–55445, 658 F.3d 954 (9/13/2011), cert. denied 3/26/2012, No. 11-910. Similar case: Court orders public school to remove Christian prayer mural from auditorium of a school. Ahlquist v. Cranston RI, U.S. Dist. Ct. RI No. 11-138L, Jan. 11, 2012, 840 F.Supp.2d 507.
Ten Commandments Poster in Courtroom
Elected Ohio state court judge DeWeese hung posters in his courtroom displaying the Bill of Rights and the Ten Commandments. ACLU challenged the Commandments poster as a violation of the Establishment Clause, and prevailed. The judge then created a new poster called "Philosophies of Law in Conflict," stating, "Ultimately, there are only two views: Either God is the final authority, and we acknowledge His unchanging standards of behavior. Or man is the final authority, and standards of behavior change at the whim of individuals or societies." The new poster contrasted the Decalogue with various points from the Humanist Manifesto. ACLU sued again and prevailed again. Held: The Sixth Circuit confirmed the Establishment Clause violation: "[A]ssuming for the sake of argument that [Judge DeWeese] has stated a facially secular purpose, and giving that stated purpose its due deference, the history of [his] actions demonstrates that any purported secular purpose is a sham." "The [new] poster is an explicit endorsement of religion by [the judge] in contravention of the Establishment Clause." ACLU of Ohio v. DeWeese, 6th Cir. No. 09–4256, 633 F.3d 424, Feb. 2, 2011; U.S. Supreme denied cert on Oct. 3, 2011, No. 10-1512.
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LOWER FEDERAL AND STATE COURTS
Ten Commandments on Courthouse Steps
ACLU challenged the placement of 16-ton granite monument reciting the Decalog and "Love God and Keep His Commandments" at top, center, of steps leading into county courthouse. Held: The monument is government speech; it is a governmental endorsement of religion in violation of the Establishment Clause of the U.S. Constitution. ACLU Florida v. Dixie County, U.S. Dist. Ct. Northern Dist. FL 1:07–cv–00018, July 15, 2011, 797 F.Supp.2d 1280. On appeal, the Eleventh Circuit sent the case back to the trial court for an evidentiary hearing on whether the nominal plaintiff–listed as "John Doe"–could demonstrate the actual injury that he had suffered as a result of the display. Such a showing is necessary to satisfy "standing"–the legal capacity to bring the lawsuit. ACLU of Florida v. Dixie County, Eleventh Cir. No. 11-13457, Aug. 15, 2012; http://www.ca11.uscourts.gov/opinions/ops/201113457.pdf.
Do Digital Billboards Use Intermittent Light?
A scenic group challenged Phoenix’s approval of converting existing static billboard to "electronic message board" (digital display screen). Held: AZ state law forbids signs that are "red, flashing, blinking, intermittent or moving light or lights likely to be mistaken for a warning or danger signal" or "[i]f an illumination on the outdoor advertising is of such brilliance and in such a position as to blind or dazzle the vision of travelers . . ." Digital billboards do not just "change copy" every 8 seconds. "In this context, ‘copy’ means a lighted image; therefore, a change of ‘copy’ means a change of lighted image. One cannot be separated from the other." Digital billboards use "intermittent lighting," and are thus illegal under the Arizona Highway Beautification Act. Scenic Arizona v. City of Phoenix Board of Adjustment and American Outdoor, AZ Ct of Appeals, Div. 1, Dept. B., No. 1 CA–CV 09–0489, Nov. 17, 2011, 228 Ariz. 419, 268 P.3d 370.
LED ("digital") billboards did use intermittent light, but the state law banning such signs were unconstitutional because of message-based exceptions. Lamar Advantage v. Commonwealth Transportation Cabinet (Dept. of Highways), Kentucky Court of Appeals No. 2011–CA–000306–MR (and several others), KY Ct. of Appeals, Aug. 3, 2012, not officially published, available at: 2012 WL 3136785.
RELATED LAW REVIEW ARTICLE:
Between Beauty and Beer Signs – Why Digital Billboards Violate the Letter and Spirit of the Highway Beautification Act of 1965, by Susan C. Sharp, J.D. Candidate, Rutgers School of Law, Rutgers Law Review Volume 64 Issue 2, Winter 2012. Read it here.
No Free Speech Damages For Billboard Company
Outdoor Media Group (OMG) sued Beaumont CA for denying permits under a discretionary procedure. The City amended the ordinance and sought dismissal, which was granted and partially upheld on appeal, 506 F.3d 895, but remanded for further hearings on money damages. The Sign company owner testified that he had no intention to build signs; his money damage claim was based on selling permits. 702 F.Supp.2d 1147. Held, on second appeal: At the time the permits were denied OMG had already sold any expressive interest in the content of those billboards to Lamar Outdoor, who has made no attempt to claim damages on behalf of advertisers. OMG lacks standing to claim free speech damages. Outdoor Media Group v. Beaumont, 9th Cir. No. 10-56081, 2011 WL 6807632, 12/28/2011, not officially published. (Disclosure: Randal Morrison defended the City of Beaumont in this case.)
Homeowners Ass’n Rules Ban Political Signs
Khan, a member of planned townhouse community, who wished to display a political sign promoting his candidacy for Town Council, challenged homeowners’ association rules that banned all signs except "real estate for sale." Held: Unlike most state constitutions, "In New Jersey, an individual’s affirmative right to speak freely ‘is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities’ in certain situations." "[T]he importance of Khan’s right to promote his candidacy for office, and the relatively minor interference his conduct posed to private property, outweigh the interests Mazdabrook asserts here. . . . We find that the Association’s sign policy, which prevented Khan from posting a political sign on his home, violates the State Constitution’s guarantee of free speech." Mazdabrook Commons Homeowners’ Ass’n v. Khan, Supreme Court of NJ, June 13, 2012, 210 N.J. 482, 46 A.3d 507, 2012 WL 2120868.
Campaign Signs on Utility Poles
Political candidates challenged Philadelphia’s ban on temporary signs on street poles. Held: here "the City’s ordinance does not simply prohibit political speech; it prohibits all speech in the form of temporary signs on utility poles, streetlights, sign posts, and trees in the public right-of-way, and there is no evidence that it is selectively enforced or was crafted for the purpose of prohibiting political speech in particular. Instead, every indication in the record is that the ordinance was intended to promote public safety and reduce blight. . . . Under these circumstances, the City’s judgment that such goals are advanced by the ordinance is accorded deference unless [that judgment] is facially unreasonable." Johnson v. Philadelphia, 3d Cir. No. 10-4185, Dec. 27, 2011, 665 F.3d 486.
Confederate Flag on City Property
City of Lexington VA granted permission for Sons of Confederate Veterans to fly Confederate flag on city-owned flagpole, then later changed policy to allow only U.S., state and city flags. Held: The City’s alleged "viewpoint closure" motivation in closing the forum does not override the facially content-neutral character of the new ordinance. The decision to close the forum was eminently reasonable, the City has not violated the First Amendment. Case dismissed. Sons of Confederate Veterans v. Lexington VA, U.S. Dist. Ct. West. Dist. VA, No. 7:12cv00013, June 14, 2012, 2012 WL 2191688.
Protest Sign In Public Right of Way
Pawn Shop operator McClanahan placed yard signs in front of his business, directing people to his website stopthurstoncounty.com. "According to City employees, one of those signs protruded into the sidewalk, blocking the public right-of-way." That sign was removed by a city official and returned to the operator. He asserted that the sign was wholly within his yard. Held: The city code allows only signs "posted by a local government agency." That agency then is "speaking through the sign." The enforcement officer considers only the neutral element of whether a local government agency placed it in the right-of-way is relevant. The City did not remove Mr. McClanahan’s sign based on "disagreement with a message sought to be conveyed... Rather, it was removed because it was in the right-of-way and because it was not placed there by a governmental agency. The ordinance is content neutral." Request for injunction denied. McClanahan v. Tumwater WA, U.S. Dist. Ct. Western Dist. WA., No. 11–cv–5623, Mar. 6, 2012, 2012 WL 748299.
Political Yard Sign
The wife of city council member who was running for mayor placed a political sign in her yard. The city sent a notice stating that the sign violated the rule stating that political signs could only be displayed 30 days before the election. A few months after she filed suit, the city eliminated the restriction of time limits on political signs, eliminated the restriction on the number of signs per lot, eliminated the power of the mayor to control enforcement of the ordinance, and increased the size limit of political signs. Held: In light of the changes to the city’s law, the case is moot. There is no evidence the city plans to return to the prior rules. Summary judgment to the city. BredenKoetter v. Florissant MO, U.S. Dist. Ct. Eastern Dist. Missouri, No. 4:11CV6, Feb. 27, 2012, 2012 WL 639710.
Chalking City Sidewalks
"Occupy Orlando" protestor was arrested for making chalk marks on public sidewalk near City Hall, and charged with violation of City law. In the past the local Rotary Club had received permits to conduct an annual sidewalk chalk art festival. Held: This area is a traditional public forum. The city law expressly applies only to commercial messages. Since the City has encouraged chalk messages and chalk writing by other groups, use of the Ordinance to prevent ephemeral dissemination of political messages offends the First Amendment. The City and its agents are permanently enjoined from enforcing this law against Plaintiff for writing political messages in chalk on City sidewalks. Osmar v. Orlando, U.S. Dist. Ct. Middle Dist. FL, No. 6:12–cv–185, April 13, 2012, 2012 WL 1252684.
Controversial Ads on Public Bus–Right to Vote
Public Interest group tried to buy advertising on public transportation system, informing ex-prisoners that they had a right to vote. Port Authority declined the offer, saying that they accepted only commercial advertising. Held: Challengers have demonstrated that the authority in fact has accepted non-commercial ads in the past, some of which also informed people of their legal rights, strongly suggesting that the refusal of the ex-prisoner ads was viewpoint discriminatory. The authority violated the coalition’s constitutional rights. Pittsburgh League of Young Voters Education Fund v. Port Authority of Allegheny County PA, 3d Cir. No. 09–3352, 09–3563, Aug. 5, 2011, 653 F.3d 290. Later (Feb. 24, 2012) the coalition was awarded attorney’s fees and costs totaling $344,000, 2012 WL 604156.
Controversial Ads on Public Bus–Mideast Awareness
King County (WA) operates a public bus system that accepts advertising to raise revenue. The ad program is handled by a private firm under rules that prohibits "Any material directed at a person or group that is so insulting, degrading or offensive as to be reasonably foreseeable that it will incite or produce imminent lawless action in the form of retaliation, vandalism or other breach of public safety, peace and order." Seattle Mideast Awareness Campaign ("SeaMAC"), a group whose "primary purpose is to educate the public about the Israeli–Palestinian conflict and its relationship to United States’ foreign policy," offered to buy bus ads. At first the offer was accepted, but media coverage of the upcoming ad campaign produced an outpouring of protests and threats of violence. Law enforcement officials recommended cancellation of the ads out of safety concerns. The ad campaign was canceled. Held: "The court recognizes its responsibility to safeguard the freedoms protected by our Constitution, and the court is equally mindful of its obligation to protect free expression of speech, including speech that is disfavored or unpopular. But in light of the totality of circumstances of this case, the court concludes that King County’s decision to reject the SeaMAC advertisement was a viewpoint-neutral and reasonable restriction in a limited public forum." Summary judgment to the County. Seattle Mideast Awareness Campaign v. King County, U.S. Dist. Ct. Western Dist. WA No. C11–94, 10/7/2011, 2011 WL 2011 WL 4747901.
Controversial Ads on Public Bus–Defeat Jihad
NYC Metro Transit Authority refused bus ads from American Freedom Defense Initiative stating "In any war between the civilized man and the savage, support the civilized man" and "Support Israel / Defeat Jihad," city a rule banning ads on buses that contain "information that demean[s] an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation." Held: The ad space on public buses is a designated forum; strict scrutiny applies. The "no demeaning" standard affects political speech at the core of protection. The MTA’s goal of preventing ads on city bus exteriors from being used as a medium for abuse and division in this diverse metropolis is entirely laudable. . . . [W]here a violation of the First Amendment is concerned, the government’s benign, even noble, intentions are no cure." Preliminary injunction issued to block enforcement of the "no demeaning" rule as currently drafted. American Freedom Defense Initiative v. Metropolitan Transit Authority of NYC, U.S. Dist. Ct., No. 11 Civ. 6774 (PAE), July 20, 2012, ___ F.Supp.2d ___, 2012 WL 2958178.
Digital Billboards on City Property
CBS Outdoor proposed a digital billboard on property owned by Utica Michigan, which did not conform to then-existing size and location rules. City then amended its sign code to state "The Planning Commission, however, may waive location and sign area requirements when said nonaccessory signs (billboards) are located on City owned property." After the deal was approved, and the sign built, CBS’s competitor Lamar applied for a permit for a similar sign located on private property; the permit was denied. Held: "[T]his Court cannot find that the City of Utica’s ordinance regulating the size, height and location of billboards, in light of its plenary power to waive these requirements for billboards located on city-owned property, is narrowly tailored to further its concededly significant interests. . . [S]ummary judgment in favor of Plaintiff [Lamar] is proper on that basis." Lamar Advertising v. City of Utica, U.S. Dist. Ct., East. Dist. Michigan, No. 09–14218, May 2, 2011, 819 F.Supp.2d 657.
Operator of a fleet of mobile billboards sued several cities, claiming that their regulations of mobile billboards, authorized by state law, are unconstitutional because the term "advertising" means commercial messages, and thus the rules are content based. Held: Under the state law, "if a vehicle is a bus, taxi, or truck, a billboard may be attached so long as the vehicle is primarily used to transport something other than the billboard, such as people or things. But if a truck is used primarily to ferry a billboard around town—to corral eyeballs to the billboards—then this truck may be regulated. . . . [T]he word "advertising" in the statute does not conjure a content-based regulation." Request for preliminary injunction denied. Lone Star Security & Video v. Los Angeles, other cities, U.S. Dist. Ct., Cent. Dist. CA, No. CV 11–2113, July 2, 2012; 2012 WL 2529404.
Digital Billboard Permit
The Township of Gaines Michigan denied a permit to install a new digital billboard because city law restricted billboards to locations "adjacent to M6" zoning district, and imposed a 4,000 foot separation between digital billboards. After the signco filed suit, the town replaced the phrase "adjacent to M–6" with the phrase "abut and have frontage on the M–6 right-of-way." Held: The change of text moots the challenge to the meaning of "adjacent." The proposed sign was within 4,000 of another billboard with a static face but which had a vested right to convert to digital. The permit denial was proper. Hucul Outdoor v. Charter Township of Gaines Michigan, U.S. District Ct., Western District, No. 1:11–CV–682, April 2, 2012, 2012 WL 1118638.
Sign Size Violation / Redressability
Grand Rapids Michigan refused to process applications for new billboard permits; the sign company alleged the sign ordinance was unconstitutional on several points. Held: Even if the company prevailed on its claims of unconstitutionality, it could still not be granted permits because the signs were proposed to be 300 or 678 sf in size, and the town bans all signs over 60 sf. The sign company lacks standing because the claim is not redressable. The case is dismissed from the federal court; state law claims may be heard in state court. Hucul Advertising v. Charter Township of Grand Rapids MI, WD No. 1:11–CV–376, March 15, 2012, 2012 WL 895916.
Billboard Size Limit
Outdoor Ad company sought permits for new signs with size of 672 sf; town law limited offsite signs in that area to 50 sf. Held: Under PA law, a blanket prohibition on billboards must be justified; billboards are not objectionable per se. The record contains substantial evidence that a 50 square-foot sign can clearly convey a message to passing motorists and function as a billboard. Signco failed to prove that erecting a conforming billboard was economically impractical. The Board’s decision was proper. Interstate Outdoor v. Zoning Hearing Board of Warrington Township, Commonwealth Ct. PA, Mar. 13, 2012, 39 A.3d 1019.
Offsite Ban / Redressability
Los Angeles refused to accept applications to rebuild billboards. The sign company sued, arguing that the rebuild provisions of the city’s sign code were unconstitutional. Held: Even if the rebuild provisions are unconstitutional, the signs would still be banned under the City’s "no new off-site signs" rule. The sign company lacks standing because the claim is not redressable. The trial court’s dismissal was proper. Show Media v. Los Angeles, 9th Cir. No. 10–57015, April 18, 2012, 2012 WL 1333415, not officially published.
Attorneys Fee Award
In earlier rulings the court held that a billboard company’s permit applications were denied for violation of a valid rule about sign size. 827 F.Supp.2d 1088 (N.D. Cal., Dec. 5, 2011). The sign company then applied for an attorney’s fee award under California’s "catalyst theory"–saying that the suit had prompted a sign ordinance revision that benefitted the public. Held: the sign company has not shown they attempted to settle prior to filing suit, or that the necessity for pursuing the lawsuit placed a burden on the plaintiff out of proportion to his individual stake in the matter. Given the failures of those required elements, the catalyst fee motion is denied. Herson v. Richmond CA, U.S. Dist. Ct., N.D. Cal., No. C 09–02516, March 9, 2012; 2012 WL 1189613.
"Bavarian Theme" Sign Rule
Commercial building operator sued City of Leavenworth WA charging a free speech violation based on rules requiring that "the design, lettering style, and color of signs be compatible with the ‘Old World Bavarian–Alpine theme’" of the town’s commercial / tourism district. Held: "The city’s rules do not prohibit public discussion of anything ‘non-Bavarian.’ No provision restricts, nor can the City reject a sign permit application, due to the viewpoint it contains." The regulations concern physical attributes such as size, shape, number, placement, font, colors, etc. Exemptions from the permit requirement do not allow the City to discriminate against ideas it disfavors. [T]he Bavarian theme is not content-based and the restrictions are not a form of ‘compelled speech.’" Summary judgment to the city. Demarest v. Leavenworth, U.S. Dist. Ct. Eastern WA, No. CV-11-0072, 6/27/2012, ___ F.Supp.2d ___, 2012 WL 2466512.
Owner of "Wag More Dogs" store–offering canine daycare, boarding, grooming, in a building next to a dog park–hired an artist to paint a large cartoon mural of happy dogs on the side of her building. www.wagmoredogs.com Held: the mural is business signage, not expressive artwork; it violates the size rule, which is valid. Wag More Dogs v. Artman, U.S.D.C. Eastern Dist. VA No. 1:10cv1347, 795 F.Supp.2d 377, Feb. 10, 2011, affirmed as Wag More Dogs v. Cozart, U.S. Ct. of Appeal, 4th Circuit No. 11-1226, May 22, 2012, 680 F.3d 359.
Owner of "Inland Octopus" toy store painted large murals of an octopus hiding behind a rainbow on the front and back exterior walls of his store www.inlandoctopus.com. He challenges the size and height restrictions (25% of wall area, 150 sf / frontage) that make his signs illegal. Held: The size and height restrictions are content neutral and reasonable. "[T]he city carefully considered its sign size and height restrictions. Its sign code was a product of its stated policy of ‘working with downtown businessmen to develop a workable sign code specifically for the downtown area.’" A building improvement guide . . . recommended a "sign should not dominate; its shape and proportions should fit your building . . ." The city used those considerations when choosing its sign size and height limitation in 1991, and it continues to rely on them. The rules are valid. Catsiff v. McCarthy, WA Appellate Ct. No. 30422–1–III, April 12, 2012, 167 Wash.App. 698, 274 P.3d 1063, 2012 WL 1232106.
Performance artists, dressed as Bigfoot (Sasquatch), Yoda (Star Wars) and a pirate, were expelled from Mount Monadnock State Park for not having a special use permit. Held: The special event permit is required for "organized or special events" that go "beyond routine recreational activities." These terms are not defined, and the rule applies even to small groups in a very large park. Many of the permit rules are unrelated the state’s interests in allocating park resources, mitigating the impacts of commercial events or preventing annoyance to other park visitors. The thirty day advance application is excessive. The permit requirement is unconstitutional as overbroad and cannot be enforced against these artists. Doyle v. Commissioner of New Hampshire Dept. of Resources, NH Supreme Court, No. 2011-420, Jan 13, 2012, 163 N.H. 215, 37 A.3d 343, 2012 WL 112228.
Billboard Near Future Interchange
Georgia Dept. of Transportation (GDOT) denied a permit for a new billboard because it was within 500 feet of a planned, but not yet built, interchange. Held: Since all preconstruction work on the interchange–planning, design, environmental review, funding–has been completed, and only actual construction remains, GDOT properly denied the permit as violating the rule of no billboards within 500 feet of an interchange. Eagle West LLC v. Georgia Dept. of Transport-ation, GA Ct of Appeals No. A11A1349, Nov. 28, 2011, 720 S.E.2d 317, 312 Ga.App. 882, 2011 WL 5903826.
Nonconforming Billboard / Changed Conditions
Original billboard was removed when owner and landlord could not agree on a new lease. Proponent of replacement billboard was denied state permit. Held: By the time the replacement billboard was proposed, the area had become multi-family residential; a new billboard structure would be illegal in that place. Once nonconforming signs are removed completely, or they have been repaired substantially or altered in some way, any right to the continuation of the noncon-formity terminates. Billboards Divinity v. Commissioner of Transportation, CT. App. #32860, Feb. 27, 2012, 133 Conn.App. 405, 35 A.3d 395.
A Town Zoning Board granted a variance to church, allowing it to replace old, unlighted sign with a new, larger, lighted sign. A neighbor challenged the variance. Held: The Zoning Board considered the variance factors and the benefits to the church against the impact on the neighborhood. The requested size increase was not substantial, the lighted portion of the sign generally turned off after sunset, and the new sign was not significantly larger than the old. Variance was proper. Sarat v. Preble ZBA, March 1, 2012, NY App. Div. 93 A.D.3d 921, 939 N.Y.S.2d 202.
Freedom From Religion
Each holiday season the City of Warren Michigan installs a holiday display consisting of various secular images, a prayer station, and a Nativity Scene, within the Atrium, a five story vaulted ceiling in City Hall. A small sign stands in front of the Nativity Scene stating that it is "sponsored and provided by the Warren Rotary Club." A local member of The Freedom From Religion Foundation sent a series of protest letters. The Mayor responded to the third, stating: "The city of Warren is NOT ‘promoting or endorsing religious beliefs.’ If we were doing this, other religions would not be allowed to display their religious holy seasons in our atrium. However, they have been allowed and will be allowed. In no way has ANY religion been excluded from displaying its holy season in city hall." The following year the protestor proposed a sign, to be located next to the Nativity scene, stating: "At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition that hardens hearts and enslaves minds." The Mayor answered this request by letter, stating: "This proposed sign is antagonistic toward all religions and would serve no purpose during this holiday season except to provoke controversy and hostility among visitors and employees at city hall. . . . Your non-religion is not a recognized religion." FFRF sued. Held: The relevant forum is the space next to the Nativity Scene. It is a limited public forum because the City has limited the Holiday Display to certain speakers and subjects. It has not been opened to the public at large or treated as though it were a traditional public forum. The purpose of the Holiday Display is to decorate the Atrium and, according to the Mayor, celebrate the traditional holiday season and promote good will. There is nothing indicating to the Court that the Holiday Display was intended as a forum for religious or political debate and consequently, non-celebratory advocacy and political statements are properly excluded from the display. It satisfies the elements of reasonableness and viewpoint neutrality. The FFRF sign was excluded because it addresses a topic not encompassed in the purpose of the forum. Summary judgment to the City. Freedom From Religion Foundation v. Warren Mich., U.S. Dist. Ct., Eastern Dist., No. 11–15617, May 31, 2012, ___ F.Supp.2d ___, 2012 WL 1964113.
Road Commission denied permission for Nativity Scene on landscaped road median. The median had traditionally been used for a variety of expressive purposes, and was accessible from public sidewalk; thus it was a traditional public forum. Denial of permission to display the Nativity Scene violated equal protection rights. Satawa v. Macomb County Road Commission, Sixth Cir. No. 11–1612, Aug. 1, 2012, ___ F.3d. ___, 2012 WL 3104511.
Three Layers of Regulation
Billboard company got permits from non-incorporated town and state Dept. of Transportation; county demanded that its permit was also required. Held: Town’s billboard law does not pre-empt county law because the sign is located outside the limits of incorporated villages and cities; in such areas, the county has zoning authority over structures; billboards are within the definition of "structure." . . . [B]oth the County and the Town share regulatory authority over billboards located on property that abuts the subject highway maintained by the Town." Adams Outdoor v. Town of Madison WI, WI App No. 2010 AP 178, Feb. 2, 2012, 340 Wis.2d 175, 811 N.W.2d 421, 2012 WL 375232, 2012 WI App 28.
Utah law states that "[T]he owner of [an outdoor advertising] sign may adjust the height of the sign" if its "view and readability . . . is obstructed" by an "improvement created on real property" that was formerly owned by the state. Reagan Outdoor sought a permit to raise the height of a billboard whose visibility had been impaired by a new hotel sign built on land formerly owned by the Utah DOT. Two days before the hearing, the hotel removed the new sign at the State’s expense. The City’s Board of Adjustment denied the request to increase the height to 83 feet. Held: The Board’s decision is adequately supported because 1) not enough information was submitted by Reagan concerning the minimum height necessary; 2) the height issue is not moot because the hotel’s parking lights may create a continuing obstruction. ROA General dba Reagan Outdoor v. Salt Lake City Corp. U.S. Dist. Ct. UT, No. 2:10–CV–00020, Feb. 3, 2012, 2012 WL 380127.
Sign Regulation / Public Forum Bulletin - Summer 2012
published by and copyright (c) 2012 by Randal R. Morrison
All rights reserved.
Randal R. Morrison
Sabine and Morrison
PO Box 531518
San Diego CA 92153-1518