Last week, a federal district court in Massachusetts accepted a nude dancing establishment’s argument that the City of Chelsea violated the First Amendment in denying a building permit for renovations to the business’s premises.  In so doing, the court struck down the city’s adult business zoning regulations and directed the city to treat the establishment under other use classifications contained in the code.

Chelsea’s zoning code provides for several zoning districts, including industrial, highway business, shopping center, and retail commercial business districts.  The code allows for an “art use”, defined as “the creation, manufacture or assemblage of visual art, including two or three dimensional works of fine art or craft, or other fine art objects created, manufactured or assembled for the purpose of sale, display, commission, consignment or trade by artists or artisans; or classes held for art instruction,” in the industrial district, and by special permit in the retail business and highway business districts.  The code also allows for theater uses in the retail and shopping center districts, and adult entertainment uses in the highway commercial and shopping center districts.  Adult entertainment uses and theater uses are not allowed in the industrial district. Continue Reading Massachusetts Court Strikes Down Local Adult Business Regulations

We take a break from our regularly-scheduled programming to make an announcement on behalf of the Planning and Law Division of the American Planning Association regarding a topic that may be of interest to some of our readers in the land use and municipal law worlds…

Webcast— Drone Technology: Implications on Policymaking and Design of the Built Environment

March 13, 2017

12:30 – 2:00 PM EDT

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The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Drone Technology: Implications on Policymaking and Design of the Built Environment on Monday, March 13, 2017 from 12:30 to 2:00 p.m. EDT. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

The educational objective of this course is to discuss the implications of emerging drone technology on city and town planning. Featuring specialists in the fields of law, urban design, and policymaking, this webinar will examine federal and local legislation pertaining to unmanned aerial vehicles (UAVs). Drone operations raise several concerns for the public given their wide range of recreational and commercial current uses. We will discuss regulations pertaining to these issues and explore how future zoning regulations can best guide the use of drones in our built environment.

Speakers include Dwight Merriam, FAICP, of Robinson & Cole; Jordan Petersen, RLA, LEED AP, of ColeJenest & Stone; Timothy Yin, Director of Data and Privacy at Startup Policy Lab; and Daniel Bolin of Ancel Glink.

The Great Hall of the Jeppesen Terminal at Denver International Airport. Source: Denver Post.

Last week, a federal district judge in Colorado partially granted a motion for preliminary injunction filed by two individuals who sought to protest President Trump’s executive order banning immigration from seven predominantly Muslim countries.  The court found that the plaintiffs were likely to succeed on the merits of their claim, which was filed in connection with demonstrations held at Denver International Airport immediately following the order.

Denver regulates First Amendment activities at its airport via a municipal regulation that requires demonstrators to first obtain a permit, which must be applied for no more than 30 and no less than seven days before the proposed activity.  In addition, any signs carried by protestors may not exceed one square foot, and picketing by more than two persons on items unrelated to a labor dispute is generally prohibited throughout the airport.  The chief executive officer of the airport has the discretion under the regulation to determine where protest activity may occur. Continue Reading Court Grants Preliminary Injunction in Trump Immigration Ban Protest Case

The Taboo adult novelty store in Columbia, South Carolina. Source: thestate.com.

In an unpublished decision issued in late January, the Fourth Circuit Court of Appeals held that a Columbia, South Carolina regulation limiting the locations of adult businesses was a valid, content neutral regulation, applying what is commonly known as the “secondary effects” doctrine.  That doctrine allows local governments to specially regulate adult businesses in a content neutral manner on the grounds that such regulations counter the secondary effects—such as crime, prostitution, and neighborhood blight—of such businesses.

In December 2011, an adult business—“Taboo”—opened the only adult business establishment in Columbia, a book and novelty store.  That same month, Columbia enacted restrictions on adult businesses, including a 700-foot dispersal requirement from “sensitive” uses such as religious institutions, schools, parks, and residential uses, as well as a 1,000-foot dispersal requirement from other adult uses.  The regulations allowed a two-year amortization period in which an adult business in one of the restricted areas could operate before being shut down.  Taboo was located in one of the restricted areas, and continued to operate for the amortization period.  At the end of the amortization period, Taboo sued the city under the First Amendment. Continue Reading Secondary Effects Doctrine Lives On in Fourth Circuit Decision

This post was originally authored by Evan Seeman and Karla Chafee of Robinson + Cole, LLP.  Any views reflected in this post are the views of the original authors. 

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Thou shall have the right to an electronic sign?  Apparently not.  Just over a year ago, Hillside Baptist Church and Signs for Jesus (together, Plaintiffs or Church) filed a complaint in the District Court for New Hampshire, seeking a declaration that the Town of Pembroke’s (the Town) sign ordinance is unconstitutional both facially and as applied to the Plaintiffs.  The complaint alleged that the Town’s Ordinance banning the use of electronic signs in all but the Town’s commercial zoning district “restricts how the Church may proclaim a daily Biblical message while not restricting the medium of communicating state, municipal or school messages.”  Our post regarding the complaint is available here.

The Plaintiffs claimed that the Town’s limitation on electronic signs in all zones but the commercial zone, and the Town’s denial of the Church’s sign application violated its rights to Free Speech, Free Exercise of Religion, and Equal Protection, as well as RLUIPA’s substantial burden and equal terms provisions. Continue Reading RLUIPA Defense: Signs 4 JC Shown the Light by NH District Court

Last week, another local sign code was found content based and unconstitutional, this time in North Redington Beach, Florida.

A local business, Sweet Sage Café, was issued notices of violation for several alleged violations of the town’s sign code.  In response, the café filed First Amendment claims against the town, which is a small coastal community along the Gulf of Mexico.  The town’s sign code had several features of sign codes that are commonly understood to be unconstitutional post-Reed:

  • The town’s definition of “sign” had several arguably content based elements, including “Drawings of articles for sale on the premises that is related to the business and/or is intended to advertise or inform, rather than being merely aesthetic, shall be classified as a sign under this Chapter. The term does not include an official traffic control sign, official marker, national or state flags permitted by this Chapter, athletic scoreboards, or the official announcements or signs of government.”
  • The town exempted several types of signs from permitting on the basis of their message, including “national flags shown in accordance with the standards of the Adjutant General,” warning signs, murals, holiday decorations, memorial signs or tablets, garage sale signs, real estate open house signs, political campaign signs, “no trespassing” signs, and others.

The town issued notices of violation to Sweet Sage Café for a series of flip-flop sandal footprint decals Continue Reading Florida Town’s Sign Code Found to Violate First Amendment

Wagner’s sign in Garfield Heights. Source: Cleveland Plain Dealer.

Earlier this month, the Sixth Circuit Court of Appeals upheld an Ohio district court’s decision to permanently enjoin the enforcement of the City of Garfield Heights’s sign code.  The court found that the sign code’s restriction of “political signs” to six square feet was content based and unconstitutional.

The case began in September 2011, when local resident Frank Wagner wanted to protest a local councilwoman’s support of traffic cameras and a waste disposal tax.  Wagner placed a sixteen-square foot sign in his front yard that called out the councilwoman.  Continue Reading Ohio City Loses Political Sign Battle

A tattered campaign sign on a D.C. lamppost. Source: Washington Times.

Yesterday, the Court of Appeals for the D.C. Circuit determined that Washington, D.C.’s regulation of event-based signage on public lampposts is not content based.  On its face, the court’s decision appears to conflict with one of the central holdings of the Supreme Court’s 2015 decision in Reed v. Town of Gilbert.  But the lengthy, well-written opinion made significant efforts to distinguish the case from Reed, and the D.C. Circuit’s decision potentially offers new avenues for local governments to control proliferations of signage.

Washington, D.C. has long regulated signage on public lampposts. Continue Reading In Apparent Departure From Reed, D.C. Circuit Says Event-Related Sign Restrictions Are Not Content-Based

Earlier this month, the First Circuit Court of Appeals held that a group of abortion protesters did not have standing to challenge a New Hampshire buffer zone law.  The First Circuit’s decision affirmed a decision by the federal district court, which we reported on last summer.

The law in question prohibited protesters from entering within 25 feet of the entrance to a reproductive health care facility.  Following the U.S. Supreme Court’s decision in McCullen v. Coakley, enforcement of the New Hampshire law was stayed.  A group of protesters filed suit anyway, but the district court found that the plaintiffs had suffered no injury since the law had not been enforced and was not likely to be enforced against them.

The First Circuit agreed with the district court that, because injury was not imminent, the group of protesters lacked standing.  The appeals court also held that the challenge was not ripe, as the court could not meaningfully decide the case and there was no prejudice to the plaintiffs if they were required to wait until their claims ripen.

Reddy v. Foster, ___ F.3d ___, 2017 WL 104825 (1st Cir. Jan. 11, 2017).

This post was originally authored by Evan Seeman, Karla Chafee, Dwight Merriam, and John Peloso of Robinson + Cole, LLP.  Any views reflected in this post are the views of the original authors. 

The Missouri Court of Appeals has ruled that the Kansas City, Missouri, Board of Adjustment abused its discretion in failing to grant a variance to Antioch Community Church (Church) to install digital components into its monument sign.  The Church argued that absent the variance it had practical difficulty in communicating its message.  In the alternative, the Church contended that the zoning code violated the First Amendment “by favoring less-protected commercial speech over more-protected non-commercial speech.”  Under the code, schools and churches on lots 15 acres or more (or 10 acres or more if located on a major arterial road) are allowed to use digital signs.  Because the Church’s lot was less than 10 acres, the code prohibited it from having a digital sign on its property.

The Church property is in a single-family residence zone next to commercial, urban residential, downtown, and industrial zones, all of which permit digital signs.  The Church is located on Antioch Road, a four-land roadway with about 14,000 travelers each day.  Since 1956, the Church has had a monument sign consisting of glass display cases surrounded by brick framework.  The sign included messages and information about Church activities that were manually  added using letters hung from cup hooks.  In 2010, at a cost of $11,000, the Church installed a digital sign, which replaced the display case, but no changes were made to the brick surround.  At this time, the Church was unaware that the Kansas City sign ordinance prohibited digital signs in residential zones (Section 88-445-06-A-4 of the code).  Accordingly, the Church did not seek a variance before installing the digital sign component. Continue Reading RLUIPA Defense: Missouri Church Wins Digital Sign Appeal