We interrupt our regularly scheduled First Amendment programming to bring our readers some information about an upcoming American Planning Association webinar that may be of interest.  See below for information and how to register:

 

Webcast— Controlling the Local Impacts of Hydrofracking

June 7, 2017

1:00 p.m. – 2:30 p.m. EDT

CM 1.50
L 1.50

CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Controlling the Local Impacts of Hydrofracking on Wednesday, June 7, 2017 from 1:00 p.m. to 2:30 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.

Hydrofracking will occur in many states, but federal and state agencies will not regulate many of the adverse local impacts of unconventional gas exploration. On the other hand, local governments will, and without expert guidance may be inclined to prohibit the practice. Some states will respond to local bans by stripping local governments of their authority.

It is vital, therefore, to develop best practices for controlling unregulated local impacts and to deliver them effectively to local governments and leaders. This program will outline the regulatory framework, identify local impacts (positive and negative), and conclude with an exploration of strategies—including both regulatory and non-regulatory actions—that local governments can use to address those impacts.

Speakers include Jessica Bacher, Executive Director of the Land Use Law Center at Pace Law School and Joshua Galperin, a clinical lecturer and director in law at Yale Law School and the Environmental Law and Policy Program Director at the Yale School of Forestry and Environmental Studies.

Register here

Donation boxes in Oakland, California. Source: East Bay Express.

Yesterday, in a case that we have been following for the past year, the Ninth Circuit Court of Appeals affirmed a California federal district court’s denial of a motion for preliminary injunction in a case pertaining to unattended donation and collection boxes in Oakland.

The plaintiff, a nonprofit group called Recycle for Change, places donation and collection boxes around Oakland in order to obtain donated materials for the dual purpose of conserving environmental resources and raising funds for charity.  The city enacted an ordinance in 2015 to regulate unattended donation and collection boxes, which included a requirement that the property owner or operator of the boxes obtain a permit, produce a site plan, and carry at least $1 million in liability insurance.  The license fee established under the permitting scheme is $246 per year, and the initial application fee for the permit is $535.  The city’s regulations require maintenance of the boxes, place restrictions on the size and location of the boxes, and prohibit the placement of boxes within 1,000 feet of one another.

Recycle for Change sued Oakland on First Amendment and Equal Protection Clause grounds.  The district court denied the plaintiff’s motion for preliminary injunction. Continue Reading Ninth Circuit Affirms Denial of Preliminary Injunction in Oakland Donation Box Case

Dairy cows at Ocheesee Creamery. Source: Institute for Justice.

Some questions probably never need to be answered, and the universe of such questions might include the question: “what exactly is skim milk?” In a decision that sheds light on the current state of the commercial speech doctrine—and which may provide some helpful guidance for our local government readers—the Eleventh Circuit additionally provides some good analysis of low-fat dairy products. Continue Reading What is Skim Milk? Eleventh Circuit Provides Some Insight in Commercial Speech Decision

This weekend (May 6th-9th, 2017) brings us to the American Planning American’s National Conference in New York City.  Along with colleagues from around the country, we’ll be talking about everything land use and the First Amendment, from signs to adult businesses, religious land uses, and the public forum doctrine.  If you’re planning to be at the conference, please join us for the following panel presentations:

  • On Monday, May 8 at 4:15 p.m. ET, Brian Connolly will join Evan Seeman of Robinson & Cole and Noel Sterrett of Mauck & Baker in a presentation entitled “Planning and Zoning for First Amendment-Protected Land Uses,” which focus on sign regulation, regulation of religious land uses, and adult business regulation, among other interesting topics.  The speakers recently co-wrote an article that appeared in the newsletter of the American Planning Association’s Planning & Law Division on these topics, which can be found here.
  • On Tuesday, May 9 at 7:45 a.m. ET, Brian Connolly and Alan Weinstein, professor of planning and law at Cleveland State University, will present on “Planners and the Public Realm: Legal Rights and Planning Issues,” which will dive more deeply into the public forum doctrine and the opportunities and constitutional limitations associated with planning for public spaces.

We look forward to seeing many of our friends and readers in New York!

A street performer on the Ocean City Boardwalk. Source: Maryland Coast Dispatch.

Late last month, a federal district court judge denied Ocean City, Maryland’s motion to dismiss First Amendment claims brought by a group of street performers.  Ocean City passed an ordinance that designated a limited number of performance spaces on the city’s famous Boardwalk, which are assigned by a lottery system every Monday morning.  Performers are required to be present at the Town Clerk’s office for the lottery drawing.  The performers are then assigned to designated performance spaces, which are limited in size, and performers are restricted from performing in the same space for more than two weeks at a time.  The city’s ordinance also precludes performers from using paint, dye, or ink, which prohibits them from doing face-painting or other such activities.

The group of street performers filed federal and state constitutional claims.  In its order, the court noted that the artistic performances of the street performers fall within the protection of the First Amendment, and that the limitations in the ordinance must constitute content neutral time, place, and manner restrictions.  The court denied the motion to dismiss on the grounds that the complaint alleged that the code provisions were broader than necessary to achieve the city’s asserted interests, which, given that the court cannot at the pleading stage make a determination regarding the regulations’ content neutrality and tailoring, was sufficient for the litigation to move forward.

Christ v. Mayor of Ocean City, No. WMN-15-3305, 2017 WL 1382315 (D. Md. Apr. 18, 2017)

In a case that we reported on last year, a federal district court in California granted summary judgment in favor of the City of San Diego in a case involving art murals.

Some of the facts of the case are reported in our prior post.  The San Diego sign code exempts from permitting “[p]ainted graphics that are murals, mosaics, or any type of graphic arts that are painted on a wall or fence and do not contain copy, advertising symbols, lettering, trademarks, or other references to the premises, products or services that are provided on the premises where the graphics are located or any other premises.”  Otherwise, all signs visible from the right of way are required to obtain a permit, and signs on city-controlled property must obtain a permit as well.  Messages on city-controlled property are limited to on-premises speech and “public interest” messages.  As we previously noted, the plaintiff, a mural company, was granted approval to place two wall murals in San Diego, but received a violation for the placement of a third mural.  The plaintiff believes that the annual Comic-Con event was given special treatment by the city, because certain signs posted around the city during the event were not issued citations. Continue Reading San Diego’s Motion for Summary Judgment Granted in Mural Case

Last week, the U.S. District Court for the District of Montana issued an order granting the City of Missoula’s motion for summary judgment in a case challenging the constitutionality of its sign code.  The court found that the city’s code was content neutral as applied to the plaintiff, and that the code satisfied the Central Hudson intermediate scrutiny test for commercial speech regulations.

Carwerks, a used car dealership in Missoula, challenged the city’s sign code after the city issued several citations to Carwerks for placing helium balloons on its vehicles in violation of a code provision that prohibited banners, flags, pennants, streamers, spinners, and “other types of wind signs.”  Carwerks claimed that the sign code was content based and failed the Central Hudson test.  Carwerks took issue with two aspects of the ordinance:  first, that the code distinguished between commercial and noncommercial speech; and second, that the code’s definition of “sign” exempted window displays and national flags. Continue Reading Missoula, Montana Sign Code Withstands First Amendment Challenge

Last week, the federal Ninth Circuit Court of Appeals ruled that a tattoo shop owner had standing to challenge Long Beach, California’s zoning regulations.  The regulations had the effect of precluding the owner from operating his business in Long Beach.

James Real, who owns a tattoo parlor in Huntington Beach, California, sought to open a tattoo parlor in Long Beach.  Long Beach’s zoning regulations do not allow tattoo parlors in most zoning districts in the city; require a conditional use permit for operation of a tattoo parlor; may not be located less than 1,000 feet from another tattoo shop, adult entertainment use, arcade, or tavern; and tattoo parlors’ business hours are strictly limited.  Real sought approval from the city to locate in one of three locations, but the city responded by informing Real that none of the locations allowed for a tattoo parlor.

Real filed suit under the First Amendment, alleging that his tattooing was First Amendment-protected activity, and that the city’s zoning regulations were not proper time, place, and manner regulations and constituted an unconstitutional prior restraint.  The district court held that Real did not have standing to challenge the zoning regulations because he had failed to apply for a conditional use permit. Continue Reading Ninth Circuit: Tattoo Parlor Owner Has Standing to Bring First Amendment Claims

The case involved a dispute between the Minnesota Tea Party and election judges. Source: MinnPost.

In February, the Eighth Circuit Court of Appeals affirmed a Minnesota district court’s grant of summary judgment in favor of the state, finding that the government could effectively prohibit political speech in polling places.  In a short decision, the court determined that speech by members of the Tea Party was properly restricted from polling locations.

Minnesota has a state statute that prohibits individuals from wearing political buttons or other insignia in polling places on election days.  The state issued a policy guide which was intended to assist election judges with the types of material that constituted political speech, which included “issue-oriented” material or material that promoted groups with political ends.  Failure to abide by the restriction could result in prosecution for a criminal misdemeanor.  The group that challenged the law included several members who wished to bear the insignia of the Tea Party in polling places. Continue Reading Eighth Circuit Affirms That Government Can Prohibit Political Speech in Polling Places

An advertisement for the organization Keep Chicago Livable states that home sharing is a “fundamental right,” yet the district court disagreed that home sharing implicated First Amendment rights.

Two weeks ago, a federal court in Illinois denied a request for a preliminary injunction against the City of Chicago’s recently-enacted short-term rental ordinance.  In its order, the court determined that the ordinance, which seeks to regulate individuals’ rental of units on Internet-based services such as Airbnb, VRBO, or HomeAway, did not affect the plaintiffs’ First Amendment rights to free speech.  The decision marks an interesting constitutional development in continued efforts by local governments to regulate short-term rentals.

In summer 2016, Chicago enacted what it calls the “shared housing ordinance,” or SHO.  The SHO requires hosts of units available for short-term rent to register their housing units with the city prior to listing their units on any Internet-based services.  Airbnb, VRBO, HomeAway and other services are also required to register with the city.  As applied to individuals, the SHO imposes requirements on the services provided by the short-term rental, and also requires individuals to maintain guest registries, and post their licensing information at the unit. Continue Reading Chicago Short-Term Rental Ordinance Does Not Implicate First Amendment: Federal District Court