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!

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

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

Since 2015, San Francisco, California, has attempted to regulate the sharing economy by allowing short-term rentals under certain conditions.  These conditions include requirements that the host register the premises with the city, and also that the host demonstrate proof of liability insurance, compliance with local codes, and payment of taxes.  The city later revised the ordinance to prohibit listing of short-term rentals on sites such as Airbnb without prior city registration.  The latter prohibition would impose potential liability on Airbnb, HomeAway, and other short-term rental websites that post listings without prior city registration.

In June 2016, Airbnb and HomeAway filed a lawsuit against San Francisco.  The city responded in August 2016 Continue Reading Court Denies Preliminary Injunction in San Francisco Airbnb Case

On Wednesday, November 9th, to celebrate the end of election season, the American Bar Association’s Section of Real Property, Trusts, and Estates will be holding a free teleconference on post-Reed speech regulation cases.  The dial-in information and a description of the call can be found below, and we hope that our readers will tune in:

Land use and Environmental Group (RP)
3:00 p.m. – 4:00 p.m. CST/4:00 p.m. – 5:00 p.m. EST
Call–in number: 866–646–6488
Participant Passcode: 601 676 1423
Group webpage

Our November call is hosted by the Land Use and Zoning Committee and will feature guest speaker Brian J. Connolly, Esq., of Otten Johnson Robinson Neff & Ragonetti, based in Denver, Colorado.  Brian will discuss key principles in municipal signage regulation, particularly with regard to election and political signs.  He will also cover recent developments in this area of the law in the wake of the Supreme Court’s 2015 decision in Reed v. Gilbert.  Please join us for this fun-filled, bi-partisan, post-election land use discussion!

The editor and authors of the Rocky Mountain Sign Law blog are pleased to announce that we will be participating in several upcoming programs on the topics of sign regulation and other free speech and land use matters.  We hope that our readers will have the opportunity to attend or tune into one of these upcoming programs:

  • On Monday, October 24, 2016 at 10:15 a.m. MT, Brian Connolly will, along with Don Elliott of Clarion Associates and Todd Messenger of Fairfield and Woods, P.C., lead a program entitled “Defining Sign & Other Pesky Sign Regulation Problems” at the 2016 annual conference of the Colorado Chapter of the American Planning Association in Colorado Springs, Colorado.
  • On Wednesday, October 26, 2016, Brian Connolly will lead a two-part workshop at the 2016 Planning Michigan Annual Conference in Kalamazoo, Michigan.  The first part of the workshop will be a discussion of Reed v. Town of Gilbert and some of the case law that has come down since the Supreme Court’s 2015 decision.  The second part of the workshop will be a sign code “fix-it” clinic, where attendees will review their own sign codes for content neutrality and other First Amendment problems.
  • On Friday, November 4, 2016, Brian Connolly will be addressing CLE International’s 22nd annual Land Use Law: How-To conference on the topic of sign regulation after Reed v. Town of Gilbert.
  • On Friday, January 6, 2017, Brian Connolly will be speaking on “Update on Zoning and First Amendment Cases Since the Supreme Court’s Ruling on Sign Regulation in Reed v. Town of Gilbert” at the 34th Annual National CLE Conference in Snowmass, Colorado.
  • Mark your calendar for the annual Rocky Mountain Land Use Institute conference at the University of Denver Sturm College of Law March 15-17, 2017.  Brian Connolly will speak on a panel at the conference with Cameron Artigue of Gammage & Burnham about signs, free speech, religious land uses, and much more.
An inflatable rat in Grand Chute, Wisconsin.
An inflatable rat in Grand Chute, Wisconsin.

In 2014, a labor union decided to protest the practices of an employer in Grand Chute, Wisconsin by placing large inflatables in public right-of-ways.  These inflatables included a giant rat and a large cat wearing a suit and strangling a worker.  Grand Chute’s sign code prohibited the placement of private signs in the right-of-way.  After the town government took enforcement action against the union, a federal district court denied the union’s request for a preliminary injunction and granted summary judgment in favor of the town.

On appeal from the summary judgment order, however, Judge Easterbrook, writing for the panel, questioned whether the case involved a live controversy.  Continue Reading Seventh Circuit: Wisconsin “Rats and Cats” Case May Be Moot

Late last month, the First Circuit Court of Appeals upheld a lower court decision finding that a New Hampshire law prohibiting digital photography of completed election ballots violated the First Amendment.  In the case of Rideout v. Gardner, the court found that the law was not narrowly tailored to a significant governmental interest, and therefore failed intermediate scrutiny review.

The New Hampshire law in question was commonly referred to as the “ballot selfie” law, since it prohibited individuals from taking cell phone photographs of themselves with their completed ballots.  The law was a 21st century update of an earlier state law dating back to the late 1800s Continue Reading First Circuit Rejects New Hampshire “Ballot Selfie” Law