The Town of Southeast’s sign regulations provided an exemption from permitting for political signs, so long as their placement did not exceed 21 days. In 2011, the code was amended to provide that the posting could occur up to 21 days before the event being advertised, and the signs had to be removed five days after the event.  Durational limits were not placed on other types of noncommercial signage.  In 2011, the plaintiff was charged in town court with a violation of the sign regulations for posting her political signs in the right-of-way and more than five days after an election.  In 2013, the Town amended the code again to limit the number of political signs to one per candidate per parcel.  In 2014, the Town amended the sign code to create strict limitations on all temporary signs, but exempted construction signs, portable business signs, real estate “for sale” signs, holiday decorations, agricultural produce advertising, and some other signs.

Finding that the plaintiff had standing to challenge the updated code and that the case was not moot, the court proceeded to find the political sign regulations invalid.  Because the law burdened core political speech, the court noted that the sign code was presumptively unconstitutional.  And because the code was content based—it distinguished between signs on the basis of the signs’ message—the court applied strict scrutiny and found that the regulation was not justified by a compelling governmental interest (“While aesthetics, public health, safety, and welfare, and property values, the interests the 2014 Law explicitly exists to address, qualify as ‘substantial interests,’ Defendant cites no case law—nor is this court aware of any—finding that such interests are compelling . . .”) and that it was not narrowly tailored.

Marin v. Town of Southeast, ___ F. Supp. 3d ___, 2015 WL 5732061 (S.D.N.Y. Sep. 30, 2015)

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.