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.
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.
Standing: As a threshold issue, the Court considered whether the Plaintiffs had standing to challenge provisions of the Town’s sign ordinance that did not have bearing on whether the Church was allowed to install an electronic sign on its property. Although some provisions of the sign ordinance arguably made content-based restrictions, subject to a more rigorous standard of judicial review as stated in Reed v. Gilbert, the Court concluded that code provisions “not fairly traceable” to Plaintiffs’ injuries were not subject to challenge. For those provisions of the sign code that were fairly traceable to the alleged injuries, the Plaintiffs had standing.
Content Neutral: Next, in considering the Church’s Free Speech claim, the Court evaluated whether the sign ordinance as applied to the Church is a content-based regulation. While content-based regulations must further a compelling government interest and be narrowly tailored to further such interest, content-neutral regulation of speech need only pass an “intermediate” level of scrutiny. The Court rejected the Plaintiffs’ argument that the sign ordinance made impermissible speaker-based distinctions because grandfathered uses (including a gas station electronic sign approved before the e-sign ban was passed) were favored over the Church. In considering the grandfathered gas station, it noted that New Hampshire state law “broadly exempts all preexisting nonconforming uses of property from local zoning requirements.” The Court also found it irrelevant that government land uses are not subject to the electronic sign ordinance. Significantly, all government land uses are exempt from local zoning ordinances pursuant to state law. Therefore, the publicly-funded Pembroke Academy’s electronic sign – which the Plaintiffs contended received preferential treatment, since the Academy was permitted an electronic sign while they were not – did not influence the court’s analysis.
Aesthetic and Traffic Safety: Finding the electronic sign ordinance content neutral, the court next concluded that its provisions were narrowly tailored to the “significant governmental interest[s]” of aesthetics and traffic safety and did not violate Free Speech. Given that there was no evidence of “ulterior purpose” in the Town’s application of the ordinance, a stricter level of judicial review was not required. Additionally, the sign ordinance left ample alternative channels of communication for the Church to convey its message. Indeed, the Church could continue to use its manually changeable sign to convey its message.
Additional Counts: The Church’s Free Exercise claim was dismissed in short order, given that the electronic sign ordinance was found content neutral and generally applicable (see Employment Division v. Smith,). Next the Church’s Equal Protection claim was dismissed because neither of the comparators put forward by Plaintiffs (the preexisting gas station and the public Pembroke Academy) were similarly situated to the Church. Since the Town had no authority to regulate the Academy, a subdivision of the state, it was not comparable. Likewise, state law prohibits the regulation of preexisiting nonconforming uses like the gas station.
Relying on the First Circuit calculus articulated in Roman Catholic Bishop of Springfield v. City of Springfield (post here), the court dismissed the Church’s substantial burden claim, finding the electronic sign denial was not “oppressive” or “worrisome.” The Church could still maintain its manually changeable sign, and it “is not entitled to the most efficient or inexpensive means of communicating its message.” Given the lack of sufficiently similar comparators treated more favorably than the Church, the court also dismissed the RLUIPA equal terms claim.
Two Important Points: (1) In its substantial burden analysis, the court notes that the Town acted in a “well-considered and straightforward manner.” Its decision was not made arbitrarily, and “Board members educated themselves on the issues of federal law before reaching a final decision on the Church’s requests.” The take away? RLUIPA training is important, as it will educate officials to best avoid – or at least mitigate the threat of – possible RLUIPA liability, and (2) At least one federal court has reached nearly the opposite conclusion. Before denying the next electronic, religious sign that comes before you, read our post regarding Corporation of the Catholic Archbishop of Seattle v. City of Seattle, No. C13-1589 (W.D. Wa. 2014), here.
The District Court of New Hampshire’s decision in Signs for Jesus and Hillside Baptist Church v. Town of Pembroke and Hodge, is available here.