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.

On the city’s motion for summary judgment, the court treated the signs in question as commercial speech and analzyed the regulations under the Central Hudson test, finding that the regulations easily passed constitutional muster.  In the court’s view, the city had established that its interests in optimizing communication and aesthetics were substantial, and that the restrictions directly advanced these interests without going further than necessary.  The court did not provide any analysis to support its conclusion that the speech in question was commercial.  In response to the plaintiff’s arguments that the mural exception undermined the city’s asserted interests, the court disagreed.  And consistent with other lower courts’ recent holdings, the court rejected the plaintiff’s argument that Reed v. Town of Gilbert had invalidated the on-premises/off-premises distinction.

Furthermore, responding to the plaintiff’s claims that the San Diego sign code was unconstitutionally vague, the court, while noting that “the sign ordinance at issue is far from a paragon of clarity,” found that the mural exception, public interest exception, and on-premises/off-premises distinction were sufficiently clear.  The court also rejected the plaintiff’s prior restraint, selective enforcement, due process, and intentional interference with prospective business advantage claims.

ArchitectureArt, LLC v. City of San Diego, ___ F. Supp. 3d __, 2017 WL 1226913 (S.D. Cal. Jan. 6, 2017).

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.