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
Missoula, Montana Sign Code Withstands First Amendment Challenge
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.
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Chicago Short-Term Rental Ordinance Does Not Implicate First Amendment: Federal District Court
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.
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Massachusetts Court Strikes Down Local Adult Business Regulations
Last week, a federal district court in Massachusetts accepted a nude dancing establishment’s argument that the City of Chelsea violated the First Amendment in denying a building permit for renovations to the business’s premises. In so doing, the court struck down the city’s adult business zoning regulations and directed the city to treat the establishment under other use classifications contained in the code.
Chelsea’s zoning code provides for several zoning districts, including industrial, highway business, shopping center, and retail commercial business districts. The code allows for an “art use”, defined as “the creation, manufacture or assemblage of visual art, including two or three dimensional works of fine art or craft, or other fine art objects created, manufactured or assembled for the purpose of sale, display, commission, consignment or trade by artists or artisans; or classes held for art instruction,” in the industrial district, and by special permit in the retail business and highway business districts. The code also allows for theater uses in the retail and shopping center districts, and adult entertainment uses in the highway commercial and shopping center districts. Adult entertainment uses and theater uses are not allowed in the industrial district.
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Secondary Effects Doctrine Lives On in Fourth Circuit Decision
In an unpublished decision issued in late January, the Fourth Circuit Court of Appeals held that a Columbia, South Carolina regulation limiting the locations of adult businesses was a valid, content neutral regulation, applying what is commonly known as the “secondary effects” doctrine. That doctrine allows local governments to specially regulate adult businesses in a content neutral manner on the grounds that such regulations counter the secondary effects—such as crime, prostitution, and neighborhood blight—of such businesses.
In December 2011, an adult business—“Taboo”—opened the only adult business establishment in Columbia, a book and novelty store. That same month, Columbia enacted restrictions on adult businesses, including a 700-foot dispersal requirement from “sensitive” uses such as religious institutions, schools, parks, and residential uses, as well as a 1,000-foot dispersal requirement from other adult uses. The regulations allowed a two-year amortization period in which an adult business in one of the restricted areas could operate before being shut down. Taboo was located in one of the restricted areas, and continued to operate for the amortization period. At the end of the amortization period, Taboo sued the city under the First Amendment.
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RLUIPA Defense: Signs 4 JC Shown the Light by NH District Court
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.
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Florida Town’s Sign Code Found to Violate First Amendment
Last week, another local sign code was found content based and unconstitutional, this time in North Redington Beach, Florida.
A local business, Sweet Sage Café, was issued notices of violation for several alleged violations of the town’s sign code. In response, the café filed First Amendment claims against the town, which is a small coastal community along the Gulf of Mexico. The town’s sign code had several features of sign codes that are commonly understood to be unconstitutional post-Reed:
- The town’s definition of “sign” had several arguably content based elements, including “Drawings of articles for sale on the premises that is related to the business and/or is intended to advertise or inform, rather than being merely aesthetic, shall be classified as a sign under this Chapter. The term does not include an official traffic control sign, official marker, national or state flags permitted by this Chapter, athletic scoreboards, or the official announcements or signs of government.”
- The town exempted several types of signs from permitting on the basis of their message, including “national flags shown in accordance with the standards of the Adjutant General,” warning signs, murals, holiday decorations, memorial signs or tablets, garage sale signs, real estate open house signs, political campaign signs, “no trespassing” signs, and others.
The town issued notices of violation to Sweet Sage Café for a series of flip-flop sandal footprint decals
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Ohio City Loses Political Sign Battle
Earlier this month, the Sixth Circuit Court of Appeals upheld an Ohio district court’s decision to permanently enjoin the enforcement of the City of Garfield Heights’s sign code. The court found that the sign code’s restriction of “political signs” to six square feet was content based and unconstitutional.
The case began in September 2011, when local resident Frank Wagner wanted to protest a local councilwoman’s support of traffic cameras and a waste disposal tax. Wagner placed a sixteen-square foot sign in his front yard that called out the councilwoman.
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In Apparent Departure From Reed, D.C. Circuit Says Event-Related Sign Restrictions Are Not Content-Based
Yesterday, the Court of Appeals for the D.C. Circuit determined that Washington, D.C.’s regulation of event-based signage on public lampposts is not content based. On its face, the court’s decision appears to conflict with one of the central holdings of the Supreme Court’s 2015 decision in Reed v. Town of Gilbert. But the lengthy, well-written opinion made significant efforts to distinguish the case from Reed, and the D.C. Circuit’s decision potentially offers new avenues for local governments to control proliferations of signage.
Washington, D.C. has long regulated signage on public lampposts.
Continue Reading In Apparent Departure From Reed, D.C. Circuit Says Event-Related Sign Restrictions Are Not Content-Based
No Preliminary Injunction in National Mall Bonfire Case
Last month, the federal district court in Washington, D.C. denied a request for a preliminary injunction against the National Park Service’s enforcement of its bonfire restrictions on the National Mall. A group sought to host a demonstration on the Mall that would have attracted more than 4,000 participants and involved the burning of a wooden “Temple” as a symbol of support for additional protections and services for veterans. The National Park Service denied the group’s request for a permit based on newly-enacted rules regarding bonfires on the Mall, which limited the size of bonfires for safety purposes. Prior regulations allowed bonfires with a National Park Service permit.
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