A billboard in Texas. Source: Austin American-Statesman.

A federal district court in Texas recently found that the City of Cedar Park’s sign code was content based and unconstitutional due to its failure to distinguish between commercial and noncommercial billboards.

A billboard company sought permits to convert existing billboards to digital signs, as well as to erect new signs.  The city denied the permit applications for failure to comply with the city’s sign code, and the billboard company sued.  In its lawsuit, the billboard company argued that the city’s decision to distinguish between on- and off-premises signs was content based, because it applied to noncommercial signs in the same manner as commercial signs.  Generally speaking, the government may not distinguish between the content or message of various noncommercial signs.  Per the billboard company, a code enforcement officer would be required to determine the permissibility of the sign based on its content, in violation of the First Amendment.  The federal district court agreed and granted summary judgment in favor of the plaintiff.  About a month ago, the court denied the city’s motion for reconsideration.
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An Adams Outdoor billboard in Pennsylvania. Source: Adams Outdoor.

In a case that we’ve reported on previously, the Third Circuit Court of Appeals held last week that the Pennsylvania Department of Transportation’s rules pertaining to billboard permitting violate the First Amendment.  The court’s decision is yet another in a string of decisions from around the country making it more difficult for government to restrict the proliferation of off-premises signage.

To refresh our readers’ memory, Pennsylvania regulates billboards under its Outdoor Advertising Control Act of 1971.  That law prohibits the placement of billboards within 500 feet of a highway interchange or rest area, with an exception for official signs or on-premises “for sale or lease” signs.  The law also requires that a billboard advertiser obtain a permit from the state’s transportation department, but does not set forth a timeframe for such a permit to be processed.

Adams Outdoor, a billboard company, sought to install a billboard in Hanover Township, Pennsylvania.  After processing the permit application for over a year, the state’s transportation department  eventually denied the permit on the grounds that the sign violated the interchange restriction.  Adams challenged the interchange restriction and permitting procedures under the First Amendment, and also claimed that the billboard law was unconstitutionally vague.
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This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

A Tennessee case is inquiring into the “similarly situated” requirement for Equal Protection claims and will likely decide the constitutionality of the Tennessee Billboard Act (TBA).  While the outcome of the case is far from finalized, Thomas v. Schroer, which stems from the denial of the plaintiff’s sign application, has already raised some interesting questions about the reach of the First Amendment under Reed v. Town of Gilbert.
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In a case that we reported on back in March, the California Supreme Court denied to review a state appellate court decision upholding Los Angeles’s ban on off-premises billboards.  The billboard company that was the plaintiff in the case sought to have the California courts interpret the state’s constitution to prohibit the on-premises/off-premises distinction

The proposed billboard in this case was over three times the maximum sign area permitted by the City's sign code.
The proposed billboard in this case was over three times the maximum sign area permitted by the City’s sign code.

In a recent decision from the Michigan Court of Appeals, an applicant challenged a provision that gave the board of zoning appeals (BZA) discretion to approve signs that do not comply with the sign ordinance. The applicant, who had submitted an application for a sign that did not comply with the sign ordinance, brought an appeal to the BZA in accordance with a provision that said the BZA may grant a special permit for signs that do not otherwise comply only if the proposed sign meets certain specific standards. Those standards generally required that the sign be consistent with the purpose and intent of the sign code, be compatible with the surrounding neighborhood, and not be detrimental to the public safety or welfare or any adjacent land use, but reserved the discretion to grant the special permit to the BZA. The applicant’s facial challenge alleged that the discretion to grant the special permit constituted a prior restraint that “has the potential for becoming a means of suppressing a particular point of view.” The court disagreed, noting that the applicant could have received a permit for a billboard that met the sign code without applying for a special permit (and thus being subject to the BZA’s discretion), and moreover that the discretion, absent any evidence of an unconstitutional application, was sufficiently limited by the requirement that a proposed sign meet the specifically enumerated standards for approval.
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