Tag: Signs and billboards

St. Louis’s definition of ‘sign’ unconstitutionally content-based

Gary Taylor

by Victoria Heldt and Gary Taylor

Neighborhood Enterprises, Inc.; Sanctuary in the Ordinary; Jim Roos v. City of St. Louis; St. Louis Board of Adjustment
(Federal 8th Circuit Court of Appeals, July 13, 2011)

Neighborhood Enterprises manages the properties of Sanctuary in the Ordinary (SITO), a non-profit organization working with rental properties in St. Louis.  Jim Roos, the founder of both organizations, is involved in the Missouri Eminent Domain Abuse Coalition (MEDAC).  Roos and MEDAC commissioned a sign/mural to be placed on the side of a SITO-owned building.  The sign mural/ was approximately 363 square feet in area and was visible from Interstates 44 and 55.  It read “End Eminent Domain Abuse” inside a red circle with a slash through it.  The sign was similar to the design MEDAC uses in other literature [NOTE: The city of St. Louis had previously condemned 24 buildings owned either by SITO or Neighborhood Enterprises for a private development project] .

In April 2007, the City’s Division of Building and Inspection issued a citation for an “illegal sign” and declared that a permit was required for the sign to be in compliance.  SITO applied and was denied the permit because the sign was painted on a building that was zoned “D” or “Multiple Family Dwelling,” where signs are limited to a maximum 30 square feet, and also because the wall face did not have street frontage and therefore was not allowed to have signage.  SITO appealed to the Board of Adjustment and countered that the sign was, in fact, a “work of art” not required to meet the zoning code’s definition of “sign.” The City justified the requirements in its Zoning Code on concerns for traffic safety and aesthetics.  The Board upheld the zoning administrator’s denial on July 2007.  SITO appealed.

In district court SITO argued, among other things, that the zoning regulations were invalid and unconstitutional pursuant to the First and Fourteenth Amendments to the U.S. Constitution, and as such the Board’s decision should be reversed. The district court granted summary judgment in favor of the City and the Board, finding the zoning regulations were not in violation of the U.S. Constitution and that the Board’s decision was not arbitrary, capricious, unreasonable, unlawful or in excess of the Board’s jurisdiction.  SITO appealed this decision to the 8th Circuit.

On appeal, the 8th Circuit first looked to the issue of standing.  The City and Board argued that SITO only has standing to challenge the provisions within the Zoning Code that were actually applied to the decision to deny the sign permit.  It claimed that SITO could not “show a causal connection between its purported injury and the provisions of the zoning code not applied to it.”  The Court found that SITO had standing to challenge the clauses that were cited in the denial of the permit.  Additionally, it could challenge the sections of the Code that defined a sign and the scope of signs allowed.

SITO’s free speech claim was grounded in the belief that the sign regulations were “riddled with content-based exemptions and restrictions.”  Furthermore, traffic safety and aesthetics were not previously considered “compelling” interests of the government.  The Court found that the Code’s definition of a sign was unconstitutionally content-based because “the message conveyed determines whether the speech is subject to the restriction.”  If a sign/mural of the exact same dimensions and at the same location contained a symbol or crest, or if it were a national, state, religious, fraternal, professional or civic symbol it would not be subject to the city’s regulation.  The Court also found that while the regulations may generally promote aesthetics and traffic safety, the city failed to show how the distinctions between exempt and non-exempt signs found in the code further those goals. The court further held that the code’s exemptions are not narrowly tailored to accomplish goals of traffic safety or aesthetics which, “while significant, have never been held to be ‘compelling’ government interests.

The Court determined the regulation’s definition of a sign to be a violation of the First Amendment but could not rule on whether those clauses could be effectively separated from the Code since the district court never addressed the issue.  It reversed the decision and remanded the case in order for the district court to rule on that matter.

Federal courts, First Amendment claims, Signs and billboards , ,
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Township ordinance regulating billboards passes constitutional challenges

Gary Taylor

by Victoria Heldt

Township of Blair v. Lamar OCI North Corporation
(Michigan Court of Appeals, October 27, 2010)

Lamar OCI North Corporation (Lamar) leases property along US highway 31 on which it maintains commercial billboards.  Ordinances in the Blair Township Zoning Ordinance (BTZPO), passed in 2005, prohibit billboards exceeding 300 square feet in area, 30 feet in height, and closer than 2,640 feet to another billboard.  One of Lamar’s billboards was in violation of all three of those stipulations, but was allowed as a nonconforming use since it was constructed before the relevant ordinances in BTZPO were passed.  In 2005, Lamar removed a portion of the sign and installed an LED display face on the remaining portion of the board.  This action brought the sign in compliance with the area and height requirements, yet it still violated the distance requirement.

The Township filed suit in district court claiming that the sign constituted a nuisance and Lamar countered with a claim that the spacing requirement between signs violated the First Amendment.  The district court ruled in favor of the Township, but found a portion of the governing ordinance invalid under the First Amendment due to vagueness and removed it.  The court ordered the removal of the billboard unless it appealed the ruling, in which case it could remain until the resolution of the appeal.

On appeal, Lamar first argued that Michigan law prohibited the Township from disallowing modifications to nonconforming uses if they reduce the nonconformity.  The Court acknowledged that the Township has authority to regulate billboards under Article 20 under the BTZO.  Specifically, the Township governs nonconforming uses under Section 20.08 which states that the ordinance may not prohibit alterations to the nonconforming use unless the cost of the alterations exceeds 30% of the cost to replace the sign.   The Court noted that Lamar’s argument was invalid, since it cited cases that were not factually similar.   The changes to Lamar’s sign exceeded 30% of the cost of replacement, so the BTZO had authority to prohibit them.  Lamar failed to show that the trial court lacked authority to eliminate the nuisance.

Lamar next claimed that, since one sentence of the governing ordinance was stricken due to vagueness, the district court should not have been able to find them in violation of the ordinance.  The sentence removed read:  “If the face, supports, or other parts of a nonconforming sign or billboard is structurally changed, altered, or substituted in a manner that reduces the nonconformity, the Zoning Administrator may approve the change.”  The trial court ruled that the phrase gave unbridled and vague authority to the Zoning Administrator.  The Court found that the sentence was able to be removed without altering the goal or effectiveness of the ordinance.  Another question the Court asked itself was whether the ordinance would have been passed in the first place had it been known that the sentence would be stricken.  They found that it would, so the removal of the sentence did not render the clause ineffective.  Lamar claimed that the Court should have eliminated the need for permission from the Zoning Administrator to solve the problem and retain the ability to reduce nonconformities; i.e., that requiring permission constituted prior restraint of speech.  They based their argument on Shuttlesworth v. Birmingham in which the Court ruled against an ordinance requiring a permit to protest.  The Court rejected Lamar’s argument, stating that Shuttlesworth did not apply to the facts in this case because the Township was not trying to restrict the content of the speech.

Lastly, Lamar challenged the constitutionality of the distance requirement found in the ordinance.  The Township claimed the requirement was in place to “enhance the aesthetic desirability of the environment and reduce hazards to life and property in the township.”  When analyzing restrictions on free speech, the Court considers four factors:  1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading.  A restriction on otherwise protected commercial speech is valid only if it;  2) seeks to implement a substantial governmental interest; 3) directly advances that interest; and 4) reaches no further than necessary to accomplish the given objective.  In this case, the Court found that lawful commercial speech was involved and that “promoting aesthetic desirability of the environment and reducing hazards to life and property in Blair Township are of substantial governmental interest.”  It also found that the ordinances also passed the last two factors of the four-pronged test.  Consequently, the Court affirmed the trial court’s decision.

First Amendment claims, Michigan courts, Signs and billboards , , ,
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Redetermination of high water mark does not invalidate previous permit

by Melanie Thwing

Oneida County v. Collins Outdoor Advertising
(Wisconsin Court of Appeals, April 26, 2001)

Collins Outdoor Advertising began looking into constructing a billboard in the Town of Sugar Camp, Wisconsin in 2003. The Town of Sugar Camp is generally un-zoned, but Oneida County has zoning authority over land within 1,000 feet of the ordinary high water marks of navigable lakes. In this particular area there are two lakes, Jennie Webber Lake and an unnamed lake 34-16.

Keith Carson, a Collins’ employee, obtained a lease from the landowners of the desired location. A signature was given from the Town’s foreman stating the land was un-zoned and the Department of Transportation (DOT) approved a permit application. The DOT also instructed Carson to check with the Department of Natural Resources (DNR) because the land boarded a swamp. The DNR approved the site but then instructed Carson to check with the County to make sure no zoning authority existed.

After meeting with Theresa Kennedy, a permit specialist for the County, and looking at several zoning maps and aerial photographs it was determined the location would not pose a problem with Jennie Webber Lake. It was Carson’s responsibility however to determine the distance from 34-16 which he did with a handheld GPS. This also met the 1,000 foot requirement.

In July 2003 the billboard was erected. Then, in October the County sent a letter indicating there had been complaints that the sign was illegally constructed. This letter referenced a “large wetland complex” attached to Jennie Webber Lake and stated that, when taking these wetlands into account, the sign was only 10 feet from the high water mark.  Collins responded to this complaint in January of 2004 with a letter reciting the above facts.  The County did not respond again until September 2006.  The County stated it had re-determined the high water mark and, as a result, had determined that the sign was 600 feet away from Jennie Webber Lake.  In August 2008 the County filed for injunctive relief and damages in the circuit court. Summary judgment was granted in favor of the County. Collins was ordered to remove the sign and pay $25,000 in forfeitures.

Collins appealed to the Wisconsin Court of Appeals, arguing that when the sign was originally constructed the County’s zoning map identified the shorelines and any redeterminations cannot render the sign unlawful.

Under Wis. Stat. § 59.692(1m),(6) the state is required to adopt and enforce shoreland zoning ordinances. Each county is required to include “[m]apped zoning districts and the recording, on an official copy of such map, of all district boundary amendments.” Wis. Admin. Code § NR 115.05(4)(i). Also the DNR must be given notice for any interpretation of a map or amendment.  The County argued that it was unreasonable for Carson to rely on the zoning map rather than on-site measurements; however the Court rejected this argument.  The Court of Appeals observed that if Carson had determined the measurements of high water mark himself they would have no legal force. The ordinance does not give landowners authority to determine high water marks. That burden is placed on the County and DNR to set ordinary high water mark.  This determination can be very subjective. 

The County’s argument that “[t]he standards for such determinations are clearly set forth in the ordinance,” was found to be unpersuasive.  The County’s argument would require landowners to roam large portions of private property to identify the correct high water marks. Carson followed the ordinance by contacting the zoning department who ultimately provided the map for determination.

Finally there is no conflict between the zoning map and the zoning ordinance. Ordinary high water marks are usually identified on official maps or on aerial photographs. If the public were not allowed to put any reliance on the maps, the Court questions why they are required or why the DNR must be contacted when a question arises about the maps.

It is undisputed that at the time the sign was built it was over 1,000 feet from the shoreline as then determined, and the County does not dispute that the sign would be legal as an existing nonconforming structure using that determination. The decision of the circuit court was reversed and remanded.

Signs and billboards, Wisconsin courts, Zoning enforcement , ,
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