Court Invalidates Common Sign Ordinance on First Amendment Grounds
A federal appeals court cited the First Amendment in invalidating some portions of the City of Troy, Mich.’s sign ordinance that are very common to many cities’ zoning codes.
In International Outdoor, Inc. v. City of Troy, the plaintiff, an outdoor advertising company, sought approval for offsite billboards that exceeded the dimensional limitations of Troy’s sign ordinance, so the company applied for a variance to the limitations. The City’s sign code ordinarily subjected signs to only ministerial review; however, its broad, subjective and discretionary regulations for all zoning variances also covered signs. The criteria for all variances included “general welfare” standards such as “public interest,” “general purpose and intent of this Chapter,” “adversely affect[ing],” “hardship” and “practical difficulty.” The U.S. Sixth Circuit Court of Appeals held on Sept. 4 that this broad criteria amounted to unconstitutional prior restraint. As constitutionally protected speech, signs may not be subject to unfettered, standardless review by city decisionmakers.
The decision also contains another element of concern for municipal regulation of signs. The court of appeals also grappled with the standard of review, which was driven by the question of whether the ordinance was content-neutral and, if so, whether strict or intermediate scrutiny should apply when the matter returns to the trial court. The court of appeals concluded that several provisions of the ordinance were not content neutral, including the ordinance’s exemption for signs, such as flags and temporary signs, and its distinction between on- and off-premises real estate signs; garage, estate or yard sale signs; non-commercial signs; political signs; holiday or other seasonal signs and constructions signs. The court found that these distinctions – very common in municipal sign ordinances – relate to content, rather than to time, place and manner. As a result, they could only stand if they satisfied the more exacting standard of strict scrutiny. The court of appeals sent this issue back to the trial court to see whether Troy’s ordinance met this more exacting constitutional standard.
Even though the purpose of a variance with traditional “general welfare” standards is to afford applicants relief from a sign ordinance’s rules, the ordinary variance opportunity likely presents problems under the First Amendment. Municipalities offering such variances should consider revising them to ensure that sign and other speech-related permits are subject to stand-alone variance standards not reliant on subjective findings for approval.
Like other courts following the U.S. Supreme Court’s 2015 ruling in Reed v. Town of Gilbert, Ariz., the court of appeals addressed the local sign ordinances that make distinctions among signs. In Reed, the Court held that different rules among ideological signs, political signs and temporary directional signs constitute content-based regulations. Subsequent cases, like Central Radio Co. Inc. v. City of Norfolk, Va. in 2016 from the U.S. Fourth Circuit Court of Appeals and Contest Promotions, LLC v. City and County of San Francisco in 2017 from the U.S. Ninth Circuit Court of Appeals, considered whether the long-standing distinction between commercial and non-commercial signs is content-based. The Fourth Circuit held that it was content-based, while the Ninth Circuit held that it was not. International Outdoor, Inc. is worth watching because it applies a more demanding level of constitutional scrutiny to very common categorizations of signs for temporary uses, such as garage sales and other common exceptions that apply to unique advertisers, location or events.