HomeMy WebLinkAbout07-21-2016 PZ AgendaE 0" �1'V1
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AGENDA
LOCAL PLANNING AGENCY
[PLANNING AND ZONING COMMISSION]
THURSDAY, JULY 219 2016 - 6:00 P.M.
CITY COUNCIL CHAMBERS
1225 MAIN STREET, SEBASTIAN, FLORIDA
ALL AGENDA ITEMS MAYBE INSPECTED IN THE OFFICE OF COMMUNITY DEVELOPMENT
1225 MAIN STREET, SEBASTIAN, FLORIDA OR ON THE CITY WEBSITE
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. ROLL CALL
4. ANNOUNCEMENTS AND/OR AGENDA MODIFICATIONS
Modifications and additions require unanimous vote of members. Deletions do not apply.
5. APPROVAL OF MINUTES None
6. PUBLIC HEARINGS
Chair shall announce the opening of the public hearing
Where applicable, City Attorney shall read the Ordinance or Resolution by title unless applicable law
requires more than the title be read
Chair, if appropriate, shall announce the rules that apply to the hearing
Applicant presentation, if appropriate
City staff shall make a presentation, comments and preliminary recommendation, if any
Public input
City staff final comments and recommendation, if any
Chair closes hearing.
Commission Deliberation and Action
A. Public Hearing — Review and Make a Recommendation to City Council Regarding
Ordinance 0-16-05 which Proposes to Amend the Land Development Code,
Article XVI Signage and Advertising — Specifically Sections 54-3-16.1, Purpose,
Intent & Scope; Section 54-3-16.3 Exempt Signs; Section 54-3-16.5 Permitted Signs;
Section 54-3-16.9 Substitution and Severability; and Section 54-5-22.2 Definitions
7. UNFINISHED BUSINESS
PUBLIC INPUT
Public Input on items other than on the printed agenda, is five minutes, however, it can be extended
or terminated by a majority vote of members present
9. NEW BUSINESS
10. COMMISSIONERS MATTERS
11. CITY ATTORNEY MATTERS
12. STAFF MATTERS
13. ITEMS FOR NEXT AGENDA
14. ADJOURN
HEARING ASSISTANCE HEADPHONES ARE AVAILABLE IN THE COUNCIL CHAMBERS FOR ALL
GOVERNMENT MEETINGS.
All Planning and Zoning Commission Meetings are Aired Live on Comcast Channel 25.
ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE WITH RESPECT TO ANY MATTER
CONSIDERED AT THIS MEETING WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO
ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE
TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (F.S.286.0105)
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ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT 589-5330 AT
LEAST 48 HOURS IN ADVANCE OF THIS MEETING.
SEEBAST
HOME Of PELICAN ISLAND
LOCAL PLANNING AGENCY AGENDA TRANSMITTAL
LPA MEETING DATE: July 21, 2016
AGENDA ITEM TITLE: Public Hearing — Recommendation to City Council - Proposed
Ordinance 0-16-05 Amending Article XVI Signage and Advertising
BACKGROUND: As required by the Land Development Code and Florida Statutes,
the Local Planning Agency shall review the proposed amendment
and make recommendations to the City Council as to the
consistency of the proposed amendment to the Comprehensive
Plan and its elements.
This proposed ordinance was prepared as a result of the recent
U.S. Supreme Court ruling in Reed v. Town of Gilbert and the
discussion with council concerning that case on April 13, 2016.
The reason for its preparation is to bring the city's sign code into
legal compliance with the Supreme Court's ruling on the
application of the First Amendment's free speech provision.
The proposed ordinance contains: (1) an extensive section
detailing it's purposes, intent and scope; (2) the deletion of the
sections most impacted by the Supreme Court ruling — special
event signs, political signs (except for specified time frames), and
civic event signs; (3) a number of amended definitions; (4) a new
substitution provision; and (5) an extended severability provision.
The Planning and Zoning Commission discussed the proposed
amendments at its July 71", 2016 regular meeting. City Council
held its first reading of the Ordinance on July 13"', 2016, and
scheduled a public hearing and second reading for August 10'"
RECOMMENDATION: Conduct public hearing and make recommendation to the City
Council
ATTACHMENTS: 1) Proposed Ordinance 0-16-05
2) Analysis of Supreme Court Decision from UNC School of Govt
City Attorney
Date:
ORDINANCE 0-16-05
AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN
RIVER COUNTY, FLORIDA, RELATING TO SIGNS;
REPEALING SECTION 54-3-16.1 OF ARTICLE XVI OF THE
LAND DEVELOPMENT CODE AND ENACTING A NEW
SECTION 54-3-16.1 PROVIDING THE PURPOSE, INTENT
AND SCOPE OF THE SIGN REGULATIONS; AMENDING
SECTION 54-3-16.3 RELATING TO EXEMPT SIGNS;
AMENDING SECTION 54-3-16.5 RELATING TO PERMITTED
SIGNS; AMENDING SECTION 54-5-22.2 OF ARTICLE XXII
OF THE LAND DEVELOPMENT CODE RELATING TO
DEFINITIONS; ENACTING SECTION 54-3-16.9 RELATING
TO SUBSTITUTION AND SEVERABILITY; PROVIDING FOR
CONFLICT, CODIFICATION AND AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
SEBASTIAN, FLORIDA, that:
Section 1. Article XVI, Sec. 54-3-16.1 of the City of Sebastian Land
Development Code is hereby repealed in its entirety, and a new Sec. 54-3-16.1 is
enacted to read as follows:
ARTICLE XVI. SIGNAGE AND ADVERTISING
Sec. 54-3-16.1 Purpose, Intent and Scope
It is the purpose of this article to promote the public health safety and
general welfare through reasonable consistent and non-discriminatoly sign
standards. The sign regulations in this article are also designed and intended to
meet the statutory requirement that this municipality adopt land develo ment
regulations that regulate signage, a requirement set forth in Section 163.3202(f),
Florida Statutes. The sign regulations in this article are not intended to censor
speech or to regulate viewpoints but instead are intended to regulate the adverse
secondary effects of signs The sign regulations are especially intended to address
the secondary
effects
y that may adversely impact and safety. The sign
regulations -are— ic[wiF. P� +'ll CPM)Y�JRI---- LL��gove
`* ; me
cases, compelling governmental interests such as traffic safety and warning signs
of threats to bodily injury or death
This article regulates signs, as defined in this Land Development Code
which are placed on private property or on property owned by public agencies
including the city and over which the city has zoning authority. This division is not
intended to extend its regulatory regime to obiects that are not traditionally
considered signs for puKpose of government regulation
The City of Sebastian is primarily a single family residential and small resort
community on the east coast of Florida The eastern boundary of the city is the
Indian River Lagoon and much of the western boundary is the St Sebastian River.
Directly across the Indian River Lagoon is the Sebastian Inlet providing access to
the Atlantic Ocean and Sebastian Inlet State Park attracting more Deople annually
than any other state park in Florida. The economic base of the city is heavily
dependent on visitors from both Florida as well as other areas of the United States
who are attracted to its "Old Florida Fishing Village" atmosphere In order to
preserve and promote the city as a desirable community in which to live vacation
and do business, a pleasing visually attractive environment is of foremost
importance. The regulation of signs within the city is a highly contributive means
by which to achieve this desired end
These sign regulations have been prepared with the intent of enhancing the
visual environment of the city and promoting its continued well-being, and are
intended to:
(1) Encourage the effective use of signs as a means of communication in
the city;
(2) Maintain and enhance the aesthetic environment and the city's ability
to attract sources of economic development andrg owth•
(3) Improve pedestrian and traffic safety;
(4) Minimize the possible adverse effect of signs on nearby public and
private property
(5) Foster the integration of signage with architectural and landscape
designs T
(6)
Lessen
the
visual clutter that may otherwise be caused
by
the
proliferation
improper
placement
illumination animation excessive height,and
traffic;
(7) Allow signs that are compatible with their surroundings and aid
orientation, while precluding the placement of signs that contribute to sign clutter
or that conceal or obstruct adjacent land uses or signs;
(8) Encourage and allow signs that are appropriate to the zoning district
in which they are located;
(9) Establish sign size in relationship to the scale of the lot and building
on which the sign is to be placed or to which itep rtains•
(10) Preclude signs from conflicting with the principal permitted use of the
site and adjoining sites;
01) Regulate signs in a manner so as to not interfere with obstruct the
vision of or distract motorists bicyclists or pedestrians;
(12) Except to the extent expressly _preem tp ed by state or federal law,
ensure that signs are constructed, installed and maintained in a safe and satisfactory
manner, and protect the public from unsafe signs,•
(13) Preserve, conserve, protect, and enhance the aesthetic quality and
scenic beauty of all districts of the city,
(14) Allow for traffic control devices consistent with national standards
and whose purpose is to promote highway safety and efficiency by providing for
the orderly movement of road users on streets and highways, and that notify road
users of regulations and provide warning and guidance needed for the safe
uniform and efficient operation of all elements of the traffic stream;
(15) Protect property values by precluding to the maximum extent
possible, sign types that create a nuisance to the occupancy or use of other
properties as a result of their size height illumination brightness or movement,•
(16) Protect property values by ensuring that sign types as well as the
number of signs, are in harmony with buildings neighborhoods and conforming
signs in the area;
(17) Regulate the appearance and design of signs in a manner that
promotes and enhances the beautification of the city and that complements the
natural surroundings in recognition of this city's reliance on its natural
resort community, as well as for its major subdivisions shopping centers and
industrialap rks;
(18) Enable the fair and consistent enforcement of these sign regulations,•
(19) Promote the use of signs that positively contribute to the aesthetics of
the community, are appropriate in scale to the surrounding buildings and
landscape, and advance the city's goals of quality development,
(20) Provide standards regarding the non -communicative aspects of signs,
which are consistent with city, county state and federal law;
(21) Provide flexibility and encourage variety in signage and create an
incentive to relate signage to the basicrinci lep s of good design; and
(22) Assure that the benefits derived from the expenditure of public funds
for the improvement and beautification of streets sidewalks ublicap rks ublic
rights-of-way, and other public places and spaces are protected by exercising
reasonable controls over the physical characteristics and structural design of signs.
Section 2. Sec. 54-3-16.3 is hereby amended to read as follows:
Sec. 54-3-16.3 Exempt Signs
Sec. 54-3-16.5 Permitted signs.
(e) Temporary signs: All temporary signs not listed in subsections 54-16.5(e)(1)
through 54-16.5(e)(3) and also not complying with all applicable criteria of this
section shall be treated in all respects as permanent signs, except that such
temporary signs shall not be included in calculating the total amount of
signs, or special event signs approved by the city manager. All temporary signs
shall be located on private property.
.(2) (3) Subdivision entrance signs.
13 Pelitieal a -sidential distfiets
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feet;
Pelifleal
signs in r-esidential
2. No sign shall b '71 t ,1
e
'2
>r 1,hall e f1 eestan 1:,..._.
FJ
,
•
and "una�c'v'ralks;
6. N si.9n shall exeeed five feet
in height-;
1 No s ..haI4 o
•b« a 70squafe
feet;
2. NE) �b shall 1'll unz + c4 cct
sign shall be ffeestandHilgl-,
4. haeh sign shall be 1 a l
5 Each T+n s
sigll b 1 ' a4
ll
least five f ..4
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a y
«,1 ..�.7co-w lime$=
all Fights
0) L64 Other temporary signs.
Section — Article XXTT Scati`.n .54-5-22 -.2 :S t.o«, I— amended-to-read—
as follows:
ARTICLE XXII. LANGUAGE AND DEFINITIONS
Sec. 54-5-22.2 Definition of terms.
Sign,i ii
A sign is considered abandoned based upon the good faith consideration of the
following factors in their totality the condition of the sign; evidence of its
maintenance and repair; whether it is faded or defaced; whether its installation has
been compromised by wind weather, traffic vandalism or otherwise; the time
since installation, and whether it is capable of conveying an intelligible or useful
message.
Sign, political. Any sign urging the election or defeat of any candidate seeking
any political office, or urging the passage or defeat of any ballot measure, but does
ems, shall be posted no more than 75 days prior to the election in which the
candidate's name or the issue will appear on the ballot and shall be removed
within 5 days of such election
Sign, public. Si9fis er-00ted bYOF On behalf of or- pur-stiant to the author-iZation
r WN
E)r- eleetr-ieal ine-ans. Any signs mandated, authorized or approved by or on behal
Public signs also include signs erected or installed by or on behalf of any public
utility, cable fiber optic or wireless provider, railroad or public transit service
Sign, snipe. Any sign of any size, made of any material, including paper,
cardboard, wood and metal, when such sign is tacked, nailed, posted, pasted, glued
or otherwise attached to a tree, utility pole, fence or similar objects. and the
adyet4isiT1R—Hi ttzr appe b th@rean of li b t -
YY
said s:..« :.. 1 t .7
sign =�o�«a. Also includes any sign installed without permission of the
owner of the real or personal property on which the sign is located.
Sign, temporary. A sign used for- a ti oss pr-E)ME)gE)H h h , fi „
.,t t'"'�. A temporary sign means a sign intended for a use not permanent
in nature. A sign is considered temporary based upon the good faith consideration
of the following factors in their totality the materials used in its manufacture or
creation; the manner in which it is constructed or assembled the location and
manner of its installation and evidence of its upkeep and maintenance
Section 4. Section 54-3-16.9 is hereby enacted to read as follows:
Section 54-3-16.9 Substitution and Severability.
(1) Substitution of noncommercial speech for commercial speech.
Notwithstanding anything contained in this Article or Code to the contrary
any sign erected pursuant to the provisions of this Article or Code or
otherwise lawfully existing with a commercial message may, at the option
of the owner, contain a noncommercial message in lieu of a commercial
message. The noncommercial message may occupy the entire sign face or
any portion thereof. The sign face may be changed from commercial to
noncommercial messages or from one noncommercial message to another,
as frequently as desired by the owner of the sign provided that the sin is
not a prohibited sign or sign -type and provided that the size height setback
and other dimensional criteria contained in this Article and Code have been
satisfied.
(2) Severability Generally. If any partsection subsection paragraph,
subparagraph sentence phrase clause term or word of this Article is
declared unconstitutional by the valid judgment or decree of any court of
competent jurisdiction the declaration of such unconstitutionality shall not
affect any other partsection subsectionparagraph, subparagraph sentence
phrase, clause, term or word of this Article
(3) Severability where less speech results Without diminishing or limiting in
any way the declaration of severability set forth above or elsewhere in this
Article, this Code or any adopting ordinance if any partsection
subsection paragraph sub ara raph sentence phrase clause term or word
of this Article is declared unconstitutional by the valid_iudgment or decree
of any court of competent jurisdiction the declaration of such
unconstitutionality shall not affect any other partsection subsection
paragraph subparagraph sentence phrase clause term or word of this
Article, even if such severability would result in a situation where there
would be less speech whether by subjecting_ previously exempt signs to
permitting or otherwise.
(4)Severability of provisions pertaining to prohibited signs and sign elements
Without diminishing or limiting in any way the declaration of severability set
forth above elsewhere in this Article this Code or any adopting ordinance
if any part, section, subsection paragraph sub aragraph sentence phrase,
clause, term, or word of this Article is declared unconstitutional by the valid
judgment or decree of any court of competent iurisdiction the declaration of
such unconstitutionality shall not affect any other partsection subsection
paragraph subparagraph sentence phrase clause term or word of this
Article that pertains to prohibited signs including specifically those signs and
sign elements that are prohibited by Section 54-3-16.4. Furthermore if an
part, section subsection paragraph subparagraph sentence phrase clause
term, or word of Section 54-3-16.4 is declared unconstitutional by the valid
iudgment or decree of any court of com ep tent jurisdiction the declaration of
such unconstitutionality shall not affect any other subsection paragraph
subparagraph sentence phrase, clause term or word of Section 54-3-16.4,
thereby ensuring that as many prohibited sign -types as may be
constitutionally prohibited continue to be prohibited
It is the intent of the City to regulate signage in a manner that implements the
purposes of this Article as expressed in Section 54-3-16 1 The City finds that
compelling public interests that the regulation of signage provided by this
Article is unrelated to the suppression of free expression and that the incidental
restrictions on expression that may occur as a result of these regulations is no
more than is essential to the furtherance of the public interests However, if a
court of competent jurisdiction finds any regulation herein to be based upon
content and, further, declares such regulation unconstitutional then it is the
intent of the City Council that only that portion of the provision that is found
unconstitutional be severed from this Article and if it is not possible for the
court to strike only the portion of the provision that is found unconstitutional
then it is the intent of the City Council that all signs that would be subject to the
stricken provision will instead be subject to the next surviving provision for a
sign of like geometry and character that is more restrictive than the stricken
provision in terms of sign area
Section 5. Repeal of Laws in Conflict. All ordinances or parts of
ordinances in conflict herewith are hereby repealed to the extent of such
conflict.
Section 6. Codification. The sections of the ordinance shall be codified
within part of the City Land Development Code and may be renumbered or re -
lettered to accomplish such, and the word "ordinance" may be changed to
"section," "division," or any other appropriate word.
Section 7. Effective Date. This Ordinance shall become effective
immediately upon its adoption effect immediately upon its adoption by the City
Council.
The foregoing Ordinance was moved for adoption by Councilmember
The motion was seconded by Councilmember
and, upon being put to a vote, the vote was as follows:
Mayor Bob McPartlan
Vice Mayor Jerome Adams
Councilmember Andrea Coy
Councilmember Jim Hill
Councilmember Richard Gillmor
The
day of
2016.
10
CITY OF SEBASTIAN, FLORIDA
Mayor Bob McPartlan
ATTEST:
Jeanette Williams, MMC
City Clerk
Approved as to form and legality for
reliance by the City of Sebastian only:
Robert A. Ginsburg
City Attorney
Note:
Words stricken shall be deleted; words underlined constitute the proposed
amendment; remaining provisions continue in effect.
11
SCHOOL OF GOVERNMENT
Coates' Canons
NC Local Government Law
hftp://canons-sog.unc.edu
Coates' Canons Bfog: Sign Litigation: A Brief Analysis of Reed v. Town of Gilbert
By Adam Lovelady
Article: http://canons.sog.unc.edu/?p=8167
This entry was posted on July 21, 2015 and is filed under Constitutional & Statutory Limitations, General Local Government
(Miscellaneous), Land Use & Code Enforcement. zoning
Temporary yard signs are springing up all around town. Town council wants to reduce the clutter, but also wants to
respect the free speech rights of the community. Council is considering new rules that will allow campaign signs during
election season, event signs within a day of the event, and ideological signs anytime. It seems like a reasonable
balance —allowing the signs but limiting them to a relevant time -frame. Can the town's regulations distinguish among signs
this way?
A recent U.S. Supreme Court decision says no. Such distinctions are unconstitutional content -based regulation of speech
To be clear, every sign ordinance distinguishes among signs. Ordinances commonly distinguish between locations
(commercial property, residential property, public property, etc.), between types of signs (free-standing, wall signs,
electronic signs, etc.), and between messages on the signs (commercial, safety, political, etc.). Reasonable distinctions
concerning location and types of signs remain permissible.
The Reed decision, though, clearly invalidated some distinctions based on the message content of signs, and it will require
adjustments to many local ordinances and some state statutes. The decision, with its four separate concurring opinions,
also left open several legal questions.
This blog considers the decision of Reed v. Town of Gilbert. 576 U.S. 120151 and its impact on local sign ordinances.
Context of Free Speech Caselaw
In thinking about the Reed decision it is helpful to recall a few key points about Constitutional protections of free speech
and local government sign regulation. This area of the law is complex—far beyond the scope and space of this blog—but
some context is helpful in understanding the impact of the new decision.
Content -Neutral Sign Regulations. Some sign regulations concern the form and nature of the sign, not the content of the
message. These regulations ---called reasonable time, place, or manner restrictions—include regulation of sign size,
number, materials, lighting, moving parts, and portability, among other things. These regulations are allowed, provided
they are "[1] justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a
significant governmental interest, and [3] that they leave open ample alternative channels for communication of the
information" (Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661 (1989)). Over
the years the courts have allowed a variety of content -neutral sign regulations.
Content -Based Sign Regulations. Some sign regulations, however, restrict the content of the message. The Supreme
Court requires that content -based regulation of noncommercial signs must meet strict scrutiny. As phrased in the Reed
majority opinion, a regulation is content -based if the rule 'applies to a particular [sign] because of the topics discussed or
the idea or message expressed" (slip op., at 6). The strict scrutiny standard demands that the local government must show
that the regulation is (1) designed to serve a compelling governmental interest and (ii) narrowly tailored to achieve that
interest. That is a steep hill to climb, and in practice few, if any, regulations survive strict scrutiny review.
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1987). That test is
described in David Owens' blog on Offensive Signs, and as discussed below, the impact of the Reed decision on the
Central Hudson
Copyright ® 2009 to present Schaal of Govemmant al ft Univesity of NoM Caedina. All rights msmry .
Page
1--=1111111110i ( SCHOOL OF GOVERtiStENT
test is unclear.
Case Summary
Coates'Canons
NC Local Government Law
http://canons.sog.unc.edu
The Town of Gilbert, Arizona, had a sign code requiring permits for signs, but outlining a variety of exemptions. The Reed
decision focused on the exemptions for three types of signs: Political Signs, Temporary Directional Signs, and Ideological
Signs. Under the local code, Political Signs were signs designed to influence the outcome of an election; they could be up
to 32 square feet and displayed during political season. Temporary Directional Signs were defined to include signs that
direct the public to a church or other qualifying event; they could be up to six square feet and could be displayed 12 hours
before and 1 hour after the qualifying event. Ideological signs were defined to be signs that communicate a
noncommercial message that didn't fit into some other category; they could be up to 20 square feet.
A local church—after being cited for violation of the rules for Temporary Directional Signs—challenged the sign code as
abridging their freedom of speech. The Town argued (and the lower courts found) that its regulations were content -neutral.
The distinctions among types of signs, they said, were based on objective factors not the expressive content of the sign.
The distinctions did not favor nor censor a particular viewpoint or philosophy. And, the justification for the regulation was
unrelated to the content of the sign.
Justice Thomas, writing for the Court, disagreed. He found that the distinctions were plainly content -based and thus
subject to strict scrutiny. The distinctions—between Political Signs, Temporary Directional Signs, and Ideological
Signs—"depende[ed] entirely on the communicative content of the sign" (slip op., at 7). "Regulation targeted at specific
subject matter is content based even if it does not discriminate among viewpoints with that subject matter" (12). And, "an
innocuous justification cannot transform a facially content -based law into one that is content neutral" (9).
In its failed attempt to meet the strict scrutiny standard, the Town offered two governmental interests to support its
distinctions: aesthetic appeal and traffic safety. Even if these were considered compelling governmental interests (which
the Court assumed without ruling), the Town's distinctions were not narrowly tailored. Justice Kagan noted in her own
opinion (concurring in the judgment only) that the Town's distinctions did 'not pass strict scrutiny, or intermediate scrutiny,
or even the laugh test" (slip op., at 6, Kagan, J., concurring in judgment).
Impact of Local Ordinances
So what does this decision mean for local ordinances? In the end, some distinctions among signs clearly are allowed and
will withstand judicial review. Some code provisions, though, must be revised. And then, there are the open questions.
The Court was unanimous in judgment: The particular provisions of the Town of Gilbert's sign code violate Constitutional
protections for free speech. The Court was fractured, though, in the opinions, making it harder to discern the full scope of
the decision. Justice Thomas offered the majority opinion of the court with five justices joining. Justice Alito offered a
concurring opinion to further clarify the impact of Justice Thomas' opinion. He was joined by Justices Kennedy and
Sotomayor. Three justices concurred in judgment only, and they offered two separate opinions to outline their legal
reasoning and their concerns with the majority's reasoning.
So we have a split court. Three joined the majority only; three joined the majority, but also joined an explanatory
concurrence; and three disagreed with the majority's legal reasoning. This three -three -three split, unfortunately, causes
even more head -scratching for an already complex topic.
Content -Based Distinctions. In thinking about your sign ordinance, ask this: Does this regulation apply to a particular
sign because of the non-commerciat content on the sign? If yes, the regulation must meet strict scrutiny under Reed. The
government must show that the regulation is designed to serve a compelling governmental interest and narrowly tailored
to achieve that interest.
If your ordinance distinguishes among noncommercial sign types—political v. ideological v. religious—those distinctions
are unconstitutional and must be changed.
Justice Thomas did offer some content -based regulations that may survive strict scrutiny if they are narrowly tailored to
address public safety. These include warning signs for hazards on private property, signs directing traffic, or street
Copyright ® 2009 b present Schaal of Govemment at M. University a(NoM Cantina. M rights reserved.
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SCEI00C OF (-, C)VERVkI E:vT
numbers associated with private houses.
Coates' Canons
NC Local Government Law
hftp://canons.sog.unc.edu
Content -Neutral Distinctions.The several opinions of the court outline some valid distinctions for regulation. In his
majority opinion, Justice Thomas noted that local governments still have "ample content -neutral options available to
resolve problems with safety and aesthetics" (slip op., at 16). These include regulation of, among other things,
• size
• building materials
• lighting
• moving parts
• portability
Moreover, "on public property the Town may go a long way toward entirely forbidding the posting of signs, so long as it
does so in an evenhanded, content -neutral manner" (slip op., at 16). A local ordinance or state statute can prohibit all
signs in the public right-of-way. But, if signs are allowed, the regulations must not distinguish based on the content of the
message. Regulations that allow some, but not all, noncommercial signs run afoul of the Reed decision.
For example, NCGS § 136-32 allows for "political signs" (as narrowly defined) in the public right-of-way of state highways
during election season. That statute and similar ordinances will need to be revised to either, prohibit all signs in the right-of-
way, or allow compliant signs with any noncommercial message in the right-of-way during election season.
Justice Alito, in his concurring opinion, provided further explanation (although not an exhaustive list) of what distinctions
may be valid, content -neutral distinctions. He included:
• Size (including different sizes for different types of signs)
• Location, including distinguishing between freestanding signs and attached signs
• Distinguishing between lighted and unlighted
• Distinguishing between fixed message and electronic signs
• Distinguishing between signs on public property and signs on private property
• Distinguishing between signs on commercial property and signs on residential property
• Restricting the total number of signs allowed per mile of roadway
• Distinguishing between on -premises and off -premises signs*
• And time restrictions on signs advertising a one-time event*
* These last examples—distinguishing between on-premises/off-premises and restricting signs for one-time events—seem
to conflict with the majority opinion in Reed. Here, we get back to the issue of the fractured court and multiple opinions
(discussed below).
Open Questions
Content-fsh Regulations
Justice Alito's concurrence (discussed above) listed many regulatory distinctions that are clearly authorized. He listed two
distinctions that do not clearly square with the reasoning of the majority opinion. But, if you consider the three justices
concurring with Alito plus the three justices concurring in judgment only, there are six justices that took the question of
content neutrality with more practical consideration than Justice Thomas' hard line. Thus, Alito's opinion may in fact hold
the greatest weight of this case. Only time will tell—time and more litigation.
First, Justice Alto listed signs for one-time events. This seems to be precisely what the majority stuck down in this case. It
is unclear how a local regulation could structure such regulation without relying on the content of the message itself. But
the inclusion on Justice Alito's list points to some room for defining signs based on function.
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And second, Justice Alito listed the distinction between on -premises and off -premises signs. The enforcement officer must
read the sign in order to determine if a sign is off -premises or on -premises. As such, these would seem to be facially
content -based and subject to strict scrutiny. But, prior Supreme Court caselaw has upheld the on-premise/off-premise
distinction and that precedent is not overruled by the majority opinion.
Commercial and Noncommercial Speech.ln past decisions the Supreme Court has treated commercial speech to
slightly less protection than noncommercial speech. Commercial speech regulation needs to meet a version of
intermediate scrutiny, not the strict scrutiny applied to regulation of non-commercial speech (See, generally, Central
Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1987)).
Arguably, the Reed decision opened the door to challenge a sign ordinance that distinguishes between commercial and
noncommercial speech. Justice Alito's concurring opinion noted that distinguishing based on the type of property
—commercial or residential—would be valid. Regulating based on the content of the sign—commercial or
noncommercial—arguably is undermined by the Reed decision.
Notably, though, the majority in Reed did not overrule its prior decisions. The Reed decision was focused on the Town
code's distinctions among types of noncommercial speech. Presumably the long -held standards for regulation of
commercial speech still apply.
Conclusion
In the wake of Reed, some things are clear. Governments still have an array content -neutral regulations to apply to signs.
But, content -based distinctions such as the ones in the Town of Gilbert's code must survive strict scrutiny to stand.
Because of mix of opinions from the Court, there are several open questions. We will not know the full scope and meaning
of Reed v. Town of Gilbert until the federal courts begin to apply this decision to other sign litigation.
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