In June 2015, the U.S. Supreme Court issueda decisionthat invalidated a municipal sign code because it violated the First Amendment by distinguishing between signs, and treating them differently, based on the content of the sign. The decision, called Reed v. Town of Gilbert, Arizona, is a major and unexpected shift in First Amendment case law that makes parts of most, or maybe even all, municipal sign codes across the country unconstitutional.
The case involved a church that held its services in different locations every week, and placed temporary signage to direct people to the services. The Town of Gilbert's sign code required permits for signs, but had exemptions from this requirement, including exemptions for political signs, temporary directional signs and ideological signs, and allowed different sizes and durations of display for each, with temporary directional signs - which is what the church was displaying each week - receiving the least favorable treatment. The church sued for violation of their free speech rights, arguing that the distinctions were content-based. The Supreme Court eventually agreed.
Based on previous cases, when a regulation is based on the content or message of the sign, it is subject to a review standard called strict scrutiny. To survive strict scrutiny, a regulation must serve a compelling governmental interest AND be narrowly tailored to serve that interest. Rarely does a regulation pass this test.
Before this decision, regulations were generally considered content-neutral so long as they did not favor or disfavor the message, or discriminate between different viewpoints. This decision changes that. Now, a regulation is content-based if there are different standards for signs based
on subject matter, or topics discussed. Virtually all sign codes currently do this. For example, our code allows signs for special events to be up to 40 square feet, whereas political signs may only be 22 inches by 28 inches, which equates to only about 2 1/2 square feet. Because this distinction is based on the subject matter of the sign, regardless of the lack of discrimination between viewpoints, it is not considered content-neutral under theReeddecision.
Roughly speaking, the situation now could be summarized as if the regulator has to read the sign to know how to regulate it, the regulation is (with some exceptions) probably not content-neutral.
While a great deal of uncertainty remains about the practical effects of this decision, it is important to act, in light of the decision, to preserve the purposes of the sign code.
In response to theReeddecision, our basic approach is to continue to make the same allowances for signs in terms of number, size, locational requirements, etc., but while no longer doing so with respect to the subject matter on the sign. For example, the Code currently allows every homeowner to have one"warning" sign (i.e. "no trespassing" or "bad dog") up to 80 square inches, while allowing another sign with "noncommercial copy" up to 1.5 square feet. The proposed amendments would continue to allow the same permanent signs in terms of number and size, the sign would not be limited to those subject matter.
While there are instances of impacts to the regulation of permanent signs, such as the example above, the most substantial impacts are to the regulation of temporary signs, which are currently almost completely regulated by references to their subject matter. In response to feedback received from the Council at two workshops held on this issue, since First Reading, staff has dramatically simplified the proposed regulation of temporary signs on RU-zoned properties (essentially, single family, duplex and townhouse lots), such that two temporary signs may be allowed at all times, at a maximum size of 22 inches by 28 inches. Regarding non-RU-zoned properties (roughly including commercial/industrial properties and multi-family residential properties), given the still large amount of uncertainty in how the issue will play out in the courts going forward given pre-existing (and not specifically overruled) case law regarding commercial signage, and again given the Council's feedback regarding the complexity of the previous proposal, Staff now proposes to leave the current temporary signage regime in place for these non-RU-zoned properties.
In addition to changes resulting fromReed, the proposed amendments would also bring badly needed organization and improved clarity to many provisions of the Sign Code, as well as address several types of signs that are not currently addressed, such as automatic teller machine (ATM) signs and drive-thru menu board signs.
The Planning and Zoning Board voted at its special meeting on April 27, 2015 to recommend adoption of the ordinance.