Agenda - Planning Commission - 04/03/2008

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II t!~~~NI~~JG~~~S CONSTITUTIONAL By Lora Lucero, A/CP Electronic messaging center (EMC) signs are digi~al signs where the copy of the message can change frequently-sometimes as quickly as every four or five seconds. The city of Concord, New Hampshire, originally banned EMC signs with the exception of the time, date, and tem- perature signs, but when the city faced an equal protection challenge to its sign code-treating one type of digital sign differently than another-it decided to ban all EMC signs. its EMC in time for the holiday shopping sea- son.The magistrate judge refused, relying on the Central Hudson Gas & Electric Corp. (447 U.S. 557 (1980)) test for commercial speech. The district court judge affirmed for differ- ent reasons. Because the EMC ban is content- neutral and does not apply merely to commer- cial entities, he ruled that the Central Hudson test was inapplicable. Instead, he upheld the city's ban because he concluded it was narrowly tailored to serve a significant governmental interest and allowed for reasonable alternative channels of communication. Naser jewelers was unlikely to succeed on the merits and so it was not entitled to a preliminary injunction. The First Circuit concluded that the city's ban on all EMCs is a constitutionally permissible content-neutral regulation. Naser jewelers, Inc., wanted to construct an EMC sign for its retail store located along a high-traffic corridor in Concord. There is cur- rentlya freestanding static sign six feet off the ground at that location, but Naser jewelers was eager to install the EMC because of its experience with an EMC at another retailloca- tion in Dover. Naser jewelers maintained that its sales increased about 18 percent at the Dover store as a result of the EMC sign. When the city's code administrator denied the application, the store argued that the sign code impermissibly infringed on its First Amendment rights and asked the federal court for injunctive and declaratory relief. The store wanted to enjoin the city from enforcing its sign code so that it could proceed to install This decision was appealed to the First Circuit, at which time the American Planning Association stepped in as amicus curiae, joined by the International Municipal Lawyers Association, the Northern New England Chapter of APA, the New Hampshire Municipal Lawyers Association, and the New Hampshire Planners Association. john Baker and Robin Wolpert of Greene Espel, Minneapolis, drafted APA's ami- cus brief. Baker will discuss this case more fully on Aprilz8 atthe Bettman5ymposium during the APA conference in Las Vegas. In a nutshell, the First Circuit was not impressed with the arguments made by Naser jewelers and concluded the city's ban on all EMCs is a constitutionally permissible con- tent-neutral regulation. The court acknowl- edged the city's concerns about traffic safety and community aesthetics and concluded that the ban on EMC signs is narrowly tailored to address the city's concerns. It is a given that a billboard can constitute a traffic hazard. It follows that EMCs, which pro- vide more visual stimuli than traditional signs, logically will be more distracting and more hazardous. . . . Indeed, plaintiffs own witness stated that bypassers focus more on rapidly blinking electronic signs than static signs. This constitutes a greater hazard. Further, for driv- ers a flash ing light is often a signal of hazard on the roadway, a signal which itself slows and disrupts the traffic flow. Naser Jewelers' argument-that it would lose potential customers and profit if it could not place an EMC sign at its Concord store- did not impress the court. "The maximizing of profit is not the animating concern of the First Amendment," the court said. APA's amicus brief and the Naser jewelers decision can be accessed at www.planning.orgjamicusbriefs. Lora Lucero, AICP, is editor of Planning and Environmental Law, and staff liaison' to APA's amicus curiae committee. .. :.....S...kv.l".lnl:Of dbW~.t.O.'...~n.o Tulsa. ,0.'0 kl~hoin. ii, . . .... with Elm Creek in foreground. Tuisa . experienced majorfloods regularly into the 198.os before undertaking major ..improvementsIn floodplain managemeryt. . p~ot6byRon~ld FIimagarL VOL. 25, NO.3 Zoning Practice is a monthly publication of the American Planning Association. Subscriptions are available for $75 (U.S.) and $100 (foreign). W. Paul Farmer, FAIeP, Executive Director; William R. Klein, AIeP, Director of Research. Zoning Practice (ISSN 1548-0135) is produced at APA. Jim Schwab, AIeP., and David Morley, Editors; Julie Von Bergen, Assistant Editor; Lisa Barton, Design and Production. Copyright ~2008 by American Planning Associatio~', 122 S. Michigan Ave., Suite 1600, Chicago, IL 60603. The American Planning Association also has offices at 1776 Massachusetts Ave., N.W., Washington, D.C. 20036; www.planning.org. All rights reserved. No part of this publication may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the American Planning Association. Printed on recycled paper, including 50-70% recycled fiber and 10% postconsumer waste. ZONINGPRACTICE 3.08 AMERICAN PLANNING ASSOCIATION I pager 5 5