Agenda - Planning Commission - 07/09/2009

Home

Zoning Bulletin May 25, 20091 Volume 3\ No. 10 I~ business revenue from rental of outdoor advertising signs because many ( ) of the existing signs wohld not conform to the location limitations. Clear Channel brought a legal action against the city, challenging the constitutionality of the Zoning Resolution and Rule 49. they claimed that the city's regulatory and enforcement scheme was so riddled-with exceptions and inconsistencies that it undermined the very point of the regulations-thus making the Zoning Resolution an unconstitutional re- straint on speech in violation of the First Amendment of the u.s. Con- stitution. In other words, they claimed that because of the inconsistent application of the restrictions, the Zoning Resolution failed to directly advance the city's traffic and aesthetic goals. Specifically, Clear Channel pointed to the following signs that would be excepted from enforcement: signs still grandfathered from 1980; signs within one~half mile of the city's border on certain specified highways; and signs that the city had no jurisaiction to regulate-such as signs on Transit Authority or U.S. , Government property. Clear Channel also challenged Rule 49's documentary requirements. They claimed those requirements violated the First Amendment because they did not advance the city's interests since the city "[could] not rea- sonably claim that 29-year old signs cause traffic safety problems or that ','____ 'enhanced documentary requirements will reduce the problem." They ( ), also argued that Rule 49 was not narrowly tailored because: (1) it placed the burden of proof on the outdoor advertisers to show that the signs were non-conforming; (2) "forced them to prove th[at] with evidence al- m'ost impossible to provide given the passage of time;" and (3) the city could have established less stringent documentation policies that would still meet the city's goals. The city maintained that the regulations furthered its interests in irn- , proving traffic safety and aesthetics. Both the city and Clear Channel moved for summary judgment. They asked the court to determine that there were no material issues of fact, and to find in their favor on the law alone. ' DECISION: City's motion for summary judgment granted. . ' (J The court held that the Zoning Resolution and Rule 49 did not vio- late the First Amendment. The court explained that "the First Amendment, as applied to the states through the 14th Amendment, protects commercial speech from unwarranted governmental regulation." "Where a coirununication is nei- ther misleading nor related to illegal activity, the [government] must dem- onstrate its interest in restricting the speech, and the regulatory technique must be in proportion to that interest." A four-part testis used to deter- i:nine whether governmental regulation of commercial speech violates the First Amendment: "(1) is the expression protected by the First Amend- 7 . @ 2009 Thomson Reuters 47