Agenda - Planning Commission - 02/03/2011

Home

August 25, 2010 Volume 41 No. 16 Zoning Bulletin DECISION: Affirmed. The United States Court of Appeals, Third Circuit, held that the zoning board's application of the four criteria did not violate Mel - rose's First Amendment free speech rights. The court said the applica- tion of the criteria was a "permissible `context- sensitive' analysis." In reaching this decision, the court explained that First Amend- ment analysis first requires a determination of whether a statute (i.e., here the zoning code and the application of the four criteria) is content -based or content- neutral. If the statute is content - based, it is valid only if the government can show "that the regulation is necessary to serve a compelling state interest and that it is narrow- ly drawn to achieve that end." If the statute is content - neutral —in that it "merely restricts the total quantity of speech by regulating the time, the place or the manner in which one can speak " —it is valid only if the government shows that the restrictions: (1) are jus- tified without reference to the content of the regulated speech; (2) are narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels for communication of the information. Here, the court found the identification signs allowed under the city's zoning code were an example of "context- specific signs." "Such signs clearly better convey their information at the location they are intended to identify, rendering them similar to address signs." The court explained that context - specific signs do not constitute content - based restrictions. The court said this was because allowing such "context- sensitive signs" while banning others is "not discriminat- ing in favor of the content of th[ose] signs; rather it is accommodat- ing the special nature of such signs so that the messages they contain have an equal chance to be communicated." Thus, the court analyzes their First Amendment validity under the content- neutral test. Here, the court found that the ordinance was valid under the con- tent- neutral test because: (1) the city had important aesthetic interest in limiting advertising signage and important interest in allowing the public to identify a particular name with a geographic location —pub- lic order and traffic safety; and (2) the ordinance was narrowly tai- lored to serve those interests, by allowing for a small number of iden- tification signs containing advertising when they also identified their locations, and "impinging as little as possible" on the overall goal of the city's sign regulations. Finally, the court concluded that "Melrose's signs clearly failed to satisfy [the four criteria applied by the zoning board]." Accordingly, it upheld the zoning board's rejection of Melrose's sign applications. 4 © 2010 Thomson Reuters