Agenda - Planning Commission - 04/07/2011

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Zoning Bulletin January 25, 2011 1 Volume 5 1 No. 2 Validity of Zoning Regulations- Signs —Sign Ordinance Prohibits Signs Above a Certain Size, But Exempts Categories of Signs Resident challenges constitutionality of sign ordinance Citation: Bowden v. Town of Cary, 2010 WL 5071613 (E.D. N.C. 2010) NORTH CAROLINA (12/07/10) —This case addressed whether a sign ordinance was unconstitutional in violation of the First Amendment. The Background/Facts: William David Bowden was a resident in the town. In July 2009, frustrated with what he considered an inadequate resolution of a road water runoff problem, Bowden painted a sign on the front of his house. The sign was approximately 48 square feet in size. In large fluorescent orange and pink letters, it read: "Screwed by the Town of Cary." In July 2009, the town issued to Bowden a Notice of Zoning Viola- tion. The town informed Bowden that his sign was in violation of the town's Sign Ordinance. More specifically, the town said that Bowden's sign violated § 9.3.2(S). That provision prohibited "residential signs" from exceeding five square feet. In November 2009, the town issued to Bowden a second Notice of Zoning Violation. That notice informed Bowden that his sign was in vio- lation of (1) § 9:3.2(X)(2) of the Sign Ordinance, which prohibited "wall signs" over two square feet in area; and (2) § 9.8.3(B) of the Sign Ordi- nance, which prohibited the use of fluorescent pigments in signs. Bowden brought a civil rights action against the town. He asked the court to declare that the town's Sign Ordinance violated the First Amendment of the United States Constitution. Among other things, Bowden argued that the Sign Ordinance, as applied to his protest sign, was "an invalid content -based restriction on speech." Bowden asked the court to find that there were no. material issues of fact in dispute and to issue summary judgment in his favor based on the law alone. DECISION: Motion granted. The United States District Court, E.D., North Carolina, Western Divi- sion, held that the town's Sign Ordinance was constitutionally invalid. In reaching this conclusion, the court first determined that the Sign Ordinance was content -based (as opposed to content - neutral). Whether the ordinance was content -based or content - neutral impacted the level of scrutiny the court would apply in deciding whether the challenged ordinance violated the Constitution. The court found that the Sign Or- © 2011 Thomson Reuters 5