Agenda - Planning Commission - 10/06/2011

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August 10, 2011 I Volume 5 1 No. 15 Zoning Bulletin First Amendment —Homeowner Alleges First Amendment Violations After Borough Orders Her To Remove Biblical Message From Roof Borough says homeowner's right of free expression was not infringed since she did not remove the message Citation: Trask v. Ketchikan Gateway Borough, 253 P.3d 616 (Alaska 2011) ALASKA (06/17/11)—This case addresses the elements needed to suc- cessfully: have standing to assert a 42 U.S.C.A. § 1983 claim (i.e., here, a claim of violation of free speech rights under the First Amendment to the United States Constitution) in Alaska against a municipality; and state a § 1983 claim (i.e., here, for violation of a right to free speech under the First Amendment) against a municipality. The Background/Facts: Leta Trask owned a house in the Ketchikan Gate- way Borough (the "Borough" or "KGB"). She planned to refresh and modify a painted Biblical message on her roof. She asked the Borough if she would need a permit. The Borough informed Trask that she would not need a permit because the message as she described it was not a "sign" under the KGB Code. Trask subsequently painted a message on her roof. It read: "DO UNTO OTHERS ... BY YOUR DEEDS YOU'RE KNOWN: LOVE YOUR NEIGHBOR: YOU'RE WELCOME." The roof also displayed a cross. and two hearts. The roof was mainly visible to Trask's uphill neighbors. After some of Trask's neighbors complained to the Borough about the message, the Borough informed Trask that the message violated the KGB Code. The Borough instructed Trask to remove the message. It also threat- ened Trask that citations might issue if Trask did not remove the message. Trask did not remove the message. The Borough filed a legal action in court to enjoin Trask from displaying the message and seeking the imposition of a $200 fine. The Borough alleged that the message violated the KGB Code. Trask counterclaimed. Among other things, she alleged that the ordi- nance, as applied to her, violated the First Amendment of the United States Constitution by restricting her freedom of speech. Trask sought relief under 42 U.S.C.A. § 1983. The Borough asked the court to dismiss Trask's counterclaim. Trask asked the court to find that there were no material issues of fact in dispute and to issue summary judgment in her favor on the law alone. The superior court found that Trask's roof message was not a "sign" as defined by the KGB Code. As a result, the court dismissed the Borough's en- forcement action. The court also dismissed Trask's § 1983 claim. It conclud- ed that Trask lacked standing to challenge the sign ordinance because: her message was not a "sign" under the ordinance; and her right of free expres- sion was not infringed since she did not remove the message. 10 © 2011 Thomson Reuters