Agenda - Planning Commission - 03/03/2016

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Temporary Sign Regulations in a Post -Reed America By Wendy E. Moeller, AICP, and Alan Weinstein Any community planner who has had the responsibility of administering and enforcing a zoning code has likely had to deal with the often complex issue of temporary signs— those signs that seemingly pop up overnight and proliferate if unchecked. These same planners may understand the need for the signage to advertise local events, busi- ness activities, elections, and the like, but they are also charged with regulating the temporary signs to prevent their excessive use, often to preserve community character. According to a recent survey of local governments, more than 8o percent of respon- dents stated that staff enforcement of their temporary sign regulations was one of their community's biggest issues, and almost a third responded that content neutrality—the regulation of signs without consideration of the content of the sign message—was an ongoing issue (Moeller 2015). A more in-depth review of the responses showed that even those commu- nities that did not feel content neutrality was an issue had some level of content regulation in their existing sign regulations, most often the regulation of real estate or election signs. This is particularly noteworthy, given that the regulation of a sign's content was the subject of the U.S. Supreme Court's June 2015 ruling in Reed v. Town of Gilbert, Arizona, a case with a number of ramifications for sign regulations across the country. This article summarizes the ruling in Reed and introduces how it impacts a core aspect of temporary sign regulations, which is how we define signs. This is followed by the best prac- tices communities can utilize to help regulate temporary signs in a post -Reed America. REED V. TOWN OF GILBERT, ARIZONA The U.S. Supreme Court's decision in Reed v. Town of Gilbert on June 18, 2015, is, undoubt- edly, the most definitive and far-reaching statement that the Court has ever made regard- ing the day-to-day regulation of signs. While the sign code provisions challenged in Reed involved only the regulation of temporary noncommercial signs, the Court's 6-3 majority Premier ealtl Atrium MedicalCente Temporary signs are an important tool for businesses and residential uses alike, so it is important to have reasonable rules for temporary signs in your land -use regulations. decision, written by Justice Clarence Thomas, likely applies to the regulation of permanent signs as well as temporary signs, business signs as well as residential signs, and possibly, on-site versus off-site signs. The rules that Justice Thomas announced in Reed could not be more straightforward. A sign regulation that "on its face" consid- ers the message on a sign to determine how it will be regulated is content -based. Justice Thomas emphasized that if a sign regulation is content based "on its face" it does not matter that the government did not intend to restrict speech or to favor some category of speech for benign reasons. He wrote: "In other words, an innocuous justification cannot transform a facially content -based law into one that is content -neutral." Further, a sign regulation that is facially content neutral is also a content - based regulation if it is justified by—or that has a purpose related to—the message on a sign. For example, a code provision that allows more lawn signs between mid-August and mid- November would be facially content neutral but might be challenged as being justified by or have a purpose related to allowing "election campaign" messages. Whether content -based "on its face" or content neutral but justified in relation to con- tent, Justice Thomas specified that the regula- tion is presumed to be unconstitutional and will be invalidated unless the government can prove that the regulation is narrowly tailored to serve a compelling governmental interest. This is known as the "strict scrutiny" test and few, if any, regulations survive strict scrutiny. This may be particularly true in regard to sign regulations, given that a number of federal courts have previously ruled that aesthetics and traffic safety, the "normal" governmental ZONINGPRACTICE 2.16 AMERICAN PLANNING ASSOCIATION I page 2