Agenda - Planning Commission - 03/03/2016

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subject to strict scrutiny. To date, only one fed- eral district court has accepted the claim that the on-site/off-site distinction is content based under Reed, with several other courts rejecting that claim. No decision to date has extended the Reed decision to include the regulatory distinction between signs bearing commercial versus noncommercial messages. Keep in mind, however, that even content - neutral "time, place, or manner" sign regula- tions are subject to intermediate judicial scru- tiny rather than the deferential "rational basis" scrutiny applied to regulations that do not implicate constitutional rights such as freedom of expression or religion. Intermediate scrutiny requires that a government demonstrate that a sign regulation is narrowly tailored to serve a substantial government interest and leaves "ample alternative avenues of communica- tion." Because intermediate scrutiny requires only a "substantial," rather than a "compel- ling," government interest, courts are more likely to find that aesthetics and traffic safety meet that standard. That said, courts have struck down a number of content -neutral sign code provisions because the regulations were not "narrowly tailored" to achieve their claimed aesthetic or safety goals. REGULATORY BEST PRACTICES There are a number of comprehensive sign regulations that have been crafted over the years that can serve as a good starting point when considering an update to your own sign regulations. In this post -Reed time, many com- munities are rethinking their approach to signs, and over the course of the next year, we are likely to see new models that better respond to the direction of the Supreme Court. The prob- lem with temporary signs is they are a small, but integral, part of overall sign regulations. This, along with the fact that there are variable state rules related to certain temporary signs (e.g., election signs), makes it difficult to create a model temporary sign code that can stand on its own and be seamlessly added to a com- munity's sign regulation. However, there are a number of general best practices for the regula- tion of temporary signs in light of Reed. Distinguish Between Temporary Sign and Temporary Message Few sign regulations make a clear distinc- tion between a temporary message and a temporary sign. A temporary sign is where the entire sign structure is either fully portable or QU&EIISET START AT Communities can stilt regulate the types of signs allowed (e.g., A -frame signs or blade signs), setbacks, size, and other structure type requirements. In this post -Reed time, many communities are rethinking their approach to signs, and over the course of the next year, we are likely to see new models that better respond to the direction of the Supreme Court. is not intended to be permanently installed. A temporary message is where the sign struc- ture itself is permanent but the message may be temporary. The most common types of temporary messages we see in communities are electronic message centers and manual reader boards. In such cases, the sign should be regulated as a permanent structure but the community might control how often the mes- sage may change. While these examples seem straightforward, the line between the two can be a bit blurred. An example of this situation is when business owners or communities hang banners or other signs on light poles or similar structures. To address this issue, the commu- nity should consider the supporting structure and whether it is designed in a manner to accommodate the message, even though it may be changed out through the year. A com- munity's banner signs attached to light poles are an excellent example where the light poles are designed with permanent fixtures on which the banners are hung. In these instances, the community should regulate the light pole, and any related fixtures that support the message, as a permanent structure with allowable tem- porary messages, rather than regulating it as temporary sign. Think of the Bigger Picture Reed may have related to an issue with a tem- porary sign, but the ruling has implications for all sign regulations. Generally speaking, it is impractical to completely separate out all the rules that apply to temporary signs as a distinct set of regulations. Consequently, when you consider overhauling how you regulate tempo- rary signs, it is important to step back and take a comprehensive look at the overall sign code. First, given the implications of Reed, communi- ties should take a took at all of their sign regu- lations to see where they may be regulating content, and consider if they are making a large number of exemptions to accommodate vari- ous types of signs. Second, one of the major driving forces of your sign regulations should be the purpose statement that sets clear direc- tion for how and why a community regulates signs. This purpose statement needs to apply to all the different sign types, not just to tem- porary signs. Furthermore, your community might consider that if one of the purposes of the sign regulations is to promote businesses but limit temporary signs, then perhaps a bet- ter approach is to consider allowing more tem- porary messages on a permanent sign. Finally, evaluating your sign regulations as a whole will help you identify where you might have conflicts, such as allowing for larger temporary signs over permanent signs or making various exceptions based on content or permanency. Consider the Sign's Location There is a tong list of temporary sign types, ZONINGPRACTICE 2.16 AMERICAN PLANNING ASSOCIATION I page y