Agenda - Planning Commission - 05/04/2017

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April 10, 2017 I Volume 11 I Issue 7 Zoning Bulletin Amendment, or state and federal constitutional rights to equal protection, or the Church's constitutional due process rights, or RLUIPA's undue burden and equal terms provisions. First addressing the Church's allegations that the electronic sign permit violated its right to free speech under the First Amendment, the court applied an intermediate scrutiny standard. The court explained that content -neutral regula- tions, such as the electronic sign ordinance, are subject only to intermediate scrutiny, which permits the government to "impose reasonable restrictions on the time, place, or manner of protected speech," so long as "they are narrowly tailored to serve a significant governmental interest, and . . . they leave open ample alternative channels for communication of the information." The Church had argued that the Town's decision to deny its request for an electronic sign was subject to strict scrutiny because it drew "speaker -based distinctions that improperly permit[ed] some speakers to have an electronic sign but not others." The court acknowledged that speaker -based laws demand strict scrutiny, but dis- agreed that strict scrutiny should be applied here. The court found that the distinc- tion for grandfathered speakers (such as the gas station that had an electronic sign before the town enacted the sign ordinance) (per a state law that exempted all preexisting nonconforming uses of property from local zoning requirements) did not directly or indirectly regulate users on the basis of the content of affected speech, and therefore did not trigger strict scrutiny even though the sign ordinance treated some speakers differently from others. The court also found that the distinction for government land owners (like the public school that had an electronic sign) (per state law that exempts government land users from local zoning ordinances) similarly did not discriminate on the basis of content of af- fected speech and therefore did not warrant strict scrutiny. The court concluded that the sign ordinance here survived intermediate scrutiny as it served the government interests of aesthetics and traffic safety, and did so without being "overinclusive" and burdening "substantially more speech than [was] necessary." The court found there were still "ample alternative chan- nels for communication of the information" that the Church wished to convey — such as manually changeable signs. Finding the Town's ban on electronic signs in certain zoning districts was valid and neutral, the court found there was no evidence that the ban targeted religion. Accordingly, the court also rejected the Church's argument that the Town's sign ordinance infringed on the Church's First Amendment right to the free exercise of religion. The court also rejected the Church's claim that the electronic sign ban violated the Church's federal and state constitutional rights to equal protection when it denied the Church's request for an electronic sign while allowing the public school to keep its electronic sign. The court found that the Church's claims failed as a threshold matter because the Church and the public school were not similarly situated. The court explained that "[t]o establish a viable equal protection claim under either federal or state law, the Church must prove, among other things, that it was treated differently from other `similarly situated' entities." The court found that the Church was not similarly situated to the public school because, unlike the Church, the public school was a subdivision of the State of New Hampshire that the Town had no authority to regulate, while the state had expressly empowered municipalities to regulate land uses by nongovernmental entities such as the Church. 10 ©2017 Thomson Reuters