Agenda - Planning Commission - 07/06/2017

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June 10, 2017 I Volume 11 I Issue 11 Zoning Bulletin The Court of Appeals also affirmed the the trial court's determination that Fourth National lacked standing with respect to its free -speech chal- lenge as a defense to the City's enforcement action on the existing Sign. Fourth National, found the court, could not meet the redressability require- ment of standing (Le., that its injury could be redressed through litigation). In other words, Fourth National "failed to show that it could keep its over- sized sign in place even if its free -speech challenges were successful." However, the appellate court reversed the trial court's decision to the extent that it dismissed for lack of standing Fourth National's request for a declaration that the challenged City Zoning Code sign provisions were un- constitutional on free speech grounds. The appellate court found that Fourth National did, in fact, have standing to bring both an as -applied challenge (i.e., challenging the constitutionality of the Zoning Code sign provisions as applied to Fourth National) and a facial challenge (i.e., chal- lenging the constitutionality of the Zoning Code on the face of its language). The appellate court concluded that Fourth National, which represented that it desired a permit to install a smaller sign in the event that the off -site sign provisions were found unconstitutional, "established an injury -in -fact and had standing to challenge the provisions as applied to its desired com- mercial signage." The court found that if Fourth National "were to succeed on the merits of its free -speech challenge as applied to its desired com- mercial signage, resulting in a declaration that the provisions were uncon- stitutional and void as applied, Fourth National would likely be able to obtain a permit for and install [a smaller sign]," since the City's denial of a permit for the existing Sign was based on the off -site sign prohibition pro- visions, and not size restrictions. The appellate court concluded that Fourth National met the "minimum requirements of constitutional standing to bring this as -applied claim with respect to the desired [and smaller] sign." The court also concluded that Fourth National had standing to proceed on its facial challenge to the off -site prohibition provisions of the City's Zoning Code. Fourth National had asserted standing under the "over - breadth doctrine." The court explained that the overbreadth doctrine "serves as an exception to the prudential standing requirement and allows a party to bring a facial challenge to a provision of a law that causes the party an injury, regardless of whether the provision's regulation of the party's conduct in particular was constitutional." Fourth National had argued that the "overbroad restrictions" of the Zoning Code's off -site sign prohibitions inhibited both noncommercial and commercial speech because they contained "content -based restrictions that provide a greater degree of protection to certain forms of commercial speech than noncom- mercial speech, and they provide a greater degree of protection for on -site versus off -site advertising that does not pass [scrutiny.]" Noting that the overbreadth doctrine "does not apply to commercial speech," the court concluded that Fourth National could not present a facial challenge on overbreadth grounds to assert the commercial -speech 10 © 2017 Thomson Reuters