City sign ordinance to change in wake of Supreme Court ruling

Submitted by Suanne Z. Thamm
Reporter – News Analyst
September 17, 2015 12:57 p.m.

The Fernandina Beach City Commission (FBCC) and the city’s Planning Advisory Board (PAB) met in a rare joint workshop on September 16, 2015 at the request of City Attorney Tammi Bach regarding the need to change parts of the city’s sign code in light of a recent Supreme Court decision.

Attorney Bill Brinton, accompanied by his colleague Emily Pierce, briefed both bodies on the implications of the Supreme Court decision for municipalities around the country. Mr. Brinton’s practice focuses on the areas of complex First Amendment and land use litigation involving billboards and other signage; land use law re signage; commercial and construction litigation and arbitration. Ms. Pierce’s practice focuses on land use and environmental law, including zoning, concurrency issues, development agreements, comprehensive planning and Developments of Regional Impact. Both attorneys are employed by Rogers Towers.

Brinton, who had just come from conducting a webinar attended by 200 attorneys on the implications of this Supreme Court decision, is working with Bach to make changes to city code which will be presented to the FBCC on first reading at their October 6, 2015 Regular Meeting.

The initial changes proposed will address temporary signs.

Background

In June of this year the U.S. Supreme Court held that content-based sign codes are unconstitutional. In the case Reed vs. Gilbert, the Court held unanimously that the city of Gilbert’s sign code violated the First Amendment because it treated various signs differently based on the information they conveyed. Gilbert is a city of 229,000 people southeast of Phoenix, AZ.

Gilbert’s sign code treated temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs. Content-based laws are only constitutional if they pass strict scrutiny—that is, if they are narrowly tailored to serve a “compelling government interest.” Examples include traffic signs. Gilbert’s sign code failed the strict scrutiny test because its two asserted compelling interests—preserving aesthetics and traffic safety—were “hopelessly under inclusive.”

The Court ruled that temporary directional signs “are no greater eyesore” and pose no greater threat to public safety than ideological or political signs. Many, if not most communities, regulate some categories of signs in a way the Supreme Court has defined as content-based. Communities are now scrambling to bring their sign codes into compliance with the ruling to avoid lawsuits.

The American Bar Association has provided the following analysis. The Gilbert sign ordinance imposed more restrictions on “temporary directional signs” directing the public to meetings of churches and other non-profit groups. The Good News Community Church and its pastor, Clyde Reed, challenged the ordinance as a violation of the First Amendment. Supreme Court Justice Clarence Thomas wrote in the Court’s Opinion that the ordinance’s differing treatment of signs based on the type of information they convey is a content-based restriction of speech that does not survive strict scrutiny. “A regulation that targets a sign because it conveys an idea about a specific event is no less content-based than a regulation that targets a sign because it conveys some other idea,” Justice Thomas wrote.

In a concurrence, Justice Samuel Alito stressed that several types of sign rules could be enacted that are not content based. He was joined by Justices Sonia Sotomayor and Anthony Kennedy. Justice Elena Kagan concurred in the judgment, in an opinion joined by Justices Stephen Breyer and Ruth Bader Ginsburg. Kagan said Thomas’ strict-scrutiny analysis placed many sign ordinances in jeopardy, including the federal highway beautification law that bars many signs along interstate highways, but allows signs for scenic and historical attractions.

What is the solution?

Brinton characterized the Supreme Court ruling as “a blockbuster decision,” which is forcing communities around the country to completely re-think regulations on signs. Pierce said that attorneys have already begun filing suits against local governments. Brinton said that he is working with City Attorney Bach, who was one of the first municipal attorneys to contact him following the Supreme Court decision.

Brinton said that governments can still regulate signs, but in a different way. Signs can be limited by zoning district, size, setback requirements, spacing, etc. All this can be done without describing the signs you are talking about as political, commercial, ideological, etc.

The biggest immediate problem, according to Pierce, is temporary signs.

Commissioner Pat Gass asked about implications for campaign signs in the current election cycle. Brinton said that as long as the signs are not allowed on public property or in city right-of-ways (ROWs), candidates should remain unaffected.

Some discussion followed regarding traditional placement of campaign signs on public property near the airport and at the intersection of Jasmine and Citrona Streets. City Code Enforcement Officer Michelle Forstrom said that the city had banned placing signs in certain public areas of the city where they had traditionally been allowed several years ago. Areas under discussion are located in the county, which also has an ordinance banning such sign placement on public property.

Brinton reported that the state of Florida is ahead of many other states, because it has already legislation in place outlawing temporary signs on state property.

Brinton and Bach agreed that this is a fast-moving matter. However, to allay concerns Brinton said that although terms like political signs are now out the window, the character of signs could still be governed via overlays, homeowner association contracts and other means.

“We will have to regulate signs in a way that is foreign to us,” Brinton said, while allowing that the end result may actually make regulation easier for both the FBCC and the PAB.

All city commissioners except Commissioner Robin Lentz attended the workshop. All Planning Advisory Board members except Alternate Eric Lawrence also attended.

Editor’s Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.