Many local governments still need to update sign regulations following the 2015 Supreme Court case
It has been almost ten months since the US Supreme Court ruling on content-neutral regulation of signs. The June 2015 ruling re-emphasized and further restricted content-based regulation of signs. Many local governments have yet to adopt new regulations.
By now most zoning or separate sign ordinances should have been updated to reflect U.S. Supreme Court standards for regulating signs – or at least local governments should be somewhere in the rewriting or adoption stages.
This is a result of the United States Supreme Court ruling in Reed et al. v. Town of Gilbert, Arizona, et al., (576 US (2015) which was decided June 18, 2015 – almost ten months ago. It was first reported here in the article “Supreme Court ruling on sign regulation has major implications for all local governments.”
A review of 23 zoning and sign ordinances in two Michigan counties showed that 15 of them still had major parts of their sign regulations out-of-compliance with the content-neutral requirements of the Supreme Court. Eight of the sign regulations had minor out-of-compliance issues with the court’s ruling. The 15 with “major” issues means it would be necessary to do a complete re-write of the sign regulations, based on the professional opinion of the reviewer. The eight “minor” issues could be corrected with amending the existing sign regulations. None of the zoning ordinances were okay as written. If sign regulations do not conform to the court’s standards they should not be enforced without first updating. It is likely similar results would be seen if the same analysis was done elsewhere in Michigan.
That should be cause for concern.
The problem is that many zoning ordinances and municipal sign ordinances purport to regulate signs based on some aspect of the content of the sign, subject, and purpose. Some might suggest the Supreme Court did not say anything new. That may be partly true, in that the ruling reinforces that signs cannot be regulated based on the sign’s content.
Those suggesting the opinion did not say anything new suggest the court restated standards that the Court first laid down about 45 years ago, but many local governments have still not followed. The opinion addresses requirements that sign regulations be content-neutral and not content-based. Even with this history there are communities are upset with what is characterized as a new ruling. But, the basic court’s standards on sign content-neutrality have been around since Metromedia v. City of San Diego, 453 U.S. 490 (1981)
On the other hand what is new is that the Court clarified (and greatly expanded) the number of things that are now considered “content-based regulation.”
Regardless, the basic rule, or test for content-based regulation still is whether the zoning administrator, or enforcement officer, has to read the sign (or look at illustration(s) displayed on the sign) to know what regulations apply. If so, that is likely content-based regulation which is not constitutional and should not be enforced. To be constitutional, it must be content-neutral.
Content-based sign regulations often found in local ordinances that are not likely to be legally defensible under Reed include:
- Exceptions to sign regulations (a list of signs not needing a permit, or not having to follow size or other regulations) when that list includes type of signs, such as “no trespassing,” “no hunting,” political campaign, garage sale, or real estate signs.
- Restricting the subject of a sign to only the business or activity on that same parcel.
- A regulation like “. . . each sign shall only advertise products and/or services available on the premises . . . .”
- Singling out certain types of signs for different treatment (such as religious assembly, church, service clubs, quasi-public uses, garage sale, real estate, charitable organizations bulletin boards, construction [identification of the builder at a construction site], etc.).
- Distinction for signs which are flags, streamers, pennants.
- Sign definitions which define different types of signs based on content or purpose, such as “advertising sign,” “construction sign,” “political sign,” “development sign,” and so on.
- A regulation like “Sign . . . pertaining to business physically located in the township . . . .”.
The Supreme Court’s ruling also left open some questions which may have to wait for further litigation. For example, it is not known what this does to the distinction between commercial versus non-commercial distinctions for sign regulation. A risk-management approach may be to assume such distinctions no longer exist. Similarly, regulations about adult entertainment businesses (content-based) might be questioned (although, such regulations may be more likely to survive a challenge in court). Will distinctions between on-premises and off-premises signs be allowed to continue? That is unclear.
Regulation of signs can still focus on the design of the sign (ground, roof mounted, pole, wall, etc.); number; size; total sign area per parcel; height; illumination; removal of obsolete or dilapidated signs; and other non-content-
In reviewing local regulations, it will be helpful to refer to the Michigan Sign Guidebook: The Local Planning & Regulation of Signs prepared by the Planning & Zoning Center at Michigan State University for Scenic Michigan (for a summary of the Michigan Sign Guidebook, see Sign regulation guidebook helps communities find their way). A three to four hour training program, The Most Important Sign Regulation Workshop in 20 Years! Is a companion to the Guidebook and taught by MSU Extension Educators specializing in land use. Also see the American Planning Association’s Street Graphics and the Law, 4th edition, PAS 580, (ISBN: 978-1-61190-161-0).
Those in Michigan State University Extension that focus on land use provide various training programs on planning and zoning. The MSU Extension Citizen Planner Program will be conducting a short webinar on regulation of signs post-Reed the evening of June 16, 2016. Register for the event online. Also on May 18, 2016 in Manistee a sign training program is being offered. A similar program can be set up in any part of the state, working with a local host. This shorter sign regulation training program (one to two hours) is available to be presented in your county. Contact your local land use educator for more information.