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Protecting Your Sign Code Against Attack (S634). APA 2007 National Planning Conference Professor Daniel Mandelker, FAICP Washington University, St. Louis Professor Emeritus Charles Floyd, AICP University of Georgia, Athens Adjunct Professor John M. Baker

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Protecting your sign code against attack s634

Protecting Your Sign Code Against Attack (S634)

APA 2007 National Planning Conference

Professor Daniel Mandelker, FAICP

Washington University, St. Louis

Professor Emeritus Charles Floyd, AICP

University of Georgia, Athens

Adjunct Professor John M. Baker

Greene Espel P.L.L.P., Minneapolis and

William Mitchell College of Law, St. Paul


Recent trends
Recent trends

  • Billboard permit lawsuits designed to take down entire sign codes

  • The plaintiff-sign companies’ objectives:

    • Erecting many large, profitable billboards—

      • through court orders, or

      • through settlements extracted to end litigation

    • -- where none are currently allowed.

  • More surgical attacks on certain types of sign regulations


Pre empting such lawsuits
Pre-empting such lawsuits

  • The most effective strategy: fix flaws in your sign code before plaintiffs’ signs or their applications arrive



1 does the code have an effective statement of purpose and intent
1. Does the code have an effective statement of purpose and intent?

  • NOT just “to protect the health, welfare, safety . . . .”

  • A statement that

    • tracks the objectives courts view as legitimate,

    • shows respect for citizens’ need for self-expression, AND

    • will assist your city to justify all distinctions between legal and illegal signs


2 does your code include a message substitution clause
2. Does your code include a “message substitution” clause?

  • The problem:

    • You must be sure that sign code regulations will never give commercial speech a kind of protection unavailable to noncommercial speech



The solution add a message substitution clause to your code
The solution: add a “Message Substitution Clause” to your code

  • Whenever commercial speech would be permitted, allow noncommercial speech to be substituted

  • Lakeville, MN Section 9-3-4: “Signs containing noncommercial speech are permitted anywhere that advertising or business signs are permitted, subject to the same regulations applicable to such signs.”


3 does it properly distinguish between on site and off site signs
3. Does it properly distinguish between on-site and off-site signs?

  • Off-site and on-site signs can be treated differently

    • Commercial off-site signs can be prohibited

    • Noncommercial off-site signs may have to be allowed


3 does it properly distinguish between on site and off site signs1
3. Does it properly distinguish between on-site and off-site signs?

  • Off-site and on-site signs can be treated differently (cont’d)

    • Noncommercial messages must be allowed on on-premise signs

    • Reasonable height, size and spacing requirements are permissible for on-site signs

    • Signs on residential property require special treatment


4 are its procedural safeguards sufficient
4. Are its procedural safeguards sufficient? signs?

  • Have you reserved too much discretion?

  • Sources of discretion that may raise concerns:

    • Provisions authorizing permit denial even if the application satisfies all specific requirements

      • Look at aesthetic review provisions

    • Provisions that treat signs as conditional or special uses


4 are its procedural safeguards sufficient cont d
4. Are its procedural safeguards sufficient? (cont’d) signs?

  • Ordinarily, preserving discretion is a good thing

    • You can’t foresee everything

    • Rigid rights to build can have unforeseen consequences

  • For sign codes, preserving discretion can create problems

    • Because signs are expressive conduct, courts distrust discretion

    • Even if you never exercise discretion, an ordinance that allows you to exercise it over sign applications may be unconstitutional


4 are its procedural safeguards sufficient cont d1
4. Are its procedural safeguards sufficient? (cont’d) signs?

  • How quickly must you act on an application or an appeal?

    • Are there self-imposed, formal time limits (in the ordinance itself) on the ability of staff (or a board or council) to refrain from acting on the application or on an appeal?

    • These may be needed unless you’re sure that no judge will consider your ordinance content-based


5 does the code have a broad severability clause
5. Does the code have a broad severability clause? signs?

  • Its role: to tell a judge what should survive if part of a sign code is unconstitutional

  • A broad clause is designed to minimize the scope of invalidation

  • Otherwise: a judge, not the council, may decide if the ordinance still works without the invalid terms


5 does the code have a broad severability clause cont d
5. Does the code have a broad severability clause? (cont’d)

  • Features of a broad clause:

  • It preserves as many words as possible:

    • “If any part, section, subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word are declared invalid . . .

  • It’s unconditional

    • “. . . such invalidity shall not affect the validity or enforceability of the remaining portions.”


6 does it properly address political temporary election signs
6. (cont’d)Does it properly address political (temporary election) signs?

  • Political and election signs carry noncommercial speech and receive more protection under the Free Speech clause

    • Sign ordinances must be content-neutral

    • It is impossible to define a political sign without violating this rule


6 does it properly address political temporary election signs cont d
6. (cont’d)Does it properly address political (temporary election) signs? (cont’d)

  • There must be a “compelling interest” to regulate the content of noncommercial speech – this is hardly ever found

    • If an ordinance treats political signs more restrictively it will be struck down

    • The temporary sign provision should allow political and election signs and drafted in an even-handed way


7 does it properly address message signs
7. Does it properly address message signs? (cont’d)

  • Message sign provisions are content-based and will be struck down

    • This is the holding in Metromedia and many circuits

    • Examples: For sale and for rent signs, directional signs, construction signs, time-and-temperature signs, grand opening signs, restrictions on flags


7 does it properly address message signs cont d
7. Does it properly address message signs? (cont’d) (cont’d)

  • Wrong: A sign offering property for sale or rent

  • Right: A sign on property that is offered for sale or rent

  • The definition of “flag” must allow all flags

  • The definition of “sign” must not specify any content


Related questions

Related questions (cont’d)


When can an applicant ask a court to invalidate an entire sign code
When can an applicant ask a court to invalidate an entire sign code?

  • Plaintiffs’ strategy assumes: any part of a sign code is fair game for attack by a disappointed applicant, including rules of law that did not apply to what the plaintiff

    • actually did,

    • requested to do, or

    • showed any interest in doing.

  • That’s a question of standing – does the denial of a permit give the applicant standing to attack the whole sign code?


Conflicting views of standing
Conflicting views of standing sign code?

  • Some Plaintiffs’ view:

    • Most standing requirements don’t apply to us when we allege that some rules are overbroad in violation of the First Amendment

    • Billboard companies deserve standing to attack limits on window signs, front yard signs, and flags


Conflicting views of standing1
Conflicting views of standing sign code?

  • In 2006, 3 U.S. Courts of Appeals ruled:

    • The challengedaction of the defendant must have caused the plaintiff’s injury, even where overbreadth is alleged.

    • Rules that did not affect the plaintiff are beyond attack by that plaintiff (although not by others)

    • When a permit application is denied for constitutional reasons, that denial causes no injury worthy of redress


Is a total ban on billboards legal
Is a total ban on billboards legal? sign code?

  • In theory:

    • Federal law prohibits billboards within 660 ft. of the edge of federal highway right-of-way

    • With local approval as a customary use, billboards are allowed in bona fide industrial and commercial zones

    • States administer the federal law and can usually adopt stricter standards


Is a total ban on billboards legal cont d
Is a total ban on billboards legal? (cont’d) sign code?

  • Four states prohibit billboards entirely

  • Many nonconforming billboards still remain and amortization is prohibited

  • State law may allow prohibition, but a total prohibition can raise questions under free speech law


Photography credits and locations
Photography credits (and locations) sign code?

The photographs in this presentation are used with permission of the following sources:

  • Slide 3: Bill Brinton (Florida)

  • Slide 4 (simulation): Bill Brinton (Florida)

  • Slide 8: John M. Baker (Eden Prairie, Minnesota)

  • Slide 9 (left): David Alkire Smith (Monroe, Michigan)

  • Slide 9 (right): John M. Baker (Eden Prairie, Minnesota)



Professor daniel mandelker
Professor Daniel Mandelker conjunction with the accompanying remarks of the presenters.

Howard A. Stamper Professor of Law

Washington University School of Law

One Brookings Drive

Campus Box 1120

St. Louis, MO 63130

[email protected]

(314) 968-7233


Professor emeritus charles floyd
Professor Emeritus Charles Floyd conjunction with the accompanying remarks of the presenters.

AICP (retired)

P.O. Box 448

Cleveland, NC 27013

[email protected]

(704) 278-3620


John m baker
John M. Baker conjunction with the accompanying remarks of the presenters.

Greene Espel P.L.L.P.

200 S. Sixth Street, Suite 1200

Minneapolis, MN 55402

[email protected]

(612) 373-8344


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