Roadmap. Use v. Sign Regulations White & Smith, LLC 1. Writing Sign Regulations after Reed v. Town of Gilbert

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1 Writing Sign Regulations after Reed v. Town of Gilbert 2016 Land Use Update American Planning Association, Arizona Chapter & Rocky Scottsdale, Arizona Mark White White & Smith, LLC Kansas City, Missouri Charleston, South Carolina Roadmap Reed recap The First Amendment Framework Message control Permitting Language Code drafting issues Use v. Sign Regulations Use Regulation Sign Regulation Constitutional issues Due process, equal protection, takings (property rights) First Amendment (free speech) and the others Government Legitimate Substantial / Compelling interest Nexus Rational basis Intermediate with bite / strict Scope Reasonable (legislator s choice) Directly advance / no further than necessary Narrowly tailored Scrutiny Deferential Intermediate / Strict 2016 White & Smith, LLC 1

2 How to Get into Trouble First Amendment Bans Exemptions Categories First Amendment Framework Language Process Censorship Ideological Where? Anywhere How long? As long as you want 20 sf Where? How long? Residential (16 sf) 60 before primary NR / public / ROW (32) 15 after general Political Temporary Directional Sign Relating to a Qualifying Event 16 sf 32 sf Where? Private or public land 4 at a time How long? 12 hours before 1 hour after 6 sf Reed v. Town of Gilbert (US 2015) 2016 White & Smith, LLC 2

3 Does message have regulatory impact? Motive, justification, purpose (facial) Viewpoint neutral Test for Content Based Regulations Not here What can we regulate? Majority Size Materials Lighting Moving parts Portability Public property (ban) Unanswered questions Commercial speech On- v Off-Premises Concurring Locations Freestanding v. Attached Lighting Fixed v. changeable electronic signs Public property (distinction) Commercial v. residential On-premises v. Off-premises Total number of signs allowed per frontage or area Time restrictions on advertising a one-time event Governmental signs What can we regulate? warning signs marking hazards on private property signs directing traffic street numbers associated with private houses 2016 White & Smith, LLC 3

4 First Amendment Framework Language Censorship Process Prior Restraints Sign permits Conditional / special use permits Design review Waiver / modification Variances Permitting Can require sign permits Legal requirements: Review occur within a reasonable time Adequate standards Time limits in regulations? Not required if regulations content neutral 2016 White & Smith, LLC 4

5 First Amendment Framework Process Censorship Language Findings Legislative findings Supporting justifications Purpose statements Illustrations / graphics "presumption of validity" but Deference to reasonably plausible and common sense legislative judgments Substitution Clause Non-Commercial Commercial Non-Commercial Non-Commercial 2016 White & Smith, LLC 5

6 Adequate Standards Inadequate Vague Sign cannot be detrimental to the aesthetic quality of the neighborhood Overbroad Planning Director, in its sole discretion, may require dimensional lettering. Adequate Objective Monument signs shall have change letters. Internal illumination is prohibited. Ministerial The Planning Director shall issue the permit if the sign complies with all applicable setback, dimensional, and lighting standards. Sign categories - Structural Detached Pole Monument Bracket Attached Roof Canopy / Awning / Marquee Projecting Suspended Wall Window / door Temporary Readerboards Portable Signs Balloons Banners Posts / Panels Vehicles Sign categories - Design Animation Moving Flashing Lighting internal Lighting external Lighting -halo Balloons Banners Supergraphics Digital Lettering 2016 White & Smith, LLC 6

7 Sign Categories - Functional Advertising / Commercial Directional Government Flags Identification / Nameplates Real Estate Temporary Political / Opinion / Election Time & temperature Construction Menu Boards Logos Definition embodied in sign regulations (avoids having to flip between definition and standards in sign regulations) Graphic illustrates sign type Table consolidates information about where signs are permitted Whether permits are required Size and location Whether and how signs may be illuminated, where changeable copy is allowed, etc. 10 things to remember about Reed: 1. This case is not about temporary signs. It's about content. 2. Topic or message = content 3. There are 2 ways you get into trouble: (1) exemptions (2) categories 4. Identify temporary signs by structure type and uniform event triggers. 5. Identify all signs (permanent or temporary) by structure or design (structure, design, location) 6. Distinctions between on- and off-site signs are probably sufficient 7. So far, intermediate scrutiny for distinctions between commercial signs is intact. 8. It doesn t help sign industry. 9. Use allocation based systems that allow the property owner to allocate messages. 10. Remember other First Amendment caselaw requirements (overbreadth, vagueness, secondary effects [i.e., adult uses]) 2016 White & Smith, LLC 7