TMCCP Presents Legislative Update Seminar. August 17-18, 2017, San Marcos, Texas HANDOUT FOR. Signs & Trees. with speakers.

Transcription

1 TMCCP Presents Legislative Update Seminar August 17-18, 2017, San Marcos, Texas HANDOUT FOR Signs & Trees with speakers Margaret Lloyd Vice President, Scenic Texas Board of Directors Laura Mueller Associate, Bojorquez Law Firm, PC Robert Wood City Administrator, City of West Lake Hills Texas Municipal Clerks Certification Program 1155 Union Circle #305067, Denton, Texas municlerks.unt.edu

2 Federal Courts and State Capital Tackle City Scenic Views: Trees, Signs, and Scenic Cities in the 85th Legislative Session by: Laura Mueller Associate Margaret Lloyd-Scenic Texas Robert Wood-City of West Lake Hills 1

3 Plan Current State of Sign Regulation Sign Bills: Regular and Special Tree Ordinances under Fire in Austin Tree Bills: Regular and Special Keeping Your City Scenic Bojorquez Law Firm, PC (2017) 2

4 Reed the Sign Ordinance Reed v. Town of Gilbert, No (June 18, 2015). If you must read a sign to regulate, the ordinance is content based. Bojorquez Law Firm, PC (2017) 3

5 How to Reed the Law U.S. Supreme Court: a law can be content based in two ways: by distinguishing speech by the topic discussed if the law s purpose or justification depends on the underlying idea or message expressed i.e., law is facially content neutral but motives were content based. A law that is content based on its face is subject to strict scrutiny regardless of the government s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech Bojorquez Law Firm, PC (2017) 4

6 Reeding the Rules: Alito s Concurrence Alito, Sotomayor, and Kennedy joined the opinion of the Court but added a few words of further explanation about rules that would not be content based. Cities may: Regulate the locations in which signs may be placed Distinguish between free-standing signs and those attached to buildings Distinguish between lighted vs. unlighted signs Distinguish between fixed messages and electronic or variable Distinguish between placement on private or public property Impose time restrictions on signs advertising a one-time event? Bojorquez Law Firm, PC (2017) 5

7 Austin Court Reeds State Sign Law Bojorquez Law Firm, PC (2017) 6

8 Reeding Texas Highway Beautification Act Auspro Enterprises v. TxDOT, Texas Court of Appeals, Third District (August 26, 2016) July 7, 2011: Auspro Enterprises placed a sign supporting Ron Paul's 2012 presidential campaign TxDOT sent a rule violation letter: political signs within 660 of a highway can only be up 90 days before and 10 days after an election Sign not removed; TxDOT sued. Auspro claimed Act violated 1 st Amendment Free Speech because it was a content-based regulation and it cannot survive strict scrutiny Court granted Auspro motion to abate appeal, pending Reed Bojorquez Law Firm, PC (2017) 7

9 Austin Court of Appeals Auspro court: under Reed's framework, the Texas Act's outdoor-advertising regulations and associated Department rules are, on their face, content-based regulations of speech Such regulations must meet strict scrutiny test This is close to a regulatory death sentence because meeting strict scrutiny is extremely difficult Bojorquez Law Firm, PC (2017) 8

10 Life after Reed Much but not all lost. Auspro: provisions in Subchapter I are not affected [ ] because they authorize the State to regulate commercial speech along certain specified highways, specifically off-premise signs displaying messages regarding goods, services, or merchandise Bojorquez Law Firm, PC (2017) 9

11 Sign Legislation 2017

12 Lady Bird Johnson, the inspiration for beautiful American highways

13 We all know the difference between a road that beckons one enhanced by trees and flowers, meadows and mountains and scenic views and a road that depresses. Too often it is the roads to the big cities that depress long alleys of advertisements urging you to buy this or that. Lady Bird Johnson

14 Federal Highway Beautification Act ( Lady Bird Act ) signed October 22, 1965

15 What did the 1965 HBA do? Mandated that each State effectively control outdoor advertising along the federal highway system Effective control meant to regulate the size, spacing, and lighting of billboards In Texas, the HBA was implemented in 1972 TxDOT regulates and enforces but a city MAY be certified to do its own regulation (about 40 cities are certified in TX). In addition, any city ordinance may be stricter than the state law, including prohibition of new billboard. In Texas and in most States, outdoor advertising regulation was determined by whether a sign was located off the premise of what was being advertised or on the premise of what was being advertised Until the AusPro case, that s how billboards were regulated in TX

16 What will happen in Texas after AusPro? Good news. SB 2006 was enacted in the regular session, and signs regulated by TxDOT will no longer be referred to as off-premise billboards. Under SB 2006: TxDOT s control will be over commercial signs. If a sign is intended to be leased for advertising, it will be considered a commercial sign and thus regulated. If it not intended to be leased for advertising, it will not be considered a commercial thus it will not be regulated. BUT it does not include a sign that is leased to a business entity and located on the same property on which the business is located (on-premise sign). TxDOT believes this should resolve the First Amendment Free Speech issues raised under Reed and AusPro, ie, the agency will not look at the message on the sign to determine whether it should be regulated.

17 Now for the bad news... Bad height amendment was added to SB 312 (the TxDOT Sunset Bill): Depending on how it is interpreted, either ALL the billboards in Texas could be doubled from the current 42.5 maximum height to 85 OR about 150 billboards could be allowed to be as high as 85 Before the bill passed, the author, Senator Nichols, stated his intent that the increased height ONLY applied to billboards that had been in litigation over height (about 150 total) Problem: TxDOT must adopt new rules to implement SB 2006, and in the first draft, there is NO maximum height limit. Estimated 30 day public comment period in September.

18 Where does this leave cities? Under SB 2006, essentially the same as before except for height. BUT under the confusing new height language, is it 42.5, 85 or no maximum---cities are exposed. Recommendations: Cities should examine their sign code to be sure it complies with First Amendment speech issues raised under Reed and AusPro. If a city chooses to prohibit new billboards, digital or not, be sure the sign code includes that prohibition. About 400 Texas cities have such a prohibition. Cities should be sure there is a maximum height limit for all existing commercial billboards (or billboards insider their jurisdictions could double in height---do NOT rely on TxDOT or State law).

19 Possible other bad news---txdot rule change proposed by billboard cos. to allow vegetation management of the public trees. So far, this is NOT included in the TxDOT rule draft.

20 Takings Law and Tree Regulations Attorney General Opinion KP-0155 request by Senator Dr. Donna Campbell If a municipal tree preservation ordinance operates to deny a property owner all economically beneficial or productive use of land, the ordinance will result in a taking... Bojorquez Law Firm, PC (2017) 19

21 Taking Down Tree Regulations S.B. 744 (Kolkhorst): Tree Mitigation Fees Passed and Vetoed by Governor 1 H.B. 7 (Phelan): Tree Mitigation Fees Bojorquez Law Firm, PC (2017) 20

22 Local Control meets the Legislature They took all the trees And put them in a tree museum state park And they charged all the people A dollar and a half to see 'em --Texas Senate Bojorquez Law Firm, PC (2017) 21

23 West Lake Hills at the Capitol The fee should be set locally $400 is a lot to an individual living on a quarter-acre lot in parts of Texas, said former Mayor Dave Claunch. But in West Lake Hills, someone will drop $400 on lunch. Bojorquez Law Firm, PC (2017) 22

24 Keeping Your City Scenic Reviewing Your Ordinances Trees Signs Scenic Texas Bojorquez Law Firm, PC (2017) 23

25 Scenic City Certification Program The best diagnostic tool available to Texas Cities to evaluate municipal standards for high quality public roadways and public spaces

26 Questions? Bojorquez Law Firm, PC (2017) 25