Chapter 14 Regulating Signs

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 14 Regulating Signs

Municipalities clearly have the power to regulate the character and control the location of billboards, signboards, and signs upon vacant property and buildings.¹ However, signs located upon interstate highways and primary highways may be governed by state laws that preempt such municipal regulation.²

Municipalities often attempt to adopt more stringent controls over signs located along interstate highways than those provided by state law. Whether this is allowable is an unsettled issue. National Advertising Co. v. Village of Downers Grove³ held that a municipality has the authority to impose substantially stricter limitations on the size and location of outdoor advertising signs than provided for under the Illinois Highway Advertising Control Act of 1971.⁴ In contrast, the Illinois Appellate Court for the Third District and the United States Court of Appeals for the Seventh Circuit have both held that the Highway Advertising Control Act of 1971 preempts local municipal from regulating the size of or prohibiting outdoor advertising signs.⁵

Sign ordinances and zoning ordinances regulating signs have been held to be a constitutional exercise of a city's authority when related to a public interest.⁶At least one appellate court has gone so far as to hold that an ordinance may validly regulate the size and location of a sign on the basis of enhancing the appearance of the community as well as protecting the public from injury due to the potentially hazardous location of a sign.⁷

Another aspect of this subject deals with the First Amendment challenges to ordinances regulating or prohibiting billboards. Metromedia, Inc. v. City of San Diego⁸ is the leading Supreme Court case on the subject and is somewhat confusing because of the plurality of opinions.

In Metromedia, the City of San Diego enacted an ordinance prohibiting outdoor advertising display signs, which were defined to include any sign that "directs attention to a product, service or activity, event, person, institution, or business."⁹ The ordinance provided two kinds of exceptions to the general prohibition: "on-site signs and signs falling within twelve (12) specified categories." On-site signs were defined as those designating "the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed."¹⁰

The ordinance also identified categories exempted from prohibition, which included government signs, signs located at public bus stops; signs manufactured, transported, or stored within the city, if not used for advertising purposes; and so on. Four Justices held that the prohibition on commercial signs was valid because the prohibition of off-site commercial advertising was directly related to the stated objectives of traffic safety and aesthetics. However, they also held that the exceptions, which included an exception for certain types of noncommercial speech while not including an exception for other types of noncommercial speech, violated the First Amendment and the ordinance was therefore invalid.

Justices Brennan and Blackmun concurred with the majority, but only because they thought a total prohibition of commercial signs was a violation of the First Amendment. However, Justice Stevens, Chief Justice Berger, and Justice Rehnquist each filed dissenting opinions in which they stated they would have upheld the municipality's right to prohibit all billboards. Indeed, Justice Rehnquist went so far as to state he felt they could be prohibited on aesthetic grounds alone.

See also, the case of Krych v. Village of Burr Ridge¹¹ upholding the Village's sign ordinance which provided that no ground signs could be greater than 16 feet above street level or ground level and that no ground sign could have a surface area exceeding 120 square feet.

One common question relates to "For Sale" signs. In Linmark Assoc. v. Township of Willingboro,¹² the U.S. Supreme Court struck down an ordinance that banned "For Sale" signs in the community. The ordinance was designed to reduce residential turnover and prevent panic selling by white homeowners that would impair racial integration. The Court rejected the argument that this was a valid time, place, and manner regulation even though it was a restriction on commercial speech. An Illinois Appellate Court has said that "the information conveyed by a 'For Sale' sign bears on one of the most important decisions an individual has the right to make: where to live and raise his family."¹³ The U.S. Supreme Court in Linmark Assoc. concluded that the ban restricted expression that was of vital concern to the community. The court also held that there were no valid alternative means of communicating information on the sale of homes. These cases indicate the limitations on ordinances that involve a claimed violation of the First Amendment guarantee.

The U.S. Supreme Court opinion in Reed v. Town of Gilbert¹⁴ presents seemingly insurmountable hurdles for municipal attorneys seeking to draft a sign code. It is important, however, to note that while the entire Court agrees with the outcome of the case, a majority of the Court does not agree with the reasoning of the majority opinion. Anyone seeking to draft or challenge a sign code following Reed must review the concurring opinions of Justice Alito, Justice Kagan, and Justice Breyer. In reality, a majority of the Court is in harmony with the concurring opinions as to the legal reasoning that should be applicable to sign codes. In particular, please note the general outlines being suggested by the concurring opinion of Justice Alito and the more common sense approach of Justice Kagan to this issue.

The facts are relatively simple. Gilbert, Arizona, had a sign code that prohibited the display of outdoor signs without a permit, but exempts 23 categories of signs. One of the exempted categories was "temporary directional signs" relating to a qualifying event, loosely defined as signs directing the public to a meeting of a nonprofit group.¹⁵

The Code imposed more stringent restrictions on these signs than it did on signs conveying other messages. However, the Court held that these provisions of the sign Code are "content based regulations of speech that cannot survive strict scrutiny."¹⁶

The Court discusses three categories of signs referenced in the Code:

• Ideological Signs—This category includes "any sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign."
• Political Signs—This includes any "temporary sign designed to influence the outcome of an election called by a public body."
• Temporary Directional Signs Relating to a Qualifying Event—This includes any "temporary sign intended to direct

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