Planning & Environmental Law Commentary — June 2009 Best Practices in First Amendment Land Use RegulationsSusan L. Trevarthen, AICP Editor's Note:
The First Amendment is found in every issue of Planning & Environmental Law in many of the abstracts of new decisions. The ABCs of the First Amendment (Adult Entertainment, Billboards, and Churches) present some of the trickiest challenges for local government planners and lawyers. This month's author provides practical advice from her experience working in the trenches representing local governments IntroductionLand uses protected by the First Amendment of the U.S. Constitution and related statutory schemes such as the Religious Land Use and Institutionalized Persons Act (RLUIPA) pose unique risks and challenges for drafting and implementing local zoning regulations. Getting it wrong can result in costly and politically charged litigation. The areas of sign and newsrack regulation, regulation of religious uses and assemblies, and adult use regulation are among the most common sources of challenges.1 Freedom of speech, freedom of religion, freedom of assembly, and the requirement that government not establish religion are most frequently implicated by land use regulations. Regulation of First Amendment-protected land uses represents one of the largest areas of litigation risk in any local zoning ordinance. Certain law firms specialize in targeting local governments for attack on these regulations, sometimes at no cost to the plaintiff.2 The normal risk analysis for whether a disgruntled property owner may sue over an unduly burdensome regulation is altered when litigation can be pursued at no cost. Moreover, such litigation involves complicated issues of constitutional law and can be politically charged, costly, and precedent setting. Most local government planners and attorneys cannot afford to be specialists in these issues. They have the full range of land use, planning and zoning issues, and other local government law issues to deal with in their daily professional lives. Much of the existing literature approaches these issues in silos, focusing in great depth on one particular kind of regulation in isolation from the others. A catalogue of the latest cases or a heated argument on an obscure point of the law does little to assist these planners and attorneys in making their codes and activities more defensible overall. Moreover, many local governments lack the resources to bring in outside counsel or specialists. Important PrinciplesFirst Amendment land use law is generally unsettled, rapidly evolving, and complex, and can vary substantially in the different federal circuits across the country.3 There is usually no one-size-fits-all solution. The zoning strategies must be carefully conceived and implemented in light of the existing land uses, the zoning map, and other local factors. Following certain principles and adding certain provisions to local regulations can minimize the risk of challenge and limit the potential liability of the local government if litigation occurs. Controversy and Public Scrutiny It may be obvious, but it is worth noting that First Amendment land use issues can carry a level of passion not usually associated with setback or other types of land use regulations, for example. Be ready to see a different cast of characters at public hearings than the usual builders associations, developers, and neighborhood groups focused on property rights. Interested parties can include the local chapter of the American Civil Liberties Union with camera crew in tow, various national "public interest" law firms, and even the U.S. Department of Justice. The most established religious organizations in the community — or the most marginal — may be involved, and they may be fighting for their land use rights or fighting against the rights of adult uses. The local small-business community will have a strong interest in any change to on-site signage regulations. Be aware that when it comes to sign regulation, the members of the local governing body are both legislators and interested parties because of their strong interest in campaign signs. This level of passion can make people more litigious, as can the availability in some situations of free (or contingent fee) legal representation. The local press is often attracted to these issues because they are far less dry than the latest update to the list of conditional uses in the zoning code, and the controversy inherent in conflicts over First Amendment rights makes for a good story. Do It the Right Way With this level of scrutiny and litigation potential, it is important not to approach the drafting or amendment of First Amendment land use regulations casually. Frequently the latest sign code update is drafted by a planner — often one of the most junior planners because they have the time to work on it — with little to no input from legal staff. Local government officials may be sensitized to the need for serious legal attention to a full update of its regulations but will fail to involve legal experts in what seem to be very practical and minor changes to the regulations. Unfortunately, some of those "minor" changes can have very major legal consequences. Examples include extending the deadline for a decision on a permit, applying a conditional use process to what was previously a permitted use, or adding an exception to the description of a prohibited sign. With First Amendment land use regulations, local governments should not be penny-wise and pound-foolish. If they are prepared to spend hundreds of thousands of dollars on design charrettes and plans intended to assure the best possible quality of life in the community, they also need to spend the time and money to assure that the regulations are constitutionally defensible because they may not get a second chance. As an example, courts have nullified and enjoined the enforcement of entire sign codes where the constitutional flaws pervade the regulation rather than merely sever the offending provisions. An avalanche of unplanned billboards or adult uses will alter the character of even the most progressive, well-planned, and attractive community. Land Use Regulations Are Not Typical Typical land use regulations will usually be upheld under rational basis review.4 In other words, if there is a rational basis to believe the government is correct in asserting that this regulation will address any conceivable legitimate government purpose, even if that purpose was not apparent until the litigation was under way, then the government will win. If there is a tie, the government wins. Under the fairly debatable standard, if the arguments for and against the regulation are evenly balanced, the court will resolve the "fair debate" in favor of the government. Courts will not presume that the government intended to violate the constitution, and will presume that the regulation is valid. There are good reasons for these rules. They represent the courts' recognition of the limits of their institutional ability to make the right choices in matters involving special governmental knowledge and expertise, as well as a healthy concern for the separation of powers between the judicial and legislative branches of government. However, many of these rules disappear or are much weaker in defending local government action from a First Amendment attack.5 The court will not presume that the regulation is constitutional. If you are not required to establish a compelling governmental interest that cannot be achieved by any less restrictive means, then you may still be required to establish a substantial governmental interest, in the record prior to adoption, that is advanced by the regulation.6 In other words, this is not "business as usual." Regulating First Amendment land uses requires a much more thoughtful and detailed approach, as well as an awareness of the real possibility of a successful challenge. Provide Clear, Detailed Procedures, Criteria, and Time Limits It is essential to provide timely and objective consideration of applications that involve land uses protected by the First Amendment. The absence of such procedures, or the failure to faithfully follow them, can result in liability.7 Tight deadlines for each step of the process of issuing any required approvals are critical to avoid the potential for delay amounting to a de facto denial which violates the prior restraint doctrine.8 Also, the regulation must provide a clear path to a prompt judicial determination if relief is sought.9 Tailor the regulation to the problem being addressed to avoid the problem of overbroad or underinclusive regulation.10 For example, a city seeks to apply a conditional use procedure or draft supplemental regulations for churches in single-family neighborhoods. Is the real issue the impact of large religious uses, or is it more properly conceived of as the impact of any nonresidential use on single-family neighborhoods? If the city singles out the religious assembly use for more strict regulation when other permitted assembly uses present the same land use impacts, for example, it may be faced with an equal terms violation under RLUIPA.11 Or perhaps the code is underinclusive because it bans nudity in adult uses, but not anywhere else in the community, so that only nudity with an expressive component is banned while other nudity would not violate the code. A final example might be a ban on all live entertainment, a regulation considered overbroad if the justification for the regulation extends only to adult live entertainment.12 The First Amendment land use regulation should provide clear and objective criteria so that the planner and the public can easily determine if the requirements are met. Was the fee paid? Has the applicant previously had a license revoked? Is the proposed use located in the correct zoning district and, if a distance standard is involved, can it easily be determined whether it has been satisfied?13 Definitions that trigger different regulatory treatment, such as those extensively used in adult use regulation to define the regulated use and govern licensing, must be carefully worded to avoid a vagueness challenge. Exactly what "specified anatomical areas" must be exposed before the adult use regulation for strip clubs is triggered? Requiring "pasties and a G-string" has been deemed an inconsequential limitation on the erotic message of the dancer by the U.S. Supreme Court.14 If drafted too loosely, the regulation may end up banning Hooters or similar establishments and may not be upheld. Spell Out Legislative Intent and Substantial Governmental Land Use Interest The local government must justify its regulations and actions. Normally, the government is presumed to be right but, with land uses protected by the First Amendment, this presumption is greatly diminished or even extinguished. This principle is most fully developed in the adult use cases that allow the government to rely on "foreign" studies from other jurisdictions instead of preparing its own.15 Some cases in the Eleventh Circuit even go so far as to require that the individual members of the governing body review the evidence in the record justifying the regulation, recite on the record that they have done so, and state that their reason for voting for the regulation is to address the secondary impacts and not to censor free expression.16 If adult uses place countervailing evidence in the record, then the government may have to provide more than the foreign studies. Given that erotic speech is entitled to only limited protection under the First Amendment, while freedom of religion and speech are core constitutional concerns, it is wise to consider whether a court may someday extend these holdings of the adult use cases. If there is a standard applicable to adult uses, consider whether to assume that it will apply to speech and religion issues with even greater force. For example, if the adult use case law establishes that governments must provide a bare minimum of opportunities for adult uses to locate (standards such as one site per 7,000 persons or one percent of developed acreage), assume that religious uses may be entitled to several times as many potential sites in the community in devising a zoning strategy.17 Mistakes Can Result in Damages and Fees Most local government planners and attorneys are sensitized to the exposure to substantial damages associated with constitutional "takings" claims (and development interests usually make sure they will not forget that risk). While these claims are important and can represent major liability, they are far easier to avoid in many ways than liability from flawed First Amendment land use regulations.18 As a rule, planners and attorneys are aware when a regulation deprives a property of most of its value or demands an onerous exaction from a property owner. Certainly, many cases involve deliberate religious discrimination and discrimination against political viewpoints. However, very often the issue is not deliberate or direct discrimination. Much more common, and more problematic from the perspective of protecting the local government from liability, is the inadvertent discrimination inherent in the wording of the zoning code. For example, planners and attorneys might fail to recognize that movie theaters are comparable to religious assemblies under RLUIPA and apply more onerous parking or other standards to the religious use than to the movie theater. Or the government might amend its sign code to address the needs of a particular kind of business for temporary signage, without recognizing that temporary signs conveying noncommercial messages are entitled to similar treatment. The significant potential for inadvertently exposing the government to potential liability is very challenging for local government planners and attorneys. Challenges to First Amendment land use regulations are usually brought under 42 U.S.C. §1983. If even a small part of such a claim is successful, attorney fees will be awarded to the challenger. Given how complicated and uncertain these legal issues can be, the attorney fees can often represent a much larger liability than the claimed damages. Some First Amendment land use cases, such as billboard company challenges to sign regulations, can involve large amounts of alleged monetary damages. Other cases, brought for reasons such as the inability to locate a religious use, may have little or no allegations of actual monetary damages, but can involve hundreds of thousands or even millions of dollars in attorney fees. Identify Potential Challenges and Accommodate Concerns In a "rational basis" world, governments sometimes get in the habit of acting paternalistic: "Why does the regulation have to read this way? Because I was elected to decide, I said so, and I know best." Considered against the backdrop of risk just described, the community may want to be less stubborn about the rightness of its regulatory will, and keep an open mind about reasonable requests to amend First Amendment land use regulations. Listen to the person who keeps coming to the mike at the hearings or writing letters raising a detailed issue of concern only to him. If the local government can make a potential plaintiff happy with a relatively small and simple fix to the language of the regulation, by all means do so and avoid the exposure to that potential lawsuit. Sometimes little things mean a lot to an individual or small business owner and, in the larger perspective, do little to undermine the overall regulatory effectiveness. Remember, however, that any fix needs to be legislative in nature, and to be equally applicable to anyone similarly situated to the potential plaintiff. Connect the Dots Even If the Courts Haven't Part of what makes it fun to do land use planning and practice land use law is the room for great creativity. Zoning did not exist prior to the 1920s, and the law that has developed around it is relatively recent in vintage and far from set in stone. In home rule jurisdictions, the biggest limitation on a drafter's regulatory vision may be the limits of his or her imagination. Very frequently, there will not be settled case law on many aspects of zoning, planning, and land use law. What does that mean for First Amendment land use regulation? Planners and local government attorneys need to stay a step ahead of the courts if possible. Don't just look at what the latest cases say; look at what they mean and what logical implications flow from them. Look for analogous situations and cases, and consider how they might apply to your circumstances. For example, if one were only to review the free exercise of religion cases and the cases under RLUIPA, one might think that there is nothing wrong with requiring religious uses to undergo a special exception or conditional use approval process.19 However, the more well-developed law applicable to adult uses clearly holds that it is unconstitutional to require an adult use to undergo a discretionary review process.20 While the courts may not have fully recognized this anomaly, the planner and local government attorney should. When a religious plaintiff argues that he is entitled to the same protection from potential discrimination in discretionary decision making as the local strip club owner, the federal judge is likely to agree. Adult Use RegulationsZoning and Spacing Regulations Whether a local government is looking to disperse adult use businesses or corral them into a red light district, First Amendment considerations must be at the forefront of the process. An ordinance that does not ban adult uses, but simply regulates them to a certain district or requires that they be located a certain distance from churches, schools, parks, residential areas, or other adult uses can survive judicial scrutiny. If done correctly, this type of regulation is considered a permissible time, place, and manner regulation.21 A properly drafted ordinance aimed at the secondary effects of adult uses is subject to lesser, intermediate scrutiny; it must be "designed to serve a substantial government interest and allow for reasonable alternative channels of communication" to pass constitutional muster.22 A total ban on adult use establishments or a failure to demonstrate a substantial government interest for the enactment of the regulation will be subject to strict scrutiny and almost certainly will not survive attack. The initial burden is on the government to demonstrate that the ordinance was enacted for the purpose of regulating adverse secondary effects.23 These negative effects can include increased crime, urban blight, decreased property values or other negative effects that may be generated by a sexually oriented business. Many studies have been prepared establishing that these negative impacts are associated with adult uses.24 Preenactment evidence must be "reasonably believed to be relevant" to curtailing the negative secondary effects that the government seeks to address.25 Once the government proves that it is a content-neutral ordinance designed to curtail negative secondary effects, the burden shifts to the adult use applicant to "cast direct doubt" on the evidence of the government's rationale — to reduce secondary effects without substantially reducing speech. Litigation on this issue typically involves attacks on the studies and legislative findings relied upon during enactment of the ordinance.26 If direct doubt is cast on the rationale, the burden shifts back to the government to remove the doubt by providing additional evidence demonstrating that the ordinance is designed to curtail the negative secondary effects associated with sexually oriented businesses. If the government can do this, then the regulation will be found to have been designed to serve a substantial government interest and will survive constitutional attack. The final step of the analysis concerns whether the regulation allows for reasonable alternative channels of communication, given the cumulative impact of the zoning and distance requirements for adult uses. How many sites are sufficient to satisfy the First Amendment? Is a site "available" for First Amendment purposes? There is no bright-line rule for this analysis. It must be resolved on a case-by-case basis, and is influenced by the number of existing and proposed adult businesses at the time of regulation.27 For example, 24 unimproved industrial sites owned by a single private land owner has been held to be enough "available" sites for First Amendment purposes.28 In that case, it was not deemed constitutionally significant that the sites were located in a primarily vacant industrial area and that the owner might be unwilling to sell the land. The court noted that the city had provided the infrastructure necessary for private development of these sites, and that 24 sites were more than ample for the relocation of the 10 adult use businesses that were currently in operation or seeking to begin operation. A zoning ordinance will fail if it provides fewer locations than there are presently operating adult establishments;29 some courts have suggested that at least a few sites must be provided for those who may seek to start new adult uses in the future.30 Beyond that bare minimum, courts have considered a range of population-based standards (ratio of available adult use sites to population) and acreage-based standards (number of acres available to adult uses versus total acreage, total developed acreage, or total nonresidential acreage).31 No definitive standard has clearly emerged in the Eleventh Circuit. The government is not required to site the adult use; it just has to create an equal opportunity to compete:
If there are existing adult uses in the community that are made nonconforming by adoption of a new or revised adult use ordinance, the government can choose to relocate or amortize them out. If amortization is used, it is important to be aware of the time periods that will be considered constitutionally sufficient.33 Finally, if an adult use ordinance requires a special exception, conditional use, or other discretionary approval, it will not survive constitutional attack under the First Amendment.34 Nudity Bans A local government can enact a general prohibition on nudity.35 In order to avoid being underinclusive, the ban should be on all nudity regardless of whether that nudity is in conjunction with expressive activity. Dancers can be required to wear, at a minimum, pasties and a G-string. An ordinance focusing on the secondary effects associated with the combination of nude dancing and alcohol consumption is unrelated to the suppression of free speech.36 It is reasonable to conclude that the secondary effects would be more intense in businesses with full, rather than partial, nudity. Such a regulation should be backed by evidence that the secondary effects are increased when alcohol and nudity are combined. Licensing and Business Regulations Any licensing regulation must consider the prior restraint and procedural issues described above. Various types of licensing requirements are commonly upheld in adult use regulations. Limits on hours of operation of adult use businesses are often used and have been held to be narrowly tailored and to leave open reasonable alternatives for expression.37 Cleaning requirements have been upheld in the interest of avoiding the spread of disease.38 Local governments also have the ability to regulate the distance between dancers and the customers, because of the secondary effects associated with the spread of diseases and prostitution.39 Religious Land Use RegulationThe challenge of religious land use regulation is that the government must steer between the two poles of constitutional limitation. In contrast, regulations that implicate free speech can always err on the side of more speech as a method of reducing potential liability. Government must accommodate religion, but if it is too accommodating it will be accused of establishing religion. Substantial Burden RLUIPA prohibits governments from imposing or implementing a land use regulation in a manner that imposes a "substantial burden" on religious exercise, unless the government demonstrates that imposition of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.40 What is a substantial burden under RLUIPA? It is more than an inconvenience to religious exercise. It is akin to significant pressure, which directly coerces the religious adherent to conform his or her behavior accordingly.41 Even the relocation of a congregation may not constitute a substantial burden if there is nothing unique or special about the particular church building or location.42 Setting aside those cases involving "bad facts," such as record evidence of intent to discriminate against the religious use, most generally applicable, garden-variety land use regulations have not been held to be a "substantial burden" under RLUIPA. In a broad sense, governments should always try not to single out religious uses for worse treatment than other similar uses that are not religious. Consider innovative ways of defining the problem you are trying to regulate. If you can solve the problem with a regulation that is uniform, you may be able to avoid an "individualized assessment" under RLUIPA. Is the issue the location, bulk, and lot coverage of places of worship in single-family neighborhoods, or is it really the location, bulk, and lot coverage of nonresidential uses in single-family neighborhoods? When the regulation is not targeted to religion, it is more likely to receive the benefit of the doubt. Equal Terms RLUIPA also requires government to regulate in a manner that treats religious uses on "equal terms" with a nonreligious assembly or institution.43 For example, regulations that allow private social clubs to locate on the first floor in the downtown area, but require places of worship to locate on the second floor or higher, are not permissible.44 An economic development rationale for the second-floor rule did not justify different treatment, because the synagogue was no less friendly to pedestrian customers than a private club. Exclusion or Unreasonable Limitation RLUIPA also prohibits exclusion and unreasonable limitation of religious uses. Few cases address unreasonable limitation. A broad allowance in several zoning districts for religious uses will help, but supplemental regulations such as parking and other general development standards can still result in effective limitation, so consider the cumulative impact of the regulatory scheme.45 Whether conditional uses are allowed under RLUIPA is unsettled; because they are not allowed for adult uses, proceed with caution. They are not recommended because of the inherent discretion in often vague standards, and the potential for actual discrimination. For these reasons, the application of conditional use and special exception review to religious uses has already been disfavored under a First Amendment analysis.46 Also, conditional use locations may not count as available locations for purposes of meeting the minimum constitutional and statutory requirements.47 Administrative Relief Given the rapidly evolving case law under RLUIPA, it is difficult to know exactly what is defensible. One way to deal with the uncertainty is to adopt an administrative relief procedure in the zoning code to provide an avenue for relief to potentially aggrieved religious land use applicants. Such a procedure is consistent with the legislative history of RLUIPA, which encourages local governments to offer accommodations to possible claimants, and is also consistent with evolving case law requiring plaintiffs to exhaust available administrative remedies prior to filing a RLUIPA suit. Administrative relief provides the local government with an opportunity to resolve claims and thereby avoid costly and extended RLUIPA litigation. Local governments may also wish to consider developing more liberal standards for the natural growth of established religious land uses rendered nonconforming by revised regulations. Many nonconforming use and structure provisions do not allow any natural growth or expansion of the use. This can be challenging when dealing with a century-old church in the middle of a developed residential neighborhood. Adding some flexibility to this rule (for example, by allowing up to a 10 percent increase in area or square footage) may avoid future conflicts with established religious land uses without fundamentally changing the impacts on the community and surrounding uses and without opening the door to the development of a "megachurch." While this creates preferential treatment for religion, it may fall short of "establishment of religion" if the flexibility provided is de minimis. Sign RegulationsNoncommercial versus Commercial Speech A major issue in sign regulation is the treatment of noncommercial or ideological speech as compared to that of commercial speech. If the commercial speech receives more favorable treatment, the sign regulation is likely invalid. What is commercial speech, and why is it less protected? Ideological speech may or may not contain facts, and may or may not be accurate, but it is protected because it is "integrally related to the exposition of thought . . . that may shape our concepts of the whole universe of man."48 Commercial speech, on the other hand, promotes specific goods and services. It is protected on a utilitarian basis, because the information is of potential interest in making purchasing decisions, and is not related to "any direct contribution to the interchange of ideas."49 Direct, content-based regulation of ideological speech is strictly scrutinized and rarely upheld by the courts. Commercial speech is protected by intermediate scrutiny, which requires the regulation to balance the speech rights against other substantial public interests.50 To survive intermediate scrutiny, the regulation should have a detailed statement of purpose establishing the government's interests that justify the regulation, usually aesthetics and traffic safety. Location of Noncommercial Speech Some very esoteric arguments can be made over the location of noncommercial speech. Is it located where the speaker is located? If so, then the location of a campaign sign would almost always be off-premise. Or is it located where the idea is being expressed? If so, then the campaign sign is always an on-premise sign. Why should we care? Because most bans on billboards are really bans on off-premise signs. If ideological speech is located somewhere other than the site of the sign, then the code's billboard ban may inadvertently ban all ideological speech. Noncommercial speech should always be treated as on-premise; that way it will never be affected by an off-premise sign ban.51 The Meaning of Content-based Speech The cases are conflicted as to how to define content-based speech. More literal-minded courts ask: "Do you have to look at the message to determine whether the rule applies?" If so, it is content-based.52 Under this approach, regulation of "for sale" signs, "directional" signs, "identification" signs, "grand opening" signs, and "stop" signs would always be content-based, would be subjected to strict scrutiny, and would likely be invalidated. Other, more functionally minded courts ask: "Is the government trying to regulate or censor content?" If so, it is content-based.53 Under this approach, sign regulations allowing U.S. flags but not other flags would be content-based, and would be subjected to strict scrutiny and invalidated. Billboard Shakedown Scheme54 The billboard shakedown scheme has been summarized well by a Florida federal judge:
Typical attacks by billboard companies using this scheme focus on the overall validity of the sign regulation and do not focus on the billboard provisions. Billboard company plaintiffs argue that the sign code is content-based and favors commercial speech over noncommercial speech in violation of the Constitution. They also argue that the regulation favors certain types of commercial speech over others, and constitutes a "prior restraint" because it gives city officials no deadline to decide whether to grant the sign permit. They maintain that the regulation gives officials unbridled discretion to deny a sign permit, and that the flaws pervade the entire regulation so that it is impossible to sever what is invalid and enforce the rest of it. They conclude by arguing that the sign code is invalid, and billboards are no longer prohibited or regulated in any way. Most recent cases have moved in the direction of validating reasonable sign regulations;56 recognizing the scheme, the industry's legal strategy has been successful in many cases.57 Each win or settlement then funds the next lawsuit against a local government. It is absolutely essential to act quickly and aggressively if the community is the target of a billboard shakedown scheme. The city attorney or insurance defense attorney either needs to be an expert in sign law or ready to do the homework to be up-to-date on all the cases as soon as possible after the challenge is received. The specialized nature of First Amendment sign law warrants hiring special counsel to advise and work with defense counsel. Most importantly, do not waive any defenses, such as ripeness and standing. Most cases are won on these threshold issues, without ever having to get into the merits of the constitutional challenge. When these defenses are waived, the community can find itself on the losing end of the battle.58 Tricks of the Trade to Enhance Defensibility Avoid exceptions to bans. It is permissible to ban off-premise signs, but be careful about any exceptions, such as for directional signs or real estate open house signs. In general, it is important not to litter the list of prohibited signs with exceptions that undermine the justification for the prohibition.59 Be careful in amortizing billboards. In Florida, and perhaps in other states where the billboard industry has been active at the state legislature, it is not legal to require amortization or alteration of off-premise signs. Doing so makes the local government responsible for paying full compensation to the owner under a calculation most favorable to the owner's point of view.60 Include a super-severability clause.Most ordinances contain a severability clause that provides that if one part of the ordinance is subsequently determined to be unconstitutional, the rest of the ordinance should be unaffected by that flaw and should continue to be enforced. It is often part of the boilerplate at the end of the ordinance, and is usually not codified. Some courts have invalidated the entire sign code without honoring the severability clause.61 A possible solution is to be extremely explicit about the legislative intent to sever. For example, several Florida attorneys who represent local governments have written into their sign codes not only a general severability clause, but also a separate severability clause to apply even if the result would be to allow less speech in the city, whether by subjecting currently exempt signs to permitting requirements or by some other means, a separate severability clause for the prohibited sign list, and a separate severability clause for the prohibition of off-premise signs. Logically, it will be much harder for the federal court to assume that the legislative intent would be to invalidate the sign code in the presence of such language. Include a substitution clause. The purpose of a substitution clause is to assure, in one fell swoop, that if the sign code allows a sign containing commercial copy, it shall also allow a noncommercial sign to the same extent. It should apply to every possible dimension of the sign, including location, duration of posting, size or area, materials or design requirements, requirement for permit, etc. This clause can be applied to allow the sign message to be changed from commercial to noncommercial, or from one noncommercial message to another, as frequently as desired by the sign's owner, provided that the sign is not prohibited and the sign continues to comply with all requirements of the sign code. A key part of making a substitution clause work is to train staff to recognize when it might come into effect, so that those noncommercial signs are not turned down at the counter before anyone has a chance to recognize and apply the substitution concept to the situation. Do not ban signs in single-family neighborhoods. Supreme Court cases clearly require that noncommercial signs be allowed in single-family residential zones.62 They have also required that some kinds of commercial speech be allowed to be posted in single-family residential zones.63 Specifically, a real estate "For Sale" sign must be allowed. In both cases, such signs are held to have unique meaning when placed at a home, a meaning that cannot be communicated in any other way. The size, appearance, and location of such signs may be regulated, but they must be allowed. Avoid writing regulations for the American flag. All sign regulations should avoid viewpoint discrimination, which is differential regulatory treatment based on the content of the speech being expressed. Flag regulations are particularly susceptible to this fault, although the law is clear that a government may not allow only American flags or only governmental flags.64 This is unconstitutional because it allows a person to engage in speech by means of flying a flag only if the intended message is pro-American or pro-government. A safer regulatory strategy is to allow all flags, or at least to allow all noncommercial flags. In either case, the government can regulate maximum size and placement. Standardize regulations for temporary signs. Regulation of campaign signs is another popular place to find viewpoint discrimination in a sign code. It is elementary that government must not single out political or noncommercial speech for differential treatment. And yet so many sign codes have a section entitled "Campaign signs," which contains all sorts of requirements that are not also required of other temporary signs, such as real estate, garage sale, grand opening, or other commercial temporary signs. Campaign signs are just a type of temporary sign, and their size, number, location, requirements for removal, and other aspects should be regulated uniformly as such. The safest course is to avoid durational limits for political signs, but it can also be the most difficult course. If the government insists on durational limits, make them at least 90 days prior to the election and make them as consistent as possible with other durational limits in the temporary sign regulations. If the grand opening sign does not have to come down until a week after the conclusion of the grand opening festivities, why should the campaign sign have to come down within just two days? One possible approach is to consider the time in which the sign is functional or useful. Logically, a requirement that the sign be posted no sooner than it is meaningful, and that is required to come down within the same number of days from when it ceases to be meaningful, should be upheld. For example, a real estate sign could be posted upon the listing of the property for sale and be required to be removed within a certain number of days following the closing on the property. Similarly, a campaign sign might be allowed to be posted upon candidate qualification or some other marker identifying that persons are running for office, such as opening a campaign account, and be required to be removed within a certain number of days following the election. Watch for newsrack decisions to influence sign code law. Newsracks are becoming obsolete, but the case law associated with them is diametrically opposed to the more recent sign code cases. According to the U.S. Supreme Court, local governments cannot prohibit commercial newsracks while allowing noncommercial newsracks.65 Every billboard challenge raises this argument, and the industry has been trying unsuccessfully for years to import this holding into the sign code case law. The most recent such challenge was filed in the Fifth Circuit Court of Appeals.66 If the sign industry is ever successful in doing so, this commentary will have to be rewritten, along with most of the sign codes in the country. ConclusionWhen in doubt, be as clear, unambiguous, and nondiscretionary as possible in writing regulations or applying regulations to First Amendment land uses. Act promptly on any applications for approval. Deal with the use in the most even-handed way possible — avoid overbreadth and underinclusiveness. Be alert to the potential for inadvertent discrimination even where there is no obvious animus against the constitutionally protected activity. Always focus on the land use impact or other neutral justification for the regulation and not the content of the speech, religion, or expression. Finally, what works today may be invalid next year. Until the U.S. Supreme Court steps in and announces a clear rule, continue to check for latest developments in the law and be ready to adapt your regulatory strategy accordingly. Get expert legal and planning assistance if and when you need it. Susan L. Trevarthen is a member of the law firm Weiss Serota Helfman Pastoriza Cole & Boniske in Fort Lauderdale, Florida. She serves as the chair of the Municipal Land Use and Zoning Law practice group, and as a town attorney. She has drafted and defended numerous local government regulations related to First Amendment-protected land uses. She gratefully acknowledges the assistance of group members Johanna Lundgren, Nancy Stuparich, and Michelle Vos. Endnotes1. The regulation of parades and demonstrations in a public forum is another important issue, but is beyond the scope of this commentary. 2. See, e.g., Becket Fund, http://www.becketfund.org; American Civil Liberties Union, http://aclu.org; and Alliance Defense Fund, http://www.alliancedefensefund.org/main/default.aspx. 3. This commentary is written from the perspective of the Eleventh Circuit Court of Appeals, which covers Florida, Alabama, and Georgia, and does not attempt to cover every nuance of the law. Before attempting to enact or defend a specific regulation, the reader should consult the most current law applicable to his or her community. 4. See, e.g., Haves v. City of Miami, 52 F.3d 918 (11th Cir. 1995); and Restigouche v. Town of Jupiter, 59 F.3d 1208 (11th Cir. 1995). 5. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989), and City of Renton v. Playtime Theaters, Inc., 475 U.S. 1132 (1986) (record required for adult use regulation). 6. Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007) (reducing the secondary effects of adult uses is a substantial governmental interest that must be accorded high respect). The government may be permitted to supplement the record in litigation. However, given that the standard is not a hypothetical "could it have been rational to believe this regulation would be effective" but rather an actual "was the regulation adopted for the purpose of furthering specific, substantial interests, rather than to suppress constitutional rights," it is wiser to build a strong record in advance. If the challenger produces strong evidence negating the substantial governmental interest, the evidentiary burden on the government may be even greater. See, e.g., Peek-a-Boo Lounge of Bradenton, Inc., v. Manatee County, 337 F.3d 1251 (11th Cir. 2003). 7. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). 8. A prior restraint on speech exists "when the government can deny access to a forum for expression before the expression occurs." United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) (a prior restraint gives "public officials the power to deny use of a forum in advance of actual expression"). It has its origins in the cases dealing with direct governmental censorship of content of publications. See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965) (conviction for exhibiting a movie without prior submission to a state censorship board for approval was reversed, partly due to the absence of procedural safeguards and time limits in the state licensing scheme). With regard to First Amendment land use regulations, a requirement for a license or permit may create a prior restraint if it places excessive discretion in city staff to review and approve or disapprove a sign permit. See, e.g., Granite State Outdoor Adver., Inc. v. City of St. Petersburg, Fla., 348 F.3d 1278 (11th Cir. 2003); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228 (1990) ("the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied."). 9. See also City of Littleton, Colo. v. Z.J. Gifts D-4, LLC, 541 U.S. 774 (2004) (constitution requires not merely prompt access to judicial review, but also a prompt judicial determination on a license denial for an adult use); and Zibtluda, LLC v. Gwinnett County, Ga., 411 F.3d 1278 (11th Cir. 2005) (ordinary court procedural rules and practices are sufficient procedures for review). 10. Statutes regulating free speech must be narrowly drawn and based on a legislative judgment that requires free expression to give way to other compelling social needs. See Broadrick v. Oklahoma, 413 U.S. 601 (1973). Underinclusiveness means that the regulation affects only a portion of class of conduct. Where the regulation prohibits the conduct in association with an expressive purpose, but not in other contexts, it effectively singles out the expressive conduct for harsher treatment. So, for example, an ordinance that exempts certain signs while not exempting others may represent a governmental "attempt to give one side of a debatable public question an advantage in expressing its views to the people." City of Ladue v. Gilleo, 512 U.S. 43, 50-51, 52 (1994). Overbreadth occurs when the regulation is more extensive than necessary to address the asserted governmental interest. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (regulation prohibiting animal sacrifice was underinclusive, in that it exempted various forms of animal slaughter that were not religious but also implicated the asserted governmental purposes of preventing cruelty to animals and preserving the public health; it was also overbroad in that it flatly prohibited religious sacrifice, rather than simply regulating the care of the animals, the method of killing, and the disposal of the carcasses). In cases of overbreadth, a plaintiff can attack the law facially without the normal showing that it is directly impacted by the law being improperly drawn. See Broadrick and Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634 (1980). 11. The equal terms provision of RLUIPA prohibits governments from "imposing. or implementing. a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." 42 U.S.C. § 2000cc(b)(1). For example, requiring more parking for the church than for the Elks Lodge puts religion at a disadvantage and fails to treat the two types of assemblies equally. 12. Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981). 13. See, e.g., Zibtluda, supra note 9, for a set of adult use licensing criteria recently upheld by the Eleventh Circuit. 14. City of Erie v. Pap's A.M., 529 U.S. 277 (2000). 15. See, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). 16. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Fla., 337 F.3d 1251, 1265 (11th Cir. 2003) 17. See, e.g., Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301 (11th Cir. 2003). 18. See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning, 535 U.S. 302 (2002); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); and Dolan v. City of Tigard, 512 U.S. 374 (1994). This is less true in states with a statutory form of "taking" liability, including Florida. See, e.g., Ch. 70, Florida Statutes. 19. Compare Konikov v. Orange County, 410 F.3d 1317, 1320 n.2 (11th Cir. 2005) (special exception requirement upheld) with Hollywood Cmty. Synagogue, Inc. v. City of Hollywood, 430 F. Supp. 2d 1296 (S.D. Fla. 2006) (special exception requirement constitutional only if all criteria are objective and nondiscretionary, which essentially allows supplemental regulations while invalidating the vast majority of special exception criteria). 20. See, e.g., Univ. Books and Video, Inc. v. Miami-Dade County, 132 F.Supp.2d. 1008 (S.D. Fla. 2001) (sites for adult uses were not considered constitutionally available unless the use was allowed as-of-right, and therefore the regulation was invalid). 21. See City of Renton v. Playtime Theatre, Inc., 475 U.S. 41, 46 (1986). 22. See Daytona Grand, Inc. v. City of Daytona Beach, Fla., 490 F.3d 860 (11th Cir. 2007) (quoting Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Fla., 337 F.3d 1251, 1264 (11th Cir. 2003)). 23. See Renton, 475 U.S. at 48. For example, a zoning ordinance is content-neutral if it is not aimed at regulating the content of the adult films being shown, but merely restricts the location of adult movie theaters to a certain zoning district in order to reduce the secondary effects. 24. Online databases contain many of the studies from across the country. See the websites of Citizens for Community Values, http://www.ccv.org/keycasesandstudies.aspx, and Community Defense Counsel, http://communitydefense.org/cdcdocs/landuse/secondaryeffects.html. 25. See Daytona Grand, 490 F.3d at 882, 884. 26. See, e.g., Peek-a-Boo Lounge, 337 F.3d at 1270-72 (11th Cir. 2003). 27. Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1310–11 (11th Cir. 2003) (internal citations omitted). 28. See Daytona Grand, 490 F.3d at 871–72. 29. Fly Fish, 337 F.3d at 1310–11. 30. See, e.g., Boss Capital v. City of Casselberry, 187 F.3d 1251 (11th Cir. 1999) (". . . the district court should consider more than just Casselberry's population. It should also consider Casselberry's geographical size, the number of acres available to adult entertainment establishments as a percentage of that size, where the sites are located, the number of adult entertainment establishments currently in existence in Casselberry, and the number of adult entertainment establishments wanting to operate in Casselberry."). Compare Lakeland Lounge of Jackson, Inc. v. City of Jackson, Miss., 973 F.2d 1255, 1260 (5th Cir.1992) (an ordinance is constitutional only if "as a matter of arithmetic . . . there are more 'reasonable' sites available than businesses with demands for them."); Buzzetti v. City of New York, 140 F.3d 134, 141 (2d Cir.1998) (ordinance unconstitutional unless it permits "all the City's existing adult establishments to continue to operate in the City, either at their current sites or at new locations"); and North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th Cir.1996) (there must be "no evidence that any person has attempted to open an adult use, but was prevented from doing so by the ordinance"). 31. See, e.g., Int'l Eateries of Am., Inc. v. Broward County, 941 F.2d 1157 (11th Cir. 1991); David Vincent, Inc. v. Broward County, Fla., 200 F.3d 1325 (11th Cir. 2000). 32. See David Vincent, 200 F.3d at 1334. Also not constitutionally significant under David Vincent: having to build a new facility instead of moving into an existing building; having to clean up waste or landscape a site; bearing the costs of generally applicable lighting, parking, or green space requirements; making do with less space than desired; having to purchase a larger lot than one needs; and restraints that are not imposed by the government itself; or the physical characteristics of the sites designated for adult use by the zoning ordinance. 33. David Vincent, 200 F.3d at 1333 (upholding five years, because the constitution does not require grandfathering of existing uses). Various cases have upheld amortization periods ranging from as little as six months to as much as 10 years. It is safe to assume that, the shorter the amortization period, the more likely it is that it will be challenged. 34. See, e.g., Univ. Books and Video, Inc., supra note 20, and Lady J. Lingerie v. City of Jacksonville, 176 F.3d 1358 (11th Cir.1999). Sites allowed only after a discretionary approval will not count toward the constitutional minimum. 35. City of Erie v. Pap's A.M., 529 U.S. 277 (2000). See also Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Fly Fish, Inc. v. City of Cocoa Beach, Fla., 337 F.3d 1301 (11th Cir. 2003). 36. Id. See also, Flanigan's Enter., Inc. v. Fulton County, Ga., 242 F.3d 976 (11th Cir. 2001). 37. Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d. 1358 (11th Cir. 1999) (allowing the businesses to be open 14 hours a day). 38. Movie & Video World, Inc. v. Bd. of County Comm'rs of Palm Beach County, Fla., 723 F.Supp. 695, 701 (S.D. Fla.1989). 39. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 583 (1991); 3299 N. Fed. Highway, Inc. v. Bd. of County Comm'rs of Broward County, 646 So.2d 215 (Fla. 4th DCA 1994). 40. 42 U.S.C.A. §§ 2000cc et seq. 41. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) (requirement for Orthodox Jews to walk to zoning districts located close to downtown was not a substantial burden). 42. Christian Romany Church Ministries, Inc. v. Broward County, 980 So.2d 1164 (Fla. App. 4 Dist., 2008) (condemnation upheld under RLUIPA and Florida RFRA). 43. "A zoning law is not neutral or generally applicable if it treats similarly situated secular and religious assemblies differently because such unequal treatment indicates the ordinance improperly targets the religious character of an assembly." Midrash Sephardi, 366 F.3d at 1232 (holding RLUIPA's equal terms provision codifies the Supreme Court's precedent with respect to the Free Exercise Clause). 44. See Midrash Sephardi, 336 F.3d at 1232 (defining the terms "assembly" and "institution" according to their plain meaning and holding that churches, synagogues, private clubs, and lodge halls were similarly situated land uses). Compare Chabad of Nova, Inc. v. City of Cooper City, 2008 WL 2949439 (S.D. Fla. 2008) (applying Midrash to arrive at a very broad concept of uses that are similar to religious assemblies). 45. Chabad of Nova, Inc. v. City of Cooper City, 575 F.Supp.2d 1280 (S.D. Fla. 2008). This is a recent damages award where a combination of minimum front footage and lot area requirements meant that a religious use would have to assemble several contiguous lots at high cost. 46. See Hollywood Comty. Synagogue, supra note 19. 47. Compare Univ. Books and Video, Inc. v. Miami-Dade County, 132 F. Supp. 2d. 1008 (S.D. Fla. 2001) (sites for adult uses were not considered constitutionally available unless the use was allowed as-of-right). 48. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 779 (1976) (Stewart, J., concurring). 49. Id. at 780. 50. Cent. Hudson Gas and Elec. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980) (must seek to implement a substantial governmental interest, and directly advance that interest). 51. Southlake Prop. Assocs. v. City of Morrow, Ga., 112 F.3d 1114 (11th Cir. 1997). 52. See, e.g., Solantic v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005); and Ackerley Commc'ns, Inc. v. City of Cambridge, 88 F.3d 33, 37 n.7 (1st Cir. 1996) (stating that in "commonsense terms" the distinction between off-premise and on-premise signs is "surely" content-based because "determining whether a sign must stay up or come down requires consideration of the message it carries"). 53. See, e.g., Granite State Outdoor Adver., Inc. v. City of Clearwater, 213 F. Supp. 2d 1312, 1326-28 (M.D. Fla. 2002), affirmed in part & reversed in part on other grounds, 351 F.3d 1112 (11th Cir. 2003) (noting that "m.any courts, like this one, and many commentators, are concerned that local governments have been placed in a tenuous and near impossible position in drafting a constitutional or content-neutral sign ordinance"). The district court considered the view expressed by cases such as those cited in the prior footnote and stated:
See also the long line of cases upholding the distinction between noncommercial and commercial signs as content-neutral, including Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992); Nat'l Adver. Co. v. City & County of Denver, 912 F.2d 405, 410 (10th Cir. 1990) (definition of off-premise sign excluding noncommercial speech was valid because Supreme Court has provided "ample guidance" on the common-sense distinction between commercial and noncommercial speech); and Wheeler v. Comm'r of Highways, 822 F.2d 586, 591 (6th Cir. 1987) (off-premises vs. on-premises distinction valid even though sign's status at a given location is a function of the sign's message). 54. The "billboard shakedown scheme" was first coined by Scenic America: http://www.scenic.org/billboards. 55. Fla. Outdoor Adver., LLC v. City of Boca Raton, 266 F. Supp. 2d 1376, 1379 (S.D. Fla. 2003). 56. Just a small sampling of the cases in the Eleventh Circuit since 2000 pursuant to this scheme that were resolved in favor of the government: Granite State Outdoor Adver., Inc. v. City of Clearwater, Fla., 213 F. Supp. 2d 1312, 1333 (M.D. Fla. 2002), affirmed in part and reversed in part, 351 F.3d 1112 (11th Cir. 2003), cert. denied, 125 S.Ct. 48 (2004); Fla. Outdoor Adver., LLC v. City of Boca Raton, 266 F.Supp.2d 1376 (S.D. Fla. 2003); Coral Springs St. Systems, Inc. v. City of Sunrise, 371 F.3d 1320 (11th Cir. 2004); Medianet of S. Fla., Inc. v. City of Miramar, 144 Fed. Appx. 856 (11th Cir. 2005); Seay Outdoor Adver. v. City of Mary Esther, 397 F.3d 943 (11th Cir. 2005); and Tanner Adver. Group, LLC v. Fayette County, Ga., 451 F.3d 777 (11th Cir. 2006) (en banc). 57. See, e.g., Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005); KH Outdoor, LLC v. City of Trussville 458 F.3d 1261 (11th Cir. 2005). 58. See, e.g., Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005). 59. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). 60. See Section 70.20(2) and (9), Florida Statutes. 61. See, e.g., Nat'l Adver. Co. v. City of Ft. Lauderdale, 8 F.3d 36 (11th Cir., Oct. 26, 1993) (per curiam) (unpublished table decision No. 92-4750) and Nat'l Adver. Co. v. City of Ft. Lauderdale, 934 F.2d 283 (11th Cir. 1991); Fla. Outdoor Adver., LLC v. City of Boynton Beach, 182 F. Supp. 2d 1201, 1209 (S.D. Fla. 2001); and Wilton Manors St. Systems v. City of Wilton Manors, 2000 WL 33912332 (S.D. Fla. 2000). 62. City of Ladue v. Gilleo, 512 U.S. 43 (1994). 63. Linmark Assocs. v. Willingboro Twp., 431 U.S. 85 (1977) (holding that real estate signs may not be banned in residential zoning districts because their message cannot be as effectively conveyed in any other setting). 64. See, e.g., Dimmitt v. City of Clearwater, 985 F.2d 1565 (11th Cir. 1993). 65. Discovery Networks, Inc. v. City of Cincinnati, 507 U.S. 410 (1993) (court indicated that, with a better record, the regulation might have been sustainable). 66. RTM Media, LLC v. City of Houston, No. 08-20701. See amicus brief filed by the American Planning Association (March 2009), available at http://www.planning.org/amicus/pdf/rtmmedia.pdf. | ||
