May 28, 2002
Dear Codes Enforcement Officer:
In your e-mail of May 22, you spoke of some problems that I pointed out to your city
attorney involving campaign signs. As I told you in my response to your e-mail, I have not had
any contact with your city attorney on that subject. As far as I can determine, that is also true of
the other two MTAS attorneys.
I am not sure where the campaign sign at issue is located. Your e-mail indicates that it
reflects a campaign for state representative. Your e-mail points to the sign regulations contained
in ' 14-309, and asks whether the candidate should be cited to city court for violating the sign
regulation.
Although I do not know where the campaign sign is located, I doubt that I would attempt
to enforce it against the candidate in question.
The city regulates political signs in its zoning ordinance. Section 14-309(3) provides that
a number of types of signs are authorized in all districts, without a permit. Among such signs are
political signs, as follows:
(a) Political campaign signs. One (1) sign per candidate per
premise, each sign not to exceed four (4) square feet in residential
districts or sixteen (16) square feet in all other districts, may be
erected on private property no more than thirty (30) days prior to
the election. All campaign signs shall be removed by the property
owner within seven (7) days after the results of an election are
certified.
Here let me point to an important failure in the part of ' 14-309(3) pertaining to signs for
which no permit is required, including political signs: It is not content neutral. For example,
under ' 14-309, the following size signs are permitted in all districts:
Political signs: 4 square feet in residential district, 16 square feet in all other districts
Temporary special events signs: 16 square feet
Construction site signs: (“noting construction information and trades”): 32 square feet.
Real estate sale/lease signs: 9 square feet in residential zones, 32 square feet in
commercial and industrial zones.
Pointing to only one difference, political signs in residential areas are limited to only 4
square feet, but real estate signs are limited to 9 square feet. The differences in sizes of signs
allowed reflects discrimination against political speech in favor of commercial speech.
But a recent U.S. Supreme Court case also points to a serious general problem with
limitations on political signs in residential areas. In City of LaDue v. Gilleo, 129 L.Ed.2d 36
(1994), the extremely wealthy suburb of St. Louis enacted a sign ordinance that virtually
prohibited signs in residential areas. However, Ms. Gilleo put a sign in the front yard of her lawn
that read “Say No to War in the Persian Gulf Call Congress Now.” After some legal wrangling
with the city not necessary to be outlined here, she placed an 8-1/2 X 11 inch sign in the window
of the second story of her home that read “For Peace in the Gulf.” Unfortunately, it is extremely
difficult to figure out what the Court said in Gilleo with respect to the right of municipalities to
regulate political signs in residential areas. The case declares that municipalities are not without
some rights to regulate such signs, but gives very little guidance as to what are those rights. But
most experts agree that the case probably stands for the proposition that it is extremely difficult,
if not impossible, to prohibit small political signs in residential areas.
Section 14-309 restricts political signs in all areas to certain times relative to elections.
Arguably, under Gilleo reasonable time restricts that apply to elections or referenda on a certain
date would be legalBfor example, signs supporting or denouncing candidates in an election, and
signs for or against some issue subject to a referendum. But such a regulation was struck down
in Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1994), on the ground that such a time
limitation favored the incumbent. In addition, many political signs are not tied to elections of any
sort. The signs in Gilleo were political signs against the War in the Gulf. The same is true of
political signs in any number of federal, state and local issues: abortion, taxes, zoning,
affirmative action, and so on.
Another problem with your political sign regulation is that it allows only one sign per
residence. Gilleo may well stand for the proposition that signs for multiple candidates and
multiple issues cannot be prohibited in residential areas.
All things considered, I doubt that I would risk enforcing the political signs time limitation
on the candidate in question. We can discuss the sign provisions in your zoning ordinance in
more detail at a later date.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/