August 5, 2008
Dear Madam:
You have several questions about sign regulations, the first of which follows. I will
answer the remaining questions over the next couple of days.
1. What kind of control can cities exercise over church and school signs? Section
14-445 of the City’s sign ordinance says that churches, schools and non-profit organizations
are subject to the same restrictions as provided for offices and commercial businesses, but
churches and schools may use changeable copy signs in accordance with another section of
the ordinance. “Changeable copy signs are defined as manually changeable, not
automatically changing.”
I have reviewed the City’s zoning and sign ordinances. Churches are allowed in many
districts as special uses and by outline plan, and schools are allowed by outline plan in all but one
district. (I have no idea what the distinction is between a special use and an outline plan under
the Zoning Ordinance). Of course, you are correct that '14-445 of the sign ordinance provides
that “Churches, schools, clubs, and non-profit organizations generally shall be subject to the
same restrictions as provided for offices and commercial business. However, churches and
schools may use changeable copy signs in accordance with ' 14-408 of this ordinance.” I
assume your concerns are whether ' 14-445 of the City’s sign ordinance is legal.
Churches
Although they are not directly related to your question, I have attached for your review
two letters I did for the county attorney of Loudon County on the question of whether a church in
a residential zone was entitled to display crosses representing abortions performed in the United
States. The first letter was done before I knew City of Ladue v. Gilleo had been handed down by
the U.S. Supreme Court. The second letter takes that case into account. But I suspect that in the
cases of churches, where moral (political?) speech may be reflected in crosses and perhaps other
symbols as well as pure speech, it probably does not matter in what district the church is found
because such speech is probably protected speech. As the U.S. Supreme Court seems to have
made clear in City of Ladue v. Gilleo, the first question to ask in sign regulations cases is
whether the regulations prohibit too much speech, and the second, whether the regulation is
content-neutral (although I have also pointed out that many courts still do those tests in reverse
order. backwards).
It is said in Prime Media, Inc. v. City of Brentwood, 398 F.3d 814 (6th Cir. Ct. App.
2005), that:
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[T]he [U.S. Supreme] Court has subjected time, place and manner
restrictions on speech to the following test: They “are valid
provided (1) that they are justified without reference to the content
of the regulated speech, (2) that they are narrowly tailored (3) to
serve a significant governmental interest, and (4) that they leave
open ample alternative channels of communication of the
information.” [At 818] [Citations omitted.]
I have extensively reviewed the cases on sign content neutrality and find none deal with
that issue with respect to the sign regulations that apply to special exceptions, let alone that deal
with special exceptions that subject all schools and churches that are located in various districts
in the city to the sign regulations that apply in only one or two types of districts in the city. The
City’s school and church sign regulation is arguably not based on content of the signs, but on the
reality that school and churches can be located in virtually every district in the city and a logical
view that the sign regulations ought to be similar.
Many sign ordinances state the governmental interests their time, place and manner
restrictions are trying to promote (aesthetic, traffic safety, promotion of business, preservation of
property values, etc.). The City’s Sign Ordinance does not. However, at least one or more of
those interests are undoubtedly the ones the time, place and manner restrictions in that ordinance
are designed to promote. All of them appear to be significant governmental interests, even
though a relatively old Tennessee case prohibits zoning solely for aesthetic interests. The sign
cases indicate that the narrow tailoring standard is not generally difficult to meet. The time, place
and manner restrictions are not required to match perfectly with the significant governmental
interests they are designed to promote; only to advance them. The City’s Sign Ordinance
provisions governing school and church signs appear to at least advance the interests of
aesthetics, traffic safety and preservation of property values.
But the regulation of church signs potentially involve a tougher test. If a zoning
regulation substantially burdens the exercise of religion, the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUPIA) can be triggered, in which case the regulation
must meet a “compelling” governmental interest. RLUPIA apparently applies to sign regulations,
although I can find only one case involving a sign: Trinity Assembly of God of Baltimore City,
Inc. v. Peoples Counsel for Baltimore County, 941 A.2d 560 (Md. Ct. App. 2008). There, the
Court held (after six years of litigation!), that the church was not entitled to a height and size sign
variance because under the facts the sign regulations in question did not substantially burden the
church; for that reason RLUPIA was not implicated.
Presumably, the same result would be reached in most church sign cases, including
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where, as in the case of the City’s sign ordinance, churches (and schools) must meet the sign
requirements that apply to office and commercial business districts. While I did not determine
from the City’s Sign Ordinance exactly what sign regulations apply in those districts, I assume
that in the districts zoned for offices and commercial business, the sign regulations generally
allow larger and more prominent signs than do most, if not all, districts.
Schools
With respect to schools, arguably, a Tennessee municipality can exempt its property from
sign (and other zoning regulations). But if the municipality elects not invoke such an exemption,
presumably, it can require impose zoning and sign regulations on municipal property. The City
appears to have done so in ' 14-408(2) (“City-owned or leased buildings or city-sponsored
events are exempt from the sign ordinance.”) However, I do not know whether the city or the
county operates the schools in your City. In either case, both the city and the county are exempt
from the city’s zoning regulations if they choose to involve that exemption. But as pointed out
above, ' 14-445 of the City’s sign ordinance subjects schools and churches generally to the same
sign regulations that apply to offices and commercial businesses, and provides that churches and
schools can use changeable copy.
Changeable copy
In addition, ' 14-408 itself allows changeable copy to be used only for “churches,
schools, theater marquees and gasoline price signs.”
I am not sure what significant governmental interest the changeable sign regulations are
designed to promote, especially where the changeable copy is restricted to hand-changed copy. I
assume that automatic changeable copy has all gone to the electronic mode and that the city does
not wish to see that change mode used generally across the city. (Needless to say, in many places
in Tennessee and elsewhere gasoline price sign changes are now made electronically). If that is
so, presumably, the city’s interests in the limitation on changeable copy is aesthetic, the
preservation of property values, and perhaps also traffic safety. I am not sure the restriction on
changeable copy will pass the content neutrality test, restricted as it is to churches, schools,
theater marquees and gasoline price signs, although I guess it could be argued that the restriction
has nothing to do with the content of the sign, only with how the content is changed. But even if
that is so, given the massive shift to the use of electronically changeable signs in the United
States, the quality of which is arguably high and aesthetically pleasing, I am not sure those
restrictions will for long pass the narrow-tailoring test.
Other observations
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Several provisions of ' 14-426 Political signs restricted, are almost certainly illegal. For
example, the limit of 30 days erection or display before the election has routinely been stricken
down. [' 14-426(1)(B)] I have not compared the display distance on private property to other
non-political signs, but if they are different, that difference may reflect a lack of content
neutrality. [' 14-426(1)(c)] The restriction of the display to “occupied privately owned lots....”
may also be illegal, at least as to the “occupied” lots. [' 14-426(1(c)] I doubt whether a
candidate or political committee that wishes to do anything with respect to political signs can be
made to fill out an application with the building department. I suspect that such people have the
right to anonymity, if they choose. [' 14-426(2)(a)] Likewise, I doubt it is legal to require such
candidates or political committee to agree to reimburse the city for removing the signs,
particularly if no other person who displays a sign is required to do the same. ['14-426(2)(b)]
The bond required of those who display political sign seems highly questionable. ['14-426(3)]
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/