DRB says “highly unlikely” that Norwich sign regulations are valid under First Amendment

In April, the Norwich Development Review Board (DRB) denied an appeal from the determination by the Zoning Administrator regarding the Black Lives Banner on Main Street. The ZA had concluded that the BLM banner is exempt from the Town’s sign regulations.*

However, perhaps a more far-reaching aspect of this decision is the conclusion by the DRB that it is “highly unlikely” that the content-based aspects of the Norwich sign regulations are constitutional under the freedom of speech provisions of the First Amendment. The Board cited the 2015 decision of the United States Supreme Cour in Reed v. Town of Gilbert. The DRB saw the Norwich case as “quite similar to the scenario presented in Reed v. Town of Gilbert.”

Will there be a rush to erect billboards in Norwich? Unlikely, although your prediction is as good as mine. But the decision puts the Selectboard and Planning Commission on notice that the Town’s sign regulations need review and likely revision. 

This is not new news. The Vermont League of Cities and Towns (VLCT) recommended such action soon after Reed v. Town of Gilbert. “In the wake of this decision, towns in Vermont with sign regulations are advised to review, and if necessary revise their regulations so that they comply with the Court’s ruling in this case,” said the October 2015 VLCT newsletter at page 6.

Norwich, however, is not the only municipality in the nation that is late to the party in responding to the Supreme Court decision. See examples here and here. The question is whether our local government will heed the reminder provided by the DRB. Is it time to revisit the Norwich sign regulations? What happens if the Town does not? Following Reed v. Town of Gilbert, are the Town’s sign regulations enforceable or merely advisory?

What does this mean for the Norwich sign regulations?

The remainder of this long post is my attempt to explain the decisions in Reed v. Town of Gilbert and by the DRB and apply them to the Norwich Zoning Regulations. I did some research but I claim no expertise in constitutional or zoning law.

Reed v. Town of Gilbert

Content-based sign laws are “presumptively unconstitutional” under the freedom of speech provisions of the First Amendment, said the Supreme Court in Reed v. Town of Gilbert.

How do you tell if a sign ordinance regulates content? One rule of thumb: if one needs to read the sign to determine if the regulations apply, then the sign ordinance is content-based.

At issue in the Supreme Court case were temporary directional signs. Such a sign could not be bigger than six-square feet and needed to be removed one hour after the event. In contrast, “ideological signs” could be 20 square feet in area and had no time limit.

These distinctions are content-based. An official needs to read the sign to decide if the sign is ideological or directional.

The majority opinion said sign regulations can make these distinctions, but only if the town showed a compellingly reason under “strict scrutiny” review. That standard of review is extremely difficult (nearly impossible?) for a municipality to meet.

For example, it’s hard for a town to claim aesthetics or traffic safety justify size limits on directional signs, when bigger ideological signs are allowed. Indeed, in a concurring opinion, Justice Kagan suggested that the Town of Gilbert’s reasons do “not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.”

Content-based restrictions are in contrast to content-neutral rules. Some examples of the latter are limits on the size or number of signs. Or, prohibitions on lighting or electronic signs.† Nonetheless, even such “time, place or manner” restrictions can interfere with freedom of speech rights, such as a blanket prohibition on residential lawn signs.

The Supreme Court decision did not address commercial signs. Other federal courts of appeals, however apply Reed v. Town of Gilbert to commercial signs.

DRB decision

Content was at issue with the Black Lives Matter banner.

The sign regulations for Norwich are in the Norwich Zoning Regulations (NZR) at section 3.11, which begins at page 40. A list of exemptions is at Table 3.4. See excerpt below.

At issue before before the DRB was the third exemption in that Table for residential flags or banners intended solely for “ornamental or non-advertising purposes.” To determine if the BLM banner is not advertising and thus exempt, its content requires review by the ZA. In other words, the exemption is content-based because the sign needs to read to determine if the exemption applies.

The DRB said: “While we need not go further with this constitutional analysis, it is highly unlikely that the content-based exemptions/distinctions in the NZR would survive strict scrutiny.”

Content-based exemptions in Norwich

The list of Exempted Signs in Table 3.4 of the NZR includes several content-based exemptions.

It is important to note that an exemption for one type of sign is a restriction for every other type of sign. For example, the second exemption in Table 3.4 allows “public service” signs of any size. Religious, ideological and political signs are restricted. So are commercial signs.

Moreover, although aesthetics can be a legitimate justification, beauty is in the eye of the beholder. As noted in the majority opinion in Reed v.Town of Gilbert, it is difficult to justify strict limits on one kind of sign as “necessary to beautify the Town” while at the same time, the Town allows “unlimited numbers of other types of signs that create the same problem.”

Again, the second exemption in Table 3.4 is an example. Norwich places no limits on the size or number of directional or public service signs. A business can erect an unlimited number of billboards saying “We support essential workers,” however gaudy or plain. But, otherwise a property in the Commercial/Industrial zoning district (easterly side of Route 5 South) is limited two signs which cannot exceed 24 square feet. In the Rural Residential district, the limit is one sign with a maximum size of 4 square feet.

Also, determining what qualifies for the second exemption is difficult. “Creemees at the blue door.” Is that an exempt directional sign? Or non-exempt advertising? Some might see it as a public service announcement! Is a flag sporting the Red Sox logo an advertisement? **

Another example is the fifth exemption favoring temporary signs for auction and real estate sales. An “open” flag or a “fresh corn” sign at a farm stand is not exempt.

Also, as the DRB determined, the exemption for residential, non-advertising banners is content-based.

Finally, the definition of a “sign” at page 127 of NZR may contain a content-based exemption. The definition excludes the flag the “any nation, state, or municipality.” One federal court of appeals found a similar exemption invalid after Reed.

Implications for Norwich

What does the DRB decision mean for Norwich? If anything, it is a reminder that the Norwich has work to do in light of Reed v. Town of Gilbert.

I twice asked Director of Planning and Zoning Rod Francis if he would be suggesting to the Planning Commission that it take action in the near-term to address the sign provisions in NZR. He did not reply to either email.

As a non-expert, I think the VLCT advice from 2015 remains apt. “In the wake of [the decision in Reed v. Town of Gilbert], towns in Vermont with sign regulations are advised to review, and if necessary revise their regulations so that they comply with the Court’s ruling in this case.”

More serious concerns about enforcement are raised in materials apparently distributed at a Local Government Attorneys of Virginia meeting held in October 2015. An excerpt is below.

Closing thought

If concerns are credible about the enforceability of all or part of the Norwich sign regulations, then it seems prudent for the Selectboard or Planning Commission to take the time to understand the likelihood that a problem might arise. No sense in having regulations if they don’t work. Or, if enforcement results in civil liability for the Town.

End Notes

* Although denying the appeal, the DRB disagreed with the Zoning Administrator on one point. The DRB said the BLM banner “should not be tied between or attached to two trees.”

† The concurring opinion by Justice Alito in Reed provided a list of “some rules that would not be content based.” These included;

• Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below.
• Rules regulating the locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings.
• Rules distinguishing between lighted and unlighted signs.
• Rules distinguishing between signs with fixed messages and electronic signs with messages that change.
• Rules that distinguish between the placement of signs on private and public property.
• Rules distinguishing between the placement of signs on commercial and residential property.
• Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed

** See Metromedia, Inc. v. San Diego, 453 US 490, 538-39 (1981)(Brennan, J. concurring).

Thanks for reading my blog. Contact me at norwichobserver [at] gmail.com.