The Archdiocese of Philadelphia (Archdiocese) filed for a zoning permit with the Philadelphia Department of Licenses and Inspections to allow them to convert an elementary school into 63-unit one-bedroom apartments for low-income senior citizens. The Department denied the request finding that the permit was not in compliance with the Philadelphia Zoning Code, and the Archdiocese appealed to the City of Philadelphia Zoning Board of Adjustment. During the hearing the Archdiocese established that the project would constitute an adaptable reuse of a neighborhood anchor that would have gone vacant. There was one objector to the granting of the permit (Appellee), who claimed that the Archdiocese had not shown hardship unique to the school building, as required for the grant of the variance, but the ZBA decided to grant the permit and concluded that the Archdiocese had established the “overwhelming support” of the surrounding community for the housing project, and also found that the concerns for parking, traffic, trash, and aesthetics would not adversely impact the health, safety and welfare of the surrounding community, as the proposed use would be less burdensome on the community than the previous use as a school. The Objector appealed the ZBA’s decision to the court of common pleas which affirmed the decision, but the Commonwealth Court reversed, finding that the ZBA “improperly found that a unique hardship existed,” and its grant of the variances was not based on substantial evidence.

The Supreme Court of Pennsylvania said that that an applicant for a variance is not required to show that the property at issue is valueless without the variance or that the property cannot be used for any permitted purpose, and that the Commonwealth Court erred by relying on an improper standard for unnecessary hardship and by substituting its judgment for that of the ZBA, thereby applying an incorrect standard of review. Furthermore, the court found that the Commonwealth Court’s articulation of a functionally obsolete standard for unnecessary hardship was unsupported even under its own cited precedent, and that the ZBA’s decision on every issue raised was within the bounds of reason and therefore represented a sound exercise of discretion.

Marshall v City of Philadelphia, 2014 WL 3579694 (PA 7/21/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/pa-supreme-court/1673382.html

This case was brought to the Commonwealth Court of Pennsylvania on remand from a Supreme Court “mandate” directing it to consider the constitutionality of certain provisions of Act 13. Specifically the court was directed to decide: (1) whether notice to only public drinking water systems following a spill resulting from drilling operations, but not private water suppliers, is unconstitutional because it is a special law and/or violates equal protection; (2) whether those provisions of Act 13 prohibiting health professionals from disclosing to others the identity and amount of hydraulic fracturing additives received from the drilling companies impedes their ability to diagnose and treat patients, is unconstitutional because it is a special law and/or violates equal protection and violates the single subject rule; (3) whether conferring the power of eminent domain upon a corporation empowered to transport, sell, or store natural gas in this Commonwealth to take the property of others for its operations is unconstitutional because it permits a taking for private purpose; (4) and whether 58 Pa.C.S. §§ 3302 and 3305 to 3309, which authorizes the Public Utility Commission (PUC) to review local zoning ordinances and to withhold impact fees from local governments, are severable from the enjoined provisions of Act 13.

As to the question of giving notice in the event of a spill, the court reasoned that given the breadth of the trigger for the DEP’s notice obligation under 58 Pa.C.S. § 3218.1, it would not be feasible to require DEP to identify private wells that may be potentially affected by a spill and it is impossible for DEP to provide notice to these unknown private well owners. In regards to the takings claim, 58 Pa.C.S. § 3241(a) only confers upon a public utility possessing a certificate of public convenience the power to condemn property for the injection, storage and removal of natural gas for later public use. Accordingly, the court found this is not considered a taking for a private purpose. The court further held that the single subject rule was not violated because all of the provisions of 58 Pa.C.S. § 3222.1 relate to the trade secrets and confidential proprietary information regarding the chemicals used in the hydraulic fracturing of unconventional wells and under what limited circumstances this information must be reported and released. Finally, the court enjoined the application and enforcement of 58 Pa.C.S. § 3302 as it relates to Chapter 33 of Act 13, and 58 Pa.C.S. §§ 3305, 3306, 3307, 3308 and 3309(a) in their entirety, since those provisions were so dependent on and interdependent with the unconstitutional provisions.

Robinson Township v Pennsylvania, 2014 WL 3511722 (Cmwlth 7/17/2014)

Editor’s Note: This posting is reposted with permission from the RLUIPA Defense Blog at: http://www.rluipa-defense.com/article.cfm?ID=346

In MAUM Meditation House of Truth v. Lake County, Illinois, No. 13-cv-3794 (N.D. Ill. 2014), the United States District Court for the Northern District of Illinois ruled that Lake County, Illinois did not violate MAUM Meditation House of Truth’s religious exercise under state or federal law by requiring that it comply with certain building code requirements in connection with its proposed conversion of a home to a mixed-use home and meditation center comprising two rooms for small group meditation. MAUM estimated that approximately 20 people per day, two to five at a time, would use the facility to practice their religion. It argued at the local level that such a use should be deemed an “accessory use” under the building code rather than a “change of use,” because under the latter MAUM would be required to undertake certain renovations to comply with the code. MAUM alleged that these renovations, which included the addition of 10 parking spaces and the installation of two accessible restrooms of about 70 square feet, would cost approximately $200,000 and substantially burden its religious exercise.

MAUM sued Lake County for its failure to deem the use of the meditation center an accessory use, and brought claims under the Free Exercise clauses of the U.S. and Illinois constitutions; the Illinois Religious Freedom Restoration Act (IRFRA); the Equal Protection Clause of the Fourteenth Amendment; the Due Process Clause of the Fourteenth Amendment; and free speech and free association protections of the First Amendment. On July 16, 2014, the Court dismissed MAUM’s claims and denied its request for a preliminary injunction.

The District Court first concluded that dismissal was appropriate because MAUM had failed to exhaust its administrative remedies by seeking state court review of the Zoning Board’s decision under Illinois’ Administrative Review Law (65 ILCS 5/11-13-13). MAUM argued that it did not have to exhaust its remedies because it asserted a bona fide equal protection claim, which requires a showing of “governmental action wholly impossible to relate to legitimate governmental objectives.” (citation omitted). Because the Court determined that MAUM’s equal protection claim was insufficiently pled (discussed below), MAUM was not excused from the requirement that it exhaust the state court remedy.

Next, the District Court found that dismissal was appropriate because MAUM’s claims were insufficiently pled. Notably, the District Court concluded that MAUM failed to allege a substantial burden under IRFRA – an essential element for such a claim – because its claims were based only on the financial implications of Lake County’s decision. While noting that the term “substantial burden” holds the same meaning under IRFRA as it does under the Seventh Circuit’s interpretation of it under RLUIPA, the District Court explained that “[i]t is well established that there is no substantial burden placed on an individual’s free exercise of religion where a law or policy merely operates so as to make the practice of [the individual’s] religious beliefs more expensive.” (citations omitted).

The District Court dismissed MAUM’s Free Exercise claims for failure to allege that Lake County made an individualized assessment of the building code that would subject Lake County’s actions to strict scrutiny. It is interesting to note that the Court did not consider whether MAUM had adequately pled these claims to invoke any lesser form of judicial scrutiny, such as rational basis review. The Equal Protection claim failed because MAUM did not allege that the City intentionally treated it worse than any other individual or organization making a similar request, and because it never alleged that Lake County lacked a rational basis for deeming MAUM’s mixed-use house/meditation center a change of use.

MAUM’s free speech and free association claims also failed, so much so that the District Court characterized them as “nonsensical” due to MAUM’s misapprehension as to the meaning of content-neutral versus content-based speech or assembly. That is, MAUM claimed that “Lake County’s application of the building code is contrary to the text and therefore a content-based determination.” To the extent the building code incidentally regulates speech or assembly within places of worship, the Court stated “such regulation is motivated not by any disagreement that Chicago might have with the message conveyed by the church speech or assembly, but rather by such legitimate, practical considerations as the promotion of harmonious and efficient land use.” (quoting Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 765 (7th Cir. 2003)). It also dismissed the due process claim on the ground that MAUM did not use the channels available to it to appeal the Zoning Board’s decision to state court.

MAUM’s Motion for a Preliminary Injunction – which requires a showing of a likelihood of success on the merits – was denied for failure to demonstrate the same.

* “a series of three victories, successes, or related accomplishments.” Merriam-Webster (www.m-w.com).

Maum Mediation House of Truth v Lake County, 2014 WL 3514989 (N.D. Ill. 7/16/2014)

The petitioners/plaintiffs, Belair Building, LLC, and its sole owner, Sinclair Haberman, owned real property located on Shore Road. In 1985, Haberman’s father, obtained a variance from the Zoning Board of Appeals of the City of Long Beach (hereinafter the ZBA), later amended in 1989 and again in 1992, for construction of a four-tower cooperative/condominium project known as the Sea Pointe Towers Project. The appellant, the respondent/defendant Xander Corp. (hereinafter Xander), owns the only building of the proposed complex to have been constructed. In September 2003, Xander filed a petition with the ZBA, seeking to revoke a building permit that had been issued to the developers in August 2003 to begin construction on the second tower at 350 Shore Road. Xander Corp. appealed from an order of the trial court, entered June 14, 2012, as denied that branch of its motion which was for leave to serve and file an amended answer to the third amended petition/complaint.

However, the court discussed that “[U]nder New York’s transactional analysis approach to res judicata, ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy’ (Matter of Hunter, 4 NY3d 260, 269, quoting O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357).” The court found that the proposed counterclaims arose out of the same series of transactions as those giving rise to the related proceeding, including the 1985 variance and a 1989 stipulation of settlement and amended variance, relating to the Sea Pointe Towers Project and the Xander Building residents’ alleged right to the parking spaces on 350 Shore Road. Since these two claims sought essentially the same relief, this court held that the trial court properly denied that branch of Xander’s motion which was for leave to serve and file an amended answer to the third amended petition/complaint.

Haberman v Zoning Board of Appeals of Long Beach, 2014 WL 3446833 (NYAD 2 Dept. 7/16/2014)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D42295.pdf

The New England Prayer Center submitted a request to the Zoning Commission of the Town of Easton (Commission) seeking a place of worship in a residential community. The request was granted, but residents within the community filed an appeal claiming that the Center’s use of a parking lot in front of their Church’s property violated the Easton zoning regulations. The Commission maintained that the zoning regulations allowed for minimum fifty-foot setback, and that a strict application of the statute would create an unreasonable burden on religious applicants under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The trial court acknowledged that the residents were aggrieved and that they had standing, but ultimately dismissed the appeal because the zoning ordinance explicitly allows parking in front of a structure in some circumstances.

The appellate court noted that the applicable sections of the statute did not provide a definition of “front yard,” and therefore they applied the common definition of frontage (a word similar to “front yard”) and found that the common usage of “front yard” appears to be the area in front of a structure, between the structure and the street. In regards to the section of the statute which allowed for parking in front of the structure, the court found that the superior court quoted the language of the ordinance in its analysis, but failed to take into consideration the plain language of the statute which only allowed up to ten percent of the off-street parking. Therefore, the court found the dismissal of the appeal to be improper, and remanded the case for the court to determine whether the conditional exception of the statute was met.

Michos v Planning and Zoning Commission of the Town of Easton, 2014 WL 3057114 (CT App. 7/15/2014)

The opinion can be accessed at: http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP151/151AP413.pdf

In January, 2008, Jennifer Niles, a wheelchair user, filed a complaint with the board alleging that the Kingston store was not accessible. The owner of Hollister (the clothing retail store) sought judicial review of decision of Architectural Access Board requiring retailer to make all entrances to its store accessible to persons with disabilities. The Superior Court Department, Suffolk County, granted Board’s motion for judgment on the pleadings. The store owner appealed and the Appellate Court affirmed. Following this, the store owner applied for further appellate review.

Hollister argued that multiple doorways on the same façade must be deemed a single entrance, and where two of the three doorways are accessible, it was inappropriate for the board to conduct further inquiry into the nature of the third doorway. The board rejected this argument, because entering through the central porch gives the patron the option of arriving at a place different from the one arrived at by entering through one of the accessible side doors, and supports its reasonable determination that differences in use pattern between doorways may signal multiple entrances. The court agreed that since both interpretations were plausible it would not disturb the board’s decision. Furthermore, the determination that a substantial benefit could be had by persons with disabilities by providing access through the central porch ends the inquiry into whether a variance may be granted. Because the board’s denial of the variance was based on substantial evidence, this court affirmed the holding of the Superior Court.

J.M. Hollister LLC v Architectural Access Board, 2014 WL 3359665 (MA 7/10/2014)

The defendant testified in municipal court that he collected cars as a hobby. He testified that he had thirty-nine cars on his property at the time of trial, and all were registered and insured. He presented documentary evidence to support his testimony. He said he drove different cars to his job as a corrections officer, and that he did not sell any cars or car parts. The municipal court found defendant guilty of failure to obtain a permit for a new or changed use of his property, a violation of Fredon Township Ordinance Section 550–12, and required him to remove all but five of these cars within thirty days.

In analyzing this claim, the court first noted that the use of residential property to maintain a car collection has been permitted as incidental to the use of the home as a residence. The court recognized that it is customary and incidental to use residential property to pursue a hobby, since use by a family of a home under our customs includes more than simple use of a house and grounds for food and shelter. It also includes its use for private religious, educational, cultural and recreational advantages of the family. Pursuit of a hobby is clearly customarily a part of recreational activities, as long as the pursuit thereof is not of such a nature, or to such an extent, as to impair the residential character of the neighborhood, it cannot be supposed a zoning ordinance was intended to prevent it. Moreover, the neighbor’s testimony showed that defendant’s use interfered with the use and enjoyment of neighbors’ properties and had a negative impact on the municipality’s land use plan. The witness testified he had to keep his windows closed because of the fumes and noise, and he could not enjoy full use of his yard. Accordingly, this court affirmed the decision of the municipal court.

State of New Jersey v Ortiz, 2014 WL 3534516 (NJ Super. Ct. 4/28/2014)

The purchaser of commercial property which had been condemned as a public nuisance, and a construction company hired to construct improvements on the condemned land, brought a § 1983 action against the city and city officials, alleging that improvements were razed while an appeal from the city’s denial of a building permit application was pending. The United States District Court for the Northern District of Ohio granted summary judgment to the defendants and the purchaser and construction company appealed. The plaintiffs first argued that the City demolished the Property as they were navigating the permit and application process and, by using the 1998 condemnation notice as the basis for the property’s 2009 demolition, the City deprived them of their substantive due process rights. They further argued that the demolition constituted an unconstitutional taking.

Addressing these complaints the court first noted that Ohio R.C. § 715.26 authorizes a City to provide for the demolition of an unsafe structure that is a public nuisance if the owner fails to provide the notice to repair, rehabilitate or demolish the structure. The demolition of a nuisance is not an unreasonable and arbitrary official act that may not take place no matter what procedural protections accompany it. The City had the authority to demolish the Property to abate a nuisance and Plaintiffs had ample notice and opportunity to challenge the City’s intended action. Plaintiffs were granted a public hearing at which they were represented by counsel. The court found that the plaintiffs failed to complete the administrative appeal process, which although still pending when the building was demolished, could nevertheless have resulted in a reversal of the findings underlying the condemnation order. Accordingly, the court held that the demolition did not violate substantive due process, and the demolition did not violate the takings clauses of state and federal constitutions.

Embassy Realty Investments v City of Cleveland, 2014 WL 3376900 (6th Cir. 7/10/2014)

The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/14a0506n-06.pdf

Defendant City of Blue Ash has enacted zoning laws regulating respective land uses throughout the City. Plaintiff Anderson lives in an area zoned R–3 Residential, which is strictly for residential purposes. The Zoning Code specifically lists the land uses that are permitted in each district. If a use is not listed, then it is prohibited. Section 505.21 of the Blue Ash Codified Ordinance prohibits sheltering, maintaining, keeping, or harboring of “farm” animals on residential property, including miniature horses, alpacas, and pigs. However, this Ordinance does not apply to animals otherwise specifically permitted by federal law. C.A.’s physician, Dr. Ron Levin, recommended and prescribed hippotherapy for Plaintiff C.A and Plaintiff Anderson obtained a miniature horse for Plaintiff C.A.’s hippotherapy in 2010. Health inspectors walked around the property and noticed an odor by the back fence. As they peeked through the fence, they saw the miniature horse, alpaca, and a pig. Plaintiff Anderson was cited for two violations of the farm animal ordinance, specifically for keeping a miniature horse and an alpaca at her residence. Anderson filed a Housing Discrimination Charge with the Department of Housing and Urban Development and the Ohio Civil Rights Commission (“OCRC”), alleging that she and Plaintiff C.A. are being discriminated against on the basis of her daughter’s disability under Section 804(f) of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 (“FHA”).

The court discussed that the presence of these farm animals potentially creates a threat to the health and safety of the neighboring individuals, as well as the horse itself. The smell and waste created by the horse potentially creates a direct threat to the health and safety of Defendant’s citizens. Furthermore, the miniature horse was not housebroken and the property could not fully accommodate the needs of the horse. Allowing the horse could also reduce the property value and community aesthetics of this residential area. As such, the accommodation was not reasonable and the Defendant’s motion for summary judgment was granted.

Anderson v City of Blue Ash, 2014 WL 3102326 (SD OH 7/7/2014)

Posted by: Patricia Salkin | July 10, 2014

U.S. Supreme Court to Review Ninth Circuit Sign Case

Editor’s Note: Thanks to Edward J. Sullivan of Garvey, Shubert and Barer in Portland, OR for this summary.

Reed v. Gilbert, 707 F.3d 1057 (9th Cir., 2013), Cert. Granted (July 1, 2014), involved the validity and constitutionality of Defendant Town of Gilbert’s sign regulations as applied to temporary directional signs for church services in an adjacent town. The instant decision involved an appeal from a Trial Court decision on remand from the Ninth Circuit in which that Court found the temporary sign regulations not to be content-based, but rather a reasonable time, place and manner regulation. However, the Ninth Circuit also remanded the case to the Trial Court to determine whether the claim that the First Amendment and the Equal Protection Clause are violated if the regulations favor some noncommercial speech over other noncommercial speech. On remand, the Trial Court found no such violation and Plaintiff church and its pastor again appealed. In the meantime, Defendant amended its sign regulations, but the Ninth Circuit observed that those amendments could be challenged by Plaintiffs in separate proceedings.

Plaintiffs asserted they were under a religious injunction to convert others and to invite them to their services, which they did, inter alia through these temporary directional signs. There was friction with Defendant Town, especially because the church services were held in an adjacent town. Defendants’ sign code required a permit for signs but exempted three categories from these requirements – temporary directional signs of a certain size and placement which are allowed only twelve hours before and one hour after the event that they advertise; political signs dealing with a candidate or ballot measure placed at any time before and within up to ten days after election on that candidate or ballot measure; and ideological signs which are not limited as to time or number. Directional signs have the least amount of allowed area, while ideological signs have the most.

The Ninth Circuit in 2009 affirmed the original Trial Court decision, determining that the case involved an applied challenge, that the sign code was not content-based (as the directional aspects dealt with speakers or events rather than the content of the speech involved), that the ordinance was not unconstitutional because of the limited duration categories, that the ordinance was narrowly tailored to advance the town’s interests in traffic safety and aesthetics, and that alternative channels of communication were available. Additionally, the Court found that commercial speech was not favored over noncommercial speech.

On remand, the Trial Court considered cross-motions for summary judgment to consider the remanded constitutional issues and again dismissed Plaintiffs’ claims. The Court distinguished among the three noncommercial exemptions and found the distinctions not to be prohibited content-based regulations, and did not favor one type of noncommercial speech over another. Thus, the Trial Court found it permissible to have differing durational and size requirements for each of the three noncommercial categories.

On review, the Ninth Circuit said it was bound by the “law of the case,” and as there was no new discovery or any asserted evidentiary facts in the second iteration of the case, the sole basis for the remand was whether the distinctions among the three noncommercial categories constituted discrimination that violated the First Amendment or the Equal Protection Clause.

The Ninth Circuit noted the evolution of jurisprudence relating noncommercial speech beginning with the prohibitions on favoring commercial over noncommercial speech in Metromedia, Inc. v. San Diego, 453 U.S. 490, 541 (1981). While the United States Supreme Court had not directly dealt with this issue since Metromedia, the Ninth Circuit has not been so fortunate. In G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir. 2006) that court found that neither reference to a speaker nor event involved content discrimination as enforcement officers were not required to read the sign to determine whether the sign were exempt. The Court said the question in this case was whether the differing requirements for each of the three categories of noncommercial speech could be justified without reference to the content of that speech. The Ninth Circuit responded that it had considered, and rejected, a similar argument in the first iteration of this case adding:
* * *[T]he distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs are content-neutral. That is to say, each classification and its restrictions are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. The Political Signs exemption responds to the need for communication about elections. The Ideological Sign exemption recognized that an individual’s right to express his or her opinion is at the core of the First Amendment. The Temporary Directional Sign exemption allows the sponsor of an event to put up temporary directional signs immediately before the event. Each exemption is based on objective criteria and none draws distinctions based on the particular content of the sign. It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted. Accordingly, as the speaker and event determinations are generally “content neutral.” Gilbert’s different exemptions for different types of noncommercial speech are not prohibited by the Constitution. (Footnote omitted)
Moreover, the Ninth Circuit found a similar approach had been validated in Hill v. Colorado, 530 U.S. 703 (2000) where a regulation of speech-regulated conduct within 100 feet of a healthcare facility was upheld as it did not regulate the content of any speech. Neither was there such a regulation of the content of temporary directional signs in this case. In Hill, the United States Supreme Court found no regulation of speech content, but only where that speech may be exercised, noting the state interest in protecting access and privacy and a need to provide police with clear guidelines. The United States Supreme Court also added it was not improper to review the content of speech to determine whether a rule of law applied to a course of conduct.

With regard to the differential treatment of the categories of noncommercial speech, the Ninth Circuit reasoned that the temporary directional sign regulations were, standing alone, content-neutral and not in competition with the other noncommercial categories; moreover, those regulations reasonable with respect to their purposes.

The Ninth Circuit, having found the ordinance to be content-neutral, and to be a reasonable time, place and manner restriction, turned to the issues of whether the ordinance was narrowly tailored to serve a significant governmental interest and left open ample alternative channels of communication. The Court recognized traffic safety and aesthetics as significant governmental interests and found the temporary directional signs (unlike political and ideological signs) were properly prohibited from being placed in the right-of-way. Moreover, those signs were not of such core speech importance to be protected as it would be in the other categories which were allowed to be placed in the right-of-way. As noted, there was no competition among the various commercial categories and no showing that the restrictions on temporary directional signs interfered with their purpose of showing would-be patrons the way to church services. Moreover the Court said it would defer to local judgments on sign size and duration, if they be reasonable. These considerations responded adequately to the obligations of the local government under the First Amendment. The Court concluded with the regulations need not be uniform among all categories of noncommercial speech and may vary with the type of speech involved and how the town’s interests are affected. The Court concluded:
* * *In sum, (a) Gilbert was not required to create an exemption for Temporary Direction Signs, (b) the restrictions on directional signs are rationally related to the purpose of the directional signs, and (c) the restrictions are reasonably designed to promote Gilbert’s interests in aesthetics and safety.
Moreover, the Ninth Circuit found a “reasonable fit” between the public agency ends and the regulatory means chosen to reach those ends. As to alternative channels of communication, the Ninth Circuit was satisfied that Plaintiffs may erect multiple temporary signs in the area and take advantage of other means of communication.
The Ninth Circuit also rejected Plaintiffs’ challenges to the ordinance under the Arizona Free Exercise of Religion Act, vagueness and overbreadth, and equal protection grounds. However as noted, the Court allowed for new litigation to deal with amendments to the Defendants’ sign code made since the Trial Court second decision.

The gist of this decision is that all noncommercial speech exemptions need not be treated alike, so long as each of the exemptions in content-neutral, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels of communication.

Judge Watford dissented, although he agreed that the post-trial ordinance amendments could be challenged in a separate suit. Judge Watford pointed out that the first Ninth Circuit decision considered the temporary directional sign provisions in isolation and found it content-neutral. However, that decision did not evaluate the relationship of that exemption with the political or ideological sign categories; rather the Ninth Circuit remanded the matter to the Trial Court to undertake an analysis of whether favoring one type of noncommercial speech over another was constitutional. It was clear to the dissent that the terms for the three exemptions were different in terms of sign size and duration and that fact lead the dissent to believe that one type of noncommercial speech was unconstitutionally treated more favorably then another. The dissent noted that in a public forum, unless a distinction were based upon some non-communicative aspect of the speech involved, the regulation must fall concluding:
* * *The reason is simple: Within the realm of noncommercial speech, the government may not decide that speech on certain subjects is more (or less) valuable—and therefore more (or less) deserving of First Amendment protection—than speech on other subjects.
The dissent described one reason for the invalidity of the sign code in Metromedia’s plurality opinion is that that ordinance valued certain noncommercial speech (i.e., political signs) over other noncommercial messages, concluding:
Gilbert’s sign ordinance violates the First and Fourteenth Amendments by drawing content-based distinctions among different categories of non-commercial speech. The most glaring illustration is the ordinance’s favorable treatment of “political” and “ideological” signs relative to the treatment accorded the non-commercial signs plaintiffs seek to display. Under the ordinance, plaintiffs’ temporary directional signs may not exceed six square feet in size and may not be displayed more than 12 hours before or one hour after the relevant event—here, Sunday morning church services. (Given the 9:00 a.m. start time of Good News’s church services, this durational restriction limits the display of plaintiffs’ signs to periods when it is virtually always dark.) In contrast, “political” signs—defined as “[a] temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election”—may be up to 32 square feet in size and may be displayed any time prior to an election and removed within 10 days after the election. “Ideological” signs—defined as “a sign communicating a message or ideas for non-commercial purposes”: that is not a constriction, directional, political, or garage sale sign—may be up to 20 square feet in size and are not subject to any durational limits at all. * * *
The United States Supreme Court has granted certiorari in this case and the matter should be hears before the end of the year and decided before June, 2015.

This case presents a very interesting question of whether the First Amendment allows for differentiation and regulations among noncommercial speech. Perhaps in this case the Supreme Court will clear up the plethora of inconsistent authorities in dealing with First Amendment regulations.

Reed v. Gilbert, 707 F.3d 1057 (9th Cir., 2013)

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