Plaintiff, Neighborhood Enterprises, Inc. manages the properties of SITO, a non-profit organization, both of which are owned by fellow plaintiff Jim Roos. With tenant approval Roos commissioned a sign/mural for the side of a SITO owned building. The sign/mural read “End Eminent Domain Abuse” and it was pictured inside of a red circle and slash. It is roughly 363 or 369 square feet in area. The City’s Division of Building and Inspection issued a citation to SITO declaring the sign/mural an “illegal sign” and explaining that permits must be acquired which Neighborhood filed for a month later. Shortly thereafter, the City’s zoning administrator denied the permit application because the sign did not meet certain requirements in the zoning code. First, since the wall face of the building does not have street frontage it is not entitled to signage and secondly, the largest allowable square footage for any sign within the zoning district is only 30 square feet. SITO appealed the decision to the Board arguing that they do not need a permit because as a “work of art” it is exempted from the zoning code’s definition of “sign.” The Board however upheld the denial stating that the sign is substantially larger that the footage allowed and it is inappropriately located.
SITO filed a suit in state court challenging the Board’s denial of the sign permit and the zoning code provisions upon which the denial was based. The district court granted summary judgment in favor of the City and the Board concluding that the Board’s decision denying SITO’s sign permit “was not arbitrary, capricious, unreasonable, unlawful, or in excess of the Board’s . . . jurisdiction,” and the restrictions placed on signs in the Sign Code withstand scrutiny under SITO’s constitutional challenges with respect to the denial of its sign permit.
The Court held that “the zoning code’s definition of ‘sign’ is impermissibly content-based because ‘the message conveyed determines whether the speech is subject to the restrictions.’” The court pointed out that an object the same dimensions as the “End Eminent Domain Abuse” sign/mural would not be subject to regulation if it were a national, state, religious, fraternal, professional and civic symbol or crest. Although the City’s justification for enacting the regulations related to traffic safety and aesthetics, the Court noted that “the City has not seen fit to apply such restrictions to all signs of the same dimensions.” Therefore, in applying strict scrutiny, the 8thCircuit found that while the regulations may generally promote aesthetics and traffic safety, the City failed to demonstrate how these interests are served by the distinction it has drawn in the treatment of exempt and nonexempt categories of signs. Further, said the court, the sign code’s exemptions are not narrowly tailored to accomplish either the City’s traffic safety or aesthetic goals, which “while significant, have never been held to be compelling”.
Neighborhood Enterprises, Inc. v. City of St. Louis, 2011 WL 2694571 (C.A. 8th Cir. 7/13/2011)
This opinion can be accessed at: http://www.ca8.uscourts.gov/opndir/11/07/101937P.pdf
