Posted by: Patricia Salkin | August 25, 2014

Fed. Dist Court in CA Grants Preliminary Injunction over County Zoning Ordinance Regulating Signs and Billboards

Plaintiffs brought suit against the County of Alameda (“County”), alleging that the County’s regulation of billboards and advertising signs is unconstitutional, and moved for a preliminary injunction, claiming that the County’s comprehensive zoning law, codified as Title 17 of the Alameda County General Ordinance Code (the “Zoning Ordinance”), violated their First Amendment rights and was facially invalid. The ordinance at issue, Zoning Ordinance § 17.18.010, stated that “any land use within the boundaries of a[PD] district adopted in accordance with the provisions of this chapter shall conform to the approved land use and development plan.” Plaintiffs argued that the Zoning Ordinance was overbroad and facially unconstitutional because it: (1) regulates billboards and advertising signs without identifying a substantial governmental purpose; (2) regulates speech based on its content by allowing some commercial speech while disallowing all noncommercial speech; and (3) gives certain County officials the power to regulate speech based on content by giving them unfettered discretion to allow variances or to permit signs with certain types of content.

As to the first claim, the court found that In light of section 17.52.515(B), which states that the purpose of the County-wide ban on new billboards and advertising signs is to “advance the County’s interests in community aesthetics by the control of visual clutter, pedestrian and driver safety, and the protection of property values,” the Plaintiffs were unlikely to show that the Zoning Ordinance failed to identify a substantial government interest. The Court also found that the Plaintiffs were unlikely to succeed on the merits of their second argument because the Zoning Ordinance does not place greater restrictions on noncommercial speech than it does on commercial speech, or regulate speech based on content. This finding was due largely to the presence of a substitution clause within the ordinance. As to the Plaintiffs’ third claim, Section 17.52.520(R) allowed signs to be “placed on or attached to bus stop benches or transit shelters in the public right-of-way when approved by the director of the public works agency.” Therefore, under the Zoning Ordinance, County officials could allow some speech and suppress other speech based entirely on content. Furthermore, the court found that the ordinance lacked any procedural safeguards to ensure that the County would make its discretionary decisions in a timely manner. As a result, the court granted the Plaintiffs’ motion for a preliminary injunction.

Citizens for Free Speech, LLC v County of Alameda, 2014 WL 3866504 (ND CA. 8/5/2014)

The opinion can be accessed at: http://leagle.com/decision/In%20FDCO%2020140806794.xml/CITIZENS%20FOR%20FREE%20SPEECH,%20LLC%20v.%20COUNTY%20OF%20ALAMEDA


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