Posted by: Patricia Salkin | March 1, 2017

Fed. Dist. Court in NH Dismisses RLUIPA Claims Arising from Denial of Electronic Sign Permit

Hillside Baptist Church and Signs for Jesus wanted to install an electronic sign on the Church’s property in Pembroke, New Hampshire. Pembroke’s sign ordinance governs applications for electronic signs. Although Hillside Baptist had an existing sign that can be changed manually, it desired to upgrade to an electronic sign that could be remotely pre-programmed to display different messages each day. This action was brought against the Town of Pembroke, the Zoning Board of Adjustment, and its Code Enforcement Officer, Everett Hodge, after defendants denied plaintiffs’ request for a permit to install the proposed sign. Plaintiffs alleged violations of the United States Constitution, the New Hampshire Constitution, and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The Church first argued that the Town violated the Church’s First Amendment right to free speech. The Church did not challenge the Town’s claim that the electronic sign provision was content-neutral on its face, but that the Town’s decision to deny its request for an electronic sign was nevertheless subject to strict scrutiny because it drew speaker-based distinctions that improperly permitted some speakers to have an electronic sign but not others. Specifically, the objection was to the fact that the provision applied to new speakers but not grandfathered speakers, and nongovernmental speakers but not governmental speakers. Intermediate scrutiny was used because the exemption of governmental land users from local zoning applied regardless of whether a proposed use implicates speech, suggesting to the court that the legislature did not prefer government messages over citizens’ messages. Furthermore, the record was absent any evidence suggesting that the Town applied the electronic sign ordinance unevenly in a way that suggested a content preference. The court therefore held that the Town was entitled to summary judgment on the Church’s free exercise claim.

As to the Church’s Free Speech claim, the court found that the potential hazard of distracting signs such as Electronic Changing Signs was supported by the record and precedent, and the Town’s judgment was entitled to deference because it was not unreasonable. Additionally, the Town wanted to promote a natural aesthetic by restricting electronic signs, because such signs posed an aesthetic problem. The court determined the Town’s actions were narrowly tailored, as the Town “did no more in banning them than eliminate the exact source of the evil it sought to remedy.” Accordingly, the Town’s content-neutral regulation of electronic signs satisfied intermediate scrutiny and the Town was entitled to summary judgment on the Church’s free speech claim.

As to the Equal Protection claim, the court found the Town also had strong reasons to treat governmental and nongovernmental landowners differently. The Town could not prevent Pembroke Academy from installing an electronic sign on its property because the state had not given it the power to regulate governmental land uses. Moreover, both the Town’s decision to deny the Church’s request for an electronic sign, and the state’s decision to delegate its power over zoning issues to its municipal subdivisions while exempting itself from local zoning ordinances, were determined to be substantially related to important governmental interests.

Next, as to the RLUIPA claims, the court held that the Town did not substantially burden the Church’s religious exercise by denying it an electronic sign. Here, the Church had an existing sign at the same location, at the end of its driveway, whose message was capable of being changed manually. Additionally, for the same reason the Equal Protection claim was denied, the Pembroke Academy found not to be a valid comparator because the state had deprived the Town of any power to regulate governmental land uses. Lastly, as to the Due Process claim, because the Church failed to allege that constitutionally adequate state law remedies, such as an ordinary zoning appeal of the Board’s decision to the New Hampshire Superior Court, were unavailable, the court held that the Town was entitled to summary judgment on the Church’s due process claim.

Signs for Jesus v. Town of Pembroke, 2017 WL 394493 (D. NH 1/27/2017)


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