tag: North Carolina Land Use Litigator: Federal Court Concludes Sign Ordinance Regulating Political Posters Is Facially Unconstitutional

Thursday, February 10, 2011, 12:56 PM

Federal Court Concludes Sign Ordinance Regulating Political Posters Is Facially Unconstitutional


Sometime in 2007, plaintiff joined the fray for local government public office in a suburb of New York City. The outlines of the race, contentious in ways only politics will be, can be sampled here.

In connection with his campaign, plaintiff posted hundreds of signs in and around the Village within which he sought office, the Village of Airmont. However, the Village's deputy mayor and trustee (which, in a New York village, is the equivalent in North Carolina to a member of a local government's governing board) was a candidate for the same political position of county legislator.

In August of that summer, campaign manager for the deputy mayor (also, a fellow trustee) sent plaintiff a letter requesting that he remove his signs from the Village's Wal-Mart. The campaign manager contended that the deputy mayor had the exclusive right to post political campaign signs at the Wal-Mart, and plaintiff's signs were therefore not welcome. The first question we have is, "Why did the opponent, rather than the owner of the shopping center, make that statement and rather aggressive request?" Something tells me it's because the shopping center owner had no such qualms about the opposing signs.

Plaintiff did not remove his signs. But that's okay because, according to the plaintiff, the Village police department was directed by the opposing campaign manager to remove the signs from the Wal-Mart property.

Then, adding salt to the wounds, the Village's code enforcement officer issued a violation notice to plaintiff for his posting of political signs in excess of the size limitations contained in the local code. This last part, the code enforcement officer's actions, turned this into a land use case. Plaintiff brought a lawsuit against the Village challenging, inter alia, the Village's sign ordinance with respect to political signs. That's why we're here.

On summary judgment, the court determined that the ordinance is content-based because the provisions applicable to political signs “are in their own section of the Code with different limitations than those that apply to other temporary signs.” As a point of contrast, the court noted that other temporary signs (e.g., historical markers, flags, house/building numbers, private for-sale signs, etc.) were exempt from permit requirements entirely, while political signs remain subject to regulation. Thus, the Court ruled that since the Village Code was a content-based regulation, “strict scrutiny” applies.

Applying "strict scrutiny," the court ruled that the sign ordinance is unconstitutional because it “impermissibly regulat[es] speech based on content" and the ordinance is "not narrowly tailored to serve a compelling government interest.” Specifically, the court ruled that neither the durational limits on political signs while exempting other signs altogether from these limits, nor the size limitations on political signs, nor the requirements to post a security deposit for the display and location of political signs serves a compelling interest.

It doesn't appear from the decision in Withers v. Village of Airmont, et al., 07 Civ. 9674 (SCR)that plaintiff political candidate ever aimed to exhaust or otherwise actually did exhaust his administrative remedies. Nor does it appear that the Village offered this legal insufficiency as a defense to the court's jurisdiction over plaintiffs' lawsuit. Assuming that's true, consider the language from a more recent decision out of the U.S. Court of Appeals for the 6th Circuit, Miles Christi Religious Order v. Township of Northville, No. 09-1618, which touches on exhaustion of local government administrative remedies within the context of First Amendment claims:

"But a claim does not become ripe at the first whiff of governmental insensitivity or whenever a government official takes an adverse legal position against someone, even if one potential response is to curtail protected activities. One justification for the ripeness doctrine is that it avoids the premature resolution of constitutional questions, including First Amendment questions.... And 'the existence of a ‘chilling effect,’ even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action....' The answer instead is to look at each case to determine the consequences of staying our hand."

Curious, to say the least.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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