Tuesday, March 22, 2016

Reed v Town of Gilbert

In our last post, we talked a little bit more about the use of the strict scrutiny test in the Reed v Town of Gilbert decision. Today, let’s talk a little bit about some of the issues which may remain after the Reed decision.

First and foremost, is the issue concerning the continuing validity of the distinction between on premise and off premise regulations. The Reed decision itself only applied to temporary noncommercial signs. It did not discuss the regulation of on-site versus off-site signs. Justice Alito however in his concurring opinion, specifically indicated that that type of regulation was still appropriate. However there is no discussion of why or in what context. And of course, it was only a concurring opinion, not the opinion of the majority (although, spoke for three members of the court, leaving only three in the majority opinion).

The difficulty is the Reed analysis itself: in order to distinguish between an on premise versus an off premise sign, one must read the content of the sign. Does it relate to the goods or services provided on site or not? Thus, given the definition and the mode of analysis in the majority opinion, on-site versus off-site regulation seems to be drawn into question.

On the other hand, most people see this type of regulation as content neutral because it simply regulates where a sign can be located. Certainly, on-site versus off-site regulations have been around for as long as sign regulations have existed. They are part and parcel of every zoning sign ordinance.

It is furthermore important to remember, that the Supreme Court concluded in Metromedia Inc. V San Diego, 453 US 490 (1981), that on-site versus off-site regulations were appropriate in the context of commercial signs. In that case, the Supreme Court recognized that most noncommercial messages have no locational basis; for example, “Stop the Vietnam War!” Is really not an on site or an off-site concept. Therefore, Metromedia provided that commercial signs could not be favored over noncommercial.

It seems to me that most courts will certainly continue treating the on-site versus off-site distinction in the context of commercial signage as a valid locational restriction. However, it is certainly worth pointing out, that a District Court here in Tennessee has already suggested otherwise. Thomas v Schroer, 116 F. Supp. 3d 869 (WD Tenn. 2015). This opinion ordered injunctive relief and the court may ultimately change its mind. But there are at least in some judges who may take a different view of the on-site versus off-site regulation of commercial messages.

Another issue after the Reed decision concerns regulations of signed by classifications. Real estate signs, construction signs, directional signs, grand opening signs, are all basically defined by reference to the content of the signs themselves. There may not be a way around these issues, although several authors have suggested potential workarounds. Perhaps it is simply easier to omit the definitions, and simply regulate based on the number, location, and size of the signs.

Another problem after Reed is the vast array of exemptions in most sign ordinances. Those exemptions are normally based on definitions keyed to the content of the signs. Once again this is prohibited by the Reed decision itself. Even such nondescript and constitutionally insignificant signs as real estate signs and building name signs may run into significant difficulty. Once again, regulation simply by number and square feet, without reference to function or content may be most appropriate.

In the next post we will talk a little bit about some ways in which the local government can protect itself against challenges to the constitutionality of its sign provisions.

Monday, March 21, 2016

Reed v Town of Gilbert

In our last post, we spoke about Reed v Town of Gilbert, 192 L. Ed. 2d 236, 135 S Ct 2218 (2015), generally, making the point that it was an unfortunate case to reach that high level, and secondly that sign regulations based on the content of the sign must always be judged strictly. This “strict scrutiny” is a judicial test which requires that any regulation which restricts freedom of speech demonstrate some compelling governmental interest which justifies the restriction and also requires that the restriction be narrowly tailored so as to avoid overregulation. Today, let's review that test and its implications.

As a practical matter, if the courts apply the “strict scrutiny” constitutional test, the regulation is almost certainly going to be held unconstitutional. Very few regulations can demonstrate the required “compelling governmental interest” and even if that could be shown, those are not usually very well tailored.

It’s hard to blame the city for its manner of regulation: most cities use similar types of categories to regulate signs. And as the city argued before the Supreme Court, and as the lower two courts concluded, the city had no intent to discriminate based on sign content, and in fact, within each category, ideological, political, and directional signs, the city didn’t care what type of politics, ideology, or even was referenced by the sign.

However, from the standpoint of the Supreme Court, the fact that there were distinctions drawn between the types of signs themselves, which had to be based on the content in the signs, meant that the regulation was not content neutral, that distinguished between signs based on content, and such distinctions violated the First Amendment unless there was compelling reason for those distinctions.

It is therefore important for local governments, after the decision in this case, to eliminate or at least reduce the number of different classifications of signs, particularly noncommercial signs. In fact, perhaps local governments are better served by simply restricting the number and size of signs in general based on location without reference to any type of classification. Whether it is a real estate sign, construction sign, a temporary event sign, or political sign, perhaps allowing a number of signs with a certain total amount of square feet is a better solution to the problem.

Think about this from another angle. The court ended its strict scrutiny analysis by assuming that the town had a compelling governmental interest. It did not review that because it was easier to conclude that the regulations were not narrowly tailored: that is by allowing a different timeframe for political, ideological and directional signs, and allowing different square feet for each of those different classifications, is easy to conclude that the regulations are not narrowly drawn. Because if the governmental interest at stake is aesthetics or traffic safety, all three types of signs would have had the same impact and therefore should of been restricted in the same or a closely similar manner. Because they were not, the city failed in the most basic way. I suspect that most local governments across the state of Tennessee also fail in a similar manner.

In the next post, we’ll talk a little bit more about issues which remain to be decided after Reed. For one thing, does this important decision herald a break in constitutional protection for the distinction

Friday, March 18, 2016

Reed v Town of Gilbert

I don’t often discuss sign cases in this blog. The whole area of zoning, land use planning, the First Amendment and signs is quite complicated and I’m never sure that people really want to dig too deeply into it. However, I’ve been asked to do a short seminar on Reed v Town of Gilbert, 192 L. Ed. 2d 236, 135 S Ct 2218 (2015), and perhaps some discussion of this important case is worthwhile.

I’ll probably take a few days to discuss several of the important themes. And like almost all First Amendment sign cases, it is difficult to know for sure where the Supreme Court is headed. So, with that caveat, let’s start with perhaps the first two most important points.

First, and this is possibly easier to see in hindsight then at the time that the actual decisions concerning litigation were made, the circumstances presented here were not ideal from the local government standpoint. There are at least three different types of tests to determine the validity of regulations which might impact First Amendment interests. As Justice Kagan mentioned in her concurring opinion,
The Town of Gilbert’s defense of it sign ordinance – most notably, the law’s distinctions between directional signs and others – does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.
Given that sentiment, this case ultimately opened the door and allowed an opportunity for the Court to roam around these sign regulations and employ the strictest test in First Amendment jurisprudence. Looking back, it would have been far better if this case had never reached of the US Supreme Court.

Secondly, it is clear, based both on the majority opinion, and on Justice Alito’s concurring opinion, that the majority of the court found that distinctions in the regulations based on noncommercial sign content which might under most circumstances seem innocent, rendered the sign regulations unconstitutional because of the worst conclusion: that the town was regulating based on the content of the signs themselves.

The opinion focuses on three different types of signs, political signs, ideological signs, and temporary directional signs. A political sign, under the towns definitions were temporary signs designed to influence the outcome of the election. Ideological signs were signs which were basically other types of noncommercial signs. And temporary directional signs were intended to direct pedestrians and motorists to some particular event.

The trouble was, that each different sign was allowed for a different time frame as far as its display, and different sizes were permitted depending on the type of sign. Thus, as Justice Thomas pointed out, if John Locke was running for political office, he could post a sign to promote his election, but that sign would be treated differently from a sign expressing one of Locke's principles of democratic government, and would further be different from a sign giving notice of the time and place of a book club which would discuss one of John Locke’s books. The only way to distinguish between the signs was to read the sign and determine its content. As the court pointed out this is the very thing that is prohibited by the First Amendment.

The types of distinctions between noncommercial signs at issue in Reed v Town of Gilbert appear in almost all local governmental sign regulations. Local signs are almost always exempted, for at least some time frame around the election; directional signs are almost always controlled in some way; and frequently noncommercial ideological signs are not referenced at all and in some cases are treated less favorably than other types of commercial speech. This of course inverts the importance of the two types of speech: noncommercial, particularly ideological speech should be treated with greater respect then commercial messages.

In any event, it seems to me that the case unfortunately got to this high level, and secondly was not a very apt case for decision.

In the next post, will discuss in greater detail the holding, and what it might portend for the future. Sometime thereafter, it may be worthwhile to consider how local governments can best react to the decision.

Certainly, if you work in or around a local government codes enforcement department or planning department, and your city has not yet reviewed it sign regulations in the context of this important Supreme Court case, you would be well advised to review the local sign regulations and make some decisions about how they should be changed in order to make them consistent (as much as possible) with this case.

Thursday, March 17, 2016

Tennessee Equal Access to Justice Act

Yesterday, I mentioned the proposed bill pending before the Tennessee Gen. Assembly, which would have the effect of allowing a state or local employee to recover his or her attorney’s fees in the event that a lawsuit is brought against the employee unsuccessfully. That’s Senate Bill 2377, House Bill 1679.

I probably should have mentioned the Tennessee Equal Access to Justice Act, Tenn. Code Ann. § 29-37-101 et seq., which allows a small business or neighborhood organization to recover attorneys fees where a State agency or local government has acted arbitrarily and capriciously as determined by a court of law. A small business or a neighborhood organization may recover their attorneys fees and costs associated with suing the state or local government in order to overturn the decision.

In most litigation, demonstrating that the state or local government has acted arbitrarily and/or capriciously, is a very difficult task. However, in land use planning litigation, most of which is filed by means of the common law writ of certiorari, it turns out that demonstrating arbitrary and capricious action is not all that difficult. In fact, in order to prevail on a common law writ of certiorari in the first place, you must demonstrate to the court that the zoning board or the planning commission acted arbitrarily and capriciously. Only then, will the court reversed the decision of the local government.

As a result, in many types of local land-use litigation, if the plaintiff or petitioner is a small business (which includes a partnership or corporation with gross receipts of less than $2 million during the 12 months preceding the lawsuit and which does not employ more than 30 persons on a full-time basis) or a neighborhood or homeowners association, attorneys fees and costs may be recovered if the decision of the zoning board or planning commission is reversed by the court.

The amount of the fees are limited to $10,000, but that limitation applies to each prevailing party and to each stage of the litigation. Therefore, it is possible to recover the attorneys fees associated with the appearance of an attorney before the local zoning board or planning commission, the attorneys fees for the appeal to trial court, and then to the Court of Appeals and then finally to the Tennessee Supreme Court. Theoretically therefore, the attorneys fees in such a case for each entity which prevails could be as much as $40,000. State v Thompson, 197 S.W. 3d 685 (Tenn. 2006).

Although the statute was adopted back in 1984, it is still somewhat little-known, and even less used. If you represent parties in local administrative proceedings, the ability to recover attorneys fees under the appropriate statutory circumstances, can make it much easier for your client. Note however that the statute does not require the court to award fees. The court may make an award but may certainly decline to do so if there are circumstances which would make the award unjust. I certainly have had cases where although the court reversed the decision of the zoning board, it found circumstances were such as to disqualify my client notwithstanding compliance with the statutory prerequisites.

Wednesday, March 16, 2016

Shifting Attorneys Fees in Land Use Litigation

There’s an interesting new bill proposed before the Tennessee Gen. Assembly. Assuming it passes, it will be important from two different perspectives. Senate Bill 2377 and House Bill 1679 would amend the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq., by creating a new section which would allow for the recovery of attorneys fees by a governmental employee if the employee wins a lawsuit brought against him or her arising out of his or her official duties.

From one perspective, this may help to fill a void which I have protested against for many years. The Tennessee Governmental Tort Liability Act in many types of cases leaves the employee open to litigation but immunizes completely the local government. This has always seemed inappropriate to me. It leaves the employee uncovered, but protects the local government. It seems to me that it should be precisely the opposite: the employee should be immune, and if there is any liability, it should be against the local government, with a reasonable cap on exposure.

Let me take a quick example. No local government is liable for the issuance, denial, suspension or revocation of or the failure or refusal to issue, deny, suspend or revoke, a permit, license certificate, approval, order or or other similar authorization pursuant to Tenn. Code Ann. § 29-20-205 (3). However, that section only removes liability of the local government; the governmental employee may nevertheless be liable. Fann v City of Fairview, 905 S.W. 2d 167 (Tenn. App. 1994). Subsection (c) of  Tenn. Code Ann. § 29-20-310, says that “no claim may be brought against an employee or judgment entered against an employee for injury proximately caused by an act or omission of the employee within the scope of the employee’s employment for which the governmental entity is immune in any amount in excess of the amounts established for governmental entities…, unless the act or omission was willful, malicious, criminal or performed for personal financial gain…”

So, an employee who issues a building permit or revokes a building permit illegally or wrongfully, may face liability under the TGTLA where the municipal corporation does not. This has always struck me as being unfair and totally inappropriate.

The new legislation would have the effect of making a plaintiff reimburse the employee for all attorneys fees and costs incurred in defending against the claim. This certainly isn’t as good as making the employee totally immune (and having the municipality pay up to a reasonable cap), but perhaps it’s a start.

On the other hand, from the perspective of a plaintiff wanting to sue the government, it of necessity means that plaintiff’s counsel will need to be fairly confident of prevailing before initiating a lawsuit against the employee. This may limit strategic decisions by plaintiff's counsel, and in the context of land use planning law, might foreclose certain kinds of actions which would ordinarily be viewed as appropriate. Many land use planning attorneys do not sue local government employees because we rely to a large extent on working with them in our day-to-day practice. But many other kinds of cases, say in a situation where a religious entity is involved, or where there is some other special circumstance, a lawsuit against both the local government and an employee or group of employees might be seen as advantageous. But if the odds of prevailing are not significant, this proposed bill would certainly undermine any such attempt.

Finally I might add that the new bill seems a little distracted in ways. It purports to amend the Tennessee Governmental Tort Liability Act but that act only pertains to local governmental entities. It certainly appears that this is supposed to apply to employees of the state of Tennessee because it references specifically claims brought before the Tennessee claims commission or board of claims, which, as I understand it, can only be done if it involves state action (not local governmental action). It certainly would be unusual to include a fee shifting statute applicable to all governmental employees, state or local, in a tort liability provision which applies only to local governmental employees. In any event, we will see if it is passed. There was an article in yesterday’s Tennessean which suggested that it is somewhat controversial; it will be interesting to see what happens to it as the legislative session winds up.

Thursday, March 10, 2016

The Vested Rights Act of 2014

Although the Vested Property Rights Act of 2014 has been in effect for well over a year (since January 1, 2015) I don’t think I’ve taken a moment to talk about it. It certainly is a welcome step in the right direction: when I see happen all the time, is an applicant who finds a parcel of property, puts together his development plan, goes to codes and applies for a permit only to have the permit either stalled, or even if it is issued, the law is changed immediately thereafter in order to thwart the proposed development.

I’ve always thought that developers look for properties which they can develop without a hassle from the local government. They find a piece of property, to figure out if it can be used for the purpose they intend, and then they apply for a permit. It’s only after that, that all of a sudden, that particular land use at that particular location is no longer satisfactory. The neighbors or the local government or both rise up in righteous indignation and demand that the law be changed so that that use can no longer be permitted at that location.

That was the state of the law in Tennessee before the adoption of the 2014 VRA. An applicant had to get a building permit plus must have substantial construction underway in order to have any white to continue the work, notwithstanding the fact that when he obtained the building permit, the project was entirely legal. Because of the government, under the old Tennessee law, changes the rules before you reach substantial construction, the new law applies and the building permit catch revoked.

The 2014 VRA changed that. It was adopted as Chapter 686 of the Public Acts of 2014, and is codified in its municipal version at Tenn. Code Ann. § 13-4-310(b) to (k). Found in the first sentence: “a vested property rights shall be established with respect to any property upon the approval… Of a… Development plan or a building permit. During the vesting period… The locally adopted development standards which are in effect on the date of approval… Shall remain the development standards applicable to that property or building…”

Certainly, we will have to wait for some court decisions to understand how this will all fit together. From my perspective there has been a growing acceptance across the nation of statutory provisions such as this, where the applicant who complies with the developmental regulations in effect at the time of approval is permitted to develop pursuant to those regulations even if changes are made thereafter.

Notice however, that the protection only exists from and after the time of approval. If the applicant applies for a building permit, but does not get the permit approved, and there is a change in the zoning regulations which would preclude the development, there is no protection pursuant to the act. Protection starts on the day of approval; not on the day of the application.

I’m sure that there will be many interesting questions which arise as a result of the application of the Vested Rights Act, but as of now, I don’t know of any particular litigation involving the statutory provisions. I’m sure that it won’t take long for lawsuits regarding the application of the act to offer some additional guidance.