Wednesday, December 23, 2020

More Public Duty Cases: Kimble and Lawson

 The Tennessee Court of Appeals has, over the last week or so, decided a couple of cases involving the public duty doctrine here in Tennessee. Kimble v Dyer County involved a traffic accident where a tree had fallen across the highway blocking the westbound lane and the plaintiff sustained injuries when his vehicle collided with the tree. The weather was bad that evening which contributed to the accident.

In Lawson v Maryville City Schools, the plaintiff tripped and fell near the entrance to the Maryville High School on a defect in the sidewalk.

There was no liability in Kimble based on the application of the public duty doctrine, but the doctrine did not apply in Lawson.. We will discuss each case briefly and also turn to a consideration of an older case here in Tennessee where the public duty doctrine did not prevent the imposition of liability in the application of building code issues.

In Kimble, the highway where the accident took place was a state highway and so the county was not responsible for maintenance. However, since a sheriff’s deputy was alerted to the presence of the obstruction on the highway, and because he went to the place on the highway where the tree had fallen, and later left, the plaintiffs argued that there was a special duty owed to the plaintiff. As the Court of Appeals explained, the public duty doctrine is a common-law defense shielding public employees from suits for injuries caused by the employee’s breach of a duty owed to the public at large rather than to the individual plaintiff. It likewise shields local governments from such liability.

However, Tennessee recognizes (as do all states which apply the doctrine) an exception to this immunity where there’s a special relationship between the plaintiff and the public employee which might create a special duty more specific to the plaintiff than the duty owed by the employee to the public at large. Importantly, this special duty may arise when public officials affirmatively undertake to protect the plaintiff and the plaintiff relies upon that undertaking; or where a statute specifically provides for a cause of action against an official; or where the plaintiff alleges intentional, malicious, or reckless misconduct.

Kimble relied on the first and third exceptions arguing that there was a special duty of care and that by abandoning the scene of the accident without providing any warning of the downed tree, the deputy was reckless.

The first exception was disposed of easily. Relying on the Tennessee Supreme Court case Ezell v Cockrell, 902 S.W. 2d 394 (Tenn. 1995), where the doctrine was most recently addressed in comprehensive fashion, but which also involved a traffic accident, the court found no special duty of care existing between the deputy and the plaintiff because it could just have easily been other travelers on the highway. In other words, the duty was to the general public and not to the specific individual.

With regard to the allegation of reckless misconduct, the Court of Appeals found that the allegation that the deputy was reckless in failing to place some sign or signal of a hazardous situation did not rise to level of a gross or reckless deviation from the standard of reasonable care. This conclusion seems more difficult.

However, based on that conclusion, there was no liability on Dyer County.

Whereas the Kimble case I think is a close one, the public duty doctrine certainly should not apply in the Lawson case. As I mentioned above, Lawson tripped and fell outside the public high school. This was a public sidewalk. Therefore the provisions of the Tennessee Governmental Tort Liability Act, Tenn. Code. Ann. § 29-20-203 apply. If the government owns or controls the location which caused the injury and the location is defective or unsafe, and the government has constructive or actual notice of the condition, there is liability under the TGTLA. That is certainly the case in Lawson. Although the public duty doctrine survived passage of the tort liability act, with its enactment, the Tennessee General Assembly expressed its clear intent to limit the scope of the doctrine by removing immunity for certain types of claims including specifically the claim in the Lawson case: a claim based on ownership or control of a particular property and the failure to keep it in good condition. Therefore, in the Lawson case, the trial court’s order dismissing the case based on the public duty doctrine was reversed and the matter remanded for further proceedings.

Let’s look at the Kimble case from the perspective of the Lawson case. Where the deputy in Kimble knew of a hazardous condition, and yet didn’t take steps to protect the general public, should there not be liability just as there was in Lawson? Do the arcane provisions of the public duty doctrine justify immunizing the county in Kimble whereas the city in Lawson had to pay damages? Does the difference in conclusion between these two cases make much sense?

Let’s bring another case into this. In Ford v. New Greater Hyde Park Missionary Baptist Church, 2007 Tenn. App. Lexis 761, while a car containing a mother and her four children was parked next to a church in Memphis, the wall of the church adjacent to the car collapsed, crushing the car and killing four of the occupants. One of the children survived. Suit was brought against the city of Memphis and others. Memphis defended in part on the basis of public duty doctrine. This time, the gross or reckless misconduct prong of the special duty exception to the public duty doctrine applied:

[The building inspector] reason to believe that the Church was in danger of imminent collapse. Nevertheless, Newson allowed the December 15, 2001 rehabilitation target date to pass without demanding an engineer's report on the structural integrity of the building or issuing a "Do Not Occupy" warning. After the rehabilitation target date passed, another seven months elapsed before the Church collapsed; in that time, the City took no protective action on a building that had been identified as possibly having serious structural problems. These factual allegations are sufficient to permit a finding that the City consciously disregarded a substantial and unjustifiable risk "of such a nature that its disregard constitutes a gross deviation" from the standard of ordinary  care, and would therefore fall within the reckless misconduct prong of the special duty exception to the public duty doctrine. Therefore, to the extent that the Plaintiffs allege conduct by City officials that could be deemed reckless, the City is not immune from liability under the public duty doctrine.

I will make two points with regard to the Ford case. First, it seems to me that making judgments about the relative structural stability of properties is difficult enough as it is, without the added impact of imposing tort liability on governmental inspectors. The TGTLA immunizes inspectors arising out of the failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property.  T.C.A. § 29-20-205(4). The court concluded that liability was not sought based on the inspection; the inspection had been done correctly. It was the subsequent enforcement of the code (or lack thereof) which led directly to liability. But isn’t the court being a little narrow about its interpretation of the TGTLA? The act not only immunizes governmental employees from negligent inspections, but also from the failure or refusal issued building permits and against claims of malicious prosecution and abuse of process. It certainly sounds as though the General Assembly intended to immunize governmental officials in this area of codes enforcement, which is a difficult realm of government enterprise under any circumstances.

The second point about the Ford case is to juxtapose it to Kimble. If the building inspector in Ford did a correct inspection, found the violations, concluded that there was imminent danger, but nevertheless failed to follow up and enforce the provisions of the code, does not that same series of actions apply to the deputy in Kimble? The deputy found the downed tree, recognized the danger posed, and yet nevertheless did not put up any signal indicating a hazardous condition and based on the complaint simply left that area the highway and the accident took place shortly thereafter. There does not seem to be much distinction between the two cases. So why is there liability on the codes inspector but not on the deputy?

From my perspective, the public duty doctrine, while it certainly enhances the potential defenses for various public officials including codes enforcement officials, is no substitute for clear and specific legislative provisions precluding liability against public officials acting in this area. 

Tuesday, December 8, 2020

Griffin v. Bd. of Zoning Appeals for Rutherford Cty., 2020 Tenn. App. Lexis 429

 This case involves a small business operating out of the owner’s home in Murfreesboro. After a zoning enforcement action was brought against the owner, he filed for a special exception to operate a major home-based business. The property is zoned residentially, is bordered by other single-family homes located in a cul-de-sac.

Approximately 20 neighbors appeared in opposition at the board of zoning appeals and based both on the neighbors’ testimony as well as the staff report, it appeared that a significant number of trucks and business vehicles operated from the residential property, that there was a considerable amount of noise both early in the morning and late evening, the number of employees and vehicles exceeded what was permitted by the specific conditions for the special exception, and the general incompatibility of this fairly significant business in a quiet residential neighborhood.

The zoning board denied the special exception for three reasons, first because of the general incompatibility of the neighborhood; its potential adverse effect on the neighborhood and finally because they were more employees and permitted by the specific conditions.

The trial court upheld the decision of the board of zoning appeals and the Court of Appeals affirmed.

This is a pretty simple case in that clearly the application did not comply with the specific conditions of the provisions in the ordinance relating to a major home-based business. However, I think it is important to distinguish between general conditions and specific conditions when dealing with a special exception. For the most part, general conditions are so general that it is difficult to apply them with any precision. That’s why at least one court in Tennessee has previously held that the general conditions are largely irrelevant in consideration of a special exception or conditional use permit case. In fact, the general conditions in the Rutherford County ordinance are pretty similar to virtually all other general conditions which I see herein the middle section of Tennessee and read as follows:

C. General Requirements

A special exception shall only be granted provided the Board makes specific findings that it:

1. Is so designed, located, and proposed to be operated so that the public health, safety and welfare will be protected;

2. Will not adversely affect other property in the area in which it is located;

3. Conforms to all applicable provisions of this ordinance for the district in which it is to be located and is necessary for public convenience in that location and if applicable, meets the specific standards below.

4. Shall be located so as to be compatible with the surrounding area and provide safety to those using the facility.

In this instance, the intensity of this home-based business clearly is incompatible with residential uses. It would also have an adverse effect on the other property in the area. But while that is true in this instance, in many cases, those two requirements are so vague as to prove impossible to apply. In most of the special exception cases I’ve tried over my many years in practice, those general conditions are simply not very helpful. Take a quick example. Suppose you have an unusual activity such as a landfill or a rock quarry. Are those ever compatible the surrounding area and will they always adversely affect other properties? Nevertheless, in a special exception case, the local legislative body has indicated that those types of uses can be in certain zoning districts subject to meeting the requirements associated with that special exception. To use general conditions that are so vague as to defy specific application simply begs for the zoning board to make decisions based not on specific requirements but on things that may have no relevance to the land use application.

On the other hand, the next section of the Rutherford County zoning ordinance provided a specific limit on the number of employees and on the number of business vehicles. The applicant was already in operation and had too many employees and too many vehicles. The application therefore did not comply and while it is certainly easy and seems reasonable to point to the fact that the general conditions appear also to be violated, it seems to me far better to emphasize the violation of the specific conditions contained within the ordinance.

Monday, December 7, 2020

Manchester Hotel v City of Manchester (Tenn. App. November 30, 2020)

 In another case involving the complexities of the common law writ of certiorari, an appeal was taken from a decision of the municipal board of zoning appeals granting a variance. At the board hearing, the codes director checked the box indicating that the variance had been approved, but without any signature. At the next meeting, on October 15, 2018, the board approved the minutes from the previous month.

Two companies that opposed the variance filed a petition for writ of certiorari on November 16, 2018 and an amended petition with a sworn verification on December 5, 2018 (presumably the original petition lacked a verified signature and so was deficient in that regard). The defendants filed a motion to dismiss for lack of subject matter jurisdiction arguing that the checked box was a sufficient written confirmation of the action of the zoning board such that the appeal should have been taken within 60 days of the original meeting at which the decision was made (September 17, 2018). Of course, Tenn. Code. Ann. § 27-9-102 requires that the appeal be filed within 60 days of the decision.

The question presented here is whether the decision was appropriately memorialized by the checked box, or by the minutes adopted on October 15. If the former, then more than 60 days had gone by since the box was checked; if the latter, the appeal was timely filed.

The trial court granted the motion to dismiss but the Tennessee Court of Appeals reversed concluding that the checked box was insufficient to begin the 60 day statute of limitations. 

The defendants relied on Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App., May 28, 1999) as being very similar factually. This is a case decided by my good friend Judge Ben Cantrell, and even though I have only the highest respect for the judge and most of his decisions while on the bench, this is one that I’ve never been very comfortable with. In that case, the petition submitted to the zoning board itself had a section specifically set aside to show what action was taken by the board. In that case, the board secretary circled the entry “Relief Denied” and then signed the form. The plaintiffs argued that the signature of the board secretary in Advanced Sales clearly distinguish the facts in that case from the case under review. There was no signature of anyone on the form only a checked box.

The plaintiffs argued in turn that the most similar case was McMurray Drive Area Homeowners Association versus Metro Nashville, 2006 WL 1026428 (Tenn. App. April 18, 2006), where an administrative assistant took notes during the course of the meeting and recorded the motions, votes and decisions, but again without any signature. In the McMurray Drive case, the Court of Appeals distinguished those notes from the actual minutes approved by the Planning Commission which were not only signed by both the Chair and the Secretary of the commission, but also indicated the resolution number and the specific conditions of the approval. Although the trial court had granted the motion to dismiss, ruling that the administrative assistant’s notes were sufficient, the Court of Appeals reversed and remanded.

And so too did the Court of Appeals in this case. Without a signature, or perhaps without some other indication of authenticity, a simple checked box is insufficient to treat as a final entry. This is perhaps particularly true when a month later, the official minutes were adopted by the Board of Zoning Appeals.

Although I have said it many, many times now, it bears repeating once again: if you are appealing an administrative decision such as the zoning board decision in this case, the petition must be verified and it is always best to file within 60 days of the date of the hearing where the decision was announced. In this case, the original petition was filed on the 60th day after the original hearing, but unfortunately, the attorneys evidently had not remembered to verify the allegations of the petition. Fortunately, because the minutes were not approved until the next meeting, they had additional time to obtain a verified signature and to file the amended petition.

Finally, let me make one other note: why is it important that a verified petition be filed? The short and simple answer to that is that from a policy standpoint it is not important. The common law writ of certiorari is an antiquated form of pleading which should be retired, at least in the context of land use planning law cases. But many cities oppose going to a different form of an appeal and a land-use planning case, because it would deprive the city of the opportunity to dismiss many cases where the technical pleading rules have not been met. I can’t emphasize too much how unfair this is: property owners get thrown out of court because legal counsel makes a mistake filing a pleading, either too late, or unverified, when the verification requirement simply is unnecessary. Most of the cases which were appealed from zoning boards, planning commissions, and municipal legislative bodies do not involve significant disputes as to the facts. Thus verification of those facts is unnecessary. Most land-use planning cases involve questions of how the law applies to those facts and requiring verification does not advance the decision-making process with regard to the interpretation of the law one iota.

In any event, if you represent a client interested in appealing a land-use decision, be certain that the petition for writ of certiorari is verified properly, and that is filed within 60 days of the decision of the administrative tribunal. The best procedure is to file within 60 days of the meeting where the decision was announced without waiting for minute entries or the entry of some kind of an order.

Monday, September 7, 2020

International Outdoor v City of Troy (6th Cir. September 4, 2020)

My last entry had to do with billboards, dealing with an interesting case from the Fifth Circuit Court of Appeals.  in this case is similar. I should mention also that both cases were brought to my attention by Sam Edwards, who has been really scouring the advance sheets for new and interesting cases.

International Outdoor v City of Troy, decided by the Sixth Circuit Court of Appeals, issued just yesterday, September 4, 2020, parallels the case we reviewed in the last entry. In this case, the trial court dismissed the a claim of prior restraint made by the sign company against the city because the claim had been mooted out as a result of some changes made to the sign regulations during the pendency of the litigation. I will not discuss the mootness issues although they are certainly interesting.

More interesting however in the context of this blog is the impact of Reed v Town of Gilbert, 576 US 155 (2015). I won’t get into the factual allegations beyond saying that the sign company alleged in particular that some signs were exempted from having to apply for a permit at all (including flags, temporary signs, real estate signs, garage, estate or yard sale signs, noncommercial and political signs, holiday or seasonal signs and construction signs were all included). In a footnote, the Sixth Circuit indicated that taking the complaint in the light most favorable to the plaintiff, the sign company alleged facts showing that it incurred costs that other applicants were exempt from because its proposed signs were not afforded the same favored treatment under the ordinance. From the standpoint of the Sixth Circuit, this conferred standing.

As I mentioned in the previous entry, because the Reed court concluded that “strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before concludes that the law is content neutral and thus subject to a lower level of scrutiny.” Reed at 166. The Sixth Circuit concluded that intermediate scrutiny generally applicable to commercial speech applies only to a speech regulation that is content neutral on its face. That is, a regulation of commercial speech that is not content neutral is still subject to strict scrutiny under Reed.

Much as the Fifth Circuit did in the Reagan National Advertising case discussed in the last entry, the Sixth Circuit then turned to look at several other circuit court decisions many of which concluded that the intermediate standard applicable to commercial speech still applied. See Central Hudson v Public Service Commission, 447 US 557 (1980). The Sixth Circuit distinguished many of those cases, and also pointed to Barr v American Association of Political Consultants, 140 S Ct 2335 (2020) applied strict scrutiny to a content-based restriction on robo calls to cell phones. In addition, the Sixth Circuit pointed out its own decision in Wagoner v City of Garfield Heights, 577 F. Appx 488 (6th Cir. 2014), cert granted and judgment vacated, 135 S Ct 2888 (2015). The Sixth Circuit had applied a practical test for assessing content neutrality concluding that in the Wagoner case, the city had satisfied the intermediate scrutiny applicable to such regulations. The Supreme Court did not agree, reversed, and remanded for consideration of Reed. This reversal by the Supreme Court had the act of solidifying the Sixth Circuit's conclusion that in the absence of content neutrality, the strict scrutiny test must apply.

In addition, the court also referenced its decision in Thomas v Bright, 937 F. 3d 721 (6th Cir. 2019), also discussed in the prior post, in which the owner of billboards in Tennessee challenged the on-premise restrictions found in the Tennessee Billboard Act. The Sixth Circuit invalidated the act as being contrary to Reed.

While the court acknowledged that both Wagoner and Thomas concerned non-commercial speech, "the regulations in both cases were deemed unconstitutional due to their content-based nature: they required an inspection of the message to determine whether it was political, as in Wagoner, or related to any on-premises activity, as in Thomas, in order to determine the sign’s permissibility under the regulations.”

In this case, the District Court concluded that the speech at issue, erecting advertising billboards, was commercial speech and therefore not subject to strict scrutiny. Furthermore the District Court held that the ordinance provisions satisfied intermediate scrutiny under Central Hudson.

But the Sixth Circuit reversed because it felt that the district court applied the wrong standard. The Sign Ordinance imposed a content-based restriction by exempting certain types of messages from the permitting requirements, such as flags and temporary signs and the other signs I’ve listed above. Thus, the ordinance regulated both commercial and non-commercial speech but treated them differently, requiring the city to consider the content of the message before deciding which treatment should be afforded. For content-based restrictions on speech, strict scrutiny applies, not intermediate scrutiny.

Accordingly, the Sixth Circuit reversed the decision of the District Court dismissing the plaintiff’s claims against the content-based restrictions found in the sign regulations, and remanded for consideration of the Reed analysis.

Okay, then the question here is how often do you see such distinctions between flags, real estate signs construction signs, yard sale signs, holiday signs political signs where such signs are either required to obtain no permit, or have some lesser burden in obtaining permission. Fairly frequently it seems to me. Under this Sixth Circuit case, it seems that such differentiation may be entirely unlawful.

Sunday, September 6, 2020

Reagan National Advertising v City of Austin, 2020 U.S. App. LEXIS 27276 (5th Cir. Aug. 25, 2020)

This interesting case is yet another development arising out of the Supreme Court decision in Reed v Town of Gilbert, 576 US 155 (2015). Two companies, both Reagan and Lamar Sign, sued the city when applications submitted to digitize off-premise signs were denied. Plaintiffs argued that the Sign Code distinction between on-premise and off-premise signs was a violation of the First Amendment. The lower court found in favor of the city, but the Fifth Circuit reversed, concluding that the distinction was content based, subject to strict scrutiny, and that there was no compelling governmental interest sufficient to justify the regulation.

The city Sign Code provided for the continuation of nonconforming off-premise signs but sign owners were not permitted to “change the method or technology used to convey a message” on an off-premise non-conforming sign. At the same time, the Sign Code permitted on-premise signs to be “electronically controlled changeable copy signs.” As a result, on-premise nondigital signs can be digitized, but off-premise nondigital signs cannot be. The stated purpose of the Sign Code was to protect the aesthetic value of the city and to protect public safety.

The trial court denied plaintiff’s request for declaratory judgment, concluded that the Sign Code was content neutral and satisfied intermediate scrutiny.

The first interesting aspect of this case has to do with the city’s argument that the case was moot because the city adopted new sign provisions after the lawsuit was filed. Plaintiffs argued that they filed their applications prior to the amendments and that under Texas state law, their applications for permits must be reviewed based on the regulations in effect at the time their applications were filed. See for example, Texas Local Government Code Annotated §245002 (a) (1). See also Reagan National Advertising of Austin v City of Cedar Park, 387 F Supp 3d 703, 706 n. 3 (WD Texas 2019) (“Texas law requires the permit applications be evaluated under the law as it existed at the time they were submitted, rather than under the new, revised sign code.”). The Fifth Circuit agreed with the plaintiffs.

Notice the distinction here between Texas and Tennessee law. It appears that under Tennessee law, although it’s not entirely clear, that there is no protection based simply on the application to the city for a permit; rather, the Tennessee Vested Property Rights Act, Tenn. Code Ann. § 13-4-310, only protects from and after the time that a development plan has been approved (not applied for) or that a building permit has been issued. So if the regulations change during the pendency of an application, theoretically the applicant must comply with the new regulations under Tennessee law.

The next issue before the court was whether the Sign Code was content-based or content neutral. Naturally, if the regulations are content neutral, then the intermediate level of scrutiny applicable to commercial speech would apply; otherwise, strict scrutiny would apply to any content-based regulation.

The court first discussed the Supreme Court decision in Reed and noted that while the Reed decision did not purport to be creating new law, the federal courts have generally recognized that Reed announced a "sea change" in the traditional test for content neutrality. The court cited a number of other circuit opinions, including the Sixth Circuit: Wagoner v City of Garfield Heights, 675 F Appx 599 (6th Cir. 2017), and perhaps more interestingly, Thomas v. Bright, 937 F.3d 721, 737 (6th Cir. 2019), cert. denied, 2020 U.S. LEXIS 3558, 2020 WL 3865256 (July 9, 2020) which held that Tennessee's Billboard Regulation and Control Act of 1972, Tenn. Code Ann. §§ 54-21-101, et seq., "is not narrowly tailored to further a compelling interest and thus is an unconstitutional restriction on non-commercial speech." As many of you are aware, this decision and frankly the lower court decision which preceded it, seemed startling. Concluding that the entire regulatory scheme for controlling outdoor advertising signs was unconstitutional seemed, at least at the time, something of a stretch.

The court concluded that the Supreme Court decision in Reed meant that if a law is content based on its face, then it is subject to strict scrutiny regardless of the government’s content-neutral justification. See Reed, 576 US at 165. One difficulty with this approach is that Justice Alito in Reed concurred and specifically noted that regulations distinguishing between on-premise and off-premise signs should not be considered content-based. The Fifth Circuit, looking to the Sixth Circuit, observed that a restriction distinguishing between on-and off-premise signs could be content-neutral. A regulation that defines off-premise as any sign within 500 feet of a building is content-neutral. But if the off premise/on-premise distinction hinges on the content of the message, it is not a content-neutral restriction.

Thus, the Austin Sign Code must be evaluated under the clear rules set forth by the Reed majority. That makes the rest of the case fairly simple. The Sign Code determines on- versus off-premise by reading the sign and asking if it advertises a business, activity, product, or service not located on the site where the sign is installed. If the product or service is located on the same site than the sign is on-premise; otherwise it is off-premise.

In the Thomas v Bright case, the Sixth Circuit considered an almost identical question. Of course, the Sixth Circuit concluded that state officials were making content-based decisions in order to determine whether the outdoor advertising sign was on-premise or off-premise and invalidated the Tennessee Billboard Regulation and Control Act of 1972. A fairly monumental conclusion.

The Fifth Circuit mentioned that other circuits have reached different conclusions including the DC Circuit in Act Now to Stop War v District of Columbia, 846 F. 3d 391, 404 (DC Circuit 2017). In that case, the DC court reasoned that making a “cursory examination” of sign to determine whether it’s on- or off-premise did not render the statute or regulation content-based.

The Fifth Circuit disagreed. First, the court maintained that there are many cursory examinations which would simply fail. For example, suppose the regulation prevented a political sign for Candidate A, but permitted signs for Candidate B. Surely that would only take a cursory examination but also most assuredly, it would be facially unconstitutional. The court went on to examine this concept a little further, selecting several hypotheticals:

Digital sign in front yard that says: “Sally makes quilts here and sells them at 3200 Main Street”

Digital sign in the front yard that says “we love hamburgers” and contains the logo and address to a Whataburger location 2 miles away

How can one determine whether a digital billboard that says “God loves you” is on- or off- premise?

You get the general idea. The court next considered whether the commercial speech exception applied under the circumstances of this case and concluded that it did not. The court essentially held just because most billboards display commercial messages does not mean that the sign regulation does not apply with equal force to both commercial and noncommercial messages. For example, recall that the Sixth Circuit decision involved billboards which were for the most part displaying noncommercial messages.

Finally, the purported justifications for the Sign Code provisions, protecting the aesthetic values and public safety, simply don’t hold up under the strict scrutiny test. There is no proof or argument that one type of sign was a greater eyesore than the other; furthermore, there was no proof that an off-premise digital sign posed a greater risk to public safety than in on-premise digital sign. As a result the relevant provisions of the Sign Code were declared unconstitutional as violative of the First Amendment.

I’d encourage you to read especially the Sixth Circuit decision in Thomas as well as this Fifth Circuit decision. They are quite interesting. Even more important is attempting to determine what impact this has on local land use planning regulations. Most zoning sign regulations have some dependence on the on- versus off-site distinction. In light of these cases, are those sign regulations still valid?

My thanks to my old friend, Sam Edwards, who told me about this very interesting case.