Planning and Zoning for First Amendment-Protected Land Uses. APA National Conference / May 8, 2017 New York City

Transcription

1 Planning and Zoning for First Amendment-Protected Land Uses APA National Conference / May 8, 2017 New York City

2 Your Presenters Brian Connolly Otten Johnson Robinson Neff + Ragonetti, P.C. Denver, Colorado Evan Seeman Robinson & Cole LLP Hartford, Connecticut Noel Sterrett Mauck & Baker, LLC Chicago, IL 2

3 Program Outline Review First Amendment legal issues in land use law Religious land uses and RLUIPA Adult business regulation Questions and answers 3

4 First Amendment and Land Use Sign regulation Public forum doctrine Government buildings, parks, property Parades Government speech Adult businesses Religious land uses Free Exercise Clause Establishment Clause RLUIPA Source: New York Times 4

5 General Reminders Government regulation of speech and religious land uses loses the normal presumption of constitutionality and is subject to heightened scrutiny First Amendment litigation is common, expensive, and risky Most local government regulations contain at least a few provisions of questionable constitutionality, particularly following Reed 5

6 Free Speech Issues in Local Government Regulation

7 Free Speech Concepts Content (or message) neutrality Time, place or manner regulations Commercial vs. noncommercial speech Off-site vs. on-site signs Bans and exceptions Permits and prior restraints Vagueness and Overbreadth Public forum doctrine

8 Content Neutrality above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. --Police Dep t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)

9 Content Neutrality Content neutrality looks at subject matter Viewpoint neutrality looks at point of view a ban on all signs is content neutral and viewpoint neutral a ban on all political signs is not content neutral but is viewpoint neutral a ban on signs that criticize government is neither content neutral nor viewpoint neutral 9

10 Content Neutrality Signs advocating for or against any matter of political interest may be displayed for a maximum of 21 days, and may be no greater than 12 square feet in area. As enforced against this sign, is this code provision content neutral? Viewpoint neutral? 10

11 Examples of Time, Place and Manner Regulations Maximum size/height Maximum number per lot/building/support structure Specific sign locations corner lots setbacks/spacing zoning districts uses corridors Prohibited signs Regulations of materials, lighting and form internal/external lighting flashing/animation neon materials/colors* monument/pole signs design review and incentives Cabinet/channel letter wall signs *Note: Federal protection of color of federally-registered trademarks/logos.

12 Content Neutrality: Implications A regulation that is content-based will be subject to strict scrutiny: compelling governmental interest, least restrictive means, and narrow tailoring A regulation that is content-neutral will be subject to intermediate scrutiny: significant/important governmental interest unrelated to suppression of speech, substantially related means, narrow tailoring, and ample alternative channels for communication Regulations of commercial speech are subject to the Central Hudson intermediate scrutiny test 12

13 Reed v. Town of Gilbert: Background Source: azcentral.com Sign code contained 23 exemptions from permitting, including for political, ideological, and temporary event signs Different size, height, numerical, and display time limitations for each of the foregoing categories 13

14 Reed v. Town of Gilbert: Outcome Distinctions between forms of noncommercial speech are content based Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. [C]ommonsense meaning of the phrase content based requires a court to consider whether a regulation of speech on its face draws distinctions based on the message a speaker conveys. 14

15 Reed v. Town of Gilbert: Outcome Apply strict scrutiny Law was not narrowly tailored to Town s proffered interests Town failed to show that limiting temporary event signs more than other temporary signs reduced visual clutter, etc. 15

16 Commercial Speech Doctrine Commercial speech is reviewed differently from noncommercial speech Commercial speech gained First Amendment protection in 1975 Content neutrality not required (but ) Central Hudson test: (1) lawful speech, (2) substantial governmental interest, (3) regulation must directly advance governmental interest, and (4) no more extensive than necessary 16

17 Prior Restraint Two ways sign regulations could be unconstitutional under the prior restraint doctrine: Lacking procedural safeguards sign regulations require a brief timeframe for permit application review Unbridled discretion sign regulations lack definite standards for review of permit applications 17

18 Public Forum Doctrine Classifications of public property Traditional public fora: sidewalks and public parks, content neutrality required Designated public fora: content neutrality required Limited public fora: viewpoint neutrality required, reasonable in light of forum s purpose Nonpublic fora/nonforum: no limitation on government regulation 18

19 Religious Land Uses and RLUIPA 19

20 What is religious exercise or a religious land use? The term religious exercise includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose. 20

21 What is religious exercise or a religious land use? Examples: Places of religious assembly, homeless shelters, food pantries, meditation centers, religious schools, and various non-profit religious uses. 21

22 Religious Land Uses Are Seen as Net Loss and Not Part of the plan Graphic created by Christianity Today based on research conducted by Dr. Ram Cnaan of University of Pennsylvania Zoning Map of City of Elmhurst, IL 22

23 Religious Assemblies Are Singled Out Some plans are expressly hostile to religious assemblies Unequal treatment (Harder on religious assemblies than other assembly uses) Targeted for adverse treatment. E.g. Comprehensive plan for West side of Milwaukee Regulating churches vs. places of worship Regulating places of worship vs. assembly uses generally The one-size fits all problem. 23

24 Types of RLUIPA Claims Substantial Burden - 42 U.S.C. 2000cc(a) Equal Terms - 42 U.S.C. 2000cc(b)(1) Nondiscrimination - 42 U.S.C. 2000cc(b)(2) Exclusions and Limitations - 42 U.S.C. 2000cc(b)(3) 24

25 What to look for and avoid (Exclusion and Unreasonable Limitations) no zone where a religious assembly can locate as a permitted use ; (Unequal Treatment) Assembly uses treated differently and non-religious assemblies treated more favorably, (One Size Fits All) Code regulates churches and lumps all other religious groups into same category no matter their faith practices or size (Discrimination) Local politics, racial and religious hostility 25

26 Kings Tabernacle v. Town of Johnston, RI 26

27 Adult Business Land Uses 27

28 First Amendment Protection A remark attributed to Voltaire characterizes our zealous adherence to the principle that the government may not tell the citizen what he may or may not say. Referring to a suggestion that the violent overthrow of tyranny might be legitimate, he said: I disapprove of what you say, but I will defend to the death your right to say it. Source: S. Tallentyre, The Friends of Voltaire 199 (1907) 28

29 But How Much Protection? Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment. Source: Young v. American Mini Theatres, Inc. (1976) 29

30 Young v. American Mini Theatres, Inc. (1976) Addressed the issue Can city of Detroit differentiate between motion picture theatres that exhibit sexually explicit adult movies and those which do not? 30

31 American Mini Theatres, Inc. (continued) Even though the determination of whether a particular film fits that characterization turns on the nature of its content, we conclude that the city s interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures. 31

32 American Mini Theatres (continued) What is the Secondary Effects Doctrine? Content neutral if focus is on negative secondary effects rather than speech Intermediate (not strict) scrutiny applies In the opinion of urban planners and real estate experts who supported the ordinances, the location of several such businesses in the same neighborhood tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and businesses to move elsewhere. 32

33 City of Renton v. Playtime Theatres, Inc. (1986) Cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton. It is not our function to appraise the wisdom of [the city s] decision to require adult theaters to be separated rather than concentrated in the same areas. [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. 33

34 Playtime Theatres, Inc. (continued) What evidence must a municipality point to? Need not perform own studies Can rely on studies from other cities (city of Renton relied on studies performed by Seattle!) If relying on reports from other cities, can still regulate in different manner than those cities 34

35 Playtime Theatres, Inc. (continued) How much land must be made available for adult uses? [A]lthough we have cautioned against the enactment of zoning regulations that have the effect of suppressing, or greatly restricting access to, lawful speech, we have never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices. 35

36 City of Los Angeles v. Alameda Books (2002) Municipalities can rely on evidence that is reasonably believed to be relevant to the secondary effects that they seek to address. 36

37 Reed v. Town of Gilbert (2015) Looks like Secondary Effects Doctrine is in for a rude awakening! 37

38 Impact of Reed on Adult Use Regulation Wait.No impact?! How is that possible!? We don t think Reed upends established doctrine for evaluating regulation of businesses that offer sexually explicit entertainment, a category the Court has said occupies the outer fringes of First Amendment protection. BBL, Inc. v. City of Angola (7th Cir. 2015) [I]t is doubtful that Reed has overturned the Renton secondary effects doctrine. Free Speech Coalition, Inc. v. United States (3d Cir. 2016) 38

39 BBL, Inc. v. City of Angola (7th Cir. 2015) Local governments are usually smart enough to invoke secondary effects in their regulation of adult businesses. 39

40 Other Post-Reed Cases Cricket Store 17, LLC v. City of Columbia (4th Cir. 2017) (no reference to Reed; applies secondary effects doctrine) Phantom Ventures, LLC v. DePriest (D. Mass 2017) (cannot rely on post-hoc justifications re negative secondary effects) Cornell Restaurant Ventures, LLC v. City of Oakland Park (11th Cir. 2017) (no reference to Reed; applies secondary effects doctrine) 40

41 How to Regulate Adult Uses Step 1: Perform studies or identify studies re negative secondary effects Step 2: Conduct inventory of land for adult business use If only small amount of land available, consider adding more Conduct annual inventory to ensure availability of land 41

42 How to Regulate Adult Uses (continued) Step 3: Use studies as justification for ordinances regulating adult business uses (no post-hoc justifications!) 1. No outright ban (time, place, manner restriction is okay) 2. Dispersal and concentration requirements 3. Hours of operation 4. Amortization periods (if no grandfathering) 5. Allow as-of-right (not by special permit) a. Can help avoid prior restraint claim 42

43 Other First Amendment Issues Artwork Historic districts Government speech 43

44 Artwork Control of murals, statues, etc. through sign or building regulation Nuisance control ordinances prohibit graffiti, restrict weeds and junk Procurement and disposition of works of art Required public art and percent-for-art ordinances 44

45 Artwork Cent. Radio, Inc. v. City of Norfolk, 811 F.3d 625 (4 th Cir. 2016) Exemption for works of art which in no way identify or specifically relate to a product or service. Challenge to ordinance related to anti-eminent domain mural Source: ij.org 45

46 Artwork Broad First Amendment protection for works of art [O]ne man s vulgarity is another s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Cohen v. California, 403 U.S. 15 (1971) Limitations on First Amendment protection for obscenity, fighting words, incitement, defamation, commercial merchandise Issues: Content based regulation of artwork on private property What government interests support artwork regulation? Regulation of sales of artwork or artistic performance on public streets Limitations on government procurement and disposition of artwork 46

47 Historic Districts Prohibitions on some forms of uses in historic districts to maintain historic integrity of the district Buehrle v. City of Key West, 813 F.3d 973 (11th Cir. 2015) Key West prohibited tattoo parlors in its historic district Tattooing is First Amendment-protected speech Restriction on tattoo parlors was found to be content neutral, but blanket ban was not narrowly tailored to serve the city s interest in protecting the historic district Similar issues arise in religious use regulation in historic districts 47

48 Government Speech Speech by the government is not subject to First Amendment limitations Establishment Clause is the only limit What makes it government speech? Speech historically associated with the government Does the observer associate the speech with government? Maintenance of effective control Donated monuments in public parks, license plates, rest area kiosks, etc. are government speech 48

49 Resources Rocky Mountain Sign Law ( 49

50 Resources RLUIPA Defense ( 50

51 Additional Resources Daniel Mandelker, John Baker and Richard Crawford, Street Graphics and the Law, revised edition (American Planning Association, forthcoming 2015) Local Government, Land Use and the First Amendment, Brian Connolly, ed. (ABA, forthcoming 2017) Brian J. Connolly & Alan C. Weinstein, Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty, 47 Urb. Law. 569 (2015) 51

52 Questions and Answers Brian Connolly (303) / bconnolly@ottenjohnson.com Evan Seeman (860) / eseeman@rc.com Noel Sterett (312) / nsterett@mauckbaker.com Source: Rory Bolger 52