United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Neighborhood Enterprises, Inc.; *
Sanctuary in the Ordinary; Jim Roos, *
Plaintiffs - Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
City of St. Louis; St. Louis *
Board of Adjustment, *
Defendants - Appellees, *
Shari Cunningham; George Hitt; *
Joe Klitzing; Irene Soll; John Caruso; *
Mary Hart Burton; St. Louis City *
Department of Public Safety, Division *
of Building and Inspection, *
International Municipal Lawyers *
Association; Scenic America, Inc.; *
Scenic Missouri, Inc., *
Amici on Behalf of *
Submitted: February 16, 2011
Filed: July 13, 2011
Before SMITH, GRUENDER, and BENTON, Circuit Judges.
SMITH, Circuit Judge.
Neighborhood Enterprises, Inc. ("Neighborhood"), Sanctuary In The Ordinary
(SITO), and Jim Roos (collectively, "Sanctuary") filed suit against, inter alia, the City
of St. Louis ("City") and St. Louis Board of Adjustment ("Board") challenging the
Board's denial of a sign permit. Sanctuary further challenged the constitutionality of
provisions of Chapter 26.68 of the Revised Code of the City of St. Louis ("zoning
code") upon which the permit denial was based. Sanctuary asserted federal and state
constitutional claims pursuant to 42 U.S.C. Â§ 1983 and the Missouri Declaratory
Judgments Act, Missouri Revised Statute Â§ 527.010. It also sought a writ of certiorari
pursuant to Missouri Revised Statute Â§ 89.110, which provides for judicial review of
"illegal" Board decisions. The district court granted summary judgment to the City
and the Board, finding, inter alia, that the zoning code's restrictions on signs
withstood constitutional scrutiny with respect to the Board's denial of Sanctuary's sign
permit. Because we conclude that the challenged provisions of Chapter 26.68 of the
zoning code are impermissibly content based and fail strict scrutiny, we now reverse
and remand for further proceedings consistent with this opinion.
A. Factual Background1
Neighborhood, a property-management company, manages the properties of
SITO, a non-profit organization. Neighborhood describes itself as a "self-supporting
housing ministry that manages rental housing mostly on the near south side of St.
Louis." Roos is the founder of SITO and Neighborhood, and he is also the coordinator
Before the district court, the parties stipulated to the following facts in their
"Joint Statement of Uncontroverted Material Facts."
[End Page 2]
and spokesperson for the Missouri Eminent Domain Abuse Coalition (MEDAC), a
civic organization concerned about eminent-domain practices.
Roos describes himself as a critic of the City's use of eminent domain for
private development. Roos and MEDAC, with tenant approval, commissioned a sign/mural2 for the south side of 1806-08 South 13th Street, a SITO-owned building
in the Near Southside Redevelopment Area. Roos described the sign/mural as a
"poignant way . . . to make a statement." The sign/mural consists of the words "End
Eminent Domain Abuse" inside a red circle and slash. The design of the sign/mural
is similar to the design that MEDAC uses in its literature, buttons, and other materials.
The sign/mural is approximately 363 or 369 square feet in area. It is visible from,
among other areas, Interstates 44 and 55 and the Soulard neighborhood.
On April 10, 2007, the City's Division of Building and Inspection ("B&I")
issued a citation to SITO, care of Neighborhood, declaring the sign/mural an "illegal sign." The citation explained that "[p]ermits must be acquired for signs of this type"
and instructed SITO how it could obtain a permit. Consistent with the instructions in
B&I's April 10, 2007 citation, SITO and Neighborhood filed a sign-permit application
with B&I on May 14, 2007.
On May 30, 2007, the City's zoning administrator sent SITO a letter denying
its sign permit application because it did not meet certain requirements of the zoning
code. The "Basis for Denial" accompanying the letter stated that the building on which
the sign/mural was painted was zoned "D," or "Multiple Family Dwelling District,"
and identified as the "applicable Zoning Code provisions" Â§Â§ 26.68.010;
26.68.020(17), (20), (21), (22) and (24); and 26.68.080(A), (B), (D) and (E)(2). A
The City's position is that the object at issue is a "sign," while Sanctuary refers
to the object as a "mural."
[End Page 3]
subsequent explanation of the zoning administrator's basis for denial, admitted as
evidence at the Board hearing, stated:
Appellant has painted a wall sign on the building at this address. The
wall face of the building on which the sign has been painted does not
have street frontage as defined in the Zoning Code, and is therefore not
entitled to signage. In the 'D' zoning district any signage can only be
erected, altered and maintained for and by a conforming use and must be
clearly incidental to the operation of the conforming use; this property
is assessed as a two-family dwelling. The maximum allowable square
footage for any sign within this district is 30 sq. ft.; based on the
diameter of the circular sign it is approximately 363 sq. ft. in area.
Variances will be required in order to permit this sign.
The May 30, 2007 letter denying SITO's sign-permit application stated that SITO
could appeal the denial to the Board, which SITO did on June 5, 2007.
On July 11, 2007, the Board heard SITO's appeal of the permit denial. At the
hearing, SITO's attorney argued, inter alia, that SITO's sign/mural does not require
a permit because, as a "work of art" or a "civic symbol[ ] or crest[ ]," it is exempted
from the zoning code's definition of "sign." In the alternative, counsel argued that the
zoning code's sign regulations violate the free-speech protections of the United States
and Missouri Constitutions.
The Board upheld the denial of the sign permit on July 25, 2007. The Board's
"Findings of Fact" stated that the "[p]roposed sign is in conflict with Sections
26.68.010, 26.68.020 and 26.68.080 of the Zoning Code of the City of St. Louis." The
Board's "Conclusion of Law and Order" stated:
The sign is located in Zone D, the multiple family dwelling district, and
the sign is located on a residential building. The sign is substantially
larger than the footage allowed by the Zoning Code and it is located on
[End Page 4]
the side of the building in contravention to the requirements of the
Zoning Code. Board Member Hitt made a motion to uphold the decision
to deny the sign permit as the size and location of the sign were in
violation of the Zoning Code.
The above motion, made by George Hitt and seconded by Joe Klitzing
was passed by a 4-0 vote of the Board, with Board member Caruso
The City justified its outdoor sign restrictions principally on concerns for traffic safety and aesthetics. Neither the City nor the Board is aware of any reports, studies,
or memoranda (1) concerning or supporting the regulation of outdoor signs in Chapter
26.68 of the zoning code, (2) regarding whether the City's restrictions on outdoor signs affect traffic safety, (3) regarding whether the City's restrictions on outdoor signs affect the aesthetics of the City or surrounding neighborhood, (4) regarding
whether the City's restrictions on outdoor signs affect property values in the City, or
(5) discussing the impact of SITO's sign/mural on the flow of traffic on any street or
highway. The City and the Board are unaware of any traffic incidents in which any
driver involved mentioned SITO's sign/mural, or any "painted wall sign," as
contributing to such incident. Further, the City and the Board have no (1) internal
memoranda or communications, and no communications to or from them, discussing
the adoption or enforcement of the regulations of outdoor signs in Chapter 26.68 of
the zoning code or (2) minutes or transcripts of any City Board of Aldermen meeting,
including any committee or subcommittee of such Board, concerning or relating to the
regulation of outdoor signs in Chapter 26.68 of the zoning code.
Section 26.68.020(17) of the zoning code provides that "[i]f for any reason it
cannot be readily determined whether or not an object is a sign, the Community
Development Commission shall make such determination." St. Louis City Ordinance
64687 provides that "all functions and duties performed, or powers exercised prior to
the effective date of this ordinance by personnel of the Community Development
[End Page 5]
Commission pursuant to any City ordinance shall be performed by personnel of the
Planning Commission as assigned by the Planning Commission." The City has no
written policy, other than Chapter 26.68 of the zoning code, for use in determining if
(1) a sign contains the "symbol[ ] or crest [ ]" of a civic organization, as those terms
are used in Â§ 26.68.020(17)(d), or (2) if something is "art," as that term is used in
The City's policies for implementing the sign regulations are contained in
Chapter 26.68 of the zoning code.
B. Procedural Background
Following the Board's decision, Sanctuary filed suit in state court, challenging
the Board's denial of the sign permit and the zoning code provisions upon which the
denial was based. Sanctuary asserted federal and state constitutional claims pursuant
to 42 U.S.C. Â§ 1983 and the Missouri Declaratory Judgments Act, Missouri Revised
Statute Â§ 527.010. Specifically, Sanctuary's complaint stated that it is brought pursuant
to the First and Fourteenth Amendments of the United States Constitution; Article I,
Â§ 8 of the Missouri Constitution; The Civil Rights Act of 1871, 42 U.S.C. Â§ 1983; and
Missouri Revised Statute Â§ 527.010. Sanctuary further stated that it seeks relief
against the enforcement of the zoning code's sign regulations and the practices and
policies of the City that allegedly?facially and as applied?deny Sanctuary the
opportunity to engage in constitutionally protected communications.
Sanctuary's complaint alleged that (1) the zoning code's sign regulations are
facially invalid under the United States Constitution and the Missouri Constitution,
respectively; (2) the zoning code's sign regulations are unconstitutional as applied
under the United States Constitution and the Missouri Constitution; (3) the City and
Board exercised prior restraints in violation of Sanctuary's free speech rights under the
United States Constitution and the Missouri Constitution, respectively; and (4) the
[End Page 6]
City and the Board deprived Sanctuary of equal protection pursuant to the Fourteenth
Amendment of the United States Constitution.
In its complaint, Sanctuary sought (1) reversal of the Board's denial of the
permit; (2) a declaration that the zoning code's sign regulations violate the First and
Fourteenth Amendments of the United States Constitution and Article I, Â§ 8, of the
Missouri Constitution on their face and as applied to Sanctuary; (3) a judgment
declaring that the Board's act denying the sign permit application illegally violated the
First and Fourteenth Amendments and Article I, Â§ 8, of the Missouri Constitution; (4)
a judgment declaring that the zoning code's sign regulations violate the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution; (5)
a judgment permanently enjoining the City and the Board from enforcing the zoning
code's sign regulations generally and as against Sanctuary in association with the
mural at 1806-08 South 13th Street, St. Louis, Missouri; (6) nominal damages in the
amount of $1.00; and (7) attorneys' fees and costs pursuant to 42 U.S.C. Â§ 1988.
Sanctuary also sought a writ of certiorari pursuant to Missouri Revised Statute
Â§ 89.110, which provides for judicial review of "illegal" Board decisions. Sanctuary's
petition for writ of certiorari requested that the district court conduct a de novo
administrative review of the Board's decision. The petition alleged that the Board's
decision was illegal because (1) it utilized a facially unconstitutional zoning code to
limit Sanctuary's freedom of speech, (2) the zoning code is unconstitutional as applied,
(3) it was an illegal exercise of prior restraints, and (4) it deprived Sanctuary of equal
protection under the law.
The district court granted summary judgment in favor of the City and the Board,
concluding that (1) the Board's decision denying Sanctuary's sign permit "was not
arbitrary, capricious, unreasonable, unlawful, or in excess of the Board['s]
. . . jurisdiction," and (2) "[t]he restrictions placed on signs in the Sign Code withstand scrutiny under [Sanctuary's] constitutional challenges with respect to the denial of [its]
[End Page 7]
sign permit." Neighborhood Enters., Inc. v. City of St. Louis, Mo., 718 F. Supp. 2d 1025
, 1040 (E.D. Mo. 2010).
On appeal, Sanctuary argues that the zoning code's sign regulations (1)
impermissibly burden free speech, in violation of the First Amendment of the United
States Constitution and Article I, Â§ 8, of the Missouri Constitution3; (2) effect a prior
restraint on its speech; and (3) violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. Sanctuary also contends that the district
court erroneously declined to issue a writ of certiorari and enter judgment for
Sanctuary on its claims under Missouri Revised Statute Â§ 89.110.
We review de novo a district court's grant of summary judgment. Advantage
Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793
, 798 (8th Cir. 2006). A district
court should not grant summary judgment "unless there is no issue of material fact and
the moving party is entitled to judgment as a matter of law." Id. "An issue of fact
cannot result from mere denials or conclusory allegations in the pleadings but must
be based on specific factual allegations." Id.
As a threshold matter, the City and Board argue that the district court correctly
determined that Sanctuary may only challenge those provisions of the zoning code
that the Board actually applied to Sanctuary in denying the sign permit. See
Neighborhood Enters., Inc., 718 F. Supp. 2d at 1036 n.7 ("Petitioners may only
Missouri courts have not decided "'whether the circumference of Mo. Const.
art. I, Â§ 8 is identical to that of the First Amendment in all instances.'" BBC Fireworks,
Inc. v. State Highway & Transp. Comm'n, 828 S.W.2d 879, 881 (Mo. 1992) (en banc)
(quoting State v. Roberts, 779 S.W.2d 576, 579 (Mo. 1989) (en banc)). For purposes
of this appeal, we will treat the federal and state claims in the present case as
[End Page 8]
challenge those provisions of the Code which were actually applied to them.").4
According to the City and the Board, Sanctuary cannot show a causal connection
between its purported injury and the provisions of the zoning code not applied to it.
See Advantage, 456 F.3d at 801 ("Since most of the content based restrictions and
procedural mechanisms which Advantages claims violate the First Amendment rights
of other parties were not factors in the denial of its own permit applications, it cannot show causation with respect to them.").
An "inescapable threshold question" is whether Sanctuary "has established the
traditional elements of Article III standing." Id. at 799. Federal jurisdiction is limited
"to cases and controversies, and the 'core component of standing is an essential and
unchanging part of the case-or-controversy requirement.'" Id. (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555
, 560 (1992)).
"[C]onstitutional standing consists of three elements: 1) an injury in fact which
is 'actual, concrete, and particularized'; 2) a causal connection between that injury and
defendant's conduct; and 3) a likelihood that the injury can be redressed by a favorable
decision." Id. at 798?99 (quoting Lujan, 504 U.S. at 560?61). "To establish causation
a plaintiff must show that its injury is 'fairly traceable' to a challenged statutory
provision." Id. at 801 (quoting Republican Party of Minn. v. Klobuchar, 381 F.3d 785
792 (8th Cir. 2004)).
Here, Sanctuary requested a sign permit because the City instructed it to do so.
Thereafter, the City's zoning administrator denied Sanctuary's application based upon
As a result, the district court concluded that "[n]either the definition of 'sign'
in the Code, (on 26.68.020(17)), nor the restrictions placed on signs, (Section
26.68.010) infringe or impinge, facially or as applied to Petitioners, their
Constitutionally protected political speech." Id. at 1036 (emphasis added) (footnote
[End Page 9]
Â§Â§ 26.68.010; 26.68.020 (17), (20), (21), (22), and (24); and 26.68.080(A), (B), (D),
and (E)(2)of the zoning code.5 Additionally, the zoning administrator stated that the
building on which the sign/mural was painted was zoned "D"?"Multiple Family
Dwelling District." The zoning administrator testified that "he reviewed the
application for the sign and determined that the object in question fit the City's
meaning of a sign, as defined by the Zoning Code." (Emphasis added.) He was "able
to determine, based on the Zoning Code, that the object was a sign, which then did not
trigger the provision contained in Section 26.68.020 17 [sic], requiring the City's
Planning Commission to make such determination." The Board then upheld the denial
of the sign permit because the "[p]roposed sign is in conflict with Sections 26.68.010,
26.68.020 and 26.68.080 of the Zoning Code of the City of St. Louis." (Emphasis
added.) Because these provisions were "factors in the denial of its own permit
application[ ]," Sanctuary can "show causation with respect to them." Advantage, 456
F.3d at 801.
Moreover, Sanctuary "has standing to challenge those portions of the Sign Code
which 'provide the basic definitional structure for the terms used in [the violated sections] and which more generally define the scope of signs allowed by [the violated sections].'" Bonita Media Enters., LLC v. Collier Cnty. Code Enforcement Bd., No.
2:07-cv-411-FtM-29DNF, 2008 WL 423449, at *5 (M.D. Fla. Feb. 13, 2008)
(alteration in original) (quoting KH Outdoor, LLC v. Trussville, 458 F.3d 1261
(11th Cir. 2006)). Sanctuary's challenge may "include[ ] provisions discussing the
purpose and intent of the Sign Code and definitional sections." Id. (citing KH
Outdoor, 458 F.3d at 1267). We may "tak[e] into account other provisions," such as
Â§ 26.68.030 and Â§ 26.68.050,6 "that may affect the constitutionality of those
The relevant statutory sections are set forth in the Appendix at the end of this
The relevant statutory sections are set forth in the Appendix at the end of this
[End Page 10]
provisions" applied to Sanctuary. CafÃ© Erotica of Fla., Inc. v. St. Johns Cnty., 360 F.3d 1274
, 1278?79 (11th Cir. 2004). The City's designation of Sanctuary's purported
mural as a "sign" essentially acknowledges that the alleged sign fits no content
exemption under Â§Â§ 26.68.020(17)(a)?(e), 26.68.030, or 26.68.050. Bowden v. Town
of Cary, 754 F. Supp. 2d 794
, 801 (E.D.N.C. 2010).
B. Free Speech
Sanctuary asserts that the zoning code's sign regulations impermissibly burden
free speech. According to Sanctuary, the regulations "are riddled with content-based
exemptions and restrictions"; therefore, the district court erroneously concluded that
the zoning code's sign regulations are content neutral. Sanctuary avers that the
content-based sign regulations fail strict scrutiny because, under this court's precedent,
the City's interests in traffic safety and aesthetics are not "compelling" interests.
In response, the City and the Board assert that the definition of "sign" in the
zoning code is content- and viewpoint-neutral. According to the City and the Board,
Sanctuary's argument that the exceptions to the definition of "sign" make the sign
regulations content-based fails under a constitutional analysis. The City and the Board
assert that because the sign regulations are content neutral, intermediate scrutiny
applies. They contend that the sign regulations satisfy intermediate scrutiny because
they serve the significant and established governmental interests of traffic safety and
aesthetics and leave open ample alternative channels for communication of
The Free Speech Clause of the First Amendment provides that "Congress shall
make no law . . . abridging the freedom of speech . . . ." U.S. Const. amend. I. This
clause "is applicable to the political subdivisions of the states." Whitton v. City of
Gladstone, Mo., 54 F.3d 1400
, 1402 (8th Cir. 1995). The Free Speech Clause protects signs, as they are "a form of expression.'" Id. (quoting City of Ladue v. Gilleo, 512 U.S. 43
, 48 (1994)). But "signs 'pose distinctive problems that are subject to
[End Page 11]
municipalities' police powers. Unlike oral speech, signs take up space and may
obstruct views, distract motorists, displace alternative uses for land, and pose other
problems that legitimately call for regulation.'" Id. at 1402?03 (quoting City of Ladue,
512 U.S. at 48).
To evaluate the constitutionality of the zoning code's sign regulations?which
constitute a restriction upon speech?"we apply the familiar framework." Id. at 1403.
"We first 'determine whether [the] regulation is content-based or content-neutral, and
then, based on the answer to that question, . . . apply the proper level of scrutiny.'" Id.
(alteration in original) (quoting City of Ladue, 512 U.S. at 59 (O'Connor, J.,
concurring)). We note that "the argument that a restriction on speech is content-neutral
because it is viewpoint-neutral has been repeatedly rejected by the Supreme Court."
Id. at 1405.
The City and the Board "contend[ ] that each challenged provision is a
constitutionally permissible time, place, and manner restriction." Id. at 1403. "A
purported time, place, and manner restriction is constitutionally permissible so long
as it is 'justified without reference to the content of the regulated speech . . . .'" Id.
(alteration in original) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288
, 293 (1984)). "Therefore, our threshold inquiry for each challenged provision of
the sign code necessarily focuses upon whether the provision at issue is a
content-based restriction and then, based upon the resolution of that question, we will
apply the appropriate level of scrutiny." Id.
Upon review, we conclude that the zoning code's definition of "sign" is
impermissibly content-based because "the message conveyed determines whether the speech is subject to the restriction." Id. at 1403?04 (citing City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410
, 429 (1993)). Put another way, to determine
whether a particular object qualifies as a "sign" under Â§ 26.68.020(17) and is therefore subject to the regulations, or is instead a "non-sign" under Â§ 26.68.020(17)(a)?(e) or
[End Page 12]
exempt from the sign regulations under Â§Â§ 26.68.030 or 26.68.050, one must look at
the content of the object. Thus, an object of the same dimensions as Sanctuary's "End
Eminent Domain Abuse" sign/mural would not be subject to regulation if it were a
"[n]ational, state, religious, fraternal, professional and civic symbol[ ] or crest[ ], or
on site ground based measure display device used to show time and subject matter of
religious services." St. Louis City Revised Code Â§ 26.68.020(17)(d). "Simply stated
[Â§Â§ 26.68.020(17), 26.68.030, and 26.68.050] [are] content-based because [they]
make[ ] impermissible distinctions based solely on the content or message conveyed
by the sign." Whitton, 54 F.3d at 1404. "The words on a sign define whether it is subject to [the sign regulations]." Id.; see also Soltanic, LLC v. City of Neptune Beach,
410 F.3d 1250
, 1266 (11th Cir. 2005) ("In short, because some types of signs are
extensively regulated while others are exempt from regulation based on the nature of
the messages they seek to convey, the sign code is undeniably a content-based
restriction on speech.").
In reaching this conclusion, we are not "required to accept legislative
explanations from a governmental entity regarding the purpose(s) for a restriction on speech without further inquiry." Whitton, 54 F.3d at 1406. "[E]ven when a
government supplies a content-neutral justification for the regulation, that justification
is not given controlling weight without further inquiry." Id. (citing City of Cincinnati,
507 U.S. at 429?30). As a result, "even if we agree with the City . . . that its restriction
is 'justified' by its interest in maintaining traffic safety and preserving aesthetic beauty,
we still must ask whether the regulation accomplishes the stated purpose in a
content-neutral manner." Id. "Although [the City's] justification for enacting [the sign
regulations] was to curtail the traffic dangers . . . and to promote aesthetic beauty, [the
City] has not seen fit to apply such restrictions to" all signs of the same dimensions.
Id. at 1407. The City has "differentiat[ed] between speakers for reasons unrelated to
the legitimate interests that prompted the regulation." Id. (quotation and citation
omitted). [End Page 13]
Because the challenged sign provisions of the zoning code are content-based
restrictions, strict-scrutiny applies. Id. at 1408.7
"With rare exceptions, content discrimination in regulations of the
speech of private citizens on private property . . . is presumptively
impermissible, and this presumption is a very strong one." City of Ladue,
 U.S. at , 114 S. Ct. at 2047 (O'Connor, J., concurring).
"[C]ontent-based restrictions on political speech 'must be subjected to the
most exacting scrutiny.'" Ward [v. Rock Against Racism], 491 U.S. [781,]
798 n. 6, 109 S. Ct. [2746,] 2758 n. 6 [(1989)] (quoting Boos [v. Barry],
485 U.S. [312,] 321, 108 S. Ct. [1157,] 1164 [(1988)]). "For the State to
enforce a content-based exclusion it must show that its regulation is
necessary to serve a compelling state interest and that it is narrowly
drawn to achieve that end." Perry Ed. Ass'n [v. Perry Local Educators'
Ass'n], 460 U.S. [37,] 45, 103 S. Ct. [948,] 955 [(1983)]. The
requirement that a restriction on speech be narrowly drawn requires the
regulation to be the "least restrictive" alternative available. Ward, 491
U.S. at 798 n. 6, 109 S. Ct. at 2758 n. 6 (quoting Boos, 485 U.S. at 329,
108 S. Ct. at 1168).
Here, the City's asserted interests are traffic safety and aesthetics. But "a
municipality's asserted interests in traffic safety and aesthetics, while significant, have
never been held to be compelling." Id.; see also Soltanic, 410 F.3d 1250
(concluding that a city's "asserted interests in aesthetics and traffic safety" are not
"compelling"); cf. Metromedia, Inc. v. City of San Diego, 453 U.S. 490
(1981) ("Nor can there be substantial doubt that the twin goals that the ordinance seeks to further?traffic safety and the appearance of the city?are substantial
governmental goals." (emphasis added)).
The City conceded at oral argument that the challenged provisions of the sign
code would not pass constitutional muster under strict scrutiny. Nevertheless, we will
independently analyze whether the challenged provisions satisfy strict scrutiny.
[End Page 14]
Furthermore, "[e]ven if we were to assume that [the City's] proffered interests
in aesthetics or traffic safety were adequate justification for content-based sign
regulations, the sign code cannot withstand strict scrutiny because it is not narrowly
drawn to accomplish those ends." Soltanic, 410 F.3d at 1267. The zoning code's sign
regulations "recite[ ] those interests only at the highest order of abstraction, without
ever explaining how they are served by the sign code's regulations generally, much
less by its content-based exemptions from those regulations." Id. The zoning code
"offer[s] no reason for applying its [sign regulations] to some types of signs but not
others." Id. In summary:
Although the sign code's regulations may generally promote aesthetics
and traffic safety, the City has simply failed to demonstrate how these
interests are served by the distinction it has drawn in the treatment of
exempt and nonexempt categories of signs. Simply put, the sign code's
exemptions are not narrowly tailored to accomplish either the City's
traffic safety or aesthetic goals.
Id. at 1268.
Therefore, the City's "sign code fails both aspects of [strict scrutiny]: the sign
code is not narrowly tailored to accomplish the City's asserted interests in aesthetics
and traffic safety, nor has our case law recognized those interests as 'compelling.'" Id.
Because we hold that the challenged provisions of the zoning code violate the
First Amendment, we need not reach Sanctuary's prior restraint and equal protection
claims, nor its argument that the district court erroneously declined to issue a writ of
certiorari under Missouri Revised Statute Â§ 89.110. See, e.g., Green Party of Conn.
v. Garfield, 616 F.3d 189
, 213 (2d Cir. 2010) ("Green Party II") ("We need not
address plaintiffs' equal protection and due process claims, for they challenge
provisions of the CFRA that we have struck down under the First
Amendment?namely, the CFRA's ban on lobbyist contributions and the solicitation
of contributions by lobbyists.").
[End Page 15]
Because we have determined that the zoning code's definition of "sign" violates
the Free Speech Clause of the First Amendment because of the presence of content-
based exemptions and exceptions, we must determine whether we may sever these
provisions from Chapter 26.68 of the zoning code or whether we must strike down the
entirety of Chapter 26.68 along with those provisions. Green Party of Conn. v.
Garfield, 616 F.3d 213
, 246 (2d Cir. 2010) ("Green Party I"). "The District Court did
not consider the severability issue because it held that each of the challenged
provisions was constitutional." Green Party II, 616 F.3d at 210. "We therefore remand
to the District Court to consider the severability issue in the first instance." Green
Party I, 616 F.3d at 248; see also Green Party II, 616 F.3d at 211?12 ("We
. . . remand to the District Court to determine whether the unconstitutional provisions
of the CFRA addressed in this opinion are severable from the remainder of the law.");
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011
, 1016 (9th Cir.
2009) ("We remand to allow the district court to determine whether the
unconstitutional provisions are severable from the remainder of Â§ 5.60."); Ackerley
Commc'ns of Mass., Inc. v. City of Cambridge, 135 F.3d 210
, 214 (1st Cir. 1998)
(explaining that "severability disputes usually turn on fact-intensive inquiries best left
to the trial court in the first instance").
Accordingly, we reverse the judgment of the district court and remand for
further proceedings consistent with this opinion.
[End Page 16]
Section 26.68.010 of the zoning code provides:
These regulations shall govern and control the erection, remodeling,
enlarging, moving, operation and maintenance of all signs by
conforming uses within all zoning districts. Nothing herein contained
shall be deemed a waiver of the provisions of any other ordinance or
regulation applicable to signs. Signs located in areas governed by several
ordinances and/or applicable regulations shall comply with all such
ordinances and regulations.
Section 26.68.020 of the zoning code defines the relevant terms from the
"Comprehensive Sign Control Regulations." It provides, in pertinent part:
For the purpose of this chapter the following terms, phrasing, words and
their deviations shall have the meaning given herein:
17. Sign. "Sign" means any object or device or part thereof situated
outdoors which is used to advertise, identify, display, direct or attract
attention to an object, person, institution, organization, business product,
service, event, or location by any means including words, letters, figures,
designs, symbols, fixtures, colors, motion illumination or projected
images. Signs do not include the following:
a. Flags of nations, states and cities, fraternal, religious and civic
b. Merchandise, pictures of models of products or services incorporated
in a window display;
c. Time and temperature devices;
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d. National, state, religious, fraternal, professional and civic symbols or
crests, or on site ground based measure display device used to show time
and subject matter of religious services;
e. Works of art which in no way identify a product.
If for any reason it cannot be readily determined whether or not an object
is a sign, the Community Development Commission shall make such
20. Sign Frontage. "Sign frontage" means the length along a ground floor
building front, facing a street or a private way accessible from a street,
which is occupied by a separate and distinct use or by the same use
which occupies the front of said building.
21. Street Front. "Street front" means any boundary line of a premises or
parcel of land that runs parallel to and within twenty (20) feet of the
right-of-way of a street or highway designated and assigned an
individual name or number by the legislative action of the municipality.
22. Street Property Line. "Street property line" means a common
boundary between private property and a dedicated street or alley.
24. Wall Sign. "Wall sign" means a sign attached to, painted on, or
erected against a wall or parapet wall of a building or structure which
extends no more than twenty-four (24) inches from the wall surface upon
which it is attached and whose display surface is parallel to the face of
the building to which the sign is attached.
Section 26.68.080 of the zoning code concerns "Signs in zone districts C, D,
and E" and provides, in relevant part:
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A. General. On premises signs may be erected, altered and maintained
only for and by a conforming use in the district in which the signs are
located; shall be located on the same premises as the conforming use and
shall be clearly incidental, customary as commonly associated with the
operation of the conforming use provided, however, that no sign of any
type shall be erected or maintained for or by a single unit dwelling.
B. Permitted Contents. Identification by letter, numeral, symbol or
design of the conforming use by name, use, hours of operation, services
offered and events.
C. Permitted Sign Types. Wall, window and ground.
D. Permitted Maximum Number. One (1) sign for each front line of the
premises on which the conforming use is located.
E. Permitted Maximum Sign Area.
2. All other uses. Total signage shall not exceed thirty (30) square feet.
Section 26.68.030 of the zoning code is entitled "Signs permitted in all district"
and sets forth 14 categories of signs exempted from the sign permit requirement. It
The following described signs are not covered by the rules and
regulations set forth below in Section 26.68.060 and a building permit
for any of the following described signs, if necessary, may be issued by
the Building Commissioner without the said Commissioner determining
if said sign complies with such rules or regulations.
A. Signs required or specifically authorized for a public purpose by any
law, statute, or ordinance; may be of any type, number, area, height,
above grade, location, illumination or animation, authorized by law,
statute or ordinance under which the signs are required or authorized.
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B. Signs of danger or a cautionary nature which are limited to: wall and
ground signs; not more than two (2) per street front for each conforming
use, or two (2) for each dwelling unit; not more than four (4) square feet
per sign in area; not more than ten (10) feet in height above grade; may
be illuminated only from a concealed light source which does not flash,
blink or fluctuate; and shall not be animated.
C. Signs in the nature of cornerstones, commemorative tables and
historical signs which are limited to: wall and ground signs; not more
than two (2) per premises; not more than six (6) feet in height above
grade; may be illuminated only from a concealed light source which does
not flash, blink, fluctuate; shall not be animated.
D. Signs which identify by name or number individual buildings within
institutional or residential building group complexes and which are
limited to: wall and ground signs; not more than four (4) signs per
building; not more than ten (10) square feet per sign in area; not more
than twelve (12) feet in height above grade; any location on the
premises; may be illuminated only from a concealed light source which
does not flash, blink or fluctuate and shall not be animated.
E. Signs in the nature of decorations, clearly incidental and customary
and commonly associated with any national, local or religious holiday;
provided that such signs shall be displayed for a period of not more than sixty (60) consecutive days nor more than sixty (60) days in any one
year; and may be of any type, number, area, height, location,
illumination or animation.
F. Signs in the display window of a business use which are incorporated
into a display of merchandise or a display relating to services offered on
the same premises and limited to: window signs; one (1) sign per five (5)
feet of window frontage; not more than eight (8) square feet per sign in
area; ground level windows only; may be illuminated only from a
concealed light source which does not flash, blink or fluctuate; shall not
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G. Signs commonly associated with and limited to information and
directions relating to the conforming use on the premises on which the sign is located, provided that each such sign is limited to: wall, window
and ground signs; not more than four (4) square feet per sign in area; not
more than eight (8) feet in height above grade; may be illuminated only
from a concealed light source which does not flash, blink or fluctuate; shall not be animated except that gauges and dials may be animated to
the extent necessary to display correct measurement.
H. No more than two (2) ground, wall or window political signs may be
erected and maintained on each premises provided that such signs shall
not be more than ten (10) feet square, shall not be more than six (6) feet
in height; shall not flash, blink, fluctuate or be animated but may be
illuminated; shall not be posted more than ninety (90) days prior to the
election to which the sign is related and shall be removed within fifteen
(15) days following the election to which the signs relate.
I. Signs which are not visible from any public right-of-way, from any
publicly owned land or from any level whatsoever of any other premises;
may be illuminated; may be animated.
J. Signs displaying only the name and address of a subdivision or of a
planned building group of at least eight (8) buildings each containing a
conforming use or uses and limited to: wall and ground signs; one (1) per street front; not more than twenty (20) square feet per face in area; not
more than six (6) feet in height above grade; may be illuminated only
from a concealed light source which does not flash, blink or fluctuate; shall not be animated.
K. Signs consisting of illuminated buildings or parts of buildings which
do not display letters, numbers, symbols or designs and limited to
illumination from a concealed light source which may not flash or blink,
but may fluctuate by a change of color or intensity of light, provided that
each change of color or dark to light to dark cycle shall have a duration
of one and one-half (11/2) minutes or longer; shall not be animated.
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L. Signs giving parking or traffic directions, provided that such signs are
limited to: wall and ground signs; one (1) sign per curb cut on the
premises; not more than six (6) square feet per face in area; not more
than six (6) feet in height above grade; may be illuminated from a
concealed light source which does not flash, blink or fluctuate; shall not
M. Temporary signs that only advertise or identify construction,
remodeling, rebuilding, development, sale, lease or rental of either a
conforming use or a designated land area shall not be required to comply
with the rules and regulations, relating to signs in their zoning district,
unless said sign is viewable from any public right-of-way for a period in
excess of six (6) months. If said sign is so viewable in excess of six (6)
months, it must be approved by the Building Commissioner as a
permanent sign under the rules and regulations set out in Section
N. Signs on trash or refuse containers.
Section 26.68.050 of the zoning code is entitled "Political signs in F through K
districts" and provides:
In addition to the signs exempted by Section 26.68.030 permits are not
required for the following political signs in the F through K zoning
A. Permitted Sign Types of Political Signs. Wall, ground, window and
B. Permitted Maximum Number of Political Signs. Three (3) signs for
each premises or designated land area on which the signs are located.
C. Permitted Area of Political Signs. No limitation.
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D. Permitted Maximum Height Above Grade of Political Signs.
Twenty-five (25) feet.
E. Permitted Location of Political Signs. No limitation.
F. Permitted Illumination of Political Signs. May be illuminated by a
concealed light source but shall not flash, blink or fluctuate.
G. Animation of Political Signs. Signs shall not be animated. (Ord.
59979 Â§ 18 (part), 1986.)
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