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Signs and designs -- Time to review your ordinances 

by League General Counsel Kim Hibbard

While many municipalities engage in periodic review of their land use ordinances, recent actions by the North Carolina General Assembly and the United States Supreme Court make now an appropriate time to expedite such review.

On June 10, the General Assembly ratified legislation placing new restrictions on local authority to regulate certain aspects of residential appearance and design. The amendments to G.S. 160A-381 provide that cities may not regulate building design elements for most one- and two-family dwellings. Such elements include building color, type of exterior cladding, style of roof or porch, location and style of windows and doors (including garage doors), number and type of rooms, interior layout of rooms, and exterior nonstructural architectural ornamentation. Cities may not regulate these items, either directly or indirectly, unless affected property owners consent. Cities may still regulate height, bulk, orientation and location of a structure on the lot; the use of buffers and screening; and permitted uses of land or structures. Restrictive covenants and other private agreements among property owners are not affected by the legislation. The consent provision leaves the door open for cities to consider addressing design items through development agreements. Note that the legislation, SL 2015-86 (SB 25), became effective on June 19, and it applies to existing ordinances as well as those adopted after the effective date.

On June 18, the U.S. Supreme Court issued an opinion in Reed v. Gilbert, a case that could significantly impact local sign ordinances. The court unanimously found that a Town of Gilbert, Ariz., sign ordinance violated the free speech clause of the First Amendment because it drew distinctions between various categories of signs based on the information they conveyed. The ordinance treated temporary directional signs less favorably than political or ideological signs, subjecting them to more stringent restrictions on size, location and duration. The Court determined that the distinctions drawn by the ordinance were content based, and therefore subject to a strict scrutiny test, which requires that the restrictions on speech be narrowly tailored to serve a compelling government interest. The ordinance failed strict scrutiny because the governmental interests asserted by the town—preserving aesthetic appeal and traffic safety—were highly underinclusive. That is, temporary directional signs were no greater an eyesore and no greater a threat to public safety than ideological or political signs.

Most sign ordinances contain differential treatment for some categories of signs, and municipalities must now consider whether these distinctions are impermissibly content based under the case. This might involve major changes to your ordinance, depending on how it is structured. The opinion does not provide a clear road map for comprehensive revisions. Writing for the majority, Justice Clarence Thomas stated that there are ample content-neutral options available to resolve problems with safety and aesthetics, such as regulating size, building materials, lighting, moving parts, and portability as well as prohibiting signs on public property if done in an evenhanded manner. Justice Samuel Alito’s concurrence, joined by two other justices, offers a list of further suggestions on regulations that would not be considered content based, such as those distinguishing between free-standing and attached signs, lighted and unlighted signs, fixed-message and changing signs, and on- and off-premises signs.

Land use provisions differ widely from place to place and each municipality will need to carefully review its own ordinances. We encourage you to engage your planning staff or consultant and your municipal attorney to consider whether your ordinance comports with the recent legislation and court ruling.