HomeMy WebLinkAbout04-26-2021 Item 1, AmbergCity of San Luis Obispo, City Attorney’s Office, 990 Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7140,
slocity.org
DATE: April 23, 2021
TO: Construction Board of Appeals Agenda Correspondence
FROM: Mark Amberg, Assistant City Attorney
SUBJECT: Constitutionality of City’s Prohibition of Banner Signs
The City has broad latitude to regulate matters pertaining to, among other public
concerns, the aesthetics of the City [Metro Lights, L.L.C. v. City of Los Angeles (9th Cir.
2009) 551 F.3d 898, referencing Metromedia, Inc. v. City of San Diego, U.S. 490 (1981): “It
is well-established that traffic safety and aesthetics constitute substantial government
interests.”]. Reasonable time, place and manner restrictions of “speech” are permitted,
including, specifically, the authority to regulate signs, so long as the regulations are content
neutral and don’t restrict expression because of message, ideas, subject matter or content
(Reed v. Town of Gilbert, Arizona 576 U.S 155 (2015). As noted in City of San Luis Obispo
Municipal Code (SLMC) Section 15.40.110 A., one of the purposes of the regulation of
signs under the City’s sign code is “Protecting and enhancing the character of the
community and its various neighborhoods and districts against visual blight” and because “a
proliferation of signs can seriously detract from the pleasure of observing the natural scenic
beauty of San Luis Obispo and the built environment.”
Reed v. Town of Gilbert, supra, is the guiding legal authority for the City’s regulation of
signs. In Reed v. Town of Gilbert, the Supreme Court determined that the City’s sign code
was unconstitutional because, on its face, the sign code was content based. Specifically, the
Court found that the City of Gilbert sign code at issue defined “the categories of temporary,
political and ideological signs on the basis of their messages and then subjects each category
to different restrictions. The restrictions applied thus depend entirely on the sign’s
communicative content.” (Reed v. Town of Gilbert, supra, at 156). When a sign regulation is
based on content, it is subject to a “strict scrutiny” level of review – which means it is
presumptively invalid unless the regulation is narrowly tailored to serve a compelling
governmental interest. (Reed v. Town of Gilbert).
Unlike the sign code that was found to be unconstitutional in Reed v. Town of Gilbert, the
City of San Luis Obispo sign code, and specifically its regulation of banner signs - such as
the signs on appellant’s buildings that are at issue in this appeal - is not based on content or
message. The City’s regulation of banner signs is “content neutral” and only regulates the
time, place and manner of the placement and use of banner signs, which is constitutionally
permissible.
“Banner sign” is defined under City code as:
“ . . . a flexible sign including feather banners and pennants of lightweight
fabric or similar material typically supported at two or more points and hung
on a building or otherwise suspended down or across its face, or across a
public right-of-way.”
SLMC 15.40.1000
Banner signs are prohibited under SLMC 15.40.300 B unless:
1. Approved in conjunction with an approved temporary or intermittent use, or
outdoor event permit or special event permit; or
2. Approved with a sign permit as a temporary sign pending manufacture and
installation of an approved permanent sign for not more than thirty days or within a
specified time frame as determined by the community development director; or
3. Approved by the public works director over designated rights-of-way in
compliance with Chapter 12.04 (Encroachments and Excavations); or
4. The sign is exempt under Section 15.40.200 [temporary sign in a non-residential
zone, not to exceed 10 square feet and not to exceed 120 days per calendar year].
These restrictions are not based, in any way, on the content of the signs. The restrictions are
appropriate and constitutionally permissible time, place and manner restrictions on the
placement and use of banner signs. The banners placed by appellant that are at issue in this
appeal do not meet these code requirements and therefore, violate City code.