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Chapter 2. Legal Issues in Sign Regulation Sign regulation,like zoning,is carried out by the govern- It should be noted that sign law varies from state to state ment under the police power.The police power is the power far more than other aspects of zoning law.Thus,early in the to regulate and, in some cases,prohibit private activity in process of preparing a new set of sign regulations,planners order to protect the health,safety,and general welfare of the and public officials should consult with their local govern- public at large.It is reserved for the individual states by the ment attorney regarding such issues as amortization of non- Constitution and granted by each state to its various units conforming signs and the aesthetic foundations for of local government. regulation. Any regulation based on the police power must advance This chapter includes a discussion of important decisions some public interest related to the preservation of the public of the U.S. Supreme Court, the lower federal courts, and health, safety, and general welfare. Thus, a fundamental some state courts. Specifically, the chapter attempts to issue in any police power case is whether;in fact,the regula- answer the following questions: tion advances such a public interest.Courts have upheld sign What governmental interests are necessary to sustain sign regulation under two separate aspects of the police power. First,because signs may distract drivers,sign regulation has regulation?Is the promotion or protection of an aesthetic often been upheld as a traffic safety measure.Second,some standard alone sufficient or must other purposes be ad- court decisions,particularly more recent ones,have relied vanced7 on the power of a community to maintain or improve its ap- To what extent must a relationship between the regulation pearance through aesthetic regulations that are related to the and the governmental interest it purports to protect or ad- general welfare rather than to any particular health or safety vance be shown,and,importantly,who must prove the issue. relationship? Sign regulation raises significant constitutional issues. Because signs are a form of communication, they are pro- In view of the First Amendment guarantee of freedom of tected under the First Amendment.Because they are a form speech and expression, to what extent may a sign or- of property,signs are protected from any uncompensated dinance regulate signs based on the content of the sign's "taking"under the Fifth Amendment.The various and often message? complex methods by which communities have'tried to To what extent may local governments require modifica- regulate the use,location,number,message portrayed,size, tion or elimination of signs that do not conform with a and design of signs has produced a steady-amount of litiga- new sign regulation? tion in both the state and federal courts. This chapter presents an overview of the recurring legal What is the permissible extent of regulations concerning issues in sign regulation.It provides a general background sign structure,size,lighting,materials,and location upon in sign law for planners and local officials considering the a particular piece of property? adoption of new sign regulations.It is far from a comprehen- sive treatment of the subject.s THE GUIDELINES PROVIDED BY THE U.S.SUPREME COURT 5.Daniel Mandelker provides a thorough documentation and analysis Signs area form of communication.Thus,the dominant of sign law in the revised edition of Street Graphics and the Law. A legal issue confronting sign regulation is the guarantee of penetrating legal analysis of the First Amendment issues in zoning regula- freedom of speech under the First Amendment to the United tion by Kenneth Pearlman is set forth in"Zoning and the First Amendment," Urban Lawyer 16(Spring 1984),217.Attorneys representing local govern- States Constitution.On matters involving the Constitution, ments in the adoption of new sign regulations and/or in litigation would the Supreme Court is the ultimate arbiter.This section in- be well advised to consult these valuable resources. cludes an examination of some important recent decisions 17