Summary
holding a similar ordinance governing the placement and display of signs on private, residential property constitutional—even though the ordinance contained content-based exceptions—because it was narrowly tailored to further town's substantial interests and the exceptions were not unconstitutionally vague
Summary of this case from Ashby v. City of CharlotteOpinion
No. 11–1480.
2013-01-22
Dawn D. BROWN, in her capacity as Administratrix of the Estate of William David Bowden, Plaintiff–Appellee, v. TOWN OF CARY, Defendant–Appellant. The North Carolina League of Municipalities; Virginia Municipal League; Municipal Association of South Carolina; Virginia Association of Counties; International Municipal Lawyers Association; Scenic America, Inc., Amici Supporting Appellant, The North Carolina Institute for Constitutional Law, Amicus Supporting Appellee.
J.A. 339. Id. at 366 (quoting Covenant Media, 493 F.3d at 433). Distilling this three-part test into one succinct formulation of content neutrality, if a regulation is “justified without reference to the content of regulated speech,” Hill, 530 U.S. at 720, 120 S.Ct. 2480 (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746), “we have not hesitated to deem [that] regulation content neutral even if it facially differentiates between types of speech.” Wag More Dogs, 680 F.3d at 366.
ARGUED:Elizabeth A. Martineau, Martineau King PLLC, Charlotte, North Carolina; William D. Brinton, Rogers Towers, PA, Jacksonville, Florida, for Appellant. Mark Russell Sigmon, Graebe Hanna & Sullivan, PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF: Lisa C. Glover, Town of Cary, Cary, North Carolina, for Appellant. Katherine L. Parker, American Civil Liberties Union of North Carolina Legal Foundation, Raleigh, North Carolina, for Appellee. Patrick H. Flanagan, Cranfill, Sumner & Hartzog, Charlotte, North Carolina; Randal R. Morrison, Sabine & Morrison, San Diego, California; John M. Baker, Greene Espel PLLP, Minneapolis, Minnesota; Dana K. Maine, Freeman Mathis & Gary, LLP, Atlanta, Georgia, for Amici Supporting Appellant. Jeanette K. Doran, Executive Director and General Counsel, North Carolina Institute for Constitutional Law, Raleigh, North Carolina, for Amicus Supporting Appellee.
Before NIEMEYER and , Circuit Judges, and MAX O. COGBURN, JR., United States District Judge for the Western District of North Carolina, sitting by designation.
Reversed and remanded by published opinion. Judge wrote the opinion, in which Judge NIEMEYER and Judge COGBURN joined.
OPINION
, Circuit Judge:
The Town of Cary, North Carolina (the “Town”), appeals the district court's invalidation of its municipal sign ordinance as it applied to resident William David Bowden (“Bowden”). The district court held that the ordinance was a content based constraint on Bowden's First Amendment rights. We disagree. Because the ordinance regulates speech for reasons independent of content, it is a content neutral restriction subject to intermediate scrutiny. Applying that scrutiny, we conclude the ordinance does not violate the First Amendment and reverse.
I.
A.
Pursuant to the authority granted by the North Carolina legislature to state municipalities, the Town has implemented a comprehensive Land Development Ordinance (“LDO”) to regulate land use within its jurisdiction. The current LDO, adopted in 2003, consists of twelve chapters of regulations, with chapter 9 (the “Sign Ordinance”) governing the placement and display of residential signs.
Characteristic of most sign regulations, the legislative intent of the Sign Ordinance is to promote aesthetics and traffic safety. Chapter 9.1.1(A) outlines the “purposes” of the Sign Ordinance:
(1) To encourage the effective use of signs as a means of communication in the Town;
(2) To maintain and enhance the pleasing look of the Town, which attracts to the Town major events of regional, national, and international interest;
(3) To preserve Cary as a community that is attractive to business;
(4) To improve pedestrian and traffic safety;
(5) To minimize the possible adverse effects of signs on nearby public and private property; and
(6) To implement relevant provisions of the comprehensive plan, as updated from year-to-year.
J.A. 339.
The Sign Ordinance also notes that “[a]ttractive and integrated urban design features tend to improve a town's IMAGE
The LDO exempts six other categories of signs from regulation, none of which are at issue in this appeal.
The Appendix to this opinion contains an image of Bowden's display.
The Sign Ordinance allows each homeowner to post one such wall sign on their property. Bowden does not challenge this particular restriction.
The record includes an example of a permissible, alternative way of displaying Bowden's message. See J.A. 1924; Appellant's Br. at 16.