Without any doubt, the scenario I am about to recount is the most common from the many readers of this column, and sign companies across the U.S. It goes like this: 

 

A town has a restrictive sign code: no electronic message signs, monument signs limited to six feet above ground level, and signs must be set-back from the street. But the main sign at city hall? It is a monument sign 10 feet above ground level, with a brand-new color EMC, set one foot from the curb.

 

YES, THEY CAN DO THAT

Then I’m asked, “They can’t do that, can they?” In many jurisdictions, and in many circumstances, the answer is yes; the city can restrict certain signs on private property, and deploy those exact same signs—without restriction—on its own public property.

 

The case law is a mixed bag on this issue, however. Courts have used at least four different legal theories to reach a result in litigation where a municipality is sued by a private party claiming the municipality is in violation of its own zoning ordinance. Almost always at issue is the very definition of governmental function or activity. If that sign at city hall furthers a public function, immunity from the zoning ordinance is granted—and the private property owner loses.

 

Briefly, these are the four theories:

 

WHAT IS PROPRIETARY? 

First is an approach that differentiates between government and “proprietary” functions.  Here, for example, a municipality has an EMC on its main identification sign even though EMCs are prohibited elsewhere. The government-proprietary distinction asks the question, what use is being made of the public property?  As the primary administrative offices for the government, the sign is allowed. But perhaps not if the facility is rented for private functions and activities. 

 

Second is a legal theory called balancing of the interests, often used by courts where there is little statutory language available, in an area with little case law to indicate precedent. Among questions a court would want to address are: What is the legislative intent? What function or activity is part of the property? And, what is the impact of immunity on legitimate yet competing local interests.

 

Third, a court may look to a locality and its use of the power of eminent domain, where a governmental unit has police power to take property for public use. From this power—where the government is granted immunity—a court will look for similar public functions.

 

Finally, some courts only will make a decision after detailed study of the language in the relevant statute, giving thought to the meaning of words such as “governmental interest” and “public use.”

 

GEORGIA STREET FURNITURE ADS

Now, let’s put these legal theories into action. First is a 1988 Georgia case, Board of Commissioners of Chatham County v. Chatham Advertisers. Here the dispute was over whether the county had the right to contract with an outside company to install benches at bus stops at no expense to the county, and then sell advertising on those benches, assuming a split of ad revenue between the county and the private company.

 

The Supreme Court of Georgia found the contract valid, noting this rule, “A county may use property it owns for a necessary governmental purpose, even though such use violates a zoning ordinance.” The court said its use of “governmental purpose” includes all governmental functions, whether purely governmental or proprietary.

 

A ROOF SIGN FOR A HOSPITAL

Also in Georgia is a 1992 case, Macon-Bibb County Authority v. Madison. Here is a more complicated situation than just a city hall sign; in this case, a hospital wanted to install a roof sign on its facility, even though roof signs were prohibited by a local zoning ordinance. The court first relied on its finding from Chatham County.

 

But the sticking point in this litigation was the definition of a “governmental purpose.” After all, the hospital was not the city hall building. The court reviewed a list of factors that might tend to establish the hospital as deserving of immunity from the application of the zoning ordinance. The factors included: that the hospital was created by act of a “public body or politic,” that the board of the hospital  was appointed by the “governing body of the relevant political subdivision;” that the hospital was exempt from taxes; that it could use the power of eminent domain; that the hospital received tax revenues; and that the political subdivision would have a say in the disposition of hospital property if there was a dissolution.

 

Based on the above comments, the legal landscape is disappointing, to say the least. A municipality usually has the right to install a sign on its own public property, even though that same sign is prohibited if installed on private property. 

 

IMPLICATIONS FOR THE SIGN COMPANY

Yet the impact is even more complicated for the sign company owner than just the straight-up legal analysis. First, a sign company that is convinced the municipality has no immunity from zoning regulations is going up against the very body that regulates its sign installations on private property.

 

Second, the sign company may be bidding on making or installing the city hall sign or EMC. Litigating (even complaining) against a customer/regulator is a tough choice. 

Finally, here is what is most frustrating: the municipality is sending a clear message that the sign with the higher elevation, the sign with the electronic message display, is a favored solution—just not for private property owners. 

 

Cities are showing us that they know all too well what a sign needs in size, placement and use of technology. Somehow, we have to use that knowledge to continue the conversation, and the fight for private property owners to have signs that work as well for a business as for the government.