Severability Saves the Sign Ordinance

Billboard companies have been persistent in challenging local zoning ordinances dealing with signs for many years now. In a case decided August 10, 2023, the Sixth Circuit Court of Appeals ruled in favor of Troy, Michigan, in a first amendment challenge to that City’s sign ordinance, International Outdoor, Inc. v. City of Troy, Michigan. This decision happened on the case’s second trip to the court of appeals, after an earlier remand on whether content-based exceptions to a permit requirement passed muster under Reed v. Town of Gilbert, the U.S. Supreme Court case that applied strict scrutiny to content-based sign ordinances.

In the case’s second trip to the Court of Appeals, the court focused on whether invalid exceptions to the permit requirement would invalidate the whole ordinance or just the temporary sign provisions, and (if the latter) whether the ordinance constituted an impermissible prior restraint. Under the legal doctrine of severability, a court should honor a legislature’s expressed wishes that invalid provisions be stricken from a piece of legislation without impacting the rest of the legislation.

At issue was a provision of the ordinance that listed examples of temporary signs, such as real estate signs, political signs, and holiday signs. Even though the City of Troy removed the content-based examples of temporary signs from the ordinance after the suit was filed, their presence in the original ordinance was central to the lawsuit.

The Court of Appeals ultimately held that International Outdoor was not entitled to relief from the City of Troy for procedural reasons, but a concurring opinion asked, pointedly, why International Outdoor even had standing to sue, given that they were never eligible for a temporary sign in the first place. In other words, so what if the temporary sign permit was invalid? International Outdoor’s proposed sign was still prohibited by the ordinance’s size regulations. The majority opinion did not address the standing issue.

This case provides some important tips for localities when drafting sign ordinances:

  1. Don’t assume that a severability clause will solve all your problems. Maybe it will solve your problems only after two trips to the Federal Court of Appeals.
  2. Don’t include content-based categories in your sign ordinance, even as examples.
  3. Be aware of the shifting legal landscape and update your sign ordinance before the billboard company decides your locality is its next target. A legislative fix after the lawsuit is filed will not protect you from claims that the original ordinance was unconstitutional.

Last year, the Supreme Court decided whether localities could regulate “off-premises” advertising signs in City of Austin v. Reagan National Advertising of Austin. Read more about that case here.

If you have questions about developing sign ordinances, contact Martin Crim or a member of our local government team.