Loading...
Confidential Correspondence with AttorneyFILE COPY Brad Nielsen From: Sonsalla, Sarah J. [SSonsalla@Kennedy-Graven.com] C v Sent: Monday, July 20, 2009 1:30 PM To: Brad Nielsen Cc: Tietjen, Mary D. Subject: RE: Signs in parks Dear Brad, Mary is out so she had me look into this issue. Since it is a First Amendment issue, it is rather complex. It is my opinion that the City can and probably should have a provision in the License Agreement or a policy that regulates the content of the baseball field advertising signs. My opinion is based on the following: In cases where the City is acting as a proprietor (seeking to raise government revenues or to facilitate the conduct of its own internal business) rather than acting as a lawmaker with the power to regulate or license, the courts do not subject its actions to the heightened review to which its actions as a lawmaker may be subject. Since the City is the owner of the property in this case and is leasing the space on the fences to a third party who will be obtaining advertising for them, I think that the City would most likely been seen as a proprietor and not a lawmaker in this situation. Because the City is seen as a proprietor, it may exercise broad discretion in the operation of its own commercial interests to send out a message of its own choosing, so long as the baseball field fences are seen as a "nonpublic forum." A nonpublic forum designation allows the City to be able to regulate the content of advertising on the basis of subject matter and identity so long as the distinctions are reasonable in light of the purpose served by the forum and are viewpoint neutral. For example, the U.S. Supreme Court held that a city's decision to limit the content of advertising on its transit vehicles was within the city's discretion because the city was a proprietor and the advertising on the transit system was considered to be a "nonpublic forum." In that case, the Court found that the city's transit vehicles were a nonpublic forum because the city restricted the advertising to certain types (commercial and service industries) and did not allow political or other types of advertising. Therefore, the City's "forum" was not open to everyone. However, there have cases where the courts have found the government entity's advertising space was not a nonpublic forum, but rather a designated public forum, and therefore, the much more rigorous test of "strict scrutiny" was applied with respect to the government entity's content regulations (are the government restrictions on speech in furtherance of a compelling governmental interest and go no further than is necessary in impending First Amendment rights?). In several of these cases, the government entity had restrictions on advertising content, but had failed to implement them with respect to all of the advertisers. Therefore, the court found that the government entity had created a designated public forum and could not implement its content regulations. Based on the above, in order to ensure that the City's baseball field fences remain a "nonpublic forum" so that the City generally has the discretion to regulate the content advertising on them, I think that it is important for the City to either have a provision in the License Agreement or a policy that in addition to not allowing advertisements that have alcohol, sex or tobacco on them, regulates the content of the advertising so that it is clear that it is not available to everyone. For example, policies that restrict non-commercial speech and, in particular, that ban political speech, have been found by the courts to indicate an intent to create a non-public forum. Let me know if you have any questions regarding this information. I will be at the staff meeting tomorrow. Thanks! Sarah Sarah J. Sonsalla I Attorney I Kennedy & Graven, Chartered 1470 U.S. Bank Plaza 1200 South Sixth Street I Minneapolis, MN 55402 1 direct: 612.337.9284 1 fax:612.337.9310 1 e-mail: sonsalla@kennedv-araven.com ATTENTION: This message and any attachments are intended only for the named recipient(s), and may contain information that is confidential, privileged, attorney work product, or exempt or protected from disclosure under applicable laws and rules. If you are not the intended recipient(s), you are notified that the dissemination, distribution, or copying of this message and any attachments is strictly prohibited. If you receive this message in error, or are not the named recipient(s), please notify the sender at either the e-mail address or the telephone number included herein and delete this message and any of its attachments from your computer and/or network. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney -client, work product, or other applicable privilege. This message and any attachments are covered by the Electronic Communication Privacy Act, 18 U.S.C. Sections 2510-2521. -----Original Message ----- From: Brad Nielsen[mailto:BNielsen@ci.shorewood.mn.us] Sent: Friday, July 17, 2009 10:05 AM To: Tielen, Mary D. Cc: Sonsalla, Sarah J. Subject: Signs in parks Mary/Sarah, The Park Commission recommended approval (reluctantly) of the draft ordinance and license agreement for the STILL application, with suggestions. One of the questions raised had to do with sign content. I know our regulations have to be content neutral, but they asked if, because we own the property, we can include content provisions in the license agreement. While I don't worry too much that the Little League folks will allow signs with alcohol, tobacco or sex on them, the Commission would feel better with something in the agreement. This is going to the Planning Commission on Tuesday (public hearing). Is it possible for you to opine on this by then? Thanks! Have a great weekend. Mary— have a nice vacation! Planning Director City of Shorewood 952-960-7912 It E CHARTERED Mary D. Tietjen 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 (612) 337-9277 telephone (612) 337-93 10 fax mtietjen@kennedy-graven, corn htu) Wwww kennedy-eraven.com MEMORANDUM To: Shorewood City Council Brian Heck, Administrator From: Mary Tietjen, city attorney Date: May 22, 2009 Re: Ball Field Signs • FILE COPY At the meeting on May 11, 2009, the city council considered a request by the South Tonka Little League (STLL) that the city amend its sign ordinance to allow for commercial advertising signs on ball -field fences. The discussion and decision at that time was to deny the request to amend the ordinance and, instead, to pursue an agreement with the STLL for the posting of advertising signs. Some of the council's concerns included the extensive nature of the proposed ordinance amendments and the desire to "try out" the idea of allowing ballpark signs, rather than create a permanent entitlement to them. Staff indicated the need to further review the city code to determine whether an agreement with the STLL would be feasible and possible. Upon further review and discussion, staff has come up with an alternative approach that addresses the council's concerns and incorporates the suggestion of an agreement with STLL. Staff is proposing that a conditional use permit be obtained from the City to post these types of signs. One of the conditions would be that the applicant must enter into a license agreement with terms acceptable to the city council. The benefit of this approach is that the city can place time restrictions on the length of the CUP and the agreement, and either or both may be revoked or rescinded if the terms of the CUP or license agreement are violated. In addition, the CUP approach would not require extensive ordinance amendments because the specific conditions and restrictions —which the council would have significant control over —would be dealt with in the agreement. Staff has created the following list of conditions. Others may be identified by the council. Limited to non-profit sports organizations or facilities reserved for their use. 2. Community park, as identified in Comp Plan (i.e. Freeman Park)? 352167v1 MDT SH23042 -# 104 0 3. Outfield fences only and only inside the fenced -in area. 4. Signs must face inside the park. 5. Professionally made/durable weather -resistant material. 6. Limit size to 3.5' x 7'. 7. Limit number to 15 per field. 8. Space at least seven feet apart. 9. Situate signs so as to minimize view from adjacent residential property. 10. Sign permits — administrative? 11. Back side of sign painted/colored dark green. 12. Specify duration of sign display. 13. Sign maintenance — detached, tears, graffiti, etc. — correct immediately or subject to summary removal by City. 14. Fence maintenance — applicant responsible for any damage to fence caused by installation or display of signs. 15. No alcohol, tobacco, or sex -related advertising The CUP approach would require an ordinance amendment establishing the process, an application, review and recommendation by the Planning Commission, a public hearing, and final approval of the CUP and license agreement by the City Council. The ordinance amendments and any application from STLL could be done concurrently. While we understand that this process significantly delays STLL's ability to post signs this season, staff believes this approach best addresses the council's concerns regarding the nature and extent of the ordinance amendments, as well as the council's desire to maintain control over the manner, length, types of signs, etc. cc: Brad Nielsen 352167vI MDT SH23042 2 • FILE COPY Kennedy cot Graven CHARTERED Mary D. Tietim 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 (612) 337-9277 telephone (612) 337-9310 fax mtietjen@kennedy-graven.com http;//www.kennedy-graven-mm MEMORANDUM To: Brad Nielsen, Planning Director From: Mary Tietjen, city attorney Date: February 23, 2009 Re: Proposed Amendments to Sign Ordinance The South South Tonka Little League ("STLU) has requested amendments to the City's sign code provisions that would allow advertising signs on the ball field fences at Freeman Park. You have asked for a legal opinion on several issues related to their proposal. Introduction. Sign regulation falls under the City's zoning power to regulate land uses. Sign regulations are different from other types of land uses, however, because the First Amendment is implicated. Signs are considered "speech" under the law and, therefore, the government may not (with certain limited exceptions) regulate signs because of their message, subject matter, or content. The City may, however, adopt content -neutral provisions to regulate such things as size, location, number, color, etc. Courts give a different level of protection to "commercial speech" and "non-commercial speech." Commercial speech, of course, includes signs that advertise such things as a business, profession, or commodity. Commercial signs receive less protection under the constitution than non-commercial signs containing political, religious, or ideological messages. Cities are not legally required to allow, and may completely ban, off -premise advertising signs, such as billboards. The type of signs being proposed by STLL are essentially off -premise advertising signs. Questions. You have asked the following questions related to the proposed sign amendments: 1. Can the City distinguish between park fence advertising signs and other types of outdoor advertising signs, including billboards? Would the amendments jeopardize the City's position on other commercial signage, particularly outdoor advertising? 347577v I MDT SH23042 l The United States Supreme Court has upheld an ordinance prohibiting billboards as a constitutional restriction on commercial speech. The Court held that the ordinance was valid because the prohibition was related to stated objectives, such as traffic safety and aesthetics and did not impact or regulate the content of the sign. In your situation, I believe the City could validly distinguish between park fence advertising signs and billboards because park fence signs do not raise the same kinds of concerns, such as driver distraction or aesthetic issues. However, allowing park fence signs as the only form of off -premise advertising in the City could open the door to challenges by other businesses that might argue their type of sign doesn't present the same concerns as billboards either. Thus, if the City chose to allow only park fence advertising signs (and not other types of off -premise signs), it should identify a basis for doing so. Approving the amendments would not jeopardize the City's position generally on commercial signage as long as the City has a rationale basis for distinguishing between certain types of signs. 2. Can the City limit the amendments to only allow signs in Freeman Park? Should the amendments be extended to include other city parks? Public parks and streets are characterized as traditional "public forums" for free speech purposes. With respect to noncommercial or "political speech," the U.S. Supreme Court has held that citizens have a "traditional right of access" to these forums. Although commercial advertising does not get the same deferential treatment as political speech under the law, allowing off -premise signs in one park and not another creates an inconsistency in how public property may be used in the City. As described above, there may be valid reasons for making such a distinction, like the character, nature, or location of the specific park. However, allowing advertising signs only in Freeman Park could open the door for challenges based on the argument that all public property within the City should be similarly available. Because the City is regulating commercial speech rather than noncommercial speech, a challenge nevertheless might be less likely to succeed, especially if the City has a sound, content -neutral basis for allow signs in park versus another. 3. If the City allows advertising in the ball fields for STLL, would it be difficult to deny similar treatment to other groups (ie, hockey or football)? The law requires equal protection or, in other words, similarly -situated individuals must receive similar treatment. Allowing one group to post off -premise signs while prohibiting a similar group to do the same could raise equal protection concerns. The City could, however, regulate off -premise signs based solely on some other neutral factor, such as location (ie, off -premise sign are only allowed in "X" zoning district). This approach would address any concerns that the City was showing preferential treatment to a certain group and would make a challenge less likely to succeed. I hope this adequately addresses your questions. Please feel free to contact me with any additional comments or concerns. 347577vl MDT SH230-42 2