Generally speaking, land use regulations and zoning laws arise from practical and aesthetic concerns and considerations, and are driven by state and local law. However, sometimes a community’s desire to regulate a seemingly minor issue can implicate our most fundamental rights under the Constitution. Last month, we discussed the Supreme Court’s decision in Reed v. Town of Gilbert, which involved an analysis of the First Amendment’s applicability to local sign ordinances. Finding that restricting signage based on the content of the sign was impermissible under the First Amendment, the Supreme Court struck down Gilbert’s ordinance. Commentators have since described this as the “sleeper case” of the Supreme Court’s term, representing a substantial shift in First Amendment jurisprudence. The case has since been used to justify striking down local and state bans on political “robocalls” and panhandling, and could possibly extend to call in to question laws aimed at consumer protection and securities law. Indeed, Reed and the reaches of the First Amendment are currently in the forefront of controversies involving everything from soda labelling, to the rights of topless performers operating in Times Square.
However, the Supreme Court has not been the only Court to recently address the Constitutional implications of land use regulation. In April, prior the Supreme Court’s decision in Reed, the Sixth Circuit Court of Appeals (which includes Kentucky) reviewed an ordinance banning charitable donation bins as a public nuisance. Planet Aid, a nonprofit charity, placed outdoor donation bins on private property around the town of St. Johns, Michigan in an effort to solicit clothing donations. Believing that the bins constituted a nuisance, in that clutter and trash often collected around them, the City of St. Johns removed Planet Aid’s donation bins. Later, the city enacted an ordinance banning these unattended charitable bins. The Sixth Circuit, applying the same strict scrutiny standard subsequently applied in Reed, found that this ban of unattended charitable donation bins appears to be an impermissible content-based regulation of First Amendment-protected speech, and affirmed the District Court’s grant of a preliminary injunction.
However, this conclusion is not as extreme as it may seem at first glance. The notion of charitable solicitations as speech is not new to First Amendment jurisprudence; as the Sixth Circuit pointed out in favor of upholding the injunction, it has a long history of protected status. In the Court’s view, even unattended donation bins inherently solicit and advocate for charitable causes, and thus are a form of speech. The court likened such bins to a person standing by the side of the road and holding a sign. The ordinance, the Court found, impermissibly attempted to regulate the content of its speech, as the ban applied only to charitable donation bins and not all varieties collection bins. Thus, bins with a charitable purpose were prohibited, where other bins, like recycling bins, would be free from restriction.
With hindsight, we can now see that the decision in Planet Aid tracks the same content-regulation rationale the Supreme Court espoused some two months later in Reed. These decisions should have state and local governments scrambling to review their regulations for potentially serious Constitutional defects. Cases like Reed and Planet Aid will likely have wide-ranging impacts on any variety of land use restrictions. Few laws survive “strict scrutiny” judicial review, and it appears that any regulation of any component of expression that regulates based on content will now be subject to that level of review. As such, even seemingly mundane land use restrictions must now be evaluated as potential infringements on some our most basic rights. The attorneys at McBrayer can assist local governments in reviewing their regulations for compliance with the brave new world of Reed and Planet Aid, working to bring regulations within acceptable Constitutional limits.
Jacob C. Walbourn is an associate in McBrayer’s Lexington office. Mr. Walbourn focuses his area of practice on planning and zoning law handling a wide variety of land use matters for clients in the private sector. His responsibilities include attending Planning Commission and Board of Adjustment hearings and working with developers, business owners, and government agencies on land use applications, zoning ordinance text amendments, comprehensive plan updates and other land use issues. He can be reached at email@example.com or (859) 231-8780, ext. 102.