Halloween Ghouls, Zombie Nativities, Toilets with Antlers, and other Offensive Holiday Displays: Zoning Law, the First Amendment and the Right to be Offensive

It’s that time of year again. Seasonal holiday displays are beginning to dot our subdivisions and public spaces. Although most will conform to mainstream cultural, religious and societal norms, the ones that don’t create discomfort or even outrage, spurring calls for government authorities to order them to be removed.  When governments do not act, it is not unheard of for citizens to take on the task themselves by removing or destroying the offensive display, risking criminal charges or even arrest in doing so.

There are two broad categories of offensive displays, those on private property and those placed by governments on public property; each has differing legal considerations. Property owners have a broad first amendment right to free expression of their views, and governments are limited in their power to have seasonal displays removed due to their offensive content, no matter how controversial or upsetting to neighbors. Thus begets a resident who decorated his house on a busy street just down from an elementary school with a Halloween display that included the typical spiders and ghosts but also a gas mask wearing nun holding a crucifix, a skeleton, and scenes of graphic violence. Neighbors asked local law enforcement officers to shut it down, but they correctly determined that offensive as it was it did not violate local laws. The display was permitted to remain.

20151010_224354Officials unsuccessfully tried to order a home owner, a plumber, to remove ten toilets from his roof that he festooned with seasonal decorations such as reindeer antlers at Christmas, cupids on Valentine’s Day and leprechauns on St. Patrick’s Day.  A horror movie fan who placed a nativity scene in front of his home that included zombie representations for Mary, Joseph and the wise men as well as a little zombie Jesus was ordered to remove the display on the basis that the structure was an illegal accessory structure, despite the fact that such action was not taken for more traditional nativity scenes.

A home owner who erected a large, arrow pierced, heart shaped sign illuminated with pink lights for  Valentine’s Day was cited for illegally having holiday lights and decorations except from mid-November to mid-January. Not only did this raise Equal Protection issues for followers of religions that celebrate holidays that fall outside the allowable dates, but it also burdens the home owners’ protected right to express themselves on their own property free from governmental interference.

Seasonal displays that contain religious elements that are placed on public property must  allow the incorporation of symbols or themes of other religions. Otherwise such displays would unconstitutionally advance one religion over another. Traditional seasonal displays that contain Judeo Christian religious themes such as nativity scenes or menorahs must offer room for displays of less conventional religious beliefs.  Under recent Supreme Court rulings, governments are limited in their power to determine the sincerity of the proponents’ religious beliefs. Thus, around the country holiday displays of creches and menorahs have to make room, if requested, for displays by groups such as the Satanic Temple, the American Humanist Association, atheist groups, and Pastafarians (who profess to venerate the flying spaghetti monster).  Outraged citizens in several cases, such as a women in Florida wearing a “take a stand against Satan” t shirt destroyed a Satanic Temple display on the Florida state capitol grounds that depicted an angel flying in to the flames of Hell.  The display was restored and the woman was arrested. The spokesperson for the Christian group who arranged the traditional nativity scene on the capitol grounds stated that as much as she did not like the Satanic Temple display, it is a matter of free speech and should not be vandalized.

Over time it will be interesting to see how non-traditional seasonal displays, particularly on public property, are treated. Either many new and original manifestations of religious expression will be permitted to join the majority Judeo-Christian displays, or governments and the public will simply decide to prohibit all such displays.

CWestoverChristine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

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Use of Restrictive Covenants in the Zoning Process

Zoning categories and the uses that are allowable in each of them are subject to the possibility of amendment by the legislative body. This means that a property can apply to the planning authority to change his zoning designation or to add uses within that designation that are otherwise prohibited. However, many citizens incorrectly believe that zoning designations are permanent and that uses within each zoning category never change. When a neighboring property owner files to rezone property, asking to amend the zoning ordinance to add a new use to a particular category that is prohibited, the neighbors become alarmed at the potential change to their area. Although neighboring property owners have a right to attend hearings and object to the proposed changes, they have no final say or authority as to whether the governmental body approves it. This can lead to zoning battles.

Sometimes zone change applicants will offer to impose restrictive covenants on the property they are seeking to rezone in order to address neighbor concerns. Restrictive covenants, when recorded and enforceable by the neighbors, are a powerful way to protect property from zoning changes that otherwise the neighbors would consider too intensive or inappropriate.

Sketching Of Building Construction On Flying Book Over Urban SceRestrictive covenants are restrictions on land use that are recorded in the county clerk’s office. Restrictions run with the land and last for a term of years, often in 10 or 20 years renewable terms. They typically spell out who has the power to enforce them and how they are to be enforced. In general, restrictive covenants cannot be removed or modified without the written consent of the party who has the power to enforce them. Restrictive covenants can control issues that generally go beyond the reach of the government to regulate in the zoning process, for example architectural and design features, restricting certain uses or agreeing to preserve certain natural features.

Many governments do not enforce restrictive covenants of this nature because they are rightly considered private agreements. However, restrictive covenants can be a valuable tool to assuage opposition to zoning amendments if the proponent is willing to live with some restrictions on his property in order to reduce neighborhood objection to his proposal and thereby increase the chances the planning body will approve the zoning amendment.

CWestoverChristine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

Where the First Amendment and Land Use Meet: Planet Aid v. City of St. Johns

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.

Vertical image of the the first page of the US Bill or Rights on the American flagConsider that again for a moment: the Sixth Circuit has held that the mere presence of a standalone, outdoor, unattended donation bin implicates our rights of free speech and expression.

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. WalbournJacob 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 jwalbourn@mmlk.com or (859) 231-8780, ext. 102.

Inverse Condemnation

Inverse condemnation is a far more complex subject than it may seem at the outset. While condemnation proceedings are initiated by the government to acquire property and pay the owner just compensation, the general rule regarding inverse condemnation is that the owner of the property, and not a government entity, seeks to recover damages for a loss in value of the property as a result of governmental action. There are several avenues from which this type of action can arise, as there are multiple ways property can be affected by government activity. Rather than there being a cut and dried standard for what inverse condemnation looks like, each case involving it arises is based on a set of unique factual circumstances.

Inverse condemnation cases generally are initiated when a property owner sues a governmental entity because some action taken by that entity causes a profoundly negative impact on the property. For instance, a governmental restriction on certain types of development can effectively render certain property worthless. This can substantially damage owners who may have longstanding plans to develop the property, because it deprives them of economically-viable use of the property. Such conduct on the part of the government can be considered a de facto “taking” of the property under the Fifth Amendment, even if the government does not actually condemn or take possession of the property. A forced transfer of ownership is not necessary, and indeed one of the hallmarks of inverse condemnation is that the government usually does not take possession of the property permanently.

Yellow Cut truck on the highway construction in front of airport

While the suit in an inverse condemnation case generally begins with the property owner, this is not always the case. In the 2010 Kentucky case of Baston v. Kenton County Airport Board, for instance, the makings of inverse condemnation arose during proceedings in a condemnation suit brought by the Airport Board for Mrs. Baston’s long held property. The Airport Board attempted to buy Mrs. Baston’s property in 1995 as part of a “noise mitigation” effort, which she declined. In 1997, the Airport Board announced its intention to condemn the property for construction of a new runway. The project wasn’t approved until 2001, however, and Mrs. Baston was not required to turn the property over to the Airport Board until 2003. The condemnation proceedings began in 2005. At issue in Baston was the value of the property being condemned, and the novelty here is that Mrs. Baston’s position was that the property was inversely condemned before the actual condemnation, as announcement and widespread knowledge of the Airport Board project stifled development on property that would be acquired by the Board, depressing the fair market value. It’s a subtle argument, but one ultimately upheld by the Kentucky Supreme Court. The actions of the Airport Board had a profound effect on the value of the property prior to condemnation, so the fair market value of the property at the time of the taking did not reflect the full extent of the effect of the taking.

Zoning regulations that control uses, setbacks and similar matter are sometimes challenged under a regulatory takings claim, but such efforts do not generally succeed. The standard of review that courts use to determine the validity of such regulations is a high hurdle for those claiming a taking, especially because the one claiming the violation has the burden of proof to show harm. Courts will uphold the regulation if the regulation is shown to be rationally related to a legitimate government interest. If such a nexus is present Courts will not find a taking, and the regulation will be upheld as a legitimate exercise of governmental power.

If you believe government action has substantially changed the value or nature of your property, contact the attorneys at McBrayer to help determine if an inverse condemnation action is necessary.

CWestoverChristine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

Reading The Writing On The…Yard? Regulating Political Signs

Many local governments have ordinances on the books that regulate the number, size, location, and duration of political yard signs. However, many of these regulations probably do not pass constitutional muster and are not enforced. The difficulty with enacting yard sign regulations is that the signs constitute political speech which is one of the most precious and protected forms of free speech guaranteed by the First Amendment of the United States Constitution. Courts across the country have consistently ruled that political speech cannot be regulated more stringently than commercial speech. For example, a local ordinance that sets time limits on how long political yard signs can be placed prior to an election and a time to remove them after the election are typically invalidated because other types of signs, such as real estate signs, have no durational limits. Similarly, ordinances that limit the number of political signs to no more than two per property have been struck down. Limiting the number of signs restricts free speech because the household residents may have different political viewpoints. Further, many election seasons are to fill the seats of many different offices, thus limiting the number of signs impermissibly limits the number of candidates that a property owner can support. Regulating the size of political yard signs is problematic too if the local sign ordinance limits political signs to a smaller size than permitted for other types of signs.
This does not mean, however, that local authorities have no power at all to regulate political yard signs. The governments may enact reasonable, content-neutral regulations pursuant to their police power to protect the public health, safety, and welfare. Thus, local ordinances can validly prohibit political yard signs on public property and within the public right of way. All signs over a certain size, regardless of content (and including political signs)may have to be set back from roadways and sidewalls and be constructed or anchored for legitimate safety reasons, such as to prevent them from being blown away, falling down or blocking the view of driveways and intersections.
Finally, other types of signs are protected as political speech even if not directly related to an election. As such, they are entitled under the First Amendment to remain in place subject to the same content-neutral regulations as for election yard signs. For example, signs expressing anti-war or other cause oriented beliefs such as views on abortion or gay rights have a fundamental right to remain in place for as long as the person expressing the belief wants to keep them in place, subject only to the limited, content-neutral requirements related to materials, method of anchoring, etc. that are in place for other signs displaying noncommercial speech.

 

Hands Holding Vote

 

CWestover

Christine Neal Westover is an attorney in the Lexington office of McBrayer . Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

The Rise of Agritourism & Important Considerations

Agritourism is becoming an increasingly popular way for rural property owners to earn additional income from agricultural properties.   In additional to more traditional farm tours and seasonal activities such as hay rides, corn mazes and u-pick fruits, farm owners are devising new ways to bring people to their door by offering more entertainment-oriented activities. Some farmers are offering their barns as venues for weddings, parties, dances and other special events.  Others are opening their homes to visitors for vacations so guests can experience life on a working farm by helping out with routine farm chores such as feeding or herding the livestock, milking the animals, making cheese, collecting eggs, picking vegetables and preparing farm fresh meals.   This may sound simple and easy to accomplish but often those who want to offer agritourism activities on their rural properties are blindsided when they run in to unanticipated difficulties with regulatory authorities over building code, fire code or zoning issues.

In general, barns used for agricultural purposes are exempt from state building codes. Converting them to a rustic setting for special events can change the classification and necessitate often expensive retrofitting of the structure to make it safe for public assembly. The renovations may include fire separation walls, sprinklers, new water lines, larger septic systems, code compliant bathrooms and other improvements. Not only can these be expensive, they can diminish the rustic look that some people are looking for when they select an event site.

In addition to building code issues, using agricultural properties for special events, farm stays, corn mazes, serving farm raised meals, wineries with associated entertainment and other types of agritourism typically requires special permits from the local zoning authorities, such as a conditional use permit, that trigger the need for a hearing and notice to neighbors in the notification area. It is important to check with the local zoning authorities about whether such permits are required before opening for business. Regardless of whether special zoning permits are required, consideration must be given to the impact of the use on other properties in the area and address potential issues before they become a problem. For example, limiting the number of events could reduce neighborhood safety concerns about too much traffic on an unlit, narrow country road. Not allowing outdoor amplified music or requiring music to cease after a certain time would go a long way to prevent neighborhood complaints that the use adversely impacts the rural quality of the area.

A Hay Ride Returns From A Pumpkin Patch

Agrituourism has tremendous potential to provide an alternative source of income for rural property owners and can boost tourism in many areas that do not have the more urban type of activities that attract people to the area. But it is important to fully investigate local and state codes and regulations, as well as anticipate neighborhood concerns before starting up the new business.

CWestover

Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

Overlay zoning

Many communities that have adopted zoning laws governing the uses that are allowed in the various zones have also adopted overlay zones that control the same property. Overlay zones are just that — they add another layer of regulation to those that control the underlying zone.   Overlay zones are intended to add additional protection the underlying area. The most common types of overlay zones are intended to protect historic areas, neighborhoods or buildings with unique characteristics or environmentally sensitive areas.

Overlay zones can be a trap for the unwary and can add significant time and cost to projects, especially if an owner or his contractor is unaware that the property is subject to overlay regulations in addition to the underlying zoning requirements. For example, if the owner calls the zoning enforcement officer in advance to find out what permits are required to replace a fence or a structure in a residential zone, the response is likely to omit information about the additional requirements in an overlay zone unless the specific question is asked. Based on the incomplete information from the phone call, the owner may have placed a special order for a fence, or paid for a particular architectural design, only to discover that the type of fence or the special design is not permitted in the overlay zone. The best way to avoid this situation is to either provide the building inspection office the exact address of the property and ask the staff if it is governed by an overlay zone in addition to the underlying zone. Alternatively, property owners should hire experienced design or legal professionals who can verify the governing zoning regulations before ordering materials or plans for a specific project that are incompatible with the overlay zone requirements.

House Exterior. Entrance Porch And Front Yard View

However, in the example above, if the fence is already ordered or the owner wants a particular design, it may still be possible to obtain approval for it. Land    use procedures for underlying zones go to boards of adjustment or planning commissions, but approvals and appeals for overlay zone generally to boards that have been created to handle these matters. These boards apply specially adopted guideline and standards to determine if the improvement meets the requirements of the overlay zone. Decisions are made in a public hearing and letters are sent to neighboring property owners informing them of the topic to be discussed. A favorable outcome is more likely to occur if surrounding owners do not object, but even with objections, a reasonable good faith justification goes a long way in securing approval from the board.

If the board votes to disapprove the requested relief, at least one further appeal is generally built in to the governing regulations, either to a land use body, such as the planning commission or directly to court. While appeals to a different land use body have a good chance of success, it is difficult to obtain a court verdict reversing a board’s decision due to the standard of review courts apply to reviewing such matters. The time and cost of a court appeal is also substantial. Accordingly, doing homework at the planning stage of a contemplated improvement will save a lot of frustration, time, and expense in obtaining approval for work on properties in overlay zones.

CWestover

Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.