Regulations are a Sign of the Times
In June 2015, the United States Supreme Court decided the case, Reed v. Town of Gilbert. In this landmark decision, the Court concluded that the Town of Gilbert’s sign ordinance constitutes content-based regulation of speech that was not narrowly tailored to further a compelling government interest.
In response, many Arizona municipalities have chosen to revise their sign ordinances, but in some cases, the revisions are: (i) harmful to the real estate industry; and (ii) inconsistent with the requirements set forth in the Reed decision.
Recognizing the increasing number of changes to local municipal sign ordinances, the Arizona REALTORS® in conjunction with the National Association of REALTORS® retained the law firm Robinson & Cole, LLP to evaluate the feasibility of statewide legislation to halt municipal efforts to implement restrictive sign ordinances.
Ideally, Arizona REALTORS® could advance legislation entirely prohibiting local governments from regulating real estate signage. However, Robinson & Cole has opined that such a broad restriction would likely be deemed unconstitutional.
More specifically, the law firm concluded that an outright ban on local regulation of real estate signs would be deemed overbroad, failing to be no more extensive than necessary to advance the asserted governmental interest of protecting this important form of commercial speech.
Because a statute that expressly prohibits local regulation of real estate signs is likely not legally viable, a possible alternative would be legislation that recognizes and protects the right of property owners to display signage advertising their property for sale or lease, subject to local government’s right to adopt and enforce reasonable time, place, and manner restrictions.
However, already in place is A.R.S. § 33-441, which protects a homeowner’s right to display real estate signage on that person’s property. While such a regulation could be expanded to permit signage on other real property, such as public rights-of-way, it would still be subject to reasonable time, place, and manner restrictions.
Unfortunately, Arizona cities, towns and municipalities could impose broad restrictions, leaving sign users in a similar predicament to the one in which they currently find themselves.
Understanding that an expansion would be subject to practical time, place, and manner restrictions, the legislation must provide certain protections pertaining to type and size in an effort to limit unreasonable restraints being subsequently imposed by municipalities.
While such protections are vital to effective legislation, they will likely draw opposition. It is therefore imperative that Arizona REALTORS® examines both the pros and cons to moving forward with such legislation.
Outright Ban
Pros:
- Would prohibit local municipalities from regulating signs both on private property and in rights-of-way
- Local REALTOR® associations would not have to fight a patchwork of ordinances proposed by each municipality within their jurisdiction
Cons:
- Unlikely that proposed legislation would withstand a constitutionality test in both the House and Senate Rules Committees
- If by chance the legislation was to pass both the House and Senate Rules Committees, and signed into law, it stands a high likelihood of being constitutionally challenged
- Robinson & Cole, LLP has already stated that this approach is highly unlikely to withstand a constitutional challenge (Constitutional challenge would most likely arise from the municipalities)
Time, Place and Manner Restrictions
Pros:
- Potentially allows for placement of signage in public rights-of-way
- Would likely withstand a constitutionality test in both the House and Senate Rules Committees
Cons:
- Includes a government’s right to adopt and enforce reasonable time, place, and manner restrictions
- Contains type and size protections to which municipalities will likely object
- Results in local REALTOR® associations continuing to work with each municipality within their jurisdiction to protect their membership from government overreach.