2006-362, CARLSON'S CHRYSLER v. CITY OF CONCORD

McNeill, Taylor and Gallo, P.A.

No. 2006-362

Merrimack

The City’s code administrator denied the application based upon a section of would electronically display messages advertising Carlson’s vehicle inventory. property to replace an existing manual changeable sign. The proposed sign application to the City to erect an electronic changeable copy sign on its ruling by the Superior Court (McGuire automobile dealership in Concord. In 2005, Carlson’s submitted an BRODERICK, C.J. The defendant, City of Concord (City), appeals a The plaintiff, Carlson’s Chrysler (Carlson’s), owns and operates an

Paul F. Cavanaugh

reverse. ordinance regulating electronic changeable copy signs is unconstitutional. We

THE SUPREME COURT OF NEW HAMPSHIRE defendant.

and orally), for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Concord, N.H., Zoning Ordinance

and consistent enforcement of these sign regulations. of signs on nearby public and private property; and (f) Enable fair pedestrian and traffic safety; (e) Minimize potential adverse effects

and encourage economic development and growth; (d) Improve corridors leading into the City; (c) Retain the City’s ability to attract

in downtown Concord and Penacook, and along the highway the appearance and aesthetic environment of the City, particularly communication in the City of Concord; (b) Maintain and enhance (a) Encourage the effective use of signs as a means of

signs. The purposes of the sign regulations are to:

Concord’s zoning ordinance contains detailed regulations governing

commercial speech in compliance with the test in Ward v. Rock Against neutral and constitutes a lawful time, place and manner restriction upon Hampshire, where the district court held that the amended statute is contentchallenged in the United States District Court for the District of New time, date and temperature. The constitutionality of the amended statute was ordinance to prohibit all electronic message centers, including those indicating Following the trial court’s decision, the City amended its zoning

indicators of time, date, and temperature.” Id could use to achieve its goals.. art. 28-6-7(a), (h). animated or flashing light, except such portions of a sign as consist solely of aesthetics; and (3) in finding that there are less intrusive methods the City tracing, or sequential light type, or signs which contain or are illuminated by no evidence that regulating electronic signs will promote public safety or animated or projected, or which are intermittently illuminated or of a traveling, commercial speech; (2) by applying the wrong standard of review when it found solely indicate date, time, or temperature” and “(h) Signs which appear the zoning ordinance constituted an unconstitutional infringement upon Signs which move or create an illusion of movement except those parts which The City appeals, arguing that the trial court erred: (1) in finding that application for a sign permit, article 28-6-7 of the ordinance prohibited “(a)

infringement upon commercial speech. First Amendment to the United States Constitution as an unlawful decision to the superior court, which held that the City’s ordinance violated the upheld the decision of the code administrator. Carlson’s appealed the ZBA’s Concord Zoning Board of Adjustment (ZBA), which, after a public hearing, p. 2 Concord, N.H., Zoning Ordinance art. 28-6-7 (2001). Carlson’s appealed to the movement except those parts which solely indicate date, time, or temperature.” the sign ordinance that prohibits “[s]igns which move or create an illusion of p. 3 City of Ladue v. Gilleo

legitimately call for regulation.

alternative uses for land, and pose other problems that

space and may obstruct views, distract motorists, displace

economic interests of the speaker and its audience.” Central Hudson Gas &

regulatory interests with the individuals’ right to expression.” Id

municipalities’ police powers. Unlike oral speech, signs take up

constitutionally guaranteed expression.” Id

reaches no further than necessary to accomplish its stated goals. Id. at 566. the ordinance directly advances that interest; and (4) whether the ordinance Commercial speech is defined as “expression related solely to the ordinance seeks to implement a substantial governmental interest; (3) whether and therefore entitled to First Amendment protection; (2) whether the courts consider: (1) whether the advertising is neither unlawful nor misleading aspects, it has been necessary for the courts to reconcile the government’s the validity of government restrictions on commercial speech. Under this test, Central Hudson, the Supreme Court adopted a four-part test for determining expression and of the governmental interests served by its regulation.” Id aspects.” Id. In for particular commercial expression turns on the nature both of the Amendments foreclose a similar interest in controlling the communicative Clause, they pose distinctive problems that are subject to While signs are a form of expression protected by the Free Speech noncommunicative aspects of the medium, but the First and Fourteenth. at 563. “The protection available “accords a lesser protection to commercial speech than to other Elec. v. Public Serv. Comm’n, 447 U.S. 557, 561 (1980). The Constitution

limitation applicable to the States, see press . . . .” U.S. CONST. amend. I. The Fourteenth Amendment makes this “Congress shall make no law . . . abridging the freedom of speech, or of the. The First Amendment to the United States Constitution provides: aspects of a medium often impinges to some degree on the communicative

. (citation omitted). “Because regulation of the noncommunicative

media, the government has legitimate interests in controlling the Metromedia, Inc. v. San Diego, 453 U.S. 490, 502 (1981). “As with other communication, combine communicative and noncommunicative aspects.”

450 (1938). (1925), and to their political subdivisions, see Lovell v. Griffin, 303 U.S. 444,

decision is not at issue in this appeal. 2007 WL 1847307, at *3-4 (D.N.H. June 25, 2007). The district court’s Racism, 491 U.S. 781, 791 (1989). See Naser Jewelers, Inc. v. City of Concord, p. 4 We disagree with the trial court’s analysis. In Metromedia

appeal, no evidence was presented to support such a concern.” lead to increased traffic accidents. While this may have a common sense changing displays of the proposed sign might be distracting to motorists and Regarding public safety, the trial court stated that “the City contends that the

negative effect.

electronic display signs in this area will have an aesthetically lit advertising signs of their own. It is difficult to imagine that will be situated among many other commercial entities with large, Court can take judicial notice that the sign proposed in this case to be placed or the size of the sign or its lettering. For example, the into account the character of the area in which a sign is proposed

However, the City’s ban on electronic display signs does not take

area might lead to visual clutter or otherwise be unsightly. the ZBA expressed many concerns that numerous signs in a small

judgments of local lawmakers and of the many reviewing courts that billboards Court “likewise hesitate[d] to disagree with the accumulated, commonsense set aside.” Id. at 508-09 (quotations and citations omitted). The Supreme billboards are traffic hazards is not manifestly unreasonable and should not be Supreme Court agreed with many other courts that a legislative judgment that undoubtedly do, divert a driver’s attention from the roadway . . . the California Id. As the Court stated, “[n]oting that billboards are intended to, and to be viewed from streets and highways reasonably relates to highway safety.” held “as a matter of law that an ordinance which eliminates billboards designed 508. The Supreme Court recognized that the California Supreme Court had the ordinance directly advanced governmental interests in traffic safety. Id. at billboards and traffic safety and that the City had therefore failed to prove that the record in that case was inadequate to show any connection between Regarding aesthetics, the trial court stated that commercial billboards. Metromedia, 453 U.S. at 495-96. It was asserted that Diego which banned offsite commercial billboards while allowing onsite States Supreme Court considered the validity of an ordinance in the city of San

will promote aesthetics or public safety. presented no evidence that regulating the content of electronic display signs

asserted interests and reach no further than necessary because the City the City failed to meet its burden of proving that the ordinances advance its governmental goals” that satisfy the second prong of the Central Hudson test, although the City’s concerns for public safety and aesthetics are “substantial entitled to First Amendment protection. However, the court also found that displayed by Carlson’s is neither unlawful nor misleading and therefore is The trial court found that the commercial speech proposed to be p. 5 Id

suspicions in itself.

and the judgment involved here is not so unusual as to raise

San Diego has as an ulterior motive the suppression of speech, an impermissible purpose. But there is no claim in this case that scrutinized to determine if they are only a public rationalization of defying objective evaluation, and for that reason must be carefully

structures. Such esthetic judgments are necessarily subjective,

purported interests of safety and aesthetics,” Center for Bio-Ethical v. City and The City “need not provide detailed proof that the regulation advances its legislation is not the function of this court.” Taylor v. Town of Plaistow 5 “[Z]oning is a legislative function, and judging the wisdom of the promote the general welfare.” p. 5 Id

aside.” Metromedia, 453 U.S. at 509. Such a determination is not “manifestly unreasonable and should not be set other municipalities, has chosen to minimize the presence of such appearance and aesthetic environment of the City” and “improve traffic safety.” animated, flashing signs containing commercial advertising will “enhance the court erred in substituting its judgment for that of the City’s that prohibiting County of Hono., 455 F.3d 910, 922 (9 Cir. 2006), and we hold that the trial th

because the preservation or enhancement of the visual environment may municipality may exercise its zoning power solely to advance aesthetic values resulting from their familiarity with the area involved.” p. 5 Id. “Furthermore, a members concerning such factors as traffic conditions and surrounding uses perceived as an “esthetic harm.” San Diego, like many States and town may consider the knowledge of town selectmen and planning board general welfare of the community.” Id. “In enacting a zoning regulation, a broad authority to pass zoning ordinances for the health, safety, morals and N.H. 142, 145 (2005). “The State zoning enabling act grants municipalities

proscribing intrusive and unpleasant formats for expression). (1984) (municipalities have a weighty, essentially esthetic interest in common sense); City Council v. Taxpayers for Vincent, 466 U.S. 789, 806-07 restrictions may be justified based solely on history, consensus, and simple .; see nature, wherever located and however constructed, can be also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001) (speech It is not speculative to recognize that billboards by their very

city’s “esthetic interests.” p. 5 Id The Court reached a similar conclusion regarding advancement of the

that these judgments are unreasonable.” p. 5 Id. at 509. are real and substantial hazards to traffic safety. There is nothing to suggest p. 6 Reversed

First, whether the test articulated in Central Hudson Gas v. Public

noncommercial messages, “the Central Hudson

courts have found that the Central Hudson between commercial and non-commercial speech, a significant number of not advanced that argument. For this type of ordinance, which does not on its face distinguish 6 distinguishes among various types of non-commercial speech as Carlson has

1996) (where City argued that ordinance regulating placement and size of signs write separately to make two points. Cleveland Area Bd. of Realtors v. City of Euclid DUGGAN, J., concurring specially. I agree with the court’s opinion but, 88 F.3d 382, 386 (6th Cir. test has no application”); sign, without distinguishing between signs bearing commercial and (where city code regulated all signs, including appellant’s electronic message LLC v. City of Neptune Beach, 410 F.3d 1250, 1268-69 n.5 (11th Cir. 2005)

We do not consider whether the challenged ordinance unfairly temperature as applicable to both commercial and non-commercial speech). regulation with exception permitting messages displaying time and/or City of Fayetteville, Ark., 442 F.3d 1094, 1096-97 (8th Cir. 2006) (treating sign and non-commercial signs are prohibited under the ordinance. See La Tour v. Concord, N.H. Zoning Ordinance DALIANIS and HICKS, JJ., concurred; DUGGAN, J., concurred specially. art. 28-6-7 (2001). As such, both commercial movement except those parts which solely indicate date, time, or temperature.” instead applies equally to all “[s]igns which move or create an illusion of debatable. The ordinance does not restrict only commercial speech, and ordinance regulates only commercial speech, applies to this ordinance is Service Commission of New York, 447 U.S. 557 (1980), which applies when an

advertising of a non-electronic nature. U.S. at 508. The City continues to allow other means of commercial containing commercial advertising is to prohibit them. See Metromedia, 453 The most effective way to eliminate the problems raised by electronic signs to meet and advance its substantial interests of traffic safety and aesthetics. displaying commercial speech, has drawn an ordinance broader than necessary and temperature.” We disagree that the City, by prohibiting all electronic signs could ban all types of electronic signs, including those displaying time, date regulate the number, proximity or placement of electronic display signs or it means to meet its desired objectives. To protect its interests, the City could trial court found that “the City has available other, more narrowly tailored Finally, with respect to the fourth prong of the Central Hudson test, the p. 7 The four-prong Central Hudson

distracting and thus poses less of a traffic hazard than other messages. See rudimentary, the City could have reasonably found that such a message is less

City of San Diego, 453 U.S. 490, 509 (1981). “manifestly unreasonable and should not be set aside.” Metromedia, Inc. v. Fayetteville, 442 F.3d at 1097. Such determination by the City is not

Because a message displaying time, date and temperature is short and Central Hudson interests and reaches no further than necessary to accomplish its stated goals. On appeal, neither party has briefed the applicability of a test other than and temperature exception also directly and materially advances the City’s Hudson a closer question, but I would nonetheless conclude that the time, date interest). This exception in the ordinance makes the analysis under Central exception on the analysis. exception for time, date and temperature directly advances governmental the parties in their briefs and at oral argument discussed the effect of this 928 S.W.2d 344, 348-49 (Ky. 1996) (analyzing whether sign regulation’s and temperature in holding that the ordinance is unconstitutional. On appeal, exception for time, date and temperature. See Flying J Travel Plaza v. Com., U.S. at 566. In my view, Central Hudson Second, the superior court relied in part on the exception for time, date requires us to account for the further than necessary to accomplish its stated goals. Central Hudson, 447 directly advances that interest; and (4) whether the ordinance reaches no implement a substantial governmental interest; (3) whether the ordinance entitled to First Amendment protection; (2) whether the ordinance seeks to whether the advertising is neither unlawful nor misleading and is therefore

Central Hudson framework. of this appeal, we should analyze the First Amendment issues using the

. Accordingly, I agree with the majority that, for the purposes

constitutional). alia, all “electronic message center type signs,” and finding ordinance is likely time, place, and manner test to amended Concord ordinance prohibiting, inter Concord, N.H., 2007 WL 1847307, at *2, 4 (D.N.H. June 25, 2007) (applying place, and manner’ test . . . is used”); cf. Naser Jewelers, Inc. v. City of commercial and non-commercial signs and, instead, “more stringent ‘time, Ohio 2004) (Central Hudson does not apply if ordinance restricts both XXL of Ohio, Inc. v. City of Broadview Heights, 341 F. Supp. 2d 765, 783 (N.D. commercial and non-commercial speech, Central Hudson test not applicable); statute regulating automated telemarketing calls did not distinguish between be inappropriate”); Moser v. F.C.C., 46 F.3d 970, 973 (9th Cir. 1995) (where found issue moot, but concluded “that use of the commercial speech test would in residential neighborhoods should be analyzed under Central Hudson, court