Carlson's Chrysler v. City of Concord

938 A.2d 69, 156 N.H. 399, 2007 N.H. LEXIS 202
CourtSupreme Court of New Hampshire
DecidedNovember 8, 2007
Docket2006-362
StatusPublished
Cited by5 cases

This text of 938 A.2d 69 (Carlson's Chrysler v. City of Concord) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlson's Chrysler v. City of Concord, 938 A.2d 69, 156 N.H. 399, 2007 N.H. LEXIS 202 (N.H. 2007).

Opinions

BRODERICK, C.J.

The defendant, City of Concord (City), appeals a ruling by the Superior Court {McGuire, J.) that a portion of the City’s zoning ordinance regulating electronic changeable copy signs is unconstitutional. We reverse.

The plaintiff, Carlson’s Chrysler (Carlson’s), owns and operates an automobile dealership in Concord. In 2005, Carlson’s submitted an application to the City to erect an electronic changeable copy sign on its property to replace an existing manual changeable sign. The proposed sign would electronically display messages advertising Carlson’s vehicle inventory. The City’s code administrator denied the application based upon a section of the sign ordinance that prohibits “[s]igns which move or create an illusion of movement except those parts which solely indicate date, time, or temperature.” CONCORD, N.H., ZONING ORDINANCE art. 28-6-7 (2001). Carlson’s appealed to the Concord Zoning Board of Adjustment [401]*401(ZBA), which, after a public hearing, upheld the decision of the code administrator. Carlson’s appealed the ZBA’s decision to the superior court, which held that the City’s ordinance violated the First Amendment to the United States Constitution as an unlawful infringement upon commercial speech.

The City appeals, arguing that the trial court erred: (1) in finding that the zoning ordinance constituted an unconstitutional infringement upon commercial speech; (2) by applying the wrong standard of review when it found no evidence that regulating electronic signs will promote public safety or aesthetics; and (3) in finding that there are less intrusive methods the City could use to achieve its goals.

Concord’s zoning ordinance contains detailed regulations governing signs. The purposes of the sign regulations are to:

(a) Encourage the effective use of signs as a means of communication in the City of Concord; (b) Maintain and enhance the appearance and aesthetic environment of the City, particularly in downtown Concord and Penacook, and along the highway corridors leading into the City; (c) Retain the City’s ability to attract and encourage economic development and growth; (d) Improve pedestrian and traffic safety; (e) Minimize potential adverse effects of signs on nearby public and private property; and (f) Enable fair and consistent enforcement of these sign regulations.

Concord, N.H., Zoning Ordinance art. 28-6-1 (2000). At the time of Carlson’s application for a sign permit, article 28-6-7 of the ordinance prohibited “(a) Signs which move or create an illusion of movement except those parts which solely indicate date, time, or temperature” and “(h) Signs which appear animated or projected, or which are intermittently illuminated or of a traveling, tracing, or sequential light type, or signs which contain or are illuminated by animated or flashing light, except such portions of a sign as consist solely of indicators of time, date, and temperature.” Id. art. 28-6-7(a), (h).

Following the trial court’s decision, the City amended its zoning ordinance to prohibit all electronic message centers, including those indicating time, date and temperature. The constitutionality of the amended statute was challenged in the United States District Court for the District of New Hampshire, where the district court held that the amended statute is content-neutral and constitutes a lawful time, place and manner restriction upon commercial speech in compliance with the test in Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). See Noser [402]*402Jewelers, Inc. v. City of Concord, 2007 WL 1847307, at *3-4 (D.N.H. June 25, 2007). The district court’s decision is not at issue in this appeal.

The First Amendment to the United States Constitution provides: “Congress shall make no law... abridging the freedom of speech, or of the press____” U.S. CONST, amend. I. The Fourteenth Amendment makes this limitation applicable to the States, see Gitlow v. New York, 268 U.S. 652, 666 (1925), and to their political subdivisions, see Lovell v. Griffin, 303 U.S. 444, 450 (1938).

While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.

City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994). Signs, “like other media of communication, combine communicative and noncommunicative aspects.” Metromedia, Inc. v. San Diego, 453 U.S. 490, 502 (1981). “As with other media, the government has legitimate interests in controlling the noncommunicative aspects of the medium, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects.” Id. (citation omitted). “Because regulation of the noncommunicative aspects of a medium often impinges to some degree on the communicative aspects, it has been necessary for the courts to reconcile the government’s regulatory interests with the individuals’ right to expression.” Id.

Commercial speech is defined as “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. v. Public Serv. Comm’n, 447 U.S. 557, 561 (1980). The Constitution “accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” Id. at 563. “The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Id. In Central Hudson, the Supreme Court adopted a four-part test for determining the validity of government restrictions on commercial speech. Under this test, courts consider: (1) whether the advertising is neither unlawful nor misleading and therefore entitled to First Amendment protection; (2) whether the ordinance seeks to implement a substantial governmental interest; (3) whether the ordinance directly advances that interest; and (4) whether the ordinance reaches no further than necessary to accomplish its stated goals. Id. at 566.

[403]*403The trial court found that the commercial speech proposed to be displayed by Carlson’s is neither unlawful nor misleading and therefore is entitled to First Amendment protection. However, the court also found that although the City’s concerns for public safety and aesthetics are “substantial governmental goals” that satisfy the second prong of the Central Hudson test, the City failed to meet its burden of proving that the ordinances advance its asserted interests and reach no further than necessary because the City presented no evidence that regulating the content of electronic display signs will promote aesthetics or public safety.

Regarding aesthetics, the trial court stated that

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Carlson's Chrysler v. City of Concord
938 A.2d 69 (Supreme Court of New Hampshire, 2007)

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Bluebook (online)
938 A.2d 69, 156 N.H. 399, 2007 N.H. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlsons-chrysler-v-city-of-concord-nh-2007.