City of Waterloo v. Markham

600 N.E.2d 1320, 234 Ill. App. 3d 744, 175 Ill. Dec. 862, 1992 Ill. App. LEXIS 1647
CourtAppellate Court of Illinois
DecidedOctober 5, 1992
Docket5-91-0222
StatusPublished
Cited by4 cases

This text of 600 N.E.2d 1320 (City of Waterloo v. Markham) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Waterloo v. Markham, 600 N.E.2d 1320, 234 Ill. App. 3d 744, 175 Ill. Dec. 862, 1992 Ill. App. LEXIS 1647 (Ill. Ct. App. 1992).

Opinion

JUSTICE CHAPMAN

delivered the opinion of the court:

The plaintiff, City of Waterloo, brought this action against the defendants, Dennis Markham and Barbara Markham, for violation of the city’s zoning ordinances dealing with the posting of free-standing and temporary signs within the city’s limits. The trial court allowed the defendants’ motions to dismiss on first amendment grounds. We reverse.

On January 30, 1990, the City of Waterloo filed suit in Monroe County, Illinois, against defendants, Dennis Markham and Barbara Markham, seeking to impose a fine for violation of a Waterloo zoning ordinance. The defendants maintained a temporary sign on their private premises which read “No 3 on 3.” This sign reflected the Mark-hams’ opposition to a proposed widening of Illinois State Route 3 from two lanes to three lanes through the City of Waterloo.

The complaints alleged that as of December 6, 1989, and each day thereafter, the Markhams maintained a temporary sign at their home in Waterloo, Illinois, in excess of the period permitted by section 4.17(n) of Waterloo’s zoning ordinance. Section 4.17(n) prohibits temporary signs from being maintained for a period in excess of 90 days, although time extensions may be granted by the Zoning Board of Appeals.

On March 13, 1990, the defendants filed a motion to dismiss the complaints and asserted that section 4.17(n) violates the United States Constitution (a) by according disparate treatment to commercial and noncommercial speech in violation of the equal protection clause of the fourteenth amendment, (b) by imposing unnecessary restrictions on political speech in violation of the first amendment, and (c) by being vague in violation of both the first amendment and the equal protection clause of the fourteenth amendment. The court allowed the motion on first amendment grounds.

The Waterloo zoning ordinance, section 4.17(n), reads as follows:

“Temporary signs, such as election signs, shall be allowed for a period not to exceed ninety (90) days, and shall not exceed ten (10) square feet of sign area. Time extensions may be granted by the Board of Appeals.”

Temporary signs are defined in section 1.09(b) as:

“A sign, banner, or other advertising device or display constructed of cloth, canvas, cardboard, wallboard, or other light temporary materials, with or without a structural frame, intended for a temporary period of display, such as decorative displays for holidays or public demonstrations.”

Plaintiff contends that the trial court’s findings that section 4.17(n) violated the free speech aspect of the first amendment were in error.

The United States Supreme Court has held that government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. Ward v. Rock Against Racism, (1989), 491 U.S. 781, 791, 105 L. Ed. 2d 661, 675,109 S. Ct. 2746, 2753.

We first address the content restrictions involved. The principle inquiry in determining content neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. (Ward, 491 U.S. at 792, 105 L. Ed. 2d at 676, 109 S. Ct. at 2754.) The controlling consideration is the government’s purpose. The government, in this case the City of Waterloo, contends that the purpose of these ordinances was purely a matter of aesthetics controlling the appearance of the city by requiring temporary signs to be removed after 90 days, regardless of their content or message.

The defendants allege that section 4.17(n) is not content neutral in that it regulates only temporary election signs as opposed to holiday displays, public demonstrations, or signs advertising the sale of homes. Unfortunately, the defendants have misinterpreted the term “such as election signs” in section 4.17(n) as limiting the ordinance to election and political messages. Such an interpretation, however, is contrary to the plain meaning of the ordinance as a whole. The quoted words were clearly inserted for illustrative purposes rather than as a limitation to election signs only. This is made all the more apparent by section 1.09, where a temporary sign (which would thus be subject to section 4.17(n)) is defined as “[a] sign, banner, or other advertising device or display *** such as decorative displays for holidays or public demonstrations.” (Emphasis added.)

Contrary to their claims, defendants have failed to demonstrate that the ordinances do not apply equally to commercial as well as to noncommercial signs, and given the ordinance’s plain meaning, no such interpretation is warranted. The government’s aesthetic purpose has nothing to do with content, and we find the ordinance to be content neutral.

We next determine if section 4.17(n) serves a significant governmental interest. In Members of City Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 805, 80 L. Ed. 2d 772, 787, 104 S. Ct. 2118, 2129), the Supreme Court held that the State may legitimately exercise its police powers to advance aesthetic values. Aesthetics have been recognized as a significant interest warranting governmental regulation of signs. Vincent, 466 U.S. at 805-07, 80 L. Ed. 2d at 787-89, 104 S. Ct. at 2129-30; Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882; see also Quadres, Content-Neutral Public Forum Regulations: The Rise of the Aesthetic State Interest, the Fall of Judicial Scrutiny, 37 Hastings L.J. 439 (1986).

The next question is whether section 4.17(n) is sufficiently narrowly tailored to serve the governmental interest. A regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate content-neutral interest. So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, the regulation is not invalid. (Ward, 491 U.S. at 800, 105 L. Ed. 2d at 681, 109 S. Ct. at 2758.) The City of Waterloo seeks to discourage and prevent the unsightly clutter and inevitable deterioration intrinsic to temporary signs. Section 4.17(n) does this with clear specificity, workable efficiency and complete content tolerance. Thus, the means chosen are not substantially broader than necessary.

Finally, we determine if the ordinance leaves open ample alternative channels for communication of the information. Section 4.17(n) easily meets the requirement. As plaintiff points out, numerous methods of communication remain available to the defendants, and other citizens as well, including handbills, radio, newspaper, bumper stickers, and window signs.

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600 N.E.2d 1320, 234 Ill. App. 3d 744, 175 Ill. Dec. 862, 1992 Ill. App. LEXIS 1647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-waterloo-v-markham-illappct-1992.