Cleveland Area Board of Realtors v. The City of Euclid

88 F.3d 382, 1996 U.S. App. LEXIS 16095, 1996 WL 376320
Court of Appeals for the Sixth Circuit·Decided July 8, 1996·No. 93-4209·Published·Cited by 28 cases

Opinions

DAUGHTREY, J., delivered the opinion of the court, in which CLELAND, J., joined. KENNEDY, J. (pp. 391-92), delivered a separate opinion concurring in part and dissenting in part.

DAUGHTREY, Circuit Judge.

The defendant, the City of Euclid, Ohio, appeals from the district court’s judgment in an action filed by the Cleveland Area Board of Realtors that challenged the validity of certain City ordinances regulating the size, number, and placement of signs in residential neighborhoods, as violative of the First Amendment’s free speech clause. The district court found that the ordinances were invalid, primarily because they were not content-neutral but also because — even if content-neutral — they were not narrowly tailored. For the reasons stated below, we affirm the district court’s judgment.

I. FACTUAL BACKGROUND

Before the ordinances at issue were enacted, the City allowed signs anywhere in a residential yard but limited them to five square feet. In November 1992, the first challenged ordinance, No. 246-1992, restricted the placement of real estate “For Sale” signs to the windows of homes in residential [384] areas, and limited the size of those signs to three square feet if the house were within 75 feet of a street and four square feet if the house was more than 75 feet away. A variance procedure was included for homes with obstructed views to their windows. The preamble to the original ordinance listed its rationales in the following section:

WHEREAS, Chapter 1377 of the Euclid Codified Ordinances limits accessory uses in residential districts and this Council has found it necessary to further regulate such use; and
WHEREAS, this Council determines and finds that real estate graphics and other commercial graphics installed in the yards of residential districts are detrimental to property values, damaging to the neighborhood stability and unnecessary as a mechanism to sell or market real estate or other commercial services; and
WHEREAS, real estate and other commercial graphics are an unneeded commercial intrusion into non-commercial residential neighborhoods; and
WHEREAS, this Council finds and determines that real estate signs, in particular, can damage the image and perception about the viability and desirability of a neighborhood as a good place to live and invest for persons of all races; and
WHEREAS, this Council takes note of a variety of alternative means available to persons working to market real estate and other commercial services, including but not limited to, mailings, flyers, newspaper ads, telemarketing and word of mouth; and
WHEREAS, in harmonious [sic], out-of-scale, or incompatible signs adversely affect property values, discourage economic development, and inhibit public convenience; and
WHEREAS, this Council desires to promote and preserve neighborhood aesthetics, peace, health, safety and welfare....

The Cleveland Area Board of Realtors (“CABOR”) and several realty companies sued under 42 U.S.C. § 1983, alleging that the City had violated the First Amendment by enacting the ordinance. The complaint sought a declaratory judgment that the ordinance was unconstitutional under the First Amendment, the due process clause, and the equal protection clause of the United States Constitution, as well as the Ohio Constitution.1 CABOR requested an injunction and expenses in bringing suit.

After CABOR sued in December 1992 and was granted a temporary restraining order, the city council amended the ordinance ten days before trial was scheduled, to apply to all commercial signs except those indicating the name and address number of the homeowner and those temporarily displaying the name of an architect, engineer, or contractor at work (Ordinance No. 5-1993). Trial of the case was rescheduled, and a week before it finally began, the council once again amended the ordinance, this time to cover all yard signs, commercial and non-commercial, except those displaying the residents’ name and address and pertinent security system information. The preamble to this final ordinance, No. 80-1993, noted the city council’s desire

... to maintain property values, maintain open space and a residential atmosphere in residential neighborhoods, prevent the nuisance of visual pollution and proliferation of signs, and limit the intrusion of commercial atmosphere in residential use districts.

The final ordinance also indicated that it was enacted to conform to a recent Supreme Court case, City of Cincinnati v. Discovery Network, 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), which the preamble interprets to

... require[ ] equal treatment of core commercial speech with noncommercial speech under the First Amendment ... where the visual pollution, aesthetics, diminution of safety and property values caused by one classification of sign over another, if any, may not be readily calculated....

Free access — add to your briefcase to read the full text and ask questions with AI

Cleveland Area Board of Realtors v. The City of Euclid, 88 F.3d 382, 1996 U.S. App. LEXIS 16095, 1996 WL 376320 (6th Cir. 1996).

88 F.3d 382 (Cleveland Area Board of Realtors v. The City of Euclid) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Bench Billboard Company v. City of Toledo
499 F. App'x 538 (Sixth Circuit, 2012)
Bench Billboard Company v. City of Covington, Kentucky
465 F. App'x 395 (Sixth Circuit, 2012)
Lowden v. County of Clare
709 F. Supp. 2d 540 (E.D. Michigan, 2010)
Carlson's Chrysler v. City of Concord
938 A.2d 69 (Supreme Court of New Hampshire, 2007)
Wilson v. Lexington-Fayette Urban County Government
201 F. App'x 317 (Sixth Circuit, 2006)
McQueary v. Stumbo
453 F. Supp. 2d 975 (E.D. Kentucky, 2006)
Pagan v. Fruchey
Sixth Circuit, 2006
CD Partners v. Jerry Grizzle
424 F.3d 795 (Eighth Circuit, 2005)
Lynn D. Tucker, Jr. v. City of Fairfield, Ohio
398 F.3d 457 (Sixth Circuit, 2005)
Tucker v. Fairfield
Sixth Circuit, 2005
Fehribach v. City of Troy
341 F. Supp. 2d 727 (E.D. Michigan, 2004)
Lamar Advertising Co. v. Township of Elmira
328 F. Supp. 2d 725 (E.D. Michigan, 2004)
XXL of Ohio, Inc. v. City of Broadview Heights
341 F. Supp. 2d 765 (N.D. Ohio, 2004)
King Enterprises, Inc. v. Thomas Township
215 F. Supp. 2d 891 (E.D. Michigan, 2002)
Aiello v. Town of Brookhaven
136 F. Supp. 2d 81 (E.D. New York, 2001)