Time, Manner, Place Regulations / Exercise of “Police Powers” as part of Zoning or Land Use Codes

The following article originally appeared on the Small Business Administration website in February 2001, but it was subsequently removed.

In the United States, “police power” is the power inherent at every level of government, from the U.S. federal government to the states and jurisdictions within the states, to enact laws within constitutional limits to promote the general welfare of the public. This power extends to control of the time, manner or place certain activities or uses of property may occur.

The government’s police power, while seemingly broad, has its limitations. At a minimum, it is subject to the doctrine of “reasonable application.” However, because it is intended to provide for the public’s general welfare, courts apply “reasonable application” standards that may differ.

Here is a brief review of several cases pertinent to signage issues.

CASE: Village of Euclid v. Ambler Realty Co., 272 US 365 (1926)
HELD: Municipalities have the constitutional right to enact zoning ordinances for the purpose of promoting health, safety, moral, and general welfare objectives … this right (or exercise of police power) extends to land-use regulation for the purpose of protecting the availability of sunlight and open space, even if the regulation results in a diminution in the value of the subject property. (This holding gives “aesthetics” its first judicial recognition.)
CASE: Berman v. Parker, 348 U.S. 26, 33 (1954)
HELD: The concept of public welfare includes aesthetic concerns, and it is within the power of the legislature to determine that the community should be beautiful as well as healthy.
CASE: Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (This case also will be discussed under First Amendment issues)
HELD: Plurality Decision (upholding a lower-court decision): A city’s interest in avoiding visual clutter is sufficient to justify a complete prohibition of commercial off-premise signs [or outdoor advertising structures, commonly “billboards”]. (Emphasis added.)
CASE: Members of the City Council v. Taxpayers for Vincent, 466 U.S.789 (1984)
HELD: A city’s interest in avoiding visual clutter is sufficient to permit a ban on the posting of signs, including political signs, on public property. (Emphasis added.)
CASE: City/County of San Francisco v. Eller Outdoor Advertising Co., 192 Cal 3d. 643 (1987)
HELD: The state appellate court found that a restriction banning off-site signs for aesthetic purposes was a permissible exercise of police powers.
CASE: City of Cincinnati v. Discovery Network, 507 US 410 @ 428-29 (1993)(This case also will be discussed under First Amendment issues.)
HELD: Under certain circumstances, the government may impose reasonable restriction on the time, place or manner of engaging in protected speech, provided those restrictions are adequately justified without reference to the content of the regulated speech. (Emphases added.)
CASE: City of Ladue v. Gilleo, 512 U.S. 43 (1994)(A “noncommercial” message case.)
HELD: The First Amendment precludes a ban of lawn signs expressing a political, religious or personal message, even in the interests of promoting “aesthetics”, if the ban will completely foreclose this important medium of expression, and no adequate substitute is provided in the regulatory scheme.

In most states, legal issues regarding sign regulation no longer involve whether regulating signs for aesthetic purposes is within the police power, but whether the sign regulations can withstand judicial scrutiny if challenged under the First and/or Fourteenth Amendments.

Photo by Brandon Holmes on Unsplash

Wade Swormstedt

Wade Swormstedt

Wade is Executive Director of the Foundation for the Advancement of the Sign Industry. Formerly he was Editor and Publisher of Signs of the Times magazine.

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Posted in 1st Ammendment / Freedom of Speech, Content Neutrality (Reed v. Gilbert), Outdoor Advertising, Sign Codes, Small Business Administration, Supreme Court.