Item No.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: MARIA ALICIA DUARTE, CMC, CITY CLERK
BY: JOHN M. FUNK, CITY ATTORNEY
DATE: APRIL 23, 2024
SUBJECT: DISCUSSION REGARDING REGULATION OF POLITICAL SIGNS
EXECUTIVE SUMMARY
The City Council will discuss a report on the City’s political sign ordinance. The report will address the possibility of imposing time restrictions for the display of political signs during pre-election periods in order to avoid what some residents may have previously seen as excessive accumulation of campaign signs far in advance of the respective election date.
RECOMMENDATION
That the City Council:
Discuss the subject of imposing time restrictions for the display of political signs during pre-election periods and provide any desired direction to City staff for further action.
BACKGROUND
At the City Council meeting on January 9, 2024, Councilmember Pemberton requested a report on the City’s political sign ordinance.
Like many cities, Downey maintains a comprehensive sign code that prohibits the display of outdoor signs without a permit but exempts several categories of signs, including political signs, subject to certain guidelines. These exemptions appear in Downey Municipal Code Section 9612. There are guidelines for political signs displayed on both residential and non-residential property, attached as Exhibit A.
In 2015, the United States Supreme Court decided the case entitled Reed v. Town of Gilbert, where the Court reviewed that (Arizona) city’s sign ordinance and reached the conclusion that municipal sign regulations must comport with the First Amendment of the U.S. Constitution. This means that when sign rules are content-based, they must satisfy the “strict scrutiny” standard, which requires the regulations to be narrowly tailored to serve a compelling government interest. This test is the highest level of scrutiny for First
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Amendment analysis and can be difficult to meet when content-based regulations are judicially challenged. When the test is not met, the regulations may be invalidated.
Sign rules are content-based when the law applies to the type of topic discussed or the idea or message expressed. Sign rules are content-neutral when they do not depend on the specific type of message or idea being conveyed and are more universally applicable.
Content-neutral regulations are subject to a lower level of judicial scrutiny that is much easier to satisfy than content-based regulations. An example of a content-neutral rule is the City’s prohibition of all signs on public property, pursuant to Downey Municipal Code Section 4118(a). This rule applies generally to all signs on public property or in the public right-of-way—without reference to type or category—which the City may remove with or without notice to the owner.
In the wake of the Reed decision, the adoption of different rules for different categories of signs proves challenging because such rules often depend on the message or idea being expressed. This renders them content-based in the eyes of the law and as a result they trigger the strict scrutiny standard, or the highest level of judicial scrutiny. While this standard is not impossible to meet, courts applying it typically find that content-based restrictions do not survive strict scrutiny review.
ANALYSIS
Time limits aimed exclusively at the display of political signs during pre-election periods would be content-based, for they depend on the type of message or idea being expressed. As an example, only, a requirement that political signs may not be displayed more than a certain number of days before an election is likely to be viewed as content- based because it explicitly applies only to political signs and is linked to the timing of an election. This type of regulation is unlikely to survive judicial review based on Reed and similar decisions.
Potential justifications for this type of regulation include motorist distraction, visual clutter, and overall aesthetic appeal, but these concerns must ordinarily be shown with particularity and by strong evidence for a potential time limit to overcome First Amendment concerns (which are more paramount on a pre-election basis). Judicial decisions repeatedly describe this exercise as a “heavy burden” to sustain.
In the attached guidelines, there is an existing regulation requiring that political signs be removed within 10 days after an election. This is an example of a regulation less vulnerable because the First Amendment concerns post-election are more diminished, and once the election has passed, political signs serve less purpose and can contribute to visual clutter. Existing regulations also prohibit signs that constitutes a traffic, safety, or pedestrian hazard, concerns which are often viewed as more legitimate by courts.
While not recent, there is federal case law invalidating a California municipal ordinance limiting the posting of political signs to a period of 60 days prior to an election. While this
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decision pre-dates the more recent (and seminal) Reed decision, it is worth noting for is consistency with Reed.
Significantly, municipalities may still regulate signs in ways that are content neutral, meaning that the regulations must apply equally to all signs regardless of their nature or message and cannot depend on the message or content of the sign. One possibility in this respect is a new category of signs such as noncommercial temporary event signs, to which uniform regulations based on size, location, time, and number might be applied.
However, post-Reed, the burden to carry for even these types of regulations remains substantial.
Another perspective is that political signs may be viewed as self-limiting by their very nature. Their content is necessarily focused on the election to which they relate. To call maximum attention to them, political signs usually begin to appear closer in time to the election. Conventional wisdom is that for fall elections, this often means around Labor Day.
The City’s sign code is a land use regulation, found in Article IX of the Downey Municipal Code. Land use regulations must first be considered by the Planning Commission for recommended action by the City Council. Accordingly, any new or amended sign regulation would first need review by the Planning Commission.
CITY COUNCIL PRIORITIES
Quality of Life, Safety & Infrastructure
FISCAL IMPACT
There is no fiscal impact.
ATTACHMENTS
Attachment A: Political Sign Regulations
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APRIL 23, 2024
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ATTACHMENT A
Signs Max. Area in
Square Feet (sf)
Maximum
Number
Max. Height in
Feet/Inches Additional Standards
Political sign,
residential
A maximum of 9
sf per sign; a total
sign area of 36 sf
per parcel
NR, provided that
total area of signs
does not exceed
max. area of 36 sf
per parcel
NR • Political signs shall maintain a minimum
setback of five (5) feet from the front or street
side property line and shall be subject to
Section 4118 of the Downey Municipal Code
• All such signs shall be removed by the tenant
or owner of the property within ten (10) days
of the election for which the sign was posted
• All sign copy shall conform to the State
Election Code
• No sign shall be located so as to constitute a
hazard to automobile, bicycle, or pedestrian
traffic, or a safety hazard including but not
limited to the obstruction of the location of fire
hydrants; visibility of traffic signs or signals;
vehicular, bicycle, or pedestrian directional
signs; and the line of sight of intersections or
sidewalks.
• Nothing in this section shall authorize any
sign poster or other person to trespass or
otherwise violate any rights of the property
owners or tenants of property on which signs
are posted, including the property owner’s right
to approve or disapprove locating the sign on
their property.
Political sign,
nonresidential
A maximum of 32
sf per sign; a total
sign area of 96 sf
per parcel
NR, provided that
total area of signs
does not exceed
maximum area of
96 sf per parcel
NR • Political signs shall maintain a minimum
setback of five (5) feet from the public right-
of-way. In the case of buildings with no
setbacks from the public right-of-way or a
fenced vacant site, political signs shall be
allowed to be affixed to the face of the building
or fencing but in no case shall present an
obstacle or block or impede access or
pedestrian movement.
• All such signs shall be removed by the tenant
or owner of the property within ten (10) days
of the election for which the sign was posted
• All sign copy shall conform to the State
Election Code
• No sign shall be located so as to constitute a
hazard to automobile, bicycle, or pedestrian
traffic, or a safety hazard including but not
limited to the obstruction of the location of fire
hydrants; visibility of traffic signs or signals;
vehicular, bicycle, or pedestrian directional
signs; and the line of sight of intersections or
sidewalks.
• Nothing in this section shall authorize any
sign poster or other person to trespass or
otherwise violate any rights of the property
owners or tenants of property on which signs
are posted, including the property owner’s right
to approve or disapprove locating the sign on
their property.
Notes:
NR = No Requirement beyond the development and design standards and any other applicable requirement(s) of the underlying zone or this article.