This summer’s United States Supreme Court decision in the case of Reed vs. Town of Gilbert made parts of some cities' sign code unconstitutional.
Recognizing that, the Surprise City Council held the first of several work sessions on the future of its sign code this week.
City staff already believed the sign code contained discrepancies, was too rigid and hurt the business community when Eric Fitzer took over as Surprise’s community development director. Fitzer said officials wanted to update the sign code, but decided to wait for a ruling in Reed vs. Town of Gilbert.
The Supreme Court released its opinion in June. It concluded that if a sign meets a city’s standards for things like size, type and placement, the city cannot disallow the sign because of its message.
Fitzer said the ruling led Surprise to cancel a hearing in a code violation case involving signs for an open house.
“Based on that Supreme Court case, we definitely weren’t going to win that case,” Fitzer said. “We ended up withdrawing that motion. So at this point, we’ve just kind of been holding off on really too much regulation of signage of within the right of way.”
Whether or not a city’s sign code is constitutional depends on if its content neutral or content based, said David Cortman, senior counsel and vice president of litigation for the Alliance Defending Freedom.
“If your sign code is content neutral, that means it does not take into account what the sign says to determine how to treat it,” said Cortman, who successfully argued Reed vs. the Town of Gilbert in front of the Supreme Court.
Two other key issues are whether Surprise will permit electronic billboards or signs in the right of way.
Neither is allowed under the current code. But Fitzer said the city temporarily permitted businesses to post signage in the right of way during the Great Recession and has continued to allow it to a certain extent.
“At this point, with this new code, we’re going to really kind of dive into what we’re going to allow, how much we are going to allow, time, place and manner,” Fizter said.
Surprise is considering adopting new sign code around mid-December, but Fitzer said the timeline could change. Additional city council work sessions and public hearings on city’s sign code are tentatively scheduled for November and December.