Can a Developer Put a Commercial Sign in a Residential Use Area?

Full Question:

I live in a subdivision that has been deed restricted, since 1965. The deed restrictions clearly state the property is to be used for residential use only. The city owns some of the property that is zoned as residential property and is deed restricted as such. Can the city grant an easement to a developer which would allow the developer access to place a sign, 15 feet tall,advertising a motel, not on the same property? Per the zoning tables of our city, the permitted useage of the sign, a Tombstone type sign,is NON-RESIDENTIAL.
03/29/2010   |   Category: Zoning   |   State: Texas   |   #21581

Answer:

The answer will depend on the language of the ordinances involved and all the circumstances involved. It is possible for a city to ban commercial signs in a residential use area. It may be also possible for the developer to petition for a special use permit or variance. The most common way of providing relief from the provisions of a zoning ordinance is through the granting of a variance. This is an authorization to use land or to operate a business in a way that would otherwise be prohibited by the zoning ordinance. It is also used to give relief from, or permit reduction of, one or more requirements of the ordinance as applied to a particular site.

An appeal is usually made by the completion and filing of an appeal form as required by local procedures, and should include the specific reason for the appeal. The appeal may be brought by a person (the property owner, lessee or option holder) aggrieved by the refusal of the building inspector or designated administrative officer to approve an action, or by a person aggrieved because another person’s proposal was approved, or by a person who has been cited for a violation of the zoning regulations.

In general, commercial speech is defined as communication that proposes a commercial transaction or that is related to the economic interests of the speaker and its audience. Under the First Amendment, the government may regulate commercial speech that involves a lawful activity and is not misleading only if (1) the government has a substantial interest in regulating the speech, (2) the regulation of the speech directly advances the substantial governmental interest, and (3) the regulation is narrowly tailored to serve the substantial governmental interest. Restrictions that require examining the content of speech to be applied must pass strict scrutiny.

U.S. Supreme Court has held that a ban that permits certain types of commercial speech but prohibits other types is irrational and incapable of directly and materially advancing an asserted governmental interest.

Local governments may impose reasonable “time, place and manner” restrictions on speech in order to set forth the circumstances under which signs may be displayed. Restrictions that deal with the size, illumination, location and manner of posting signs without regard to the content of the speech are examples of local government enactments likely to be sustained as reasonable time, place and manner sign regulations, provided they advance a legitimate governmental interest. An example of a “time” regulation is a law allowing temporary signs to be posted for two months. An example of a “place” regulation is a requirement that signs not be placed within 15 feet of a road. An example of a “manner” regulation is a restriction on the size of signs. The U.S. Supreme Court has held that “time, place and manner” restrictions on First Amendment protected free speech will be sustained as constitutional if the regulations:

· Are justified without reference to the content of the signs subject to the law (i.e., content neutral);
· Are narrowly tailored to serve a significant governmental interest; and
· Leave open ample alternative channels for communication of the information

I suggest contacting the local zoning board or land use commission, or having a local attorney review all the facts and ordinances involved.

For further discussion, please see:

http://www.supreme.courts.state.tx.us/ebriefs/04/04034001.pdf