Memo - Sign Ordinance
MEMO
To:
City Council
From:
Nancy Anderson
Date:
August 3, 2005
Sign Ordinance
Subject:
I. BACKGROUND
A lawsuit was filed against the City of Hopkins challenging the constitutionality of the
sign ordinance. This is the Advantage Media, L.L.C., et al. vs. City of Hopkins lawsuit.
On July 29, 2005, U.S. District Court Judge Michael Davis issued a preliminary
injunction preventing the City from enforcing the sign ordinance while the injunction is in
place.
Because of the preliminary injunction the City has no sign ordinance and an emergency
interim ordinance is proposed for action tonight by the City Council. The interim
ordinance will not allow a sign to be erected over six square feet for the period of the
interim ordinance.
II. TONIGHT'S ACTION
The Council needs to consider if there is an emergency. If an emerqency is declared
the Council's first action is to move that there is an emerqencv due to the lack of an
ordinance requlatinq the construction. installation. and maintenance of siqns in the City
of Hopkins. This motion has to be approved by a 4/5 vote.
If the Council declares and emerqency the second action for the Council will be to
adopt Resolution 2005-74, approvinq an emerqency interim Ordinance 2005-954. The
motion has to be approved by a 4/5 vote.
III. FUTURE
A special public hearing with the Planning Commission to review the proposed sign
ordinance has been scheduled for Monday August 15th, and the Council will be taking
action on August 16.
On September 9th a summary judgment hearing is scheduled. It is proposed to have a
new sign ordinance in place before that hearing. A draft new sign ordinance is also
before the City Coundl tonight. Paul Reuvers and Jason Kuboushek, the attorneys
representing the City, will review the proposed ordinance with the City Council.
Attachments
CITY OF HOPKINS
Hennepin County, Minnesota
ORDINANCE NO. 2005-954
AN EMERGENCY INTERIM ORDINANCE FOR THE PURPOSE OF PROTECTING
THE PLANNING PROCESS AND THE HEALTH, SAFETY, AND WELFARE OF CITY
RESIDENTS AND FOR REGULATING THE CONSTRUCTION, INSTALLATION AND
MAINTENANCE OF SIGNS.
THE CITY COUNCIL OF THE CITY OF HOPKINS HEREBY ORDAINS AS FOLLOWS:
Section 1. Preamble Declaring Emergencv.
1.01 The City Council finds that the lack of an ordinance regulating signs in the City of
Hopkins constitutes an emergency threatening public health, safety and welfare because,
among other concems, (I) signs could be erected without regard to the manner in which
thc sizc or location of the sign or signs interferes with traffic sight lines, endangering or
distracting drivcrs and pedcstrians alike, thereby causing traffic hazards and; (2) signs
could be constructed in a manner or from such materials as are structurally unsound
vulnerable to collapse, endangering persons or property in the vicinity of the signs.
Section 2. Background and Findings.
2.0 I Previously, the City Council had adopted ordinances regulating the construction,
installation and maintenance of sih'llS located in both commercial and residential areas of
Hopkins (the "Sign Ordinances"). The Sign Ordinances regulated, among other matters,
the size and location of signs and the materials that could be used to construct the signs.
The intent of the Sign Ordinances was to provide for the safety ofpersohs in Hopkins and
to preserve and enhance the aesthetics of the city.
2.02 A lawsuit has bcen filed against th~ City of Hopkins (Advantage Media, L.L.C., et al. v.
Citv of Hopkins. U.S. Dlsl. Cl. File No. 04-04959, hereafter, the "Lawsuit") challenging
the constitutionality of the Sign Ordinances. On July 29,2005, U.S. District Court Judge
Michael Davis issued a preliminary injunction in the Lawsuit preventing Hopkins from
enforcing the Sign Ordinances while the injunction is in place.
2.03 As a result of the injunction, Hopkins is without any regulation regarding signs, including
but not limited to regulations for the size and location of signs, the number of signs that
might be pennitted on a propel1y and the types of materials from which signs can be
constructed.
. 2.04 Section 3.03 Subd. 4 of the Hopkins Charter authorizes the City Council to adopt an
"emergency ordinance" when the City Council makes a finding that an emergency exists
that requires adoption of an ordinance on an expedited basis.
2.05 Minnesota Statutes, Section 462.355, Subd. 4 authorizes the City of Hopkins to adopt an
'interim ordinance" that imposes .l moratorium on building and/or development activity
in the city while the city considers modifications to its comprehensive plan or official
controls.
Section 3. Review of Official Controls.
3.01 The City Council finds that it is necessary and proper for the Hopkins city staff to
conduct a review of the ordinances, regulations and Official Controls of Hopkins to
detcrmine whether and/or to what extent such ordinances, regulations and Official
Controls need to be modified to create constitutionally sound regulation of signs in the
City of Hopkins.
3.02 Upon completion of the review, the review shall be submitted by staff to the City Council
for its consideration of any modifications to the existing ordinances, regulations and
Official Controls of the City of Hopkins.
Section 4. Moratorium
4.01 For the purpose of protecting the plmU1ing process pending completion of modified
ordinances, regulations and Official Controls regarding signs in the City of Hopkins, a
moratorium is hereby adopted on the construction, installation and display of all signs in
excess of six (6) square feet of surface area. This moratorium does not apply to signs in
place as of the effective date of this ordinance. This Emergency Interim Ordinance and
the moratorium imposed by this Emergency Interim Ordinance shall remain in effect until
the date that is thirty (30) days after the effective date of this Emergency Interim
Ordinance or such earlier date as may hereafter be established by an ordinance duly
adopted by the City Council.
Section 5. Enforcement.
5.01 The City may enforce the provisions of this Emergency Interim Ordinance or enjoin any
violation thereof by mandamus, prohibitive or mandatory injunction or any other
'lppropriate legal or equitable remedy, including, but not limited to, remedies and
enforcement procedures provided in the statutes of the State of Minnesota or Ordinances
of the City of Hopkins, in any Court of competent jurisdiction.
Section 6. Severabilitv.
6.01 Every section, provision or part of this Emergency Interim Ordinance IS declared
.
severable from every other section, provision or part, and if any portion of this
Emergency Interim Ordinance is held invalid unenforceable by a Court of competent
jurisdiction, it shall not invalidate any other section, provision or part if this Emergency
lntenm Ordinance.
Section 7. Effective Date.
7.01 Pursuant to Section 3.03 Subd. 1 of the Hopkins Charter, this Emergency Interim
Ordinance shall be effective immediately.
Date Ordinance Takes Effect:
August 3, 2005
Eugene J. Maxwell, Mayor
ATTEST:
Terry Obermaier, City Clerk
APPROVED AS TO FORM AND LEGALITY:
August . 2005
Date
City Atlomey Signature
.
CITY OF HOPKINS
Hennepin County, Minnesota
RESOLUTION NO. 2005-74
A RESOLUTION APPROVING THE PREAMBLE TO PROPOSED ORDINANCE NO.
2005-954 DECLARING THE EXISTENCE OF AN EMERGENCY DUE TO THE LACK
OF AN ORDINANCE REGULATING THE CONSTRUCTION, INSTALLATION AND
MAINTENANCE OF SIGNS IN THE CITY OF HOPKINS.
WHEREAS, the City Council preyiously has adopted ordinances regulating the
construction, installation and maintenance of signs located in both commercial and residential
areas of Hopkins (the "Sign Ordinances"), and;
WHEREAS, a lawsuit has been filed against the City of Hopkins (Advantal!e Media,
L.L.C.. et al. v. City of Hopkins. U.S. Dist. Ct. File No. 04-04959, hereafter, the "Lawsuit")
challenging the constitutionality of the Sign Ordinances and, on July 29,2005, U.S. District
Court Judge Michael Davis issued a preliminary injunction in the Lawsuit preventing Hopkins
from enforcing the Ordinances while the injunction is in place, and;
WHEREAS, as a result of the injunction, Hopkins is without any regulation regarding
the size and location of signs, the number of signs that might be pelmitted on a property and the
types of materials from which signs can be constructed, and;
WHEREAS, Section 3,03 Subd. 4 of the Hopkins Charter authorizes the City Council to
adopt an "emergency ordinance" when the City Council finds that an emergency exists that
requires adoption of an ordinance on an expedited basis, and:
WHEREAS, Minnesota Statutes, Section 462.355, Subd. 4 authorizes the City of
Hopkins to adopt an 'interim ordinance" that imposes a moratorium on building and/or other
activity in the city while the city considers modifications to its comprehensive plan or official
controls, and;
WHEREAS, the City Council finds that it is necessary and proper to impose immediately
an interim ordinance to regulate signs in the City of Hopkins while a new, pelmanent sign
ordinance is considered and approved, and;
WHEREAS, the City Council has reviewed proposed Ordinance No. 2005-954, an
emergency intel;m ordinance regulating signs in the City of Hopkins, and the City Council
hereby adopts and approves the preamble in Section I of the proposed interim ordinance
which declares that the lack of a current sign ordinance constitutes an emergency.
NOW, THEREFORE, the City Council hereby resolves that the lack of an ordinance
regulating signs in the City of Hopkins constitutes and emergency and adopts and approves the
preamble in Section I of the proposed interim ordinance which declares that the lack ofa current
sign ordinance constitutes an emergency.
August 3, 2005
ATTEST:
Ten'y Obelmaier, City Clerk
APPROVED AS TO FORM AND LEGALITY:
City Attorney Signature
Eugene J. Maxwell, Mayor
August 3. 2005
Date
Case 0:04-cv-04959-MJD-JGL Dccument 19 Filed 07/29/2005 Page 1 of 34
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Advantage Media, LLC.. and
Hispanic Chamber of Commerce of Minnesota,
Plaintiffs.
MEMORANDUM
AND ORDER
v.
City of Hopkins,
Civil No. 04-04959 (MJD/JGL)
Defendant.
E. Adam Webb, Webb & Porter, LLC., and Stephen W. Cooper. Cooper Law
Office, Counsel for Plaintiffs.
Paul Donald Reuvers, Iverson Reuvers, LLC., Counsel for Defendant.
I. INTRODUCTION
Plaintiffs Advantage Media, LL.C., ("Advantage") and Hispanic Chamber of
Commerce of Minnesota claim that a sign ordinance in the City of Hopkins ("the
City") violates the First Amendment, both facially and as applied to them. The
instant matter before the Court is Plaintiffs' Motion for Preliminary Injunction
[Document No.1 0] to enjoin enforcement of the ordinance, which was heard on
July 27, 2005. As more fully detailed below, Plaintiffs have demonstrated a
likelihood of success on the merits, and Plaintiffs' Motion for Preliminary
Injunction shall be granted.
II. FACTUAL BACKGROUND
The facts of this case are largely undisputed. Plaintiff Advantage is a
Minnesota company that develops and operates advertising signs used by
Case 0:04-cv-04959-MJD-JGL Document 19 Filed 07/29/2005 Page 2 of 34
businesses, churches, organizations, and individuals to communicate both
commercial and noncommercial messages. Advantage claims that the City has a
shortage of advertising signs, so its representatives have expended substantial
time and effort investigating potential sign locations. All of the proposed locations
at issue are in commercial areas adjacent to major roadways.
The City's Sign Ordinance, HOPKINS ZONING CODE 9 570 (the "Ordinance"),
regulates all signs within the City, stating, among other things:
Permit Required. No or [sic] sign shall be erected,
altered, reconstructed, maintained or moved in the city
without first securing a permit therefor from the city.
Application for a permit shall be in writing addressed to
the zoning administrator and shall contain at least the
following information:
a) the exact location of proposed sign including
the name, address and legal description of
premises;
b) the name and address of owner of sign;
c) the size and dimensions of sign;
d) the cost of sign; and
e) the purpose and intended duration.
HOPI<I'JS ZONING CODE 9570.03 (emphasis in original).
The Ordinance states that its purpose is to "protect the public health safety,
morals, comfort, convenience and general welfare" and to "limit congestion in the
public right-of-way." HOPKINS CODE 9 515.03 (Intent and Purpose). Section 570.54
of the Ordinance, which concerns the business park district, was enacted "to
establish and maintain high quality site planning, architecture, signage and
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Case 0:04-cv-04959-MJD-JGL Dccument 19 Filed 07/29/2005 Page 3 of 34
landscape design to create an attractive and unified development character."
HOPKINS ORDINANCE No. 97-795; HOPKINS ZONING CODE 9 541.01; see id. at
9570.54.
On or about November 23, 2004. Advantage submitted four sign
application packages to the authorized City official. That City official refused to
accept the applications for processing. despite Advantage's repeated requests.
Because of the City's refusal to process the applications, Advantage requested a
-.4....
written statement regarding the processing- of the applications. Again, the City
official refused to accept the applicaLions and denied Advantage's request for a
written response. Despite the City's denial, Advantage left the completed
application packages with the City official for processing.
On December 4. 2004, the City mailed Advantage the application packages,
unprocessed. The City included a note simply stating that the application
packages were being returned. On January 21, 2005, the City Planner sent
Advantage a letter stating that "[t]hese applications were denied because they
failed to meet the size and location requirements set forth in the City's sign
ordinance." The proposed signs were 600 to 800 square feet, while the largest
sign permitted in the business district is 60 to 80 square feet. Advantage has not
posted the requested signs.
Plaintiff Hispanic Chamber of Commerce of Minnesota ("HCCM") is a
200-member nonprofit community and economic development organization that
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Case 0:04-cv-04959-MJD-JGL Dccument 19 Filed 07/29/2005 Page 4 of 34
provides training, technical assistance, workforce development, and other
resources to Latino individuals and entrepreneurs. HCCM's members are primarily
small businesses that benefit from signs such as those provided by Advantage,
because such signs are often the most targeted and cost efficient means for
HCCM's members to convey commercial and noncommercial messages. The topics
of those messages include products, services, ideas, candidates, issues, and events,
as well as political. ideological, and religious messages. HCCM claims that
alternative avenues of communication, such as newspapers and television, are
often cost-prohibitive or do not reach its targeted audience. HCCM seeks to post
signs on their and others' property, but because of the City's enforcement of the
Ordinance, HCCM claims that its members have refrained from erecting such
signs in fear of civil and criminal penalties, including fines, forfeiture of property,
and possible imprisonment.
Plaintiffs seek a preliminary injunction to enjoin the City from enforcing the
Ordinance in its entirety.
III.
DISCUSSION
A. Preliminary Injunction Standard
To prevail on a motion for preliminary injunction, a court must consider
..v:&~.. ~
(I) the moving party's probability of success on the merits; (2) the threat of
irreparable harm to the moving party; (3) the balance between this harm and the
injury that granting the injunction will inflict on other interested parties; and
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(4) the public interest in the issuance of the injunction. Vonage Holding CorP. v.
Minn. Pub. Utils. Comm'n, 290 F. Supp. 2d 993, 996 (D. Minn. 2003) (citing
Dataphase Sys.. Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en
bane)). No single factor is determinative; rather, the probability of success must
be examined in the context of the relative injuries to the parties and to the public.
Dataphase. 640 F.2d at 113; see West Publ'g Co. v. Mead Data Cent., Inc., 799
F.2d 1219, 1222 (8th Cir. 1986). Although no one factor is determinative,
likelihood of success on the merits is generally the touchstone inquiry. Dataphase,
640 F.2d at 113. The party requesting injunctive relief bears the "complete
burden" of proving all of the factors. Gelco Corp. v. Coniston Partners, 811 F.2d
414,418 (8th Cir. 1987).
Plaintiffs have clearly satisfied the second, third, and fourth elements of the
preliminary injunction analysis. For each day that passes while Plaintiffs-or any
citizen-are deprived of the constitutional right to post and read signs, such a
delay establishes the threat of irreparable injury. Elrod v. Burns, 427 U.S. 347,
373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.") (plurality opinion); see Riley
v. Nan Fed'n of the Blind, 487 U.S. 781, 802 (1988) (holding statute
unconstitutional, where "delay compels the speaker's silence"); Mga Susu, Inc. v.
County of Benton, 853 F. Supp. 1147, 1154 (D. Minn. 1994) (holding threat of
5
Case 0:04-cv-04959-MJD-JGL Dccument 19 Filed 07/29/2005 Page 6 of 34
criminal prosecution for the exercise of First Amendment freedoms established
threat of irreparable harm).
With regard to the third factOl , the balance of harms favors granting an
injunction where the threat to a plaintiffs First Amendment rights outweighs a
city's impaired ability to exercise its police powers. See Bukaka. Inc. v. Countv of
Benton, 852 F. Supp. 807. 811 (D. !\1inn. 1993) (holding that city's impaired
police powers were outweighed by plaintiffs "serious and imminent" First
Amendment rights). On the record before this Court, the balance of harms favors
Plaintiffs' expression of their First Amendment rights.
The final factor. the public interest, is also present here, because "the public
interest favors preventing enforcelTI('nt of an ordinance that unconstitutionally
restrains protected expression." Mga Susu, 853 F. Supp. at 1154.
Accordingly, to obtain a preliminary injunction, the success of Plaintiffs'
motion hinges upon whether Plaintiffs bear their burden of demonstrating a
substantial probability of success on the merits. The following sections analyze
this factor.
B. Standing
As an initial matter, Defendant challenges Plaintiffs' standing to raise as-
applied and facial challenges to the Ordinance. Plaintiff Advantage submitted a
sign application. and the City denied that application-initially without a written
reason. and later by providing a letter drafted almost 60 days later-stating that
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the "applications were denied became they failed to meet the size and location
requirements set forth in the City's sign ordinance." HCCM claims that its speech
has been chilled because although its members would like to display messages in
the City, the Ordinance prohibits them from doing so without being subject to the
"unbridled discretionary authority of City officials."
1. Traditional Standing
To establish standing. a plaintiff must demonstrate (I) that it has suffered
an "injury in fact" which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) a causal connection between the
injury and the complained-of conduct and that the injury is "fairly traceable to the
challenged action of the defendant, and not the result of the independent action
of some third party not before the court;" (3) and that it is "likely" rather than
merely "speculative" that the injury will be "redressed by a favorable decision."
Lujan v. Defenders ofWildlfe, 504 U.S. 555, 560 (1992).
Advantage clearly has traditional standing because it submitted an
application that the City initially refused to process. and later denied. This
application and denial unmistakably demonstrates that Advantage has as-applied
standing to challenge the Ordinance.
Further, because both Plaintiffs have submitted evidence that they have
refrained from posting signs out of fear that the City will enforce its Ordinance
against them. this self-censorship similarly gives them standing. See Krantz v. City
7
CCise 0 04-cv-04959-MJD-JGL Dccument 19 Filed 07/29/2005 Page 8 of 34
of Fort Smith, 160 F.3d 1214, 1217 (8th Cif. 1998) (holding that plaintiffs have
standing where they "have alleged and have sufficiently demonstrated an actual
and well-founded fear that the law in question will be enforced against them")
(citing Steffel v. Thompson, 415 U.S. 452, 462 (1974)),
Defendant also challenges both HCCM's direct and associational standing to
challenge the City's regulations, claiming that HCCM has no interest in the suit
that is distinct from a member of the public. To support this assertion, Defendant
points to another case before in this district in which Advantage Media sought to
add HCCM as a party in a Motion to Amend Complaint to Join Plaintiff, which
was referred to the Magistrate Judge. Advantage Media v. City of Eden Prarie,
Case No. 04-3582 (DSD/SRN) (D. Minn). In the Eden Prairie case, Advantage
filed its motion on March 11, 2005-two months before the May 15 discovery
deadline. On June 16, after considering deposition testimony from HCCM's
Executive Director Val Vargas. the Magistrate Judge denied Advantage's motion to
add HCCM as a plaintiff, concluding that HCCM lacked both direct standing and
associational standing. Eden Prarie, supra, at Docket No. 40. (June 16.2005).
In an attempt to bolster its standing argument, Defendant points to the
deposition testimony from the Eden Prarie case to support its claim that HCCM
lacks standing in this case. Specifically, Defendant cites the depositions of
Advantage principals Edward Daum and Dennis DuPont, as well as HCCM
8
Case 0:04-cv-04959-MJD-JGL Dccument 19 Filed 07/29/2005 Page 9 of 34
Executive Director Val Vargas. The Court does not see the relevance of that
evidence in this case.
Plaintiffs persuasively argue that the Eden Prairie testimony refers to a
wholly different city and a wholly distinct ordinance. so the deposition testimony
is inadmissible hearsay. Hearsay is defined as "a statement, other than one made
by the declarant while testifying at the trial or hearing. offered in evidence to
prove the truth of the matter asserted." FED. R. EVID. 80 I (c). Such evidence is
inadmissible unless it clearly falls within the purview of a recognized exception.
FED. R. EVID. 802.
The City's proffered evidence of deposition testimony falls within the
definition of hearsay. The questions and answers elicited may be enlightening as
(0 that city and the facts of that case. but they do not provide insight into
Plaintiffs' activities, perceptions, and intent with regard to the municipality at
issue: the City of Hopkins. Here, the City would like to use that testimony to prove
the truth of matters asserted regarding Hopkins. but that testimony is silent with
regard to the City of Hopkins and its distinct Ordinance. Because the Eden Prarie
deposition testimony stems from an unrelated case, because it is being offered as
evidence to prove the truth of the matter asserted, and because it does not fall
within a recognized exception to hearsay, that deposition testimony is
inadmissible here. For similar reasons, the magistrate judge's conclusion that
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HCCM lacks standing in the Eden Prarie matter is not persuasive with regard to
this case, which involves a different city and different statute.
Rather, the only non-hearsay evidence in this record regarding HCCM's
standing is the declaration of Val Vargas, which states that her organization's
members have refrained from erecting signs on their or others' properties because
they cannot risk civil and criminal penalties. including fines, forfeiture of
property, and possible imprisonment. Because this record lacks admissible
evidence to the contrary, this evidence is sufficient to demonstrate traditional
standing.
2. Facial Challenge
Defendant next argues that Plaintiffs lack sufficient standing to challenge
the Ordinance on its face. The two means by which a plaintiff may challenge a
statute or ordinance on its face are either (I) because it is unconstitutional in
every conceivable application or (2) because it seeks to prohibit such a broad
range of protected conduct that it is unconstitutionally overbroad. Members of
City Council of City of Los Angeies v. Taxpayers for Vincent, 466 U.S. 789. 797
(1984). The second means, the overbreadth doctrine, provides an exception to the
general principle that a party may only assert their own rights and not the claims
of third parties not before the court. See Village of Schaumburg v. Citizens for a
Better Env't, 444 U.S. 620, 634 (I 980).
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Plaintiffs have standing to facially challenge the Ordinance because they
have been injured by at least one provision of that Ordinance. Tanner Adver.
Group. L.L.C. v. Fayette County. 411 F.3d 1272, 1227 (llth Cir. 2005) (holding
that because sign company was injured by at least one provision of sign
ordinance. it has standing to challenge entire ordinance under the overbreadth
doctrine) (citing Soiantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (llth Cir.
2005) (holding plaintiff had standing to facially challenge all unconstitutional
elements of ordinance. regardless of whether those provisions were enforced
against it)). Further, HCCM's well-founded fear of prosecution because of the
Ordinance similarly provides it with standing to mount a facial challenge to the
Ordinance. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750. 755-56
(1988) (holding that "one who is subject to the law may challenge it facially
without the necessity of first applying for and being denied, a license"); Wavs v,
Citv of Lincoln, Neb.. 274 F.3d 514,518 (8th Cir. 2001) ("An ordinance
pmhibiting a broad range of protected expression may be facially challenged as
overbroad. ") .
3. Conclusion: Standing
Here. the denial of Advantage's application. as well as HCCM's declaration
that its members have a well-founded fear that the Ordinance will be enforced
against them if they posted advertising, sufficiently demonstrate the requisite
speclfic present objective harm or a rhreat of specific future harm. Because the
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record in the instant case demonstrates that Advantage has applied for-and was
denied-a permit for several signs, and because the evidence demonstrates that
the Ordinance has precluded HCCM and its members from placing signs in the
City. both Plaintiffs have demonstrated sufficient standing to challenge the
constitutionality of the Ordinance.
C. Content-Based Regulation
Plaintiffs next make the substantive argument that the Ordinance is
impermis,ibly content-based. in that it regulates all types of signs-categorizing
and regulating them based upon content. See HOPKINS ZONING CODE S 570.24;
570.27; 570.29: 570.37; 570.39: 570.43; 570.51: 570.53; 570.54; 570.59.
1. Considerations in Content-Based Inquiry.
Because signs are a protected form of expression, regulation of such
expression must meet the appropriate level of scrutiny to satisfy constitutional
limitations. City of Ladue v. Gilleo. 512 U.S. 43 (1994). The first inquiry in
determining the level of scrutiny in a First Amendment analysis is whether the
regulation is content-based or content-neutral. See id: Whitton v. City of
Gladstone. Missouri, 54 F.3d 1400, 1403 (8th Cir. 1995).
Content-neutral regulations must be both subject-matter and viewpoint
neutral. and those regulations are "justified without reference to the content of
the regulated speech." Consolidated Edison v. Pub. Servo Comm'n, 447 U.S. 530,
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537 (1980); see City of Renton v. Playtime Theatres. Inc.. 475 U.S. 41. 48 (1986);
Whitton, 54 F.3d at 1403. Such content-neutral regulations "are acceptable so
long as they are designed to serve a substantial government interest and do not
unreasonably limit alternative avenues of communication." City of Renton, 475
US at 46-47.
Content-based regulations, in contrast, occur when the content of the
speech determines whether the speech is subject to restriction; such regulations
are subject to strict scrutiny. United States v. Playboy Entm't Group, Inc., 529 U.S.
803.813 (2000); Whitton. 54 F.3d at 1403-04. Where an ordinance "prohibits
otherwise permitted speech solely 011 the basis of the subjects the speech
addresses," that ordinance is content-based and therefore unconstitutional. RAV.
v. City of Sf. Paul. 505 U.S. 377, 381 (I 992).
The Supreme Court has stated that "[t]he principal inquiry in determining
content neutrality. . . is whether the government has adopted a regulation of
speech because of disagreement with the message it conveys." Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (citation omitted). The preferential
treatment of commercial speech over political speech renders an ordinance
subject-matter based, and necessarily content-based. See City of Ladue, 512 U.S.
at 47 -48. Such a regulation "is constitutionally suspect because it grants certain
forms of commercial speech a greater degree of protection than noncommercial
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political speech, a practice which a plurality of the Supreme Court held to be
contellt-based." Whitton. 54 F.3d 1400 at 1404-05.
2. Whether Hopkins Sign Ordinance is Content-Based
An analysis of whether the Hopkins Ordinance is content-based first
requires an examination of that regulation's text.
As noted above, the Ordinance requires a permit for all signs in the City of
Hopkins. HOPKINS ZONING CODE 3570.03 ("No or [sic] sign shall be erected,
altered. reconstructed, maintained or moved in the city without first securing a
permit therefor from the city."). The Ordinance broadly defines a "sign" as
an outdoor structure either stationary or movable,
containing any writing, announcements, declaration,
demonstration, display, illustration, insignia or
illumination used to advertise or promote the
distribution of any merchandise or the sale of other
property or service of allY person.
Id. at 3570.01. subd. 4. A "sign" is also defined as
any billboard, showbill, showboard, or sign containing
advertising or directional matter: the term does not
include traffic directional signs erected and maintained
pursuant to law.
[d. at 3 570.01, subd. 2.
These defimtions make no reference to size, height, or other physical
characteristics. Even a small sign of two square feet is an "advertising sign" or
"billboard" if it "directs attention to a business, commodity, service or
entertainment not exclusively related to the premise where such sign is located, or
14
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to which it is affixed." !.Q." at 3 570.0 I, subd. 5. The Ordinance prohibits the
presellce of such signs "within 500 feet of public parks. rest areas, or residential
structures," and it requires removal of an existing sign if a residence is
subsequently built within 500 feet of it. Id. at 3 570.59. Thus, Plaintiffs accurately
note that a residence is prohibited from erecting, without a permit, a small sign
stating even such innocuous messages as "Go Vikings" or "Wal-Mart Destroys
Small Businesses" because they would not be "exclusively related to the premise
where such sign is located, or to which it is affixed." Id. at 3570.01, subd. 5.
The Ordinallce contains a number of other clearly content -based
subdivisions and definitions. Id. at 33 570.01 subd. 8 (business signs), subd. 9
(directional signs), subd. 12 (governmental signs), subd. 13 (monuments),
subd. 14 (name plates), subd. 18 (time/temperature signs); 570.24 (civic signs);
570.27 (political signs); 570.29 (construction signs); 570.37 (real estate signs);
570.39 (promotional signs for housillg); 570.43 (signs showing identity of
institutions or housing complex). Plaintiffs contend that through these definitions,
the Ordinance improperly bases its regulation upon the content of the message.
In several areas, the Ordinance's regulation of size and duration is
unquestionably based upon a sign's type and content. For example, political signs
are restricted in size and duration, but other types of messages are given more
latitude in both areas. Compare id. at 33 570.27 (limiting residential political sign
size to four square feet and to a duration of 30 days before and 7 days after an
15
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election); 570.51 (7) (four square feet); 570.53 (9) (same), with id. at 33 570.29
(construction signs may have 50 square feet and variable time limit); 570.31
(temporary signs with commercial content for new businesses may have 250
square feet and 60 days); 570.37 (limiting real estate signs to 25 square feet and
variable time limit); 570.39 (on-site promotional housing signs may be posted for
two years and may have 100 square feet, off-site have 32 square feet); 570.55
(permitting on-premises signs up to 60 days after use).
If an official must consider the content of a sign to determine whether an
ordillallce applies, then that ordinance is content-based. Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134 (1992) (striking ordinance in which an
official "must necessarily examine the content of the message that is conveyed');
Clear Channel Outdoor, Inc. v. City of St. Paul. No. 02-1060 (OWF / AJB) (D.
Minn. Aug. 4, 2003) (unreported), available at 2003 WL 21857830 at *4 (holding
unconstitutional a statute where an official "would need to read the sign in order
to determine whether it advc:rtised off-premises or on-premises services or
commodities, and thus to determine whether the ordinance applies, the ordinance
imposes a content-based restriction"); see Cafe Erotica, 360 F.3d at 1284-85
(holding that an ordinance "should set forth specific content-neutral grounds
under which a sign permit may be denied") (citing Thomas v. Chicago Park Dist.,
534 U.S. 316, 322 (2002) (upholding an ordinance listing thirteen specific
16
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grounds under which a permit application may be denied, none of which "has
anything to do with what a speaker might say")).
Defendant relies upon Eleventh Circuit precedent in its argument that the
Ordinance is content-neutral because it does not distinguish between viewpoints,
but instead regulates all types of signs in the same manner without suppressing
particular ideas or views. See Messer v. Citv of Douglasville, 975 F.2d 1505, 1509
(11 th Cir. 1992); see also Granite State Outdoor Advertising v. City of
St. Petersburg, 348 F.3d 1278, 1282 (11th Cir. 2003) (holding that ordinance was
content-neutral because it was enacted to promote uniformity, preserve
aesthetics, and foster safety, and because officials did not consider content of
signs before rendering decisions). Defendant also looks to the Sixth Circuit in
arguing that the Ordinance's size and height limitations are viewpoint- and
content -neutral because they only regulate a sign's non-expressive elements.
Prime Media Inc. v. Citv of Brentwood, 398 F.3d 814, 819 (6th Cir. 2005).
Defendant lastly contends that Plaintiffs have an alternative communication
avenue because they may feel free to submit billboards that satisfy the height and
size restrictions. See id. (holding that alternative communication opportunities
exists because ordinance permits billboards within the size regulations and do
"not affect any individual's freedom to exercise the right to speak and to distribute
literature in the same place where the posting of signs on public property is
prohibited") .
17
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But in contrast to its sister circuits, the Eighth Circuit makes no such
distinction regarding viewpoints but has instead held that an ordinance is content-
based where "it makes impermissible distinctions based solely on the content or
message conveyed by the sign." Whitton v. Citv of Gladstone, Mo., 54 F.3d 1400,
1404 (8th Cir. 1995) (emphasis in original). The Whitten court noted that. like
here, the types of words on regulated signs dictated their durationallimitations.
Whitton, 54 F.3d at 1404. Further, the Eighth Circuit expressly rejected an
argument-similar to Defendant's here-that a regulation is constitutionally
sound wherE' its stated purpose is "justified without reference to the content of the
regulated speech." Id. at 1406. As such, a regulation may not make a content-
based distinction "for reasons unrelated to the legitimate interest that prompted
the regulation." Id. at 1407. And under Whitton, the fact that Plaintiffs may have
an alternative venue does not justify an Ordinance's content-based regulation of
signs. See gene rail v id. (declining to join dissent's position that alternative
channels of speech existed). Here, because the Ordinance's classifications and
regulations depend necessarily upon a sign's content, these distinctions clearly
render the Ordinance content-based
Lastly, Defendant argues that Plaintiffs' criticism regarding time limits for
political signs is unfounded because the Ordinance section pertaining to the
duration of political signs, HOPKINS ZONING CODE 3570.27, has been preempted by
a state statute designating durational and numeric limits for noncommercial signs
18
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during an election year. See MtNN. STAT. 3 211B.045 (stating that "all
noncommercial signs of any size may be posted in any number from August 1 in a
state general election year until ten days following the state general election").
But Section 211B.045 regulates only the number and duration of
noncommercial signs during a "state general election year." Id. The state statute
makes not mention of. and therefore does not preempt, the Ordinance's
regulation of the size and location of political signs. Compare MINN. STAT.
3211 B 045 (regulating number and duration) with HOPKINS ZONING CODE
3 570.27 (regulating duration, size, and zoning district); see generally Bravton v.
City of New Brighton, 519 NW.2d 243 (Minn. Ct. App. 1994) (analyzing first-
amendment issue regarding city ordinance without any reference to MINN. STAT.
3 211B.045). Thus, the Ordinance continues to function with regard to regulation
of political sign sizes and locations at all times. See Goward v. Citv of
Minneapolis, 456 N.W.2d 460, 465 (Minn. Ct. App. 1990) (holding that an
"exception for campaign-related signs renders the ordinance content-based").
Further, because Section 211B.045 specifically limits its application only to the
"state general election year," and not to any other time, the Ordinance continues
to regulate all political signs at all other times. Lastly, even if the portion of the
Ordinance regulating political signs were fully preempted by state statute-and
this Court explicitly holds that it is not-the Ordinance's other content-based
19
,-
I
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discinctions (e.g., real estate, promotional housing, etc.) would remain effective
without being preempted by Section 211B.045.
Because the Ordinance's regulation of the size and duration of signs is
necessarily dependent upon the content of the messages themselves, and because
the Ordinance's content-based provisions are not preempted by state statute,
Plaintiffs have demonstrated a substantial likelihood of success in showing that
the Ordinance is content-based.
(a) Commercial VS. Non-Commercial Speech
Plaintiffs further contend that the regulation is impermissibly content-based
because the Ordinance favors commercial speech over noncommercial speech.
The Supreme Court has held that localities may not favor commercial over
noncommercial speech in addressing similar urban issues. Metromedia, 453 U.S.
at 513; see Citv of Ladue v. Gilleo, 512 U.S. 43, 50-51. 52 (1994) (invalidating
sign regulation that banned most signs but made exceptions for commercial
speech; holding that statutes may not discriminate based upon signs' messages
anclmay not prohibit too much protected speech). The Supreme Court has also
held chat, regardless of a city's intent, the distinguishing between types of content
renders an ordinance content-based. Citv of Cincinnati v. Discoverv Network, Inc.,
507 U.S. 410, 429 (1993) (holding that ordinance banning use of newsracks to
distribute commercial handbills but not newspapers was content-based because
"whether any particular newsrack falls within the ban is determined by the
20
Cas(lO'04-cv-04959..MJD-JGL Document 19 Filed 07/29/2005 Page 21 of 34
content of the publication resting inside that newsrack"). In the same way,
Plaintiffs have demonstrated a substantial likelihood of success that the City's
distinguishing between commercial speech (e.g., real estate) and noncommercial
speech (e.g., political signs) renders the Ordinance content-based.
D. Strict Scrutiny of Content-Based Regulations
Because Plaintiffs have demonstrated a likelihood of success in
demonstrating that the Ordinance is content-based, then that regulation "can
stand only if it satisfies strict scrutiny." United States v. Plavbov Entm't Group,
Inc., 529 U.S. 803. 813 (2000) (citation omitted). To satisfy strict scrutiny, a
regulation "must be narrowly tailored to promote a compelling Government
interest." Id. Generally, a content-based regulation is unconstitutional unless the
government proves that it is "necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end." United States v. Dinwiddie, 76 F.3d
913. 921 (8th Cir. 1996) (quotation omitted). "If a less restrictive alternative
,^ould serve the Government's purpose, the legislature must use that alternative."
Playbov, 529 U.S. at 813. The government bears the burden of proving that any
proposed alternatives would not be as effective as the challenged statute. Reno v.
ACLU. 521 U.S. 844, 874 (1997).
21
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1. Compelling Government Purpose
The first question is whether the Ordinance promotes a "compelling
government interest." The Supreme Court has noted that" [t]he principal inquiry
in determining content neutrality. . . is whether the government has adopted a
regulation of speech because of disagreement with the message it conveys." Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989). The Eighth Circuit has
interpreted Ward to "instruct reviewing courts to give controlling weight to what
the court determines is the government's true purpose for enacting it." Whitton,
54 F.3d at 1406. Such a "compelling" interest serves as a higher standard than
mere "substantial" state interests. See Whitton, 54 F.3d at 1409 (holding that
tralfic safety and aesthetic beauty are substantial. but not compelling. government
interests) .
Defendant states that the City's purposes in enacting the statute are to
"protect the public health safety, morals, comfort, convenience and general
welfare," and to "limit congestion in the public right-of-way." HOPKINS CODE
3515.03 (Intent and Purpose). In Whitton, the Eighth Circuit held that "a
municipality's asserted interests in traffic safety and aesthetics, while significant,
have never been held to be compeIIing." Id. at 1408 (emphasis added; citation
omitted) (holding that ordinance's durational restrictions on political signs failed
to satisfy strict scrutiny). The Eighth Circuit had previously held that a city's
interests in aesthetics, safety, and property values are substantial. but they are not
22
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sufficiently "compelling" to support a content-based restriction that is not the least
restrictive alternative. Gilleo v. Citv of Ladue, 986 F.2d 1180, 1181-82, 1183-84
(8th Cir. 1993), affd 512 U.S. 43 (1994).
Plaintiffs have demonstrated a substantial likelihood of success in showing
that while the City's proffered intent and interests may be significant, they are not
sufficiently compelling to withstand strict scrutiny.
2. Narrowly Tailored; Least Restrictive Means
To survive strict scrutiny, the government bears the burden of showing that
the Ordinance is "narrowly tailored" to promote its compelling interest. Playboy,
529 U.S. at 813. Both the Supreme Court and this District have held that a
regulation must set forth and follow "definite and objective standards" if
government officials are" empowered to limit citizens' ability to express
themselves." Young v. City of Roseville, 78 F. Supp. 2d 970, 975 (D. Minn. 1999)
(cataloging cases, including FW/PBS, Inc. v. Citv of Dallas, 493 U.S. 215 (I 990)).
In light of Defendant's stated interests in safety and aesthetics, including
sign size, the distinctions provided by the Ordinance (e.g., regarding political
signs, governmental signs, civic signs; and distinguishing city groups,
governmental agencies, churches, synagogues, schools, golf courses, and country
clubs) are not narrowly tailored (or the least restrictive means) to promote that
interest. The City could clearly regulate sign size without regard to a sign's
content, or in the parlance of the Ordinance, a sign's "purpose." HOPKINS ZONING
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CODE 3570.03. If the those content-based distinctions were eliminated from the
Ordinance. keeping a globally applicable size-limitation provision or size
limitation by zoning district, this might demonstrate a less-restrictive means of
achieving the City's interests in safety or aesthetics. But as the Ordinance now
stands, Plaintiffs have demonstrated a likelihood of success in demonstrating that
the Ordinance is not narrowly tailored to further the City's interests, nor is it the
least restrictive means of regulating those interests.
E. Central Hudson - Content-Based Regulations of Commercial Speech
Where content-based restrictions apply to commercial speech, courts use
the test set forth in Central Hudson Gas & Elec. Corp. v. Pub. Servo Comm'n, 447
U.S. 557 (1980). A content-based restriction on commercial speech violates the
First Amendment unless that restriction (1) is not unlawful, false, or misleading;
(2) seeks to implement a substantial governmental interest; (3) directly advances
that interest; and (4) reaches no further than necessary to accomplish that
interest. Central Hudson, 447 U.S. at 566. Because it is undisputed that the
speech at issue is not unlawful, false, or misleading, and because it is clear that
the City has a substantial sta te interest in traffic safety and aesthetics under
Whitton V. City of Gladstone, Mo., 54 F.3d 1400, 1409 (8th Cir. 1995) ("while
traffic safety and aesthetic beauty are admittedly substantial interests. they are
not (Qmpelling governmental interests"). the analysis under Central Hudson here
is limited to the final two factors.
24
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I. Direct Advancement of Substantial Government Interest
Plaintiffs assert that the City's interest in safety and aesthetics is not
substantial. and the Ordinance does not directly advance any such interest. The
requirement under Central Hudson that the government interest be "substantial"
is lower than that required for the strict-scrutiny analysis, outlined above. See
Whitton, 54 F.3d at 1409 (holding that "while traffic safety and aesthetic beauty
are admittedly substantial interests, they are not compelling governmental
interests. "). Whitton's holding that safety and aesthetics are "substantial
inlel'ests," the Ordinance satisfies the "substantial government interest" prong of
the Central Hudson analysis.
2. Narrow Tailoring to Substantial Government Interest
To survive constitutional scrutiny, a regulation must also be narrowly
tailored to further any such substantial government interest. This narrow tailoring
must be "a 'fit' between the legislature's ends and the means chosen to accomplish
those ends." Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480
(1989) (quotation omitted). A constitutionally acceptable fit is one:
that is not necessarily perfect, but reasonable; that
represents not necessarily the single best disposition but
one whose scope is in proportion to the interest served;
that employs to the least restrictive means but, as we
have put it in the other contexts discussed above, a
means narrowly tailored to achieve the desired
objective.
25
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ld.; see City of Cincinnati v. Discovery Network. Inc... 507 U.S. 410, 424 (1993)
(holding that ordinance prohibiting commercial-handbill distribution not
"reasonable fit" to interest in safety and esthetics; its distinction between
commercial and non-commercial speech is impermissible means of responding to
admittedly legitimate interests because it "bears no relationship whatsoever to the
particular interests that the city has asserted") (emphasis in original).
Here, the Ordinance at issue states that the its intent and purpose is to
"prol:ect the public health safety, morals, comfort, convenience and general
welfare," and to "limit congestion in the public right-of-way." HOPKINS CODE
3 515.03 (Intent and Purpose). Just as the ordinance in City of Cincinnati failed to
connect its interests with the distinctions between commercial and non-
commercial speech, the City's legitimate interests in orderly development, health,
safety, and morals bear no relationship to the Ordinance's distinguishing between
political signs, real estate signs, commercial signs, and other content-based
distinctions. Hopkins may have believed that its chosen method of regulation
furthers a significant governmental interest, but its differing regulations for
political. real estate, and commercial signs are not narrowly tailored. Rather,
Plaintiffs have demonstrated a substantial likelihood of success in showing that
the City's purposes would be furthered without distinguishing between types of
speech, as the Ordinance currently stands.
26
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3. Conclusion: Central Hudson Test
Because the determination of a sign's duration and size are dependent upon
the content of the speech, and because those factors are not related to the City's
proffered interests in safety and aesthetics, the Ordinance is not narrowly tailored
to further those interests. As such, Plaintiffs have also demonstrated a substantial
likelihood of success on the merits with regard to the Central Hudson test.
F. Prior Restraint
Plaintiffs next argue that the Ordinance creates an impermissible prior
restraint of speech. Requiring a permit to engage in an activity protected by the
First Amendment constitutes prior restraint. Mi?a Susu v. Citv of Benton, 853 F.
Supp. 1147, 1151 (D. Minn. 1994). Although courts impose a "heavy
presumption" against the validity of any prior restraint, a government may, in
some instances, balance competing uses of public forums by imposing permit
requirements. Forsvth Countv, Ga. v. Nationalist Movement, 505 U.S. 123,130
(1992). The degree of safeguards required in such cases depends on whether the
sign ordinance is content-based or content-neutral.
A content -neutral regulation requires only "adequate standards to guide the
official's decision and render it subject to effective judicial review." Thomas v.
Chicago Park Dist., 534 U.S. 316, 323 (2002). But a content-based regulation,
such as the Ordinance at issue, must meet the following three requirements:
27
Ca in 0 ('4.cv-04959-MJC-Jt;l_ DO';l:ment 19 Filed 07/29/2005 Page 28 of 34
(1) any restraint prior to judicial review can be imposed
only for a specified brief period during which the status
quo must be maintained; (2) expeditious judicial review
of that decision must be available; and (3) the censor
must bear the burden of going to court to suppress the
speech and must bear the burden of proof once in court.
Id. (citing Freedman v. Marvland, 380 U.S. 51, 58-60 (1965)) (quotation
omitted). Plaintiffs assert that the Ordinance lacks the second requirement,
expeditious judicial review.
1. Promptjudicial Review
The Ordinance allows persons who disagree with the City's determinations
regarding zoning issues to file, within 90 days, an appeal with the Board of
Adjustment, which then rules within 60 days, unless a 60-day extension is
requested. HOPKI:-.JS ZONING CODE 3 525.15, subd. 3. If applicants choose to appeal
the Board's decision, they may seek review by a Minnesota State District Court,
which allows for expedited case assignment. MINN. STAT. S 462.361 (providing for
dislrict court's review of municipalities' ordinances, rules, regulations, decisions
and orders); see MINN. R. GEN. PRAC 111.02; MINN. R. CIV. ApP. P. 118; City of
Littleton, Colo. v. Z.J, Gifts D-4, L.L.c., 541 U.S. 774, 781-82 (2004) (finding
ordinary rules of court in Colorado, which are similar to those in Minnesota,
assure prompt decision for applicant who seeks judicial review of license denial).
The above binding rules of judicial review, as well as the presumption that
"courts are aware of the constitutional need to avoid undue delay resulting in the
28
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unconstitutional suppression of protected speech," provides for adequate
safeguards in Hopkins ordinance. See Littleton, 541 U.S. at 782 (quotation and
modification omitted). As such, Plaintiffs have failed to demonstrate a substantial
likdihood of success in showing that the Ordinance lacks the proper procedural
safeguards.
G. Equal Protection
Plainriffs lastly contend that the Ordinance violates equal protection by
favoring signs posted by certain businesses and organizations over others, such as
Plaintiffs. Under the Equal Protection Clause ofthe Fourteenth Amendment,
which prohibits any state from "deny[ing] to any person within its jurisdiction the
equal protection of the laws," "all persons similarly situated should be treated
alike." Citv of Cleburne v. Cleburne Living Ctr., 473 U.S. 432. 439 (1985)
(citation omitted).
To establish a violation of equal protection based on selective enforcement.
a plaintiff must ordinarily show that" (1) the person, compared with others
similarly situated, was selectively treated; and (2) that such selective treatment
was based on impermissible considerations such as race, religion, intent to inhibit
or punish the exercise of constitutional rights, or malicious or bad faith intent to
injure a person." LaTrieste Restaurant & Cabaret. Inc. v. Village of Port Chester,
40 F.3d 587, 590 (2d Cir. 1994) (quotation omitted).
29
Ca3() 0'04-cv-04959..MJD-JGL Do';ument 19 Filed 07/29/2005 Page 30 of 34
The Ordinance at issue provides exemptions and regulations for undefined
civic and city groups, various governmental agencies, churches, synagogues,
schools, golf courses, country clubs, apartments, colleges, and health-care centers.
HOPKINS ZONING CODE 33570.24; 570.46. I Plaintiffs persuasively argue that
section 570.46 favors. without any justification, the speech of religious non-profit
organizations over other non-profit organizations, such as the HCCM, the Elks
Club, or the Masons.
"Like other classifications, regulatory distinctions among different kinds of
speech may fall afoul of the Equal Protection Clause." City of Ladue, 512 U.S. at
51 n.9. When confronted with similar ordinance text, another district court has
held that
Granting an exception for temporary signage only when
erected by such entities as semi-public agencies,
nonprofit organizations, or "permitted clubs", or only in
connection with limited and vaguely defined events,
shows an impermissible favoritism for certain types of
non-commercial speech and certain types of speakers
and. additionally. leal'es open tile door to abuse of
disc/'etion in determinations of wllo qualifies for tile
exception.
Those sections state. in part. "Civic and City groups are allowed temporary signs for city-
wide and community events," "Temporary civic signs are a permitted use across the right-of-
way on Mainstreet." and Signs may be permitted by Conditional Use Permit for public parks
and playgrounds, churches, synagogues, public libraries, public museums, public and
parochial schools, municipal buildings, golf course, country clubs, apartment buildings,
nursing homes, community centers. colleges, universities and private schools, hospitals, and
sanitarium." HOPKINS ZONING CODE'l'l 570.24; 570.46.
30
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Nat'] Adver. Co. v. Town of Babylon, 703 F. Supp. 228, 239 (E.D.N.Y. 1989)
(emphasis added), affd in part. rev'd in part on other grounds by 900 F.2d 551
(2d Cir. 1990) (holding that exemptions from noncommercial speech restriction
"impermissibly discriminates between types of noncommercial speech based upon
content"); see also Metromedia, Inc. v. San Diego, 453 U.S. 490, 515 (1981)
("With respect to noncommercial speech, the city may not choose the appropriate
subjects for public discourse. ").
Defendant makes the cursory argument that because Advantage's permits
were denied due to size restrictions, Plaintiffs cannot show that their signs were
selectively rejected in contrast to others similarly situated. But such a
demonstration is not necessary where, as here, Plaintiffs mount a facial challenge
to the statute. If an ordinance impermissibly interferes with the exercise of a
fundamental right. such as the speech rights of certain classes of persons, without
being necessary to further a compelling state interest, it violates equal protection.
See Massachusetts v. Murgia, 427 U.S. 307, 312 (1976).
In light of the above, Plaintiffs have demonstrated a substantial likelihood
of success on the merits regarding Equal Protection. Sections 570.24 and 570.46
,
favor granting permits to churches, synagogues, apartments, and civic
organizations-to the exclusion of secular non-profit organizations like the Elks
and non-named religious centers, such as mosques-without providing a
31
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compelling state interest in doing so. As such, Plaintiffs have demonstrated a
strong likelihood of success regarding their Equal Protection argument.
H. Severability
Defendant makes the final argument that if the Court determines that if any
provision of the Ordinance is unconstitutional, then that particular provision
could be severed from the whole. Severability of a local ordinance is a question of
state law. Citv of Lakewood v. Plain Dealer Publ'g Co. , 486 U.S. 750, 772 (1988).
Minnesota statutes provide guidance on how partial invalidity of a statute should
be implemented. MINN. STAT. 3 645.20; see Chanhassen Estates Residents Ass'n v.
City of Chanhassen, 342 NW.2d 335,339 n.3 (Minn. 1984) (applying rules of
statutory construction to municipal ordinances); see also Nightclub Mgmt., Ltd. v.
Citv of Cannon Falls, 95 F. Supp. 2d 1027 (D. Minn. 2000) (applying section
645.20 to municipal ordinance). Section 645.20 states as follows:
Unless there is a provision in the law that the provisions
shall not be severable, the provisions of all laws shall be
severable. If any provision of a law is found to be
unconstitutional and void, the remaining provisions of
the law shall rrmain valid, unlrss the court finds the valid
provisions of the law are so essentially and inseparably
connected with, and so dependent upon, the void
provisions that the court cannot presume the legislature
would have enacted the remaining valid provisions
without the void one; or unless the court finds the
remaining valid provisions, standing alone, are incomplete
and are incapable of being executed in accordance with
the legislative intent.
MINN. STAT. ~ 645.20 (emphasis added).
32
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Plaintiffs persuasively contend that the challenged content-based
regulations (and regulations violating equal protection) are pervasive and are
scattered throughout the ordinance, so the few provisions that would remain after
severing the offending portions would be incapable of execution. Rather, the
Court would have to fill a legislative role by supplying constitutionally sound
language, and that remedy is clearly prohibited.ll, Chapman v. Comm'r of
Revenue, 651 NW.2d 825, 836 (Minn. 2002) (holding that a court "cannot add
language to a statute in order to render it constitutionally permissible").
Removal of the offending sections would render the Ordinance a mere shell
of its current construction. Plaintiffs have demonstrated a substantial likelihood of
success with regard to the following content-based portions of the Ordinance:
33 570.01 subd. 8 (business signs), subd. 9 (directional. non-advertising signs),
subd. 12 (governmental signs), subd. 13 (monuments), subd. 14 (name plates),
subd. 18 (time/temperature signs); 570.03 (permit required); 570.24 (civic
signs); 570.27 (political signs); 570.29 (construction signs); 570.37 (real estate
signs); 570.39 (promotional signs for housing); 570.43 (signs showing identity of
institutions or housing complex). Similarly, the following sections are
impermissibly content-based because they refer to, and necessarily depend upon,
the content-based portions above; 570.51 (R districts); 570.53 (B and I districts);
and 570.54 (business park district).
33
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If the court were to remove these offending sections of the Ordinance,
which comprise a great portion of Section 570, "the remaining valid provisions,
standing alone. are incomplete and are incapable of being executed in accordance
with the legislative intent." MII'\N. STAT. 3 645.20; see Chicago & N.W. Rv. Co. v.
RR & Warehouse Comm'n of Minn., 280 F. 387, 400 (D. Minn. 1922) (holding
that entire statute must fail because invalid portions were "vital" and because of
improbability that legislature would have passed statute without the offending
portions). Accordingly, the Court concludes that Plaintiffs have demonstrated a
substantial likelihood of success that the remainder of the Sign Ordinance, Section
570 of the Hopkins Zoning Code. is unenforceable.
IV. CONCLUSION
Because Plaintiffs have successfully demonstrated the Dataphase elements,
the Court concludes that a preliminary injunction preventing enforcement of the
Section 570 of the Hopkins Zoning Code.
Based upon the files, records, and proceedings herein, IT IS HEREBY
ORDERED that Plaintiffs' Motion for Preliminary Injunction [Document No. 10] is
GRANTED.
Dated: July 29, 2005
s/ Michael J. Davis
Judge Michael J. Davis
United States District Court
34
SECTION I - PURPOSE AND DEFINITrONS
570.01. Findings, purpose and effect.
a. Findings. The city council hereby finds as follows:
1. Exterior signs have a substantial impact on the character and quality of the
enviroJill1ent.
2. Signs provide an import:mt medium through which individuals may convey a
variety of messages.
3. Signs can create traffic hazards, aesthetic concerns and detriments to property
values, thereby threatening the public health, safety and welfare.
4. The city's zoning regulations have always included the regulation of signs in an
effort to provide adequate means of expression and to promote the economic
viability of the business community, while protecting the city and its citizens from
a proliferation of signs of a type, size, location and character that would adversely
impact upon the aesthetics of the community and threaten the health, safety and
welfare of the community. The regulation ofthe physical characteristics of signs
within the city has had a positive impact on traffic safety and the appearance of
the community.
b. Purpose and intent. It is not the purpose or intent of this sign ordinance to regulate the
message displayed on any sign; nor is it the purpose or intent ofthis article to regulate
any building design or any display not defined as a sign, or any sign which cannot be
viewed from outside a building. The purpose and intent of this article is to:
1. Regulate the number, location, size, type, illumination and other physical
characteristics of signs within the city in order to promote the public health, safety
and welfare.
2. Maintain, enhance and improve the aesthetic environment of the city by
preventing visual clutter that is a threat to traffic safety and is harmful to the
appearance of the community.
3. Improve the visual appearance of the city while providing for effective means
of communication, consistent with constitutional guarantees.
4. Provide for fair and consistent enforcement of the sign regulations set for
herein under the zoning authority of the city.
c. Effect. A sign may be erected, mounted, displayed or maintained in the city if it is in
conformance with the provisions of these regulations. The effect of this sign ordinance,
as more specifically set forth herein, is to:
1
1. Allow a wide variety of sign types in commercial zones, and a more limited
variety of signs in other zones, subject to the standards set forth in this article.
2. Allow certain small, unobtmsive signs incidental to the principal use of a site in
all zones when in compliance with the requirements of this article.
3. Prohibit signs whose location, size, type, illumination or other physical
characteristics negatively affect the environment and where the communication
can be accomplished by means having a lesser impact on the environment and the
public health, safety and welfare.
4. Provide for the enforcement ofthe provisions ofthis article.
570.03 Severability
I f any section, subsection, sentence, clause, or phrase of this Sign Ordinance is for any reason
held to be invalid, such decision shall not affect the validity of the remaining portions of this
Sign Ordinance. The City Council hereby declares that it would have adopted the Sign
Ordinance in each section, subsection, sentence, or phrase thereof, irrespective of the fact that
anyone or more sections, subsections, sentences, clauses, or phrases be declared invalid.
570.05 Definitions.
The following words and telms, when used in this Sign Ordinance, shall have the following
meanings, unless the context clearly indicates otherwise:
Abandoned sign - any sign and/or its supporting sign structure which remains without a
message or whose display surface remains blank for a period of one (1) year or more, or any sign
which peliains to a time, event or purpose which no longer applies, shall be deemed to have been
abandoned. Pelmanent signs applicable to a business temporarily suspended because of a change
in ownership or management of such business shall not be deemed abandoned unless the
property remains vacant for a period of one (1) year or more. Any sign remaining after
demolition of a principal structure shall be deemed to be abandoned. Signs which are present
because of being legally established nonconforming signs or signs which have required a
conditional use permit or a variance shall also be subject to the definition of abandoned sign.
Awning - a roof-like cover, often offabric, plastic, metal or glass designed and intended for
protection from the weather or as a decorative embellishment, and which projects fi'om a wall or
roof of a structure primarily over a window, walk, or the like. Any part of an awning which also
projects over a door shall be counted as an awning.
Awning sign - a building sign or graphic printed on or in some fashion attached directly to the
awning material.
2
Balloon sign - a temporary sign consisting of a bag made of lightweight material supported by
helium, hot, or pressurized air which is greater than twenty-four (24) inches in diameter.
Banner - any temporary sign of lightweight fabric or similar material mounted to a pole or a
building at one (1) or more edges. Flags, as defined herein, shall not be considered banners.
Building - any structure used or intended for supporting or sheltering any use or occupancy.
Building marker - memorial signs or tablets, names of buildings and date of erection when cut
into any masonry surface or inlaid so as to be part of the building or when constructed of bronze
or other noncombustible material.
Building sign - any sign attached or supported by any structure used or intended for supporting
or sheltering any use or occupancy.
Cabinet sign - any wall sign that is not of channel or individually mounted letter construction.
Canopy - a roof-like cover, often of fabric, plastic, metal, or glass on a support, which provides
shelter over a doorway.
Canopy sign - any sib'll that is part of or attached to a canopy, made of fabric, plastic, or
structural protective cover over a door or entrance. A canopy sign is not a marquee and is
different from service area canopy signs.
Changeable copy sign - a sign or portion thereof with characters, letters, or illustrations that can
be changed or rearranged without altering the face or the surface of the sign.
Directional sign - any sign which serves solely to designate the direction of any place or area
and, as such, shall be located on the same lot as said place or area. Examples include "entrance"
and "exit" signs.
Elevation - the view ofthe side, front, or rear of a given structure(s).
Elevation at'ea - the area of all walls that face any lot line.
Erect - activity of constructing, building, raising, assembling, placing, affixing, attaching,
creating, painting, drawing or any other way of bringing into being or establishing.
Flag - any fabric or similar lightweight material attached at one end of the material, usually to a
staff or pole, so as to allow movement of the material by atmospheric changes and which
contains distinctive colors, patterns, symbols, emblems, insignia, or other symbolic devices.
Flashing sign - a directly or indirectly illuminated sign which exhibits changing light or color
effect by any means, so as to provide intermittent illumination which includes the illusion of
intelmittent flashing light by means of animation. Also any mode oflighting which resembles
zooming, twinkling, or sparkling.
3
Freestanding sign - any sign which has supporting framework that is placed on, or anchored in,
the ground and which is independent from any building or other structure.
Frontage - the line of contact of a property with the public right-of-way.
Grade - grade shall be construed to be the final ground elevation after construction. Earth
mounding criteria for landscaping and screening is not part of the final grade for sign height
computation.
Ground sign - any freestanding sign with its sign face mounted on the ground or mounted on a
base at least as wide as the sign and which has a total height not exceeding eight (8) feet.
Height of sign - the height of the sign shall be computed as the vertical distance measured from
the base ofthe sign at grade to the top of the highest attached component of the sign.
Historic or commemorative plaque - any building sign indicating the name of a building, the
date of erection and incidental information about its construction and which is cut into a masonry
surface or made of bronze or other pemlanent material.
Hotel, motel, motor hotel - any building or combination of buildings contained six or more
rooms used for sleeping purposes by guesl on a transient basis.
Identification sign - any sign which is uS0d to distinguish a site as detennined by the owner or
agent of the sileo
Illuminated sign - any sign which contains an element designed to emanate artificial light
internally or externally.
Incidental sign - a sib'll that has a purpose secondary to the use of the lot on which it is located,
such as "telephone", "drive-up window", "cash machine", "air", and other similar directives.
Also see Directional Sign and Traffic Control Sign.
Interior sign - a sign which is located within the interior of any building, or within an enclosed
lobby or court of any building, and a sign for and located within the inner or outer body, court or
entrance of any theater.
Issuing Authority - the City of Hopkins Department of Economic Development and Planning
Legally established nonconforming sign - any sign and its support structure lawfully erected
prior to the effective date of this ordinance which fails to confonn to the requirements of this
ordinance. A sign which was erected in accordance with a variance granted pl10r to the adoption
of this ordinance and which does not comply with this ordinance shall be deemed to be a legal
nonconfomling sign. A sign which was unlawfully erected shall be deemed to be an illegal sign.
4
Marquee - any permanent roof-like stmcture projecting beyond a theater building or extending
along and projecting beyond the wall of that building, generally designed and constructed to
provide protection from the weather.
Marquee sign - any building sign painted, mounted, constructed or attached in any manner, on a
marquee.
Message center - see Changeable Copy Sign.
Monument sign - any freestanding sign with its sign face mounted on the ground or mounted on
a base at least as wide as the sign and which has a height exceeding eight (8) feet.
Multiple tenant site - any site which has more than one (1) tenant, and each tenant has a
separate ground level exterior public entrance.
Mural - a work of graphic 3.11 painted or applied to a building wall(s) which contains no
advertising or logos.
Official signs and notices - signs 3.11d notices erected 3.11d maintained by public officers or public
agencies within their telTitorial jurisdiction and pursuant to and in accordance with direction or
authorization contained in federal, state, or local law for the purposes of carrying out an official
duty or responsibility. Historical markers authorized by state law and erected by state or local
govenunental agencies or nonprofit historical societies and star city signs may be considered
official signs.
On-premise messages - identify or advertise an establishment, person, activity, goods, products
or services located on the premises where the sign is installed.
Opaque sign face - the nontransparent face for an intemally illuminated sign. Illumination shall
be emitted only for the name, trademark, logo, distinctive symbol, or other similar device, thing,
or text used to identify a particular business, institution, activity, place, person, product or
servIce.
Parapet (wall) - that portion of building wall that rises above the rooflevel.
Permanent sign - a non-temporary sign designed and intended for long-term use.
Pole sign - see Pylon Sign.
Political sign - any sign posted by a person or group promoting a political issue or a candidate
for political office or commenting on issues or promoting opinions.
Portable sign - any sign which is manifestly designed to be transported, including by trailer or
on its own wheels, even though the wheels of such sign may be removed and the remaining
chassis or support is converted to another sign or attached temporarily or permanently to the
ground since this characteristic is based on the design of such a sign.
5
Porte cochere - a roofed structure or roof-like cover, extending from the entrance of a building
and which provides shelter over a doorway.
Principal building - the building in which the principal primary use of the lot is conducted.
Lots with multiple principal uses may have multiple principal buildings, but storage buildings,
garages, and other clearly accessory uses shall not be considered principal buildings.
Projecting sign - any sign which is affixed to a building or wall in such a manner that its leading
edge extends more than two (2) feet beyond the surface or such building or wall face.
Property owner - legal owner of propeliy as officially recorded by Hennepin County.
Public building - a non-residential building, owned by any governmental agency, which is
primarily used for governmental purposes.
Public in terest messages - are limited to official signs and notices, public utility signs,
directional signs, holiday decorations, historical markers, commemorative plaques, signs and
notices relating to service clubs, religious and charitable organizations, political and ideological
signs unrelated to election issues or candidates, and political and ideological signs unrelated to
any election but expressing ideological or political views.
Public notices - official notices posted by public officers, employees or their agents in the
perfom1ance of their duties, or as directed by such officers, employees or agents.
j'ublic street right-of-way - the plal1l1ed 11ght-of-way for a public street in accordance with the
most recently adopted Master Street Plan of the City.
Public utility signs - warning signs, notices, or markers which are customarily erected and
maintained by public or privately owned public utilities, as essential to their operations.
Pylon sign - any freestanding sign which has its supportive structure(s) anchored in the ground
and which has a sign face elevated above ground level by pole(s) or beam(s) and with the area
below the sign face open.
Residential district - any district zoned for residential uses.
Roof - the exterior surface and it supporting structure on the top of a building or structure. The
structural make-up of which conforms to the roof structures, roof construction and roof covering
sections of the Uniform Building Code.
Roof line - the upper-most edge of the roof or in the case of an extended facade or parapet, the
upper-most height of said facade.
Roof sign - any sign erected and constructed wholly on and above the roof of a building,
suppOlied by the roof structure, and extending vertically above the highest portion of the roof.
6
Roof sign, integral - any building sign erected or constructed as an integral or essentially
integral part of a nonnal roof structure of any design, so that no part of the sign extends
vertically above the highest portion of the roof and so that no part of the sign is separated from
the rest of the roofby a space of more than six (6) inches.
Rotating sign - a sign or portion of a sign which turns about on an axis.
Setback, front - the minimum horizontal distance permitted between the public right-of-way and
a structure on the premises. In instances in which a property fronts on more than one (I) street,
front setbacks are required on all street frontages.
Setback, rear - the minimum hOlizontal distance permitted between the property line opposite
the principal street frontage and a structure on the premises.
Setback, side - the minimum horizontal distance permitted between the side lot line and a
structure on the premises.
Shimmering signs - a sign which reflects an oscillating sometimes distOlied visual image.
Sign - any stmcture, fixture, placard, announcement, declaration, device, demonstration or
insignia used for direction, information, identification or to advertise or promote any business,
product, goods, activity, services or any interests.
Sign face - the surface of the sign upon, against, or through which the message of the sign is
exhibited.
Sign structure - any stmcture including the supports, uprights, bracing and fi'amework which
supports or is capable of supporting any sign.
Site - a plot or parcel of land, or combination of contiguous lots or parcels of land, which are
intended, designated, and/or approved to function as an integrated unit.
Strin gel' - a line of string, rope, cording, or an equivalent to which is attached a number of
pennants.
Suspended sign - any building sign that is suspended from the underside of a horizontal plane
surface and is connected to this surface. See Section 19.126.1 for graphic illustration.
Total site sign age - the maximum permitted combined area of all freestanding and wall
identification signs allowed on a specific property.
Traffic control sign - see Official Sign.
Visible - capable of being seen by a person of normal visual acuity (whether legible or not)
without visual aid.
7
Wall - any structure which defines the exterior boundaries or courts of a building or structure
and which has a slope of sixty (60) degrees or greater with the horizontal plane.
Wall sign - any building sign attached parallel to, but within two (2) feet of a wall, painted on
the wall surface of, or erected and confined within the limits of an outside wall of any building or
structure, which is supported by such wall or building, and which displays only one (1) sign
surface.
Window sign - any building sign, pictures, symbol, or combination thereof, designed to
communicate infonnation about an activity, business, commodity, event, sale, or service, that is
placed inside a window or upon the window panes or glass and is visible from the extelior of the
window.
SECTION II - ADMINISTRATION AND ENFORCEMENT
570.07. Permit required.
No sign shall be erected, altered, reconstructed, maintained or moved in the city without first
securing a permit from the city. The content of the sign shall not be reviewed or considered in
detennining whether to approve or deny a sign permit. Application for a permit shall be in
writing addressed to the issuing authority and shall contain the following information:
a. names and addresses of the owners of the display structure and property;
b. the address at which any signs are to be erected;
c. the lot, block and addition at which the signs are to be erected and the street on
which they are to front;
d. a complete set of plans showing the necessary elevations, distances, size and
details to fully and clearly represent the construction and place of the signs;
e. the cost of the sign;
f. type of sign (i.e. wall sign, monument sign, etc.);
g. certification by applicant indicating the application complies with all
requirements of the sign ordinance; and
h. if the proposed sign is along state trunk highway or interstate highway, the
application shall be accompanied by proof that the applicant has obtained a permit
from the state for the sign.
The issuing authOlity shall approve or deny the sign pem1it in an expedited manner no more than
30 days of the receipt of the application. All permits not approved or denied within 30 days shall
be deemed approved. Ifthe permit is denied, the issuing authority shall prepare a written notice
of within 10 days its decision, describing the applicant's appeal rights under Section 525.15, and
send it by certified mail, return receipt requested, to the applicant.
570.09 Exemptions.
8
The following signs shall not require a pelmit. These exemptions, however, shall not be
construed as relieving the owner of the sign from the responsibility of its erection and
maintenance, and its compliance with the provisions of this ordinance or any other law or
ordinance regulating the same.
a. The changing of the display surface on a painted or printed sign only. This
exemption, however, shall apply only to poster replacement and/or on-site
changes involving sign painting elsewhere than directly on a building.
b. Signs six (6) square feet or less in size.
c. Political signs.
570. I l. Fees.
Sign permit fees are set by Chapter X.
570.]3. Repairs.
Any sign located in the city which may now be or hereafter become out of order, rotten or
unsafe, and every sign which shall hereafter be erected, altered, resurfaced, reconstructed or
moved contrary to the provisions of this scction, shall be removed or otherwise properly secured
in accordance with thc tel111S of this section by the owners thereof or by the owners of the
!,'founds on which said billboard or sign shall stand, upon receipt of proper notice so to do, given
by the manager. No rotten or other unsafe billboards shall be repaired or rebuilt except in
accordance with the provisions of this section and upon a permit issued by the manager.
570.15. Removal.
In the event of the failure of the owner or person, company or corporation having control of any
sign, or the owner of the groLlnd on which the billboard or sign is located, to remove or repair
said sign within 60 days after the use is telminated, a notice shall be given pursuant to subsection
430.09 and the sign may be removed by the city at the expense of the owner or manager of the
sign, or the owner of the ground upon which the sign stands.
570.17. Violations.
Violation of this section is a misdemeanor. Each day that the violation continues is a separate
offense.
SEcnON III - GENERAL PROVISIONS
570.18 Size
No sign in the City of Hopkins shall exceed 250 square feet in area.
9
570.19. Regulations.
Subd. 1. General. Except as hereinafter provided, no signs shall be erected or maintained at any
angle to a building or structure which sign extends or projects over the sidewalk, street or
highway. No sign which is erected or maintained flat against any building or structure shall
extend or project more than fifteen inches over the sidewalk, street or highway.
Subd. 2. Exceptions. The provisions of this subsection do not prohibit:
the erection and maintenance of signs, either illuminated or unilluminated, which are on the sides
of a marquee which is firmly attached to and a part of a theatre or other building, providing such
signs are an integral paJ1 of the marquee and do not project above or below the marquee; or
the erection and maintenance of signs, not illuminated, which are attached to the marquee and
which do not project more than 16 inches above the marquee.
570.21. Below marquee.
No sign, either illuminated or ul1llluminated may project below a marquee.
570.23. Electrical signs.
Electrical signs must be installed in accordance with the current electrical code and a separate
pemlit from the building official must be obtained prior to placement.
570.25. Unauthorized signs.
a. No person may place, maintain or display upon or in vie\\! of any street or highway any
unauthorized sign, signal, marking or device which purports to be or is an imitation of or
resembles any official traffic control device or railroad sign or signal, or emergency
vehicle signal, or which attempts to direct the movement of traffic or which hides from
view or interferes with the effectiveness of any official traffic-control device or any
railroad sign or signal, and no person shall place or maintain nor shall any public
authority permit upon any street or highway any traffic signal or signal bearing thereon
any commercial advertising. This shall not be deemed to prohibit useful directional
information aJld of a type that cannot be mistaken for official signs. The lights and
devices described above shall be approved by the electrical inspector before installation.
b. All signs which do not display on-premise or public interest messages.
570.27. Setbacks.
Subd. 1. Yards. Signs shall confoml to building yard regulations for the zoning district in which
the signs are located except as otherwise specified in this section.
B-1
B-2
B-3
B-3
Abutting
Residential
10
Front Yard 10'
Side Yard 5'
Rear Yard 5'
1 '
0'
5'
1 '
0'
10'
County Road
10' 5'
5' 5'
10' 5'
Front Yard
Side Yard
Rear Yard
Rear Yard - abutting R District
I-I
10'
10'
10'
20'
1-2
10'
10'
10'
20'
570.29. Area.
The area within the frame shall be used to calculate the square footage except that the width of a
frame exceeding 12 inches shall constitute advertising space, and if such letters or graphics be
mounted directly on a wall or fascia or in such way as to be without a frame the dimensions for
calculating the square footage shall be the area extending six inches beyond the periphery formed
around such letters or graphics in a plane figure bounded by straight lines connecting the
outern10st points thereof. Each surface utilized to display a message or to attract attention shall
calculated in the overall square footage. Symbols, flags, pictures, wording, figures or other
forms of graphics painted on or attached to windows, walls, awnings, free-standing structures,
suspended by balloons, or kites or on persons, animals, or vehicles are considered a sign and are
included in calculating the overall square footage.
570.31. Canopies, marquees and fixed awnings.
Canopies, marquees and fixed awnings an~ an integral part of the structure to which they are
attached. They are allowed in the Business and Industrial Districts if they meet following
requirements and the applicable square footage requirements.
a. an awning, canopy or marquee may not project into the public right-of-way nearer
than 30 inches to the street curb or curb line;
b. awnings, canopies or marquees may have no part of the structure other than
supports nearer the ground surface than seven feet;
c. the architectural style of the awning, canopy or marquee may be consistent with
the building being served;
d. awnings, canopy or marquees projecting into the required yards may not be
enclosed except with a transparent material permitting through vision; and
e. awnings, canopies or marquees built over the public right-of-way must be
included in a liability insurance policy holding the city free of all responsibility.
570.33. IlIumination
External illumination for signs shall be so constructed and maintained that the source of light is
not visible from the public right-of-way or residential property.
11
570.35. Height.
The top of a sign, including its superstmcture, if any, shall be no higher than the roof of the
building to which such sign may be attached or 35 feet above ground level, whichever height is
less; except that the height of any changeable or name plate sign which is attached to or an
integral part of a functional structure, such as a water tower, smoke stack, radio or TV
transmitting tower, beacon or similar structure shall be no higher than such structure. Signs,
including any superstructure standing or erected free of any building or other structure, shall not
exceed an overall height of 35 feet from ground level and shall be located on land in an area
which is landscaped or if such land is part of an approved parking area, it shall be surfaced or
paved as required in the zoning code.
570.36 Retroactive affect.
This sign ordinance shall apply to all sign applications applied for and/or pending prior to its
enactment.
SECTlON IV - SPECIFIC REGULATIONS BY ZONING DISTRICT
570.37. Permitted signs by distl"ict.
Subd. 1 Residential Districts
a. Within residential zoning districts, pem1anent signs are pennitted as follows:
District
R-I, R-2
Maximum sign area of single sign
8 square feet per surface
Total area of all signs
16 square feet
R-3, R-4,
R-5, R-6
12 square feet per surface
24 square feet
b. The following types ofpem1anent signs are not permitted in residential zoning districts:
1. Awning signs;
2. Balloon signs;
3. Canopy signs;
4. Flashing signs;
5. Marquee signs;
6. Pole signs;
7. Pylon signs;
8. Changeable copy signs; and
9. Shimmering signs.
Suhd. 2 Business Districts
12
a. Within business zoning districts, permanent signs are permitted as follows:
District
B-1, B-2
Maximum sign area of single sign
60 square feet
Total area of all signs
2 square feet per front foot
of building abutting a public
right-of-way 50 feet or more
in width.
B-3
80 square feet
3 square feet per front foot of
lot (narrowest footage on a
comer lot) abutting public
right-of-way 50 feet or more
in width.
b. The following types of penn anent signs are not permitted in B-1 or B-2 zoning districts:
1. Changeable copy signs.
Subd. 3 Industrial Districts
a. Within industrial zoning districts, pennanent signs are permitted as follows:
District
1-1,1-2
Maximum sign are,. of single sign
250 square feet
Total area of all signs
4 square feet per front foot of
Lot plus 1 square foot per
foot of side yard abutting a
public light-of-way of 50 feet
or more. Least width of
frontage shall be considered
front yard.
570.39. Permitted signs: business park district.
Subd. I. Wall Signs. Each tenant other than those in multi-tenant buildings may have one flat
wall sign, not extending more than 18 inches from the face of the building, except that such sign
age may extend from the face of the roof over a covered walk. Such wall signs shall not exceed
15% of the area of the wall to which the sign is attached, to a maximum of 96 square feet.
Subd. 2. Monument signs. Uses other than those in multi-tenant buildings may have a monument
sign that shall not exceed 80 square feet per surface area, and 15 feet in height, and is setback a
minimum 20 feet fi'om the property lines.
Subd. 3. Multi-tenant signs. Each tenant in a multi-tenant building may have a flat wall sign, not
extending more than 18 inches from the face of the building, provided the sign is designed and
ananged in accordance with a comprehensive sign plan for the entire multi-tenant building
which has been prepared by, and submitted to the City by the owner and which has been
13
approved by the City; further, the aggregate area of such signs shall not exceed 5% of the area of
the wall to which they are attached.
Subd. 4. Multi-tenant monument signs. One monument sign shall be permitted for each multi-
tenant building provided the surface area of the sign does not exceed 100 square feet per side, 15
feet in height, and is setback in no case less than 20 feet from the property lines. The area may be
increased to a maximum of 150 square feet per side for developments of over 20 acres.
Subd. 5. Canopies and Awnings. The design of canopies shall be in keeping with the overall
building design in terms of location, size, and color. No canopies with visible wall hangers shall
be pennitted. Signage on canopies may be substituted for allowed building signage and shall be
limited to 25% of the canopy area. Internally illuminated canopies must be compatible with the
overall color scheme of the building.
Subd. 6. Review. All signs for tenants in multi- tenant buildings shall be reviewed by the
building ownership or management who sl1all provide a written endorsement at the time
application is made for the sign permit; the endorsement shall indicate that the proposed signage
has been found to be consistent with the approved comprehensive sign plan.
SECTION V - NON-CONFORMING USES
570.4]. Non-conforming signs: compliance.
It is recognized that signs exist within the zoning districts which were lawful before this chapter
was enacted, which would be prohibited, regulated or restricted under the tenns of this chapter or
future amendments. It is the intent of this chapter that nonconforming signs shall not be enlarged
upon, expanded or extended, nor be used as grounds for adding other signs or uses prohibited
elsewhere in the same district. It is further the intent of this chapter to permit legal
nonconforming signs existing on the effective date of this chapter, or amendments thereto, to
continue as legal nonconforming signs provided such signs are safe, are maintained so as not to
be unsightly, and have not been abandoned or removed subject to the following provisions:
a. No sign shall be enlarged or altered in a way which increases its nonconfonnity.
b. Should such sign or sign structure be destroyed by any means to an extent greater than fifty-
one (51) percent of its replacement cost, it shall not be reconstructed except in conformity with
the provisions of this chapter. .
c. Should such sign or sign structure be moved for any reason for any distance whatsoever, it
shall thereafter conform to the regulations for the zoning district in which it is located after it is
moved.
d. No cxisting sign devoted to a use not pennitted by the zoning code in the zoning district in
which it is located shall be enlarged, extended or moved except in changing the sign to a sign
pem1ilted in the zoning district in which is it located.
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e. When a structtrre loses its nonconforming status all signs devoted to the structure shall be
removed and all signs painted directly on the structure shall be repainted in a neutral color or a
color which will harmonize with the structure.
SECTION VI - Noncommercial Speech
570.43 Substitution Clause
The owner of any sign which is otherwise allowed by this sign ordinance may substitute
noncommercial copy in lieu of any other commercial or noncommercial copy. This substitution
of copy may be made without any additional approval or permitting. The purpose of this
provision is to prevent any inadvertent favoring of commercial speech over noncommercial
speech, or favOling of any particular noncommercial message over any other noncommercial
message. This provision prevails over any more specific provision to the contrary.
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