County attorney says ‘Farmers for Trump’ display complies, but are Rapp’s rules legal?
According to County Attorney Art Goff, there’s nothing to enforce: hay bales at Massies Corner are in compliance with the county sign ordinance.
Since the publication of an article in the Washington Post claiming that the “Farmers for Trump” campaign sign is “dividing” Rappahannock County, debates over the hay-bales have made their way into social media groups, letters to the editor of this newspaper, and even a Board of Zoning Appeals meeting.
At the heart of the issue, however, is not a political divide, rather a jurisprudential one.
“The sign ordinance speaks for itself,” Goff said in an email to the Rappahannock News.
“‘Temporary signs’ include signs … ‘announcing or advertising weekly specials, real estate, special services offered by a business establishment or the like.’ Such signs are limited to 50 square feet or 10 feet in height. A temporary political sign is not defined, but is singled out in 170-102(D) by specific mention, and is not limited in size, but only in duration of display during election season.”
The Rappahannock News learned from a Freedom of Information Act (FOIA) request last week that between August 31 and September 24, three county residents filed formal complaints with the zoning administrator against the political sign. Zoning administrator Michelle Somers has 90 days from the time of filing each complaint to respond to the petitioners.
The complainants primarily cited Rappahannock County code section 170-102.E. which limits temporary signs to no more than “50 square feet in area or 10 feet in height.”
On September 15, Somers sent an email to Goff and County Administrator Garrey Curry requesting “assistance on navigating this sign between State Code and County Code.”
Curry told the Rappahannock News in an interview that county employees routinely reach out to the county attorney for assistance in interpreting the law. And especially in cases where the county attorney might be required to prosecute his input is of the utmost importance.
Goff’s response to Somers was redacted due to client attorney confidentiality, but Curry and Somers both replied that his counsel sounded “reasonable.”
In an interview with this newspaper, First Amendment attorney David Keating also said that Goff’s interpretation of the ordinance was “reasonable,” and went on further to suggest that the provision in the temporary sign ordinance limiting the size of political signs is, in fact, altogether unconstitutional.
Citing provision 170-94.J, which allows “seasonal displays” to be erected without a permit and places no other limitations on their size or manner, Keating explained that a municipal sign ordinance cannot place restrictions on political signs that it does not place on all signs.
“[In the Rappahannock County code] you’ve got [a provision] that says you can have a seasonal display with no permit and there’s no limitation on that sign. You can’t make [a seasonal sign] a higher value sign than core political speech,” said Keating, who currently serves as the president of the Institute for Free Speech in Washington D.C.
“That’s just not going to fly. There’s a fairly famous recent Supreme Court decision called Reed v. Town of Gilbert Arizona that brought up some sign ordinances and found that basically you can’t have different standards for different signs without applying strict scrutiny to the reason,” Keating said.
In that 2015 case, the Supreme Court decided unanimously that the Town of Gilbert, which had a sign ordinance restricting time, place, size, and number of temporary signs, had violated petitioner Pastor Clyde Reed’s First and Fourteenth Amendment rights when they cited his Church for exceeding the limitations of the ordinance.
Delivering the opinion of the Court, Justice Clarence Thomas wrote: “Content-based laws — those that target speech based on its communicative content — are presumptively unconstitutional and maybe justified only if the government proves that they are narrowly tailored to serve compelling state interests.”
The Court ruled that a content-based restriction limiting temporary political signs that does not also limit seasonal displays likely would not pass strict scrutiny and would therefore not be justified.
“Clearly you read this [Rappahannock County] ordinance and think no one has updated it since the [Gilbert] decision. … I think [Goff’s] judgment was right that this wasn’t something [the county] could enforce.”
Furthermore, Keating argued, even the provision in Rappahannock County Code 170-102.D. which ordains that “temporary political signs shall not be erected more than 90 days prior to an election or referendum and shall be removed within 15 days after the election” may also be unconstitutional.
“Temporary construction signs can be posted for up to two years, but campaign signs are limited to 90 days before an election. I doubt any court would approve of that,” Keating said.
“If a time limit on other forms of political signs, such as Black Lives Matter, was applied, that would clearly be unconstitutional. That’s because political issues can remain relevant for much longer than 90 days.”
Notwithstanding Goff’s interpretation of the zoning ordinance and Keating’s concurrence with the county attorney, Vice Chair of the Board of Zoning Appeals Ron Makela believes it is still the role of the zoning administrator to enforce the sign ordinance as it is written.
“My thinking is if [the ordinance is unconstitutional] … you would need to have the courts tell you what the limits are — or are not — and give direction. Then you redefine the ordinance based on the decision of the court,” Makela said.
“It says here [in the municipal code], ‘like the BZA, the zoning administrator does not have the authority to rule on the validity of the zoning ordinance.’ She cannot decide whether it is valid or not.”
“This [situation] is confusing because the powers that are supposed to be enforcing the ordinance are looking for ways to not enforce the ordinance,” Makela continued.
“If a police officer is charged with issuing a speeding ticket in a speed zone where he doesn’t think it’s the proper speed for that area, he doesn’t have the option to go, ‘well, I don’t agree with that speed sign so I’m not going to write the ticket.’ The sign says what it says, and you write the ticket. That’s the way the system works. The enforcement people are not the judges.”
On Wednesday, at least one of the complainants received a message from Zoning Administrator Michelle Somers explaining her final determination. “It is my determination that the sign is core political speech,” Somers wrote, “and under our ordinance political signs are not limited in size.”
It is likely that one or more complaints will be appealed and the case will be presented before the BZA.