News

Flat Rock braces for court fight over signs

By Bill Moss, Published: June 24, 2019

FLAT ROCK — Throughout 2018, signs proliferated throughout the Village of Flat Rock as homeowners protested a proposed widening of Highland Lake Road. “Don’t urbanize Flat Rock,” “DOT: Doing Nothing is an Option,” and “Keep Big Rigs Out!” they said.

After receiving complaints from residents, the Village Council amended its ordinance last December in an effort to regulate signs like those. The amended ordinance expanded the definition of political yard signs to include messages trying to influence a public body’s decision on “issues or propositions.” The signs have to come down, the amended code says, three days after the “public legislative body” takes a final vote or tabled the matter.
The Village Council voted in June 2018 to OK the Highland Lake Road project. Although most property owners removed the yard signs, a handful remained. In April Village Administrator and Zoning Compliance Officer Pat Christie served violation notices on nine property owners.
Now, the Village is bracing for a lawsuit from homeowners who say the sign ordinance violates their right to free speech.
Paul and Anne Coletta formed Cultural Landscape Group: Flat Rock last year to oppose the Highland Lake Road project but also to “advance their ideas and engage the public issues related to the cultural preservation of Flat Rock,” the Colettas’ attorney, Mario Mancuso, said in a May 29 letter to Mayor Bob Staton. Mancuso says the ordinance violates the ordinance deprives the Colettas and other Flat Rock citizens “of their ability to utilize signage to exercise their constitutionally protected freedom of speech.”
No one has filed a lawsuit yet.
“We’re at the beginning stages of that,” Anne Coletta, a former Village Council member, said. “We just want to make sure the sign ordinance meets the constitutional standards and protects our constitutional rights.”
Mancuso, of the Washington, D.C., office of Kirkland & Ellis, cites Reed v. Town of Gilbert, a 2015 decision that limited sign regulations. In the Reed decision, the U.S. Supreme Court said a sign ordinance in Gilbert, Arizona, that treated signs “differently and less favorably” than others was “content based on its face.” While the court did not strike down the Gilbert sign code, it did require the town to “prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,” Mancuso said.
“Signs do not suddenly become less aesthetically pleasing once an election ends,” he added. The village code is also inconsistent, he said, because it allows homeowners to hang “a flag or insignia” of any size with no time limit. Although the Reed case upheld “aesthetics and traffic safety” as “compelling government interests,” he said, other federal appeals courts have questioned that. “By definition, then, the Sign Ordinance, structured to treat signs differently based on their content, … would not satisfy strict scrutiny and is facially un constitutional,” Mancuso said.
The most immediate consequence of the potential lawsuit is a tax increase. The Village Council last week adopted a tax rate of 13 cents, an increase of 2 cents, in part so it could set aside $25,000 to cover litigation costs.
Coletta and the Cultural Landscape Group “have engaged one of the largest law firms in the country, if not the world, with 2,400-plus lawyers in 15 offices around the globe, to stop the village of Flat Rock from enforcing the ordinance,” Staton said last week during a Village Council meeting. An attorney, Staton is leaving office in December and along with him many dozens of hours of free legal work.
“We don’t know how our rules would stand up under the strict scrutiny test” the Supreme Court ruling imposes, he added. “Anne’s attorney has demanded that, among other things, the council repeal those rules immediately, so she or anyone else who so desires, can without restraint, put up any kind of sign, of any size and color, saying anything they want, anywhere in Flat Rock. What a blight on the community that would be.”
Responding after the meeting, Coletta said, “We are not interested in having signs everywhere all the time.”
Staton urged the village council to put money in the budget for an expected court fight.
“I don’t see how we can ignore this threat we have right now by not having something in the budget,” he said.
In an earlier letter to Coletta, on May 17, Staton noted that the Cultural Landscape Group says in a mission statement that it aims to preserve Flat Rock’s landscape “in a way that reflects the character and history of the area.”
“How do the members of your organization think that your fight with the village over an assumed right to continue the display of offending signs that many consider to be a blight on the village furthers that mission?” he said. What personal expense are they willing to put up “and what expense in taxpayer dollars are they willing to put Flat Rock citizens, to pursue the fight?”
So far, in the village budget, the number for Flat Rock taxpayers is $25,000.