News

Road widening opponents file lawsuit over Flat Rock sign ordinance

By Bill Moss, Published: July 25, 2019

FLAT ROCK — A Flat Rock couple active in the fight against the Highland Lake Road widening project has filed a federal lawsuit against the village, saying that its sign ordinance unconstitutionally abridges their free neutral speech rights.

Anne Coletta, a former member of the Village Council and current candidate to win a seat again, and her husband, Paul, and the Cultural Landscape Group filed a lengthy lawsuit, a motion asking a judge to immediately block enforcement of the ordinance and stacks of backup documents.
“The whole file is about an inch thick,” said Mayor Bob Staton, an attorney whom the lawsuit singles out for what it says are “targeted and discriminatory statements” against the Colettas and their cause.
In the motion for a preliminary injunction, attorneys for the Colettas argue that the village ordinance is overly broad, vague, subject to “unbridled discretion,” and a “content-based restriction” because it distinguishes between “political speech and non-advertisement flags and insignias, construction signs” and others.
At issue is the right of road protesters to put up yard signs opposing the project, or other pending actions facing the Village Council. In December 2018, six months after the Village Council endorsed the Highland Lake Road widening project, the council amended the sign ordinance in an effort to regulate signage which had peppered the roadside for months. Opponents of the Highland Lake Road project packed village council meetings, presented a petition with 1,668 signatures and planted signs that said “Keep Big Rigs Out,” “Save Our Scenic Byways,” “Don’t Urbanize Flat Rock” and “Keep Flat Rock Green.” By December 2018, the signs had been up for months.
“We have had so many complaints from the public (asking), ‘What are you going to do about those signs? Why do we have to keep looking at those signs?’” Staton said. “On almost all of our ordinances we rely on complaints. Our enforcement is actually complaint driven. We don’t have sign police who wander around the village looking for violations. If we determine, yes, there is a violation, we follow up with it.”

Relying on a U.S. Supreme Court case, Reed v. Town of Gilbert, that clarified how municipalities may regulate signs, the plaintiffs say content-based regulation is only possible if narrowly tailored “to serve compelling state interests.” The village arguments that safety, esthetics and protection of property values support the need for regulation is not enough, the lawsuit says. The village can’t outlaw a “Don’t Urbanize Flat Rock” sign because that is a rule that “singles out signs bearing a particular message.”
The village council’s action discriminates against the Cultural Landscape Group (CLG) “based on hostility towards the underlying message,” the lawsuit says, quoting the Reed case. The complaint quotes Staton’s statement in a village newsletter that the council acted in response to the campaign “littering our streets with signs that say “keep the big rigs out” and all that nonsense from the opposition to the Highland Lake Road improvement project.” That showed, the lawyers went on, that the mayor was “motivated by a desire to censor the views of CLG and other opponents of the construction project.”
The Colettas and other like-minded activists are harmed by the ordinance now, the lawsuit says, because they’re unable to engage in political speech through yard signs. “Even if Flat Rock could put forth some legitimate interest in continued enforcement of the law, which they cannot, ‘where the First Amendment is implicated, the tie goes to the speaker, not the censor,’” the plaintiffs say.
“If there are unconstitutional provisions in the ordinance that should be declared unconstitutional that doesn’t mean the entire ordinance is unconstitutional,” Staton said. “We would not want the entire ordinance to be declared unconstitutional” because the village would have no rules at all on signs.
The lawsuit was filed in U.S. District Court in Asheville by attorney David Guidry of Charlotte. It also lists four lawyers from the Washington, D.C., office of Kirkland & Ellis, who are awaiting a judge’s permission to join the case as out-of-state attorneys, which is generally granted routinely.
Coletta said a resolution of the dispute could be easily reached.
“A constitutional sign ordinance would protect First Amendment rights and have the necessary restrictions to keep Flat Rock clean and beautiful,” she said. “The current ordinance can be amended with very little effort to make it compliant with the Constitution. For a year and a half we’ve been asking the Village Council to amend the current sign ordinance to protest First Amendment rights. This was the mayor’s choice to not respond to that in a way that protected First Amendment rights (while) keeping the necessary restrictions that are appropriate.”

The Village Council hired the Asheville law firm of Barbour Searson Jones Cash. Scott Jones and Brad Searson are working on a response to the motion for an injunction, which is due next week.
“I had a guesstimate that the product that was filed by the court was a five-figure product, $10,000 or more just to put that,” Staton said. “We’re not going to spend anything like that to file this answer but it’s not going to be inexpensive.”
Anticipating the lawsuit, Village Council voted last month to raise the tax rate by 2 cents and direct part of the revenue to outside counsel that specializes in federal court. Staton did not rule out amending the sign ordinance in a way that would satisfy the plaintiffs but said that option is not available immediately.
“We have no choice but to answer this suit,” he said. “That’s why we had to retain counsel to respond to the motion for injunction and to respond to the complaint. In the meantime, we’re spending money necessarily just to respond to the suit before a judgment’s entered against us for failure to answer the suit.”