An August, 2015, State and Local Legal Center (SLLC) briefing summarizes the local government impact of seven recent United States Supreme Court decisions. The briefing looks at the following seven cases:
- Reed v. Town of Gilbert (content-based sign codes are unconstitutional)
- City of Los Angeles v. Patel (hotel registry searches need subpoenas)
- Texas Department of Housing and Community Affairs v. Inclusive Communities Projects (Fair Housing Act disparate impact claims recognized)
- T-Mobile South v. City of Roswell (reasons for cell tower denials must be in writing)
- Rodriguez v. United States (no dog sniffs after traffic stops)
- Kingsley v. Hendrickson (objectively unreasonable is the standard for pretrial detainee excessive force claims)
- Direct Marketing Association v. Brohl (tax on Internet purchases)
As an example, here are the brief’s summaries of the sign codes and cell tower cases:
Content-Based Sign Codes Unconstitutional
In Reed v. Town of Gilbert the Court held unanimously that Gilbert’s Sign Code, which treated various categories of signs differently based on the information they convey, violates the First Amendment.
Gilbert’s Sign Code treated temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs.
Content-based laws are only constitutional if they pass strict scrutiny—that is, if they are narrowly tailored to serve a compelling government interest.
While the SLLC argued in its amicus brief that Gilbert’s sign categories are based on function, the Court concluded they are based on content.
Gilbert’s Sign Code failed strict scrutiny because its two asserted compelling interests—preserving aesthetic and traffic safety—were “hopelessly underinclusive.” Temporary directional signs are “no greater an eyesore” and pose no greater threat to public safety than ideological or political signs.
Many, if not most communities, like Gilbert, regulate some categories of signs in a way the Supreme Court has defined as content-based. Communities will need to change these ordinances. …
Reasons for Cell Tower Denials Must Be in Writing
In T-Mobile South v. City of Roswell the Court held 6-3 that the Telecommunications Act (TCA) requires local governments to provide reasons when denying an application to build a cell phone tower.
The reasons do not have to be stated in the denial letter but must be articulated “with sufficient clarity in some other written record issued essentially contemporaneously with the denial,” which can include council meeting minutes.
The TCA requires that a local government’s decision denying a cell tower construction permit be “in writing and supported by substantial evidence contained in a written record.”
Local governments must provide reasons for why they are denying a cell tower application so that courts can determine whether the denial was supported by substantial evidence. Council meeting minutes are sufficient. But, because wireless providers have only 30 days after a denial to sue, minutes must be issued at the same time as the denial.
Following this decision, local governments should not issue any written denial of a wireless siting application until they (1) set forth the reasons for the denial in that written decision, or (2) make available to the wireless provider the final council meeting minutes or transcript of the meeting.