good morning may please the court my name is jeffrey schwab and i represent leaving booth storage and dancer to the village of downers gross sign ordinance imposes size in number restrictions on a content base big problem with your argument is it looks to me like political speech like a political sign is subject to the same size and number restrictions as any other song political chimes less than no you're not your honor and in fact that's our reading of the ordinance as well you know in fact that the so that that's what gives me the problem because your complaint is about the size and number of limits not about the permit requirement and that some noncommercial signs are permitted without it a permit and are also allowed are also imposed no size and number restrictions so those would be government signs temporary decorations temporary signs of a residence commemorating a personal of vent noncommercial flags and memorial signs and tablets so those there's no size and the number restrictions on those but there ordinances regulating only private speech rights the difference in how private speech and government speech exist is not content discrimination so your now relying on the difference between permanent signs temporary signs that don't sound like content discrimination no your honor there is the proof ordinance provides that noncommercial flags are also not required to obtain a permit and also have no size and number some signs are required to obtain a permit and then those signs are subject to their own size and number restrictions so for example the ordinance in section nine point zero five zero provides that noncommercial and political science don't why one of the statute seems to be of universal application what is it that exempts anything from it or your brief reli on not on the language of the ordinance but on a report prepared by a local official is there anything in the language of the ordinance you're relying on yes your honor and then i'd like to make a distinction between the size and number restrictions and the pain it signed dan so our argument with respect to the size and number of fictions does not rely on that staff report our argument with respect to the pain it science signed an to the size and number of struction is that it's content based based on two for two reasons first that allows commercials they require commercial signs to be subject to size a number of protections a section nine point zero five but it doesn't allow some noncommercial science that doesn't apply noncommercial science to any for certain noncommercial science to any size and number restrictions and also it allows some noncommercial science less than twelve square feet doesn't require a perm harsh you are going to nine fifty should be reviewed for strict scrutiny that's correct but did you concede before the district court judge during summary judgment that central hudson and intermediate scrutiny applied and therefore  waived that argument no i haven't your honor and the reason is because in our complaint and in our motion for summary judgment we made alternative we made all arguments in the alternative so we first argued that it was content based and then we made argument in the alternative wasn't content based and central hudson applied then it also failed that that central hudson test our other argument for why the size and number restrictions are content based is based on the over breath regulations such as the twelve square feet limitation but not other not commercial sites so in this case that allows noncommercial flags to be subject to no size and number restrictions but it allows but it requires nets that's where you lose me it's universal that's right but section nine point zero five or nine point zero three zero provides in it a specific exemption for noncommercial flags that say it doesn't require a permit and therefore there are no size a number  says that there are some painted flags and murals that aren't signs and therefore they're subject to they're not subject to the painted signed in but all painted flags and murals communicate speech and therefore the village is saying that there are some flags in merrill's that aren't subject to the painted sign ban while subjecting others to the painted sign ban then that's a distinction based on the content of speech because it's saying that some speech is allowed other speech is not  the distinctions between commercial and noncommercial speech grandparent we based on the topic and therefore are content based under read in this court's cases applying read restrictions that apply because of the topic like h speech that sanctions between commercial speech and noncommercial speech are content based in this court's case and patriotic veterans versus solar court found that they were anti robocall statute providing the anti robocall statute would treat robocall advertising and other nonpolitical speech less favorably than political because the ordinance place the size and number of strict to strict scrutiny court should still subject these regulations to strict scrutiny because the ordinance treats some noncommercial science less favorably than commercial science even if that's true doesn't the substitution  into that no the substitution clause doesn't remedy that because it provides that an existing sign in such as a noncommercial sign or a commercial sign is allowed to replace its copy with  with noncommercial content but that doesn't change the fact that under section nine point zero three zero there are some noncommercial science that are allowed without any thighs a number of stricture so that only to commercial science like the village it is is asserting the noncommercial science would be limited under nine point zero three zero to twelve square feet in total which would mean that the ordinance would actually treat commercial signs more favorably non commercial signs as your honor said the substitution clause would supposedly ramey to the remedy that but it still wouldn't remedy the fact that the ordinance provides that some noncommercial science are not subject to any size and number of strickland's while other noncommercial science under either via the substitution clause nine point zero five zero or the fact that they're limited to twelve square feet without a permit are subject to size a number structure the district court said commercial and non hurtful speech the pain of sign ban also is content based because the village admits that it doesn't apply to at least some painted flags or mirrors but even if this court doesn't think that dan can't survive intermediate screwed because it's not merely tailored to serve an interest in a set indeed the village even told leaving it that it could remove its painted signs simply by painting over and the three reasons th village provide for the band the painted that painted wall signs are require ongoing maintenance the paint on a wall is subject to water damage and the painted signs are hard to remove the fact that are the village allows painted flags and murals and that the village allows paint on the wall in general shows that these these reasons are insufficient village can't seriously believe that these the three issues are important to leaving sides but not it not important when leaving merely paints over the sides of course those ongoing maintenance water damage and the removal of paint on a wall are issues as well and even if this court doesn't think that the size and number of fictions are content based they'd still fail intermediate scrutiny because they are not narrowly tailored to serve an interest in a static for traffic safety the village has never produced any evidence to show that the size and number of fictions actually serve the interest in traffic safety in a status but all of the village certainly has provided evidence that it is in the static interest and regular making these regulations don't courts give municipalities great deference relative to the static interests yes your honor they do and the village has produced evidence the problem with the village is evidence is that it's never connected any of its added anything in the evidence to a specific ascetic interest in fact it never pointed to one one document the spite providing nine hundred pages it's never pointed to one document it's never pointed to one photo and it's never pointed to one evident piece of evidence in a other provision that says this is the reason that we need the size and number restrictions because of this pacific acetic interest didn't they submit hundred eighty photographs to demonstrate the concerns they had about being in science in the village they submitted photographs but they've never pointed out any of those photographs related to the size a number of stricture ends and the district court actually recognise this insufficiency with respect to the traffic safety interest the district court said that the village the village of evidence did not suffice for purposes of traffic safety even though the village provided the same amount of documents it even provided treatises but the district court said that the village had never connected anything in those treatises or anything in the documents or produced to a specific traffic safety interest and similarly the village has never provided any any specific tie to any piece of evidence  and in that it produced to any specific a static interest we don't know why what a static reason that the village has to limit the size and number of signs it just has pointed out the fact that it had a process where it provided  evidence of other other municipalities but that doesn't actually meet the villages emerge for what you are looking for well first it's an old it's an old saw in economics as the asked that is there's no accounting for taste when somebody says we have an aesthetic interest they're asserting what our taste is how does one prove taste prove what looks good prove what looks bad well your honor if as if one if the village only has to prove what they think it looks good then science are never subject to first amendment scrutiny because the village can just say well we think this looks good therefore a statics and him unless it's content based in the village can do it and i don't think that's what the support the president supports you you're not addressing my question you seem to be statics is subject to imperial proof to a contest of affidavits by people who have master of fine arts degrees how would one do it in your world well for example let me just point out the way that the village has tried to do it with a painted sign then with a painted sign ban it provided three reasons why it needed to paint what it needed to ban painted signs as i explained i don't think those reasons which are ongoing maintenance of signs  that the that they are subject to water damage and that they're hard to remove i don't think that those actually are now or narrowly tailored to serve the interest but it provided three objective criteria that this court can review and i think that it also has to do that in fact it never did that it never even said look here is here is the specific thing specific reason that we need to to limit signs and so there's nothing for this court to review because the village actually hasn't even done anything to meet its burden we're not requiring that the village provide detailed expert analysis but the village hasn't provided any and now yes and so therefore why haven't they talked about what they've done leading up to the this ordinance the submission of the photographs the reviewing ordinances at nih and surrounding communities the public hearing to get input about potential restrictions so i mean why doesn't that constitute sufficient evidence of this is serious study contracts because it doesn't tie any of those reasons specifically to the rick regulation that it's enacted here i mean what exactly is a reason for why it needs to regulate sign ordinances to this specific number or why regulate the size of the small versus and why do it in this way that they haven't explained any of that and so they have to least explain we're not asking that this court require them to overcome some burden of evidence that is extremely strong we're just asking the court that they provide some justification for the specific reason that they did this and they have other than saying is that court my name is scott day i have the privilege of representing to defended happily the village of dollars we have tried desperately throughout the litigation to focus on the three specific regulations that were challenged by this particular  three regulations one prohibits signs that are painted directly on a ball fence or roof two there is a provision that provides for maximum size of all sites as distinguished from a whole host of other s and then there's a provision that sets a maximum size for collective signs for every lot in the city at three hundred square feet regardless of what type of sign that is the first and we think the easiest is the signs painted directly  to such science they've been in existence in his building since two thousand and five when this ordinance was adopted and we now have non conforming science that are twelve years old the district court held that this was a time place and manner of regulation is subject to the clark test which has been in place since one thousand nine hundred four essentially has three elements content neutral too narrowly tailored to address a substantial governmental interest in ample alternatives for other speech we don't think that there is any dispute over the content neutrality that is the language of the ordinance itself we know that the plaintiff in this case has disputed that we think that the language of the ordinance on conscient neutrality is clear as it relates to the last element the ample alternatives while signs are permitted truck signs are permitted monuments signs are permitted projection signs singles shingle signs on ng signs window signs and up to three hundred square feet for this particular site this particular  played at the pellet has well in excess of five hundred square feet almost three hundred square feet which is double what everybody is permitted religious i think the major focus of their presentation has been on the second element narrow tailoring and or substantial governmental interest that narrow tailing it or county council the principal argument is so i understand it is that this wardens represents content discrimination if only because it is possible to paint murals of any size anywhere and you can just imagine a mural that  is that your understanding now and why not if the mural conveys speech if it falls when you're alive just given obviously is speaking and i believe that that would be right or mural with an american politicians face on it yes right right that's obviously political speech now why under the ordinance is that neural subject to the size limit the number limit or the don't painted on a wall side room as it relates to the don't paint in a wall sign regardless of what the message is if it is political speech not political speech commercial speech regardless of what it is if it is speech that is painted directly on to the wall that's prohibited in reagan is subject to the size and number limits the size limitation is expressed in two different sections of the ordinance that we did not litigate this before the district court but section one point zero five  addresses signed regulations generally the maximum total sign area for young look mr schwab's argument you're not responding to mr schwab's are you his argument is that under nine point zero three zero anything that does not require permit is not subject to the size and number of limbs that's his contention i'm looking for what your view is on that contention the size limitations with respect  limitations in section one point zero five zero they address signs generally in every district other than downtown business district and the fairview district the sign the maximum total sign area for the other two districts in the community is in section one point zero six zero so regardless of what type of sign you have commercial noncommercial political any other type of sign collectively the signs that you have on your personal property you get three hundred square feet that's it so you agree that nine thirty modifies nine one point zero five zero specifies that the maximum total sign area that you are permitted on your site is three hundred square feet there's a limitation there some exemptions if you have a deeper parcel of property one point sets the size limitation for everything other than the downtown business district in fairview and one point zero six zero sets that same three hundred square foot limitation for downtown business district in fairview so regardless of what your collective signs are you can have a addresses the ball size limitation collectively does it addresses all collective well thank provisions now we were talking about narrow tailoring the defendant insists that this provision is first under inclusive because it operate exempt flags and murals we don't think that that is accurate if it is a flag or a mural tha communicating any type of speech we believe that that is covered and it is prohibited from being painted directly involved the second argument that is rejected by the gesture court is that there was selective enforcement in that the provision seemed element which is the significant government interest and yes it relates to painted signes the significant governmental interest is specifically addressed in the statics within the ordinance and also visibility is actually a function of traffic safety to the extent that the way finding function which is mentioned in these ordinances the way finding function allows the driver of a motor vehicle that has friend or a bicyclist to recognize and identify its destination by all signs in advance of the necessity of making an emergency turn that is by definition the way finding function if you can't read the sign if the sign has lost visibility  has deteriorated in visibility then the way finding function is defeated and understand from our perspective traffic safety anesthetics are incompetent traffic safety requires clear visibility it requires the elimination of obstruction if it requires the ability of drivers of motor vehicles to make safe traffic movements on a timely basis is statics the with the specific parameters of the ordinance in terms of the sizes that service the limitations it is a balancing in in the case of the village of downers grove what they've done is they have calibrated the size restriction for all predicated upon the amount of roadway frontage that is presented by each individual town your ability to communicate is directly predicated upon the size of your roadway frontage so that the wall sign can present it opportunity for viewing to the tenant predicated upon that measurement now the balancing in the a static issue is an absolutely purely function of local government and the legislative process and that's the extent to which we submitted to the court a very detailed review of the eighteen month process that the village went through in order to adopt this particular settlements and that started with an initial study through the economic development and strategic planning subcommittee of the silage it then went to gathering one hundred eighty photos of existing sign problems that were identified throughout the community additional staff study imports paraded the legal and zoning professionals of the community who went out and studied nine nearby communities to see how they balanced their traffic safety issues their land use issues and they're saying regulations over four hundred letters were sent out to the business leaders in the communities and stakeholders so that the individuals who are most impacted by signed regulations would have to direct input into the process and would be aware that their local government was processing the new sign regulations following this there was a formation of a joint commission that incorporated both the plan commission of the village as well as the economic development commission photographic study the grange signs lyall signs naperville signs and as far away as charlotte warren michigan were then studied by the joint commission ultimately included was simplicity from the chamber of commerce in the community as well as an entity called the down town of downers grove downtown management through this process they  conducted two public hearings with the plan commission and presented both first and second reading to the village the vetting process that we're talking about assures that the people who are impacted by the site regulations the stakeholders community the people that live in the community they understand the balancing decisions that are being undertaken by the village and they have full opportunity for input they were solicited they did participate ultimately the ordinance that you see is the result look at the five the findings that were adopted in reference to the specific revision to the painted on wall sign the community spoke in detail of those that they felt were most important the village board actually adopted in specificity the specific a static problems associated with the signs painted directly on to the wall is that to say that signs that are manufactured aren't ugly or can't be ugly of course they can't but they don't present the same fading deterioration loss of visibility ghost sign fracture the brick fracture is a real problem with painted signs because the moisture actually gets behind the paint and the brick literally explodes the sign off of the wall and if you look at the documentation that we submitted to this particular panel you can see that each one of these problems is suffered by the leaving good signs they are very apparent visually from signs that we have s now that brings us to the total square footage of the science and the total three hundred square foot as well as the three vs one wall sign essentially the village does not permit three wall signs a single frontage  it doesn't permit three wall signs and a single building and in this particular case we did amend the ordinance to allow all signs to be presented on to the burlington northern during the course so we're centrally down to two wall signs on this property i'm sorry three  permitted and then the total square footage that's permitted is the three hundred square feet so essentially what the village is saying is please remove the science that are painted directly on the wall get your wall science in compliance with the size limitation that we've set for everybody else in the community and make sure that if you're only permitted to one sense you don't have to now we adopted in addition to that as a substitute i'm lost as it relates to how our sign ordinance is content neutral i think the substance substitution clause completely neutral stat particular issue and as i started we have tried very hard throughout the course of this dispute to litigate th signs that are applicable to this particular point we have throughout the process confronted in efforts to argue the constitutionality of the entire site organs and litigate noncommercial science and commercial signs etc that's a standing issue we don't think that that is in compliance with the over breath doctrine and we believe that it's a it's a violation of the overproduction doctrine and standing to attempt to argue provisions that do not apply to this pointed at the end of my argument  posen counsel suggested that section nine point zero five zero applies to both commercial and noncommercial science and that's exactly the opposite of what they stated in their brief they said that commercial noncommercial science and political signs are not subject to the restrictions of nine point zero five zero and opposing counsel ended his argument why don't we look at what the actual language of the ordinance is is there any language in the ordinance distinguishing commercial from other sides no your honor and in fact our position is that section nine point zero five zero does apply commercial and noncommercial si but the district court found that we didn't have standing to challenge the discriminatory treatment of noncommercial science be the overbred doctrine because it said mr de argued that section nine point zero five zero only applied to commercial ordinance says rather than what the lawyers are arguing that's our position here on my second point is that opposing counsel argued that the pain it signed than is necessary for traffic safety purposes but they never argued this at any point in the litigation and in fact leaping to sign on the back of it's building has no application traffic safety whatsoever because it doesn't apply it doesn't face the road it faces the railway so there no application for pain and science in traffic safety and in addition the villages the district court found that the villages argument for traffic safety with respect to the size and number of church and the painted sign ban was insufficient