United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-1937

___________

Neighborhood Enterprises, Inc.; *

Sanctuary in the Ordinary; Jim Roos, *

*

Plaintiffs - Appellants, *

* Appeal from the United States 

v. * District Court for the 

* Eastern District of Missouri.

City of St. Louis; St. Louis *

Board of Adjustment, *

*

Defendants - Appellees, *

*

Shari Cunningham; George Hitt; *

Joe Klitzing; Irene Soll; John Caruso; *

Mary Hart Burton; St. Louis City *

Department of Public Safety, Division *

of Building and Inspection, *

*

Defendants. *

____________________ *

 *

International Municipal Lawyers *

Association; Scenic America, Inc.; *

Scenic Missouri, Inc., *

*

Amici on Behalf of *

Appellees. *

___________

Submitted: February 16, 2011

Filed: July 13, 2011

___________
1

Before the district court, the parties stipulated to the following facts in their

"Joint Statement of Uncontroverted Material Facts."

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Before SMITH, GRUENDER, and BENTON, Circuit Judges.

___________

SMITH, Circuit Judge.

Neighborhood Enterprises, Inc. ("Neighborhood"), Sanctuary In The Ordinary

(SITO), and Jim Roos (collectively, "Sanctuary") filed suit against, inter alia, the City

of St. Louis ("City") and St. Louis Board of Adjustment ("Board") challenging the

Board's denial of a sign permit. Sanctuary further challenged the constitutionality of

provisions of Chapter 26.68 of the Revised Code of the City of St. Louis ("zoning

code") upon which the permit denial was based. Sanctuary asserted federal and state

constitutional claims pursuant to 42 U.S.C. § 1983 and the Missouri Declaratory

Judgments Act, Missouri Revised Statute § 527.010. It also sought a writ of certiorari

pursuant to Missouri Revised Statute § 89.110, which provides for judicial review of

"illegal" Board decisions. The district court granted summary judgment to the City

and the Board, finding, inter alia, that the zoning code's restrictions on signs

withstood constitutional scrutiny with respect to the Board's denial of Sanctuary's sign

permit. Because we conclude that the challenged provisions of Chapter 26.68 of the

zoning code are impermissibly content based and fail strict scrutiny, we now reverse

and remand for further proceedings consistent with this opinion. 

I. Background

A. Factual Background1

Neighborhood, a property-management company, manages the properties of

SITO, a non-profit organization. Neighborhood describes itself as a "self-supporting

housing ministry that manages rental housing mostly on the near south side of St.

Louis." Roos is the founder of SITO and Neighborhood, and he is also the coordinator
2

The City's position is that the object at issue is a "sign," while Sanctuary refers

to the object as a "mural." 

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and spokesperson for the Missouri Eminent Domain Abuse Coalition (MEDAC), a

civic organization concerned about eminent-domain practices. 

Roos describes himself as a critic of the City's use of eminent domain for

private development. Roos and MEDAC, with tenant approval, commissioned a

sign/mural2

 for the south side of 1806-08 South 13th Street, a SITO-owned building

in the Near Southside Redevelopment Area. Roos described the sign/mural as a

"poignant way . . . to make a statement." The sign/mural consists of the words "End

Eminent Domain Abuse" inside a red circle and slash. The design of the sign/mural

is similar to the design that MEDAC uses in its literature, buttons, and other materials.

The sign/mural is approximately 363 or 369 square feet in area. It is visible from,

among other areas, Interstates 44 and 55 and the Soulard neighborhood. 

On April 10, 2007, the City's Division of Building and Inspection ("B&I")

issued a citation to SITO, care of Neighborhood, declaring the sign/mural an "illegal

sign." The citation explained that "[p]ermits must be acquired for signs of this type"

and instructed SITO how it could obtain a permit. Consistent with the instructions in

B&I's April 10, 2007 citation, SITO and Neighborhood filed a sign-permit application

with B&I on May 14, 2007. 

On May 30, 2007, the City's zoning administrator sent SITO a letter denying

its sign permit application because it did not meet certain requirements of the zoning

code. The "Basis for Denial" accompanying the letter stated that the building on which

the sign/mural was painted was zoned "D," or "Multiple Family Dwelling District,"

and identified as the "applicable Zoning Code provisions" §§ 26.68.010;

26.68.020(17), (20), (21), (22) and (24); and 26.68.080(A), (B), (D) and (E)(2). A
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subsequent explanation of the zoning administrator's basis for denial, admitted as

evidence at the Board hearing, stated:

Appellant has painted a wall sign on the building at this address. The

wall face of the building on which the sign has been painted does not

have street frontage as defined in the Zoning Code, and is therefore not

entitled to signage. In the 'D' zoning district any signage can only be

erected, altered and maintained for and by a conforming use and must be

clearly incidental to the operation of the conforming use; this property

is assessed as a two-family dwelling. The maximum allowable square

footage for any sign within this district is 30 sq. ft.; based on the

diameter of the circular sign it is approximately 363 sq. ft. in area.

Variances will be required in order to permit this sign.

The May 30, 2007 letter denying SITO's sign-permit application stated that SITO

could appeal the denial to the Board, which SITO did on June 5, 2007.

On July 11, 2007, the Board heard SITO's appeal of the permit denial. At the

hearing, SITO's attorney argued, inter alia, that SITO's sign/mural does not require

a permit because, as a "work of art" or a "civic symbol[ ] or crest[ ]," it is exempted

from the zoning code's definition of "sign." In the alternative, counsel argued that the

zoning code's sign regulations violate the free-speech protections of the United States

and Missouri Constitutions. 

The Board upheld the denial of the sign permit on July 25, 2007. The Board's

"Findings of Fact" stated that the "[p]roposed sign is in conflict with Sections

26.68.010, 26.68.020 and 26.68.080 of the Zoning Code of the City of St. Louis." The

Board's "Conclusion of Law and Order" stated:

The sign is located in Zone D, the multiple family dwelling district, and

the sign is located on a residential building. The sign is substantially

larger than the footage allowed by the Zoning Code and it is located on
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the side of the building in contravention to the requirements of the

Zoning Code. Board Member Hitt made a motion to uphold the decision

to deny the sign permit as the size and location of the sign were in

violation of the Zoning Code.

The above motion, made by George Hitt and seconded by Joe Klitzing

was passed by a 4-0 vote of the Board, with Board member Caruso

voting against.

The City justified its outdoor sign restrictions principally on concerns for traffic

safety and aesthetics. Neither the City nor the Board is aware of any reports, studies,

or memoranda (1) concerning or supporting the regulation of outdoor signs in Chapter

26.68 of the zoning code, (2) regarding whether the City's restrictions on outdoor

signs affect traffic safety, (3) regarding whether the City's restrictions on outdoor

signs affect the aesthetics of the City or surrounding neighborhood, (4) regarding

whether the City's restrictions on outdoor signs affect property values in the City, or

(5) discussing the impact of SITO's sign/mural on the flow of traffic on any street or

highway. The City and the Board are unaware of any traffic incidents in which any

driver involved mentioned SITO's sign/mural, or any "painted wall sign," as

contributing to such incident. Further, the City and the Board have no (1) internal

memoranda or communications, and no communications to or from them, discussing

the adoption or enforcement of the regulations of outdoor signs in Chapter 26.68 of

the zoning code or (2) minutes or transcripts of any City Board of Aldermen meeting,

including any committee or subcommittee of such Board, concerning or relating to the

regulation of outdoor signs in Chapter 26.68 of the zoning code. 

Section 26.68.020(17) of the zoning code provides that "[i]f for any reason it

cannot be readily determined whether or not an object is a sign, the Community

Development Commission shall make such determination." St. Louis City Ordinance

64687 provides that "all functions and duties performed, or powers exercised prior to

the effective date of this ordinance by personnel of the Community Development
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Commission pursuant to any City ordinance shall be performed by personnel of the

Planning Commission as assigned by the Planning Commission." The City has no

written policy, other than Chapter 26.68 of the zoning code, for use in determining if

(1) a sign contains the "symbol[ ] or crest [ ]" of a civic organization, as those terms

are used in § 26.68.020(17)(d), or (2) if something is "art," as that term is used in

§ 26.68.020(17)(e).

The City's policies for implementing the sign regulations are contained in

Chapter 26.68 of the zoning code.

B. Procedural Background

Following the Board's decision, Sanctuary filed suit in state court, challenging

the Board's denial of the sign permit and the zoning code provisions upon which the

denial was based. Sanctuary asserted federal and state constitutional claims pursuant

to 42 U.S.C. § 1983 and the Missouri Declaratory Judgments Act, Missouri Revised

Statute § 527.010. Specifically, Sanctuary's complaint stated that it is brought pursuant

to the First and Fourteenth Amendments of the United States Constitution; Article I,

§ 8 of the Missouri Constitution; The Civil Rights Act of 1871, 42 U.S.C. § 1983; and

Missouri Revised Statute § 527.010. Sanctuary further stated that it seeks relief

against the enforcement of the zoning code's sign regulations and the practices and

policies of the City that allegedly—facially and as applied—deny Sanctuary the

opportunity to engage in constitutionally protected communications. 

Sanctuary's complaint alleged that (1) the zoning code's sign regulations are

facially invalid under the United States Constitution and the Missouri Constitution,

respectively; (2) the zoning code's sign regulations are unconstitutional as applied

under the United States Constitution and the Missouri Constitution; (3) the City and

Board exercised prior restraints in violation of Sanctuary's free speech rights under the

United States Constitution and the Missouri Constitution, respectively; and (4) the
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City and the Board deprived Sanctuary of equal protection pursuant to the Fourteenth

Amendment of the United States Constitution. 

In its complaint, Sanctuary sought (1) reversal of the Board's denial of the

permit; (2) a declaration that the zoning code's sign regulations violate the First and

Fourteenth Amendments of the United States Constitution and Article I, § 8, of the

Missouri Constitution on their face and as applied to Sanctuary; (3) a judgment

declaring that the Board's act denying the sign permit application illegally violated the

First and Fourteenth Amendments and Article I, § 8, of the Missouri Constitution; (4)

a judgment declaring that the zoning code's sign regulations violate the Equal

Protection Clause of the Fourteenth Amendment of the United States Constitution; (5)

a judgment permanently enjoining the City and the Board from enforcing the zoning

code's sign regulations generally and as against Sanctuary in association with the

mural at 1806-08 South 13th Street, St. Louis, Missouri; (6) nominal damages in the

amount of $1.00; and (7) attorneys' fees and costs pursuant to 42 U.S.C. § 1988.

Sanctuary also sought a writ of certiorari pursuant to Missouri Revised Statute

§ 89.110, which provides for judicial review of "illegal" Board decisions. Sanctuary's

petition for writ of certiorari requested that the district court conduct a de novo

administrative review of the Board's decision. The petition alleged that the Board's

decision was illegal because (1) it utilized a facially unconstitutional zoning code to

limit Sanctuary's freedom of speech, (2) the zoning code is unconstitutional as applied,

(3) it was an illegal exercise of prior restraints, and (4) it deprived Sanctuary of equal

protection under the law.

The district court granted summary judgment in favor of the City and the Board,

concluding that (1) the Board's decision denying Sanctuary's sign permit "was not

arbitrary, capricious, unreasonable, unlawful, or in excess of the Board['s]

. . . jurisdiction," and (2) "[t]he restrictions placed on signs in the Sign Code withstand

scrutiny under [Sanctuary's] constitutional challenges with respect to the denial of [its]
3

Missouri courts have not decided "'whether the circumference of Mo. Const.

art. I, § 8 is identical to that of the First Amendment in all instances.'" BBC Fireworks,

Inc. v. State Highway & Transp. Comm'n, 828 S.W.2d 879, 881 (Mo. 1992) (en banc)

(quoting State v. Roberts, 779 S.W.2d 576, 579 (Mo. 1989) (en banc)). For purposes

of this appeal, we will treat the federal and state claims in the present case as

coextensive. 

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sign permit." Neighborhood Enters., Inc. v. City of St. Louis, Mo., 718 F. Supp. 2d

1025, 1040 (E.D. Mo. 2010). 

II. Discussion

On appeal, Sanctuary argues that the zoning code's sign regulations (1)

impermissibly burden free speech, in violation of the First Amendment of the United

States Constitution and Article I, § 8, of the Missouri Constitution3

; (2) effect a prior

restraint on its speech; and (3) violate the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution. Sanctuary also contends that the district

court erroneously declined to issue a writ of certiorari and enter judgment for

Sanctuary on its claims under Missouri Revised Statute § 89.110. 

We review de novo a district court's grant of summary judgment. Advantage

Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 798 (8th Cir. 2006). A district

court should not grant summary judgment "unless there is no issue of material fact and

the moving party is entitled to judgment as a matter of law." Id. "An issue of fact

cannot result from mere denials or conclusory allegations in the pleadings but must

be based on specific factual allegations." Id. 

A. Standing

As a threshold matter, the City and Board argue that the district court correctly

determined that Sanctuary may only challenge those provisions of the zoning code

that the Board actually applied to Sanctuary in denying the sign permit. See

Neighborhood Enters., Inc., 718 F. Supp. 2d at 1036 n.7 ("Petitioners may only
4

As a result, the district court concluded that "[n]either the definition of 'sign'

in the Code, (on 26.68.020(17)), nor the restrictions placed on signs, (Section

26.68.010) infringe or impinge, facially or as applied to Petitioners, their

Constitutionally protected political speech." Id. at 1036 (emphasis added) (footnote

omitted). 

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challenge those provisions of the Code which were actually applied to them.").4

According to the City and the Board, Sanctuary cannot show a causal connection

between its purported injury and the provisions of the zoning code not applied to it.

See Advantage, 456 F.3d at 801 ("Since most of the content based restrictions and

procedural mechanisms which Advantages claims violate the First Amendment rights

of other parties were not factors in the denial of its own permit applications, it cannot

show causation with respect to them."). 

An "inescapable threshold question" is whether Sanctuary "has established the

traditional elements of Article III standing." Id. at 799. Federal jurisdiction is limited

"to cases and controversies, and the 'core component of standing is an essential and

unchanging part of the case-or-controversy requirement.'" Id. (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992)). 

"[C]onstitutional standing consists of three elements: 1) an injury in fact which

is 'actual, concrete, and particularized'; 2) a causal connection between that injury and

defendant's conduct; and 3) a likelihood that the injury can be redressed by a favorable

decision." Id. at 798–99 (quoting Lujan, 504 U.S. at 560–61). "To establish causation

a plaintiff must show that its injury is 'fairly traceable' to a challenged statutory

provision." Id. at 801 (quoting Republican Party of Minn. v. Klobuchar, 381 F.3d 785,

792 (8th Cir. 2004)). 

Here, Sanctuary requested a sign permit because the City instructed it to do so.

Thereafter, the City's zoning administrator denied Sanctuary's application based upon
5

The relevant statutory sections are set forth in the Appendix at the end of this

opinion. 

6

The relevant statutory sections are set forth in the Appendix at the end of this

opinion. 

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§§ 26.68.010; 26.68.020 (17), (20), (21), (22), and (24); and 26.68.080(A), (B), (D),

and (E)(2)of the zoning code.5

 Additionally, the zoning administrator stated that the

building on which the sign/mural was painted was zoned "D"—"Multiple Family

Dwelling District." The zoning administrator testified that "he reviewed the

application for the sign and determined that the object in question fit the City's

meaning of a sign, as defined by the Zoning Code." (Emphasis added.) He was "able

to determine, based on the Zoning Code, that the object was a sign, which then did not

trigger the provision contained in Section 26.68.020 17 [sic], requiring the City's

Planning Commission to make such determination." The Board then upheld the denial

of the sign permit because the "[p]roposed sign is in conflict with Sections 26.68.010,

26.68.020 and 26.68.080 of the Zoning Code of the City of St. Louis." (Emphasis

added.) Because these provisions were "factors in the denial of its own permit

application[ ]," Sanctuary can "show causation with respect to them." Advantage, 456

F.3d at 801. 

Moreover, Sanctuary "has standing to challenge those portions of the Sign Code

which 'provide the basic definitional structure for the terms used in [the violated

sections] and which more generally define the scope of signs allowed by [the violated

sections].'" Bonita Media Enters., LLC v. Collier Cnty. Code Enforcement Bd., No.

2:07-cv-411-FtM-29DNF, 2008 WL 423449, at *5 (M.D. Fla. Feb. 13, 2008)

(alteration in original) (quoting KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1267

(11th Cir. 2006)). Sanctuary's challenge may "include[ ] provisions discussing the

purpose and intent of the Sign Code and definitional sections." Id. (citing KH

Outdoor, 458 F.3d at 1267). We may "tak[e] into account other provisions," such as

§ 26.68.030 and § 26.68.050,6

 "that may affect the constitutionality of those
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provisions" applied to Sanctuary. Café Erotica of Fla., Inc. v. St. Johns Cnty., 360

F.3d 1274, 1278–79 (11th Cir. 2004). The City's designation of Sanctuary's purported

mural as a "sign" essentially acknowledges that the alleged sign fits no content

exemption under §§ 26.68.020(17)(a)–(e), 26.68.030, or 26.68.050. Bowden v. Town

of Cary, 754 F. Supp. 2d 794, 801 (E.D.N.C. 2010). 

B. Free Speech

Sanctuary asserts that the zoning code's sign regulations impermissibly burden

free speech. According to Sanctuary, the regulations "are riddled with content-based

exemptions and restrictions"; therefore, the district court erroneously concluded that

the zoning code's sign regulations are content neutral. Sanctuary avers that the

content-based sign regulations fail strict scrutiny because, under this court's precedent,

the City's interests in traffic safety and aesthetics are not "compelling" interests. 

In response, the City and the Board assert that the definition of "sign" in the

zoning code is content- and viewpoint-neutral. According to the City and the Board,

Sanctuary's argument that the exceptions to the definition of "sign" make the sign

regulations content-based fails under a constitutional analysis. The City and the Board

assert that because the sign regulations are content neutral, intermediate scrutiny

applies. They contend that the sign regulations satisfy intermediate scrutiny because

they serve the significant and established governmental interests of traffic safety and

aesthetics and leave open ample alternative channels for communication of

Sanctuary's message. 

The Free Speech Clause of the First Amendment provides that "Congress shall

make no law . . . abridging the freedom of speech . . . ." U.S. Const. amend. I. This

clause "is applicable to the political subdivisions of the states." Whitton v. City of

Gladstone, Mo., 54 F.3d 1400, 1402 (8th Cir. 1995). The Free Speech Clause protects

signs, as they are "a form of expression.'" Id. (quoting City of Ladue v. Gilleo, 512

U.S. 43, 48 (1994)). But "signs 'pose distinctive problems that are subject to
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municipalities' police powers. Unlike oral speech, signs take up space and may

obstruct views, distract motorists, displace alternative uses for land, and pose other

problems that legitimately call for regulation.'" Id. at 1402–03 (quoting City of Ladue,

512 U.S. at 48).

To evaluate the constitutionality of the zoning code's sign regulations—which

constitute a restriction upon speech—"we apply the familiar framework." Id. at 1403.

"We first 'determine whether [the] regulation is content-based or content-neutral, and

then, based on the answer to that question, . . . apply the proper level of scrutiny.'" Id.

(alteration in original) (quoting City of Ladue, 512 U.S. at 59 (O'Connor, J.,

concurring)). We note that "the argument that a restriction on speech is content-neutral

because it is viewpoint-neutral has been repeatedly rejected by the Supreme Court."

Id. at 1405.

The City and the Board "contend[ ] that each challenged provision is a

constitutionally permissible time, place, and manner restriction." Id. at 1403. "A

purported time, place, and manner restriction is constitutionally permissible so long

as it is 'justified without reference to the content of the regulated speech . . . .'" Id.

(alteration in original) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S.

288, 293 (1984)). "Therefore, our threshold inquiry for each challenged provision of

the sign code necessarily focuses upon whether the provision at issue is a

content-based restriction and then, based upon the resolution of that question, we will

apply the appropriate level of scrutiny." Id.

Upon review, we conclude that the zoning code's definition of "sign" is

impermissibly content-based because "the message conveyed determines whether the

speech is subject to the restriction." Id. at 1403–04 (citing City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 429 (1993)). Put another way, to determine

whether a particular object qualifies as a "sign" under § 26.68.020(17) and is therefore

subject to the regulations, or is instead a "non-sign" under § 26.68.020(17)(a)–(e) or
-13-

exempt from the sign regulations under §§ 26.68.030 or 26.68.050, one must look at

the content of the object. Thus, an object of the same dimensions as Sanctuary's "End

Eminent Domain Abuse" sign/mural would not be subject to regulation if it were a

"[n]ational, state, religious, fraternal, professional and civic symbol[ ] or crest[ ], or

on site ground based measure display device used to show time and subject matter of

religious services." St. Louis City Revised Code § 26.68.020(17)(d). "Simply stated

[§§ 26.68.020(17), 26.68.030, and 26.68.050] [are] content-based because [they]

make[ ] impermissible distinctions based solely on the content or message conveyed

by the sign." Whitton, 54 F.3d at 1404. "The words on a sign define whether it is

subject to [the sign regulations]." Id.; see also Soltanic, LLC v. City of Neptune Beach,

410 F.3d 1250, 1266 (11th Cir. 2005) ("In short, because some types of signs are

extensively regulated while others are exempt from regulation based on the nature of

the messages they seek to convey, the sign code is undeniably a content-based

restriction on speech."). 

In reaching this conclusion, we are not "required to accept legislative

explanations from a governmental entity regarding the purpose(s) for a restriction on

speech without further inquiry." Whitton, 54 F.3d at 1406. "[E]ven when a

government supplies a content-neutral justification for the regulation, that justification

is not given controlling weight without further inquiry." Id. (citing City of Cincinnati,

507 U.S. at 429–30). As a result, "even if we agree with the City . . . that its restriction

is 'justified' by its interest in maintaining traffic safety and preserving aesthetic beauty,

we still must ask whether the regulation accomplishes the stated purpose in a

content-neutral manner." Id. "Although [the City's] justification for enacting [the sign

regulations] was to curtail the traffic dangers . . . and to promote aesthetic beauty, [the

City] has not seen fit to apply such restrictions to" all signs of the same dimensions.

Id. at 1407. The City has "differentiat[ed] between speakers for reasons unrelated to

the legitimate interests that prompted the regulation." Id. (quotation and citation

omitted).
7

The City conceded at oral argument that the challenged provisions of the sign

code would not pass constitutional muster under strict scrutiny. Nevertheless, we will

independently analyze whether the challenged provisions satisfy strict scrutiny. 

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Because the challenged sign provisions of the zoning code are content-based

restrictions, strict-scrutiny applies. Id. at 1408.7

"With rare exceptions, content discrimination in regulations of the

speech of private citizens on private property . . . is presumptively

impermissible, and this presumption is a very strong one." City of Ladue,

[512] U.S. at [59], 114 S. Ct. at 2047 (O'Connor, J., concurring).

"[C]ontent-based restrictions on political speech 'must be subjected to the

most exacting scrutiny.'" Ward [v. Rock Against Racism], 491 U.S. [781,]

798 n. 6, 109 S. Ct. [2746,] 2758 n. 6 [(1989)] (quoting Boos [v. Barry],

485 U.S. [312,] 321, 108 S. Ct. [1157,] 1164 [(1988)]). "For the State to

enforce a content-based exclusion it must show that its regulation is

necessary to serve a compelling state interest and that it is narrowly

drawn to achieve that end." Perry Ed. Ass'n [v. Perry Local Educators'

Ass'n], 460 U.S. [37,] 45, 103 S. Ct. [948,] 955 [(1983)]. The

requirement that a restriction on speech be narrowly drawn requires the

regulation to be the "least restrictive" alternative available. Ward, 491

U.S. at 798 n. 6, 109 S. Ct. at 2758 n. 6 (quoting Boos, 485 U.S. at 329,

108 S. Ct. at 1168).

Id. 

Here, the City's asserted interests are traffic safety and aesthetics. But "a

municipality's asserted interests in traffic safety and aesthetics, while significant, have

never been held to be compelling." Id.; see also Soltanic, 410 F.3d 1250 at 1267

(concluding that a city's "asserted interests in aesthetics and traffic safety" are not

"compelling"); cf. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507–08

(1981) ("Nor can there be substantial doubt that the twin goals that the ordinance

seeks to further—traffic safety and the appearance of the city—are substantial

governmental goals." (emphasis added)). 
8

Because we hold that the challenged provisions of the zoning code violate the

First Amendment, we need not reach Sanctuary's prior restraint and equal protection

claims, nor its argument that the district court erroneously declined to issue a writ of

certiorari under Missouri Revised Statute § 89.110. See, e.g., Green Party of Conn.

v. Garfield, 616 F.3d 189, 213 (2d Cir. 2010) ("Green Party II") ("We need not

address plaintiffs' equal protection and due process claims, for they challenge

provisions of the CFRA that we have struck down under the First

Amendment—namely, the CFRA's ban on lobbyist contributions and the solicitation

of contributions by lobbyists."). 

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Furthermore, "[e]ven if we were to assume that [the City's] proffered interests

in aesthetics or traffic safety were adequate justification for content-based sign

regulations, the sign code cannot withstand strict scrutiny because it is not narrowly

drawn to accomplish those ends." Soltanic, 410 F.3d at 1267. The zoning code's sign

regulations "recite[ ] those interests only at the highest order of abstraction, without

ever explaining how they are served by the sign code's regulations generally, much

less by its content-based exemptions from those regulations." Id. The zoning code

"offer[s] no reason for applying its [sign regulations] to some types of signs but not

others." Id. In summary:

Although the sign code's regulations may generally promote aesthetics

and traffic safety, the City has simply failed to demonstrate how these

interests are served by the distinction it has drawn in the treatment of

exempt and nonexempt categories of signs. Simply put, the sign code's

exemptions are not narrowly tailored to accomplish either the City's

traffic safety or aesthetic goals.

Id. at 1268. 

Therefore, the City's "sign code fails both aspects of [strict scrutiny]: the sign

code is not narrowly tailored to accomplish the City's asserted interests in aesthetics

and traffic safety, nor has our case law recognized those interests as 'compelling.'" Id.

at 1267.8
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C. Remedy

Because we have determined that the zoning code's definition of "sign" violates

the Free Speech Clause of the First Amendment because of the presence of contentbased exemptions and exceptions, we must determine whether we may sever these

provisions from Chapter 26.68 of the zoning code or whether we must strike down the

entirety of Chapter 26.68 along with those provisions. Green Party of Conn. v.

Garfield, 616 F.3d 213, 246 (2d Cir. 2010) ("Green Party I"). "The District Court did

not consider the severability issue because it held that each of the challenged

provisions was constitutional." Green Party II, 616 F.3d at 210. "We therefore remand

to the District Court to consider the severability issue in the first instance." Green

Party I, 616 F.3d at 248; see also Green Party II, 616 F.3d at 211–12 ("We

. . . remand to the District Court to determine whether the unconstitutional provisions

of the CFRA addressed in this opinion are severable from the remainder of the law.");

Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1016 (9th Cir.

2009) ("We remand to allow the district court to determine whether the

unconstitutional provisions are severable from the remainder of § 5.60."); Ackerley

Commc'ns of Mass., Inc. v. City of Cambridge, 135 F.3d 210, 214 (1st Cir. 1998)

(explaining that "severability disputes usually turn on fact-intensive inquiries best left

to the trial court in the first instance"). 

III. Conclusion 

Accordingly, we reverse the judgment of the district court and remand for

further proceedings consistent with this opinion. 

______________________________
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Appendix

Section 26.68.010 of the zoning code provides:

These regulations shall govern and control the erection, remodeling,

enlarging, moving, operation and maintenance of all signs by

conforming uses within all zoning districts. Nothing herein contained

shall be deemed a waiver of the provisions of any other ordinance or

regulation applicable to signs. Signs located in areas governed by several

ordinances and/or applicable regulations shall comply with all such

ordinances and regulations.

Section 26.68.020 of the zoning code defines the relevant terms from the

"Comprehensive Sign Control Regulations." It provides, in pertinent part:

For the purpose of this chapter the following terms, phrasing, words and

their deviations shall have the meaning given herein:

* * *

17. Sign. "Sign" means any object or device or part thereof situated

outdoors which is used to advertise, identify, display, direct or attract

attention to an object, person, institution, organization, business product,

service, event, or location by any means including words, letters, figures,

designs, symbols, fixtures, colors, motion illumination or projected

images. Signs do not include the following:

a. Flags of nations, states and cities, fraternal, religious and civic

organization;

b. Merchandise, pictures of models of products or services incorporated

in a window display;

c. Time and temperature devices;
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d. National, state, religious, fraternal, professional and civic symbols or

crests, or on site ground based measure display device used to show time

and subject matter of religious services;

e. Works of art which in no way identify a product.

If for any reason it cannot be readily determined whether or not an object

is a sign, the Community Development Commission shall make such

determination.

* * *

20. Sign Frontage. "Sign frontage" means the length along a ground floor

building front, facing a street or a private way accessible from a street,

which is occupied by a separate and distinct use or by the same use

which occupies the front of said building.

21. Street Front. "Street front" means any boundary line of a premises or

parcel of land that runs parallel to and within twenty (20) feet of the

right-of-way of a street or highway designated and assigned an

individual name or number by the legislative action of the municipality.

22. Street Property Line. "Street property line" means a common

boundary between private property and a dedicated street or alley.

* * *

24. Wall Sign. "Wall sign" means a sign attached to, painted on, or

erected against a wall or parapet wall of a building or structure which

extends no more than twenty-four (24) inches from the wall surface upon

which it is attached and whose display surface is parallel to the face of

the building to which the sign is attached.

(Emphasis added.) 

Section 26.68.080 of the zoning code concerns "Signs in zone districts C, D,

and E" and provides, in relevant part: 
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A. General. On premises signs may be erected, altered and maintained

only for and by a conforming use in the district in which the signs are

located; shall be located on the same premises as the conforming use and

shall be clearly incidental, customary as commonly associated with the

operation of the conforming use provided, however, that no sign of any

type shall be erected or maintained for or by a single unit dwelling.

B. Permitted Contents. Identification by letter, numeral, symbol or

design of the conforming use by name, use, hours of operation, services

offered and events.

C. Permitted Sign Types. Wall, window and ground.

D. Permitted Maximum Number. One (1) sign for each front line of the

premises on which the conforming use is located.

E. Permitted Maximum Sign Area.

* * *

2. All other uses. Total signage shall not exceed thirty (30) square feet.

Section 26.68.030 of the zoning code is entitled "Signs permitted in all district"

and sets forth 14 categories of signs exempted from the sign permit requirement. It

provides:

The following described signs are not covered by the rules and

regulations set forth below in Section 26.68.060 and a building permit

for any of the following described signs, if necessary, may be issued by

the Building Commissioner without the said Commissioner determining

if said sign complies with such rules or regulations.

A. Signs required or specifically authorized for a public purpose by any

law, statute, or ordinance; may be of any type, number, area, height,

above grade, location, illumination or animation, authorized by law,

statute or ordinance under which the signs are required or authorized.
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B. Signs of danger or a cautionary nature which are limited to: wall and

ground signs; not more than two (2) per street front for each conforming

use, or two (2) for each dwelling unit; not more than four (4) square feet

per sign in area; not more than ten (10) feet in height above grade; may

be illuminated only from a concealed light source which does not flash,

blink or fluctuate; and shall not be animated.

C. Signs in the nature of cornerstones, commemorative tables and

historical signs which are limited to: wall and ground signs; not more

than two (2) per premises; not more than six (6) feet in height above

grade; may be illuminated only from a concealed light source which does

not flash, blink, fluctuate; shall not be animated.

D. Signs which identify by name or number individual buildings within

institutional or residential building group complexes and which are

limited to: wall and ground signs; not more than four (4) signs per

building; not more than ten (10) square feet per sign in area; not more

than twelve (12) feet in height above grade; any location on the

premises; may be illuminated only from a concealed light source which

does not flash, blink or fluctuate and shall not be animated.

E. Signs in the nature of decorations, clearly incidental and customary

and commonly associated with any national, local or religious holiday;

provided that such signs shall be displayed for a period of not more than

sixty (60) consecutive days nor more than sixty (60) days in any one

year; and may be of any type, number, area, height, location,

illumination or animation.

F. Signs in the display window of a business use which are incorporated

into a display of merchandise or a display relating to services offered on

the same premises and limited to: window signs; one (1) sign per five (5)

feet of window frontage; not more than eight (8) square feet per sign in

area; ground level windows only; may be illuminated only from a

concealed light source which does not flash, blink or fluctuate; shall not

be animated.
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G. Signs commonly associated with and limited to information and

directions relating to the conforming use on the premises on which the

sign is located, provided that each such sign is limited to: wall, window

and ground signs; not more than four (4) square feet per sign in area; not

more than eight (8) feet in height above grade; may be illuminated only

from a concealed light source which does not flash, blink or fluctuate;

shall not be animated except that gauges and dials may be animated to

the extent necessary to display correct measurement.

H. No more than two (2) ground, wall or window political signs may be

erected and maintained on each premises provided that such signs shall

not be more than ten (10) feet square, shall not be more than six (6) feet

in height; shall not flash, blink, fluctuate or be animated but may be

illuminated; shall not be posted more than ninety (90) days prior to the

election to which the sign is related and shall be removed within fifteen

(15) days following the election to which the signs relate.

I. Signs which are not visible from any public right-of-way, from any

publicly owned land or from any level whatsoever of any other premises;

may be illuminated; may be animated.

J. Signs displaying only the name and address of a subdivision or of a

planned building group of at least eight (8) buildings each containing a

conforming use or uses and limited to: wall and ground signs; one (1) per

street front; not more than twenty (20) square feet per face in area; not

more than six (6) feet in height above grade; may be illuminated only

from a concealed light source which does not flash, blink or fluctuate;

shall not be animated.

K. Signs consisting of illuminated buildings or parts of buildings which

do not display letters, numbers, symbols or designs and limited to

illumination from a concealed light source which may not flash or blink,

but may fluctuate by a change of color or intensity of light, provided that

each change of color or dark to light to dark cycle shall have a duration

of one and one-half (11/2) minutes or longer; shall not be animated.
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L. Signs giving parking or traffic directions, provided that such signs are

limited to: wall and ground signs; one (1) sign per curb cut on the

premises; not more than six (6) square feet per face in area; not more

than six (6) feet in height above grade; may be illuminated from a

concealed light source which does not flash, blink or fluctuate; shall not

be animated.

M. Temporary signs that only advertise or identify construction,

remodeling, rebuilding, development, sale, lease or rental of either a

conforming use or a designated land area shall not be required to comply

with the rules and regulations, relating to signs in their zoning district,

unless said sign is viewable from any public right-of-way for a period in

excess of six (6) months. If said sign is so viewable in excess of six (6)

months, it must be approved by the Building Commissioner as a

permanent sign under the rules and regulations set out in Section

26.68.060.

N. Signs on trash or refuse containers.

(Emphasis added.) 

Section 26.68.050 of the zoning code is entitled "Political signs in F through K

districts" and provides:

In addition to the signs exempted by Section 26.68.030 permits are not

required for the following political signs in the F through K zoning

districts:

A. Permitted Sign Types of Political Signs. Wall, ground, window and

marquee.

B. Permitted Maximum Number of Political Signs. Three (3) signs for

each premises or designated land area on which the signs are located.

C. Permitted Area of Political Signs. No limitation.
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D. Permitted Maximum Height Above Grade of Political Signs.

Twenty-five (25) feet.

E. Permitted Location of Political Signs. No limitation.

F. Permitted Illumination of Political Signs. May be illuminated by a

concealed light source but shall not flash, blink or fluctuate.

G. Animation of Political Signs. Signs shall not be animated. (Ord.

59979 § 18 (part), 1986.)

(Emphasis added.) 

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