Judge prevents Neenah from enforcing sign ordinance while federal case proceeds
NEENAH - The city of Neenah will be prevented from enforcing its sign ordinance while a federal lawsuit challenging the constitutionality of the ordinance proceeds in U.S. District Court.
A preliminary injunction issued Thursday by Judge William Griesbach means the city cannot take action against plaintiffs Tim and Megan Florek or others for displaying "Don't Rezone Shattuck Middle School Leave R-1 Alone" yard signs beyond the time limit prescribed in the ordinance.
Neenah's municipal code restricts temporary, portable signs on residential properties to "30 days within a 90-day period."
The Floreks contend the enforcement of the ordinance violates their First Amendment rights to free speech. They are represented by the Wisconsin Institute for Law & Liberty of Milwaukee.
"The city's sign ordinance is unconstitutional, and we are grateful the court has stepped in to protect our rights while this case moves forward," Tim Florek said in a statement Friday. "This is a good day for freedom and the rule of law."
Neenah City Attorney David Rashid declined to elaborate on Griesbach's decision, saying that because the litigation still is pending, it would be inappropriate to comment on the matter. He previously defended the ordinance, noting cities can regulate signs as long as the enforcement is content-neutral.
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Neenah ordered the Floreks to remove their yard sign by Feb. 8 or face daily fines. The sign had been in place at least since Dec. 7, when the Common Council rejected a request from Northpointe Development Corp. to rezone the Shattuck property to accommodate apartments.
The Floreks sued, arguing the sign ordinance is unconstitutional because it imposes different regulations based on what a sign says. The Floreks could place a "no trespassing" sign or a "for sale" sign in their front yard indefinitely, the lawsuit says, but are limited to 30 days "for their chosen political message."
In granting the injunction, Griesbach noted Neenah's ordinance requires permits for some signs and but not others "depending on the sign's content." He ruled the ordinance is "a content-based restriction on speech" and therefore is "subject to strict scrutiny."
"The city has the burden to show that the sign ordinance's content-based regulations are narrowly tailored to serve compelling governmental interests," Griesbach said. "At this stage in the litigation, defendants fail to make this showing."
Neenah argued that "prolific and permanent resident signs may obstruct sight lines and confuse the ability to identify signs being utilized for safety and business purposes" and that the ordinance is written to achieve the city's goals of promoting aesthetics, safety and commerce.
Griesbach dismissed the city's interest in aesthetics.
"The city cannot claim that placing strict size and time limits on certain signs is 'necessary to beautify' or declutter the city while at the same time allowing other signs 'that create the same problem' to be larger or displayedindefinitely," the judge wrote.
Regarding the protection of public safety and welfare, Griesbach determined Neenah didn't establish that certain signs pose a greater threat to safety than any other types of signs or that limiting certain signs will assist people in identifying signs being used for business purposes.
Contact Duke Behnke at 920-993-7176 or dbehnke@gannett.com. Follow him on Twitter at @DukeBehnke.
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This article originally appeared on Appleton Post-Crescent: Judge stops Neenah from enforcing sign ordinance while case proceeds
