Recent Developments in Kentucky Regarding Zoning

Key point. City ordinances that restrict the use of signs by churches do not necessarily violate the constitutional guaranty of free speech, or constitute an unlawful "taking" of church property without just compensation.

A federal court in Kentucky ruled that a church's constitutional rights were not violated by a new city ordinance that prohibited the use of a sign the church had used for ten years. For nearly ten years a church maintained a small sign on its front lawn to promote services and special events. In 1992, the city council enacted an ordinance that restricted the use of "small freestanding signs." The ordinance reduced the size of allowable signs from 32 to 8 square feet; reduced the maximum height above ground from 9 feet to 4 feet; and limited the hours of display to the site's "business hours." The purpose of the ordinance was to "enhance and protect the community from visual nuisances and safety hazards to vehicular traffic caused by the currently permitted larger signage." The church challenged the constitutionality of the sign ordinance, claiming that it was a violation of free speech and amounted to an unconstitutional "taking" of church property without just compensation. The court rejected both arguments, and upheld the constitutionality of the ordinance. In rejecting the church's claim that the ordinance violated the constitutional guaranty of free speech, the court noted that "where a regulation indirectly affects speech, without reference to the content of the speech, the court must inquire as to whether the ordinance (1) is in furtherance of substantial state interests; (2) directly advances those interests; (3) has an effect on speech no greater than necessary to accomplish the city's purpose; and (4) leaves open alternate modes of communication.

The court concluded that each of these factors was met, since "the government has a substantial interest in promoting the safety and aesthetics of its cities"; the "most direct and perhaps the only effective approach to solving the problems [signs] create is to prohibit them"; the prohibited signs "were unattractive and constituted safety hazards," and therefore "their prohibition is the most direct method of addressing the government's interests in safety and aesthetics"; and the church has "adequate alternative modes of communication available," including the distribution of flyers, mailing of leaflets, and use of smaller portable signs.

The court also rejected the church's claim that the ordinance amounted to an unconstitutional "taking" of its property without just compensation. The constitution provides that "nor shall private property be taken for public use, without just compensation." The church asserted that the ordinance amounted to a taking because it could not use the sign on its property. The court relied on a 1980 Supreme Court decision finding that a zoning ordinance amounts to a taking if: (1) it does not substantially advance legitimate state interests; or (2) it denies an owner economically viable use of his property. Agins v. City of Tiburon, 447 U.S. 255 (1980). The court noted that it already had ruled that the ordinance met the first part of this test. It conceded that application of the second part is more difficult, but it concluded that it too was met. It noted that "the church is left with at least one economically viable use for its sign-it can sell it to someone who lives outside of [the city] and who has some non—restricted use for it." Other courts have ruled that as long as property remains "sufficiently desirable to permit its owner to sell it on the open market for its intended use, no regulatory taking has occurred." Further, even if the church could not sell its sign, the court concluded that it would be doubtful that the ordinance would constitute a taking since there ordinarily is no taking of personal property if there is a reasonable expectation that use of the property may be regulated. Wilson v. City of Louisville, 957 F. Supp. 948 (W.D. Ky. 1997). [ Zoning Law and Churches]

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