RMLUI Legal Corner: Boyer v. Simi Valley—When a Parking Case is Also a Sign Case
by Elizabeth Garvin, Esq., AICP [1]
Have you ever worked with a sign code that has a laundry list of exceptions? Things that are either not considered signs, such as flags, or signs that are not regulated by the sign code, such as “no trespassing” signs, building entry signs, or temporary signs? Once a sign type has been eliminated from the regulations, it no longer really exists as a regulatory consideration, right? Not so fast. The recent Ninth Circuit [2] decision in Boyer v. City of Simi Valley, 978 F.3d 618 (9th Cir. 2020), should encourage Western Planner communities to consider whether sign exemptions inadvertently create different categories of speakers in a manner that potentially violates the First Amendment.
The Boyer dispute was actually created by Simi Valley’s Public Safety Code (Simi Valley Municipal Code, Chapter 4-9, Traffic). Chapter 4-9 includes seven articles that establish the city’s regulations regarding the parking and storage of a variety of vehicles. Relevant to this case, Section 4-9.601 provides that, “[i]t shall be unlawful for any person to park or leave standing a mobile billboard advertising display on any public street, alley or public lands in the City.” Mobile billboard advertising display (“mobile billboard”) is defined as: “an advertising display that is attached to a mobile, nonmotorized vehicle, device, or bicycle, that carries, pulls, or transports a sign or billboard, and is for the primary purpose of advertising.” [3] The same section also provides that “for purposes of this Chapter, this definition shall not include a motor vehicle.” Mobile billboards that are parked or left standing in violation of the prohibition can be impounded.
Other vehicles are specifically exempted from the regulations and authorized to park on public streets. This includes “Authorized Emergency Vehicles [the ordinance provides a defined list of publicly-owned or licensed vehicles], while on duty or vehicles authorized by the City Engineer or such other City official as may be authorized by the City Manager for construction, repair or maintenance of public or private property.” Sec. 4-9.701. Boyer claimed that this exemption for authorized vehicles also exempted those vehicles from the ban on mobile billboards, and effectively permitted emergency vehicles and construction, repair, or maintenance vehicles to park on city streets with mobile billboards. Mr. Boyer, you may have guessed by now, owns a mobile billboard. It may have seemed to him that if Sally’s Sewer Service or Hassim’s Heavy Contractors were allowed to park their vehicles on public streets, potentially while towing mobile billboards, then they were being treated differently than Mr. Boyer for doing the exact thing that he either wanted to do or was prohibited from doing.
Boyer sued the city for: (1) injunctive and declaratory relief (i.e., to stop the city from enforcing the ordinance and have the court declare it illegal), and (2) damages pursuant to 42 U.S.C. §1983 (payment for his injuries and, most likely, payment for his attorney’s fees). He claimed that the parking regulations were: (A) a violation of his free speech and expression rights under the First Amendment, (B) pre-empted by state law (in other words, the city could not regulate a subject that was fully regulated by the state) [4], and (C) a violation of his Fourteenth Amendment right to due process. All of these rights and laws were violated, Boyer claimed, because the city’s regulations preferred one category of speakers (emergency and repair vehicles) over another (mobile billboards).
Simi Valley moved to dismiss the case and the district court (lower court) agreed. Following the reasoning of an earlier, precedential Ninth Circuit opinion – Lone Start Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192 (9th Cir. 2016), the district court held that even though the regulations were speaker-based, the distinction did not reflect a governmental preference (or aversion) so the content-neutral regulations test should be applied. To jump this hurdle, the city only needed to show that the mobile billboard regulations were narrowly tailored to meet the city’s interests. That standard was easily met by the city’s interest in traffic control, public safety, and aesthetics, all of which had been “repeatedly confirmed” by the Ninth Circuit as suitable reasons to “prohibit [] intrusive or unsightly forms of expression.” [5] Back up and re-read if you missed that, because the court just made the jump from parking to speech.
Picking up the thread there, the appellate court found that the lower court had applied the wrong legal standard. Instead of finding that Simi Valley’s regulations were “effectively” content neutral and could be upheld based on the city’s interests, the appellate court held that the correct rule is far more strict. Content-based regulations, which both courts agreed these regulations are, are presumed invalid unless the government cans show they are narrowly tailored to serve compelling state interests. Unpacking that statement, this means that a court should presume that the city did not have the authority to adopt a rule differentiating between speakers unless the city could show that the regulations were written in a manner that supports an essential legal interest.
So, you may be asking yourself anxiously: can or did the city meet this standard? The court asked the same question but could not answer it. “We struggle to identify a justification for allowing speech only from authorized emergency and construction, repair, or maintenance vehicles that does not rely on content, and the City offers none.” Because the record on appeal did not provide the court with this information, the court spent a moment speculating about the city’s justifications, and perhaps attempting to identify a safer path forward. According to the court, the city certainly had a recognized interest in public safety that might have provided “prudent” and “reasonable” support for a non-content-based regulatory approach (or perhaps a well-reasoned basis for content-based regulations, but the court does not extend that line of consideration). Alternatively, the city may have meant to create an exemption for governmental speech which could possibly meet the governmental speech doctrine, depending on how the regulations were drafted. After thinking it through, though, the court concluded that “exempting certain authorized vehicles from the ban on mobile billboard advertising displays can be justified only based on content.” 978 F.3d at 624. And because the parties all seem to have geared their arguments to the more lenient content-neutral standard, the appellate court remanded the case to the district court for reconsideration based on the correct standard.
The take-away from this case is for local government to be both generous in identifying a list of applicable policies, and interest-specific when incorporating purpose and policy statements into regulatory documents. A robust approach of regulatory creation that includes findings in the adoption ordinance and purpose or intent statements in the regulations can go a long way toward answering the inevitable questions about municipal interests that do not seem to arise until years later.
The mystery of this case is whether the city could have saved itself from litigation based on how the regulations were drafted. Would it be possible to more clearly specify that a mobile billboard is a different type of sign than vehicle signage? The appellate court seems to wonder the same thing in footnote 1:
“[a] mobile billboard is not a motor vehicle but instead is “an advertising display that is a to a mobile, nonmotorized vehicle, device, or bicycle, that carries, pulls, or transports a sign or billboard, and is for the primary purpose of advertising. SVMC § 4-9.602. While common sense may seem to exclude “authorized vehicles” from this definition, the City offers “peace officer patrol bicycles” and “construction trailers” as examples that would qualify as both authorized vehicles and mobile billboards.”
Or could the city have specified that the exempt vehicles were still not permitted to pull mobile billboards? It can be hard to see this type of five-moves-ahead, 3-D chess problem when drafting individual regulations, so we may not get an answer to this question for Simi Valley. But thinking it through seems like a reasonable exercise for other local governments with regulations that may set up a similar scenario.
[1] Elizabeth is an attorney and planner and the founding principal of Community ReCode in Denver. She is a member of the Regional Advisory Board of the Rocky Mountain Land Use Institute. This article is informational in nature and not intended to provide a legal opinion.
[2] Arizona, Nevada, California, Oregon, Idaho, Washington, Alaska, Montana, Hawaii, Guam, and the Northern Mariana Islands
[3] This definition matches the California statutory definition of mobile billboard found at Cal. Veh. Code §395.5.
[4] This is a very simplistic summary of pre-emption because pre-emption is not the main claim in this case.
[5] Boyer v. City of Simi Valley, 401 F. Supp.3d 943, 948 (C.D. Cal. 2019).