Like the proverbial finger stuck in a dike, some towns still try to limit the growth of electronic variable display signs, generally to keep them out of neighborhoods rather than commercial areas.  Churches migrating from manual signs often find these ordinances stand in the way of modern signage for churches because churches are often in residential areas and are often the last to update to new electronic signs.  Thus, while churches might be the first in the residential area to have any sign they are usually last to install an electronic sign and therefore not grandfathered by the time the ordinances were amended to address the age of the electronic sign.  The electronic variable display signs are usually programmable from the church computer system or someone’s cellular data phone, which is the attraction.  The manually changeable signs require ladders and a high wire act, usually in high wind.

In Signs for Jesus v Town of Pembroke, Memorandum and Order (D. NH, 2017), the New Hampshire federal court was asked by Signs for Jesus, a non-profit para-church organization assisting the church with an electronic variable display sign and the Plaintiff, to set aside the ordinance of Pembroke that disallowed such a sign in the part of the town in which the church was located.  It is unclear from the opinion why Signs for Jesus was litigating in federal court rather than in the state trial court.  It seemed that Signs for Jesus wanted to test some of the federal legal rights for churches.  If that was the case, then this seemed like a case lacking facts essential for such a “test case.”

The church was in a section of the town in which the electronic variable display signs were barred.  The only two exceptions in the area of the church were signs owned by a gas station and a public school; the gas station sign predated the passage of the ordinance and was thereby grandfathered and the public school as a state political subdivision could not be regulated by the city government.  The ordinance merely banned the signs in residential areas and did not apply uniquely to churches or to sign content.  The stated purpose of the ordinance was to preserve aesthetics, a “semi-rural” ambiance.

Signs for Jesus’ federal court complaint challenged the constitutionality of the ordinance, alleged First Amendment free speech rights were violated, alleged a Fourteenth Amendment Equal Protection claim, alleged a Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim, and alleged a Due Process claim.  The constitutional claims were disposed of because the ordinance was “content neutral” and did not single out churches.  The RLUIPA claim was denied because the church did not prove the ordinance was a “substantial burden” to religious exercise by the church and did not prove treatment on less than equal terms, both of which are proof required under the statute.  The opinion was detailed although this summary is not.

RLUIPA might have been of some help if the record had been developed differently.  Although Signs for Jesus sought a variance (or the church did), it was the denial of the variance by a concomitant use of discretion that might have been the better basis for a claim, but that was not the focus of the claim, at least in the federal court’s recitation of the facts.  Also, the lesson from this case might be that political solutions with elected officials might be better pursued than litigation in ordinance issues.  Local elected officials are often reluctant to refuse relief to a church.  Also, the church could have considered placing a sign in the commercial district of a town as small as Pembroke.  Humorously, sometimes planning such a sign where no one else wants it but where it is legally permitted can obtain support for a variance.

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