Among its proponents, zoning (where government dictates how we can use our property) is credited with accomplishing a multitude of good for the public. However, there is a dark side to governmental control of land use. Throughout its history, zoning has been deployed to categorically discriminate against and exclude whoever might be the chosen pariah of the day. Whether the target was a religious or racial minority or a member of lower economic classes, zoning was a tool to exclude certain individuals from protected neighborhoods.

An early American land-use ordinance passed in San Francisco in the late 19th century provides us with a clear example of weaponized land use control. In a subtle attempt to discriminate against Chinese launderers, San Francisco passed an ordinance that seemed neutral on its face. Essentially, it was impermissible to operate a laundry in a wood building. At the time, 75% of laundries were run by Chinese owners, and every single one was located in a wood building. In an act of blatant discrimination, the city denied all applications for a variance submitted by Chinese owners while granting all white-owned operations permission to continue operations. The ordinance effectively banned Chinese laundries in the city.

A Chinese immigrant challenged the ordinance. The case ultimately made its way to the Supreme Court of the United States (SCOTUS), resulting in a pivotal equal protection decision, Yick Wo v. Hopkins. In that case, SCOTUS invalidated the ordinance, which was decidedly anti-Chinese.

SCOTUS held that the ordinance was “applied . . . with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws.” While SCOTUS generously left open the possibility of a legitimate intent of the government, it seems more likely that the application of the ordinance revealed its true, underlying intent. In fact, in a related case, a 9th Circuit judge admitted that the discriminatory effect of the ordinance “must be apparent to every citizen of San Francisco familiar with the cause of an active and aggressive branch of public opinion.”

Lest one think that such an offensive application of land use control is isolated or something you only read about in history books and dusty case law, consider two examples, both of which have occurred within the last couple of months. In these cases, fundamental rights were sacrificed for a lesser good.

The first incident arose in our own back yard. You may recall news that hit the press at the beginning of October where Elk City, OK, requested that a resident remove a political banner from private property. The conflict was rooted in a land-use control enacted by the city, restricting the size, location, and duration of a political sign. When reading the ordinance, some aspects seem reasonable from a health and safety perspective, such as a prohibition against obstructing traffic signs, signals, and utility poles. Other aspects of the ordinance protect private property rights, such as requiring a private property owner’s permission before placing a political sign on the property. However, other restrictions seem arbitrary and unnecessary.

For example, according to the ordinance, a political sign cannot “exceed thirty-two (32) square feet on each of a maximum two (2) sides, in residential districts.” Is a sign that size big enough? I would think so. However, if it is not impacting people’s health and safety, why does government need to limit the size? The ordinance then limits a political sign’s display to 30 days prior to and 72 hours following the election. Additionally, the sign must be temporary and, in most cases, cannot be “attached to … the walls, face, or exterior of a building.” Such limitations are purely aesthetic in nature without any real connection to the health and safety of the community. Furthermore, the limited time frame reduces the value and impact of political speech – the vast majority of people will have likely backed a candidate in the month preceding an election.

A second recent example comes from an opinion of the U.S. Court of Appeals for the First Circuit – Signs for Jesus v. Town of Permbroke, NH.  In Signs for Jesus, the Pembroke Zoning Board of Adjustment (Board) denied Hillside Baptist Church (Hillside) a request to upgrade its analog sign with an electronic one. Aptly named, Hillside Baptist Church sits on the side of a hill. Wooded areas border the church’s property on three sides. Open lawn stretches down the hill from the front steps of the church to its frontage with Pembroke Street/Route 3. At the edge of the property, there is a small sign announcing the name of the church and a short, manually changeable, Christian message. The church wanted to partner with Signs for Jesus to install an electronic sign with messages that could be changed remotely.

Signs for Jesus, a nonprofit organization with an evangelistic mission to change lives through the word of God by displaying Bible Verses on road signs, saw this as a godsend. Partnering with Hillside was an opportunity to place a new sign on a well-traveled corridor to the state’s capital. However, they met an obstacle. “Unfortunately, we are now facing some familiar difficulties,” reads a 2015 press release. The town of Pembroke informed the church that the LED signs were not permitted in the district where the church was located. In fact, the town restricted the placement of electronic signs to commercial districts and select lots along Pembroke Street. Of course, Hillside was not located in a commercial district and,  unluckily, not one of the specially designated lots. Consequently, the Board denied the initial permit as well a request for a variance because the sign would, in part, “detract from the rural character of the Route 3 corridor.” Spending nearly a quarter of their sign budget within a month on legal fees to secure a permit for the sign, Signs for Jesus lamented, “Once again we find ourselves taking a stand for our freedom of speech and religion that our forefathers fought and died for.”

While one of the purported purposes of the ordinance was safety, the town conceded that safety was not an issue with Hillside’s proposed sign. Rather, the town’s interest was “preserv[ing] the existing neighborhood characteristics and aesthetics, including the rural and natural look of [Pembroke].” Ultimately, the court upheld the town’s judgment, reasoning that maintaining the area’s rural nature was a significant government interest.

Setting aside the court’s legal analysis, we can focus on the policy question. Should a governmental entity be permitted to restrict a private party’s fundamental right to free speech on private property for purely aesthetic reasons? It is nigh impossible to conceive of a scenario in which a right that is essential to the functioning of our republic should be limited for no apparent reason other than the artistic interpretation of the aesthetic elite. So, should fundamental rights be subordinate to aesthetic sensibilities? In short, the answer is no.

Brad Galbraith is Land Use Fellow at 1889 Institute. He can be reached at [email protected].

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.