(October 19, 2020, Manchester, NH) – Sheehan Phinney’s Business Litigation team successfully represented the Town of Pembroke Zoning Board of Adjustment, in a 3-year sign ordinance battle. Team members included shareholders Christopher Cole, Megan C. Carrier and John-Mark Turner.
Sheehan Phinney represented the Town of Pembroke Zoning Board of Adjustment in connection with claims asserted by a local Church, which wanted to change its traditional wooden sign to an “electronic changing sign.” The Town’s sign ordinance, however, banned electronic changing sign in all districts except for the commercial district. The Church, located in the Limited Office District, applied for a variance and permit to install an electronic changing sign, on which it intended to display religious messages, on its property. The Town’s Code Enforcement Officer denied the permit, citing the sign ordinance. The Church sought reconsideration of that decision, and requested a variance, from the ZBA. The ZBA denied both requests, and the Church initiated an action in federal court claiming that the denials violated the First Amendment, a federal law called the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and its right to equal protection. Following cross-motions for summary judgment, the Town prevailed on all counts, and the Church appealed to the First Circuit. Sheehan Phinney shareholder Christopher Cole argued the case before the First Circuit in July 2017. On October 7, 2020, the Court of Appeals affirmed the judgment of the District Court on all counts.
With respect to the Church’s First Amendment claim, the court found that the Church had standing to challenge only the electronic sign provision of the ordinance, and declined to consider the Church’s arguments that various other provisions of the ordinance were content-based and therefore would be required to withstand strict scrutiny. The court went on to find that the electronic sign provision is “content neutral,” — that is, its application did not depend or turn on the content or type of message. The court agreed with the federal district court that the Town’s regulation of electronic signs withstood intermediate scrutiny because the electronic sign ordinance is narrowly tailored to further the Town’s interest in preserving neighborhood characteristics and aesthetics. The court also noted that the provision left open ample alternative channels for communication.
The Church’s RLUIPA claims fell under two provisions of that statute – the “equal terms” provision, and the “substantial burden” provision. The equal terms provision prohibits municipalities from imposing land use regulations in a manner that treats religious institutions on “less than equal terms” with secular institutions. The Church argued that the Town allowed three secular institutions to place electronic signs in the Limited Office district: a gas station (whose electronic sign was in existence prior to the adoption of the electronic sign provision and therefore constituted a lawfully preexisting nonconforming use), the local School Administrative Unit and Pembroke Academy (a subdivision of the state which, by statute, is exempt from local zoning regulations), and the NH Department of Transportation (also exempt from local zoning regulations, and notably, its sign was temporary to alert motorists to construction activities).
The court found that none of these secular institutions constituted appropriate comparators for purposes of an equal terms claim because the Town could not regulate their signs, and held that the Town applied the electronic sign provision equally to all entities it was able to regulate. Accordingly, the court rejected not only the Church’s RLUIPA equal terms claim, but also its equal protection claim.
In its other RLUIPA claim, the Church asserted that the electronic sign regulation constituted a “substantial burden” on the Church’s free exercise rights. The court agreed with the federal district court that, in effect, requiring the Church to continue using a manually changeable, non-electronic sign “is hardly an ‘oppressive’ imposition on the Church’s religious exercise.”
About the Firm
Sheehan Phinney is a full-service business law firm representing local, national and international clients with innovative approaches and practical solutions. Founded in 1937, Sheehan Phinney has grown to over 60 attorneys with four offices throughout New Hampshire and Massachusetts and is known for professional excellence, practical counsel and commitment to both its clients and the communities it serves. Sheehan Phinney is the exclusive member in New Hampshire of Lex Mundi, the world’s leading association of premier independent law firms. For more information, visit www.sheehan.com.
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