Goward v. City of Minneapolis, C0-89-2164

• Court: Minnesota Court of Appeals
• Writing for the Court: SHORT
• Citation: Goward v. City of Minneapolis, 456 N.W.2d 460 (Minn. App. 1990)
• Decision Date: 29 May 1990
• Docket Number: No. C0-89-2164,C0-89-2164
• Parties: Clayton L. GOWARD, Respondent, v. CITY OF MINNEAPOLIS, Appellant.

Page 460

456 N.W.2d 460

Clayton L. GOWARD, Respondent, v. CITY OF MINNEAPOLIS, Appellant.

No. C0-89-2164.

Court of Appeals of Minnesota.

May 29, 1990.

Syllabus by the Court

The first amendment bars a city from prohibiting a property owner from displaying signs containing political messages on property zoned for residential use.

Mark R. Anfinson, Charles J. Rethwisch, Minneapolis, for respondent.

Robert J. Alfton, Minneapolis City Atty., Michael T. Norton, Asst. City Atty., Minneapolis, for appellant.

Considered and decided by SHORT, P.J., and NORTON and MULALLY, ^* JJ.

OPINION

SHORT, Judge.

The City of Minneapolis appeals from an order of the trial court enjoining enforcement of part of its municipal code against respondent Clayton Goward. Respondent brought this action for injunctive relief when the city threatened to prosecute him for erecting signs on his residential property criticizing the city government. The signs violated city code provisions for areas zoned for residential use. We affirm.

FACTS

No facts are in dispute. Respondent has owned his present home since 1959. He converted the house into a duplex in 1960. In 1963, the city rezoned the property to a single family residential district. Respondent's duplex became a nonconforming use which could not be enlarged without city permission. Over the next 20 years, respondent made numerous changes to the home. Respondent obtained permits from the city on five occasions. However, respondent made several changes without obtaining permits. This work included an 8' by 10' addition to the front of the second story; a bay window on the east side of the second story; an enclosed room on the back side of the second story; and an open deck on the front of the third story.

In 1985, city inspectors cited respondent for expanding the nonconforming use without city permission. Respondent pled guilty to these charges. The city also brought an action to compel respondent to remove the expansions. The parties eventually reached an agreement which called for respondent to remove most of the room at the back of the second story. The other alterations were permitted to remain. The parties reduced this agreement to an order and judgment in July of 1987. No appeal was taken, and both parties complied fully with the terms of the judgment.

In October of 1987, however, respondent erected several large signs in his yard and attached more to his house. Some of the signs facing the street contained the following messages:

Watch my prediction: The Minneapolis Department of Inspections and the City Attorneys Office will quickly force me to remove these signs. Why? 1. The truth in my signs embarrasses them. 2. My signs could muster sympathy for my cause.

Attention: Minneapolis Dept. of Inspections; City Attorneys Office; My dear neighbor: You have made my life a living hell for the last two years!

Drive up the back alley & see what man's inhumanity to man has done to my home.

To the tree house builder in St. Louis Park: Let's join forces against those who are trying to destroy us.

I have been ordered to demolish part of my home or go to jail! Is this democracy and the United States Constitution at work?

If you have had a cruel and unpleasant experience with the Department of Inspections or with a hateful neighbor, please call or write to me: Clayton Goward.

The Minneapolis Department of Inspections and a hateful neighbor have forced me to demolish a beautiful addition on my home which has cost me $50,000 and two trips to the hospital. The same or worse could happen to you.

Are you thinking of buying your own home? Don't do it! Your home is not your castle. Owning a home could become a disaster to you.

Two signs were attached to the back of the house. One of them stated:

This was once my beautiful great room; complete with carpeting & beautiful curtains. Is it nothing to you all ye who pass by?

A few days later, the city informed respondent the signs violated the city code and had to be removed. Respondent apparently was permitted to retain the signs for an additional five days and was then required to remove them. Respondent commenced this action seeking declaratory and injunctive relief from the city's enforcement of the sign ordinance. The city concedes it would enforce the ordinance against respondent if he reinstalled the signs.

Respondent stated in deposition that he did not attempt to use any other means to communicate his grievance to the public. Specifically, he did not write to the newspapers; he did not protest before city hall or city council; and he did not buy advertising space in any newspaper. However, a newspaper article about respondent's problems was published in the Minneapolis Star Tribune on October 16, 1987. The article included a photo of respondent with some of his signs.

The trial court declared the following Minneapolis ordinance unconstitutional:

538.180. Signs. In R1 District the following nonflashing, nonilluminated signs are permitted under the conditions specified:

(A) NAMEPLATE AND IDENTIFICATION SIGNS

(1) Area and content--Residential. There shall be not more than one nameplate--not exceeding one square foot in area--for each dwelling unit, indicating the name and address of the occupant or a permitted occupation. On a corner zoning lot two (2) such nameplates for each dwelling unit--one facing each street--shall be permitted.

(2) Area and content--Nonresidential. For nonresidential buildings a single identification sign--not exceeding nine (9) square feet in area--indicating only the name and address of the building may be displayed. On a corner zoning lot two (2) such signs--one facing each street--shall be permitted.

(3) Projection. All signs shall be fixed flat to the surface of the building.

(4) Height. No sign shall project higher than one story, or fifteen (15) feet above curb level, whichever is lower.

(B) "FOR SALE" AND "TO RENT" SIGNS

(1) Area and number. There shall be not more than one such sign per zoning lot, except that on a corner zoning lot two (2) signs--one facing each street--shall be permitted. No sign shall exceed twelve (12) square feet in area nor be closer than eight (8) feet to any other zoning lot.

(2) Projection. No sign shall project beyond the property line into the public way.

(3) Height. No sign shall project higher than one story or fifteen (15) feet above the curb level whichever is lower.

(C) SIGNS ACCESSORY TO PARKING AREAS

(1) Area and number. Signs designating parking area entrances or exits are limited to one sign for each exit or entrance, and to a maximum size of two (2) square feet each. One sign per parking area designating the conditions of use or identity of such parking area and limited to a maximum size of nine (9) square feet, shall be permitted. On a corner zoning lot two (2) such signs--one facing each street--shall be permitted.

(2) Projection. No sign shall project beyond the property line into the public way.

(3) Height. No sign shall project higher than seven (7) feet above curb level.

Minneapolis, Minn., Code of Ordinances Sec. 538.180(A)-(C) (1987).

The city code contains other provisions for political campaign signs:

522.300. Signs. (a) Permanently affixed. All signs shall be permanently affixed to the ground or a structure. Portable signs are not authorized.

(b) Political campaign signs. Political campaign signs are authorized in all districts. Subsection (b) shall not be construed as authorizing any such signs on public property or on private property where otherwise prohibited.

Minneapolis, Minn., Code of Ordinances Sec. 522.300 (1983).

109.60. Political campaign signs. Notwithstanding any other provision of this Code to the contrary, no license or permit shall be required for the placing of temporary political campaign signs not more than thirty-two (32) square feet in area where the placing of such signs is authorized by the zoning ordinance. Lawn signs shall be removed six (6) days after a general election.

Minneapolis, Minn., Code of Ordinances Sec. 109.60 (1981). Respondent's signs do not fall into any of the permitted categories. There is no dispute that the ordinance prohibits respondent from posting his signs.

ISSUE

Does enforcement of Minneapolis, Minn., Code of Ordinances Sec. 538.180 (1987) violate respondent's first amendment right of free speech?

ANALYSIS

On appeal from summary judgment, this court's role is to determine whether any genuine issues of material fact exist, and whether the trial court correctly applied the law. Offerdahl v. University of Minnesota Hospitals & Clinics, 426 N.W.2d 425, 427 (Minn.1988). The nonmoving party has the burden of producing evidence as to all material facts for which it bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn.App.1989). The ordinary presumption of constitutionality afforded legislative enactments does not apply to laws restricting first amendment rights. Johnson v. State Civil Service Department, 280 Minn. 61, 66, 157 N.W.2d 747, 751 (1968). The burden of proving a need for such a law is on the government. Id; see also Meyer v. Grant, 486 U.S. 414, 426, 108 S.Ct. 1886, 1894, 100 L.Ed.2d 425 (1988).

The city seeks deference to its broad powers to enact zoning ordinances. The city's power to zone, however, is limited by express constitutional and statutory provisions. Our standard of review is determined not by the power exercised by the city, but by the rights allegedly infringed by the city's action. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981). Respondent's signs vent his criticism of city action. Such political speech is at the core of first amendment protection, and the city must "allow the widest room for discussion, the narrowest range for its restriction." See Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct....