#politics | As Leland considers allowing political signs on town roads, potential council and constitutional concerns

What’s missing from the Mallory Creek Drive right-of-way? Political signs are not currently allowed along town-owned right-of-ways in the Town of Leland. (Port City Daily photo/Johanna F. Still)

LELAND — Driving down major subdivisions in Leland, like Brunswick Forest Parkway or Mallory Creek Drive, something is noticeably missing this time of year: political signs.

While political signs decorate nearly all major public thoroughfares in Brunswick and New Hanover County ahead of the spring primary, roads maintained by the Town of Leland are free of them. Soon, that could change.

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Signs in town

Last month, the town considered removing its ban on political signs in public right-of-ways, codified in Section 42-10(12) of the town’s ordinances, in order to replace it with language mirroring G.S. 136-32, a state statute that permits the signs along public roads with certain conditions (signs must be 3 ft. from the pavement; can’t obscure motorist visibility; can’t be any larger than 6 sq. ft. etc.).

Asked whether political signs would be allowed in Brunswick Forest and Mallory Creek, Leland Senior Planner Matt Kirkland said so long as the signs meet certain standards, yes.

“Uh oh,” Councilwoman Pat Batleman responded.

Roads in nearly all of the town’s planned developments are owned and maintained by the Town of Leland. This includes Brunswick Forest, Mallory Creek, Magnolia Greens, Waterford, and more. Despite sign bans found in most of these community’s restrictive covenants, a town ordinance allowing political signs would trump an HOA rule, according to town attorney Brian Edes. HOAs could still regulate signs on private property but could not stop someone from lawfully placing a sign in the public right-of-way along a town-maintained street if the new rule passes.

Like pickets, political signs are an extension of an individual’s First Amendment rights. Unlike pickets, political signs tend to litter roadways, sometimes long after an election has passed. In June 2019, the state legislature strengthened requirements for picking up signs that clutter public spaces, permitting anyone — not just government officials — to remove unlawfully placed signs that linger 30 days past an election.

Individuals who remove lawfully-placed political signs can be found guilty of a class 3 misdemeanor under state statute (however, this crime is rarely charged or prosecuted).

At the town’s regular meeting last month, Planning Department staff urged Council to adopt the change to mirror the town’s ordinance with the state statute. Instead, Council continued the item, citing concerns that the change would create local pushback and the need to properly message the issue to property associations before implementing it.

Private property associations in Leland, including Brunswick Forest and Mallory Creek, have been enforcing their own restrictive covenants in publicly-owned right-of-ways that restrict signs, according to multiple Councilmembers. This private enforcement has also extended beyond town-maintained roads to the state-maintained Highway 17, according to Councilman Bob Corriston — in apparent violation of state statute, according to Edes.

Where can they go?

Though the town currently does not allow political signs in town right-of-way, code enforcement has not actively removed noncompliant signs, Planning Director Ben Andrea explained to Council last month.

“Now that becomes an enforcement issue and we get into a slippery slope of, constitutional right to — freedom of speech — there’s constitutionality issues. So this was the way that we saw to, the easiest method that we saw to create a safeguard against that potential issue,” Andrea said, describing the reason behind the text amendment.

Since the language requires compliant signs are placed 3 ft. from the pavement, most town roads in Magnolia Greens likely won’t get signs should the new rule pass. But there’s plenty of room in the right-of-way along Mallory Creek Drive and the medians on Brunswick Forest Parkway.

Realizing what the text amendment would mean for property associations, Council seemed to dread the proposed change. “I wish that nobody could put out signs,” Mayor Brenda Bozeman said.

The medians found along Brunswick Forest Parkway could soon have political signs, should the Town of Leland pass a new text amendment to allow the signs on town-owned right-of-ways. (Port City Daily photo/Johanna F. Still)

Content-based rules

In June 2015, the U.S. Supreme Court ruled in favor of a pastor who sued the Town of Gilbert, Arizona, after being cited for leaving directional church signs up past noon Sunday and failing to include an event date on the signs. The Town’s sign code included varying restrictions for signs categorized based on their content, including “political signs” and “ideological signs.”

Because the town was regulating signage based its content, rather than by sign material or type (feather banners, temporary signs, window signs, etc.), it violated the pastor’s Constitutional right to free speech, the court ruled.

Adam Lovelady, Associate Professor of Public Law and Government, wrote in a 2018 blog post for the UNC-Chapel Hill School of Government that the state statute that permits political signs in state-maintained right-of-ways “as written is subject to constitutional challenge.”

Under the state statute, political signs are fair game in the right-of-way of all state-maintained roads in the state highway system (with the exception of fully-controlled access highways). In the absence of a local ordinance regulating political signs, the state statute that allows the signs applies.

“This preferential treatment of one category of noncommercial speech is precisely the kind of content-based regulation that the Court struck down in Reed,” Lovelady wrote.

Though Leland’s code specifically cites no political signs are permitted along town right-of-ways, it also bans all signs (no matter the content) in Section 42-8 and 42-9(11).

If Leland adopts the state’s language to permit political signs while all other types of content remain prohibited, would it open the town up to constitutionality issues? Leland’s spokesperson, Hilary Snow, said the town follows both state and federal law and would make adjustments accordingly, should it be necessary.

Council could again review the proposed text amendment at its regular meeting next week.

Send tips and comments to Johanna Ferebee Still at johanna@localvoicemedia.com

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