On June 22 the Department of Public Works served IT&E Overseas Inc. with a notice informing it that six of its signs are in violation of Guam’s zoning law and sign regulation. The law states that in commercial zones no exterior signs shall be erected displayed or maintained except for signs indicating the name of a person or the type of business occupying the premises or the name of the building. Individual signs may not cover an area in excess of 10% of the surface of the wall to which they are attached. Timothy M. B. Farrell is the attorney for the complainant IT&E.
The alleged violations are that IT&E is not a tenant of the property where its signs are located and that the signs that are located on the walls of buildings are in excess of 10% of the surface of that wall. Five out of the six signs were wall signs located on the sides of buildings. The remaining sign was a freestanding sign directing customers to IT&E’s office.
On July 7 IT&E filed a notice of appeal with the Guam Land Use Commission; it alleged that it was improperly issued a notice of violation by the Department of Public Works in relation to Guam’s land use laws.
In the complainant’s supporting memorandum filed July 22 with the GLUC IT&E claimed that it is not in violation because of DPW’s own failure to comply with the law. The law states that “The building official shall set specific engineering design standards [so that] all permitted signs shall be erected in such a manner as not to create a hazard to public safety or property and shall be resistant to winds typhoon earthquake or other natural phenomenon.”
IT&E claimed it sent a Freedom of Information Act request to obtain the specific engineering design standards for its signs and DPW sent nothing in response; instead it was told that “DPW does not have such standards or rules.” DPW also failed to properly identify all of the signs. Without the proper identification IT&E is unsure which of its signs are in violation. It claimed that none of the documents list a physical address for all of the locations except for one that were cited in the violation much less a legal description. There were also no documents which state what the properties are zoned be it agricultural industrial commercial etc. Because of this IT&E was unsure of which of its signs are in violation and which signs are not so as a matter of due process the notice must be quashed. IT&E alleged that if DPW does not know the locations of the signs then how does it know that IT&E is not a tenant or that the signs take up more than 10% of the wall.
IT&E also claimed that Guam’s sign law unconstitutionally limits the freedom of speech. “The [sign] law creates exemptions to the general prohibition on signs. These exemptions include political advertisements temporary signs put up by certain organizations signs in other than English or Chamorro and signs on school bus stop shelters to commemorate certain businesses or individuals. These are all content-based exemptions. They are content based because they depend on who is putting up the sign. As such they may give a supporter of one side of an argument an advantage in expressing its views.” It also stated “This is unconstitutional. The government cannot discriminate against messages based on who is posting them.”
IT&E is arguing that under the law everyone must be treated equally and that in order to avoid a constitutional challenge DPW must demonstrate that it was necessary to distinguish between the advertisers to serve important or substantial government interests.
Besides its claim that the sign law is unconstitutional IT&E also claimed that the law has no valid purpose. The legislative history is silent as to the reason for the law. IT&E contends that aesthetics and safety are not issues. Aesthetics is not an issue because there are so many exemptions to the law that it makes it impossible to justify. Safety is not an issue because it took 40 years to adopt engineering standards law exempted signs are allowed to be posted at school bus stops and because there are separate safety standards for political signs. Because there seems to be no justifiable purpose IT&E contended that the law is moot and it is the government’s burden to prove otherwise.
The DPW on Aug. 19 filed a respondent’s memorandum in opposition to appeal and motion to dismiss appeal. DPW also claimed that the GLUC does not have the authority or jurisdiction to decide or entertain the issue of constitutional infringements. Lastly DPW stated IT&E failed to apply for a permit for any of the signs in question or a variance for any of the signs in question it does not have standing to raise any due process claims or to otherwise challenge the application of the law to it. Also IT&E was not charged with violation of any specific engineering design standards. It was charged with two different violations because IT&E was not a tenant of the properties where its signs were located its signs do not advertise the name of a person or the type of business occupying the property. The other charge was that its signs were in excess of 10% of the surface of the wall to which it was attached.
On Aug. 22 IT&E filed a complainant’s reply memorandum in which it argued that valid policy reasons do exist to hear constitutional issues. If the GLUC cannot hear the underlying constitutional arguments it does still have the power to review DPW decisions and IT&E should be entitled to a hearing on the underlying facts. It also claims that failure to apply for a permit for any of the signs in question does not deprive IT&E of standing appeal to the commission. IT&E cites several cases where parties in similar situations did not apply for a variance before filing suit and the government rejected motions to dismiss on those grounds.
The case was on the agenda at the GLUC meeting on Nov. 29 but because the commission did not have a quorum no decisions could be made. As of press time the GLUC had not meet to discuss the issue. MBJ
