Bangstad sign dispute heads to zoning committee

A controversy involving an oversized political sign and the Democratic nominee for the 34th Assembly district has thrown enforcement of the entire county sign ordinance into question, with the county’s zoning director halting any enforcement while the matter is sorted out.

That could be soon, Oneida County zoning director Karl Jennrich said this week, as the case of Kirk Bangstad’s Biden-Harris sign on the side of the Minocqua Brewing Company (MBC) is headed to the county’s zoning committee next Wednesday.

Bangstad is facing incumbent Republican Rob Swearingen in the Nov. 3 election for the Assembly seat.

In a Sept. 29 letter, Jennrich had ordered the sign removed because, in the department’s view, it is larger than the 32 square feet the ordinance allows for political signs. Bangstad, the owner of MBC, has refused, however, and, via his attorney, told the county the ordinance regulation is unconstitutional. 

Jennrich says the county’s corporation counsel is reviewing that claim, but, in the meantime, he has halted enforcement of the ordinance altogether, including for business signs.

“I just received a complaint about a banner in the town of Woodruff,” Jennrich said. “I’m holding right now because of this comment made by (Bangstad’s) attorney regarding Bangstad’s sign.”

That complaint in Woodruff is being made against a business sign, not a political one, a temporary banner that under the ordinance could be 32 square feet but is closer to 70 square feet, Jennrich said.

Without enforcement of the Bangstad banner or the business sign in Woodruff, Jennrich acknowledged that could send a message that people can put up any sign they want, at least until the zoning committee and corporation counsel give direction.

“It could (send that message), yes,” he said. “It will be discussed next week, so hopefully I’ll have some answers. I will be asked to have some answers.”

Complaint, then controversy
Jennrich’s Sept. 29 letter to Bangstad followed a complaint he received, and he said the enforcement letter was standard practice.

“When we send out the letters, whether it be to Mr. Bangstad or to real estate people, we ask them to come into voluntary compliance, and nine times out of 10 they come into compliance,” Jennrich said. “To my knowledge, it’s been a long time since I’ve issued citations to someone who has been in violation of the sign ordinance, whether it be real estate, the off-premise directional arrows, or political signs. It’s just been a long time since I’ve issued citations.”

But Bangstad refused to come into compliance, Jennrich said.

“Mr. Bangstad responded back that he really had no intent of removing that sign,” he said. “There’s a couple of emails to that effect. And then we were also contacted by his attorney, basically stating that he believes that our ordinance is not constitutional.”

Jennrich sent that on to the corporation counsel’s office.

“So I sent that email to counsel to review, and I just said, ‘I’m getting pressure to do something, either have it removed, issue citations,’ and I said, ‘before I pull the trigger, so to speak, I needed to know whether or not counsel feels comfortable defending me in court,’” Jennrich said. “So at this time counsel is at least reviewing the ordinance section and whether or not he believes I could withstand a challenge if I issued a citation.”

And Jennrich said he was putting the issue on next week’s zoning committee meeting so the committee could either “direct me to take appropriate enforcement action or not to take appropriate enforcement action.”

Jennrich also clarified a Milwaukee Journal Sentinel article about the issue. In the article, the Journal Sentinel reported Jennrich as saying, “At this time I’m not going to be issuing citations,” while the reporter mused that “he’ll probably just let it go.”

That latter assertion sparked its own concerns, specifically, about the appearance of a double standard, but Jennrich said it wasn’t the case. He isn’t issuing citations at this time, he said, because he is awaiting guidance from the zoning committee and corporation counsel, not because he is letting it go.

“No, I would like to let it go, but I’m not going to be letting it go,” he said. “The powers that be have to make a decision about what they would like me to do. Right now, yes, I have the full authority to issue citations, and technically I don’t need committee approval. Just because of the nature of this, I was going to talk to committee.”

Likewise, Jennrich said he wanted to hear from the legal department.

“I need direction from counsel, taking a look at our ordinance and looking at this contention that (the ordinance) is not constitutional because I don’t know what liability exposure I would put the county in if counsel says he wouldn’t issue the citations and these are the reasons why.”

While Jennrich says he does issue citations for such things as not coming into compliance or tourist rooming houses not obtaining proper approvals, there are instances in which citations have not been pursued.

“Theoretically, with some of these real estate for sale directional arrows, I should have been issuing citations because I’m after some of the same companies, per se, for the last couple of years,” he said. “But I send a letter, and for the most part they remove the arrows.”

Still, he said, Jennrich said business owners who have come under scrutiny about sign compliance in the past could be justified in accusing the county of a double standard if the county did let it go.

“They can make that statement,” he said. “I think it could be considered a true statement.”

Constitutionality

Courts have been all over the board in ruling on the constitutionality of sign regulations, particularly political signs, but one of the latest decisions does provide some clear guidance, the 2015 Reed v. Town of Gilbert decision by the U.S. Supreme Court.

In the decision, the court ruled unequivocally political signs cannot be prohibited, and local governments cannot in general impose content-based restrictions on speech, that is to say, sign ordinances cannot regulate content.

That said, the decision did not rule out any regulations of political signs, so long as the ordinance does not treat content-based signs differently from non-content based signs. 

“Our decision today will not prevent governments from enacting effective sign laws,” the court ruled. “… The town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. And on public property, the town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.”

Justice Samuel Alito added a concurring opinion.

“As the court shows, the regulations at issue in this case are replete with content-based distinctions, and as a result they must satisfy strict scrutiny,” Alito wrote. “This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations.”

Alito went on to provide some rules that would not be content based, and first on his list were rules regulating the size of signs.

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.