Judge dismisses lawsuit challenging constitutionality of Neenah's sign ordinance

NEENAH — A federal lawsuit challenging the constitutionality of Neenah's sign ordinance has been dismissed for mootness after the city enacted changes to make its sign regulations lawful.

U.S. District Judge William Griesbach announced the dismissal Thursday. He also denied a claim for nominal damages sought by plaintiffs Tim and Megan Florek.

The Floreks "did not suffer a completed injury," Griesbach wrote in his decision. "They never removed the sign from their front yard and, thus, suffered no violation of their First Amendment rights."

The case had been in dispute for more than a year.

"We at the city of Neenah are pleased that the judge did the right thing, after we took affirmative action last spring and summer to correct the aspects of our former sign ordinance that he'd previously ruled were unlawful," City Attorney David Rashid told The Post-Crescent.

The Floreks have 14 days to appeal Griesbach's ruling. Tim Florek referred The Post-Crescent's inquiries to the Wisconsin Institute for Law & Liberty, which represented the Floreks in the case.

Lucas Vebber, the institute's deputy counsel, said the litigation center is "still discussing what additional options we want to pursue with our clients to ensure this type of abuse never occurs again."

Neenah spent more than $24,000 on outside counsel to defend itself. Rashid wants the expenses to end.

"We are hopeful that they'll agree that enough of the citizens' tax dollars have already been spent on the sign in their yard," Rashid said.

What was at issue in the lawsuit?

Neenah's sign ordinance was adopted in 1977 and modified in 2010. It was used in January 2023 to order residents to remove "Don't Rezone Shattuck Middle School Leave R-1 Alone" yard signs that exceeded the prescribed time limit for portable signs.

The Floreks refused to comply and challenged the ordinance in federal court, contending it violated their First Amendment rights to free speech.

Griesbach issued a preliminary injunction in April preventing Neenah from enforcing the sign ordinance while the lawsuit proceeded in court. He ruled the ordinance was "a content-based restriction on speech" and therefore was "subject to strict scrutiny."

Neenah subsequently rewrote its sign ordinance to comply with Reed vs. Town of Gilbert, a 2015 case in which the U.S. Supreme Court said sign regulations must be content-neutral, otherwise they risk infringing upon a person's First Amendment rights.

How does the new ordinance differ from the old one?

Before the rewrite, Neenah's ordinance regulated yard-sale signs differently than real-estate signs, for example, and it required the reading of the sign's content to differentiate the sign type.

The new ordinance consolidated a number of sign types into one category called "portable yard signs." A property is allowed one portable yard sign per street frontage on a temporary basis not to exceed 30 days within a 90-day period.

The time regulation applies to all portable signs, regardless of the message.

Additional portable yard signs are allowed during an election campaign, and an additional portable sign also is allowed when a property is actively marketed for sale.

Neenah will resume enforcement of ordinance upon complaint

With the dismissal of the case, the city is no longer prevented from enforcing its sign ordinance.

"We'll probably go back to what we had been doing," Rashid said. "We don't run around monitoring all these signs all the time. You can't do it in a town of 30,000 people, but when somebody complains, then we send our code enforcement person. They go and check it out."

Rashid said no one receives a citation right away. "We send a notice and say, 'Hey, you're in violation,'" he said. "If they ignore it, then we send (inspection) fees."

Continued noncompliance can result in a citation. According to the Neenah Municipal Code, the penalty for a first offense is a fine of not less than $10 nor more than $500, plus prosecution costs.

The "Don't Rezone Shattuck Middle School Leave R-1 Alone" signs were erected by residents in opposition to a proposal from Northpointe Development Corp. to rezone the Shattuck Middle School property to a Traditional Neighborhood Development District to accommodate a mix of apartments and single-family homes.

The rezoning failed on a 5-4 vote. The Shattuck property was subsequently sold to Investment Creations for redevelopment.

Contact Duke Behnke at 920-993-7176 or dbehnke@gannett.com. Follow him on Twitter at @DukeBehnke.