Urban Planning Expert Was Allowed to Opine on Sign Regulations
Posted on November 24, 2025 by Expert Witness Profiler
Plaintiffs Cozy Inn, Incorporated and its owner Stephen Howard sued the City of Salina, Kansas for constitutional violations after the City stopped Howard from painting a display on the side of the building that housed his restaurant.
The artist Howard hired, Colin Benson, began painting the display on Friday, November 3, 2023. Three days later, however, Salina officials informed him that they believed the display was too large to be permitted under the City’s sign code. Then, because the officials determined that the display was a sign subject to the sign code’s regulations, they told Howard that the display would be too large to qualify for a sign permit and directed him to pause work on the display. The display is a sign, according to Salina, because it “pertains to or references the goods or services for sale.” In particular, Salina’s position is that the display “advertises hamburger, chopped onions, pickles, ketchup, and mustard” by depicting those images as part of the display.
Howard and Cozy Inn filed a motion to exclude the testimony of Salina’s expert witness, Mark White.
Urban Planning Expert Witness
S. Mark White is a planner and attorney recognized as an expert in zoning and subdivision law, form-based zoning and New Urbanism, land use and takings litigation, housing, development of comprehensive growth management plans, and implementation systems.
He has a Masters in Urban and Regional Planning and has practiced as a professional planner for thirty-four (34) years.
Discussion by the Court
White sought to offer seven opinions. To begin with, White stated that Salina’s sign code “establishes time, place and manner metrics that are not content-based.” His second opinion was that Salina’s sign code “is supported by substantial and compelling interests in the area of urban planning and code administration.” Moreover, White asserted that the sign code “directly and materially furthers its recited purposes,” “is not vague,” and “has numerous procedural safeguards.” He then opined that the sign code “is reasonable in scope in that it targets issues related to wall signs, without unnecessarily expanding its reach to artistic murals.” And finally, White said that the restrictions in Salina’s sign code “are reasonable, generally accepted regulations of the size, shape, placement, and design of signs.”
Howard and Cozy Inn moved to exclude White as an expert at trial. To begin with, they argued that White’s opinions invaded the province of the factfinder by applying the law to the facts and making impermissible legal conclusions. Moreover, they argued that White’s opinions are unreliable because they “are based on inappropriate speculation and conjecture” and because they contradict a treatise that White authored.
Analysis
The Court agreed that White’s opinions largely mirror the legal standards that the issues in this lawsuit turn on. But it is unnecessary to entirely exclude White as an expert witness because the parties requested a bench trial. The concern that the Plaintiffs raise typically arises in cases that will be tried by a jury because it is important to ensure that experts do not “go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility.”
The Plaintiffs have not identified any authority excluding testimony as an impermissible legal conclusion in a bench trial. As a result, exclusion is not necessary because, to the extent White’s testimony stated impermissible legal conclusions, it can be ignored.
Moreover, White bases his opinions on the knowledge and experience he has gained as “a planner and attorney recognized as an expert in zoning and subdivision law, form-based zoning and New Urbanism, land use and takings litigation, housing, development of comprehensive growth management plans, and implementation systems.”
Second, White used reliable methods to evaluate the data he gathered through his experience and reach conclusions based on it. For example, White examined Salina’s sign code and comprehensive plan to explain the city’s purported justifications for its sign regulations are traffic safety, aesthetics, and public health. Then, he reviewed several studies and reports regarding the impact that signs and public art can have on those interests. And he concluded, relying on that data and his expertise, that Salina’s sign regulations served the purposes they are intended to serve.
Salina’s contention that White’s opinions in this case differ from what he has previously said does not compel a different result. That his views may be seen as evolving or inconsistent goes to the weight, not the admissibility, of his testimony.
Held
The Court denied the Plaintiffs’ motion to strike or exclude the opinions of S. Mark White.
Key Takeaway:
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. White reviewed Salina’s sign code, its comprehensive plan, its purported interests, and other municipalities’ sign codes. This gave White sufficient facts and data on which he could rely to opine on the connection between Salina’s sign code and its proffered justification for its speech restrictions.
Case Details:
| Case Caption: | Cozy Inn, Incorporated Et Al V. Salina, Kansas, City Of |
| Docket Number: | 6:24cv1027 |
| Court Name: | United States District Court for the District of Kansas |
| Order Date: | November 19, 2025 |
