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Regulating Sign Displays in the Digital Age (S499)

APA 2008 National Planning ConferenceProfessor Daniel Mandelker, FAICP

Washington University, St. Louis

Professor Emeritus Charles Floyd, AICPUniversity of Georgia, Athens

Adjunct Professor John M. BakerGreene Espel P.L.L.P., Minneapolis and William Mitchell College of Law, St. Paul

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Overview Seven questions to answer about your

sign code Variations that challenge sign code

writing and enforcement: Electronic digital displays Mobile billboards

The sad fate of the Highway Beautification Act

The value of a constitutional, current sign code

Some sign companies target cities with out-dated sign codes, including – Codes that haven’t keep up with

evolving First Amendment standards, or

Codes that haven’t anticipated and restricted modern technologies

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The most effective strategy

Fix flaws in your sign code Update it to respond to

emerging technologiesExpect little help from

federal law or regulators

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Seven questions to ask about your current sign code

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1. Does the code have an effective statement of purpose and intent?

NOT just “to protect the health, welfare, safety . . . .”

A statement that tracks the objectives courts view as

legitimate, shows respect for citizens’ need for self-

expression, AND will assist your city to justify all

distinctions between legal and illegal signs

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2. Does your code inadvertently favor commercial speech?

The problem: You must be

sure that sign code regulations will never give commercial speech a kind of protection unavailable to noncommercial speech

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The solution: add a “Message Substitution Clause” to your code

Whenever commercial speech would be permitted, allow noncommercial speech to be substituted

Lakeville, MN Section 9-3-4: “Signs containing noncommercial speech are permitted anywhere that advertising or business signs are permitted, subject to the same regulations applicable to such signs.”

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3. Does it properly distinguish between on-site and off-site signs?

Off-site and on-site signs can be treated differently Commercial off-site signs can be

prohibited Noncommercial off-site signs may

have to be allowed

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3. Does it properly distinguish between on-site and off-site signs?

Off-site and on-site signs can be treated differently (cont’d) Noncommercial messages must be

allowed on on-premise signs Reasonable height, size and spacing

requirements are permissible for on-site signs

Signs on residential property require special treatment

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4. Are its procedural safeguards sufficient?

Have you reserved too much discretion? Sources of discretion that may raise

concerns: Provisions authorizing permit denial even

if the application satisfies all specific requirements Look at aesthetic review provisions

Provisions that treat signs as conditional or special uses

The word “may”

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4. Are its procedural safeguards sufficient? (cont’d) Ordinarily, preserving discretion in

zoning codes is a good thing For sign codes, preserving discretion can

create problems Because signs are expressive conduct,

courts distrust discretion Even if you never exercise discretion, an

ordinance that allows you to exercise it over sign applications may be unconstitutional

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4. Are its procedural safeguards sufficient? (cont’d) How quickly must you act on an

application or an appeal? Are there self-imposed, formal time limits

(in the law itself) on the ability of staff (or a board or council) to refrain from acting on the application or on an appeal?

These may be needed unless you’re sure that no judge will consider your ordinance content-based

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5. Does the code have a broad severability clause?

Its role: to tell a judge what must survive if part of a sign code is unconstitutional

Otherwise: a judge, not the council, may decide that the sign code no longer works without the invalid terms, and nullify it all

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5. Does the code have a broad severability clause? (cont’d)

Features of a broad clause: It preserves as many words as possible:

“If any part, section, subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word are declared invalid . . .

It’s unconditional “. . . such invalidity shall not affect the

validity or enforceability of the remaining portions.”

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6. Does it properly address political (temporary election) signs?

Political and election signs carry noncommercial speech and receive more protection under the Free Speech clause Sign ordinances must be content-neutral It is impossible to define a political sign

without violating this rule

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6. Does it properly address political (temporary election) signs? (cont’d)

There must be a “compelling interest” to regulate the content of noncommercial speech – this is hardly ever found If an ordinance treats political signs more

restrictively it will be struck down The temporary sign provision should

allow political and election signs and drafted in an even-handed way

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7. Does it properly address message signs?

Message sign provisions are content-based and will be struck down This is the holding in Metromedia and

many circuits Examples: For sale and for rent signs,

directional signs, construction signs, time-and-temperature signs, grand opening signs, restrictions on flags

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7. Does it properly address message signs? (cont’d)

Wrong: A sign offering property for sale or rent

Right: A sign on property that is offered for sale or rent

The definition of “flag” must allow all flags

The definition of “sign” must not specify any content

New Challenges to Sign Code Drafting and Enforcement

Digital DisplaysMobile Billboards

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The three main challenges

Writing your definitions and standards in ways that clearly reach the latest (and next) technology

If dynamic displays are allowed, reducing the risk of distraction

Avoiding exceptions that undermine your ability to defend the restriction in court

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Can a city simply ban them?

Yes, according to a Jan. 2008 ruling of the First Circuit Court of Appeals Naser Jewelers v. City of Concord, NH

Concord prohibited all “electronic message center type signs”

Company cried: this burdens our right to free speech

The Court: The ban is content-neutral, and is narrowly

tailored to the safety and aesthetic goals

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Defining “dynamic display” effectively

Avoid limiting the restrictions by reference to particular methods

Example: reach all sign characteristics that “appear to have movement or appear to change, caused by any method other than physically removing and replacing the sign or its components” (Minnetonka, MN 2007)

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Controlling distraction

Studies: dynamic signs attract more glances, and longer glances

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Long glances and stares

If drivers expect a sign will soon change, they may watch for it to change This is called

the “Zeigarnik effect”

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A special danger: signs with -

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sequential displays, because -

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when a message or visual -

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story is spread over several -

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frames, it virtually forces the -

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driver to stare, at great length!

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Stare control

Require a long minimum duration, so drivers see fewer changes, and drivers stop watching for changes

Ban motion of all types Scrolling Animation or full-motion video Fancy transitions between images

Ban sequential displays

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Minimizing the risk of litigation over your restrictions Live by your own standards

If you ban dynamic displays, do not try to exempt a dynamic city hall sign

Consider applying the same standards for on-site and off-site digital displays Both can distract Both can be ugly

However, a city that allows dynamic displays in exchange for takedowns of more signs can cause overall improvements in each

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Do LED billboards violate the HBA?

Under a straightforward reading of its words, yes. Billboards with “flashing, intermittent, or

moving light or lights” violate the HBA LED signs are made up of lights Webster’s Dictionary defines

“intermittent” as “not continuous”

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The FHWA position before ‘07

“Off-premise message center type signs using internal lighting are not yet approved for general off-premise application.”

Source: FHWA website in June 2007

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The FHWA position after ‘07

“Off-premise message center type signs using internal lighting are not yet approved for general off-premise application without consideration of duration of message, transition time, brightness, spacing and other factors.”

Source: FHWA website today

8-second duration is “recommended”36

Mobile billboards

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Mobile billboards

1949:U.S. Supreme Court upheld New York City ordinance forbidding the operation of trucks “used merely or mainly for advertising”

Because the decision pre-dated 1st Amendment protection for commercial speech, however, it doesn’t answer the question of whether such limits violate free speech

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Mobile billboards 2007: Sixth Circuit

strikes down Glendale, OH law forbidding parking of vehicles on streets for purposes of advertising

Why: city simply “deemed” such signs a hazard and a blight Better findings needed

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Mobile billboards: general rules

Mobile billboards are subject to local regulation – at least when parked

Courts have recognized that portable signs sometimes warrant stricter regulation, so that they aren’t moved to illegal areas

However, build a factual record regarding increased traffic risk and visual blight

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Does the Highway Beautification Act matter?

“Taxpayers can only dream that every law Congress passes works as well as the Highway Beautification Act” Source - Outdoor

Advertising Association of America

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The HBA’s original mission

Non-conforming billboards removed within five years

New billboards allowed only in commercial and industrial areas Source: 1965 White House Conference

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How the HBA failed its mission

No standards in the Act for size and spacing

Agreements with states based on “customary use”

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Evolving federal regulations

Spacing 500 feet on

freeways 300 feet on non-

freeways 100 feet inside

cities

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Evolving federal regulations

Size 1200 square

feet No height

limitations

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Phony commercial zoning

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Phony commercial zoning

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The “unzoned areas” loophole

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The HBA as a billboard company protection program

Congress requires states to compensate owners for removal

But almost immediately, Congress stopped funding states’ removal efforts

This leaves states with a disincentive to carry out the HBA in a way that would involve sign removal

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This presentation is a teaching tool that is

useful only in conjunction with the accompanying remarks of the presenters.

It does not constitute legal advice, but and is no substitute for legal advice.

It does not fully reflect the views of every judge, or even of every presenter.

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Professor Daniel Mandelker

Howard A. Stamper Professor of LawWashington University School of LawOne Brookings DriveCampus Box 1120St. Louis, MO 63130 mandelker@wulaw.wustl.edu(314) 968-7233

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Professor Emeritus Charles Floyd

AICP (retired)P.O. Box 448Cleveland, NC 27013chasfloyd@earthlink.net(704) 278-3620

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John M. Baker

Greene Espel P.L.L.P.200 S. Sixth Street, Suite 1200Minneapolis, MN 55402JBaker@greeneespel.com(612) 373-8344

For future reference

This presentation will be available at http://law.wustl.edu/landuselaw  (click on “Streaming Video and PowerPoints”)

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