Regulating Sign Displays in the Digital Age S499

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Regulating Sign Displays in the Digital Age
(S499)

• APA 2008 National Planning Conference
• Professor Daniel Mandelker, FAICP
• Washington University, St. Louis
• Professor Emeritus Charles Floyd, AICP
• University of Georgia, Athens
• Adjunct Professor John M. Baker
• Greene 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

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The value of a constitutional, current sign code

• Some sign companies target cities with out-dated
  sign codes, including
• Codes that havent keep up with evolving First
  Amendment standards, or
• Codes that havent 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 technologies
• Expect 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 (contd)
• 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?
(contd)

• 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?
(contd)

• 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 youre 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? (contd)

• 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 . . .
• Its 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? (contd)

• 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?
(contd)

• 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

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New Challenges to Sign Code Drafting and
Enforcement

• Digital Displays
• Mobile 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
• Websters 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

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Mobile billboards
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Mobile billboards

• 1949U.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
  doesnt 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 arent 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 HBAs 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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(No Transcript)
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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 Law
• Washington University School of Law
• One Brookings Drive
• Campus Box 1120
• St. Louis, MO 63130
• mandelker_at_wulaw.wustl.edu
• [phone]

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Professor Emeritus Charles Floyd

• AICP (retired)
• P.O. Box 448
• Cleveland, NC 27013
• chasfloyd_at_earthlink.net
• [phone]

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John M. Baker

• Greene Espel P.L.L.P.
• 200 S. Sixth Street, Suite 1200
• Minneapolis, MN 55402
• JBaker_at_greeneespel.com
• [phone]

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For future reference

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