Regulating Sign Displays in the Digital Age (S499)

1. 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

2. 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

3. 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

4. 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

5. Seven questions to ask about your current sign code

6. 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

7. 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

8. 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.”

9. 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

10. 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

11. 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”

12. 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

13. 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

14. 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

15. 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.”

16. 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

17. 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

18. 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

19. 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

20. New Challenges to Sign Code Drafting and Enforcement Digital Displays Mobile Billboards

21. 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

22. 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

23. 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)

24. Controlling distraction • Studies: dynamic signs attract more glances, and longer glances

25. 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”

26. A special danger: signs with -

27. sequential displays, because -

28. when a message or visual -

29. story is spread over several -

30. frames, it virtually forces the -

31. driver to stare, at great length!

32. 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

33. 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

34. 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”

35. 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

36. 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”

37. Mobile billboards

38. 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

39. 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

40. 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

41. 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

42. 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

43. How the HBA failed its mission • No standards in the Act for size and spacing • Agreements with states based on “customary use”

45. Evolving federal regulations • Spacing • 500 feet on freeways • 300 feet on non-freeways • 100 feet inside cities

46. Evolving federal regulations • Size • 1200 square feet • No height limitations

47. Phony commercial zoning

48. Phony commercial zoning

49. The “unzoned areas” loophole

50. 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