Protecting Your Sign Code Against Attack (S634)
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Transcript Protecting Your Sign Code Against Attack (S634)
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
2
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
3
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
4
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 selfexpression, 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 onsite 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
12
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
13
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 contentbased 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
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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
22
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
24
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”
25
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
35
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
37
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
38
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
39
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
40
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
42
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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44
Evolving federal regulations
Spacing
500 feet on
freeways
300 feet on nonfreeways
100 feet inside
cities
45
Evolving federal regulations
Size
1200 square
feet
No height
limitations
46
Phony commercial zoning
47
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
[email protected]
(314) 968-7233
52
Professor Emeritus Charles Floyd
AICP (retired)
P.O. Box 448
Cleveland, NC 27013
[email protected]
(704) 278-3620
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John M. Baker
Greene Espel P.L.L.P.
200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
[email protected]
(612) 373-8344
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For future reference
This presentation will be available at
http://law.wustl.edu/landuselaw
(click on “Streaming Video and
PowerPoints”)
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