Regulating Digital Signs and Billboards S606 Sponsored by Zoning Practice

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Regulating Digital Signs and Billboards
(S606)Sponsored by Zoning Practice

• APA National Planning Conference
• Tuesday, April 28, 2009

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(No Transcript)
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Meet Our Panel

• Marya Morris, AICP
• John Baker
• Dan Mandelker, FAICP

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Electronic / Digital Sign Types and Technologies
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Old School Changeable Copy
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Electronic Message Centers
Intermittent
Animated
Static
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Tri-Vision Electronic Static Display

• Tri-Vision

Static Display
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Video LED Billboards
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Digital/Programmable Ink
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1978 Highway Beautification Act co-opted by
billboard industry to require cash payment for
billboard removal. 2007 FHWA further
circumvented the law by allowing digital
billboards along federal highways pending a
current study
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They are Supposed to Distract Drivers
Model AlphaEclipse Excite 35mm The AlphaEclipse
Excite 35 is designed to provide the ultimate
outdoor advertising experience. The 35mm pitch
produces a dominant, outdoor full color, full
motion LED digital sign for higher speed roads
around town, for highly elevated locations, or
for highway installations that cannot be ignored.
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Research on Electronic/Video Signs and Traffic
Safety
Regulating Digital Signs and Billboards (S606)
APA National Conference, April 28, 2009
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Research Summary

• Smiley, Univ. of Toronto (2001)
• Video signs in direct line of sight are very
  distracting
• Wallace (2003)
• Signs can distract drivers even if they are
  watching the road billboards are distracting in
  both cluttered and uncluttered areas exact
  reason for driver distraction usually goes
  unreported.

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Research Summary (continued)

• Beijer Smiley, University of Toronto (2004)
• Drivers make twice as many and longer glances at
  video signs
• Texas Transportation Institute (2005)
• Flashing messages are more distracting, less
  comprehensible, and require more reading time
• WisDOT/CTC (2006)
• Visually complex locations, e.g., intersections,
  compound the distraction problem

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Research Summary (continued)

• Non-peer-reviewed, billboard industry funded
  studies that have been debunked
• Tantala, Albert Martin Sr., and Michael Walter
  Tantala, Tantala Associates. 2007. A Study of
  the Relationship between Digital Billboards and
  Traffic Safety in Cuyahoga County, Ohio. July 7.
• Lee, Suzanne E. et al. 2007. Driving Performance
  and Digital Billboards Final Report. Virginia
  Tech Transportation Institute Center for
  Automotive Safety Research. March 22.
• Both studies were paid for by the Foundation for
  Outdoor Advertising Research and Education.

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Driver Distraction 1 Cause of Crashes
Source National Highway Traffic Safety
Administration, 2001 2006.
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Specific Distraction of Drivers
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Zeigarnik Effect

• Potential effects of video signs and EMCs on
  drivers
• Scrolling messages require viewers to
  concentrate how long depends on size,
  resolution, length of the message
• Sequences of images or messages that tell a
  story may capture drivers attention for the
  duration.
• Anticipation of a new image appearing may
  distract driver, who feels compelled to wait for
  the change.

Source G. Wachtel, The Veridian Group, Video
Signs in Seattle Final Report. 2001.
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Modes of regulating dynamic displays
Five alternative approaches
Regulating Digital Signs and Billboards (S606)
APA National Conference, April 28, 2009
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A. Complete or near-complete bans

• A broad prohibition,
• Supported by broad definitions and
• No exceptions, or ones that are crafted with
  safety in mind

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B. If your City generally dislikes such signs,
but not these kind
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One local suburbs general approach

• Citywide permission to operate dynamic displays,
  under. . .
• Strict conditions designed to reduce
• Proliferation, and
• Distraction

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Examples of restrictions

• Long minimum display time (20 minutes)
• Only a percentage of a sign can be dynamic
• Dynamic text cannot be too small
• How? Set a minimum font size that varies by the
  speed limit on the road
• Source of standards the sign industrys best
  practices formula

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C. Allowing dynamic billboards, if more static
ones come down

• The underlying principle one sign that is
  dynamic allows consolidation of many
• Minnetonka, Minnesotas incentives provision
• The City had a restrictive ordinance and
  restrictive enforcement stance
• Clear Channel well take down half the
  billboards in town (and keep at least ½ of the
  rest static) if up to eight others can become
  dynamic and change every eight seconds.

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Minnetonkas incentives approach

• The City proposed which signs should come down
  (based on safety and planning criteria)
• A side agreement keeps more than one dynamic
  billboard from being visible from any single
  place
• The eight-second duration was hard for the city
  to swallow, but Minnesota law allowed no better
  way for the City to get rid of so many billboards

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D. Allowing flashy signs in selected districts

• Minneapolis flashing signs are lawful only in
  its downtown opportunity billboard district
• East Dundee, IL car dealerships, retail centers
  and amusement establishments can use
• Video signs (in one overlay district)
• PowerPoint-type displays (in another one)

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E. Encouraging dynamic displays

• One consultant dynamic displays should reduce
  blight caused by temporary signs
• His client (Cuyahoga Falls OH) limits sign face
  size, but rewards certain types with bonus area
  
• Those who chose a dynamic over a static sign can
  have a 20-larger sign face

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Cases on Digital Signs
Daniel R. Mandelker Stamper Professor of
Law Washington University in St. Louis
Regulating Digital Signs and Billboards (S606)
APA National Conference, April 28, 2009
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Prohibiting Digital Signs

• Naser Jewelers, Inc. v. City of Concord, 513 F.3d
  21 (1st Cir. N.H. 2008)

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Content Neutrality

• A threshold question is whether the restriction
  is content-neutral
• A regulation that serves purposes unrelated to
  the content of expression is content neutral

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Goals and Purpose

• The statement of purpose includes promoting
  traffic safety and community aesthetics. We look
  to the legislative body's statement of intent.

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Narrow Tailoring

• Concord's interests in traffic safety and
  community aesthetics would be achieved less
  effectively without the prohibition.

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Need for Studies

• NJI argues that Concord must perform studies to
  uphold the ban. Concord was under no obligation
  to do such studies or put them into evidence.

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Alternative Channels

• NJI can use static and manually changeable signs,
  place advertisements in newspapers and magazines
  and on television and the Internet, distribute
  flyers, circulate direct mailings, and engage in
  cross-promotions with other retailers.

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Lessons Learned

• Be neutral. Ban everything.
• Have a good statement of purpose.
• Prepare your defense.
• Read Metromedia and Vincent.
• Read Street Graphics and the Law.

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Conversion Prohibited

• Adams Outdoor Advertising., L.P. v. Board of
  Zoning Appeals, 645 S.E.2d 271 (Va. 2007)
• No nonconforming sign shall be structurally
  altered, enlarged, moved or replaced,

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Court Holding

• The electronic message board added between 3,000
  and 3,500 pounds to the weight of the
  billboardIt did not increase the billboard's
  height, length, or the square footage of its
  advertising surface area but increased the
  billboard's depth.

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Lessons Learned

• Careful definition of prohibited change is
  essential
• Clear Channel Outdoor, Inc. v. City of Arden
  Hills, (Ramsey Co. 8/1/08) (conversion is
  prohibited expansion)

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Dans Website

• law.wustl.edu/landuselaw
• 2007/2008 session PowerPoints available

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Regulating Digital Signs and Billboards (S606)
Questions and Answers
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Regulating Digital Signs and Billboards (S606)
Thank You!