by Elizabeth Garvin, AICP, Denver, Colorado1
It is estimated, depending on your favorite source, that somewhere between one and four percent of billboards in the United States have digital display capacity. That number is steadily increasing and does not take into account the exponential increase of digital on-site/non-billboard signs – the regular monument, pole, and wall signs seen in communities. The current sign regulations in many smaller jurisdictions are completely silent about the use and approval of digital format signs.
While few planners (or even lawyers) jump willingly into a sign code update, failing to set digital standards may mean, in the worst case, permitting the use of digital signage where it is not wanted and where it has a negative impact on the community. In the best case, it may also mean missing the opportunity to identify and clearly specify where and under what circumstances digital signage is appropriate in your community. Following are three tasks to keep in mind when it is finally time to draft digital sign regulations.
1. Identify the purposes of the regulations
A purpose (or intent) statement is a section of the regulations that links the content of the regulations to the community’s vision, values, and goals. Purpose statements are a very useful – and typically underutilized – tool that can explain why a community has decided to establish a certain set of regulations. Why provide this explanation? There are a number of good reasons, including to ensure consistent interpretation by the staff members applying the regulations, to help applicants understand the role of the regulations, and to guide a court to the specific, and justifiable, reasons why the regulations are applied the way they are.
Sign regulations are a regulation of speech, the same kind of speech that may be protected by the First Amendment. Advertising signs are categorized as “commercial speech,” defined by the Court as “expression related solely to economic interest of speaker.”2 A local government has the authority to regulate commercial speech if the regulation meets the test established in the Central Hudson case which examines four aspects of the regulation:3
i. Is the speech protected by the First Amendment (it must not be unlawful or misleading); if so then, does the regulation:
ii. Seek to implement a substantial governmental interest,
iii. Directly advances that interest, and
iv. Reach no further than necessary to accomplish the given objective.
The purpose statement in the sign regulations is the ideal place to show that the regulations meet the second prong of the test and implement a “substantial governmental interest.” The typical reference to public “health, safety, and general welfare” is not sufficient to clearly identify a substantial interest. In a recent presentation on sign regulations,4 Professor Daniel Mandelker,5 a well-respected authority on sign issues, notes that an effective purpose statement identifies reasons for both restricting signs as well as exempting signs from the regulations – reasons that are unrelated to the content of the signs. Mandelker’s examples of lawful objectives include:
- Eliminating visual clutter,
- Reducing the number and types of distractions experienced by drivers, and
- Channeling commercial activity to commercially-zoned areas.
The Phoenix, Arizona, sign regulations provide a good example of how to address each of these topics is a fairly succinct fashion:
“The regulations for signs have the following specific objectives:
a. To ensure that signs are designed, constructed, installed, and maintained so that the public safety is protected and traffic safety is maintained;
b. To allow and promote positive conditions for sign communication while at the same time promoting an attractive environment;
c. To reflect and support the desired character and development patterns of the General Plan and the various zoning districts;
d. To allow for adequate, effective, and aesthetic signs in commercial and industrial zones which promote a pleasing visual environment and prevent over concentration of signage; and
e. To ensure that the constitutionally guaranteed right of free speech is protected.”
2. Allow non-commercial message substitution
We can celebrate the 20th anniversary of the Supreme Court’s decision in City of Ladue v. Gilleo6 by remembering that, on the whole, the Supreme Court is in favor of free speech and that the Justices frequently require legal protection for free speech. Local government can follow the Court’s lead by remembering that while there are some clearly identifiable circumstances under which it is appropriate to regulate commercial speech, there are far fewer circumstances under which it is appropriate to regulate “protected speech,” i.e., non-commercial speech.
Without wading through the complex landscape of speech regulations, which is something you should do with your local attorney as part of a sign code update, we can summarize that the Court generally requires regulations that affect speech be both “content neutral” and “leave open ample alternative channels for communication.”7
The Court explains content-neutrality in Ward v. Rock Against Racism:8 “[t]he principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” In the sign context, this means that signs should be regulated based on their function, not on their content or viewpoint. Additionally, the Court wants to see that the community has not made it impossible to express speech. In the Ladue case, the Court held that local sign regulations that virtually prohibited residential signs violated the First Amendment because it did not provide sufficient opportunities for residents to express their (non-commercial) views.9
To help address both of these requirements10 while avoiding an accusation of preferring commercial speech over non-commercial, sign regulations should be drafted to allow for non-commercial message substitution. To the right are two examples of non-commercial message substitution language, first from Las Vegas, Nevada, and second from Hawthorne, California:
- Any sign authorized in this Chapter may contain non-commercial copy in lieu of any other copy.
- Notwithstanding any other provision of this code and subject to the property owner’s consent, any non-commercial copy may be substituted, in whole or in part, for any commercial copy on any sign permitted by this code. If non-commercial copy is substituted, the resulting sign will continue to be treated as the original commercial sign under this code and will not be deemed or treated as an off-premises sign (billboard). The content of any non-commercial copy on any sign otherwise permitted by this code may be changed without complying with any provisions of this code normally required for sign copy or design approval. In addition, on non-residential uses, non-commercial copy on temporary signs may be substituted for commercial copy subject to the requirements of Section 17.35.230.
The purpose of this provision is to prevent any inadvertent favoring of commercial speech over non-commercial speech, or favoring of any particular non-commercial copy over any other non-commercial copy. This provision (a) does not create a right to increase the total amount of permanent signage on a parcel, lot, or land use; (b) does not affect the requirement that a sign structure or mounting device be properly permitted; (c) does not allow a change in the physical structure of a sign or its mounting device; or (d) does not allow the substitution of off-premises commercial copy in place of on-premises commercial copy or non-commercial copy.
3. Clarify that converting a regular sign to a digital sign is not “regular maintenance”
Finally, a number of communities have been faced with requests to replace existing non-digital signs with digital signs as part of the “regular maintenance” of those existing signs. Fixing this code gap is not a complex, First Amendment problem but a definition problem. Sign regulations can be amended to specifically identify digital conversion as an affirmative act that is not regular maintenance, as shown in the following examples:
Portland, Oregon, sign definitions:
- ZZ. Sign maintenance. Normal care needed to keep a sign functional, such as cleaning, painting, oiling, and changing of light bulbs.
- AAA. Sign repair. Fixing or replacement of broken or worn parts. Replacement includes comparable materials only. Repairs may be made with the sign in position or with the sign removed.
- GGG. Structural alteration. Modification of a sign, sign structure or awning that affects size, shape, height, or sign location; changes in structural materials; or replacement of electrical components with other than comparable materials. The replacement of wood parts with metal parts, the replacement of incandescent bulbs with light emitting diodes (LED), or the addition of electronic elements to an non-electrified sign would all be structural alterations. Structural alteration does not include ordinary maintenance or repair, repainting an existing sign surface, including changes of message or image, exchanging painted and pasted or glued materials on painted wall signs, or exchanging display panels of a sign through release and closing of clips or other brackets.
The Snohomish County, Washington sign permit requirement definitions:
2. No sign may be constructed, installed, structurally modified, converted from static to digital display, expanded or displayed without first obtaining a sign permit
Elizabeth Garvin, AICP, is an attorney with Spencer Fane Britte & Browne. She serves on the Regional Board for the Rocky Mountain Land Use Institute.
- Elizabeth is an attorney with Spencer Fane Britt & Browne in the Denver office. The materials in this column do not constitute legal advice, do not necessarily reflect the opinions of the RMLUI, and nothing provided herein should be used as a substitute for advice of local counsel. This column is not intended to act as a solicitation or advertisement.
- Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 562 (1980)
- 447 U.S. 557, 566 (1980)
- D. Mandelker and J. Baker, Bettman Symposium: Reading the Signs, APA National Planning Conference, (April 29, 2014).
- Howard A. Stamper Professor of Law, Washington University (St. Louis) School of Law
- 512 U.S. 43 (June 13, 1994)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
- 491 U.S. 781, 791 (1989)
- 512 U.S. at __.
- Note the word “help” here. If your current sign regulations are not content-neutral then help should look like both the adoption of a message substitution clause and revision of the regulations to make them content-neutral.
Published in the July/August 2014 Issue