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

Regulating Digital Signs and Billboards (S606)

Sponsored by Zoning Practice

APA National Planning ConferenceTuesday, April 28, 2009

Regulating Digital Signs and Billboards (S606) APA National Conference, April 28, 2009


Meet Our Panel

• Marya Morris, AICP

• John Baker

• Dan Mandelker, FAICP


Electronic / Digital Sign Types and Technologies


Old School Changeable Copy


Electronic Message Centers

Animated StaticIntermittent


Tri-Vision & Electronic Static Display

Tri-Vision Static Display


Video LED Billboards


Digital/Programmable Ink


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


They are Supposed to Distract Drivers

Model: AlphaEclipse Excite 35mmThe 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.

Regulating Digital Signs and Billboards (S606) APA National Conference, April 28, 2009Regulating Digital Signs and Billboards (S606) APA National Conference, April 28, 2009

Research on Electronic/Video Signs and Traffic Safety


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.


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


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.


Driver Distraction #1 Cause of Crashes Causal Category

Percentage of Drivers Contributing to Causation

Driver Distraction 22.7 Vehicle Speed 18.7 Alcohol Impairment 18.2 Perceptual Errors 15.1 Decision Errors 10.1 Incapacitation 6.4 Other 8.8 Source: National Highway Traffic Safety Administration, 2001; 2006.


Specific Distraction: % of Drivers Outside person, object or event 29.4 Adjusting radio, cassette 11.4Other occupant in vehicle 10.9Moving object in vehicle 4.4Other device in vehicle 2.9Adjusting vehicle/temp 2.8Eating or drinking 1.7Dialing/using cell phone 1.5 Smoking 0.9Other distraction 25.9Unknown distraction 8.6


Zeigarnik EffectPotential 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 driver’s 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.


Modes of regulating dynamic displays

Five alternative approaches


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


B. If your City generally dislikes such signs, but not these kind:


One local suburb’s general approach

• Citywide permission to operate dynamic displays, under. . .

• Strict conditions designed to reduce – Proliferation, and – Distraction


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 industry’s

“best practices” formula


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

• The underlying principle: one sign that is dynamic allows consolidation of many

• Minnetonka, Minnesota’s “incentives” provision– The City had a restrictive ordinance and

restrictive enforcement stance– Clear Channel: we’ll 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.


Minnetonka’s 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


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)


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


Cases on Digital SignsDaniel R. Mandelker

Stamper Professor of LawWashington University in St. Louis


Prohibiting Digital Signs• Naser Jewelers, Inc. v. City of

Concord, 513 F.3d 21 (1st Cir. N.H. 2008)


• A threshold question is whether the restriction is content-neutral

• A regulation that serves purposes unrelated to the content of expression is content neutral

Content Neutrality


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

Goals and Purpose


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

Narrow Tailoring


• 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.

Need for Studies


• 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.

Alternative Channels


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

Lessons Learned


• 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,”

Conversion Prohibited


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

Court Holding


• 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”)

Lessons Learned


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

available

Dan’s Website


Regulating Digital Signs and Billboards (S606)Questions and Answers


Regulating Digital Signs and Billboards (S606)

Thank You!

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

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