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Regulating Digital Signs and Billboards (S606) Sponsored by Zoning Practice. APA National Planning Conference Tuesday, April 28, 2009. Meet Our Panel. Marya Morris, AICP John Baker Dan Mandelker, FAICP. Electronic / Digital Sign Types and Technologies. Old School Changeable Copy.

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regulating digital signs and billboards s606 sponsored by zoning practice

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

APA National Planning Conference

Tuesday, April 28, 2009

meet our panel
Meet Our Panel
  • Marya Morris, AICP
  • John Baker
  • Dan Mandelker, FAICP
electronic message centers
Electronic Message Centers

Intermittent

Animated

Static

slide10

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
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.

slide12

Research on Electronic/Video Signs and Traffic Safety

Regulating Digital Signs and Billboards (S606)

APA National Conference, April 28, 2009

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
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)
research summary continued1
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.

Research Summary (continued)
driver distraction 1 cause of crashes
Driver Distraction #1 Cause of Crashes

Source: National Highway Traffic Safety Administration, 2001; 2006.

zeigarnik effect
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 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.

slide19

Modes of regulating dynamic displays

Five alternative approaches

Regulating Digital Signs and Billboards (S606)

APA National Conference, April 28, 2009

slide20

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
slide22

One local suburb’s general approach

  • Citywide permission to operate dynamic displays, under. . .
  • Strict conditions designed to reduce
    • Proliferation, and
    • Distraction
slide23

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
slide24

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.
slide25

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
slide26

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)
slide27

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
slide28

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

slide29

Prohibiting Digital Signs

  • Naser Jewelers, Inc. v. City of Concord, 513 F.3d 21 (1st Cir. N.H. 2008)
slide30

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
slide31

Goals and Purpose

  • The statement of purpose includes promoting traffic safety and community aesthetics. We look to the legislative body\'s statement of intent.
slide32

Narrow Tailoring

  • Concord\'s interests in traffic safety and community aesthetics would be achieved less effectively without the prohibition.
slide33

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.
slide34

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.
slide35

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.
slide36

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,”
slide37

Court Holding

  • “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.”
slide38

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”)
slide39

Dan’s Website

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