Advances in Signs and
Regulations
AMERICAN PLANNING ASSOCIATION
NATIONAL CONFERENCE
SUNDAY, APRIL 11, 2010
7:30 AM-8:30 AM
NEW ORLEANS, LOUISIANA
Panelists
 John M. Baker
 Attorney and Founding Partner, Greene Espel PLLP,
Minneapolis, MN
 Adjunct Professor, William Mitchell College of Law, St. Paul,
MN
 Daniel R. Mandelker
 Howard A. Stamper Professor of Law, Washington University,
St. Louis, MO
Overview
 Dynamic Displays
 Local regulations: a continuum from prohibition to
encouragement
 Court Decisions and Constitutional Principles that Affect
Regulation of Dynamic Displays
First Amendment law
 Nonconforming use law

 Mobile billboards
 What legal principles apply
 Billboards that shock or seduce
 When adult entertainment and billboards converge
Dynamic
Displays
One style: an standard
“billboard” (usually
called an “off-premise”
sign, because it does not
advertise something
offered on the sign’s
premises) that has been
converted to a digital
display
How: replacement of
the face with a thicker
face made up of an
array of thousands of
LEDs
Dynamic
Displays
They are capable of o* Television-like
presentations;
o* Synchronized use
(across several dynamic
displays);
o* Sequencing – taking
a single sentence or
phrase and stretching it
out across several
displays, inducing
watchers to stare at it to
see how the message
ends
Dynamic
Displays
Another type: part of an
“on-premise” sign
Offers the opportunity
to provide not only
way-finding
information (the
businesses’ name and
logo) but also specific
products and services
The
Attraction:
Change
Selling “time” rather
than “space”
Allowing multiple
advertisers to use a
single sign
Using “change” itself to
better catch the
attention of drivers,
passengers and
pedestrians because the
change itself is
The ability to remotely
update the content
The Danger:
distraction
The latest: Des Moines
funeral home uses
digital displays to
announce time and
place of funerals
One commentator
“Wouldn't you like
drive into a telephone
pole if you saw your
neighbor up there and
didn't know? “
"What are you going to
do, pull off and
mourn?"
Dynamic Displays
MODES OF REGULATION
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
Example: Denver’s March 2010 ban
 “Outdoor general advertising devices may not have
message surfaces made entirely or partly of light
emitting diodes (LEDs).”
 Even for LED billboards in place when the ban was
adopted, “LEDs on such device may not flash, blink
or fluctuate, or change in any manner more
frequently than once per hour, must be dimmed at
dusk and may not be lit between the hours of 1:00
a.m. and 6 a.m.”

Section 59-570, amended March 8, 2010.
B. If your city generally dislikes
such signs but not these kinds
One 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

Sources of standards: the sign industry’s “best practices” formula
C. Allowing them if more static signs 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 enforcement
stance
Long minimum display period
 Only a small percentage of the sign can be dynamic


The owner of nearly all billboards in the City offered:

We’ll take down half the billboards in town (an keep at least ½ of the
rest static) if up to 8 others can become fully dynamic and change
every eight seconds
Minnetonka’s incentives approach
 The City proposed which static signs should come
down (based on safety and planning criteria
included in the ordinance)
 A side agreement keeps more than one dynamic
billboard from being visible at any single place
 The 8-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)

Cases on Digital Signs
Prohibiting Digital Signs
 Naser Jewelers, Inc. v. City of
Concord, 513 F.3d 21 (1st Cir. 2008)
(New Hampshire)
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
Goals and Purposes
 The statement of purpose includes
promoting traffic safety and community
aesthetics
 We look to the legislative body’s
statement of intent
Narrow Tailoring
 Concord’s interests in traffic safety and
community aesthetics would be
achieved less effectively without the
prohibition
Need for Studies?
 Naser Jewelers argues that Concord
must perform studies to uphold the ban
 Court: concord was under no
obligation to do such studies or put
them into evidence
Alternative Channels Exist
 Naser Jewelers 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.
Dynamic Signs and Nonconforming Use Law
 If billboards are prohibited, but remain
as a prior lawful nonconforming use, do
the privileges of that status include the
right to convert a static display to a
digital display?
Conversion Prohibited
 Adams Outdoor Advertising, L.P. v.
Board of Zoning Appeals, 645 S.E.2d
271 (Va. 2007)
 Ordinance: “No nonconforming sign
shall be structurally altered, enlarged,
moved or replaced”
Court Holding
 “The electronic message board added
between 3,000 and 3,500 pounds to the
weigh 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.”
 The billboard company did not have the
right to convert the static sign to a digital
display
Another example
 Clear Channel Outdoor, Inc. v. City of
Arden Hills, (Minn. Dist. Ct. Aug. 1, 2008)
Trial Court Adams Outdoor decision’s three-dimensional
logic
 Because the conversion increased sign depth, it’s a
forbidden expansion of the nonconforming use

 Clear Channel appealed, but the appellate
court avoided the issue, affirming on other
grounds
The Result: A Dark Dynamic Display
Motor Vehicle Signs
CASE LAW AND
REGULATION
Starting point, or anachronism?
 Railway Express Agency, Inc. v.
New York, 336 U.S. 106 (1949)
 Upholding
city ordinance providing that “No
person shall operate, or cause to be operated, in
or upon any street an advertising vehicle.”
 This decision pre-dated First Amendment protection
for commercial speech
More recent decisions
 Showing Animals Respect &
Kindness v. City of West
Hollywood, 83 Cal. Rptr.3d 134
(Cal. App. 2008)
The West Hollywood Ordinance upheld
 Part A:
 It is unlawful for any person to conduct, or
cause to be conducted, any mobile
billboard advertising upon any street, or
other public place within the city in which
the public has the right of travel.
 §11.44.020
The West Hollywood Ordinance upheld
 Part B:
 “Mobile billboard advertising” includes any
vehicle, or wheeled conveyance which
carries, conveys, pulls, or transports any
sign or billboard for the primary purpose of
advertising.
 §11.44.020
Definition and Prohibition Of Mobile Billboards
 Supersign of Boca Raton, Inc. v. Ft.
Lauderdale, 766 F.2d 1528 (11th Cir. 1985)
Ft. Lauderdale Ordinance Upheld
 General prohibition:
 It is unlawful for any person to operate, or cause to
be operated, any advertising vehicle or watercraft in
or upon any roadway, waterway, marine area, or
other public place within the city in which the public
has the right of travel.
 An “advertising vehicle or watercraft” is any wheeled
conveyance or any waterborne craft designed or used
for the primary purpose of displaying
advertisements.
Fort Lauderdale Ordinance Upheld
 Exceptions:
 Any vehicle or watercraft which displays an
advertisement or business notice of its owner, so
long as such vehicle or craft is engaged in the usual
business or regular work of the owner, and not used
merely, mainly or primarily to display
advertisements;
(b) Buses; or
(c) Taxicabs.
Model Proposed Ordinance
 Mobile billboard. Any sign displayed upon
a vehicle where the principal purpose of
the vehicle is not general transportation,
but the display of the sign itself.
 It shall be unlawful for any person to
display any mobile billboard
Signs that shock
WHEN ADULT
ENTERTAINMENT COMES
OUTSIDE OF THE CLUB
Signage on Adult Businesses
General First Amendment Principles
 There is no question that minimizing the
secondary effects of sexually-oriented
businesses serves a significant
governmental interest.
 See City of Renton v. Playtime Theatres,
Inc. 475 U.S. 41 (1986)
More recent decisions: Pleasureland Museum
 Pleasureland Museum, Inc. v. Beutter, 288
F.3d 988 (7th Cir. 2002)
 “Mishawaka justifies the Signage and
Painting Restrictions as narrowly tailored to
combat urban blight and to prevent a decline
in the value of surrounding properties.
Mishawaka asserts that the restrictions are
necessary to minimize the visual impact of the
businesses on the neighborhood by making
the businesses blend into their surroundings.”
Pleasureland Museum (cont’d)
 [W]e invalidate the Signage Restriction in
Section 125.16(D)(1), which limits signage
to "only the legal name of the enterprise,"
because it is substantially broader than
necessary to achieve Mishawaka's goals.
Mishawaka fails to articulate a single
reason why it is necessary to limit a
sexually-oriented business' signage solely
to displaying its name.
Excalibur Group v. Minneapolis
 116 F.3d 1216 (8th Cir. 1997)
 The Minneapolis Ordinance:
 (1) All signs shall be flat wall signs.
 (2) The amount of allowable sign area shall be
one square foot of sign area per foot of lot
frontage on a street.
The Minneapolis Ordinance (cont’d)
 (3)
No merchandise or pictures of the
products or entertainment on the premises
shall be displayed in window areas or any
area where they can be viewed from the
sidewalk in front of the building.
 (4) Window areas shall not be covered or
made opaque in any way. No signs shall be
placed in any window. A one-square-foot
sign may be placed on the door to state
hours of operation and admittance to adults
only.
Why the Minneapolis law is constitutional
 “We hold that the restrictions in subsection (g)(4)
are narrowly tailored to further the city's
significant interest in alleviating the adverse
impact of sexually oriented businesses on their
neighborhoods.
 Having before it substantial evidence of the urban
blight caused by the mere presence of these
businesses, the city could reasonably conclude that
controlling their outward appearance would lessen
the effect they would have on surrounding
commercial and residential neighborhoods.”
Why the Minneapolis law is constitutional (cont’d)
 “The restriction in subsection (g)(3)
prohibiting the visibility of sexually
oriented speech through the windows of
these establishments falls within the
legitimate sweep of the ordinance. Thus,
there is nothing overbroad about
subsection (g)(3)'s regulation of displays of
sexually oriented speech.”
MD II Entertainment v. City of Dallas
 28 F.3d 492 (5th Cir.1994)
 The Dallas law: Dance hall defined as any
place:

[T]hat is advertised either on or off the
premises: (i) as topless; (ii) as a gentleman's
club, bar, or saloon; (iii) as adult
entertainment; (iv) as x-rated; or (v) by any
other term calculated to attract patrons with
nudity, semi-nudity, or simulated nudity
Why Dallas Lost
 "The city has made no finding ...that
advertising that employs the term
"gentleman's club' produces the deleterious
effects which the city seeks to curb"
 “The City has put no evidence in the record
that forbidding the use of any "term
calculated to attract patrons with nudity,
semi-nudity, or simulated nudity" in
commercial advertising is narrowly tailored to
prevent the erosion of property values or
reduce crime rates.”
Dan’s Website
 Law.wustl.edu/landuselaw
 Presentations are available
Questions?