Regulating Digital Signs and Billboards (S606) Sponsored by Zoning Practice APA National Planning Conference Tuesday, April 28, 2009

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

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Electronic / Digital Sign Types and Technologies

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Old School Changeable Copy

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Electronic Message Centers AnimatedStatic Intermittent

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Tri-Vision & Electronic Static Display Tri-Vision Static Display

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

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

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

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

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

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.

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

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Research Summary (continued) Non-peer-reviewed, billboard industry funded studies that have been debunked: Tantala, Albert Martin Sr., and Michael Walter Tantala, Tantala Associates “A Study of the Relationship between Digital Billboards and Traffic Safety in Cuyahoga County, Ohio.” July 7. Lee, Suzanne E. et al “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.

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Driver Distraction #1 Cause of Crashes Causal Category Percentage of Drivers Contributing to Causation Driver Distraction22.7 Vehicle Speed18.7 Alcohol Impairment18.2 Perceptual Errors15.1 Decision Errors10.1 Incapacitation6.4 Other8.8 Source: National Highway Traffic Safety Administration, 2001; 2006.

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Specific Distraction: % of Drivers Outside person, object or event29.4 Adjusting radio, cassette11.4 Other occupant in vehicle10.9 Moving object in vehicle4.4 Other device in vehicle2.9 Adjusting vehicle/temp2.8 Eating or drinking1.7 Dialing/using cell phone1.5 Smoking0.9 Other distraction25.9 Unknown distraction8.6

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

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Modes of regulating dynamic displays Five alternative approaches

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

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 B. If your City generally dislikes such signs, but not these kind:

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 One local suburb’s general approach Citywide permission to operate dynamic displays, under... Strict conditions designed to reduce –Proliferation, and –Distraction

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

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

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

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

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

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 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 Prohibiting Digital Signs Naser Jewelers, Inc. v. City of Concord, 513 F.3d 21 (1st Cir. N.H. 2008)

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

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 The statement of purpose includes promoting traffic safety and community aesthetics. We look to the legislative body's statement of intent. Goals and Purpose

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 Concord's interests in traffic safety and community aesthetics would be achieved less effectively without the prohibition. Narrow Tailoring

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

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

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

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

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

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

Regulating Digital Signs and Billboards (S606)APA National Conference, April 28, 2009 law.wustl.edu/landuselaw 2007/2008 session PowerPoints available Dan’s Website

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

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