It’s February, and you are just about ready to put the holiday lights away. This past season, a lot of communities across the United States encouraged —while others abhorred—the admittedly extravagant, albeit “over the top” lights, inflatables and other lawn ornaments. (See http://tackychristmasyards.com for one look at the extreme in decoration.)

THEY CAN’T DO THAT, CAN THEY?
I thought of sign codes after reading reports in The Wall Street Journal and local media on the holiday decorations uproar. Inevitably, citizens see the extreme, or what they consider extreme, and begin asking how (fill in the blank of the perpetrator) can be stopped.
Which brings us to Sign Code Shakedowns.
Many of you will be familiar with this term, now in use for part of this decade. This is how attorney Donald M. Davis described its legal and regulatory process in the Winter 2004 issue of Public Law Journal:

… negotiate leases with private property owners in a jurisdiction with outdated sign regulations; apply for multiple billboard permits, knowing that they will be denied due to non-compliance with the regulations; immediately sue the agency to invalidate the sign code on unrelated (original emphasis) grounds based on precedent from other federal circuits and non-sign law cases; and finally, attempt to convince the court to order issuance of permits for billboards in the otherwise prohibited or restricted locations, or negotiate a similar deal with the victim agency in exchange for a waiver of an attorney fees claim.”

UNDOING YEARS OF WORK FOR COMMUNITY IMPROVEMENT?
In the past decade, it is estimated that more than 100 “shakedown” lawsuits have been filed in federal courts, with the plaintiffs usually invoking the scenario described above. William Brinton, writing in the Fall 2006 issue of The Commissioner, a publication of the American Planning Association, said the legal assault on municipal sign codes, “can undo years of work on the part of citizens, planners, and elected officials who have spent countless hours in formulating land development regulations to make their communities more attractive places to live, work, and visit.”
But this column is not an analysis of the practices of some in the billboard industry to erect structures where local zoning regulations do not permit them. Instead, think back to what I said in last month’s column, “If all billboards are, by some definition, signs, then what impact does the behavior of the billboard industry have on the on-premise sign industry?”

FIRST AMENDMENT LAW DOES NOT DISTINGUISH TYPES OF SIGNS BUT TYPES OF MESSAGES
From the strict perspective of legal constitutional doctrine, billboard operators—including those invoking the shakedowns—and on-premise sign companies share space and regulatory oversight in nearly all municipal sign codes in the U.S. The courts, noted law professor Daniel R. Mandelker at an APA seminar in 2007, under First Amendment/free speech jurisprudence, do not make a distinction among types of signs, but only among types of speech.
But then again, maybe the shakedown plaintiffs have done municipalities a large favor by forcing them to re-examine their own ordinances. The 2007 APA seminar that I referenced was titled, “Protecting Your Sign Code Against Attack.” The seminar panelists identified opportunities for municipal sign code revisions that included:

Statement of intent and purpose: Sign codes need a narrowly tailored statement identifying for the court why the code provisions exist: i.e., aesthetics, traffic safety, economic development.

Message substitution clause: Code language cannot treat non-commercial speech worse than commercial speech (commercial speech being the domain of most on-premise business graphics). For instance, a code that allows a remodeling company to have a temporary sign in the customer’s yard must also allow similar political signs. The former is commercial speech; the latter is non-commercial speech.

Procedural improvements: If a municipality reserves too much discretion for itself in the process of deciding what types of signs are permitted in its community, courts may find constitutional impairment. A second area where improvement is possible is in the length of time permitted to reach a decision regarding a sign and the time permitted for appeal.

Severability clause: This refers to the ability of the court to strike down an entire sign code when only a section of it is found unconstitutional. The severability clause, then, states the intent of the municipality that only the offending section is “severed” from its ordinance, leaving the rest of the law intact.

TESTING THE VALUE OF MODEL SIGN CODES
With sign codes being rewritten across the country, the usefulness of sign industry-drafted model sign codes surely will get tested. As I noted last month, as an industry we have two national trade associations. The United States Sign Council promulgates two guideline codes. The first USSC model code is used by the International Code Council for the “Section 10, Signs” portion of its International Zoning Code. The second USSC guidelines leverage its research into appropriate standards for sign visibility, legibility, placement and size.

The second of the two national associations, the International Sign Association, will be presenting two new model sign codes in late March at its annual convention in Orlando. ISA notes the new codes “incorporate the latest in legal and technical developments” and will “contain the latest fact-based evidence for the proper illumination of signs, among other things.”
As a matter of law, the on-premise sign industry shares the same legal and constitutional foundation as the billboard industry. Yet that does not mean sign companies have to emulate the same behavior that has become summarized—and symbolized—by the term “sign code shakedown.”

As a matter of policy, consistent and continuing dialogue within the thousands of communities that regulate signs is a more sensible strategy for the on-premise sign industry. After all, we manufacture a product that, properly deployed, enhances community aesthetics and improves traffic safety. We have the opportunity to take the proverbial high road in our communities—to be the Good Guys—if we would but take it.

The Fine Print: This column is meant to explore issues of importance to the sign industry and your business. I am not offering legal advice. Consult with your attorney or other business advisor before considering any of the ideas discussed in this column.