Most Texans should know the details by memory of the Mexican siege and assault at the Alamo in 1836. The Texans at the mission asked several times for reinforcements and supplies. But the long fight, which finally shifted to hand-to-hand combat, ended with only two survivors inside.
Consider now Minnetonka, Minn., the scene last year of a particularly harmful attack on the sign industry.
Readers of Sign Business may remember a report on the Minnetonka restrictions on digital billboards by Geoff Michael in the April 2007 issue of Sign Business. Michael, a sign sales professional and computer consultant in the Twin Cities area, updated the controversy in the March 2008 issue of Sign Tech, sister magazine to Sign Business.

MINNETONKA SAYS, WE WILL ALLOW DIGITAL BOARDS, BUT IN RETURN¦
In a nutshell, the city of Minnetonka (a bedroom community to Minneapolis and St. Paul) passed restrictions on digital billboards and electronic message centers (EMCs.) After litigation by a billboard operator, the city agreed to modify restrictions on the billboards in exchange for the removal of a number of static billboards in the city. By some measure, this represented a small victory for the billboard industry.
Yet if we examine some of the procedure and process involved in getting the Minnetonka sign ordinance revised, no reasonable person could conclude there was much of a victory for the on-premise sign industry. The lesson is grim: when the cards are already stacked against on-premise sign manufacturers, in no small part because the town’s focus was on billboards, the on-premise industry gets hurt, lost in the regulatory shuffle, but hurt nevertheless.
The Minnetonka sign ordinance review process got a full public hearing on May 14, 2007, at a joint city council/planning commission “study session.” The official minutes from that session note that the “council and commission watched a demonstration of a dynamic sign from Daktronics representatives.
“The demonstration included examples of the sign’s brightness with different colors, different sequencing ranging from two to eight seconds, different non-instantaneous transitions including fades and spin-ins, and also a dynamic balloon graphic display.”
Most in the sign industry would have said, “Wow! What advanced technology!” Not so the gathering majority in Minnetonka, with one planning commission member stating that “he drives by a dynamic billboard every day and he finds it distracting.”

THE REAL QUESTION FOR CITY COUNCIL: WOULD THE TRADE BE WORTH IT?
The study session concluded by focusing on what it considered important -- "the billboards” as one council member noted:

“(W)hen it came down to making a decision, the council saw a great opportunity to permanently get rid of one-half of the billboards in Minnetonka. He said none of the council liked allowing changes every eight seconds, but it came down to the question if the trade was worth it. Was the city better off with the eight seconds and half the billboards gone or could the city end up in the position of having to accept the eight seconds in getting nothing in return because of future changes in federal government regulations?”

One month later, on June 14, 2007, the Minnetonka planning commission met to conduct a public hearing, already in receipt of a staff report on dynamic signs and recommended changes to the sign ordinance. The staff report noted consultations with a Minnesota planning, engineering and design firm, and with “Gerald Wachtel, a national expert on changeable message signs.” (See my July 2008 column for an introduction to Wachtel’s approach to digital billboards and EMCs.)
At the heart of the proposed changes is the premise, mistaken or not, that digital billboards are distracting to drivers, and thus, reduce traffic safety. As the city had a legal prerogative to protect public safety, the new restrictions in the Minnetonka sign ordinance simply were a reflection of this prerogative.
Not that the traffic safety research the city used actually proved that digital billboards caused accidents. The staff report allowed that “the city’s consultants concluded that there can never be definitive proof of a causal connection between dynamic signs and highway accidents.” But they went ahead anyway.
The ordinance passed Minnetonka City Council at its June 25, 2007, meeting. If this is the end of the process, you may rightly ask, so what? Here’s why. Minnetonka’s restrictions on digital signs have now been heralded as cutting-edge sign regulation.

MINNETONKA NOW SHOWCASED AS EFFECTIVE REGULATION
A presentation at the American Planning Association conference this April in Las Vegas mentioned Minnetonka specifically in a discussion of “defining ‘dynamic display’ effectively”:

“Example: reach all sign characteristics that ‘appear to have movement or appear to change, caused by any method other than physically removing and replacing the sign or its components.”

The APA presenter was Minnesota attorney John M. Baker. If his name sounds familiar, it may be because Baker drafted the amicus brief on behalf of the APA (siding with the City of Concord) in the federal case, Naser Jewelers v. City of Concord, NH.
In this case, the plaintiff (read here, the on-premise sign industry) argued unsuccessfully that Concord’s complete ban on EMCs burdened free speech under the First Amendment. (The federal appeals court ruled that Concord’s ordinance was content-neutral, and narrowly tailored to achieve the city’s prerogatives regarding safety and aesthetics.)
What the Minnetonka sign regulations and the Naser Jewelers decision represent is precedent. These precedents are public and can be cited, i.e., exploited, by any party in any other legal or administrative proceeding.
Baker’s legal reasoning is evident in a legislative update on the local regulation of dynamic displays in Minnesota that he prepared with colleague Robin M. Wolpert in June 2007. There are four interesting viewpoints.
First, Baker and Wolpert noted that “conclusive scientific proof is elusive” on the relationship between dynamic signs and driver distractions. “Legitimate studies of sign safety (conducted and sponsored by those without a financial interest in a particular answer) form the pieces of a broader puzzle.”
Here is probably a criticism of billboard and sign industry-sponsored safety research. But couldn’t this brush also negatively paint others with “financial interests in a particular answer”? Don’t municipalities have a financial interest in the vibrancy of the community, and the financial health (ability to pay taxes) of its businesses?

“SIGN REGULATION CAN AND DOES INVOLVE VALUES OTHER THAN SAFETY”
Second, Baker and Wolpert said, “Sign regulation can and does involve values other than safety—such as aesthetic concerns (which are capable of cutting either way on this subject), communication, wayfinding and creativity.”

This viewpoint is actually encouraging to the arguments of the on-premise sign industry, even if lacking a clear legal and legislative path forward. For now, we should embrace and agree that sign regulation encompasses a wide array of “values” as the start to a dialogue on effective and balanced regulation.
Third, Baker and Wolpert commented, “Whether and how to regulate dynamic signs are discretionary choices. Those choices should be made in light of the pillars of dynamic sign regulation and the local government’s cost-benefit analysis of safety, aesthetics, planning and other policy considerations.”
Here is allowed the choice of a community to encourage signs and effectively support its businesses. What happened in Concord should stay in Concord. What happened in Minnetonka should stay in Minnetonka. For the rest of the thousands of communities across the U.S., let’s start with more of a clean slate.

DIFFERENTIATING WAYFINDING AND ADVERTISING
Finally, Baker and Wolpert look at the regulatory distinctions between “on-site and off-site signs.”
“(P)revious research does not indicate that on-site and off-site dynamic signs pose distinct safety risks that warrant differential regulatory treatment. However, because on-premises signs are more likely to serve wayfinding purposes, if on-premises signs are illegible or otherwise hard to see from a safe distance, there may be a risk that they are seen too late by drivers who are trying to find their way to a particular location, and who then engage in dangerous maneuvers and lane-changes to leave the road. Local governments need not view advertising and wayfinding as equally important goals, and for that reason may choose to adopt policies that benefit the use of signage for wayfinding while burdening its use purely for advertising.”
We just may have the start of finding common ground for the effective regulation of on-premise signs. In Minnetonka and in Naser Jewelers, the on-premise sign industry had its wallet—and its soul— handed back to it.
Should we be discouraged by these two precedents? No. But we have to show up ready to argue on behalf of on-premise signs, and not get lost in the shadow of the billboard industry.
And the Alamo? As news of the defeat spread across Texas, residents joined Sam Houston’s army and repelled the Mexican forces of General Santa Anna in the Battle of San Jacinto, eventually leading to the establishment of the Republic of Texas. Let’s remember Minnetonka in the same way—as the spark to do better the next time.

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.