Lots of sign law news surfaced this summer from towns well-known and little-known. Let’s get right to our three-city tour.

 

FIRST STOP: MINNETONKA

Haven’t we already been here? Yes, Minnetonka, Minn., is the Minneapolis suburb famous for its restrictive regulation of electronic message centers that I reported more than a year ago, now the genesis of a case that should give pause to many.

 

For the many of you involved in the permitting and installation of exterior signs and graphics, the variance process is familiar. A variance, of course, is what I call the escape valve, or equalizer, in community planning. It is a procedure that gives a property owner allowance to do something with land use ordinarily prohibited by zoning code.

 

To obtain a variance, the property owner (or you as the applicant on behalf of the owner) must prove the regulations for which the variance is requested impose, in many states, an “unnecessary hardship.” Other states use “practical difficulty” as the standard to prove. In all, however, the particular characteristics of the property must not be created by the property owner, nor simply allow the property to be put to more profitable use.

 

In Minnetonka, a citizen, JoAnne Liebeler, applied for a variance to expand her garage so that it also could be used as a yoga studio and craft room, according to court documents. Fine. The city planning board put the variance application against its four time-honored standards: (1) undue hardship (2) unique circumstance (3) follows intent of the ordinance and (4) keeps neighborhood character.

 

The undue hardship prong was what brought a lawsuit by a neighbor, and ultimately a June decision from the Minnesota Supreme Court. The city, like most municipalities in the state, relied on a definition of reasonable use as requiring a variance applicant to show that the “property owner would like to use the property in a reasonable manner that is prohibited by the ordinance.”

 

Upon further review, the state high court found the literal language of the statute defined reasonable use as when “the property in question cannot be put to reasonable use if used under conditions allowed by the official controls.” 

 

And in a moment, the state’s cities went from “reasonable use” to “no reasonable use without the variance.” That is a harsh change, noted by a colleague of mine in Minneapolis, and among other, the League of Minnesota Cities.

 

Among the lessons in the Minnetonka case (Krummenacher v. City of Minnetonka, A08-1988, not reported yet) is that long-honored standards can change, in this case, to a much more onerous standard. The League argued in an amicus brief for cities being able to maintain the flexibility and authority to make variance decisions with “first-hand knowledge of their communities and their local zoning standards.”

 

The other lesson the League noted in a summary for members is this, “If a city routinely grants variances, this may be an indicator that it may want to re-examine its zoning code to ensure that standards, setbacks, uses, and other requirements are consistent with the city council’s current vision for the community.” 

 

The Minnesota state legislature may be asked to revise statutory language to return to the less restrictive variance standard. Until it acts, however, all eyes remain on Minnetonka.

 

NEXT STOP: TIPP CITY

Tipp City, Ohio, is near Dayton in west-central Ohio, and Dayton is north of Cincinnati—geography lesson finished. A small town, a city council candidate pointedly says, “New business skips over Tipp City because of its pervasive lack of common sense.”

 

But Tipp City’s elected leaders also may have had a hyper-sensitive notion of what provisions should be in its sign code, and what special exceptions should be included. Those exemptions became part of a lengthy lawsuit and a compelling constitutional analysis in the case, City of Tipp City v. Dakin, 929 N.E.2d 484. (The case is now under appeal to the Ohio Supreme Court.)

 

At issue was a mural painted on the side of a downtown building owned by Warrior Racing, an auto performance products supplier. The mural did not contain the Warrior logo or any commercial information about Warrior. Since the mural was non-commercial, the property owner was thought to conclude that it did not need a permit before the artist proceeded to paint the multiple-colored mural.

 

Those multiple colors, and the lack of permit, alarmed the city, which sought enforcement of its sign code. The code in effect at that point had color restrictions (a limit of five colors, including black and white.) But “the background color is considered 1 of the 5 permissible colors, unless channel letters are used, in which case the background is not to be considered 1 of the 5 permissible colors.”

 

The sign code also had size restrictions on wall signs (which the city concluded was what the Warrior mural actually was.) But the restrictions are not necessarily what got Tipp City into court. Instead, the trigger was a list of 24 categories of permit-exempt signs. These included:

 

“… political flags, garage-sale signs, open-house signs, private traffic signs, informational window signs, residential information signs, governmental signs, political signs, address signs, residential and commercial for-sale signs, scoreboards used for sporting events, security system signs, identification signs, historical society and historical significance signs, and yard signs with personal messages.”

 

On appeal, the judge noted, “When a sign ordinance is rife with exceptions, it runs the risk of not sufficiently advancing a municipality’s interests in aesthetics and traffic safety” relying on a federal appeals court opinion in Clear Channel Outdoor v. New York decided just a year earlier.

 

This was a judge, and an opinion, that looked at dozens of sign law cases across a variety of circumstances and facts. Here, the judge quoted a 2002 federal case, noting that “it is truly a Herculean task to wade through the mire of First Amendment opinions to ascertain the state of the law relating to sign regulations.” 

 

The state appeals court found that Tipp City had promulgated sign regulations based on content (see list above) and noted, “In short, whether a particular sign is permit exempt depends, at least in some cases, on what it says.”

 

With the regulations not found to be content-neutral, Tipp City was subject to the higher standard of strict scrutiny (compelling state interest, narrowly tailored to achieve that purpose.) The restrictions on number of colors even came into question. For instance, the city allowed “community activity and/or special event” signs to be limited to just three colors. (Digital graphics printers are probably wondering where an inkjet-produced full-color banner gets placed in Tipp City. Paint or ink, the city apparently had decided that too many colors made its motorists jittery.)

 

The disparity in allowed colors, said the appeals court, was content-based. “In light of these provisions, a sign reading ‘Attend the Mum Festival’ would be promotional and restricted to three colors, whereas a sign reading ‘Boycott the Mum Festival’ would be non-promotional and allowed five colors.”

 

By the way, Tipp City showed a bit of common sense. The sign code used against Warrior Racing that led to the litigation was revised soon after the court filing, apparently cleaning up those constitutional violations. But in Ohio, short of a nuisance being found, there can be no retroactivity to zoning violations, giving us this wonderful case chock full of lessons for sign companies, and regulators.

 

FINAL STOP: PITTSBURGH

The last stop on the Summer 2010 Sign Law & Policy Tour is Pittsburgh, Pa., actively reviewing whether to institute additional restrictions on electronic message signs and digital billboards. Pittsburgh currently separates its sign regulations into “advertising signs” and “non-advertising signs” or billboards and on-premise signs.

 

The draft ordinance began to be circulated a year ago, in August 2009 (meaning that its review a year later should be no surprise to anyone, and not treated as an emergency to the on-premise sign industry.) What I want to focus on regarding Pittsburgh is a consultants’ report and analysis of the draft EMC ordinance. 

 

The consultants in question are Clarion Associates and Clanton Associates, a national planning consultancy and a lighting consultancy respectively. In the report I reviewed, the comments are not noted to be from one or the other of the consultants, so I do not assign comments to either. One part of the ordinance review was to present “current trends/best practices” in EMC regulations. 

 

The review document notes, “As might be expected, there is considerable activity at the local level to regulate electronic signage.” There also is considerable activity at the local level proving the case that on-premise EMCs, appropriately deployed, can lead to a vibrant and growing community, but the consultants seemed to have missed that nuance.

 

The consultants said there was a study done by “Dr. Ian Lewin of Lighting Sciences Inc. commissioned by the International Sign Association/Outdoor Advertising Association of America” regarding ambient light and nighttime lighting conditions that suggested appropriate luminance levels would be 323 nits, and in areas with high ambient light, a level of 1615 nits. 

 

Two comments. First, there is not a single co-sponsored study from Dr. Lewin. ISA commissioned one, and the OAAA commissioned an earlier report. The conclusions, while similar, differ and should not be conjoined by planners. Second, if Dr. Lewin’s conclusions are sound, then why do the consultants end their report recommending a “maximum day/night brightness restriction of 1000 nits/100 nits for any element of the sign?” Interesting opening gambit of a negotiation?

 

Pittsburgh deserves better than a one-sided discussion of the benefits and value of electronic message signs. At this moment in a hot summer, it does not appear that too many cooler heads collected at a public hearing to discuss the draft ordinance. Stay tuned, the Tour has additional stops upcoming.