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Missoula, Montana Sign Code Withstands First Amendment Challenge 
April 12, 2017

Last week, the U.S. District Court for the District of Montana issued an order granting the City of Missoula's motion for summary judgment in a case challenging the constitutionality of its sign code.

The court found that the city's code was content neutral as applied to the plaintiff, and that the code satisfied the Central Hudson intermediate scrutiny test for commercial speech regulations.

Carwerks, a used car dealership in Missoula, challenged the city's sign code after the city issued several citations to Carwerks for placing helium balloons on its vehicles in violation of a code provision that prohibited banners, flags, pennants, streamers, spinners, and "other types of wind signs."  Carwerks claimed that the sign code was content based and failed the Central Hudson test. 
Carwerks took issue with two aspects of the ordinance:  first, that the code distinguished between commercial and noncommercial speech; and second, that the code's definition of "sign" exempted window displays and national flags.

The court found that, even if the plaintiff was correct regarding the content based nature of other provisions of the sign code, the code was constitutional as applied to the plaintiff.  In other words, even if Carwerks had prevailed in its challenge, the code's prohibition on balloons would be upheld independent of whether the prohibition on flags was impermissibly content based due to the sign code's exemption for national flags.  The court noted that, if Carwerks's requested relief were granted, Carwerks would still be in violation of the Missoula code.  The judge went on to find that the regulation satisfied the four-part Central Hudson test because the code's prohibition on wind signs directly advanced the city's interests in traffic safety and aesthetics.

Two points are interesting regarding this decision.  First, the judge applied an interesting formulation of the approach to determining the constitutionality of a commercial speech restriction.  Relying on Sorrell v. IMS Health -a Supreme Court decision that has raised more questions than answers due to its novel application of the content neutrality doctrine to commercial speech (content neutrality has historically been required only of noncommercial speech regulations)-the Montana court noted that, if the Missoula code were found to be content based, it should be subjected to "heightened scrutiny."  Other lower courts have not applied such a framework in considering commercial speech regulations, and this approach raises new questions regarding the applicability of Sorrell in local sign regulation.

Second, the court afforded the city significant deference in determining that the prohibition on wind signs directly advanced the city's interests in traffic safety and aesthetics.  Unlike other recent cases that appear to have placed heightened evidentiary burdens on local governments to justify how their regulations advance their asserted interests, the Montana court expressly stated that "[t]he City need not provide detailed evidence proving a connection between wind signs and its stated purposes."  It appears that a split may be developing among the courts as to how much deference should be given to a local government's factfinding in the tailoring prong of intermediate scrutiny.

Montville Zoning Board Approves One, Rejects Second L.E.D. Billboard
By Mellissa Benno
April 7, 2017
MONTVILLE, NJ - The Montville Township Zoning Board of Adjustment rejected one application to install an L.E.D. billboard in Pine Brook but approved another at their meeting on April 5.

The signs, proposed for #1 Route 46 East and #86 Route 46 West in Pine Brook, would replace existing, static billboards that have been in place for more than 60 years, according to applicant Outfront Media. The sign at #1 is across from the Montville Diner near New Road and #86 is across from the Pine Brook Home Depot. Refer to the photo gallery to aid clarity. The #1 Rte 46 sign currently has two panels of advertising, but the proposed L.E.D. sign would only have one panel.

Testimony began at the Sept. 6, 2016 meeting and continued for four total meetings.

According to the minutes from the September meeting, Greg Brinster of Outfront Media testified that the signs are computer-generated and any change in copy is done remotely. Images play for eight seconds and there are a maximum of eight different messages in a cycle.

"The sign adjusts its brightness automatically to ensure it is not too bright," Brinster told the board, according to the minutes. "Each sign has a camera that monitors the sign 24 hours a day."
Brinster told the board that the township could call in an emergent message to be posted on the sign. Amber Alerts for lost children could also be posted, per testimony at the April meeting. The signs are on secure servers and can be shut off at a moment's notice, and there are no catwalks on the signs, precluding vandals from climbing them, Brinster told the board. The signs would not include any animation, flashing or scrolling, Brinster said.

Professional Engineer Joseph Staiger testified for Outfront regarding the effects on traffic. He stated, according to the minutes, that drivers tend to glance at signs for .29 to .35 seconds, according to a study conducted in 2012.

"People concentrate more on the road where there are more distractions than when they are on an open highway," Staiger said, according to the minutes. "There are more safety issues when drivers text, eat or light a cigarette."

He cited research that stated there was no difference in the number of accidents before the installation of an L.E.D. sign and after installation. At the March 1, 2017 meeting, he stated that texting or putting on makeup behind the wheel had a distraction rate more than two seconds long, which is the point when more accidents occur. Since drivers spend less than half a second looking at a digital sign, they are not a safety hazard, he said.

Brinster testified that the #1 Rte 46 sign has two panels at 238 square feet but the single L.E.D. sign would only be 231 square feet on a monopole. Wetlands would be disturbed but a permit was obtained from the New Jersey Department of Environmental Protection and the area would be re-seeded, he said.

Professional Engineer Brett Skapinetz then testified, according to the minutes, "the intensity of the light would be established with the construction of the new sign. The power of illumination fluctuates during different times of the day and night. The equipment keeps the illumination to not more than .3 foot candles more than the ambient lighting."

Board Chairman James Marinello asked about the comparative safety of the new sign, and Skapinetz said the existing sign has posts that are rusted, while the proposed sign would have more modern materials.

At the Jan. 4, 2017 meeting, Towaco resident Jon Antal, General Manager of the New Jersey office of Outfront Media testified that the company has been using L.E.D. technology for nine years, and the ability to show eight advertisers on one structure allows for a reduced number of billboards in the area.

"The agreements signed with our advertisers meet local media standards and general good taste," Antal said, according to the minutes. "Political and firearms ads must pass several requirements before they can be put out there on the streets. No pornographic, obscene, or attack ads are permitted. If negative feedback from the community occurs, we have taken down ads in the past."
Skapinetz stated at the March 1 meeting that the #86 Rte 46 billboard would be 14 feet by 48 feet for the message portion, the same size as the existing sign there. For the pole height, April 5 testimony by Professional Planner George Williams cited a 38 foot height on the monopole sign, a one foot reduction.

Board Attorney Bruce Ackerman asked about the safety of a smaller or a larger sign, and Staiger said he found no difference between size and safety, according to the minutes.  
April 5 Testimony

Testimony continued at the April 5 meeting, when Antal stated Outfront was willing to guarantee the town 90 minutes per 24-hour period, or one 8-second display every other cycle on one side of one sign for a township message.

He reiterated in his testimony that among the estimated 7,000 digital signs in the U.S. and approximately 125 in the state of New Jersey, there have been no traffic safety problems.

Williams stated that the pre-existing signs are a non-conforming use for the sites.

"Modernization will actually mitigate some of the non-conformities," he said.

He cited the benefits of the digital sign, including the township use, the fewer site visits by workers, and the improved visibility of the sign. He felt that since the sites have been used for signs for so long, there was no substantial negative impact on the area. Board members had inquired at previous meetings regarding the signs' effect on the hoped-for redevelopment in that area of Route 46, but he said it would not have any negative impact. He said it would help "promote a good visual environment" for the township and "would promote commerce in business districts," quoting from the Master Plan. He also felt that modernization will improve the aesthetic of the sign.


In his closing comments, Outfront Attorney Louis D'Arminio asked if the board had had any complaints regarding the current signs. He said the town would be improved by the aesthetic of the new signs, and cited litigation that was overturned.

In E&J Equities v. Board of Adjustment of Franklin Township, he said, the board allowed static billboards but passed an ordinance forbidding digital ones, and thus denied E&J permission to erect digital signage. Upon appeal, the state Supreme Court opinion stated that static billboards are no more or less aesthetically palatable than digital, he said. The Franklin Board stated they did not have enough traffic safety evidence, but D'Arminio said they had some of the same evidence that was presented before the Montville Board.

"The Supreme Court found the board's ruling had been made on 'unsupported suppositions, fears and concerns,'" D'Arminio said.

D'Arminio further cited studies that stated drivers looked at digital signs for an average of .379 seconds, and static signs for .335, which is virtually no difference, he said.


The board stated safety concerns regarding the change of sign messages. Board Member Kenneth Shirkey called the testimony "woefully inadequate regarding traffic analysis, particularly in the morning hours," and called the signs a "huge distraction."

Board Member Ron Soussa made a motion to approve the application, but to increase the timeframe for message change to ten seconds per flip, to deny parking on Route 46 during the construction of the signs, and to make the public service message promise a deed restriction. In other words, adding enforceability to Outfront's promise to allow the township's use of the sign.

The board voted on the #1 Route 46 East sign, which is the sign near New Road. Members Shirkey, Margaret Miller-Sanders and Shelly Lawrence voted no, which defeated the application. However, for the #86 Route 46 West sign, only Miller-Sanders and Lawrence voted no, which allowed the application to pass. It was not apparent why Shirkey voted differently regarding the sign across from Home Depot.

New Digital Billboard on I-691 in Meriden
By Leigh Tauss
April 10, 2017
MERIDEN, CT - Drivers on Interstate 691 might notice a new digital billboard flashing advertisements near Exit 8.
Overlooking the westbound side of the highway, the location was ideal, said David Gannon, owner of Independent Outdoor Network, which operates billboards in Connecticut and Massachusetts.
"There's a lot of traffic. (I-691) is a nice connector route between I-84 and I-91 and a lot of good things are happening in Meriden and Wallingford," Gannon said. "We thought it would be a good way for people to advertise ... for both Wallingford and Meriden to attract people to the downtown districts and try to get some local businesses on there."
Despite its proximity to a Pratt Street Extension apartment building, Gannon said the light from the billboard is directed at the highway, causing "no spray," onto adjacent properties.
Representatives from the management company for the apartment building said they had not heard any complaints from residents since the billboard was erected last month.
Gannon also represents the advertising for a non-digital billboard at 470 Murdock Avenue, owned by Dominick and Giuseppina Demartino. The Demartinos filed an unsuccessful lawsuit in 2013 questioning the legality of the city hosting an electronic billboard on city property at Nessing Field, 528 Murdock Avenue, as a "public use." The city leased the Nessing Field electronic billboard to Lamar Central Outdoor to bring in $1.1 million in revenue over a 20-year period in 2013.
In order to construct the city's billboard, multiple zone changes and billboard regulations were passed by the City Council in addition to the creation of a new zoning district for billboards. The two billboards are separated by 501 feet. City requirements state electronic billboards must be 1,500 feet apart, preventing the Demartinos from converting their billboard to electronic.
The couple filed the lawsuit against the city and Lamar Central Outdoor after the Planning Commission approved the application for an electronic billboard in August 2013.
The Demartinos, working under limited liability company DFC Meriden, applied to convert their preexisting static billboard to digital later that year, but their request was denied by the Planning Commission.
The lawsuit argued the city's electronic billboard application violated zoning laws and should not have been approved because the billboard did not constitute a public use.
Meriden's Zoning Regulations state that "this zoning ordinance shall not apply to municipal property owned or leased by the City of Meriden for public purposes, including public library, public hospital or public school or park and recreation purposes."
Judge John F. Cronan dismissed the appeal, boiling down the scope of the case to a matter of grammar.
"This issue appears to the court to be one of first impression. As such, it is necessary to decide whether the word 'including' in the regulation only covers public uses such as a park or a hospital or whether this term can be seen as an enhancement so that other uses can be entertained as public use or public purpose," Cronan wrote. "Lacking any case of statutory law to the contrary, the court will consider the term as enlargement, therefore agreeing with the defendants' argument that the billboard, in this particular and limited situation, falls within a definition of public use or public purpose."
Attorney Dennis Ceneviva, who represented the Demartinos in the lawsuit, said the Demartinos' billboard was erected prior to the city's, when regulations stated 500 feet was necessary between billboards. After the city constructed its digital billboard, regulations were revised to prohibit electronic billboards within 1,500 of each other, thereby preventing the Demartinos from converting their billboard to digital.
As per Cronan's argument, Ceneviva said the definition of "public use," is less vague.
"It's pretty clear in my mind, and I think, looking at the wording in the regulations that having a billboard is not a public use. It doesn't provide a public service," Ceneviva said.
When asked to comment on the lawsuit, City Attorney Deborah Moore said the billboard provides essential funds to the city.
"In these very difficult economic times, the city is able to get a steady stream of revenue from the electronic billboard as it is located on City property adjacent to 91 south," Moore wrote in an email. "The City has to look at non-traditional revenue streams and potential for income to reduce the tax burden on citizens and businesses."
Dominick Demartino said he was "disappointed" by the outcome of the lawsuit, stating he had accommodated the city during the planning process for its billboard, even agreeing to relocate his own.
"We had a working relationship, but in the end the city did everything they could to essentially rob me of my digital board," Demartino said. "If you are playing by the rules and the other person is allowed to change or make up the rules as they go there is no way I could have ever prevailed because they constantly changed the goal line."
By Staff Writer
April 13, 2017

Many out of home leases require lease payments annually in advance.  Is prepaid rent recoverable if a lease terminates early?  Not unless you have a refund clause.  That's the lesson of Eujoy Realty v Wagner Communications .   Here are the facts:
  • In 2000 Van Wagner Outdoor signed a 15 year lease with Eujoy Realty Corp in to place a billboard on a rooftop in Queens.  The rent of $96,243/year was due annually in advance.  The lease stated "Should this Lease be terminated for any reason prior to its expiration Van Wagner shall not be entitled the return of any basic rent paid in advance.."   The lease went on, however, to say that prepaid rent would be prorated and refunded if the lease was terminated due to fire, condemnation or passage of a law making billboards illegal.
  • A rider to the lease gave Van Wagner the right to terminate the lease if the buildings view was obstructed, but the lease was silent as to whether prepaid rent would be refunded due to termination associated with obstruction. 
  • In January 2007 Van Wagner gave Eujoy a check for $96,243 for 2007 rent.  Van Wagner then stopped payment of the check, reissued a check for $2,103 to Eujoy, and notified Eujoy that it was terminating the lease effective January 8, 2007 due to an obstruction of the view of the billboard.
  • Eujoy sued Van Wagner for $96,243 for rent for 2007.
  • The New York Court of Appeals awarded Eujoy the $96,243 plus legal costs.  The court found that when a lease sets a due date for rent, that date is the date on which the debt accrues and rent paid in advance is unrecoverable if the lease is terminated unless the language of the lease direct otherwise.  The courts refused to accept Van Wagner's assertions that the terms of the lease had been modified by oral agreement.
Insider's take:  Three things to learn from this case.
  1. Obey your lease termination language.  If Van Wagner terminated the lease and removed the billboard by December 31, 2006 it would not have been liable for 2007 rent.
  2. Never agree to prepay unless your lease specifies that prepaid rent will be refunded if a lease is terminated early.
  3.  Get it in writing.  Written agreements almost always trump oral agreements.

Eatontown Council Seeks More Information On Proposed Digital Billboard
By Chris Sheldon
March 29, 2017
EATONTOWN, NJ : The borough council is looking for more information before signing off on the installation of a new billboard along the Route 35 corridor.

David Klein Outdoor Advertising is looking to put a digital billboard 160 Route 35 on the site of a Rayco Total Auto Repair shop located just before the Route 35/36 intersection. The billboard would be the first of its kind in the borough and would be similar to several that can be seen along Route 35 in Ocean Township.

The face of the sign would be 11x36 feet according to the group's attorney, Peter Falvo, with the base of the sign 20 feet above the ground. It would be visible from both sides of the highway and would change to display different advertisements. Falvo said it would be "internally illuminated" and that there would be no "light spillage" into nearby properties, which are commercial uses.

"Can you see it coming down the highway, there's no question about it that you can," Falvo said. "Can you read a newspaper underneath it, there's no question that you can't."

Falvo said his client does not need to seek approval from the Eatontown Zoning Board of Adjustment and only need the approval of council to move forward with the installation of the sign. He said his client has already been given an outdoor advertising permit by the New Jersey Department of Transportation to build a sign as a large as 20-feet-by-50-feet.

"We're not looking to do that, we're looking to put up a smaller sign," Falvo said.

Eatontown Mayor Dennis Connelly said he had no problem with the look of the sign.

"I have no issue myself, I like the view of these digital signs, so that part is no my concern," Connelly said. "My concern is just adding signs to the borough, but if our ordinance says that it's permissible, then it's permissible."

Council members questioned how long each advertisement would appear on the sign, and Falvo said it would be every few seconds. The council felt that it should only change once every minute for safety reasons.

Falvo said his client would agree to the 1-minute "dwell time" and that if his client wanted to change that, he would have to come back to council to request the change.

Borough Attorney Andrew Bayer suggested carrying the hearing to a future meeting so more information could be gathered and so the applicant could bring its own traffic expert to answer any questions the council may have. That hearing is currently scheduled for the April 26 Eatontown Council meeting.