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Rocky Mountain Sign Law
December 5, 2016

Earlier this year, a federal district court in Washington granted the City of Port Orchard's motion for summary judgment with respect to alleged violations of the First Amendment rights of Engley Diversified, Inc., a billboard company.  Engley sought damages under federal and state law for what it alleged were wrongful denials of billboard permits by the city.

The case, which has a lengthy and twisted procedural history, stems from the submission of six permit applications by Engley to the city in 2010.  Engley sought to construct three billboards in the city.  The city's code enforcement officer denied the permits, interpreting the sign code as prohibiting them.  Engley appealed to the city's hearing officer.  During the pendency of the appeal, the city council enacted an ordinance prohibiting all off-premises advertising billboards throughout the city.  The city's hearing examiner subsequently denied the appeal on the merits, finding that the code enforcement officer's interpretation of the sign code was not clearly erroneous.

In December 2010, Engley appealed to the city council, which denied the appeal as untimely.  Engley then appealed to state district court pursuant to the Washington Land Use Petition Act, seeking damages under state law and Section 1983.  The court ruled that the appeal was timely, and remanded the case back to the city council.  In September 2011, the city council reversed the hearing examiner's decision on the merits, but found that the permit applications submitted by Engley were not vested.  The following month, Engley filed another complaint seeking damages against the city, which was removed to federal district court.  Finally, in late 2012, the city council granted the requested permits.  The city subsequently removed the matter to federal district court.  The case has continued, as Engley is seeking damages for the delay in permitting as well as attorneys' fees.

Several matters were before the court on summary judgment motions.  The court denied the city's argument that the billboard company's claims were barred by collateral estoppel.  The court also disagreed with the city's argument that it could not be found liable under Section 1983, finding instead that the city council had sufficient final policy-making authority so as to give rise to liability under Section 1983.

On the First Amendment matters, Engley argued that the city's prohibition of its billboards was an unconstitutional restriction on commercial speech.  The court found no First Amendment violation.  According to the court, because the city council ultimately vacated the interpretations of the code enforcement officer and hearing examiner and issued the billboard permits, there was no unconstitutional act by the final policy-making authority so as to give rise to a First Amendment violation.  According to the court:

"Although Engley attempts to fault the City for the actions of the Code Enforcement Officer and the Hearing Examiner, it fails to show that these officers were more than appointed authorities with delegated authority to make certain discretionary decisions. *1070 In such circumstances, the City is not liable even if the appointed authority exercises his or her discretion in an unconstitutional manner."

The court granted the city's motions for summary judgment on Engley's First Amendment and due process claims.  The court denied Engley's motion for summary judgment on state law issues associated with the question of whether the city council's unlawful denial of the permit was done with knowledge.

Augmented Reality Billboard at Canberra Airport Invites Visitors
to Pat Cheetah, Spot Whales
ABC News
By Ewan Gilbert
November 27, 2016
Australia-Visitors to Canberra Airport will now be greeted by a new state-of-the-art advertisement that watches them while they are watching it.

The augmented reality screen is in part funded by the Federal Government.

It currently invites people to pretend to pat a cheetah at the National Zoo & Aquarium, search for bettongs at Mulligans Flat Woodlands Sanctuary just outside Canberra, or spot a virtual whale on the Sapphire Coast off New South Wales.

At the same time, sophisticated cameras provide detailed analytics to advertisers about those who interact with the screen, down to the detail of whether they are smiling or not.

The project was partly funded by the Federal Government's Tourism Demand Driver Infrastructure Fund, which contributed $248,000 to the project.

The government funds were met dollar-for-dollar by Canberra Airport.

More immersive than static billboard.

Amber Standley, who runs APositive, the Canberra technology company behind the installation, said each advertisement took her designers up to 12 weeks to create.
  Photo: Visitors can use a spotlight to find virtual bettongs. (ABC News: Ewan Gilbert)

"When it's put up on a big screen it's fully interactive, you can walk up and participate," Ms Standley said.
"It's far more immersive then say a static advertisement or billboard.

"The more interactive, the more fun, the more lasting the impression it leaves on the users."

Stephen Byron from Canberra Airport said the billboard would provide tourism operators with a unique way to advertise.

"I think this will be a battle between the children and the adults to get hold of and get in the front of what is an exciting engagement," he said.

Lafayette's Vintage Coca-Cola Mural Reunited with Old Town
Lafayette News
By Anthony Hahn
November 30, 2016
Vintage advertisement now resides along 101 N. Public Road
Boulder, CO-Lafayette's prized, vintage Coca-Cola mural, the subject of much debate since it was almost lost to history last summer, was once again given life Wednesday as crews attached the piece of Americana to its new home in Old Town.

The advertisement, which for the past 18 months was propped inside a bay of the Lafayette firehouse, now resides along the wall at 101 N. Public Road. It was first revealed in June 2015 as workers took the final steps to demolish the former La Familia building.

"It's been a long time working through the process, but it's a very exciting day," said Sally Martin, chairwoman of the Lafayette Urban Renewal Authority and catalyst for the mural's reinstatement.
A crew from Coalesce Fabrications, of Boulder, puts the restored Coca-Cola mural in place Wednesday at its permanent location at 101 N. Public Road in Lafayette.

Crowds surrounding the building waited with bated breath Wednesday as police and fire trucks halted the busy lunchtime traffic to make way for the mural.

The Mural Committee consisting of 10 Lafayette residents worked on the coordination, and 62 citizens and local businesses made donations totaling $126,000 to conserve the mural.

"There are a lot of people that put a lot of time and effort into this," said Lafayette resident Anji Redmond, standing with a group of residents watching workers put the finishing touches on the installation Wednesday.
"It's so nice to see it come to fruition finally."

Back when U.S. 287 still routed through Lafayette down what is now Public Road, the site was a Hi-Way Café before becoming the popular La Familia Mexican restaurant, which closed in 2009.

Keeping with history, those involved with the project had always hoped to see the mural eventually placed along another public location.

The mural reads "Pat and Gar's Hi-Way Bar" at the top, with "Drink Coca-Cola, it's the real thing" sandwiched between two old-fashioned glass Coke bottles below.

The city spent about $10,000 last summer to carefully detach and transport the mural to a safer location.
For neighbors of the mural's new home, such as Anspach's Jewelry owner Graig Anspach, the slice of history's return to Old Town is a welcome site.

"It's marvelous to have such a neat historical sign across the street," Anspach said. "Anytime you can uncover something like that, it's exciting for the community. When they first found it I saw the crowds and their enthusiasm.

"It's always special when you can preserve something from the past and be able to share it with the people that come through town."

Exposed! The Latest Plan to Unleash Digital Billboards in LA
City Watch
By Dennis Hathaway
November 10, 2016

BILLBOARD WATCH-The slow-moving but relentless push for more digital billboards on LA's commercial streets got a boost last week with the unveiling of a detailed plan for allowing the now-prohibited signs. Presented to the City Council's Planning and Land Use Management (PLUM) committee, the plan would require billboard companies to make payments to the city and remove a certain number of existing billboards in exchange for the right to put up new signs of the highly lucrative digital variety.

The committee directed city agencies to develop a legal framework to implement the digital billboard plan, even though the City Planning Commission (CPC) last year approved a new citywide sign ordinance that restricts the brightly-lit signs with rapidly changing ads to sign districts in a limited number of high-intensity commercial areas. That action would put those signs off-limits in more than 80 per cent of the city's commercial zones.

With certain exceptions, new billboards and alterations to existing billboards have been banned in LA since 2002 and digital billboards have been explicitly prohibited since 2009. However, state law allows cities to enter into relocation agreements with billboard companies, which means that a billboard can be moved from one location to another without running afoul of billboard bans such as LA's.

This law, intended to relieve cities from the burden of paying large amounts in compensation if a billboard has to be removed from private property for a street widening or other public works project, has been advocated by billboard giant Clear Channel as a mechanism for not only putting up new digital billboards, but turning on many of the 99 digital billboards that went dark by court order three years ago.

In the CLA's plan, the relocation agreements would allow new digital billboards to be put up or the existing digital billboards to be turned on in locations of the companies' choice without hearings and approvals by zoning officials or local planning commissions. As long as the companies agree to make a specified annual payment to the city, take down a certain number of existing billboards, and meet restrictions regarding location and illumination, permits for the new or re-activated digital billboards would be issued "by right."

This, of course, directly contradicts what billboard company representatives and pro-digital billboard politicians have said for several years, which is that communities should be able to choose whether or not they want the signs on their commercial streets. If people in North Hollywood or East LA see the billboards as bringing benefits to their community, the argument went, they should have them; if people in Silverlake or Westwood see them as a detriment, they should be able to say no.

Be that as it may, here are the details of the CLA's plan: A billboard company wishing to put up a new digital billboard could choose to remove existing billboards at a ratio ranging from 2:1 to 9:1, based on square footage of sign face. A standard full-sized billboard is 672 sq. ft., so two of those or some other number of signs adding up to 1,300-plus square feet would have to be removed. If a billboard company chose the 2:1 ratio, it would have to pay the city an annual fee of $250,000, but if it took down existing billboards at higher ratios the required fee would incrementally decrease, up to the 9:1 ratio, which would not trigger any fee payment.

The plan also recommends that companies putting up new digital billboards provide "community benefits" to offset the negative impacts of the new signage. These include streetscape improvements, public art programs, and funding for transit-related services, among others.

There are some proposed restrictions on where the new digital billboards could be put -- for example, in public parks, along designated scenic highways, in historic preservation zones, and areas zoned neighborhood or limited commercial. The plan also proposes a limit on the light cast by the billboards, although the method of measurement is widely regarded as an inaccurate reflection of the brightness of the signs that employ thousands of LED lights, and many cities, including LA, have begun using a newer, more accurate method that measures the light at its source.

After listening to these details, along with a related report by the City Administrative Officer (CAO) and comment from members of the public, PLUM committee chairman Jose Huizar closed the discussion by directing the city agencies, with the assistance of the city planning department and City Attorney's office, to return with additional details needed to implement the plan, which would require ultimate approval by the full City Council.

Despite the fact that the issue has drawn heated public debate, and the plan represents the first detailed step in the direction of allowing new digital members on most commercial streets, not a single member of the committee other than Huizar had any comment or question for the city officials presenting the reports.

Before moving on to other items on the committee's agenda, Huizar also got in a swipe at the City Planning Commission, which he has accused in the past of overstepping its bounds by making changes to the sign ordinance sent to it by the committee. Those changes mean that the City Council will need a supermajority, or 10 votes, to overrule the commission's approval of an ordinance that restricts new digital signs to sign districts.

Huizar also raised an issue that has been alluded to but not explicitly discussed by committee members in the past, which is the idea that the less affluent City Council districts have borne the brunt of billboard blight in the past, and are therefore particularly deserving of the relief promised by the takedown provisions of the CLA's digital billboard plan.

The councilman, whose district encompasses most of downtown and the majority Latino communities of East LA and Boyle Heights, pointed to statistics in the CAO report showing that his district ranks first among the city's 15 council districts in number of billboards. The district, along with two South LA districts, have 36% of the total billboards in the city, Huizar said. And while the City Planning Commission's restriction of new digital billboards to sign districts also includes a requirement that any new signs be offset by the takedown of existing billboards, Huizar said that this would not result in a significant reduction of billboards in those districts.

But are Huizar's East LA district and the two predominately Latino and African American districts in South LA he cited really disproportionately blighted by billboards? According to city records, Huizar's district has 772 billboard faces, which is the highest of any of the 15 council districts.
Council districts 8 and 9, represented by council members Marqueece Harris-Dawson and Curren Price, respectively, who also happen to be members of the PLUM committee, each have 719 billboard faces, ranking them second to Huizar's district.

However, if those districts are ranked by total square footage of billboard faces, Huizar's district ranks 7th, and the other two 11th and 13th. In fact, the district ranked first on this scale, councilman Paul Koretz's predominately Westside district, has 279,000 sq. ft., compared to 165,000 sq. ft. in Huizar's district and only 97,000 sq. ft. in Price's district. Which means that Koretz's more affluent district has fewer billboard structures than those other districts, but the billboards have significantly larger faces and therefore display larger, more prominent advertisements. Thus, the argument over which districts are disproportionately blighted by billboards turns on the question of what is the major source of the blight, the billboard's structure or the advertising displayed on the face.

The council districts ranked 2nd, 3rd, and 4th in terms of square footage of billboard space each have more than 200,000 sq. ft. Along with Kortez's district, those districts represented by Mike Bonin, David Ryu, and Mitch O'Farrell also happen to be the ones in which Clear Channel and Outfront Media put up all but a handful of 101 digital billboards beginning in 2007 and ending with a moratorium at the end of 2008. Those districts not only had more full-sized billboards to convert to digital but are among the most affluent in the city and therefore more attractive to advertisers paying premium rates for the 8-second spots on the signs.

It's therefore no mystery why Koretz, Bonin, and Ryu have publicly announced their opposition to allowing digital billboards anywhere outside sign districts, as per the City Planning Commission action. Councilman Paul Krekorian has also publicly opposed plans to allow new digital billboards outside sign districts on private property, although none of the 101 signs went up in his San Fernando Valley district. O'Farrell hasn't taken as definite a stand as his four colleagues, but has told constituents that he was happy with the planning commission's action.

If the plan presented this week to allow digital billboards beyond those limited sign districts is eventually approved, Clear Channel could turn on most of the 84 billboards it put up in 2007-2008. Likewise, Outfront Media. And the city's third major billboard company, Lamar Advertising, which owns some 3,000 small billboards in mostly lower-income neighborhoods, could erect new digital billboards on commercial thoroughfares in areas with the more affluent consumers valued by advertisers.

For example, the plan would allow Clear Channel to turn on a now-dark digital billboard on Santa Monica Blvd. in West LA in exchange for removing two or three old, rundown billboards in Council District 8 in south LA and paying the city an annual fee of $250,000. That might seem a great deal for Harris-Dawson, who represents that district and has complained of billboard blight there, but what of people in the residential neighborhood adjacent to that Santa Monica Blvd. billboard who repeatedly complained of constantly changing light cast into their homes and brilliantly lit ads for products and services looming beyond their roofs in the night sky.

A fourth member of the PLUM committee, Gil Cedillo, whose district west and north of downtown includes some of the city's poorest areas, could also benefit from the removal of old, blighted billboards, especially since Clear Channel and company are not likely to look at most of the district as fertile ground for new digital billboards. The fifth member, Mitchell Englander, represents a much more affluent district in the northwest San Fernando Valley, but the predominately residential district has by far the fewest number of billboards in the city and probably wouldn't be a major target for companies wanting to put up new digital signs.

As mentioned above, the plan would require votes from 10 of the 15 city council members since it conflicts with the ordinance approved by the planning commission. If council members Bonin, Koretz, Ryu, and Krekorian maintain their current stands, and are joined by O'Farrell, they could block that action since one council seat is currently vacant. However, that vacancy will be filled in the upcoming city election and a new council member will be seated on July 1 of next year.

There are some other hurdles as well. A Clear Channel representative has written a letter to the committee criticizing the takedown ratios as too high, and arguing that instead of a set annual fee the companies and city should negotiate a fee for each relocation agreement. Regency Advertising and Summit Media, two of the city's small billboard companies, have also argued for lower takedown ratios and fees on the grounds that the proposed plan would shut them out of the process.

And City Attorney Mike Feuer, who unsuccessfully sponsored a statewide moratorium on digital billboards when he was a state assembly member, has not weighed in on the possible legal ramifications of the billboard relocation scheme. Feuer has already poured cold water on one of the PLUM committee's earlier proposals, which was to grant "amnesty" to all unpermitted and non-compliant billboards in the city.