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Tennessee's Billboard Law Needs Fixing
By Joe Sullivan
May 1, 2017

Tennessee's Billboard Act has been declared unconstitutional by a recent federal court decision. Under the terms of that decision, all of the state's billboard regulations will be rendered void, allowing new billboards to spring up willy nilly on highways throughout the state.

The good news is that the state Legislature can readily amend the statute to solve the constitutional problem and keep the state's regulation of commercial signage virtually intact.

The bad news is that the Legislature is on the verge of adjourning for the year without having lifted a finger to do so. Sen. Richard Briggs, who serves on the Senate Transportation Committee, says that, "We were told by the lawyers involved that we didn't need to legislate." A spokesman for the state Attorney General's Office, which is known to be handling the matter, will only say, "The litigation is still pending. Both sides have been requested to submit briefs regarding possible remedies."

In fact, Federal District Judge Jon McCalla has already ruled that, "The Court finds the Billboard Act is an unconstitutional, content-based regulation of speech." In a footnote to his decision, he opined that "if it were clear from the face of the statute" that the provisions he found unconstitutional could be "severed" from the rest of the act then he could let "constitutional provisions stay in effect." But he concluded that, "The Court, however, is unpersuaded that the Billboard Act, as written, is severable in this manner."

In a brief submitted May 3, Tennessee Attorney General Herbert Slatery is now trying to persuade McCalla otherwise. He argues that, "It is apparent from the face of the Billboard Act that the General Assembly would have enacted the statute even if the provisions found by the Court to be content-based regulations [were eliminated]....The General Assembly no doubt would have preferred some billboard regulation to none."

In Texas, by contrast, after its billboard act was struck down on virtually identical grounds last fall, the Legislature has moved promptly to enact a bill to fix the defects. While the state is also making an appeal, the bill's sponsor, Sen. Kirk Watson of Austin, advised his colleagues that, "I think we are very unlikely to win on appeal."

Since nearly all state billboard acts are patterned after the 1965 federal Highway Beautification Act, it's hard to fathom at first blush why they are only getting invalidated in court now. The impetus for the court intrusion was a 2015 U.S. Supreme Court decision striking down a sign ordinance in an Arizona town that set differing standards for political, religious, and other noncommercial signs. The court ruled that these represented what have come to be called "content-based" regulations that unconstitutionally infringed upon free speech.

Neither that decision, nor any other, cast doubt upon state laws that set standards for highway billboards including their spacing, size, and lighting and that require a permit. These have long been justified on grounds that highway safety and aesthetic considerations can trump commercial free speech as long as the regulations are "content neutral."

The decision that struck down the Tennessee law on April 3 involved, almost ironically, the one category of highway signage that is exempt from regulation: namely, "on premise" signs on property advertising either (1) that the property is for sale or lease or (2) activities conducted on the property.

A Memphis provocateur who had been feuding with TDOT for years erected a billboard on his property displaying only an American flag. When TDOT ordered it to be torn down because it didn't meet the criteria for exemption, he sued. In McCalla's decision striking down the law, he ruled that these criteria were content-based and therefore verboten.

In a bit of a tutorial on the way the First Amendment has evolved, McCalla went on to explain that, "Not all speech is equally protected. The degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or non-commercial speech.... The government may impose stricter regulations on commercial speech than on non-commercial speech."

Because the sign in question was plainly non-commercial, its prohibition failed to withstand the "strict scrutiny" and "compelling state interest" tests required to justify such action, McCalla ruled.

In the aftermath of the decision, a lawyer who has represented numerous scenic organizations with an interest in the case wrote Gov. Bill Haslam and Attorney General Slatery urging immediate enactment of a severability clause as a "no-brainer." The Jacksonville-based specialist in billboard law, William Brinton, also offered two amendments to the Tennessee statute that he believed would solve the problem altogether.

The fix that most appeals to me is one adopted by the city of Indianapolis after its sign ordinance was struck down in 2015 on highly similar grounds. The city added a provision to the ordinance stating with elegant simplicity that "Noncommercial messages may be displayed on any sign authorized to display commercial messages." The amended ordinance has been upheld by an Indiana federal district court.

In his brief, Slatery actually invites McCalla to make a "determination" that the offending sections of the Billboard Act "violate the First Amendment of the U.S. Constitution as applied to signs displaying non-commercial speech." But Brinton continues to believe that a legislative remedy would be more conclusive and less problematic. There's no telling when or how McCalla will rule on the matter.
 
Pocatello City Council Votes "No" to Digital Billboard
By Jason Borba
May 4, 2017
 
Pocatello's City Council cast their votes Thursday on whether a digital billboard should be placed near the intersection of Jefferson Avenue and Alameda Road.
 
After much debate the city council voted 4 to 2 against the digital billboard.
 
"I'm pretty ecstatic," said Joshua Moon, against billboard. "I was pretty nervous in there but I'm happy with the outcome."
 
The 35 foot tall sign received strong opposition from local residents.
 
The billboard would have been digital on one side and static on the other. The digital side would have been visible to those driving on Pocatello Creek Road.
 
Those opposed to it believed the light would be to bright, distract drivers near a busy intersection, and they were concerned the billboard would decrease the value of their homes.
 
After much debate the city council voted 4 to 2 against the digital billboard.
 
"I'm disappointed that Jim Johnston voted no and that Michael Orr voted no because if they had to live with that light in their backyard they would also be opposed to it," said Dan Marley, against billboard.
 
The billboard was being proposed by Jeeves Ads and was going to be placed on a commercial zone according to the city.
 
The representative for Jeeves Ads declined to comment on the council's decision, but during the meeting, he said they would dim the billboard and even turn it off at 11 PM if the sign was approved. 
 
Top Take-Away from Billboard Regulators' Conference
By Staff Writer
May 9, 2017
 
INDIANAPOLIS - Billboard regulators want more information on benefits of relocating signs and also learned how to measure light from digital billboards during their annual meeting.
 
Regulators convened in Indianapolis April 30-May 4 under the auspices of the National Alliance of State Highway Beautification Agencies (NAHBA).
 
State officials are seeking federal funds to research time and money savings from relocating billboards in lieu of condemnation.
 
On May 1, regulators saw a new video produced by the Outdoor Advertising Association of America (OAAA) that explains how to measure light from digital billboards.  That video is shown below.
 
 
Brooks Glasnapp of Iowa Department of Transportation said: "exactly what we wanted; a step-by-step tutorial . . . Excellent presentation and good follow-up discussion.
 
A growing number of state and local jurisdictions have adopted the industry's lighting standard for digital billboards, 0.3 foot candles above surrounding light conditions (click here for industry standard).
 
Meanwhile, states are fighting to preserve billboard regulations facing constitutional challenges.  Courts in Texas and Tennessee have invalidated billboard controls as unconstitutional restraint of free speech.
 
Both states are pursuing appeals, to the Texas Supreme Court and the US Sixth Circuit Court of Appeals, which includes Tennessee.
 
In an uncommon alignment, the billboard industry, states, and Scenic America agree that regulation of billboards is preferable to no regulation, or chaos.
 
At the regulators' conference, Scenic America was represented by attorney Bill Brinton of Jacksonville, FL, who spoke via a pre-taped video.  Longtime OAAA counsel Eric Rubin spoke on behalf of the industry.
 
Constitutional challenges to billboard controls are driven by a 2015 US Supreme Court ruling that said sign regulation should not be based on content (Reed v Town of Gilbert, AZ).
 
Since the Reed ruling two years ago, some courts have upheld sign regulation.  It will take years to resolve free speech issues raised by Reed, predict attorneys for stakeholders.
 
Insider will continue to report the latest developments on fallout from the Reed case.
 
Auburn Town Meeting Rejects Electronic Billboards Bylaw
By Michael Bailey
May 2, 2017
 
AUBURN - Voters at the annual town meeting Tuesday night defeated a zoning amendment that would have allowed the installation of two electronic billboards near the Auburn Mall.
 
The only article to be defeated, Article 27 sought to amend Regional Mall Overlay District zoning bylaws in order to clear the way for the installation of two electronic billboards near the Auburn Mall.
 
The proposal, which would have laid the groundwork for Total Outdoor Advertising to install and operate two double-sided digital billboards overlooking the Massachusetts Turnpike, had previously received the unanimous support of the Board of Selectmen, the Planning Board and the Finance Committee. But it failed to win over voters, who worried the billboards would create an eyesore, present a possible risk to drivers on the turnpike and open the door for similar billboards throughout town.
 
In rejecting the bylaw change, voters also effectively turned down a $1 million "voluntary donation" that Total Outdoor Advertising planned to make to the town when the billboards went up. The company had planned to pay the donation over a 20-year period, and the selectmen had tentatively earmarked the money for use on the Drury Square revitalization project.
 
The article was rejected in a 47-33 vote, falling short of the two-thirds approval necessary to pass the measure.
 
The other major item on the warrant asked voters to instate an 18-month moratorium on the establishment of retail marijuana dispensaries, which voters passed 71-3. The purpose of the moratorium is to grant town officials time to develop zoning bylaws dictating where in town such businesses could set up, and the process for permitting them.
 
Possession and cultivation of marijuana for personal use is not affected by the moratorium.
 
However, the moratorium could become a moot point, depending on the outcome of a question on the May 16 town election ballot, which asks voters whether they wish to ban retail marijuana establishments in Auburn. Other towns are considering similar measures as part of their spring town elections.
 
The state law passed by voters in November allows for the possession, use and sale of marijuana for recreational purposes, but language in the new law also allows individual municipalities to opt out of the retail sales provision.
 
Voters also approved reducing the interest rate on property tax hardship deferrals from 8 percent for residents and 5 percent for senior citizens to 4 percent; reducing the eligibility age for a senior citizen tax exemption from 68 to 67, and increasing the gross receipts limit to $30,000 for a married couple and $50,000 for whole estates; reducing the residency requirement for disabled veterans seeking an exemption or abatement from five years to one year; and offering a tax exemption of 50 percent on real and personal property to National Guard personnel, both active duty and reservists, who have been deployed overseas.
 
The town's fiscal 2018 budget of $63.95 million, a 3.29 percent increase over fiscal 2017, passed unanimously. This included the School Department's $24.98 million budget, a 4.5 percent increase over fiscal 2017.
 
In all, it took voters a little more than three hours to dispense with the annual town meeting warrant. By the time town meeting wrapped up around 10:30 p.m., voters had approved 33 of the 35 articles on the warrant, many of them unanimously and without any discussion. Article 15, a request to establish a special education reserve fund for the schools, was postponed indefinitely.

The PPA Wants to Put Billboards in Neighborhood Lots - and Neighbors Aren't Happy 
By Claire Sasko
May 9, 2017
 
More than 600 residents have signed a petition raised by 5th Square, an urbanist political action committee.
 
The Philadelphia Parking Authority wants to install 45 billboards in neighborhood parking lots - but community members and activists aren't happy with the plans.
 
More than 600 people have publicly opposed the billboards through a petition introduced by 5th Square, an urbanist political action committee that aims to achieve "better transportation, land use and public space for the people," according to its website. 
 
PlanPhilly reports that the PPA earned $60,000 in 2017 through 14 billboards posted in four of its Center City garages. By adding at least 14 signs in six other neighborhoods (the first phase of its plan), the organization is reportedly expecting to bring in an additional $140,000 per year. Those neighborhoods are East Passyunk, Passyunk Square, Bella Vista, Old City, Washington Square West, Chinatown and Spring Garden/Fairmount.
 
But 5th Square took issue with where the money would go - reportedly the agency's Off-Street Operations Department, which would help to maintain the parking lots.
 
"Worst of all, $0 of this billboard cash cow will go to the School District," the PAC's petition reads. "It's all going into the PPA's slush fund."
 
Earlier this year, the Art Commission halted the rollout of the billboards, which are part of a 2015 agreement between the PPA and Bayberry Media company.
 
The PPA contends that it's allowed to advertise on public property (thanks to a municipal sign ordinance passed a few years ago by City Council President Darrell Clarke). But 5th Square and petition-signers are frustrated that little detail has been provided regarding the proposed billboards.
One neighbor has appealed the Department of Licenses and Inspections permit that would permit the billboards.