Zoning Practice — May 2008

Ask the Author

Here are reader questions answered by Marya Morris, AICP, author of the April 2008 Zoning Practice article "Looking Ahead: Regulating Digital Signs and Billboards."

Question from Wyatt McGhee, Upper Council Plain Coastal Governments, Wilson, North: Carolina

Do you have any examples of standards for brightness that have been adopted by local governments?

Answer from author Marya Morris:

Excerpted from Bloomington (Minn.) Video Display Sign Ordinance Amendment (Adopted 10/09/06).

(F) Brightness. The sign must not exceed a maximum illumination of 5000 nits (candelas per square meter) during daylight hours and a maximum illumination of 500 nits (candelas per square meter) between dusk to dawn as measured from the sign’s face at maximum brightness;

Excerpted from San Antonio, Texas, Digital Sign Code Amendment (Last updated 12/02/07).

(3) The digital sign may not display light of such intensity or brilliance to cause glare or otherwise impair the vision of the driver, or results in a nuisance to the driver.

a. Digital sign light intensity exceeding the following intensity levels (nits) constitutes “excessive intensity or brilliance.”

INTENSITY LEVELS (NITS)
Color Daytime Nighttime
Red Only 3,150 1,125
Green Only 6,300 2,250
Amber Only 4,690 1,675
Full Color 7,000 2,500

b. Prior to the issuance of a sign permit, the applicant shall provide written certification from the sign manufacturer that the light intensity has been factory pre-set not to exceed 7,000 NITS and that the intensity level is protected from end-user manipulation by password-protected software or other method as deemed appropriate by the Director.

Question from Patty Zaricor, Planner, Maricopa County, Arizona:

Is there a commonly accepted definition for "sign"?

Answer from author Marya Morris:

Thank you for your question, Patty. The short answer is no, there is no commonly accepted definition for sign, but a review of such definitions in sign ordinances reveals that some are much better than others. To find out what constitutes a good definition for sign, I checked with my Duncan Associates colleague Eric Damian Kelly, a nationally recognized expert in sign law. Here's what he suggests:

Sign. Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, designs, trade names or marks or combinations thereof, by which anything is made known, such as the designation of an individual, a firm, an association, a profession, a business, a commodity, product, or idea.

A basic rule of thumb in writing any zoning definition is to NOT include anything that constitutes a regulatory standard or rule. The purpose of a definition is simply to describe an item or an action. In his research, Professor Kelly says he's come across ordinances that attempt to define what constitutes a sign based on whether the item is visible from the public right of way or private property. This is an example of problematic meshing of a standard with a definition in that is "essentially carving exemptions out of the definition. I prefer to have an explicit exemption for signs that are not "legible" from public ways or property or from private property other than that on which the sign is located. Here is Kelly's related definition of legibility:

Legible. As related to signs, means that a message can be comprehended by a person with eyesight adequate to obtain a current [APPLICABLE STATE] driver's license standing in the public way or other location from which legibility is to be determined. Where such facts are material, it shall be presumed that the observation takes place in daylight hours, and that the person making the observation is standing and is between 5 feet 2 inches and 6 feet tall.

And Professor Kelly recognizes that the issue of signs on moving vehicles is one of the major reasons sign codes need to have a firm definition of sign in the first place. He describes his approach to this issue in this way: "We typically deal with whether a vehicle is a sign under the definition of 'portable' signs:"

Portable sign. Any sign not permanently attached to the ground or other permanent structure or a sign designed to be transported, including, but not limited to, signs designed to be transported by means of wheels; signs made as A-frames or T-frames; menu and sandwich board signs; balloons used as signs; umbrellas used for commercial messages; and signs attached to or painted on vehicles parked and visible from the public right-of-way, unless said vehicle is used in the normal day-to-day operations of the business.

Question from a Planning Director in Idaho:

Our city is thinking of banning (or freezing the amount of) billboards. I can't seem to find any good articles or books on other cities' ordinances or issues. Can you guide me?

Answer from author Marya Morris:

The definitive source for information on regulating and prohibiting billboards is Scenic America (www.scenic.org). Go to their website and under "Issue Areas" click on "Billboards & Sign Control." That will take you to a page with resources for communities that want to ban billboards altogether or at least cap the total number in their community, including a model ordinance. Their site also has some excellent new resources available on digital billboards.

Question from Mark Woolard, City of Iron Mountain, Michigan:

I am a planner for a small city in Michigan and we have been working on a new sign ordinance. I believe the article stated that you cannot amortize billboards without cash compensation. I did draft language that states that if a property becomes vacant all signs, which includes billboards, must be removed (except maybe for real estate signs). We have this situation now where a factory was demolished but the billboard remains. We want the billboard to go away, but we also want any actions for this or future billboards to be on solid legal grounds. I would appreciate your thoughts on this or other ways to remove billboards — and not just on vacant land.

Answer from author Marya Morris:

Thank you for your question, Mark:

Michigan statutes authorize (or at least they do not prohibit) cities in your state to use amortization as a tool to get billboards removed. If your city has enacted a new sign ordinance that rendered some or all billboards in your jurisdiction as nonconforming, then you can devise an amortization plan and schedule for removal of those billboards over a specified period of time. I have seen amortization periods that are as short as one year and as long as 12 years. Keep in mind, however, that the matter could very well end up in litigation, even if you offer an extremely generous number of years (i.e., 12) in which they are required to be removed. In my opinion that possibility supports an argument in favor of a shorter amortization period (e.g., five to eight years) recognizing that the billboards most likely won't come down without an effort on the owner or industry's part to forestall the amortization process.

Cash compensation to remove billboards is required for the removal of any billboard that appears along an Interstate highway or next to a roadway that was paid for with federal money. This requirement was brought about by a loophole inserted in 1978 to the Federal Highway Beautification Act of 1965. Since that time, the billboard industry has lobbied successfully in some states to require cash compensation for all billboards, although in your case Michigan isn't one of those states.

Regarding billboards on vacant properties, my opinion is that your best bet is to use the standard channels of sign code enforcement to get them removed, that is, declaring them abandoned or declaring their permit to have lapsed. You should amend your ordinance to define what constitutes an "abandoned" billboard and also to list remedies the city intends to pursue in the event that a billboard permit lapses. In the definition of "abandoned billboard," that I have included below, the operative clause is "for which no legal owner can be found." Where a billboard sits on a vacant parcel it could be very difficult to identify the owner, who very often would be some entity other than the business that occupied the property prior to it becoming vacant. The city would need to make a good faith effort to find the owner prior to declaring the sign abandoned. One way to do this is to require in your ordinance that the billboard's owner or his or her agent's name and contact information be affixed on a metal stamp or other weatherproof material to the sign pole at a height that is viewable by a person of average height.

I have excerpted code provisions below that you may want to consider adding to your ordinance.

a. Abandoned Billboard
A billboard which has carried no message for more than 180 days or which no longer identifies a bona fide business, lessor, service, owner, product, or activity, date or time of past event, and/or for which no legal owner can be found. The definition shall also include any billboard structure which no longer supports the billboard for which it was designed.

h. Lapses of Billboard Permit:
A billboard permit shall lapse if the billboard is an abandoned billboard, or if the permittee's business license lapses, is revoked, or is not renewed. A billboard permit shall lapse if the use of the billboard is discontinued for a period of [180] days or more. A billboard that was constructed or maintained in conformance with a permit under this ordinance, but for which the permit has lapsed, shall be in violation of the ordinance and will be removed by the city, at the expense of the owner.

Because billboard laws vary by state, I strongly recommend you have your city attorney review any proposed changes to the sign and billboard ordinance that I have described here.

Question from Kerry M. Ruberg, Planner, City of Delaware, Ohio:

I realize your forum concerns digital and billboard signage; however, I was wondering if you have any experience with wayfinding signage. The city I am employed by is currently in the planning stages of a wayfinding system to assist residents and visitors of our quickly growing municipality which is located about 25 miles from Columbus, Ohio, and is home to approximately 35,000 people. The city has a historic downtown (which will be the focal point of the wayfinding project), and downtown parking is also a primary issue in the scope of this project. If you have any advice to offer or can point me in the right direction of knowledgeable people, literature, examples, etc., I (and the City of Delaware) would greatly appreciate it!

Answer from author Marya Morris:

A wayfinding signage system is the perfect tool to use in your city's historic district, particularly because the city is growing, which means people will be visiting from outside the area who will need signs and pointers to find their way to local attractions and, of course, to direct them to the ever-important parking lots and garages.

Wayfinding systems are also referred to by planners, graphic design professionals, and landscape architects as environmental graphic design systems. They use architecture and graphics to organize and communicate information to drivers and individuals about where they are and what route or path they should take to get where the want to be. Signs and markers that make up such systems system are typically thematic in terms of colors, typefaces, materials, iconic images (e.g., a silhouette of a church spire or government building, or a city symbol such as a rose or bird) method of illumination (if any), and placement.

Zoos, hospitals, educational institutions, and other major facilities and institutions are common users of environmental graphic design systems. As is planned in your city, many localities have installed environmental graphic design systems in their downtowns, historic districts, and other common destination areas such as convention centers, museum campuses, and entertainment districts to help guide people to their specific destination.

If you are interested in hiring a consultant for this project, you will find that many urban design, planning, and architecture firms also specialize in creating environmental graphic design systems. Check the consultant calling cards in the back pages of Planning magazine or visit www.segd.org, the official website of the Society for Environmental Graphic Design. If you are considering doing the project in-house, I suggest you start by taking a look at the following book that came out just last year:

Calori, Chris. Signage and Wayfinding Design: A Complete Guide to Creating Environmental Graphic Design Systems. Hoboken, N.J.: Wiley. 2007. 224 pp. (ISBN-10: 0471748919; ISBN-13: 978-0471748915).