I. Local Governments Continue To Restrict Outdoor Advertising

     Many local governments took steps to limit outdoor advertising in 2001 by considering proposals to restrict sign spacing and location, prohibit signs along roads designated as scenic corridors, limit nighttime illumination of signs, and impose moratoria on new sign construction.  Despite this growing trend, some cities rejected proposals to enact more stringent outdoor advertising laws.  Although the U.S. Supreme Court handed down a major victory for commercial speech this year, lower court decisions continued to have mixed results.

     A number of localities passed ordinances restricting the spacing and location of new and existing signs in 2001.  Perhaps the most prominent was New York City, which amended its zoning regulations in March to limit sign size and illumination and to impose sign projection limitations.  The amendments restrict sign size to 1,200 square feet in manufacturing areas, and cap the size of non-advertising signs within 200 feet of highways and parks at 500 square feet.  Owners have three years to comply.  

     The amendments have already withstood judicial challenge.  In Infinity Outdoor v. City of New York, 226 N.Y.L.J. 30 (Oct. 18, 2001), a federal district court judge relied on the Supreme Court’s opinion in Metromedia v. City of San Diego, 453 U.S. 490 (1981), to find that the regulations comply with the First Amendment.  The court also rejected equal protection, due process, and Eighth Amendment challenges.  Other spacing and location restrictions passed in 2001 include the following:

     Auburn, Ga., enacted an ordinance regulating billboards and a variety of other signs including temporary, illuminated, door banner, and electronic.  The ordinance limits the height, width, and location of signs, and carries fines up to $1,000.  No permits are required for existing signs but permits are required for new signs exceeding six square feet.

     In Illinois, the Springfield city council approved a provision requiring billboard companies to remove four billboards for every new sign erected.  The ordinance also limits the square footage of new signs to 175 square feet.

     Wentzville, Mo., approved an ordinance that requires billboards to be built within the first 100 feet of a right-of-way and prohibits them from being placed closer than 2,000 feet to one another.  The ordinance also prohibits billboards from being located within 90 feet of a roofed structure, and limits sign size to 20 feet wide and 50 feet long. 

     Malta, in upstate New York, limited the location of billboards to no more than 100 feet from either side of a specified portion of Route 9, capped total sign size at 40 square feet, and limited sign height to 10 feet.  The ordinance also provides that each sign may have no more than two faces and prohibits illumination. 

     Milwaukee enacted new restrictions on the height, size, location, and distance required between billboards.  The new ordinance will reduce the size of billboards in industrial areas from 1,400 to 672 square feet.  Signs that exceed the square footage limit may still be erected if the billboard applicant obtains a variance from the Milwaukee Board of Zoning Appeals.

     In Florida, Governor Jeb Bush vetoed a bill that, among other provisions, would have restricted the power of county and city officials to regulate billboards.

     Another form of outdoor advertising regulation involves limiting the placement of billboards along scenic corridors.  A number of counties and cities have imposed such limits.  For instance, Harrison County, Miss., passed an ordinance that severely limits billboard placement along most county roads, capping their total size at 300 square feet and their height at 30 feet.  The ordinance also requires new billboards to be set back 75 feet from road rights-of-way and neighboring property lines. 

     Likewise, the City of Lackawanna in upstate New York rejected a proposal that would have “segmented” Route 5, a road currently classified as a “seaway trail.”  Segmentation would have removed a portion of the road from the Seaway Trail/National Scenic Byways Program and thus permitted the erection of billboards. 

     “Dark sky” ordinances, which ban certain outdoor lights or limit the hours of illumination, have been considered by a number of localities.  Cities debating such ordinances include Calabasas, Calif.; St. Tammany Parish, La.; and East Mountains, N.M.

     Finally, several cities have implemented moratoria on new billboard construction while their governments decide on restrictions.  Many of these provisions are summarized below:

     In Florida, the Seminole County Commission in May 2001 approved a six-month moratorium on the construction of signs, prohibiting the construction of new billboards and preventing most signs that are removed from being replaced. 

     Officials in Pinellas County, Fla., have proposed to settle their legal battles with billboard companies over billboard removal, agreeing to a voluntary removal schedule.  The plan would require the gradual removal of billboards in certain areas in exchange for the right to replace or build new billboards on certain major highways.

     In November 2001, lawmakers in Lombard, Ill., passed an ordinance that will eliminate billboards from the community within seven years.  Billboard companies have promised to challenge the ordinance in court. 

     Hartford County, Md., imposed a moratorium on new billboard requests effective Oct. 1, 2001.  In December, Hartford County introduced legislation to limit the construction of new billboards. 

     Euless, Tex., imposed a 60-day moratorium on billboard construction while considering whether to pass an ordinance limiting pole signs along the city’s Main Street.  Euless eventually decided to prohibit new pole signs and to require business owners to advertise only on monument signs, which are typically constructed of stone, brick, or concrete.

     A number of other localities considered sign limits and either rejected restrictions or declined to take action in 2001.  For instance, the Missouri legislature debated -- and rejected -- a bill that would have required future billboards to be spaced at least 1,000 feet apart, required companies to tear down two existing billboards for each new one erected, and increased fees for both building permits and inspections.  The bill, which was approved by the Missouri Senate, was defeated by the Missouri House Transportation Committee. 

     But the battle in Missouri is not over.  A Missouri senator has reintroduced a portion of the bill that would increase fees for building permits and inspections, while another bill to reduce the number of billboards is expected.  Other billboard-restrictive ordinances that have been rejected include the following:

     Lawmakers in Los Angeles considered, but did not decide, whether to end an under-enforced ban on freeway billboards.  Outdoor advertising companies proposed to remove many billboards elsewhere in the city in exchange for the right to erect legal billboards along the freeways.

     In Florida, the Miami City Commission rejected a proposal that would have allowed more billboards in the city’s downtown/business district.  The commission then considered, but did not take action on, a proposal to remove hundreds of billboards throughout the city and along Interstate 95 that violate zoning and other ordinances. 

     Eureka, Mo., rejected an ordinance that would have outlawed pole signs along Interstate 44 and required new business signs to be at ground level.  Instead, the new ordinance merely limits the height of pole signs to 25 feet.

     The New Mexico legislature considered, and rejected, a bid to outlaw future billboards in the state.  Proponents of the measure vow that they will continue their fight when the legislature reconvenes in 2003.

     High Point, N.C., has allowed a limited number of billboards on high-traffic interstates.  The High Point ordinance restricts the placement of billboards to property that has been zoned “heavy industrial” and requires 2,000 feet between billboards. 

     After spending most of 2001 debating the fate of existing billboards, commissioners in Spokane County, Wash., scheduled a public vote on the issue in 2002.  The public will vote on whether new billboards should be permitted and whether existing signs should be removed or reduced in size.

     The Wyoming House of Representatives rejected a proposal to implement a two-year moratorium on new signs and voted down a proposal that would have required all Wyoming billboard owners -- without compensation -- to decrease the size of their billboards to 150 square feet by 2010.

     A number of important cases challenging ordinances that restrict speech were decided in both state and federal courts in 2001, with mixed results.

     The Supreme Court struck down, on First Amendment grounds, Massachusetts regulations banning the advertisement of cigarettes, smokeless tobacco, and cigars within 1,000 feet of schools and playgrounds.  Lorillard Tobacco Co. v. Reilly, 121 S. Ct. 2404 (2001).  (See Chapter A in this section.)  The Supreme Court’s ruling should have a significant impact throughout the country.  As this publication has noted in past years, many localities have enacted legislation prohibiting cigarette advertising on outdoor media.  Lorillard now clearly prohibits states from passing much of this legislation and may also bring into question similar regulations that prohibit the outdoor advertising of alcohol products.

     The Arizona Supreme Court has, without comment, denied review of an Arizona appellate court decision and thus upheld a 16-year-old Tucson ordinance that requires billboards to be lighted from the top.  Eller Media Co. v. City of Tucson, 7 P.3d 136 (Ariz. Ct. App. 2000), review denied (Ariz. Feb. 21, 2001).  The appellate court ruled that the Tucson ordinance did not violate the billboard company’s First Amendment, substantive due process, or equal protection rights.

     The Georgia Supreme Court upheld the City of Roswell’s one-month moratorium on billboards that the city passed after its sign ordinance was declared unconstitutional.  Roswell passed the moratorium while it drafted a sign ordinance.  The Georgia Supreme Court upheld the temporary moratorium on the ground that is was not subject to the notice and hearing requirements of Georgia’s Zoning Procedures Law.  Other Georgia cities are expected to take advantage of this recent decision while they attempt to draft constitutionally sufficient sign ordinances to replace those that have been judicially invalidated.

     Likewise, the Michigan Supreme Court upheld Holland’s zoning ordinance declaring a moratorium on new billboard construction.  Adams Outdoor Advertising v. City of Holland, 625 N.W.2d 377 (Mich. 2001).  In so doing, the court ruled that both the state and city have a right to regulate commercial speech when the medium is outdoor advertising.  While the court based its analysis on the relevant statutes and did not consider the First Amendment, it acknowledged that an ordinance that resulted in the eventual elimination of all billboards within a community would be unlawful.

     In December 2001, a Philadelphia common pleas court reversed a Philadelphia zoning board decision to permit a five-story “wall wrap” advertisement.  The judge rejected the sign company’s argument that the city’s outdoor advertising ordinance did not apply to wall wraps.  The court instead agreed with a civic group that the wall wrap, which would be more than five times larger than the size of permissible Philadelphia billboard signs, violated the Philadelphia law.

     The U.S. Court of Appeals for the Tenth Circuit reversed a district court decision and found that state regulations prohibiting most liquor advertising violated the First Amendment.  Utah Licensed Beverage Association v. Leavitt, 256 F.3d 1061 (10th Cir. 2001).  (See Chapter J in this section.)

     The U.S. Court of Appeals for the Ninth Circuit has rejected a sign applicant’s challenge to the City of Ontario’s sign regulations.  In an unpublished opinion, the Ninth Circuit rejected as moot the applicant’s facial challenge to the California city’s regulations.  Rich v. City of Ontario, No. 99-55958, 2001 WL 599228 (9th Cir. June 1, 2001), petition for cert. filed, 70 U.S.L.W. 3464 (U.S. Oct. 29, 2001) (No. 01-1004). 

    The challenge asserted that the regulations were unconstitutional because they did not contain deadlines by which sign permit decisions must be made.  The court also denied the applicant’s as-applied challenge, holding that the lack of deadlines and procedural safeguards was irrelevant here, since the city had reviewed and denied the permit applications in a timely manner.  The applicant has sought review by the Supreme Court, but a decision on that request is not expected until late March or April 2002.

     The U.S. Court of Appeals for the Eighth Circuit upheld a district court decision dismissing an advertising company’s claim that a local ordinance prohibiting all off-premises signs in commercial and industrial areas was unconstitutional.  Carpenter Outdoor Advertising Co. v. City of Fenton, 251 F.3d 686 (8th Cir. 2001).  The Eighth Circuit held that “the complaint fail[ed] to allege the elements of a claim under Metromedia,” because the challenged regulation banned both noncommercial and commercial speech.  Id. at 689.  The court also held that the advertising company had no property interest in its state permits because, under Missouri law, localities are authorized to regulate outdoor advertising in zoned commercial and industrial areas.

     In another zoning case, a federal district court in Washington State affirmed Seattle’s on-site premises regulation that requires signs to indicate the type of business being transacted on the premises or the principal goods being sold or produced there.  Onsite Advertising Service, LLC v. City of Seattle, 134 F. Supp. 2d 1210 (W.D. Wash. 2001).  The court explained that the regulation did not violate Metromedia because that case stands for the proposition that “a City can either ban all signs or ban all signs with exception of on-premise signs to advance the City’s interest in traffic safety and aesthetics.”  Id. at 1214.  The court also held that the regulations satisfied Central Hudson.

     A federal judge in New York held that a municipal ordinance regulating sign displays in a residential district did not violate the First Amendment.  Long Island Board of Realtors v. Incorporated Village of Massapequa Park, 130 F. Supp. 2d 369 (E.D.N.Y. 2001).  The ordinance requires identification signs on residential property to be placed no farther than three feet from building lines; prohibits off-site commercial advertisements on residential property; requires the submission of a picture or drawing of a sign with any application for a permit; requires the removal of real estate sale signs within 24 hours after title to a house is transferred; and limits the number of permitted non-identification signs on residential property at any given time to one.  The court, in upholding the ordinance, ruled that it satisfied Central Hudson because it materially advanced the substantial governmental interests of promoting aesthetics and safety and did not restrict more speech than necessary. 

     In developments favorable to free speech advocates, the Florida Outdoor Advertising Association has successfully challenged decisions by a number of Florida cities to deny billboard permits.  Most recently, the association won a federal district court ruling that Boynton Beach’s sign code violated the First Amendment by favoring one type of speech over others.  Boynton Beach then settled the action and allowed nine billboards to be erected.  The Florida Outdoor Advertising Association also prevailed in similar suits against Delray Beach, Deerfield Beach, and Wilton Manners.  However, its suit against Boca Raton continues.  Boca Raton recently rewrote its sign code to restrict signs by location rather than by content.

     Likewise, a federal district court judge has invalidated, on First Amendment grounds, a sign ordinance in Snellville, Ga., that prohibits off-premises advertising, signs larger than 200 square feet, and signs higher than 15 feet.  The judge ordered the city and billboard companies to negotiate the erection of roadside billboards.  Similarly, a federal district court judge has temporarily restrained the City of Cincinnati from enforcing portions of its outdoor advertising sign and zoning ordinance that restrict sign size to 32 square feet and limit the content and duration of a sign’s display.

     While the cases above involve issues of commercial speech, the Texas Court of Appeals in the Third District presided over a case involving ideological speech.  Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex. Ct. App. 2001).  The court ruled that the Texas Highway Beautification Act, which limits the location of outdoor advertising in and around areas designated as rights-of-way, was unconstitutional as enforced where it purported to prohibit an individual from erecting a billboard on his own property to engage in purely ideological speech.