An article from the United States Sign Council about zoning issues related to electronic message centers. Article highlights discrepancies in local signage zoning. The article discusses reasoning for bans and possible resolutions:
One year ago in this space, I wrote an article about Electronic Message Centers, and offered some thoughts on how Members could handle their applications for EMCs at the local and County level. USSC had received countless questions about EMCS in 2005, and it was the #1 topic in terms of Zoning requests. Once again, in 2006, the number one Zoning issue raised by Members when they contact USSC is “Electronic Signs”. The following will serve as an update and supplement to last year’s column, particularly since many of these points bear repeating and further discussion.
Many Member questions have at their core the issues of EMC Signs and Traffic Safety. Towns are having difficulty grappling with the legal and political issues created by EMCs, and they often react to local pressures or vocal activists by simply attempting to make EMC signs “go away”. The technology, of course, is not going away, and all research to date has demonstrated that EMCs are safe, and our Customers want access to these types of signs.
USSC has repeatedly suggested that EMC Manufacturers would go a long way toward addressing many of these local objections and issues if they engaged in further research on EMC signs and their relation to Traffic conditions and Traffic safety. We have found, regrettably, that it is hard to help people (or manufacturers) to help themselves, when they don’t want the help.
Many reasons are suggested or implied by EMC Manufacturers when the questions of further research, and its cost, are raised: a. the Research has already been done (this is fundamentally not true); (b) the Research is not needed (it’s not needed only if you choose to ignore the pervasive problem); (c) manufacturers can’t afford it (only the manufacturers know this for sure, but based on the widespread difficulties experienced by everyone trying to get approvals for EMCs, this attitude may be “penny-wise” and “pound-foolish”); (d) Why should they pay if other manufacturers will not, but then others will get the benefit of the work (a valid question – one that USSC always asks when it funds sign research – but one that cannot impede progress in addressing larger legal concerns).
Here is a sampling of inquiries from Members regarding EMCs that we have received in the past 4 months:
- In one Municipality, a church installed an EMC pursuant to a valid sign permit; the EMC was approved by the town under a routine sign permit application. One year later, with no Code change enacted (the same Code was in effect), the church received a letter from the Municipality stating that the sign was illegal under the Code and that it had to be removed.
- In a second Municipality, a Sign Owner installed a new full color LED EMC in place of an older, existing EMC. The older EMC had been in place for over 10 years. After the Owner displayed a few frame effects, like an American Flag waving in the background of the message display, the Town Fathers suddenly had concerns over whether the sign was legal or not, and whether the Owner could continue to use his sign.
- In a third Municipality, the Town was working through the process of re-writing their entire Sign Code. Although EMCs had been installed in the Town under the old Code, the Town wanted to attempt to “ban” all EMCs, or at the very least ban Message Centers but allow Time and Temp units.
- And in yet a fourth Municipality, a Church wanted to replace its old manual Readerboard with a new full color LED EMC. The Church’s sign permit application was denied, and the Church is being forced to go to the local Zoning Board. Although many properties have EMCs that were recently installed in the Municipality, including one at the Municipal Building for the Town, the last application for an EMC before the Zoning Board was denied. And, the local Code only has generic language about sign prohibitions, and EMCs are arguably permitted by right.
What to do in your EMC Application
Always check the Code language. The Code language may actually permit EMCs, but it may have been given an “interpretation” by the Town. Often these “interpretations” not supported by the actual written Code section. The Town may want the Code to read a certain way, but if the Code is vague, or without legal definitions, or dated, you may have success in suggesting that the Code actually permits your EMC by right. For instance, if a term like “flashing signs are prohibited” is in the Code, and your EMC will not Flash, and the term “flashing” is not defined in the Code, this provision may actually permit your EMC, and/or it may be constitutionally defective.
Footnote: this also means that the Sign User must act responsibly – they cannot program the sign to flash!
What is the Basis for an EMC Ban?
The basis for most LED EMC prohibitions is unclear from the written Municipal Code itself. You have to try to figure it out, and then address the issues. Possible reasons for a “ban” are: (a) Traffic Safety and (b) Aesthetics.
EMCs and Traffic Safety
As you know, the USSC is not aware of any scientific research studies or empirical evidence that demonstrates that EMC units create or contribute to the occurrence of traffic accidents, unsafe traffic conditions or driver behavior, or have a negative impact on traffic safety. If Towns have any objective research that shows that EMCs cause accidents, we would truly like the opportunity to review this information.
USSC has many publications that you can use to support your case for EMCs and Traffic Safety, all of which were listed in the 2005 article; please contact us if you need further information.
EMCs and Aesthetics
It is likely that a complete prohibition of a form of lawful Commercial Speech cannot be supported on the basis of subjective taste or opinion in regard to sign appearance. This type of ban, if permitted, could potentially put an entire manufacturing industry out of business, based on personal aesthetic tastes.
Assuming the Code provision prohibiting EMCs is based solely on “Aesthetics”, you should ask the question: “what is the basis for the ban”? Asserting the reason for the ban is “aesthetics” is not some sort of blank check issued to the Municipality. If aesthetics is going to be used to ban a technology and affect protected Speech via a local Code provision, is there some objective basis for the aesthetic notion, and if none, how do you insert purely subjective ideas on appearance and design into what is arguably supposed to be a fair, neutral, and reasonable Code, where the meaning is intended to be found within the four corners of the document?
In fact, how do we determine aesthetic standards?
A. Who decides, and why might the opinion of some be more highly valued vs. the opinions of others?
B. Can we measure the impact of Zoning provisions that are based purely on aesthetics?
C. Do property values rise in a comparative way (vs. other towns in the region) and can you demonstrate that the implementation of the aesthetic ideal was the reason?
D. What are the objective components of “quality of life” and can you ever accurately measure them, and further compare and contrast them with the quality of life standards in other Towns (that don’t have the aesthetic prohibitions)?
E. Do people in the Town possess an improved mental state as a result of the aesthetic provision, and can that be measured in any objective, scientific way, or is it all in the realm of anecdotal reporting?
For these reasons, and others, it is likely that a complete prohibition of a form of lawful Commercial Speech and specific technology cannot be supported on the basis of subjective taste or opinion in regard to sign appearance. A ban on a technology, if permitted, based solely on aesthetics, could potentially put an entire manufacturing industry out of business, based on personal aesthetic tastes. If Towns can put an entire industry out of business based purely on aesthetics, you might suggest that a Court would look long and hard at the reasoning behind the claim of justification based on aesthetics.
Federal Legislation concerning Zoning and Churches
Members may also want to investigate the applicability of a 2000 Federal Statute titled “Religious Land Use and Institutionalized Persons Act of 2000” (RLUIPA). It reads, in part:
SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.
(a) SUBSTANTIAL BURDENS-
(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
We believe that this statute will have relevance to Churches attempting to use EMCs, and we are currently working with Members on specific cases using this new Federal statute. More information will be provided as it become available on RLUIPA and Sign Zoning. For the full text, please
contact USSC or your local attorney.