Analysis of Legal and Legislative Strategies

mThe following article originally appeared in the August 1987 issue of Signs of the Times magazine.

By R. James Claus, Ph.D., Karen E. Claus, Ph.D. Donald W. Large, L.L.B.

The history of sign-control legislation shows that certain approaches are successful and produce fair regulation, which benefits the entire community. Industry representatives who utilize positive strategies have been successful in molding reasonable sign codes and defeating poorly conceived legislation. Those who ignore the successful, substantive arguments generally fail in their efforts to combat restrictive regulation. Such failure negatively impacts the sign industry in two important ways: 1) unreasonable regulation spreads among the planning community, forcing the industry into defensive litigation, and 2) adverse judicial decisions establish legal precedent which affects all subsequent litigation.

As a preview of some of the topics discussed in the forthcoming book, “Signs: Legal Actions and Land Use Planning Considerations”, this article discusses some significant cases in terms of successful and unsuccessful approaches to legislation and litigation.

Sign regulation is a form of land-use control that’s justified under a state’s police powers, and used to promote and protect public health, safety and welfare. Traditionally, all sign-control regulation was required to be directly related to public safety, health, morality, peace and quiet, law and order, and the traditional, police-power applications of the zoning process.[1] Today, aesthetic considerations are legally sufficient to justify sign-control regulations.[2] Congress underscored aesthetic considerations in the National Environmental Policy Act of 1969.[3]

When any part of the sign industry falls into legal or legislative traps, immediate negative impacts are felt throughout the industry. Not only is the impact immediate, it is often long standing and very difficult to undo. The sign industry is currently facing numerous negative influences which, if not checked, will cause deterioration and dislocation in the industry.

The following discussion will outline some of the most common legal and legislative pitfalls faced by the sign industry in sign-control regulations. An understanding of what constitutes a successful approach to sign- control litigation will encourage a productive cooperative effort between industry representatives and planners.

Common fallacies
Early in the 20th Century, the courts didn’t support sign control that wasn’t based on protection of public safety. Aesthetic considerations were considered to be matters of luxury, whereas only necessity could justify the exercise of police powers.[4] Later, courts allowed sign regulation for traffic safety, health purposes or preservation of scenery.[5] One of the common fallacies today’s industry must constantly address is that signs cause traffic accidents. This now-common assumption was allowed to develop because solid evidence wasn’t presented at court to refute this assertion. A judge can only rule on the evidence presented at court. If no evidence is presented, the court, under most circumstances, assumes that the assertion is correct and rules accordingly.

Another common fallacy frequently proposed to regulate signs is that they are a public or private nuisance. If this assertion is allowed to stand, the industry immediately has lost its case. A basic purposes of land-use planning is to protect the community from nuisances, and it is well-settled law that there is no property right in a nuisance.[6] If there has been a legislative or administrative declaration that something is a nuisance, courts give these assertions great weight and uphold the ordinance. Even uses which are in compliance with all codes can immediately be terminated if they are declared a nuisance or declared to have “nuisance-like” characteristics.[7] Although amortization is often allowed, technically, once a use is declared a nuisance, it can be abated without compensation.

When the sign industry fails to refute these contentions early in the legislative process, the reputation of the industry is harmed, often with the added expense of costly litigation to overturn restrictive legislation. This harm could be avoided if the industry demonstrates that 1) signs do not in any way harm public health or safety, and 2) signs, in fact, enhance the general political, social or economic environment of a community. When the sign industry has presented solid evidence through expert testimony of these two arguments, which are based on thorough, researched and cooperative efforts, the planning community has responded with fair legislation, and the courts have awarded just compensation in the event of a taking.

Unsuccessful approaches
For a small business, a sign can be the only affordable method of communication and advertising. For a large business, it is an integrated part of the marketing and media advertising plan. For the municipality and sign user alike. a sign can make marginal sites considerably more functional. Yet, in several cases, the sign industry made a mistake in defending signs as purely real-estate assets.

Two cases that severely harmed the sign industry were Art Neon Co. v. City and County of Denver[8] and Delorean Cadillac v. Lakewood, Ohio.[9] Both of these rulings upheld restrictive ordinances against a constitutional attack by the sign industry. The consequences of both of these cases could have been avoided. The cases epitomize the types of research and informational problems the sign industry faces in court. If expert testimony, backed by research, is not presented at court to establish the economic, social and aesthetic value of signs, assertions that signs are damaging public welfare are allowed to stand and produce negative judicial decisions. This problem arises partially because, as a relatively new industry, signs are just establishing their place in the commercial network of our society.

The above cases are contrasted with the successful case of Beaver Dam Raceway, Inc. v. Town of Beaver Dam. In this case, the sign user was able to demonstrate, through data he had collected over years of business, that his sign was vital to his business. The data was presented in a cogent format to show the actual economic effects through tables. The court held that the restriction was unreasonable because the data presented as evidence demonstrated that the business needed the sign. The economic-necessity argument outweighed the aesthetic, nuisance argument in determining real value to the community.

Nuisance v. non-conforming use
If a particular land use is determined to be a public nuisance, it will be treated harshly by city planners and in judicial rulings. If, however, the use is deemed to be a nonconforming use, and if the state enabling act protects nonconforming uses, some degree of Fifth Amendment protection is usually applicable and removal of the use would require just compensation.

Absolute proof of a sign’s contribution to society is required to establish that the land use is not a nuisance or nuisance-like activity. Art Neon and Lakewood, Ohio demonstrates the consequences of failure to adequately provide such proof. In both cases, qualified experts, such as appraisers or marketing and advertising experts, were not consulted to establish the contribution of the signs to the community. The sign industry simply assumed, erroneously, that everyone was aware of the benefits of sign advertising. In many circumstances, the social, economic and aesthetic contribution of signs may be self-evident, but in a court of law, professionals in marketing and appraising must establish the societal contribution of the sign in question and its value to the owner. The value must be well substantiated so it can’t be refuted by the state’s experts.

In Art Neon and Lakewood, Ohio, the state argued that existing signs had no ascertainable value, or, in the alternative, smaller and fewer signs would have as much advertising effectiveness; therefore, when the state demanded the taking of the signs, only a depreciated asset was lost, and amortized use was sufficient compensation. It was even suggested that taking the signs would not harm the community and would remove an ugly blight from the landscape.

All too often, the reaction from the sign industry to these negative statements is either anger or disbelief.

In Art Neon, some of the sign owners acted as if their personal honor and integrity had been insulted by the derogatory statements made by city planners. They did not realize that courts must negatively respond to any use which is classified as hazardous or a nuisance if the use is not proven to be otherwise. Because police powers were invoked, the sign industry had the burden of proof to demonstrate the positive economic, social and environmental contributions of signs. The plaintiffs in Art Neon simply assumed that if somebody paid for the sign, it must have value. That assumption is not valid in court, as the value of the sign must be traced to hard economic values and assets which enhance the community.

Successful approaches
Some of the most beneficial judicial rulings for the sign industry were obtained by people who were not defending the industry, but were asserting their right to communicate to potential voters or customers.

A strong argument presented in Metromedia v. San Diego[10] said billboards are a method of communication and therefore are protected by the First Amendment. The U.S. Supreme Court agreed, and ruled that the ordinance was invalid on its face because it forbade not only commercial speech, but also non-commercial speech protected by the First Amendment. Content regulation was impermissable. The Court rejected San Diego’s assertion that the ordinance was a reasonable time, place and manner restriction because non-commercial speech alternatives were insufficient, inappropriate or prohibitively expensive. Consequently, urban planners were forced to re-evaluate the regulation of commercial free speech as a whole. Once freedom of speech was considered, the industry had only to deal with time, place and manner restrictions.[11]

Since Metromedia, the sign industry has been viewed as one of many communication media available. With that perspective, the courts place more of a burden on the state in their efforts to restrict the avenues of communications.

Baldwin v. Redwood City[12] is another First Amendment protection case. The court determined that signs were a means of political expression and were vital to a pluralistic society. Once signs become a free-speech issue, states have difficulty carrying the burden of proof necessary to support a total ban of the medium.

Metromedia helped and hurt the sign industry. In applying the four-part Central Hudson test[13] the Court questioned if the ordinance directly advanced the city’s interests in traffic safety and visual appearance. The Court did not disagree with the “accumulated, common-sense judgments” of local lawmakers and the many reviewing courts that billboards were a hazard to traffic safety.[14] This “common-sense judgment” that has greatly influenced the law of the land has never been objectively refuted, even though there were early studies that could have been built upon.[15]

The industry should have vigorously refuted the traffic-safety argument because it invokes traditional police-power action. Like the nuisance argument, this justification, if asserted and not refuted by hard evidence, will lead to certain judicial support for restrictive sign regulations.

Metromedia also established that the legal issues pertaining to outdoor-advertising billboards can’t be examined in isolation of other sign regulation. The regulatory pattern under which a state seeks to control billboards or on-premise signs must be evaluated for the regulation to stand the judicial tests. In addition, signs must be treated consistently with all land-use planning regulations within the community.

In time, the courts may want to look at how cities regulate signs within their own franchises, such as transit systems. This would include signs on the side of buses, bus shelters and in airports. If the logic presented in Metromedia is applied to future litigation, a court might analyze the regulation of advertising as a whole to determine if disparate treatment of one segment of the industry is fair. Attempts to ban billboards, when compared to regulation of other signs in terms of time, place and manner, may be found to be inherently unreasonable and unconstitutional[16].

The 1965 Highway Beautification Act: A successful federal approach
Federal legislative acts that have carried over into state law have also been significant to the sign industry. Even municipal regulations have been affected by the 1958 and 1965 Highway Acts. These federal laws have established the legitimacy of the sign industry and ascertained its economic, social, political and aesthetic value. Every time the value of signs has been studied by a federal committee or commission, these results have been confirmed.

The 1958 Act, and its legislative format as passed by 27 states, would have eventually destroyed outdoor advertising. It was substantially altered by the 1965 Highway Beautification Act. In many ways, the 1965 law is the most effective protection to the sign industry developed to date. Phil Tocker, who was the executive director of the Outdoor Advertising Assn. of America (OAAA), was instrumental in adding the concept of mandatory just compensation to the 1965 Highway Act.

The 1958 Bonus Act, which was passed during the Eisenhower Administration, regulates signs on primary and interstate highways. A bonus of ½ % was paid to states that wrote sign-control agreements at least as restrictive as the regulation proposed by the government. The 1958 Act encouraged the banning of outdoor advertising and did not specifically require compensation for signs that were removed.

During the Johnson Administration, the 1965 Highway Beautification Act was passed. The Outdoor Adv. Assn. of America (OAAA) and the Roadside Business Administration, under the direction of Chris Holverston and Dave Reedy of 3M National Adv. Co., persuaded Congress, by research and expert testimony, to reject the belief that highway signs contributed to traffic accidents. Next, they established the economic, social and political contribution of outdoor advertising, thus removing signs from the category of public nuisance. With this positive environment for signage created, a fair schedule of compensation was established.

A comparison on the state’s logic used to obtain a favorable ruling in Art Neon, with the research developed prior to the passage of the 1965 Highway Beautification Act, illustrates how different conclusions can be reached in similar legislative matters. The introduction of solid research evidence made the difference in the decision-making process.

Successful state approaches
Combined Communications Corp. under the direction of Carl Eller, pioneered positive sign legislation at the state level. In Combined Communications Corporation v. City of Denver, the procedure used by the sign industry to secure favorable treatment in the 1965 Act was followed. This defeated the misconceptions that signs were a nuisance and a traffic safety hazard, and established the value of outdoor advertising. Harry Goss, then Combined Communication’s vice president, masterminded the defense. He located and retained experts to systematically defeat every argument the city brought up to support the ban on outdoor advertising. This successful legal action was accomplished after the Federal Court had ruled against Art Neon in a similar case.

After having researched the industry so completely, Combined Communications spearheaded a drive to obtain a protective, enabling statute in Arizona. Goss, under the direction of Carl Eller, consulted experts to defeat the negative statements about the industry and to support the industry’s positive contributions. Soon after Combined Communication v. Denver, Eller and Goss realized state legislatures would need to be checked so local municipalities would not assume the right to take property without just compensation. The Arizona enabling statute was passed under their influence.[18] Goss and Eller’s positive contributions to the sign industry were in no small part due to their attempt to lay a firm evidentiary foundation that signs couldn’t be arbitrarily classified as hazards or nuisances.

State enabling acts and removing the right to take through amortization[19]
Another successful legislative effort against the taking of signs was the passage of reasonable guidelines for sign regulation in the Business and Profession Codes in the State of California.[20] The same successful pattern was followed: first, defeating the contention that signs were a public nuisance and/or a traffic safety hazard and, second, establishing the economic, social, political and environmental value of signs to the community. The Business and Profession Codes now protect both on-premise and off-premise signs, and clearly state the type of damages to be paid in case of a taking. The codes mandate compensation for those items.

Landmark cases

Baldwin v. Redwood City[21]
Baldwin v. Redwood City involved two regulations concerning the size of temporary, political-campaign signs. First, sizes that could be used on any individual lot were restricted, and the aggregate sizes of all signs used by any particular politician were limited. Secondly, there was a fee for the use of signage and a restriction on the forms utilized.

The court reasoned that freedom of political speech, as opposed to commercial freedom of speech, was a personal and civil right. Thus, the court placed the burden of proof on the state. The state asserted that signs caused traffic accidents, but failed to offer sufficient evidence to support the claim. None of the data offered supported the claim that signs are a factor in traffic accidents because they are at eye level and not placed with scientific location control. The court disallowed this argument. The court also saluted signs as being the least expensive, most effective means of communication and discussed at great length the need for freedom of expression in a pluralistic society. The logic behind the decision in favor of the sign industry in Baldwin was that restriction on signage is actually a restriction upon First Amendment rights.

The Baldwin case was won not because of brilliant pleadings, but because the significant issue was First Amendment freedom of expression and civil rights, which shifted the burden of proof to the city. The judge heard the plaintiff’s concerns, but could not rule in favor of police-power action when basic civil rights were involved, and no objective evidence was presented to support the restrictions.

Beaver Dam Raceway, Inc. v. Town of Beaver Dam[22]
Beaver Dam illustrates that market research to establish value provides a solid defense for the sign industry. The town wanted to remove a particular sign and agreed in writing to reissue a sign permit after the owner of the Beaver Dam Raceway completed certain improvement to the entrance road. After the sign had been taken down and the improvements were made, the municipality refused to honor the agreement. The raceway owner sued to enforce the agreement.

Under the new sign code, which was passed after the original sign had been constructed, the owner would only be allowed to construct a smaller sign of less height. The new regulations were so restrictive that the new sign could not be seen from the main highway. The owner established the value of the original sign by demonstrating, with actual business records, that the income was lost as a direct result of the sign’s removal. The owner was able to show that Beaver Dam Raceway’s dominant consumer was the traveling impulse exiting off the freeway. The sign was Beaver Dam Raceway’s only effective means of reaching the people. The court summed it up this way: “The lack of a sign in this case causes the court to think of the construction of a huge library, filled with very valuable books, but with the library building having no doors or windows . . . “[23]

Linmark Associates, Inc. v. Township of Willingboro et. al. [24]
Linmark was a Supreme Court case in which a town in New Jersey was concerned that signs, particularly real-estate signs, might change the racial mix in the town. The inhabitants were worried that a display of  “for sale” signs would encourage “white flight” in a racially mixed neighborhood. Using its police powers, the city banned real-estate signs. In Linmark, not only the sign industry, but also various real-estate interests, came forward to oppose the ban.

The essence of this case was whether preventing the flow of information offered by the real-estate signs was a legitimate use of police powers. The court held, although total freedom of speech may not be perfectly desirable, the alternative of not having information available was worse.

The actual question was not if the banning would be judicially prevented. The issue was whether such restrictions on use options would withstand a properly directed legal test. It was found that a seller’s marketing strategies can be severely curtailed by extensive limitations such as the size of a sign. In Linmark, the merits of signs were clearly established, again by data supplied by expert witnesses.

It recognized that freedom of commercial communication may be restricted, but one particular medium cannot be singled out for discriminatory treatment. Similar time, place and manner restrictions must be placed on other methods of commercial communication.

City of Scottsdale v. Eller Outdoor Adv. Co. of Arizona[25]
In an urban renewal project, the City of Scottsdale purchased a piece of downtown property that included six outdoor advertising faces. Under the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970 [26], Scottsdale was required to pay compensation for the outdoor-advertising structures. Scottsdale first attempted to restrict and eventually remove Eller Outdoor Adv. from its jurisdiction to avoid paying just compensation.

The mass-media value of outdoor advertising rests with its locational and network characteristics. Because outdoor advertising locates its structures on the travel routes of its audience, exclusion from a segment of a metropolitan area reduces the competitive position of outdoor advertising against other mass media, such as radio, television and newspaper, which do have access to that area. Therefore, merely computing the income generated by each individual billboard is not sufficient to compensate for what had been lost.

Eller brought in a well-known and reputable appraiser, who pointed out that signs were not sold one at a time, but in a network or “showing” in order to gain comprehensive market coverage.

The question in the Scottsdale case was what impact the taking would have on the Eller billboard plant in terms of total distribution. If Scottsdale had not enacted a restrictive sign code, the question of total impact probably would not have been entertained by the court. The banning of replacement signs within Scottsdale made a severe economic impact on the remaining billboard network in the Phoenix area. Eller was able to demonstrate this impact through research and hard evidence.

Although the Arizona enabling statute specifically disallowed severance damages, the court allowed other damages to effectively compensate. The evidence helped the court recognize that loss of competitive position in a highly competitive market would translate to loss of income when any segment of media coverage to a particular area is eliminated. With proper expert appraising and testimony, Eller was able to successfully convince the court that just compensation was due.[27]

Recap of successful strategies

1) The value of signs must be re-established in each case.

In each case, the sign industry has to face the same negative statements and conclusively establish the same positive attributes. For certain types of business activities, signs may not be as valuable as they’ are to other activities. This is one reason why the urban-planning community has been continually misdirected. For instance, someone who works for City Hall may not need to advertise his functions. That is basically a monopoly situation in that, if a consumer wants the service, it is his responsibility to find it.

It is hard for most planners, who are government employees with no business-ownership experience, to realize the importance of a sign to a business. Because planners are academically trained and constantly work with codes and supporting documentation, there is an opportunity for the sign industry to present reliable substantive evidence for consideration in any planning process. Planners also operate under constitutional guidelines, so they are legally required to consider factual evidence that is presented properly.

Evidence is of crucial importance in any court case because the judicial decision is based directly on the amount and quality of the evidence presented at trial.

In each case, the worth of the signs in question must be solidly established. Normally, if the regulatory body asserts police-power rationale for an act, the burden of proof is on the sign user to prove to the court that the sign has more value to the community than it causes harm. The court must balance these issues and can’t do so without evidence.

Legally, if a state asserts a regulatory act, it is automatically presumed to be valid. From the Eleventh Amendment and the Federal Tort Claim Act, it is generally assumed that there is “no profit motive” or commercialism in a state’s activities; therefore, the state’s actions are well-intended. To prevent a state action, then, the protester carries a heavy burden of proving that the governmental act is not well-intended or is arbitrarily applied. If the sign is classed as a hazard or a nuisance, this burden becomes almost impossible.

2) Good evidence can win an appeal.

The importance of presenting good evidence and expert testimony at trial or in public hearings can’t be overemphasized. Both judicial and administrative appeal processes restrict the evidence offered in an appellate hearing to that which was offered at the first-level trial or hearing. Thus, if evidence is not presented to refute erroneous allegations early in the game, there is generally no chance to introduce it later in the process. [28]. An assertion by a regulator, which is not competently refuted in the record, will stand as truth. Such has apparently been the case with the erroneous “common knowledge” that signs cause traffic accidents.

If, on the other hand, adequate expert testimony is presented at trial or in initial hearings, there are grounds for the appellate judge to overrule decisions that don’t consider that evidence. In a recent case, the denial of a variance was held to be arbitrary and unreasonable because the zoning board had accepted the estimates of traffic flow from a competitor, and rejected the testimony of a professional engineer and planner, and had given no weight to the testimony of plaintiff’s “array of experts.”[29]

3) Worth must be re-established, even in a precedent system.

Precedent is important, but not final. The U.S. legal system is dependent on prior case law, but the case-law system, while heavily influenced by earlier decisions, allows for flexibility through general rules of procedure, which require that each case be tried on its merits. Hence, because an earlier decision may have been unfavorable, it is possible to influence subsequent decisions with new and better data. Mere reference to prior court decisions will not suffice to turn the mind of a court unless higher courts have ruled on that specific issue. If the Colorado Supreme Court has made certain statements about signs, a lower Colorado court would be loath to contradict or challenge that ruling.

Likewise, while many courts are influenced by the rulings of courts in other states, there is no force that requires the courts of one state to follow the precedent set in another state. Therefore, it is important that precedent be set in each state. Consistency is important for validating data. Certain general principles, such as that signs are not hazards or nuisances, should be clearly established on a national scale. In addition, because federal legislation has preemptive power over some state legislation, it is important to establish evidence at this level, as was done during the hearings on the Highway Beautification Act.

4) Establish a constitutional base. Fifth Amendment v. First Amendment rights.

Unless the courts have first clearly stated that a regulation is unconstitutional under the First Amendment, it is hard to apply Fifth Amendment protections. The courts are far more willing to consider a civil-rights violation than an assertion of violation of Fifth Amendment rights. In litigating a taking under the Fifth Amendment, the burden of proof clearly falls on the person trying to protect himself. If, on the other hand, free speech is an issue, the courts may assign the burden of proof to either party. The burden of proof is dependent upon the constitutional right in question. But, the state must present a higher level of proof in a constitutional case involving restrictions or takings.

Conclusion: To win, put up good evidence
The above cases reveal that, if the sign industry has lost in court, it was because the signs were declared to be a traffic safety hazard or a nuisance, or because they did not make a significant contribution to society. Negative rulings have come down because the industry did not adequately protect itself with supportive research or the expert testimony of qualified professionals, which refuted the evidence presented by their antagonists.

The cases cited above, whether in a federal court or in a state court, demonstrate how an industry as beneficial to society as the sign industry can be attacked and defeated if it fails to present proper evidence at court or in public hearings.

ATTRIBUTION

1. Euclid v. Ambler (272 U.S. 365. 47 S.Ct. 114, 71 L.Ed. 303 (1926)) established that zoning was a reasonable exercise of the police power, taking the view that law must respond to changing urban needs.

2. Berman v. Parker (348 U.S. 26. 75 S.Ct. 98, 99 L.Ed. 27 (1954)) established that the concept of public welfare included spiritual and aesthetic values and that it was a valid exercise of the police powers to determine that a community should be beautiful as well as healthy.

3. 42 U.S.C.A §§ 4321-4370

4. City of Passaic v. Paterson Bill Posting Advertising and Sign Painting Co., 72 N.J.L. 285, 62 A. 267 (Err. & App. 1905). See also Commonwealth v. Voston Advertising Co., 188 Mass. 348, 74 N.E. 601 (1905); People v. Green, 85 App. Div. 400 83 N.Y.S 460 (1903); Bryan v. Chester 212 Pa. 259, 61 A. 894 (1905).

5. St. Louis Gunning Advertising Company v. St. Louis, 235 Mo. 99 137 S.W. 929 (1911). Cf General Outdoor Advertising Co. v. Indianapolis, Dept. Parks, 202 Ind. 85, 172 N.E. 309 (1930).

6. Mugler v. State of Kansas, 123 U.S. 623 at 668-669.

7. Livingston Rock and Gravel v. County of Los Angeles (43 Cal. 2d 121, 272 P.2d 4 (1954) set precedent for preexisting uses. Consolidated Rock Products Co. v. Los Angeles (57 Cal 2d 515, 20 Cal. Rptr. 638, 370 P.2d 342 (1962) Appeal dismissed 371 U.S. 36, 83 S.Ct. 145, 9 L.Ed. 2d 112 (1962)) set precedent for prohibition of future uses.

8. 488 F.2d 188.

9. Northern Ohio Sign Contractors Association, et. al. v. City of Lakewood, Ohio, Case 84265.

10. 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).

11. See Linmark Associates. Inc. v. Township of Willingboro, 431 U.S. 85. Baldwin v. Redwood City, 540 F.2d 1. 360 (1976), and City of Scottsdale v. Eller Outdoor Advertising Company of Arizona, 119 Ariz. 86 (App).

12. 540 F.2d 1320 (9th Cir 1976).

13. Central Hudson Gas and Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The four-part test is: (1) First Amendment protects commercial speech only if it concerns lawful activity and is not misleading; (2) a restriction on commercial speech is valid only if it seeks to implement a substantial government interest; and (3) directly advances that interest; and (4) reached no further than necessary to accomplish a given objective.

14. Metromedia. Inc. v. San Diego,. 453 U.S. 490, 509, 101 S.Ct. 2882, 2893, L.Ed. 2d 800 (1981), on remand 32 Cal. 3d 180, 185 Cal. Rptr. 260, 649 P.2d 902 (1982).

15. J.A. Cirillo, S.K. Dietz, and R.L. Beatty, Analysis and Modeling of Relationships Between Accidents and the Geometric and Traffic Characteristics of the Interstate System, Washington, D.C.: U.S. Government Printing Office, 1969.

16. Urban planners often claim that they are regulating outdoor advertising because it causes traffic accidents. At the same time, they allow and encourage advertising on bus shelters, bus benches and taxs which at eye level and often block vision. These are encouraged because they increase the income of city franchises.

l7. 542 P.2d 79.

18. “Damages resulting from any taking of property in eminent domain shall be ascertained in the manner provided by law. … nonconforming outdoor advertising shall not be required to be removed until federal funds for the federal share of compensation therefore as required by such federal law have been made available to the department.” (Ariz. Rev. Stats. § 28-2105).

19. Amoritzation is the allowance of continued use for a specified but limited period of time, in place of removal coupled with compensation in the form of money.

20. West’s Ann. Cal. Bus. & Prof. Code §§ 5200-5325.

21. 540 F.2d 1320 (9th Cir. 1976).

22. Civil Decision of Dodge, Memorandum Decision, File 9205.

23. Beaver Dam Raceway.

24. 431 U.S. 85

25. 119 Ariz. 86 (App.)

26. 43 U.S.C. § 4601. et. seq. (1970).

27. As a penalty for such disregard of the 1970 Act, the City of Scottsdale lost federal urban-renewal funds.

28. See, for example, Marion County Board of Zoning Appeals v. Sheffer & Clark, Inc., 139 Ind. App. 451, 220 N.E. 3d 543 (1966), where negative testimony by a real-estate agent not refuted at the board hearing was the basis for upholding denial of a variance at subsequent appeals.

Dr. R. James Claus is an internationally known, urban land economist and legislative consultant. He has authored numerous books, including government and industry funded studies of retail site location models, planning, commercial signage and the fruit and vegetable canning industry of California. As a consultant, he has written numerous municipal sign codes and has served as an expert witness in the areas of signage, code writing and various forms of evaluation.

Dr. Karen E. Claus is Visiting Professor of Health Policy at Oregon Health Sciences University, an educational-industrial psychologist and a law student at Northwestern School of Law, Lewis and Clark College. She has written extensively in the fields of decision making, power and influence, leadership and commercial signage. She has been a member of the US Small Business Institute and has lectured industry groups on signage effectiveness. She is presently doing research on valuation and takings in the areas of the urban land use regulations of signage and irrigated agriculture.

Professor Donald W. Large teaches in the areas of property, land use, mineral and natural resources and water law at Northwestern School of Law, Lewis and Clark College. He has won numerous teaching awards, including Teacher of the Year from the Wisconsin Student Bar Assn. His publications in the areas of real property law and water law include studies funded by the Environmental Protection Agency on the application of wastewater and state water law. He is presently conducting research on the Takings Clause and real property valuation.

 

Photo by Malte Baumann on Unsplash

Posted in 1st Ammendment / Freedom of Speech, Amoritzation, Blog: Rhetorical, Outdoor Advertising, Research, Sign Codes, Signs' Advertising Value, Supreme Court, Traffic Safety, Universities.