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Home My WebLink About09-10-07 Item 7D, Clear Channel ~ ~HlLLS Request for Council Action Prepared By: James Lehnhoff Dept.: ___~p'~,~~"~J!YJ?-!'!~ __n,P,'.!!~~L_____._ Council Mtg. Date: 9-10'jl.7........ ....___.... Final Action Needed By: 9-12-0.7 Agenda Item: '""------'-'-'-"n""-'-~____sudgete(fAmount:.:::~--'- ""n"~---=~_~_'nn"'::~":~:==~:::~~ Actual Amount: Funding Source: '"'"'n.'.'.'______ _._"_nn'n__'_~____'__"'_n_'______._,_ 7.0 ~~]tnpifT8~tipml:nl~y~fvmmiillMm!,~4Sklf:ll ""''''..,..,..'''.__ ",""'''''''''''0'__.__ _ _"m"'m""'''''''__....",__._ ______"_"'__'.m"'..."'.'__________","...."''''.,..,..,__________._'_"'''n_'''_'__'_______._'_''''_''n_'_'_'_____'_'_'_'__~ fMotion to overturn/aft'jrm the Plannin-g:' CommfssTon's August-i, 2007, de-nial of Clear Channel's May 21, 2007, after-the-fact sign permit! I application for the electronic billboard located in the northeast corner of the 1.35W and 1-694 intersection. i iThe motion must include findings that support the motion. c....,,, l~mft4i~q1!j_mEfg!SYL~~L~d2~~S________._,_,_"""'''_.,.,._________._...,_.......,.,.________,__,_.......,",.,,,.,.,_.__~_______.__'_""",.""..,._______n__""_'.....,.,,,_,.,.___________.._._..."'....'.'._._______.__,_,..,.,.,.,._____"__.....,_,,..._.'_, iStaff initially denied the sign permit application on June 18, 2007. The Planning Commission upheld Staff's denial based on the findings in! i Staff's denial letter to Clear Channel. i '.'.'-"----__.....''''''''''''''_________._...'''''''''''''''.._.________.._._'''''........___n____.__'''...,.''.,.,._______...'''''..,.,.,_______.._._,,,,,..,,...,.______...,...,,,,,...._____,,_,_,_,"" I Planni~~: iPTRC: , 8-1-20.0.7 i Upheld Staff's denial of the sign permit application. ,...,._------,-,."",,,._j ~lilll!!~{ttJ"~g]~j!j!l]E\ill.\1i:jt~l!!!:!l!Il!\l)~ .......______ ............___ .........._____. ........ .________.....________ i X [Memo/Letter: September 10, 2007, Memo to the City Council from James Lehnhoff iResolution No,: " "."..__:~~~:j iOrdinance No.: iEngineering Recommendation: j IAtt~~~~y--R~;;~~-;~d~t.i~~: ----.-.......'.'.j . . i X iDther: ----70:1":' Billboard Locafion Map 70-2: Letters to Clear Channel from the City 70-3: Clear Channel Sign Permit Application 70-4: Clear Channel's Appeals to the City . 70.5: City Attorney's Response to Clear Channel's Appeals : 70-6: Electronic Sign Research/Report: SRF Report to the City of Minnetonka and Scenic America Report ~ 7D-7: Draft Minutes from the August 1, 2007, Planning Commission Meeting. - __,,_.i...zQ_~:____~_~.g..~,~,~,.t~___~Q_QZ~'''~~,~Q_~__!.~.,t~,~__~_!!l~_~_i_I)_~....~9_~,~!!t~~i_~.~,,,(~t~~_(:)_~!_~J~~_~_~~~!~) , ; , ; , ; ~" .. ,1...__ None. None. Warren E. Peterson Jerome P. Filla Daniel Witt Fram Glenn A. Bergman John Michael Miller Michael T. Oberle Steven H. Bruns. Paul W. Fahning. Sonja R. Ortiz Amy K. L Schmidt Ben I. Rust Jared M. Goerlitz P~RSQ\J, FRAM BERGMAN PROFESSIONAL ASSOCIATION Suite 800 55 East Fifth Street St. Paul. MN 55101~17J8 16511291-8955 (6511228-1753 facsimile www.pfb~pa.com Direct dial # (651) 290-6915 aschmidt@pfb-pa.ccm September 6, 2007 James Lehnhoff City of Arden Hills 1245 West highway 96 Arden Hills, MN 55112-5743 Re: Constitutional claims raised by Clear Channel Dear James, Clear Channel's attorney, Marvin Liszt, sent a letter to Jerry Filla on August 15, 2007. Initially the letter was not sent to the City, but as I understand it, Mr. Liszt did recently forward a copy to you and asked that the issues he raises in that letter be added to the agenda for the Council's meeting on September 10, 2007. Specifically, his letter says, . . . this entire process raises grave concerns regarding Clear Channel's First Amendment rights. I believe that if this matter proceeds to litigation Clear Channel will be able to show that its First Amendment rights have been violated, and that the city [sic] may well have treated Clear Channel disparately in denying its permit for lighting reasons while permitting on-premise LED signs in similar zoning districts. . . In response to Mr. Liszt's assertions, I have the following comments. First, as a general rule, a city has the authority to regulate signs based on aesthetic and traffic safety concerns, and these have been held to be significant governmental interests. Metromedia v. City of San Diego, 453 U.S.490, 507-508, 101 S.Ct. 2882,69 LEd.2d 800 (1981). A. Regulation of Content. As with any other free speech/First Amendment claim, the City's regulation, here the Arden Hills sign and/or zoning ordinances, would be subjected to a higher level of scrutiny than other types of land use regulations (land use regulations are generally subject to a rational basis test, i.e., whether the regulation is a rational means to 'ALSO ADMITTED IN WISCONSIN September 6, 2007 Page 2 achieving the government's objective). If the ordinance proposes to regulate the content of a sign, then a court would apply a strict scrutiny analysis, that is, the court would determine whether the governmental regulation of speech is narrowly tailored to serve a compelling governmental interest, and is the least restrictive means for the government to serve that interest. On the other hand, if an ordinance does not propose to regulate the content of speech, then it would be subject to intermediate scrutiny, which involves a determination of whether the regulation is substantially related to a significant government interest. It is generally accepted that a city may treat on-premise signs and off-premise signs (like billboards) differently, even in the face of strict scrutiny for content-based regulation. The Arden Hills Code includes several such provisions (e.g., in its definitions of "billboard," "Sign, Off-premise," and "Sign, On-premise" 9 91210.01, subds. 1,20,21; restrictions on signs according to sign districts, 9 1240.02; Table 1; etc.). B. Equal Protection. In Mr. Liszt's letter, although he does not use the exact words, it appears that he is asserting an equal protection claim, based on what he calls disparate treatment. There are other "dynamic" signs that have been approved in the City of Arden Hills. Again, this is a complex claim and without a clearer idea of just what Mr. Liszt is asserting, it is difficult to address directly. As I understand the situation, the other signs that have been allowed in Arden Hills are on-premise signs or are otherwise permitted by the Code. Any determination of a disparate treatment claim would necessarily involve looking how the approved signs compare in size, location and other characteristics to Clear Channel's sign; per John Baker, it would also involve an analysis of whether the City's regulation burdens an off-premise sign more than an on-premise sign. Conclusion One recent case is worth noting on the content issue, and, to a lesser degree, the equal protection issue. In LaTour v. City of Fayetteville, 442 F.3d 1094 (8th Cir. 2006), reh. and reh. en banc denied (8th Cir. June 21, 2006), the Court upheld the ordinance of the City of Fayetteville, Arkansas, which prohibited any "sign which flashes, blinks, or is animated." Id. at 1095. The ordinance allowed an exception for time and temperature displays. Id. Even with this exception that arguably is content-based, the Court held that the ordinance was content-neutral, applied intermediate scrutiny, and ultimately upheld the ordinance. Id. at 1097. In Very truly yours, ;~hmidt September 6, 2007 Page 3 reaching the content-neutral conclusion, the Court also concluded that LaTour's equal protection claim failed, since it had been based on the argument that the City had applied its ordinance in a content-based manner. Id. There is no clear answer to these issues without a more fleshed-out legal claim by Clear Channel. With these general principles in mind, at this stage in the process, I think the fundamental question is what the Council feels the community standards should be and how best to apply them in this situation. Please feel free to discuss these issues further with me or Jerry. AKLS:as cc: Michelle Wolfe ~ ~HILLS MEMORANDUM DATE: September 10, 2007 CC Agenda Item 7.D TO: Mayor and City Council FROM: James Lehnhoff, City Planner SUBJECT: Clear Channel Sign Permit Application Denial Appeal Requested Action Motion to overturn/affirm the Planning Commission's August 1,2007, denial of Clear Channel's May 21,2007, after-the-fact sign permit application for the electronic billboard located in the northeast comer of the 1-35W and 1-694 intersection. The motion must include [mdings that support the motion. The Planning Commission cited the findings in Staff's June 18,2007, sign permit application denial as the basis for their decision (Attachment 7D-2). Backl!round For the purposes of this memo, Staff will use the term "electronic billboard" in reference to Clear Channel's full-color, electronic changeable message billboard. In December 2006, Clear Channel replaced the western face of the westernmost billboard located in the northeastern comer ofthe Interstate 35W/694 intersection (Attachment 7D-1). The new billboard face is a full-color, electronic message billboard that can change images on command. The images currently change every eight seconds, but that can be modified as needed. Clear Channel did obtain the required electrical permit; however, a sign permit for the alteration was not submitted. The City did not have any reason to deny the electrical permit at that time. The electronic sign does not display any animation or emit any noise. The lighting levels can be adjusted based on ambient light conditions. City of Arden Hills City Councii Meeting - September 10, 2007 \\Metro~inet.us\ardenhillslPlanning\City Council Memos\2007\Clear Channel Electronic Billboard\091007 - Clear Channe/- Permit Denial Appeal.doc Page 1 of6 The City sent a letter to Clear Channel informing them that the electronic billboard sign was not permitted by the Arden Hills Sign Code and it should be restored to its previous condition. City Staff met with Clear Channel on January 23. At that meeting, Clear Channel stated that they believed the electronic billboard was in conformance with the City's sign regulations. On January 24,2007, the City issued a Sign Code violation letter to Clear Channel and requested that they submit a completed sign permit application, details about the previous billboard face, and details about the new electronic billboard (Attachment 7D-2). A sign permit application was not submitted within the requested fifteen days, and the City issued a citation to Clear Channel for failing to submit the required sign permit. Clear Channel submitted a sign permit application on May 21,2007 (Attachment 7D-3). The City's Sign Code requires the City Planner to approve or deny a sign permit within 30 days of receiving the application or the application is automatically approved (Section 1220.03). City Staff and the City Attorney met with Clear Channel on June 7, 2007, to discuss the status of the submitted sign permit. The City Attorney and City Staffs interpretation of the City's ordinances was that the electronic billboard was not in conformance with the Sign Code, and the City Planner issued a denial to Clear Channel on June 18,2007 (Attachment 7D-2). Marvin Liszt, Bernick and Lifson law firm, and Tom McCarver, Clear Channel, attended a work session with the City Council and Planning Commission on July 9,2007, to discuss the status of the electronic billboard. At that meeting, the City Council came to a consensus that the sign permit evaluation process should continue as prescribed in the Sign Code (Section 1220.04). Planninl! Commission Hearinl! Clear Channel submitted an appeal to the City Planner's denial on July 2, 2007 (Attachment 7D- 4). As required by the Sign Code, a hearing was held to review the sign permit denial at the August 1,2007, Planning Commission meeting. The Planning Commission reviewed the materials submitted by Clear Channel, Clear Channel presented the reasons for their appeal, and Clear Channel responded to the Planning Commission's question. At the end of the hearing, the Planning Commission voted (5-1) to affirm Staff s denial of Clear Channel's sign permit application. The motion was based on the findings in Staffs June 18,2007, letter of denial to Clear Channel (Attachment 7D-2). The draft minutes from the August 1,2007, Planning Commission are included with this report (Attachment 7D-7). Clear Channel submitted their appeal of the Planning Commission's decision on August 14,2007 (Attachment 7D-4). A letter sent to City Attorney Filla is also included in Attachment 7D-4. City of Arden Hills City Council Meeting - September 10, 2007 \\Metro-inet.uslardenhillslPlanningICity Council Memos\2007\Clear Channel Electronic Bil/board1091007 - Clear Channel- Permit Denial Appeal.doc Page 2 of6 Citv Attornev's Response to the Appeals The City Attorney has provided a legal response to the City Council regarding Clear Channel's appeal (Attachment 7D-5). The City Attorney will be in attendance at the September 10th, 2007, City Council meeting. The City Attorney's September 5, 2007, letter includes a recent decision from the Virginia Supreme Court where it was decided that converting a traditional billboard to an electronic billboard was an enlargement. Billboards in Arden Hills There are only two billboard structures within Arden Hills, both of which are owned by Clear Channel and located in the northeastern comer ofthe Interstate 35W and 694 (Attachment 7D-1). The two billboard structures host a total of four sign faces (each billboard structure has a sign face that displays to the east and west). Only one ofthe sign faces is of the electronic billboard type. The other three sign faces are traditional static billboards. The Sign Code does not permit the construction of entirely new billboards or other permanent off-site commercial signs in the City. The two remaining billboards are considered nonconforming. Sil!:n Permit Application Denial The reasons for the denial are as follows (full letter in Attachment 7D-2): . Section 1230.02 Subd 8 of the Sign Code prohibits new permanent off-premise signs, including billboards. Due to this provision, the Clear Channel billboard is a legal, nonconforming use. Altering or enhancing a nonconforming use is prohibited (Section 1280.01 Subd 4 of the Sign Code). . Section 1240.02 Table 1 of the Sign Code limits lighting options for freestanding signs in Sign District 7 to external lighting only. Section 1210.01 Subd 6. ofthe Sign Code defines external lighting as "[illumination) by means of external light fixtures directed at the sign." The proposed sign is using a lighting source other than external lighting. . Section 1320.13 Subd 6.G.3 of the Zoning Code states that "Any billboard located in the GB District may be expanded, altered, relocated or otherwise modified solely upon written approval of the City, provided the expansion, alteration, relocation or modification is authored by the City of Arden Hills in connection with a transaction which will result in a net reduction in the number of billboards or in the aggregate sign face area of the billboards, located within the GB District." The provisions of this section have not been met. City of Arden Hills City Council Meeting-September 10.2007 \ lMetro-inet.uslardenhi/lslPlanningICity Council Memos\2007\Clear Channel Electronic nil/boardI09] 007 - Clear Channel- Permit Denial Appeal.doc Page3of6 There has been a difference in opinion between City Staff and Clear Channel over whether a sign permit was required for the changes made to the billboard. Clear Channel has continued to assert that the changes made to the billboard did not require a sign permit. Section 1270.01 Subd. 2 of the Arden Hills Sign Code states that the following activities require a sign permit: A. Replacing the sign copy. B. Removing the sign for the repair ofthe cabinet or any part thereof. C. Changes made to the size, height or bulk of the sign or addition of illumination. D. Changes in poles, structural supports, bases or shrouds, footings or anchor bolts, moving the sign to a new location, or replacement of the interior or exterior cabinet frame, except the sign face. Since a sign permit application was submitted to the City on May 21,2007, determining if a sign permit was or was not needed is less of an issue. The City Council's decision on the appeal should be based on the merits ofthe sign and the applicable regulations as opposed to whether a sign permit was needed. Reviewinl! Chanl!es to Nonconforminl! Structures/Uses When reviewing changes to nonconforming signs (and structures where appropriate), the following questions are commonly asked: 1. In detail, what alterations are proposed to the nonconforming sign/structure? 2. What are the existing dimensions, and what are the proposed dimensions of the nonconforming sign/structure (height, width, and depth)? 3. What is the existing weight, and what is the proposed weight of the nonconforming sign/structure? 4. What is the existing lighting source, and what is the proposed lighting source for the sign/structure? 5. Are any structural changes needed to support the modified sign/structure? Please be specific. To date, Clear Channel has not submitted specific information about the changes to the billboard or the structure. However, at the July 9, 2007, work session and the August 1,2007, Planning Commission meeting, Clear Channel did state that the electronic billboard is heavier and thicker than the previous billboard and that the structural supports were added to accommodate the additional weight. City of Arden Hills City Council Meeting - September 10, 2007 IlMetro-inet.us\ardenhills\Planning\City Council Memos\2007\Clear Channel Electronic Bi//board1091007 - Clear Channel- Permit Denial Appeal.doc Page 4 of6 State Statutes for Nonconforminl!: Structures/Uses The appeal letter from Clear Channel includes a portion of State Statute 462.357 Subd. l(e)(a) regarding nonconforming uses (Attachment 7D-4). The full Statute regarding nonconformities is as follows: 462.357 Subd. Ie. Nonconformities. (a) Any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion, unless: (1) the nonconformity or occupancy is discontinued for a period of more than one year; or (2) any nonconforming use is destroyed by fire or other peril to the extent of greater than 50 percent of its market value, and no building permit has been applied for within 180 days of when the property is damaged. In this case, a municipality may impose reasonable conditions upon a building permit in order to mitigate any newly created impact on adjacent property. (b) Any subsequent use or occupancy of the land or premises shall be a conforming use or occupancy. A municipality may, by ordinance, permit an expansion or impose upon nonconformities reasonable regulations to prevent and abate nuisances and to protect the public health, welfare, or safety. This subdivision does not prohibit a municipality from enforcing an ordinance that applies to adults-only bookstores, adults-only theaters, or similar adults-only businesses, as defined by ordinance. (c) Notwithstanding paragraph (a), a municipality shall regulate the repair, replacement, maintenance, improvement, or expansion of nonconforming uses and structures in floodplain areas to the extent necessary to maintain eligibility in the National Flood Insurance Program and not increase flood damage potential or increase the degree of obstruction to flood flows in the floodway. Electronic Billboard Research Although safety concerns related to electronic billboards were not the primary discussion topic at the Planning Commission hearing with Clear Channel, some residents, other cities, and researchers have expressed concern about the potential safety hazards of electronic billboards. SRF, Inc prepared a report for the City ofMinnetonka summarizing some ofthe research on electronic billboards (Attachment 7D-6). The research reports cited in the SRF report are available upon request. Attachment 7D-6 also includes the report "Scenic America: Billboards in the Digital Age" to help provide some additional context. City of Arden Hills City Council Meeting - September 10, 2007 \\Metro-inet.us\ardenhillslP/anning\City Council Memos\2007\C/ear Channel Electronic Billboardl091007 - Clear Channel - Permit Denial Appeal.doc Page 5 of6 Options & Proposed Motion Lanl!ual!e The question before the City Council is whether the Planning Commission correctly or incorrectly upheld Staff's denial of the sign permit application. The City Council can now uphold or overturn the Planning Commission's decision. 1. Support the Planning Commission's Denial of the Application: Motion to support the Planning Commission's August 1,2007, denial of Clear Channel, Inc.'s, May 21,2007, after-the- fact sign permit application based on the City's sign and zoning regulations as presented in the June 18,2007, denial letter to Clear Channel, Inc. 2. Overturn the Planning Commission's Denial of the Application: Motion to overturn the Planning Commission's August 1,2007, denial of Clear Channel, Inc.'s, May 21,2007, after-the-fact sign permit application based on the following reasons... (reasons must be stated for the record to support overturning Staff's denial of the sign permit application) Attachments 7D-1 Billboard Location Map 7D-2 Letters to Clear Channel from the City 7D-3 Clear Channel Sign Permit Application 7D-4 Clear Channel's Appeals to the City 7D-5 City Attorney's Response to Clear Channel's Appeals 7D-6 Dynamic Signage Research Report from SRF for the City of Minnetonka 7D-7 Draft Minutes from the August 1,2007, Planning Commission Meeting 7D-8 August 1,2007, Report to the Planning Commission (without attachments) City of Arden Hills City Council Meeting - September 10, 2007 IlMetro-inet.uslardenhil/slPlanningICity Council Memos\2007\Clear Channel Electronic BillboardlO91007 - Clear Channel-Permit Denial Appeal.doc Page 6 of6 Attachment 7 D -1 Billboard Location Map September 10, 2007, City Council Meeting " ! ~. '" '*l '" ~ H~:t n'lJ~ H...H ~fJ16i~ ~UHH~dli Vll:l....NZVl " .s o ;;: o " E - 'C o " " ], -a . " . " .S! .02 1ii.Q\O sag oS",'" .s ~:c -E"~~ 0"" e8~ ~~~ ~~d .,g e~ oS....;; 'atE e E"'''' 8 ~ ;j :~:! ... 0 B g.....<l.l 8'~ e .;:2] ~ ~"" ... -" Gi~.s a~b ~:::~ ]e~ " . 0 ::I]..... ]~jg B.s-i'I -g]-tj ], ~~ 2...g .S ~ ... oall) .0 :;~e @-="8 ",0. u]- ~ ~ @ ",:J ~ ~~ 8'5 S g."B8 e~ ... "'O~<S -E"dt- o@8 "oN fE\O .2;-<lJ'IJ _;;;s ~s':"' " 0 0 " " 0 ..s~O ';0.08 . ~ . .~~ ~ s>j ",.5] ~13~ ~Qd]g ..N "~ ..,"'0 ~ ~ Q . o o U o E OJ ,;; '" ~ o "' (c) Copyright 2006, Pictometry International Attachment 7D-2 Letters to Clear Channel from the City September 10, 2007, City Council Meeting ~ ~~HILLS January 24, 2007 Clear Channel Outdoor Inc. 3225 Spring Street NE Minneapolis, MN 55413-2908 Re: Sign Code Violation City of Arden Hills Dear Clear Channel Outdoor Inc: Section 1220_01 of the City of Arden Hills Sign Code states that no permanent sign shall be erected, altered, reconstructed, maintained, or moved without first obtaining an approved sign permit from the City. Since the billboard on parce1213023340006, which is located near the northeastern intersection of I-35W and 1-694, was altered, a sign permit application was required prior to altering the sign face or structure. Please complete and submit the following information to the City of Arden Hills within fifteen (15) days: . The enclosed sign permit application plus the $50 fee; . The area and dimensions of the sign structure before and after the modifications (including the height, width, and depths of the sign in feet); . The area and dimensions ofthesignface before and after the modifications (including the height, width, and depths of the sign in feet); . A complete description of any structural changes made to the sign structure and a report from a registered engineer confirming the stability and safety of the sign structure. If any modifications were made to the sign structure, a building permit may also be required. Upon receipt of the completed application, the City can determine if this particular use is permitted by the City Code, and the Building Official will determine if an after-the-fact building permit is required. If you have any questions or would like to discuss the options for the sign, contact me at iames.lehnhoffla!ci.arden-hills.mn.us or at 651-634-5134. Jerry Filla, the City Attorney, is also available at 651-291-8955. Cc: Jerome Filla, City Attorney Karen Barton, Community Development Director Dave Scherbel, Building Official City of Arden Hills . 1245 West Highway 96 . Arden Hills, MN . 55112-5743 Phone 651.634.5120 . Fax 651.634.5137 . www.ci.arden-hllls.mn.ns ~ ---A~ HILLS June 18, 2007 Clear Channel Outdoor Inc. . Tom McCarver 3225 Spring Street NE Mumeapolis, MN 55413-2908 Re: Sign Permit Application Denial Parcel ID: 213023340006 Dear Mr. McCarver: The City of Arden Hills regrets to inform you that the after-the-fact sign pennit application received on May 21,2007, from Clear Channel Outdoor, Inc. to alter the billboard on parcel ill 213023340006 has been denied. The $50.00 check submitted with the application is enclosed with this letter (check nUlllber 8113). Please note that the Parcel ill on the submitted application is incorrect. The PlD on the application refers to the other Clear Channel billboard in Arden Hills. The sign pennit application has been denied for the following three reasons; . Section 1230.02 Subd 8 of the Sign Code prohibits ncw permanent off-premise signs, inClUding billboards. Due to this provision, the Clear Channel billboard is a legal, nonconforming use. Altering or enhancing a nonconfonning use is prohibited (Section 1280.01 Subd 4). . Section 1240.02 Table 1 ofthe Sign Code limits lighting options for freestanding signs in Sign District 7 to external lighting only. Section 1210.01 Subd 6. of the Sign Code defmes external lighting as "[illumination] by means of extemall/ght fIXtures directed at the sign." The proposed sign is using a lighting source other than external lighting. . Section 1320.13 Subd 6.G.3 of the Zoning Code states that "Any billboard located in the GB Districi may be expanded, altered, relocated or otherwise modified solely upon written approval of the City, provided the expansion, alteration, relocation or modification is authored by the City of Arden Hills in connection with a transaction which will result in a fletreduction in the number of billboards or in the aggregate sign face area of the billboards, located within the GR District." The provisions of this section have not been met. If Clear Channel chooses to appeal this decision, a written appeal must be submitted to the City within fifteen days of the confirmed delivery oftllis letter (Section 1220.04 oftlle Sign Code). City of Arden HiUs . 1245 West Highwa)' 96 .. Arden Hills, MN .. 55112-5743 Phone 651.7n.7800 .. Fax 651.634.5]37 .. W\YW.d.ardcn~hlll$.mn.us ~ ~~ HILLS .; ~. As discussed at our meeting at City Hall on June 7, 2007, you and your representatives are invited to attend the City Council work session at City Hall on July 9th from 6:00 p.m. to 6:30 p.m to discuss this issue with the City Council. The July 9th meeting is an informational work session only. The City Council will not be able to make any decisions on a potential appeal at that time. If you have any questions please contact me at iames.lehnhoffCalci.arden-hills.mn.us or at 651- 792-7819. Jerry Filla, the City Attorney, can be reached at 651-291-8955. Cc: Jerome Filla, City Attomey Karen Barton, Community Development Director Michelle Wolfe, City Administrator Dave Scherbel, Building Official Marvin A. Liszt, Bernick and Lifton City of Arden Hills . 1245 West Highway 96 . Arden Hills, MN t 55112-5143 PllOnc 651.192.7800 . Fax 651.634.5137 . W"",\..ci.Rrdc.n~hiIls.mn.us Attachment 7D-3 Clear Channel Sign Permit Application September 10, 2007, City COW1cil Meeting ~ ~HrLLS 1245 W Hwy 96. Arden Hills MN 55112 Phone 651.634.5120 . Fax 651.634.5137 www.cl.arden-hills.mn.us APPROVAL_ SP07. SIGN PERMIT APPLICATION ($50)' *Separate permn: required for each sign; . City Conlf1;lctor License Required for Commercial Contractors Payment Method: Cash . Check . Credit Card Reference Number: Date Receipted: Property Type: 0 Residential 0 Commercial :!!! J.: 1ii3 "J Owner Phone Number: !J",.\ ".-., 'I ~ . (' '. ~ G I) - (, (;-)"- <;i {lO c.l ';:j I '0 () \c~ /'.\,IJ C;5;;~l"5 Ik do g \0E o PubliC Occupancy Group: {For OffICe Use Only) ........ 8ldgJSultefLocaUon (commerclal pt rfs O~!~: ...... ,........ ":';:.'v Applicant Type: 0 Homeowner 0 Contraclor; License #.._____~_.__.___ City/StaleJZip: 1'5 )v\).J 59{ ! 3 Conlact Fax Number: oS G/ -<) -5 Project Details Sign Type: ~lTTlanent o Temporary: Oates of Display 10 'Tem era si nscanbadis Ia dnoron erlhan30da llrcalBndar ar. Wfdth.Mfti/ Height~~5<ength_~~ TOlalsq.FL./;;:JJ- I I J , ! !Slgn Delalls: iSign Wording: ., C i C\rlOU :::> Slyle (monument. pylon. waif ~ir' banner. fhr.): , '(Z;, \ \'mrK jConslrucUon Materials: I U~ng (backlit. hqlo, internal. external. etc.): r_,,\~f"l'\O \ L81- MelhOd 0 Affixing: IMPORTANT NOTICE: Applicant must altach 1 site plan and 2 sets of Planner Review: building plans for all applications requiring plan review. Min. 24 hour notice required for all Inspections. There is a 10 working day turnaround 0 Approval. Special Conditions: ____.____.___._.,_.__.._____ for all permils requiring plan review. Seoarate Dermils ~re reouired for electrical olumblno heatino ven6lation or air condilinnlno, This permit becomes null and voId if work or construction authorized Is not commenced within 120 days, or if construction or V'lOrk Is suspended or abandoned for a period of 120 days al any time after work has . commenced. By signing this application, you hereby certify that you have read and examined this application and know the same 10 be Irue and d . , correCt All provision of laws and ordinances governing this type of work "f'J"Oenial. Reason for Denial: C@7 11C'7 ~ /" will be complied with whether specified herein or not. The granting of a "1".. 1 '" ........ . /, .j. \. r / . pennlt does not presume to give aUlhority to violate or cancel the -.s:J~J:!..--C..P.d.J:.-___~.YflC ~",:"~(?I...!.u-'1J:7 provisions of any other slate or local law regul<;Iting construction or the Y1 r-P7("c ,-.c..~ ~'" .....#' performance of construction. pplicant lakes full responsibility for all work ....B.__ ~~._ performed. App' Is r p: sible for all plan check fees If permit Is ~~_ cancelled ft' . ~ i. _,_~ / Applicant 5" nature Dale W6nner Sig ure --~....._.__._~-_.._...._..__._~---._--- ---~_.__._-------.- b- ('?-?cJ:7 Date LaSCRev20dAJlfJuS/2005 . ,-- . . ". .... ..' .. '. .. . . '. ....:AT.1"O.l~NE\'S.A1':.LA_"'.. BERNICK~LIFSON ........... . '........ D. '__ '.__ .__..... :-'.... '.A '1' R O}.' ES S 1.0 N A L '-.A S S.O.C'J ~'\.T I f,l.N SUil(' I :!(}l). TIn: CO!"llllad\' :I:lllfl \\":lYJ.;Lt:tl\')llle\'Md Miulll.apnlis. ~l~' :,;/.1 I ll.. 1:!70 tl'1f'i"."allid:liJ!.IUI.l"/!/1/ Saul:\. gt~mick. ~f:lrdll A.Lisl.t... ScollA.UfsolL Da\'iel K. :\i):;luinv;;\lt,,, Palll.J.QlIasl' S[t~\'l.'ll 1.. Fn~('Ill:ll1 ..... (;~'()['g:t~ E. \\'anwl:.I1; .... .It,.~sk;tl.. R(j~' Dadd ~1. ~.:~s S;tr;lhI.. Ji.ralls May 18, 2007 I,JMI,'iW.;;.ll>.I:!O/i 11/),.,11:\,,;,,11;,100:, James Lenhoff, City Planner City of Arden Hills ]245 W. Highway 96 Arden I-lills, MN 55112 OICurlllwl ~t';Ll.l. Sh;lpiro Re; Clear Channel Sign at 35W and 694 1.".:!,ul ..1l\i~(t;lIl.\ \';lilfy L. Wh;lykll Un'lId;! I.. Darkow C.;ina ~1. Zlll~l Dear Mr. Lenhoff; Pursuant to the City's request, enclosed please find Clear Channel's Sign Permit Application for the installation of the LED panel at the billboard located at l-35W and 694. Clear Channel replaced the cxisting billboard panel with an LED panel which did not alter the height, size or square footage of the billboard. Clear Channel does not believe that a sign permit application was required for the panel replacement but is willing to submit the application in response to the City's request. By submitting the enclosed Sign Permit Application, Clear Channel and its representatives do not waive defenses to any City action regarding a claim by the City that an application was required pursuant to its Ordinances. Once you have reviewed the application and attachments, please contact Tom McCarvel. at Clear Channel or me as we believe a meeting with City representatives to review this matter may be helpful for all concerned. Very truly yours, :;?VN'PA Mnrvm A. Llszt ,0'0 +..;...;; ( (. ,Il,g;.. ~- ,,\ ...~~,.> ,:;'00 .<~. " 0'" ~ ~ 6:;"";' MALcrb ce: Clear Channel Outdoor, Inc. Karen Bmion, Community Development Director Michelle Wolte, City Administrator Jerome P. 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Approximate Lot Frontage (ft) Tax Description Plat Name Date Plat Recorded Abstract 10 Torrens 10 County land Use Code (CAMA) County Land Use Code (PR&R) Market Value land 2007 Market Value Bldg 2007 Market VaJue Total 2007 Market Value Land 2006 Market Value Bldg 2006 Market Value Total 2006 Total Tax Payable 2006 Market Value Land 2005 Market Value Bldg 2005 Market Vallie Total 2005 Total Tax Payable 200S Date of last Sale Sale Price Homestead Description Number of Residential UnIts Year Residence Built Total Residential Living Area Residence Exterior Residence Style Residence Number of Stories Residence Number of Rooms Residence Number of Bedrooms Commercial Structure Type Commercial Year Built Topography Utilities School District Watershed District 13TH 5T NE ARDEN HILLS 55112. CLEAR CHANNEL OUTDOOR lNC 3225 SPRING 5T NE MINNEAPOU5 MN 55413.2908 0.1 4356 o NORTHEAST CORNER ADDmON OunOT 6 NORTHEAST CORNER ADDmON 12/31/01 3456565 COMMERCIAL VACANT LAND COMM LAND & 6LDG5 126600 o 126600 118500 o 118500 2934 104500 o 104500 2634 o Non-homestead o o o o o o o Rolling All Public Mounds View Area Rice Creek. hltp://maps.metro-inet. usfRamseyCoGlS/ AttributeDisplaySingle.hlll1 9/8/2006 ':I'" "llVMO!; 'l' lIE!.J 'hYD] ~1I ~OQt 0 JIl::ll:lI.&l:I l^lOO'A3^~nSN.::I3 :S3M ~ 6E:89'9tl!:i (Z96) :XV.:l LE:89-9tlS (G:S'6) :3NOHd 9ZtlSS V.lOS3NNll^/'SnOdViINN1V>l 'OA1E! VJ.V'l.).VM Sl 17L "E'LBl 3:)NIS SClOA3hClOS.. .::I~:3 'ONI ')!VMON:g '0'l31o:1 'NVl:>3 -=;- ~ 2 ~ _ .0 '" .s'" ~ 'Eg : ~5 z .~ c l~ ! ~ g o <~i .~ ~ ~g :;>' u'(; g 8~ (t ~~ ~ -- .., ~a. c , . w1l,'O ~ ~~~ ~ ~ e~ . O~2 E:3 ~ ~~~ ~o~ !~:~::~\"":" ~.:51 ~.- :~ 8 0 O'l :~ ]'~ I 8 ~RI : o.~~, :I; ~i~ ~ -:::,"P \: ' . ....,~ .... 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" --...E :;.8 GJRlJI() ~ :),8 NMY1;lO --."",--, :~O.:l }.3^W)S }l~o.~1N~3 ~ ijj ~ ~ ~ ~~ ~ ~ ,,'" i:l " ~" '" bi" ~ ~ "'bJ r--7 ~ ;;; l!; ~~ ~ ~ U '" ~'" '" l2 ~~ ~ <3 I;) ~e '" c C~ 0 15 ijj" C Q~ . 0 5~ 'Og .c ~Ci ., ~] 3.frf:,6/.00S H3J3Yf :)IY/:JJl3-_, ~\ \, ': ..' ~ " o. ~u o. _8 "- M.II,I~ZON ":" ,- 0' 111~ g" ~~ d~ o ". "^ et5 f- C) )o'iV,illK) '" , . 8~ 's ~iS' ~o 1; , ~'" ...~ ~).. ,,- '~f" ~,,'" S1~ ~ts >I1!~~J ", ._'.. --;-:: J fr If I i l I Ii i Ii f , ~ ~ , . , ~ ~ ~ ('i ~ Q:i "" , .......... 00''1- 0.;"" It)l'' " ~ " , . , ~ ~ ~ 0) ~ ~ G -;;:; '-': ~ \() -o~'ON ::Ill.:l ~'ON130r ~lFZZrZI: :3I1VN ::INU"'V~O 9;: UL~ 3:)Vd )!oDS 01.ll:l N " o "' ~ ijj " W ~ '" o I UJ ~ "' '2 '" " '" 2 Attachment 7D-4 Clear Channel's Appeals to the City September 10,2007, City Council Meeting CLEAR CHANNEL OUTDOOR, INC.'S APPEAL FROM THE JUNE 18, 2007 DENIAL OF THE SIGN PERMIT APPLICATION FOR PARCEL ID 213023340006 Clear Channel Outdoor, lnc.appeals the June 18,2007 decision to deny its May 18, 2007 Sign Permit Application. The appeal is based on the grounds that the decision of the city planner and the purported relevant city ordinances are arbitrary and capricious, contrary to law, and violative of Mimlesota Statutes. These grounds include, but are not limited to, the following: 1. The City Planner's reliance upon Section 1280.01, Subd. 4 of the Sign Code and Section 1320.13, Subd. 6.G.3 of the Zoning Code as reasons to deny the permit violate Minnesota law regarding legal nonconfonning uses. Minnesota Stat. S 462.357, Subd. l(e)(a) provides in relevant part that "[a]ny nonconformity including the lawful use ... of land or premises existing at the time of the adoption of an additional control under this Chapter, may be continued, including through repair, replacement, restoration, maintenance or improvement." Any decision by city staff or ordinance provisions restricting these statutory rights are contrary to law and unenforceable. 2. Section 1240.02 Table 1 of the Sign Code does not rationally apply to billboards of the type involved in tills proceeding. For example, the District 7 maximnm area and maxinlum height requirements under Freestanding Signs cannot apply to billboards which are 14' x 48' or 672 total square footage, 3. There is no rational basis or legitimate health, safety or welfare rationale for requiring billboard illumination to be only by means of external light fixtures directed at the sign. Any attempt to interpret or enforce the Sign Code to require this type of illumination is arbitrary and capricious, contrary to law and unenforceable. 4. Any attempt by the City to require billboard illumination to be only by means of external light fixtures directed at the sign violates the provisions of the Minnesota Outdoor Advertising Control Act, Minn. SM. Ch. 173. This Statute regulates the placement and design of "advertising devices" in "adjacent areas." An "advertising device" is "any billboard, sign, notice, ... or other device visible to and primarily intended to advertise ... and shall include ... all lighting or other attachments used in connection therewith." (emphasis added) Minn. Stat. S 173.02. "Adjacent areas" are defined as areas "adjacent to the right-of-way of an interstate or trunk highway." Minn. Stat. 173.02, subd. 8. Minn. Stat. S 173.16, Subd. 3 establishes lighting standards for advertising devices in business areas adjacent to interstate highways. Nothing in the Outdoor Advertising Control Act prohibits tile installation and operation of an LED device illuminated by the Dated: method used for the subject sign. Any attempt by the City to further restrict the lighting standards contained within Minn. Stat. ~ 173.16, Subd. 3 would have to follow the procedures contained in Minn. Stat. 173.16, Subd. 5 and Minn. R. ~ 8810.1400 5. A Sign Permit Application was not required for the panel replacement involved herein since Clear Channel did not alter the height, size or. square footage of its sign. n ~, ;?eO? BERNICK AND LIFSON, P.A. BY~ z;/ The ColOlmade, Suite 1200 5500 Wayzata Boulevard Minneapolis, Minnesota 55416 (763) 546-1200 voice (763) 546-1003 facsimile Attorney for Clear Channel Outdoor, Inc. 2 , ~ r! ~' rl I~ I~ , l~ W fj B [1 '~ i" il g' ~1 , Suite 1200, The Colonnade 5500 Wayzata Boulevard Minneapolis, MN 55416-1270 www.bernicklifson.com Saul A. Bernick * Marvin A. Liszt *** Scott A. Ufson David K Nightingale ** Paul J. Quast * Steven L. Freeman ***** George E. Warner, Jr. **** Jessica L. Roe David M. Ness Sarah L. Krans ., I f~ " August 14,2007 Phone 763-546-1200 fax 763-546-1003 Legal Assistants Nancy L. Whaylen Brenda L. Darkow Gina M. Zuel j j ~ I.: .1 J r ~l ~ ,J ,; rij ~ ~ ., i [' ;~ ~ ~j !@ ~ f] pi lq ii,; h'i ~ ~ 11 lil U m m ,\. Via Hand Deliverv City of Arden Hills Planning Commission c/o James Lenhoff, City Planner City of Arden Hills 1245 W. Highway 96 Arden Hills, MN 55112 Of Counsel Neal J. Shapiro Re: Clear Channel Sign at 35W and 694 Dear Mr. Lenhoff: Enclosed please fmd Clear ChamJel Outdoor, Inc.' s Appeal From the August I, 2007 Decision of the PlamJing Commission of the City of Arden Hills Upholding the Denial of Clear Channel Outdoor, Inc.'s May 21, 2007 Sign Permit Application For Parcel ID 213023340006. Very truly yours, BERNICK AND LlFSON, P.A. AM . A-'L~ arvm rt. lszt MAL:crb Enclosure cc: Clear ChamJel Outdoor, Inc. Jerome P. Filla, Arden Hills City Attorney I.'.~' , " ., :j 111 r I :~ .' I [~ * Also Certified Public Accountant ** Also Admitted in Wisconsin *** Real Property Law Specjali~t Certified by the MinnesotaSt(1te B(1rAssociation **** Board Certified in Creditors' Righus by the American Board of Certification ***** Also Admitted in California CLEAR CHANNEL OUTDOOR, INC.'S APPEAL FROM THE AUGUST 1,2007 DECISION OF THE PLANNING COMMISSION OF THE CITY OF ARDEN HILLS UPHOLDING THE DENIAL OF CLEAR CHANNEL OUTDOOR, INC.'S MAY 21, 2007 SIGN PERMIT APPLICATION FOR PARCEL ID 213023340006 Clear Channel Outdoor, Inc. appeals the August 1, 2007 decision of the Planning Commission to uphold the denial of its May 21, 2007 Sign Permit Application as set forth in the City's August 7, 2007 letter. The appeal is based on the grounds that the decision of the Planning Commission and the purported relevant city ordinances are arbitrary and capricious, contrary to law, violative of Minnesota Statutes, and the Constitution of the United States. These grounds include, but are not limited to, the following: 1. The Planning Commission's reliance upon Section 1280.01, Subd. 4 of the Sign Code to deny the permit violates Minnesota law regarding legal nonconforming uses. Minn. Stat. S 462.357, Subd. l(e) grants to nonconformities the right of repair, replacement, restoration, maintenance or improvement. Any decision by the Planning Commission, city staff or city ordinance restricting these statutory rights is contrary to law and unenforceable. The Planning Commission also erred by holding that Ordinance Section 1280.Q1, Subd. 4 states that "Altering or enhancing a nonconforming use is prohibited," and applying this erroneously stated provision to deny the permit. 2. The Planning Commission's reliance on Section 1240.02 Table I of the Sign Code is erroneous and contrary to law. a. This section of the Sign Code is preempted by the Minnesota Outdoor Advertising Control Act, Ch. 173. This Act regulates the placement and design of "advertising devices" in "adjacent areas." An "advertising device" is "any billboard, sign, notice, ... or other device visible to and primarily intended to advertise... and shall include... all lighting or other attachments used in connection therewith." (emphasis added) Minn. Stat. S 173.02. "Adjacent areas" are defined as areas "adjacent to the right-of- way of an interstate or trunk highway." Minn. Stat. 173.02, subd. 8. b. Minn. Stat. S 173.16, Subd. 3 establishes lighting standards for advertising devices in business areas adjacent to interstate highways. Nothing in the Outdoor Advertising Control Act prohibits the installation and operation of an LED device illuminated by the method used for the subject sign. Any attempt by the City to further restrict the lighting standards contained within Minn. Stat. S 173.16, Subd. 3 must follow the procedures contained in Minn. Stat. 173.16, Subd. 5 and Minn. R. S 8810.1400. The City has failed to do so, and has no authority to apply Section 1240.02. c. Section 1240.02 Table 1 does not rationally apply to billboards of the type involved in this proceeding. Even if the ordinance were to apply, Clear Channel's lighting is consistent with its requirements. d. There is no rational basis or legitimate health, safety or welfare rationale for requiring billboard illumination to be only by means of external light fixtures directed at the sign. Any attempt to interpret or enforce the Sign Code to require this type of illumination is arbitrary and capricious, contrary to law and unenforceable. 3. The Planning Commission's reliance on Section 1320.13, Subd. 6.G.3 of the Zoning Code is contrary to law and the dictates of Minn. Stat. S 462.357, Subd. lee). In addition, Section 1320.13, Subd. 6.G.3 violates Minn. Stat. S 117.184. 4. The Planning Commission's Decision violates Clear Channel's Constitutional rights including its rights under the First Amendment to the Constitution of the United States. 5. A Sign Permit Application was not required for the panel replacement involved herein since Clear Channel did not alter the height, size or square footage of its sIgn. Dated: f-tL/-o7 BERNICK AND LIFSON, P.A. By ~r V Marvin A. Liszt The Colonnade, Suite 1200 5500 Wayzata Boulevard Minneapolis, Minnesota 55416 (763) 546-1200 voice (763) 546-1003 facsimile Attorney for Clear Channel Outdoor, lnc, 2 Suite 1200. The Colonnade 5500 'W<iyzata Boulevard Minneapolis, MN 55416-1270 August 15, 2007 www.bernicklifson.com 'Saul A Bernick * Marvin 4- Liszt *** Scott A. Lifson Dav~d K. Nightingale ** Paul J. Quast * Steve,n .L.' Fre_eman ***** Geqrge E. Warner,]r.**** Jessica L--Roe David. M. Ness Sarah L Krans JeromeFilIa Peterson, Fram & Bergman,P.A. 50 E. 5th St.,Ste. 300 St. Paul, MN 55101 Phone 763.546-1200 fax 763-546-1003 Re: Clear Chal1nel / Arden Hills Of Counsel NealJ. Shapi,ro {..egal Assistants Nancy L. Whaylen Brenda L. Da.rkow Gina M. Zuel Dear Jerry: I will be filing a formal submission in connection with the appeal of the decision of the Planning Commission upholding the denial of Clear Channel's permit application, but wanted to take this opportullity to share my tllollghts with youprior to that submission. Simply stated, there is no legitimate pasis for tlle zoning director's decision to be upheld as the decision is contrary to the law inthis stateandtlle..city's own ordiJ:ulllces. As you lmow, there are tllree bases on which the denial rests, and I will briefly address~ach separately. The first basis for denial, and indeed the only basis tlmt the Plmming Commission deemed to be of any substance, is tllat altering or enhancing the sign is prohibited by Section 1280.Ql, Subd. 4. At the outset, it should be noted that the city staff and Planning Commission's denials are based on ml erroneously stated pnlVision in the .ordinance which is theri applied to. deny the p",rmit. I This error, by itself,renders thedecisions arbitrary andcaj"lricious. Atthe h"'aJ."ingonAugustl, 2007, the PlanningCommission seemed to rest its decision on tlle fact that the existing billboard is heavier than the previous one, and concluded that this constitutes the factual basis for an alteration that Violates the ordinance. There are a number of definitiye reasons why this analysis cannot be upheld: . State law clearly grants the right of replacement and improveiTIellt. See Minn. Stat. S 462.357(1)(e).. .... . . . . . City staff and the Planning Commission applied the standard of "altering or enhancing"a legal nonconformillg sign; the Planning Commission used this erroneous standm:d to find that a pennit would not be issued solely .because the weight of the sign had changed. Even undertlle erroneous stmldard used, the weight ] Ordinance Sec. 1280.01 Subd. 4 does not prohibit "altering or enhancing" a legal nonconforming sign. In fact, the Ordinance. states that the uSe may not be "enlarged, moved, or altered in a way that increases its nonconfor. 'luity.'" . Alw Ceni~e.d ~l\bli~ Acc~unlant ** Also i\dmltted III _WisconSin ..... Real Property Law Specialist Cetlifiedbj lhe Minrnsola Slow BarA.;sod"li~n . UH Board Certified in Credilors' Righu bylhe,AmcricanBoardofC'.enificalioll **.... Also Admitted in California . Jerome Filla August 15,2007 Page 2 . of the sign has nprel~tionsi)ip toitsl1()I1ROnformity.Th~ nonconformity is the existence of the billboard, not its weight. . ' . The s~gnordimlIlCel1owhere reference~<or regulates weight... The ordinance specificallyst~tystb,at.the purpose o~tl1e.sign code is.to .regulaly1:)1e.locatiol1,size, . type, .andillumil1~tionof signs; it 4qes not. discuss weight. It 40esde~le heiiYlt( ~ . 1210.01, Subd.3;),llghting (~1210.01.;Subds.4C8); andsignarea(S 1210.01, Subd. 12) but 4oesn()1 dyfil1e weight. Thein~ertion of~ cpnditi()ntodenyapel1l1it that is nowhere found in the ordin.ance.s is per se arbitraryandcapriciolls. . ...... ..--,,-,. ,. , . " ',', .... .......-. ,'- '-' -', ,'-. ._c.. ,_ _ .... .. " ,.... _' _,_., '_,"_', _... In ~nlynding Minn' Stat.~462,357(1 lee), the Lygislature ~cknowledged thatthe OWl1yT()f a..... . 1.10. n. co.nform... in,g use. niu. st be.. .a. ble to. replace or.impr. o.ve .th.e. us. e tok. eep. upw.ith......chan. g.es in. t.h eir. particular.industry, tocontinue totedl11qlogically illoderpizetheir facilities,an4 tOlllair;Itmn the nonc01llorinityto adegree'-Yhichwillena\>le the owner tofinaJlce thy nol1conforming use. ....For eX!Jl!lple,. the .owner. of anoncpl1fpnningallto Aeaiershiplllustbe abletor~place()rilIjprove thy pmntboothportion of the. busil1esswithnew teclmqlo~y so that the dealershipclln colllPly with franchise. requirements . andfpntiIllle to colllpete in the marketpl~ce... The.new. paint booth equipmellt)J.1.aybe hyavier, or ligllter,thatltheequipmentpr fixtures replaced..The weight or u... till.!y o. ft.h.e. ..repl. a.cement 0..1.. impro.. v. ..e. men.t.isn. ot the.is. s. ue...T. l.le ri. !5htgr.aJ.. ite....d to the. owne..r. of. a legaln()IlCOnforITIingllse undyr t~~ stat~teisthatthe ()'.Vll~r lIja.y r~pl~ce~nd/or. inIproye.. This is .. thelegal. standard to be appliedllnd, Ul11erthe statute, it lllaynot be abrogated bY.arbitrary action of all1pnicipality. . . .. . . .... . . . - .. -.. . . -', . ... ... , , .. ... ... . The sec()n4basis for denial-,-ej(tymallighting .-. is induded in the Iwtifipation of the dec:ision, but in reality did not ~eelIl to bypartofthyPlanning Commission's decision. At the hearing there was Ilnacknqwledgemeut th~tthe.1ightingofthy sign did llot fitwitl1in th~ prohibitiolls. of the .or..d.i.n.an..... ce,an... dal.. so.a. re.cogm.'t.i.o.n..th. at. thi. '.s. are.~ w. aspre.-e.m pte. d by s.ta. te. statute... S.. eeM. .inn..... Stat. !l173.16, Subcl. }.1,. ITI\1nicipalityl!la)'e;1forceits ownsignregnlations within busine~stlTeas adjac~ntto interstatean4trunkhigl:1waysin liell..of the statewide rul.esif it i-eceivesState apprpval forthis. . In this case, hoWevyr ,the. City neithersoughtnpTrecei"edpyrmission to . enforce. * ownsigllregtllati?ns with respect to .advmis)l1g4evi?esloc~tediqsuch.areas. The state standllrds.arell:1lls.coqtl:olling. al14 CleljI ChailAe)'s.biUtlOard.cprl!plies withthesestalldar4s. I. n ad.. d..i.tl...o.n.........to.. al.l...o...f..t.l.l..e.. abo. ve. ' th..e P....lanru..... ....n.. g... C.. o. =......i.ssi.o..n. w... a.s. .con.. cer.ne. d..abou. t th.e..n.. a.ctt...ha... (the city had isslledpefll1it~fo]' LEI) signs ~oon-prell1ise businesses. This will, of course,be in"e.sti.' gated in much more detail if this matter proceeds.. . " . . ,......._, ,'_ ._........., "_. ,',_n __.. _' ..,_.'_.....__.....,., ',' . . FinallY, theapplicaliOll of ()r~ill,aJlce Se~.mO. n Sllbd.6.G.3 ~isfraught \Vith illegality in this ins!aJlce.ClYar ChaiIDyl' sapplkationseyks wittYllapproval of an irnPI'pvelllent to its npnconforming use'andthis.is expressly permitted ley state statute. See Minn. Stat.~ 46V57(1)(e).Anyden.ial or withholding pfwrittell,perrnissionb~ the City of Arden Hills is in direct violation of this statute, and is arbitniryaridcapriciclUs. . In addition, this section of the ordinance directly contravenes the dictates of Minn. Stat. !l117.184, . .' Jerome Filla . . Augustl5, 2Q07 , Pagel ' . ' ',-':. " .-' '. . . . ,- . . , - . . . ..' .' -. . . , " , , . . - -. . . " . . ., . - . . . - - -- . . .- . . - - .' , . . . ; 'c' __' '.' . '. - ", - . -,' Fi\:lally, this ertire process raises grave concerns regarding Clear. Channel's FirstAmendment . rights. Ibelieve that if this niatterproceedsto litigation Clear Channel will be ab!eto show that. its FiJ:st Amendment rights have. been violated, alid tliatthe city may well have treatedqear. . Channel disPilnitelyin denying its permit for lighJingreasonswhile permitting on~premise LED signs in similar zoning illstricts. As a prevailing party in a ~ 1518.3 action, Clear Chitnnel will be entitled to damages and an awatd of attorneys' fees since 42 U.S.C.g 1988 provides that in any action or proceeding to enforce a provision of 9 1983 thecQurt, in its discretion, may allow the' prevailing party reasonable attcnpeys" fees as part 6fthe costs~ For example, see Clear Channel v. City afSt. Paul, 2004 WLI151539." MAL:crb cc: Clear Channel Outdoor, Irc. Attachment 7 D - 5 City Attorney's Response to Clear Channel's Appeals September 10,2007, City Council Meeting Warn!n E. Peterson Jerome P. Filla Daniel Witt Fram 'Glenn A. Bergman John Michael Miller Michael T. Oberle Steven H. Bruns* Paul W. Fahning* Sonja R. Ortiz Amy K. L. Schmidt Ben I. Rust Jared M. Goerlitz P~ERSCN, FRAM BERGMAN Suite 800 55 East Fifth Street St. PauL MN 55101~1718 16511291-8955 (651) 228~1753 facsimile www.pfb-pa.com PROFESSIONAL ASSOCIATION (651 )290-6907 ifi1!atalofb-oa.com August 3, 2007 James Lehnhoff City Planner City of Arden Hills 1245 West Hwy 96 Arden Hills, MN 55112 RE: Clear Channel Signs Our File No.: 10450.07-5 James: I have reviewed Mr. Liszt's memo of July 30, 2007. I disagree with many of his conclusions. 1. Improvement v. Expansion. Mr. Liszt argues that the changes made to one of the Clear Channel signs were either a repair, replacement, restoration, routine maintenance, or an improvement. My view is that the added depth, weight, structural changes and electrical changes necessary to convert the vinyl billboard to a LED billboard collectively amount to an expansion of a non- conforming use. This basic distinction should be kept in mind when reviewing sections A-I, A-2 and 8-1 of Mr. Liszt's memo. The City does not have to permit an expansion of a non-conforming use (M.S. 462.357, Subd. Ie), but in connection with billboard signs the City Council has reserved the rightto allow an expansion in certain cases (see section 4 below) 2. External Lighting. Sign District 7 includes property within the Gateway Zone. The Clear Channel billboards are located within the Gateway Zone. Sign District 7 Regulations indicate that free standing signs can only be lighted externally (Sign Code-Table 1), In the City of Arden Hills external lighting means that the sign is illuminated by means of external light fixtures directed at the sign (Section 1210, Subd. 6). The Clear Channel Sign may have a direct lighting source but it does not have an external lighting source. 3. State Preemption. Mr. Liszt argues that the Minnesota Outdoor Advertising Control Act (ACT) was adopted to regulate the erection and maintenance of advertising devices on land adjacent to highways. I agree. However, he concludes that the State has preempted this area of legislation. I disagree. 'ALSO ADMITTED IN WISCONSIN Lehnhoff August 3, 2007 Page 2 The Act clearly states that nothing in the Act shall be construed to abrogate or effect the provisions of any City Ordinance which is more restrictive than the Act or any rules adopted pursuant to the ACT. (M.S. 173.10 and M.S. 173.20). 4. Zoning Code 1320.13. Subd. 6(G)(3). Mr. Liszt argues that Zoning Code Section 1320.13, Subd. 6(G)(3) is arbitrary and capricious. One of the purposes of the City's Sign Regulations is to promote an attractive environment (1200.02, Subd. 3). The Gateway Zone Regulations recognize that this area of the City creates a first impression and reflects the City's desire to maintain an attractive environment and positive image. (1320.04, Subd. 11) Signs within the Gateway Zone are to be regulated in a way that promotes the purpose of the Zone (1320.13, Subd. G). Consequently, the City Council reserved to itself the right to determine when the expansion of a non-conforming sign would be allowed within this zoning area. The City's Regulation specifies that the Council may authorize an expansion in conjunction with a reduction of signs or sign area. The sign owner can choose to keep the non-conforming sign without expanding it or it can request the Council allow the expansion in conjunction with an overall reduction in sign area. If you have any questions, please contact me. Very truly yours, ~ JPF/jmt (651 )290-6907 ifilla@ofb-oa.com September 5, 2007 James Lehnhoff City Planner City of Arden Hills 1245 West Hwy 96 Arden Hills, MN 55112 VIA EMAIL RE: Clear Channel Outdoor, Inc. Electronic Billboard James: One of the issues raised in connection with the City's review of the Clear Channel, Inc.'s electronic billboard permit application is whether the alterations which was made to the electronic billboard was in the nature of a repair, replacement, restoration, maintenance or improvement to a nonconforming sign which is allowed by M.S. 462.357, Subd. 1e (a), or whether the alteration was an expansion of a nonconforming use which is not allowed without some type of City approval. In this particular case the City could allow an expansion by means of an Agreement between the City and Clear Channel Inc. which would incorporate the sign area on another Clear Channel Inc. ( Arden Hills City Code 1320.13, Subd. 6 (G)(3). I have advised the City that it can be argued that the alterations to the Clear Channel, Inc.'s electronic billboard amounted to an expansion of a nonconforming use. In Adams Outdoor Advertisinq LP. et. al. v. Board of Zoninq Aooeals of the Citv of Virqinia Beach, 2007 WL 1651100 (Va.) decided on June 8, 2007, the Virginia Supreme Court was asked to determine whether the alterations of an electric billboard resulted in an enlargement of a nonconforming use. The billboard height, length and advertising surface did not change but the following alterations were made to the electric billboard: 1. Holes were cut into the frame of the billboard. 2. Bracing was added. 3. The weight was increased by 3,500 lbs. 4. The mass of the billboard was increased. Lehnhoff September 5, 2007 Page 2 5. The dept of one face of the billboard was increased. 6. Additional steel beams were bolted in place. 7. Electrical service to the billboard was upgraded to accommodate the electronic message board. Based upon the above alterations, and in particular the added weight and depth of the electronic billboard, the Adams Court concluded that the electronic billboard had been enlarged. I am attaching a copy of the Virginia case. If you have any questions, pleas contact me. Very truly yours, Jerome P. Filla JPF /jmt . I J~rry'F.DI.. -vves~a_vi':~9.ii~.iiii~C 1~...49.:"3~.Jl~O~do.~: ~: ,.::: :~: ~~gIl11 : ..-' . ::.:: -: _n ::_. .. -- S.E.2d .... ..- S.E.2d ..... 2007 WL 1651100 (Va.) (Cite as: --- S.E.2d --) Adams Outdoor Advertising, L.P. v. Board of Zoning Appeals of City of Virginia Beach Va.,2007, Only the Westlaw citation is currently available. Supreme Court of Virginia. ADAMS OUTDOOR ADVERTISING, L.P.. et al. v. BOARD OF ZONING APPEALS OF the CITY OF VIRGINIA BEACH. Record No. 061272. June 8. 2007. Background: Billboard owner sought review of decision by city board of zoning appeals that installation oran electronic message board enlarged a lawful nonconfonning billboard in violation of city ordinance. The Circuit Court, City of Virginia Beach, William R. O'Brien, 1., upheld decision. Billboard owner appealed. Holdinll: The Supreme Court, Cvnthia D. Kinser. J.. held that installation of electronic message board enlarged billboard in violation orcity ordinance. Affirmed. ill Zoning and Planning 414 €=>679 414 Zoning and Planning 4t4X Judicial Review or Relief 414XICl Seope of RevIew 414XlC)3 Presumptions 414k679 k. Rebuttal of Presumptions, Most Cited Cases Although an appealing party may rebut the presumption of correctness of a decision by city board of zoning appeals by proving by a preponderance of the evidence tbat the board erred in its decision, that evidentiary standard pertains only to questions about the sufficiency of the record to prove a particular fact. West's V.C.A. & 15.2.2314. Page I 414 Zoning and Planning 414X Judicial Review or Relid 414X(C) Scope of Review 414XrClIln General 414k60S k.. Decisions of Boards or Officers in General. Most Cited Cases In reviewing a decision by the city board of zoning appeals, when the issue before tbe circuit court was a question of law, such as the meaning of certain terms used in comprehensive zoning ordinance, the petitioners had the burden of proving that the board either applied erroneous principles of law or that its decision was plainly wrong and in violation of the purpose and intent of the zoning ordinance. ill Zoning and Planning 414 €=>745.1 414 Zoning and Planning 414X Judicial Review or Relief 414X(E) Further Review 414k745 Scope and Extent of Review 414k745.1 k. In General. Most Cited Cases On appeal to the Supreme Court, the Court applies a presumption of correctness to the circuit court's determination affirming the city board of zoning appeals' decision. HI Zoning and Planning 414 €=>233 ill Zoning and Planning 414V Construction, Operation and Effed 414VfAl In General 414k233 k. Meaning of Language. Most Cited Cases When construing a zoning ordinance and its undefined terms, a court gives such terms their plain and natural meaning. ill Zoning and Planning 414 ~231 414 Zoning and Planning 414V Construction, Operation and Effect 414VfAl In General 414k23t k. Construction of Regulations in General. Most Cited Cases Although a court gives consideration to the purpose and intent of the zoning ordinance, it is not permitted to extend the ordinance provisions by interpretation or eonstruetion beyond such iI:) 2007 ThomsonlWesl. No Claim to Orig, U.S. Govt, Works. ill Zoning and Planning 414 €=>605 IJ~rryF'illa - W~~tf~w_O:o.curii~nij.2~49....3L~~~o~.2:c~ .:..:: _:: ,:__::':.,,-:.::.=:~:,~,.: ,:: ::::_., ..:.P~g~.2J -- S.E.2d .... .-- S.E.2d om, 2007 WL 1651100 (Va.) (Cite as: -- S.E.2d --) intent and purpose. I2l Zoning aad Planning 414 €=>231 ill Zoning and Planning 414V Construction, Operation and Effect 414VCAl In General ill!sUl. k. Construction of Regulations in General. Most Cited Cases A court affords great weight to the interpretation given a zoning ordinance by the officials charged witb its administration. ill Zoning and Planning 414 €=>331 W Zoning and Planning iH.Y! Nonconforming Uses 414k329 Enlargement or Extension DrUSe 414k331 It. Increase in Amount or Intensity DrUSe. Most Cited Cases Installation of an electronic message board onto existing nonconforming billboard enlarged the billboard in violation of city's zoning ordinance; although the electronic message board did not increase the billboard's height, length, or advertising surface area, it did increase the billboard's depth. John G. Dicks (Shawn A. CODeland; FutureLaw; Carrell Rice & RigSby, on briefs), for appellants. B. Kay Wilson, Associate City Attorney (Leslie L. Lillev, City Attorney; Andrew B. Pittman, Associate City Attorney, on brief), for appellee. Present: All the Justices. OPINION BY Juslice CYNTHIA D. KINSER. *1 In this appeal, the dispositive issue is whether the installation of an electronic message board "enlarged" a lawful, nonconforming billboard in violation of a city's zoning ordinance. Because we conclude that the message board did enlarge the billboard, we will affirm the judgment of the circuit court upholding the decision of a board of zoning appeals. FACTS AND PROCEEDINGS In 1988, tbe City of Yirginia Beaeb (Ibe City) adopted an ordinance prOhibiting the erection of billboards within the City limits. In relevant part, the ordinance provides: No new billboards shall be erected within the city Page 2 limits, effeetin immediately. All existing billboards sball be governed by the provisions of section 2]5 of tbis ordinance. No billboard heretofore erected shall be located, in wbole or in part, upon improved property. City of Virginia Beach Comprehensive Zoning Ordinanee (CZO) Ii 216(a). Witb respeel 10 existing billboards, CZO fi 215(a) provides, in pertinent part:Notwithstanding the provisions of sedion 105(f) of this ordinance, no nonconforming sign shall be structurally altered, enlarged, moved or replaced, whether voluntarily or by reason of involuntary damage to or destruction of such sign, unless such sign is brought into compliance with the provisions of this ordinance. Adams Outdoor Advertising, L,P, (Adams), owns a billboard erected in the City on real estate owned by F. Wayne McLeskey, Jr, Since tbe billboard was in existence when CZO fi 2]6(a) became effective, it was a lawful, nonconforming billboard. See Code 6 15.2-2307; CZO Ii 105. In March 2004, the City zoning administrator informed Adams that it bad "structurally altered and enlarged" the subjed billboard in violation of CZO Ii 215(a) by installing a large, blaek, electronic message board on the billboard, The zoning administrator directed Adams to remove tbe billboard within 30 days. In accordance witb Code fi 15.1-2311, Adams appealed the zoning administrator's determination to the City board of zoning appeals (BZA). At the 8ZA hearing, the zoning administrator testified that she concluded Adams bad "structurally altered" and "enlarged" the billboard because Adams eut boles in its face and added bracing in order to install the message board, and because the message board increased both tbe weight and mass of the billboard. Adams acknowledged tbat it bad obtained a permit to upgrade the electrical service to the billboard to accommodate the message board. It also admitted that tbe message board weighed 3,500 pounds, Adams argued, however, tbat the Installation of the message board was not a structural alteration or an enlargement of the subject billboard. To support its position, Adams introduced a letter from a strudural engineer, opiDing that the addition of the electronic message board did "not increase tbe force in any structural element by C 2007 ThomsonlWesl. No Claim to Orig. U.S. Gov!. Works. ---S.E.2d---- _. S.E.2d ----, 2007 WL 1651100 (Va.) (Cite as: -- S.E.2d --) more than lfive percent]" and was not, therefore, " 'structural' 85 defined by the International Buildiag Code, (IDC f ) 3403.2, whicb Iwas) incorporated into the Virginia Uniform Statewide Building Code," ~ He also opined that the message board was "smaller in sign area (than] the original sign and Its weight is negligible." *2 The BZA voted to uphold the zoning administrator's determinatioD, One BZA member commented, "IT]o alter or modify a sign to support thirty-five hundred pounds... requires a significant amount of structural change. In this case, it's lal violation of Section 215." Adams and McLeskey (collectively, the petitioners), subsequently filed a petition for a writ of certiorari in the circuit court, asserting that the installation of the electronic message board to one side of the billboard was not a structural alteration or an enlargement, and that, because Adams had subsequently taken the message board off the billboard, tbe City bad no right to demand removal of the entire billboard without paying it "just compensation" under Code S 33.1-379(E), The petitioners requested the cirtuit court to reverse the BZA's decision and enter a final order directing that Adams did not have to remove the billboard. At tbe hearing before the circuit court, the petitioners introduced testimony from a structural engineer, who testified that the force load of the electronic message board was less than five percent. The engineer therefore opined that the message board was not a structural alteration within the meaning of IBC g 3402.2. He further explained that, based on bis visual inspel:tion of the message board, it was sitting on protruding "horizontal angles" and the board was "strapped back with nylon cinch straps." According to the engineer, "[tlbe straps were strapped to the steel angles and channels and support beams," The zoning administrator testified on bebalf of the 8M with regard to her determination that the addition of the electronic message board bad botb "structurally altered" and "enlarged'" the billboard. The zoning administrator explained that the message board bad "enlarged" tbe billboard because it "added to the size, the depth, (and) the volume of the structure," ContinUing, the zoning administrator testified that the insbillation of the message board "structurally Page 3 altered" the billboard due to the steel beams that had been bolted in place. Finally, relying on the provisions of CZO f f 215(a) aad 216(a), the zoning administrator stated that Adams must bring the billboard into compliance with the ew, meaning that Adams must remove it since billboards are no longer allowed in the City. In a letter opinion, which the circuit court incorporated into its final order, the court interpreted the terms "structurally altered" and "enlarged" according to their plain meanings since the ezo does not define either term. The court also considered the CZO's definition of the terms llstructure" and "Isjigns, surface area." Uil The circ:uit court concluded that tbe installation of the electronic message board "structurally altered" tbe billboard. The court further concluded tbat, althougb the message board Ildid not add to the height or length of the billboard's surface, it increased the width on one side." lIII3 Tbe circuit court next addressed the argument tbat removal of the billboard was not required since Adams had remedied any structural alteration or enlargement by returning the billboard to its original condition. Relying on this Court's decision in Adams Outdoor Advertisinp. Ine. v. Board of Zon;np ADDeo/s. 261 Va. 407.544 S,E.2d 315 (200n, tbe court concluded that II(t]he ordinance only appears to suggest removal of a billboard as a remedy for abandoned nonconforming billboards." Thus, tbe circuit court concluded "that the 8ZA did not err" by requiring Adams to remove the billboard. In its final order, the circuit court held that the BZA did not apply erroneous principles of law and that the 8ZA's interpretation of the relevant zoning ordinance provisions was Dot plainly wrong or in violation of the purpose and intent of the ezo. The court therefore upheld the BZA' s determination and directed Adams to remove the billboard. This appeal ensued. ANALYSIS 1.!.llllJJl On appeal to the circuit court, the BZA's decision was entitled to a presumption of correctness. Code S 15.2-2314 (2003) (amended by 2006 Acts ch. 446).'"' Although Code 6 15.2- 2314 provides that the appealing party may rebut the presumption "by proving by a preponderance {l 2007 Thomson/West. No Claim to Orig. U.S. Govt, Works, .=:=:..._=,=- . I J~rrYFilla_- vVestlawj?99ume!1!.Jf!::'4\(,..3~::'$3Ko:~oc__: :=___=..: =:, .. : :_: :.. o... :]~~9~A j -- S,E.2d --- -- S..E.2d --, 2007 WL 1651100 (Va.) (Cite as: --- S.E.2d-) of the evidence ... th.t the [BZA] erred in its decision," that evidentiary standard "pertains only to questions about the sufficiency of the record to prove a particular fact," Board of SUDerv;sors v. Board of Zon;np Anoeals. 271 Va. 336. 348. 626 S.E.2d 374. 381 (20061. When, as in the present case, the Issue before the circuit court was a question of law, j,e. the meaning of certain terms used in the em, the petitioners had the burden of proving that the BZA "eUher applied 'erroneous principles of law' or that its decision was 'plainly wrong and in violation of the purpose and intent ortbe zoning ordinance.'" Trustees of the Christ & St. Luke's Enlseonal Church v. Board or Zon/ne AODea/s. 273 Va. 375. 380. 641 S.E.2d 104.107 (2007) (quoting Board arSuD"v/Sars. 271 Va. at 348. 626 S.E.2d at 382\ (Internal quotation maria omitted). On appeal to this Court, we apply the same presumption of correctness to the circuit court's determination affirming the BZA's decision. /d. at 381. 641 S.E.2d al 107 (citing Patlan v. C/tv of Go/ax. 269 Va. 219. 229. 609 S.E.2d 41. 46 (2005)). The petitioners assign error to the circuit court's judgment upholding the BZA's determination that the installation of the electronic message board botb "structurally altered" and "enlarged" the billboard in violation of ezo fi 215(a), They also assign error to the circuit court's ruling that Adams must remove the billboard in order to comply with the CZO. In order to resolve this appeal, we need to decide only whether the message board "enlarged" the billboard. With regard to that issue, the petitioners argue that, since the CZO does not define the term "enlarged," the definition of the term "(s{igns. surface area" set forth in ezo ~ 111, see supra text accompanying note 2, provides "the only objective and measurable standard" for determining whether the addition of the message board actually enlarged the billboard. Thus, according to the petitioners, since the message board did not increase tbe square footage of the billboard's advertising area under that definition, the installation of the message board did not enlarge the billboard in violation of ezo fi 215(a). *4 [n response, the BZA argues that the zoning administrator and BZA properly applied the "plain and natural meaning" of the term "enlarged." See CaDeIle v, Oran1le Countv. 269 Va. Page 4 60.65. 607 S.E.2d 103. 105 (2005) (applying "the plain and natural meaning" of words contained in a zoning ordinance). The BZA further contends that whether the addition of the message boa rd increased tbe square footage of the advertising surface area is not the eontrolling factor in deciding whether Adams enlarged the billboard, Instead, the BZA asserts that any increases in the billboard's mass and volume must also be considered. Since the addition of the message board increased the weight and depth of the billboard, the 8ZA contends that Adams "enlarged" the billboard. We agree with the 8ZA. ~ When construiog a zoning ordinance and its undefined terms, we give such terms their "plain and natural meaning.1t Canelte. 269 Va. at 6S. 607 S.E.2d at 105 (citing Donovan v. Board of Zonine ADDea/s. 251 Va. 271. 274. 467 S.E.2d 808. 810 lJ996\i McClunf! v. Count" of Henri co. 200 Va. 870. 875. 108 S.E.2d 513. 516 (1959)). "Although we give consideration to the purpose and intent of the ordinance, we are not permitted to extend the ordinance provisions by interpretation or construction beyond such intent and purpose," ld. (citing Donovan. 251 Va. at 274. 467 S.E.2d at 810: GOUllh v. Shaner. 197 Va. 572. 57S. 90 S.E.2d 17J. 174 lJ955n. We also afford "great weight" to the interpretation given a zoning ordinance by tbe officials charged with its administration. Donovan. 251 Va. at 274. 467 S,E.2d at 810: accord Trustees. 273 Va. at 381. 641 S.E.2d al 107. 111 The term "enlarge" means "to make largerj increase in quantity or dimensions; on to increase the eapa<<:ity or." Webster's Third New [nternational Dictionary 754 (1993). The evidence in the record before us demonstrates that the electronic message board added between 3,000 and 3,500 pounds to the weight of the billboard. While the message board did not iocrease tbe billboard's beight, length, or the square footage of its advertising surface area, it did, however, increase the billboard's depth. Thus, we conclude, as did the zoning administrator, the BZA, and the circuit court, that the addition of the message board "enlarged" the billboard in both dimension and weight. [0 this case, that determination was a "judgment call ... best accomplished by those charged with enforcing" the CZO. Trustees. 273 Va, at 38J. 641 S,E.2d at 107 (internal quotation maria omitted); see also Lamar Co.. LiC v. Board of Zonlnll Anneals. 270 Va. 540. 547. 620 S.E.2d 753. 757 (2005). Furthermore, contrary to the <C 2007 ThomsonIWesl. No Claim to Orig, U.S. Govt, WOlles. [Jer,yFilla ~ yirestiaw_l:jci~lJii1e~t 12'::'49'::':i~:::~3$.(f~O:~: :: - .,-:::.: -- _::. Page 51 . ...S.E.2d---- -. S.E.2d -.', 2007 WL 1651100 (Va.) (Cite as: - S.E.2d .._) petitioners' argument, nothing in the ezo's definition of the term "fsjigns. surface area " suggests that I nonconforming billboard is "enlarged" only when the square footage of the advertising surface area is increased. CONCLUSION For these reasons, we conclude that the BZA, in finding tbat the addition of the message board "enlarged" the billboard, did not apply erroneous principles of law. Nor was its decision plainly wrong and in violation of the intent and purpose of the CZO. See Trustees. 273 Va. at 380. 64\ S.E.2d at 107, Because the provisions of COO I 215(8) requiring that no nonconforming billboard "shall be structurally altered, enlarged, moved or replaced" are in the disjunctive, It is not necessary to address the petitionen' assignment of error challenging the circuit court's decision that the installation of the message board "structurally altered" the billboard. .S Furthermore, the petitioners' remalDlDg assignment of error challenging the circuit court's holding that Adams must remove the billboard in order to comply with the CZO speaks only to the "determination that a structural alteration made to a nonconforming billboard cannot be cured by returning the billboard to the same condition in whith it existed prior to the structural alteration." (Emphasis added). The petitioners do not challenge the circuit court's separate, independent holding that Adams could not cure the enlargement of the billboard by returning the billboard to its preexisting condition. Thus, we will not consider that assignment of error..EtIi See MaileD of Man/and. Inc. v. Barr. 262 Va. 1. 545 S.E.2d 548. 548 1200ll (when there i. an independent basis for the lower court's judgment that is not Challenged on appeal, this Court does not address the assigned error). For these reasons, we will affirm the circuit court's judgment. A/firmed. FNI. Apparently, the engineer's citation to IBC ~ 3403.2 was a derical error, He Page 5 should have referenced IBC * 3402.2. FN2. The CZO define. lhe term "Is/trueture II as n(a)nything constructed or erected with a fixed location on the ground, or requiring a fixed location on the ground, or attached to something having or requiring a fixed location on the ground." CZO ~ 11\. In defining the term "lsJigns, surface area." the em states: The surface area of a sign shall be computed as including the entire area within a parallelogram, triangle, circle, semicircle or other regular geometric figure, including all of the elements of the matter displayed, but not including blank masking, frames or structural elements outside the sign surface and bearing no advertising matter. The surface area of each face of a double-faced sign shall count to (ward tbe) total sign area permitted. It/. FN3. As of July 1, 2006, the provisions of Code S 15.2-2314 state that on appeal to a circuit court, lithe findings and conclusions of the board of zoning appeals on questions of fact shall be presumed to be correct" and that "(tlhe court sball hear any arguments on questions of law de novo." 2006 Acts ch. 446. In this opinion, all references to Code S 15,2. 2314 pertain to the version in effect at the time the petitioners filed their petition for a writ of certiorari in the circuit court, which occurred before the 2006 amendments enacted by the General Assembly became effective. FN4. We likewise will not address the petitioners' argument about "just compensation." That issue was not before the BM. See Adams Outdoor Advertisinu. 26\ Va. at 416. 544 S.E.2d at 320. Va.,2007. Adams Outdoor Advertising, L,P. v. Board of Zoning Appeals of City of Virginia Beach - S.E.2d --, 2007 WL 1651100 (Va.) END OF DOCUMENT <<l 2007 ThomsonIWest. No Claim to Orig. U.S. Govt. Works. Attachment 7D-6 Electronic Sign Research/Report: · SRF Report to Minnetonka · Scenic America: Billboards in the Digital Age September 10, 2007, City COWlcil Meeting "DYNAMIC" SIGNAGE: RESEARCH RELATED TO DRIVER DISTRACTION AND ORDINANCE RECOMMENDATIONS Submitted by SRF Consulting Group, Inc. Prepared for City of Minnetonka June 7, 2007 A1 TABLE OF CONTENTS Page No. 1.0 INTRODUCTION ,.."...,...."..",..........,........."...,.,...,....,...,.,.,........,....,...................... 2.0 PURPOSE OF STUDY AND METHODOLOGy..,............,........,........................,.. 3,0 SELECTED RESEARCH FINDINGS ..............,.....,............,.......,..,.............,...,.,..,.. 2 3.1 Expert Opinions ....,..."........"....,.,....,.,..",."....,...".."...,.."...,.,,..,..".........."... 3 3.2 Billboards: a Source of Driver Distraction?...,.....,........,..,..,.......................... 4 3.3 "Dynamic" Billboards: an Additional Source of ....,........,.....,...................... 6 Driver Distraction? 3.3.1 Other Information "..."......,...."...",....,.,..."..,....,.,..,.,...."..".."..,..,..... 9 3.4 How Much Distraction Is a Problem? .........,.......,..........,.................,............. 10 3.5 How Does "Brightness" Affect Driver Distraction?.....................,...,........... 15 3.6 Billboard and Other Signage Regulation: a..............,..,...............,..........,...., 16 Minnesota Perspecti ve 3,7 Billboard and Other Signage Regulation: Other..,.....,.,............,...,........,...... 16 Perspectives 4.0 SUGGESTED REGULATORY APPROACH....,.........,..........,......,.............,...,....... 19 4.1 Definitions. .,...... ,.". ,.., ,."" .." ,. ..." ,.... ....."..", ,..... ,..,.."...."" ,...., ,........ .....,....... 19 4.2 Types of Regulatory Measures ...,............,........,......................,...,..,..........,... 19 4.2.1 Complete or Partial Prohibition of Electronic Signs......................,... 19 4.2.2 Size Limitations on Electronic Signs.......,.............,...........,..,............ 20 4,2.3 Rate-of-Change Limitations on Electronic Signs .........,......,............. 20 4,2.4 Motion, Animation, or Video Limitations on Electronic Signs......... 21 4,2.5 Sign Placement and Spacing.........,.........,.........,.,......,..,.................... 22 4.2,6 Text Size .....,....,.."...",..........,."..........,...,.."...,......".,.,.."...,..,,'...,..... 22 4.2,7 Brightness Limitations on Electronic Signs.............,...,..............,....,. 23 4.3 Public Review ."..",....,..,.,..."."...,.,..,.............,.."...,...."...."..................,......,. 24 5.0 CONCLUSIONS AND RECOMMENDATIONS ..................................,............,.,.. 25 Appendix A - Current Sign Technologies Appendix B - Outdoor Advertising Sign Brightness Definitions Appendix C - Electronic Outdoor Advertising Device Visual PerfOlmance Definitions /1.,2 Pae:e No. LIST OF TABLES Table I: FHWA Reanalysis of Faust man's Findings.......................,...................,.......... 5 Table 2: Crash Causation Summary............,.........,....,.....,.......,.,........,..,.....,....,....,........ II Table 3: Percentage of CDS Crashes Involving Inattention-....,...,.......,...............,......... 12 Distraction Related Crash Causes Table 4: Specific Sources of Distraction Among Distracted Drivers: .......,...,.,...,........., 12 Table 5: Telespot Sign Crash Rates - Expressway Southbound .....,..........,..,................, 13 Table 6: Telespot Sign Crash Rates-Expressway Northbound ,....,..,....,......,.................. 14 Table 7: Number of New Messages Displayed at Various Driver Speeds and............... 21 Time Intervals Between Messages LIST OF FIGURES Pae:e No. Figure 1: VicRoads' Ten Point Road Safety Checklisl.....,...........,............................,..... 18 iA3 1.0 INTRODUCTION This study was precipitated by concerns raised by the City of Minnetonka, Minnesota in regard to the installation of two LED ("light emitting diode") billboards along Interstate 394 and Interstate 494. The LED function was applied to two existing "static" image billboards located adjacent to the interstate. Following installation of the LED function, the City turned off the power to the signs though a stop work order based on current city ordinance prohibiting flashing signs, which is broadly defined, as well as permitting requirements for the retrofitting of the signs to the upgraded technology. The billboard owner sued the City, and the court response to this legal action as of the writing of this study has been to allow limited use of the LED billboards, A moratorium on further signage of this type was established by the City to facilitate the study of issues related to driver distraction and safety and appropriate regulatory measures for LED and other types of changeable signage. This study was undertaken on behalf of the City of Minnetonka to examine these issues. While the concerns were precipitated by LED billboards in particular, this report examines more broadly "dynamic" display signage which is defIned as any characteristics of a sign that appear to have movement or that appear to change, caused by any method other than physically removing and replacing the sign or its components, whether the apparent movement or change is in the display, the sign structure itself, or any other component of the sign. This includes a display that incorporates a technology or method allowing the sib'll face to change the image without having to physically or mechanically replace the sign face or its components. This also includes any rotating, revolving, moving, flashing, blinking, or animated display and any display that incorporates rotating panels, LED lights manipulated through digital input, "digital ink" or any other method or technology that allows the sign face to present a series of images or displays. These capabilities may be provided by a variety of technologies which are discussed later in this report, As the study progressed, additional communities within the Twin Cities Metropolitan Area, as well as the League of Minnesota Cities, expressed interest in these issues. However, it is not the intention of this report to provide a comprehensive study of all issues raised by dynamic sib'llage, or other types of billboards, but rather to focus narrowly on the issues of concern to the City of Minnetonka. 2.0 PURPOSE OF STUDY AND METHODOLOGY Driving a motor vehicle is a complex task that requires the ability to divide one's attention, Simultaneously maintaining a steady and legal speed, changing lanes, navigating traffic and intersections, reading and interpreting street signs, drivers are often challenged by conditions that can change in the blink of an eye, Internal and extel1lal physical conditions can affect how safely the driving task is accomplished. Drug or alcohol intoxication, fatigue and/or distractions in the driving environment all can playa role in motor vehicle crashes. However, these conditions are rarely the sole reason for a crash. Rather, these conditions serve to exacerbate an already- complex driving environment and subsequent mistakes in judgment can lead to crashes, A4 Increasingly complex traffic and roadway enviromnents require greater attention to and focus on the driving task. The purpose of this study is to understand what existing transportation research tells us about the effects of dvnamic signs on motorists, This study also explores regulatory measures enacted in other jurisdictions to address concerns related to driver distraction. Due to time and scope constraints, this report is not comprehensive, but rather addresses the most frequently cited and easily accessible information available, The report concludes with a discussion of regulatory options for the City of Minnetonka to consider in their formulation of policies to address dynamic signage. Information collected for this report draws from a variety of sources including interviews with subject matter experts, government and academic rcsearch, and policies developed to regulate various types of signage. Several city and county sign ordinances were used as references for policy and regulatory research, In some cases, ordinances were brought to our attention by planners and others following the sign ordinance issue. In others, Internet searches were conducted using words and references that apply specifically to dynamic signs_ Several sign manufacturers and sign companies provided an industry perspective through a workshop with the SRF Consulting Group and the City of Minnetonka staff on February 27, 2007. This meeting yielded information about sign characteristics that can be addressed through policy and regulatory measures. Daktronics, a company that manufactures and markets LED signs, was also helpful in this regard, providing informational materials about characteristics of signs that can be regulated and examples of city sign ordinances with which they are familiar. 3.0 SELECTED RESEARCH FINDINGS This following section presents a summary of expert opinions and selected driver distraction research conducted by government and academic researchers examining roadside signage and its effects on the driving task, Studies are organized around critical questions with serious research ramifications. . Is there reason to believe that billboards are a source of distraction? . Is there reason to believe that "dynamic" billboards are an additional source of distraction? . How much distraction is a problem? . How does "brightness" affect driver safety concerns? . How should billboards and other signage be regulatedfrom a driver safety perspective? A5 3.1 Expert Opinions A combination of researchers and public policy experts were interviewed for this study. Individuals were identified while conducting background research into driver distraction and were interviewed because of their credibility in the field, Kathleen Harder, a researcher at the University of Minnesota, has conducted driver distraction research for a variety of applications, including research for Mn/DOT. She is an expert in the field of human factors and psychology. She indicated that electronic billboards pose a driver distraction threat because of their ability to display high resolution color images, their ability to change images, and their placement in relationship to the roadway, particularly in areas where the road curves, exits and entrances are present, merges, lane drops, weaving areas, key locations of official signs, and/or areas where roadways divide, Greg Davis, a researcher with the FHW A Office of Safety Research and Development, in Washington, DC was involved in the 200 I FHW A study on electronic billboards. He was interviewed to gain a deeper understanding of this critical study and to learn of recent research in this area. Davis stated that while no research has established a direct cause and effect relationship between electronic outdoor advertising signs and crash rates, the lack of such a research finding does not preclude a causal relationship between electronic billboards and crashes, He advocated for a new study that can control all variables and determine if a cause and effect relationship exists, Scott Robinson, an outdoor advertising regulator for Mn/DOT, wrote the 2003 technical memorandum that addresses allowable changes for outdoor advertising devices. Mr. Robinson indicated that the memo was originally written in 1998 to establish a permitted rate of change for tri-vision signs and that the application to electronic billboards was not considered. The minimum change rate of 4.9 seconds for 70 mph roadways and 6.2 seconds for 55 mph roadways was based on the travel time between static signs spaced at the minimum allowed distance apart, Mr. Robinson also indicated that the memo is not a MnlDOT policy, statute or rule, but rather it was written to provide intemal guidance. Jerry Wachtel, an Engineering Psychologist and highway safety expert in private practice, was the lead author for the FHW A's original (1980) study on electronic billboards. He has continued his active involvement in this field, and advises Government agencies as well as the outdoor advertising industry on sign ordinances, sign operations, and the implications of the latest research on road safety. Mr. Wachtel believes that it is neither feasible from the perspective of research design and methodology, nor necessary from a regulatory perspective, to demonstrate a causal relationship between digital billboards and road safety, Rather, he believes that we have a strong understanding, based on many years of research, of driver information processing capabilities and limitations, and of the contributions to, and consequences of, driver distraction, on crash risk; and that this understanding is sufficient to support development of guidelines and ordinances for the design, placement, and operation of digital billboards so as to lessen their potentially adverse impact on road safety and traffic operations. A6 Wachtel also offered comments on drafts of this report. In later conversations related to his review, Wachtel stated his belief that even though visual fixations on roadway signs decrease as route familiarity increases, a strength of the new digital billboards is that they can present messages that are always new. Thus, the conclusion from the 1980 FHW A study is another argument against these billboards; namely, drivers spend more time looking at the unfamiliar signs than at familiar ones, suggesting digital billboards are more dangerous than traditional fixed billboards, Wachtel also suggested his preference for a goal to have any given driver experience only one, or a maximum of two, messages from an individual roadside sign, 3.2 Billboards: a Source of Driver Distraction? I The purpose of a sign is to attract the attention of passersby so that a message is conveyed. To the degree signs attract the attention of vehicle drivers, they may distract them from the activity of driving. While this report primarily examines the impact of dynamic roadside advertising, the role traditional static advertising plays in driver distraction is discussed below, The relationship between roadside advertising and crash rates has been the subject of several studies, The majority of this research was conducted in the 1950s, 60s and 70s. While some of the earliest studies have been subsequently criticized for flawed methodologies and improper statistical techniques, some findings emerge when the totality of the studies are examined. One of these findings is that the correlation between crash rates and roadside advertising is strongest in complex driving environments, For example, higher crash rates were found at intersections (generally considered a complex environment) that have advertising than those intersections that do not have advertising, A few of the studies that are important in this field are summarized below. Minnesota Department of Transportation Field Study (1951) and Michigan State Highway Department Field Study (1952) 2 These two studies from the early 1950s uscd similar methods but came to significantly different conclusions. Recognized as the more scientifically rigorous study, the Minnesota study found that increases in the number of advertising signs per mile are correlated with increases in motor vehicle crash rates, It also found that intersections with at least four advertising signs experienced three times more crashes than intersections with no advertising signs. Conversely, the less rigorous Michigan study found the presence of advertising signs had no effect on the number of crashes, Iowa State College, Do Road Signs Affect Accidents? (Lauer & McMonagle, 1955)' A laboratory test was created to determine the effect of advertising signs on driver behavior. The results of this study found removing all advertising signs from the driver's field of vision did not improve driver performance. When signs were included, driver performance was slightly better. Note that laboratory methods used in this study are considered to be dated by today' s standards. "'7 Faustman (California Route 40) Field Study (1961)4 and Federal Highway Administration, Reanalysis of Faustman Field Study (1973)' Two studies that appear to have stood the test of time are Faustman's original analysis of California Route 40 and its re-examination by FHW A more than a decade later. The original analysis tried to improve upon previous research by limiting variables, such as roadway geometric design and roadway access controls. The FHW A reanalysis focused on disaggregating the data and converting actual crashes to expected crash rates on specific roadway sections. Each of the sections was given a value based on the number of billboards on the section, A linear regression was perfonned to detennine the expected crash rates. An analysis of variance of the regression coefficients found that the number of billboards on a section was statistically significant. The reanalysis found a strong correlation between the number of billboards and crash rates as shown in Table I. Table ], FHWA Reanalysis of Faustman 's Findings. o 1 2 3 4 5 Expected No. of Accidents in a 5-year Period 5.92 6,65 7,38 8.11 8,84 9.57 Cumulative Increase in Accident Rate No, of Billboards ]2.3 24.2 37.0 49.3 61.7 Federal Highway Administration Safety and Environmental Design Considerations in the Use of Commercial Electronic Variable-Message Signage (Wachtel & Netherton, 1980) 6 This extensive review provides a comprehensive discussion of roadside advertising research as of 1980. The study authors noted "attempts to quantify the impact of roadside advertising on traffic safety have not yielded conclusive results," The authors found that courts typically rule on the side of disallowing billboards because of the "readily understood logic that a driver cannot be expected to give full attention to his driving tasks when he is reading a billboard." Because the distraction evidence is not conclusive, these decisions were generally not based on empirical evidence, The research review noted that accident reports often cite "driver distraction" as a default category used by uncertain law enforcement officers who must identify the cause of a crash. As a result, the authors believe crashes due to driver distraction are not always properly identified, In addition, law enforcement officers often fail to indicate the precise crash locations on crash reports, making it difficult to establish relationships between crashes and roadside features. ,A8 Accident Research Unit, School of Psychology, University of Nottingham Attraction and distraction of attention with roadside advertisements (Crundall et al.,2005)7 This research used eye movement tracking to measure the difference between street-level advertisements and raised advertisements in terms of how they held drivers' attention at times when attention should have been devoted to driving tasks. The study found that street-level advertising signs are more distracting than raised signs. 3.3 "Dynamic" Billboards: an Additional Source of Distraction? Signage owners or leasers want to incorporate dynamic features into their signage for a number ofreasons: to enhance the sign's ability to attract attention, to facilitate display of larger amounts of information within the same sign area, to conveniently change message content, and to enhance profitability. As mentioned earlier, this report uses the term "dynamic" signs to refer to non-static signs capable of displaying multiple messages. Several studies documented the ability of a sign to accomplish the first of these goals, University of Toronto Observed Driver Glance Behavior at Roadside Advertising Signs (Beijer & Smiley, 2004) · Research done at the University of Toronto compared driver behavior subject to passive (static) and active (dynamic) signs. The study found that about twice as many glances were made toward the active signs than passive signs. A disproportionately larger number of long glances (greater than 0.75 seconds) taken were toward the active signs. The duration of 0.75 seconds is important because it is close to the minimum perception- reaction time required for a driver to react to a slowing vehicle. For vehicles with close following distances, or under unusually complex driving conditions, a perception delay of this length could increase the chance of a crash. The following findings were reported in this study: . 88% of the subjects made long glances (greater than 0,75 seconds), . 22% of all glances made at all signs were long glances (greater than 0.75 seconds), . 20% of all the subjects made long glances of over two seconds. . As compared to static and scrolling text signs, video and tri-vision signs attracted more long glances, . Video and scrolling text signs received the longest average maximum glance duration, . All three of the moving sign types (video, scrolling text and tri-vision) attracted more than twice as many glances as static signs. ;"9 University of Toronto Impact of Video Advertising on Driver Fixation Patterns (Smiley et aI., 2001) 9 Another study completed at the University of Toronto used similar eye fixation information in urban locations to show that drivers made roughly the same number of glances at traffic signals and street signs with and without full-motion video billboards present. This may be interpreted to mean that while electronic billboards may be distracting, they do not appear to distract drivers from noticing traffic signs, This study also found that video signs entering the driver's line of sight directly in front of the vehicle (e.g., when the sign is situated at a curve) are very distracting. City of Seattle Report (Wachtel, 2001) ,. The City of Seattle commissioned a report in 200 I to examine the relationship between electronic signs with moving/flashing images and driver distraction. The report found that electronic signs with moving images contribute to driver distraction for longer intervals than electronic signs with no movement. Following are major points made in the report: . New video display technologies produce images of higher quality than previously available technologies. These signs have improved color, image quality and brightness. . New video display technologies use LEDs with higher viewing angles. Drivers can read the sign from very close distances when they are at a large angle from the face of the sign. . Signs with a visual story or message that carries for two or more frames are particularly distracting because drivers tend to focus on the message until it is completed rather than the driving task at hand. . Research has shown that drivers expend about 80 percent of their attention on driving related tasks, leaving 20% of their attention for non-essential tasks. . The Seattle consultant suggests a "10 second rule" as the maximum display time for a video message. The expanded content of a dynamic sign also contributes to extended distraction from the driving task. The Seattle Report examined how this may be due in part to the Zeigarnik effect which describes the psychological need to follow a task to its conclusion. People's attention is limited by the ability to only focus on a small number of tasks at a time, and by the tendency to choose to complete one task before beginning another. In a driving environment, drivers' attention might be drawn to the sign rather than the task of driving because they are waiting to see a change in the message. This loss of attention could lead to unsafe driving behaviors, such as prolonged glances away from the roadway, slowing, or even lane departure. ~10 While the Zeigarnik effect may be present in a wide variety of driving situations, possible scenarios that could affect drivers include: . A scrolling message requires the viewer to concentrate as the message is revealed. Based on the size and resolution of the sign, and the length of the message, this could range from less than one second to many seconds. . A sequence of images or messages that tell a story, during which the driver's attention may be captured for the entire duration that the sign is visible. Instead of merely glancing at the sign and then returning concentration to the driving task, more attention may be given to the message, . Anticipation of a new image appearing, even if the expected new image is not related to the first image, In this case, the driver may be distracted while waiting for the change. Federal Highway Administration Safety and Environmental Design Considerations in the Use of Commercial Electronic Variable-Message Signage (Wachtel & Netherton, 1980) 11 This research provides information on the use of on-premise Commercial Electronic Variable-Message Signs (CEVMS) that display public service information (i.e,. time and temperature) and advertising messages along the Interstate highway system. The research found the following major considerations: . Highway Safety Considerations The link between changing messages that attract drivers' attention and crashes has been an issue of concern since the earliest forms of electronic signage became available. This study thoroughly reviewed the literature seeking information regarding a potential link between CEVMS and crashes: "Although a trend in recent findings has begun to point to a demonstrable relationship between CEVMS and accidents, the available evidence remains statistically insufficient to scientifically support this relationship. " The study also noted that studies have not documented information about "such occurrences as 'near misses' or traffic impedances that are widely recognized as relevant to safety, and which mayor may not be attributable to the presence of roadside advertising." . Human F actors Considerations Human factors relate to all the elements that explain driver behavior, such as eye glances and driver responses to a variety of driving-related stimuli, The study makes the point that simple driving-related tasks consume relatively little information processing capacity, However, when other conditions, such as congestion, complicated roadway geometries, or weather are also considered, the marginal extra ~11 amount of attention required to read roadside advertisements could lead to driving errors that could cause crashes, "The enormous flexibility of display possessed by CEVMS makes it possible to use them in ways that can attract drivers' attention at greater distances, hold their attention longer. and deliver a wider variety oj" inj"ormation and image stimuli than is possible by the use oj" conventional advertising signs. " Texas Transportation Institute for FHWA, Impacts of Using Dynamic Features to Display Messages on Changeable Message Signs (Dudek et aI., 2005) 12 This study examined the comprehension times for three different scenarios for DOT -operated changeable message signs. The scenarios evaluated were: . Flashing an entire one-phase message . Flashing one line of a one-phase message while two other lines of the message remain constant . Alternating text on one line of a three-line eM S while keeping the other two lines of text constant on the second phase of the message The findings of this study were: . Flashing messages did not produce faster reading times, . Flashing messages may have an adverse effect on message comprehension for unfamiliar drivers, . Average reading times for flashing line messages and two-phase messages were significantly longer than for alternating messages, . Message comprehension was negatively affected by flashing line messages. While this research did not evaluate advertising-related signs, it does demonstrate that flashing signs require more of the driver's time and attention to comprehend the message. In the case of electronic billboards, this suggests that billboards that flash may require more time and attention to read than static ones. 3.3.1 OTHER INFORMATION NHTSA Driver Distraction Internet Forum (2000) 13 The National Highway Traffic Safety Administration held an internet forum to gather research and public comment related to driver distraction with an emphasis on the use of cell phones, navigation systems, wireless Internet and other in-vehicle devices. During this forum, participants were invited to take a poll to determine the most prominent driver q.12 distraction issues. Electronic billboards were identified as one of six noted sources of distraction, Parliament of Victoria, Australia, Report of the Road Safety Committee on the Inquiry into Driver Distraction (2006) ,. This report identified road signs and advertising as one of the largest sources of driver distraction. At least three billboards near Melbourne, Australia display moving images. "The Committee considers these screens to be at the high end of potential visual distraction and accordingly, present a risk to drivers. " The study also included a quote from the Manager of the Road User Behaviour group at VicRoads (the State's road and traffic authority) from a December 2005 hearing: What we do know is when there is movement involved, such as flicker or movement in the visual periphery, that this is more likely to capture a driver's attention, We actually are hard-wired as human beings to movement, so particularly moving screens and information that scrolls at intersections and in highly complex driving situations - these are risky, and in particular researchers have been most concerned about those sort of advertising materials, This opinion would suggest that electronic signs can present a distraction to drivers, 3.4 How Much Distraction Is a Problem? A number of studies were identified that discussed concerns with driver distraction generally, It should be noted that some of the studies cited use specific crash data that is ten or more years old. Direct comparison of distraction sources to influences of today may not be completely valid due to increased technological sophistication of distracting influences. These could include in- vehicle technology (e.g., navigation systems, MP3 players, DVD players, CD players, computer systems, etc,) as well as other potentially distracting influences (e,g., cell phones, text messaging, dynamic signage, other roadway elements, etc.) that were not commonplace when the data for these studies was collected: Australian Road Research Board Investigations of Distraction by Irrelevant Information (Johnston & Cole, 1976) 15 This research used five experiments to test whether drivers could maintain efficient performance in their driving tasks while being subjected to content that was information rich, but irrelevant to driving. The findings were that a small, but statistically significant amount of performance degradation was observed when the participant was under a critical load of stimuli. ~13 National Highway Traffic Safety Administrationl Virginia Tech Transportation Institute Impact of Driver Inattention on Near-CrashlCrash Risk: An Analysis Using the 100-Car Naturalistic Driving Study Data (Klauer et aI., 2006) 16 This study analyzed the data from a driving database developed by the National Highway Traffic Safety Administration. This database contained exhaustive data recorded by instrumented vehicles that measured glance position, impairment, drowsiness, risk taking and many other parameters potentially involved in crash causation, Vehicles were instrumented so that an observer did not need to be in the vehicle to collect data. Automated data collection reduced the problem of an observer influencing driver behavior. The study found that glances of two seconds or greater doubled the risk of crashes or near-crashes. The study also found that 22 percent of crashes are accompanied by "secondary-task" distraction whether inside or outside the vehicle. National Highway Traffic Safety Administrationl Virginia Tech Transportation Institute Driver Inattention is a Major Factor in Serious Traffic Crashes (2001) 17 The National Highway Traffic Safety Administration commissioned a study to examine the causes of crashes, The study gathered information from four areas throughout the country and used data from the National Automotive Sampling System (NASS) from April 1996-April 1997 for analysis. The geographic areas were selected because they had good crash investigation practices and high interview completion rates. The results of this study are summarized in Table 2. Table 2, Crash Causation Summary Percentage of Drivers Contributing to Causation 22.7 18.7 18.2 15,1 10,1 6.4 8,8 Causal Category Driver Inattention Vehicle Speed Alcohol Impairment Perceptual Errors Decision Errors Incapacitation Other Association for the Advancement of Automotive Medicine The Role of Driver Inattention in Crashes; New Statistics from the 1995 Crashworthiness Data System (Wang, 1996) 18 This report analyzed the NHTSA 1995 Crash Worthiness Data System (CDS), It found that the greatest source of driver distraction (3,2 percent) was due to a specified person, object or event outside the vehicle. The full results of the study are presented in Table 3. h-14 Table 3. Percentage of CDS Crashes Involving Inattention-Distraction Related Crash Causes %of %of Data Element Drivers Cr31hes Attentive or not distracted 46.6% 28.4% Looked but did not see 5.6% 9.7% Disttacted ~ other occupant [specifiW} 0.9% 1.6% Distracted by moving object in vehicle [specified] 0.3% 0.5% Distracted while dialing, talking, or listening 10 cellular O.I%@ O.I%@ phone {1ocation and type of phone specified) Distracted while adjusting climate CotltroJs 0.2%@ 0.3%@ Distracted while adiUsting radio. cassette. CD ~ecifiedl 1.2% 2_1% Distracted while using other devicelobjectitt vehicle 0_1% 0,216 [specified] ~ or feU asleep 1.5% 2.6% Distracted by outside T'lf'rson. obwt. or event [~fied] 2.0% 3,2% Ealin. or drinlrin. 0.1% 0,2% Smoking-related 0.1% 0.2% Distracted/inattentive, details unknown 1.5% 2,6% Other distracti<>n [specified] 1.3% 2.2% Unknown/No Driver 38.5% 46,0% Weighted driver N ~ 4,627~OOO (1,943, unweigbUdl: weigbted cruh N "'" 2.619,000 (4,536): In order for a crlMh to -classified "I1ttentive,~ aU invo:lved drivers bad to be classified -attentive." @ ~ estimate: based on 5..9 cases. University of North Carolina Highway Safety Research Center The Role of Driver Distraction in Traffic Crashes (Stutts et aI., 2001) 19 A study prepared by the University of North Carolina Highway Safety Research Center for the AAA Foundation for Traffic Safety examined the sources of driver distraction in traffic crashes. The data came from the CDS from 1995-1999. Of the thirteen specific sources of distraction tracked by the study, the greatest source of distraction was an outside person, object or event While the study does not break down the sources of outside distraction, it does show that distractions outside the vehicle are the largest factor in distraction-related crashes. The results of this study are presented in Table 4. Table 4, Specific Sources of Distraction AmonR Drivers in Distraction-Related Crashes Percentage of Drivers Specific Distraction Outside person, object or event Adjusting radio, cassetle, CD Other occupant in vehicle Moving object in vehicle Other device/object broughl inlo vehicle Adjusting vehicle/climate conlrols Eating or drinking Using/dialing cell phone Smoking related Other distraction Unknown distraction Total 29,4 1],4 10,9 43 2,9 2.8 1.7 1.5 0,9 25,6 8.6 100,0 ~15 Three studies were found which attempted to measure driver behavior specifically in response to dynamic signage. Two of these studies demonstrated a potential relationship between dynamic signage and crash rates: Minnesota Department of Transportation, The Effectiveness and Safety of Traffic and Non-Traffic Related Messages Presented on Changeable Message Signs (CMS) (Harder, 2004) 20 This study used a driving simulator to measure the effect of Department of Transportation changeable message signs on traffic flow. The two messages evaluated were a "crash ahead" warning and an AMBER Alert (child abduction information). The research found that just over half of the participants used the "crash ahead" message and 60 percent could recall the AMBER Alert with scores of Good or Better. Over one fifth of the participants slowed down by at least 2 mph upon seeing the AMBER Alert, demonstrating that messages relevant to drivers are associated with changes in at least some drivers' travel speed. Decision of the Outdoor Advertising Board in the Matter of John Donnelly & Sons, Permitee, Te/espot of New England, Inc., Intervenor, and Department of Public Works, Intervenor, with Respect to Permit Numbered 19260 as Amended (1976) 21 This proceeding documents the Commonwealth of Massachusetts Outdoor Advel1ising Board's ruling regarding one of the first changeable signs. This sign was located near an arterial road in Boston and used magnetic discs to portray a message that changed every 30 seconds. The original sign permit was rejected based on four criteria, one of which was safety. Upon appeal, the Massachusetts Department of Public Works allowed the permit based on the fact that the sign would give the public a benefit. However, they ultimately determined that the sign was a safety hazard based on crash rates before and after the sign was installed. Tables 5 and 6 show the change in crash rates, Table 5. Telespot Sign Crash Rates - Expressway Southbound Average Average Average per year per year Percent (11111970- (11111973- Change 12/3111972) 3/3111975) Crashes where the sign was viewable 29,0 20.0 -31.0 (north of sion) Crashes where the sign was not viewable 39.0 15,6 -60,0 (sonth of sion) ~16 Table 6, Telespot Sign Crash Rates - Expressway Northbound Average per year Average per year Average (1/1/1970- (1/1/1973- Percent 12/31/1972) 3/31/1975) Chan2e Crashes where the sign was viewable 46.3 42,7 -7,8 (south of sion) Crashes where the sign was not viewable 8,0 1.8 -77.5 (north of sion) This analysis shows that while crash rates decreased on comparable sections in the years after the sign was installed, the sections where the sign was visible experienced smaller crash rate decreases, Due to these arguments, the Board ruled that the operation of the sign must be terminated. Wisconsin Department of Transportation Milwaukee Counfy Stadium Variable Message Sign Study - Impacts of an Advertising Variable Message Sign on Freeway Traffic (1994)" A study prepared by the Wisconsin Department of Transportation (WisDOT) examined crash rates before and after an advertising variable message sign was installed in 1984 on the Milwaukee County Stadium, home of the Milwaukee Brewers professional baseball team. Crash statistics were analyzed for the three years before and the one and three years after the sign was installed. As they are often associated with driver distraction, side-swipe and rear-end crashes, as well as total crashes, were examined for both the eastbound and westbound directions. The sign was much more visible to eastbound traffic due to the stadium's proximity to the roadway and the amount of visual obstructions for westbound traffic. The analysis found an increase in crash rates for all crash types in the eastbound direction after the sign was installed. Most pronounced was an 80 percent increase in side-swipe crashes after the first year of installation, Results in the westbound direction were mixed, with a 29 percent decrease in crashes the first year the sign was in place and a 35 percent increase in the three years the sign was in place. Although no control roadway sections were studied, an interview with the study author revealed that the introduction of a sign on a high volume curving roadway may have introduced enough distraction to an already demanding driving environment to explain the higher crash rate in the eastbound direction. The study author also stated that the study was not able to establish a causal relationship between the sign and the crash rates. n Federal Highway Administration Research Review of Potential Safety Effects of Electronic Billboards on Driver Attention and Distraction (2001) 24 The Federal Highway Administration published a comprehensive report in 2001 that consisted of a literature search, literature review and a description of research needs for ~17 the topic of electronic billboards (EBBs). While the study did not conduct any new research, it does provide an excellent summary of the role electronic billboards play in traffic safety and includes good descriptions of the terminology related to electronic billboards. Selected findings from that synthesis are provided below: "In most instances, researchers were not able to verify that an EBB was a major factor in causing a crash. Only one study since the 1980 review and one lawsuit were identified. " "Studies were identified that verified that: an increase In distraction, a decrease in conspicuity. or a decrease In legibility may cause an increase in the crash rate, " "Commercial EBBs are designed to 'catch the eye' of drivers. Their presence may distract drivers from concentrating on the driving task and visual surrounds, " "There is indication that individual differences in age and driving experience may be important considerations in driver distraction, and are relevant to understanding driver responses to the external environment, Furthermore, research regarding driver familiarity of their route demonstrated that visual .fixations on roadway signs decreases as route familiarity increases, This research may show that there is a difference between commuter and visiting drivers, " Based on these findings, the FHW A recommended additional research to further demonstrate how roadway characteristics, sign characteristics and legibility, driver characteristics and other potential driver distractions affect traffic safety. FHW A was contacted to see if any new information was available. Greg Davis, a Research Psychologist with the FHW A Office of Safety R&D, indicated that the FHW A has not performed additional studies on the topic since the report was published. He stated that there is "no direct correlation between electronic outdoor advertising signs and crash rates". He referred to a before/after study of electronic signs installed along a freeway in Las Vegas that found no change in crash rates. He went on to say that the lack of a research finding that links signs with crash rates does not mean that a causal relationship does not exist. He indicated that he has been contacted by several law enforcement agencies regarding the link between driver distraction and dynamic message signs/electronic billboards. He indicated that this is a timely and pertinent topic for many states due to the increasing popularity and capabilities of electronic outdoor advertising devices, and he expects further research to be forthcoming. He advocates for a new study that can control for all variables and determine if a cause and effect relationship exists25 3.5 How Does "Brightness" Affect Driver Safety Concerns? The brightness of any sign, static or dynamic, raises concerns with discomfort or disability glare to the driver that may arise when viewing any lighted object. Disability Glare occurs when a ~18 driver is exposed to a light source so bright that it temporarily blinds the driver, impairing their ability to perform driving tasks, This temporary blindness is brief, but can be dangerous. Discomfort Glare occurs when a light source is bright enough to distract or encourage the driver to look away from the light, but is not blinding. Discomfort glare is of particular concern in cases where a bright sign is located in the same line of sight as a traffic sign, signal or another vehicle. While concerns about glare are not unique to dynamic signs, newer sign technologies, which often include dynamic components, have the technical capability to emit more light and/or respond to ambient light conditions, raising additional concerns about sign brightness in areas where signs compete with regulatory traffic signs or signals. 3.6 Billboards and Other Signage Regulation: a Minnesota Perspective Roadside signage is governed by policies and laws at the federal, state and local levels. Minnesota Statute, Chapter 173 seeks to "reasonably and effectively regulate and control the erection or maintenance of advertising devices on land adjacent to such highways." The statute requires adherence to federal statutes with respect to interstate and primary systems of highways, Minnesota Statute Ch. 173.16 Subd. 3, regulates lighting of signs. Signs which are "illuminated by any flashing light or lights, except those giving public service information" (time, date, temperature, weather or news) are prohibited, This section also states: (b) Advertising devices shall not be erected or maintained which are not effectively shielded so as to prevent beams or rays oflight from being directed at any portion of the traveled way of an interstate or primary highway, of such intensity or brilliance as to cause glare or impair the vision of the operator of any motor vehicle; or which otherwise interfere with any driver's operation of a motor vehicle are prohibited. and (c) Outdoor advertising devices shall not be erected or maintained which shall be so illuminated that they interfere with the effectiveness of or obscure any official traffic sign, device or signal. 3.7 Billboard and Other Signage Regulation: Other Perspectives During the course of this study, several articles were found which summarize regulation of dynamic signage in other states: Wisconsin Department of Transportation Electronic Billboards and Highway Safety (2003) 26 The Wisconsin Department of Transportation also published a literature review report to further explain the current state of EBB research, Although much of the information is ~19 . No message may be displayed for less than one-half second; . No message may be repeated at intervals ofless than two seconds; . No segmented message may last longer than 10 seconds; . No traveling message may travel at a rate slower than 16 light columns per second or faster than 32 colurrms per second (light column defined as pixel colurrm); . No variable message sign lamp may be illuminated to a degree of brightness that is greater than necessary for adequate visibility, mentioned in other sections of this report, the Wisconsin review did summanze Wisconsin's regulations for electronic billboards. National Alliance of Highway Beautification Agencies (1999) 27 Although this survey is eight years old, it generated the following information related to electronic billboards: . Nine states had specific regulations governing signs, . Nine states had regulations on tri-vision signs that were either being drafted or in pending legislation, . Fifteen states had regulations regarding moving parts and/or lights, . Nine state had no regulations on tri-vision signs, and . Six states and Washington, DC, prohibited tri-vision signs. An investigation into state outdoor advertising regulations was also conducted, . Thirty-six states had prohibitions on signs with red, flashing, intermittent, or moving lights, . Twenty-nine states prohibited signs that were so illuminated as to obscure or interfere with traffic control devices, and . Twenty-nine states prohibited signs located on interstate or primary highway outside of the zoning authority of incorporated cities within 500 ft of an interchange or intersection at grade or safety roadside area, Parliament of Victoria, Australia, Report of the Road Safety Committee on the Inquiry into Driver Distraction (2006) 28 This report, cited earlier for its driver distraction opinions, identifies road signs and advertising as one of the largest sources of driver distraction. VicRoads, the state's road and traffic authority, has implemented the following regulations, ~20 Figure I. VicRoads' Ten Point Road Safety Checklist An advertisement, or any structure, device or hoarding for the exhibition of an advertisement, is considered to be a road safety hazard if it: 1. obstructs a driver's line of sight at an intersection, curve or point of egress from an adjacent property; or 2. obstructs a driver's view of a traffic control device, or is likely to create a confusing or dominating background which might reduce the clarity or effectiveness of a traffic control device; or 3. could dazzle or distract drivers due to its size, design or colouring, or it being illuminated, reflective, animated or flashing; or 4. is at a location where particular concentration is required (eg, high pedestrian volume intersection); or 5. is likely to be mistaken for a traffic control device, for example, because it contains red, green or yellow lighting, or has red circles, octagons, crosses or triangles, or arrows; or 6. requires close study from a moving or stationary vehicle in a location where the vehicle would be unprotected from passing traffic; or 7. invites drivers to turn where there is fast moving traffic or the sign is so close to the turning point that there is no time to signal and turn safely; or 8. is within 100 metres of a rural railway crossing; or 9. has insufficient clearance from vehicles on the carriageway; or 10. could mislead drivers or be mistaken as an instruction to drivers, ~21 VicRoads also gives operational requirements for electronic advertising message signs. Signage must: . not display animated or moving images, or flashing or intermittent lights; . remain unchanged for a minimum of 30 seconds; . not be visible from a freeway; and . satisfy the ten-point checklist. 4.0 SUGGESTED REGULA TORY APPROACH Local governments regulate electronic outdoor advertising devices in widely varying degrees. Some cities completely prohibit the use of all electronic signs (sometimes specifying LED signs), while others have no regulations specific to electronic signs. Between those two extremes, there are many levels and types of control that can be applied. The primary concerns to keep in mind when considering sign regulations are I) First Amendment rights, which can be affected by regulations that affect the content of a sign's message, and therefore should be avoided, and 2) changing technology, which can quickly make a sign ordinance no longer applicable if the ordinance has been specifically written to address a certain type of sign technology. Performance based measures may therefore be preferable as they remain viable even as sign technology advances. 4.1 Definitions Signage discussions often include a number of different words or phrases used to describe the technical characteristics of signage devices or their components (such as LEDs). For the purpose of zoning, some additional terms are also used to describe sign characteristics. Any regulatory efforts should take care to precisely define terminology. One possible resource in this effort is "Street Graphics and the Law," published by the American Planning Association (APA) Planning Advisory Service29 4.2 Types of Regulatory Measures 4.2.1 Complete or Partial Prohibition of Electronic Signs Some cities have completely prohibited the use of electronic outdoor advertising devices, For example, the City of Maple Valley, W A prohibits all types of electronic outdoor advertising devices including animated signs, electronic changeable message signs, flashing signs or displays, moving signs, scrolling displays, and traveling displays. This applies to both on- premise and off-premise signs. Other cities are very selective about where electronic signs are allowed, allowing them only in certain zoning districts. There are very few "standard" approaches. For the most part, each local ~22 government tailors their regulations to their own situation. One approach adopted by cities is to prohibit electronic outdoor advertising devices in residential zoning districts, and for a certain distance away from residential zoning districts, similar to the zoning limitations placed on illuminated signs, Some ordinances require that electronic signs be situated such that the sign face is not visible from nearby residences. 4,2.2 Size Limitations on Electronic Signs Another way of regulating electronic signs is to limit their size. Again, there is no set standard for this. One ordinance reviewed for the purpose of this study limits the electronic portion of a sign to no more than 50 percent of the sign face with the overall size determined by whatever the sign ordinance allows for a particular zoning district. Other examples of electronic sign size limitations include five square feet, 1,000 square inches, 20 square feet, and so forth. In other ordinances, there is no differentiation made between the size of electronic signs and other signs. According to input from representatives of the sign industry, the smaller the size of the electronic sign, the more desirable it is for businesses to use frequent message changes, or sequenced messages, where more than one screen of text is used to convey an entire message. 4,2.3 Rate-of-Change Limitations on Electronic Signs Many communities that allow electronic signs also regulate the rate at which the messages on the sigus can be changed. Research on sign codes has shown this to range from as little as four seconds to as long as 24 hours. The Interstate 394 sign between Ridgedale Drive and Plymouth Road is visible for approximately 45 seconds at free flow traffic speeds. Depending on text size, the message may not be readable by drivers during this entire duration, but the message changes can attract attention from long distances, Depending on how often the message changes occur and the speed of traffic, drivers on this segment could see a varying number of discrete messages. Table 7 provides the number of message changes a driver would see at different change durations and traffic speeds. ~23 Table 7. Number of New Messages Seen at Various Driver Speeds and Time Intervals Between Messages Number of Messages Seen Time sign is Message Display Time (seconds) Speed clearly visible* 1800 3600 (mph) (seconds) 6 8 10 60 (30 minutes) (1 hour) 30 60 II 9 7 2 I I 45 40 8 6 5 2 I I 55 33 7 5 4 2 I I * Assuming the sign is clearly visible from one-half mile away. Prohibiting displays from changing quickly can minimize potential driver distraction, but it would significautly limit the message owner's ability to convey information that does not fit on one screen of the sign. Using two or more successive screens to convey a message is referred to as sequencing. Based on the studies summarized in part 3 of this Report, including the glance duration studies performed by Klaur for the FHW A in 2006 and by Beijer & Smiley in 2004, and Wachtel's analysis for Seattle of the Zeigarnik effect, a message delivery system such as sequencing that requires or induces a driver to watch the sign for several seconds increases the likelihood of driver distraction. Based on information from the sign industry, for sequencing to be effective in a marketing sense, a brief rate-of-change (1-2 seconds) is generally used before transitioning into the next screen. Some codes specify how an image changes, while other codes prohibit the use of transitions. The change from one image to another can be accomplished by various techniques: no transition - simply a change from one screen to another, or fading or dissolving one image into the next. Flashing, spinning, revolving, or other more distracting transition methods can be prohibited, allowing businesses to use sequencing in an effective manner without making the signs overly distracting, Another way of regulating distracting transitions is to require a very short time of a dark or empty screen between images. 4.2.4 Motion. Animation. or Video Limitations on Electronic Signs Motion on a sign can consist of everything from special text effects (spinning, revolving, shaking, flashing, etc,) to simple graphics, such as balloons or bubbles rising across the screen, to more realistic moving images that have the appearance of a television screen. According to sign industry representatives, video imagery on a sign is referred to as "animation" if the sign is limited to the capability of 10 frames per second. Fewer frames per second make the moving image look more like animation. Imagery produced by signs that have the capability of processing up to 30 frames per second is accurately referred to as "video" imaging. Many communities that allow dynamic signs do not allow the application of any type of motion, animation, or video on the signs, However, Seattle was obliged to allow video imagery on their signs after earlier signage code regulating certain types of signs was not strictly enforced. In addition to requiring a dark period between successive messages to overcome the Zeigarnik effect, Seattle also limits the duration of the video message to a minimum of two seconds and a ~24 maximum of 10 seconds. This time frame was established based upon careful calculations of the streets from which these signs could be seen, speed limits and tmffic volumes in addition to the community's concern over the extent to which moving images could distract drivers. However, Seattle also limits the size of their electronic signs to a maximum of 1,000 square inches, with no single dimension greater than three feet, thus minimizing the effect of video images. 4.2,5 Sign Placement and Soacing Regulating the number of dynamic sign potentially visible to a driver at anyone time as well as the position of the sign in relationship to the roadway may reduce distraction to drivers. Spacing requirements should consider the speed, width and horizontal and vertical alignment of the roadway, Some communities have established minimum distances between electronic signs. Establishing an adequate distance between these types of devices seems particularly important if a fairly fast rate of change is allowed for the purpose of facilitating sequenced messages or if animation and video imaging is allowed. Closely spaced signs attempting to convey sequenced messages may simply create visual overload and an over-stimulated driving environment. Research conducted to date has not yielded information about optimal electronic sign spacing. Seattle adopted a 35- foot spacing requirement for their electronic signs based upon multiple levels of analysis of the downtown city environment in which these signs are present. Due to the varying characteristics of individual roadways in this regard, overlay districts allowing dynamic signage with conditions specific to that area could be considered. Overlay districts could also take into account other locational factors such as offset from the roadway and conspicuity, Determining appropriate offsets from the roadway must consider roadway clear zone requirements as well as spacing of frontage roads and access points, while also considering the signage too far outside the driver's line of sight may be a further distraction. Conspicuity, a sign's ability to stand out from its surroundings, should also be considered. 4.2,6 Text Size Legibility is another important property of signage. The preferred approach used within highway signing is that drivers can read text that is I inch high from 30 feet away. Larger text is needed for signs to be legible at greater distances. Large, legible text allows the driver to read the billboard from varying distances and focus on the driving task. Conversely, with small text, the driver is more likely to focus on the sign for a longer period of time and possibly be more adversely distracted. However, the size or type of text or the amount of text due is rarely regulated, ~25 4.2.7 Brightness Limitations on Electronic Signs One of the main concerns about the use of electronic signs, regardless of whether they consist of changeable text, animation, or video, is the brightness of the image. The brightness of an object can be characterized in two ways, lIuminance is the total brightness of all the light at a point of measurement. Illuminance often describes ambient light and can be measured with a standard light meter such as is used in photography. Luminance is the measure of the light emanating from an object with respect to its size and is the term is used to quantify electronic sign brightness. The unit of measurement for luminance is nits, which is the total amount of light emitted from a sign divided by the surface area of the sign (candelas per square meter). Many, but not all, LED-type signage can be time-programmed to respond to day and nighttime light levels. Higher-end signage types are equipped with photo cells to respond to ambient light conditions. Despite these controls, LED signs have been observed that are considered to be excessively bright. Sign industry representatives indicate that excessive brightness can be the result of I) sign malfunction or improper wiring, 2) lack of photo cell and/or dimming mechanism, or 3) operator error or lack of understanding that brightness is not necessarily an advantage, especially if it makes a sign umeadable or unpleasant to look at. They also maintain that the intent of the electronic sign industry is to establish a brightness level that is similar to a traditional internally or externally lit sign. Recent observations of sign technicians calibrating the Interstate 394 LED billboard noted that the brightness controls are not calibrated to specific nit levels, but rather vary in proportion to a set maximum level, like a volume control dial on a typical car radio. To control the extent to which electronic signs are a distraction or the extent to which they are readable, many local governments have adopted regulations that limit nit levels. At this time, ordinances that use nit level limitations typically differentiate between day time and night time nit levels. A common daytime nit limitation ranges from 5,000 to 7,000 nits. A common nighttime limitation is 500 nits, although in areas that are extremely dark at night, with very little in the way of ambient light levels, less than 500 nits may be appropriate, Other communities have taken this farther, such as Lincoln, Nebraska, whose sign code incorporates a graph of varying ambient light levels ranging from night time to a bright sunny day and all conditions between those two extremes, and has correlating nit limitations for the various ambient light levels, Enforcement of these types of regulations is challenging as luminance of electronic signs is very difficult to measure in the field. Typically, sign luminance is measured and calibrated in a controlled factory setting using a spectral photometer to measure the light output. This calibration setting is then used in conjunction with a photo cell to control the brightness of the sign. The higher the ambient light levels, the brighter the sign, There are different nit thresholds for various colors. White is most often used to set dimming levels because at a constant nit level, white has the most intensity as perceived by the human eye. Lincoln uses a light meter to conduct testing on electronic signs and found a wide range of luminance levels. One small electronic sign had luminance levels of 13,000 nits, The process that Lincoln uses to check luminance levels is to hold a luminance meter close to the face of the sign so that it captures only the light emitted from the sign. They have not had any requests to ~26 measure the brightness of LED billboards, so the viability of using this approach on billboards has not been explored. In Seattle, sign luminance was found too difficult to measure, so signs are visually inspected when complaints from the public are received. Sign owners are then contacted and asked to adjust sign luminance accordingly, Both Mesa, Arizona and Lincoln, Nebraska have included a requirement for written certification from the sign manufacturer that the light intensity has been preset not to exceed the illumination levels established by their code, and the preset intensity level is protected from end user manipulation by password protected software or other method approved by the appropriate city official. This language appears to offer the advantage of ensuring that electronic signs, at a minimum, cannot exceed a certain established level of brightness, At a minimum, it is important for communities to require all electronic signs to be equipped with a dimmer control. A requirement for both a dimmer control and a photo cell, which constantly keeps track of ambient light conditions and adjusts sign brightness accordingly, is optimal. Over time, the LEDs used in electronic signs have a tendency to lose some of their intensity, and an owner may choose to have the sign adjusted and calibrated, which involves adjusting the level of electrical current in a manner that affects the brightness of the sign, This occurs over the course of two or three years, Having maximum nit levels established would ensure that the sign company has upper limits to work with as far as adjusting the sign is concerned. 4.3 Public Review Most communities establish rules within their sign code and do not create opportumlIes for electronic signs to be approved through conditional use permits or special use permits, Some communities with special overlay districts, or areas that are oriented toward entertainment and night life, have established a review process for electronic signs, or for various functions of electronic signs such as animation and video. Other communities take the opposite approach, where they allow electronic signs with no controls whatsoever, except in certain special areas, such as a historic overlay district, or a historic downtown district, where the signs are prohibited. Each community needs to tailor their application of electronic signs to meet their needs, As of the writing of this report, no ordinances have been discovered that have a special review committee just for the purpose of electronic signs. Typically, sign regulations established in the zoning ordinance would be reviewed in accordance with existing review and approval processes, As with other development features, dynamic signage should be either prohibited, permitted, or conditional depending upon the zoning district and/or the specific features of the sign as established within the city's regulations (i,e. size, specific location with respect to the adjacent roadway, zoning district, proximity of sensitive uses). The recommended review process for permitted dynamic signs should be the same as procedures already in place for administrative bf,27 review. For dynamic signs requiring a Conditional Use Permit (CUP), the standard process for public notification and a public hearing before the planning commission should apply. 5.0 CONCLUSIONS AND RECOMMENDA nONS Driver distraction plays a significant role in traffic safety. Driver distraction is a factor in one in four crashes, and of those crashes involving driver distraction, one in four involves distractions outside the vehicle, The extent to which dynamic signage contributes to traffic safety has been examined in this study. Following are some of the major findings from a review of available research. . Drivers that are subjected to information-rich content that is irrelevant to the driving task (such as digital advertising) may be temporarily distracted enough to cause a degradation in their driving performance. This degradation could lead to a crash. . The unlimited variety of changing content allows dynamic signage to attract drivers' attention at greater distances and hold their attention longer than traditional static billboards. . Several studies have found a correlation between crashes and the complexity of the driving environment. For example, crash rates are higher at intersections because the difficulty of the driving task is increased by the roadway's complexity. Complex driving environments place a high demand on drivers' attention. Introducing a source of distraction in an already demanding driving environment is more likely to result in crashes. This is illustrated by the 1994 Wisconsin DOT study that examined crash rates before and after installation of an electronic sign on a high-volume curving roadway, Introduction of this sign was identified as a likely factor of the 80 percent increase in side-swipe crashes that was experienced, . Many studies have noted a correlation between outdoor advertising signs and crash rates, but have not established a causal relationship between the signs and crash rates. Driving is a complex task influenced by multiple factors. It is not necessary to establish a direct causal relationship between outdoor advertising signs and crash rates to show that they can make the driving task less safe, While the research shows that driver distraction is a key factor in many motor vehicle crashes, this often includes many interacting factors that distract drivers. The specific driver distraction danger that advertising signs contribute is difficult to quantify, A study that could control for multiple variables (human factors, vehicle, enforcement and the roadway environment) would be needed to provide a definitive statement on the level of driver distraction that signs produce. Such a study would likely find that not all advertising signs cause distraction that would lead to crashes, but some signs in some situations are more likely to contribute to crashes than others. Overall, the literature review conducted for the purpose of this study identifies a relationship between driver distraction and electronic outdoor advertising devices. As indicated, driver distraction is a significant factor in crashes. The purpose of dynamic signage is to attract the attention of people in vehicles, so a natural conclusion from that knowledge is that drivers may be distracted by them. Professional traffic engineering judgment concludes that driver distraction generally contributes to a reduction in safe driving characteristics. A28 For this reason, state departments oftransportation have carefully studied the design and location of dynamic signs within the highway right-of-way, Their goal is to convey a message to the traveling public in a manner that is as straight-forward and readable as possible without being a visual "attraction". The goal of the outdoor advertising sign is to be a visual attraction outside the right-of-way, possibly making it a source of driver distraction, Nevertheless, the actual change in crash rates influenced by the presence of any specific device has not been quantified in a manner that fully isolates the impacts of an electronic sign. Recent studies conducted by FHW A and others have cited the need for further research, In the interest of promoting public safety, this report recommends that electronic signs be viewed as a form of driver distraction and a public safety issue, Therefore, the ordinance recommendations identified here should be considered. These recommendations should be reviewed in the future as additional research becomes available. With respect to regulatory measures for electronic outdoor advertising signs, it is important that local governments take a thorough approach to updating their ordinances to address this issue. For example, an ordinance that addresses sign motion, but does not address brightness and intensity levels may leave the door open for further controversy. This report seeks to identify all of the aspects of electronic outdoor advertising devices that are subject to regulation. It does not specifically state what those regulations should be (e.g. the size of electronic signs), since these are all things that policy makers and staff must take into careful consideration. Further, as driver distraction and resulting influences on safety do not, in a practical sense, distinguish between on- premise and off-premise signage, this distinction is not highlighted in the recommendations below. Regulatory Measures recommended for consideration To properly address the issue of dynamic signage, it is recommended that the sign code address the following: I. Identify specific areas where dynamic signs are prohibited. This would typically be done by specifying certain zoning districts where they are not allowed under any circumstances, If dynamic signs are to be allowed in specific areas, this could be done by zoning district (only higher level commercial districts are recommended for consideration) or by zoning overlay related to specific purposes (e,g. entertainment or sports facility district) or to specific roadway types. 2, Determine the acceptable level of operational modes in conjunction with such zoning districts or overlays. The various levels include: a. Static display only, with no transitions between messages, b, Static display with fade or dissolve transitions, or transitions that do not have the effect of moving text or images, c. Static display with scrolling, traveling, spinning, zooming in, or similar special effects that have the appearance of movement, animation, or changing in size, or get revealed sequentially rather than all at once (e,g. letters dropping into place, etc.), and ~29 d. Full animation and video, 3. If one of the forms of static display is identified as the preferred operational mode, a minimum display time should be established. This display time should correspond to the operation roadway speed (rather than posted speed limit), allowing at most One image transition during the time that the sign if visible to a driver traveling at the operational speed. If a shorter minimum display time is considered, the effects of message sequencing should be considered. Wait intervals of more than 1-2 seconds between sequenced messages have the potential to become more of a distraction as viewers wait impatiently for the next screen, in an effort to view the complete message. 4. If the community wishes to accommodate animation or video in some or all locations where dynamic are permitted, a minimum and maximum duration of a video image should be established. The purpose for establishing a time limit is to ensure that the message is conveyed in a short, concise time frame that does not cause slowing of traffic to allow drivers to see the entire message. Given the creativity of advertising, these video images may be seen as a form of entertainment, and people typically like to see an entertaining message through to the end. Differentiate between zoning districts where dynamic signs are permitted by right, and zoning districts, overlay districts, or special districts where they should only be allowed through the approval of a Conditional Use Permit. A CUP would involve public notification and review and approval by the Planning Commission. Other options would include a design review board or other dispute resolution process. 5. Consider the establishment of minimum distance requirements between electronic outdoor advertising devices in relation to the zoning district or roadway context in which the signs are allowed. 6. Consider size limitations on dynamic signs for zoning districts where they are allowed, This may vary from one district to another. 7. Consider if dynamic signs are allowed independently, or if they must be incorporated into the body of another sign, and therefore become a limited percentage of the overall sign face, 8. Establish a requirement for that all dynamic signs that emit light be equipped with mechanisms that allow brightness to be set at specific nit levels and respond accurately to changing light conditions. The City must establish the authority to disable or turn the device off if it malfunctions in a manner that creates excessive glare or intensity that causes visual interference or blind spots, and require that the device remain inoperable until such time that the owner demonstrates to the appropriate city official that the device is in satisfactory working condition, If such technology is not available, consideration should be give to banning dynamic signs that emit light until such time as the technology allows brightuess levels to be precisely controlled. ~30 9. Consider maximum brightness levels that correlate to ambient (day or night condition, lighting of surrounding context) light levels. A maximum daytime and separate nighttime nit/footcandle level should be established. Consider wording that requires the sign to automatically adjust its nit level based on ambient light conditions. 10. Consider a requirement for a written certification from the sign manufacturer that the individual sign's maximum light intensity has been preset not to exceed the maximum daytime illumination levels established by the code, and that the maximum intensity level is protected from end user manipulation by password protected software or other method approved by the appropriate city official. II, Require sign owners to provide an accurate field method of ensuring that maximum light levels are not exceeded. If such a method cannot technically be provided, consider banning dynamic signs that emit light until such time as the technology is available. ~31 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City of Minnetonka issues and may not be sufficient to address concerns in other communities** APPENDICES A32 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City of Minnetonka issues and may not be sufficient to address concerns in other communities** Appendix A Current Sign Technologies A33 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City of Minnetonka issues and may not be sufficient to address concerns in other communities** Appendix A - Current Si!!n Technolo!!ies Roadside signage has long been used to alert and direct travelers to retail businesses, lodging, altractions and other destinations. Until the 20th century much of this image was "static" in nature, presenting a single image that could only be altered by repainting or otherwise removing an image and replacing it with another. With the advent of motorized travel, signage became more "dynamic" or active in its efforts to altract the traveler's attention as they moved at ever increasing speeds. Initially, motion was created by flashing bulbs or alternating sets of neon tubes, Today's technologies allow for an increasingly sophisticated display of images that can be manipulated by a few strokes of a keyboard, Simpler forms of signs capable of displaying multiple images include "tri-vision" signs which present a series of images through mechanical rotation of multi-sided vertical strips. The rotation occurs at regnlar intervals presenting a series of static images, Other forms are electronically produced, allowing for a wide range of colors, messages and images depending on the level of technology, and typically produced by light emilted by the sign face. Basic levels of technology presentlelters or numbers in a single color of light, such as "time and temperature" signs or gas pricing signs. Many of these signs can present longer images in a scrolling fashion, or can provide simple animations. Recent advances have introduced a variety of technologies to the outdoor advertising arena. The largest impact has been made with LED signs which offer an inexpensive yet powerful approach that combines full motion, brilliant colors and a readable display. Other technologies are in development, including "digital ink" signs that offer a changeable medium on a surface that looks like a normal vinyl billboard, These signs manipulate ink on the surface, allowing for a dynamic presentation of images without being internally illuminated. The various sign technologies are referenced by a wide array of terms: "changeable message signs," "electronic billboards," "animated signs." In general, this report focuses on the broad range of signage types which are capable of displaying multiple images through electronic manipulation, which we will refer to as "dynamic" signing, Reference to specific signage types is made when necessary to discussion of specific issues (e.g. the brightness of LED signage). J\~4 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City of Minnetonka issues and may not be sufficient to address concerns in other communities** Appendix B Outdoor Advertising Sign Brightness Definitions A35 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City of Minnetonka issues and may not be sufficient to address concerns in other communities** Appendix B - Outdoor Advertisin!! Si!!n Bri!!htness Definitions This appendix defines various technical terms that are used to describe the operational aspects of electronic billboards. Billboard Illuminance Billboard illumination is typically discussed using two terms: illuminance and luminance. Because this section includes some technical jargon, a glossary that further defines terms used in outdoor advertising is provided in Appendix C. Illuminance: The amount of light that is incident to the surface of an object. This is the method for describing ambient light levels or the amount of light that is projected onto a front-lit sign. This parameter is typically measured in lux (footcandles x meters). For the purposes of dimming, illuminance is discussed to describe the ambient light that hits the photocell. Luminance: The amount of light that emanates from an internally illuminated sign. This parameter is measured in nits, The nit levels necessary for the sign to be legible vary with the ambient light conditions. On a sunny day, the nit levels must be very high, while at night, the levels must be very low to prevent the image from distorting and to prevent glare, Billboard Luminance (Brightness) Luminance is measured in nits (candelas/square meter) and describes how bright the image is. In essence, it is the amount of light that is radiated from the sign divided by the amount of surface area of the sign, No matter how big the sign is, the luminance of the sign is consistent. For example, the brightness of computer monitors is also measured in nits, The European standard "EN 12966" specifies that at certain ambient light levels, the sign should output a given number of nits. There are different tables for each color due to the properties of how the human eye interprets each color. The color that is most often used to set dimming levels is white. The FHW A has developed recommended practices for dynamic message signs installed within the roadway right-of-way. The standard is NEMA's TS-4 "Hardware Standards for Dynamic Message Signs (DMS) With NTCIP Requirements." Note that these standards were prepared for message signs deployed within the roadway right-of-way and should not be taken as recommended luminance levels for advertising signs. Table A -I provides a simplified version of the NEMA TS-4 standard for the color white. ~6 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City of Minnetonka issues and may not be sufficient to address concerns ill other comnlunities** Table A-I - Luminance Standards Ambient Light (lux) 40,000 Sunlight 10,000 Cloudy 4,000 Overcast 400 Sunrise/Sunset 40 Candlelight less than 4 Moonlight Source: NEMA TS-4 (2005) Approximate Light Minimum Luminance (nits) 12,400 12,400 2,200 600 250 75 Maximum Luminance (nits) 62,000 11,000 3,000 1,250 375 Billboard Resolution Billboards require far less resolution than print advertisements, For example, Clear Channel's LED "Digital Outdoor Network" LED bulletin-size (14' x 48') billboards require dimensions of only 208 pixels high by 720 pixels wide. If this image were to be printed at 300 dots per inch (dpi), a typical print resolution, the entire image would be less than L 7 square inches. Therefore, it is ideal to keep the message on these signs simple and clear because they do not currently allow resolutions similar to printed images. Dimming To maintain readability, the brightness of a sign must be adjusted to match ambient light conditions, If this is not done, the image will appear too bright and can even degrade the image quality through a phenomenon called "blooming." If the image blooms, the brightest areas of the image bleed over into darker parts and the image clarity is degraded, Dimming is typically controlled by a photocell, which measures the ambient light conditions and varies the light output of the sign based on pre configured settings, As ambient light conditions darken, the photocell senses the decrease and lowers the light output of the sign. Some sign manufacturers do not incorporate photocells in their electronic signs. Electronic billboard dimming can also be controlled by scheduled dimming according to time of day or manual dimming. On-premise signs may use any of these methods, but most, if not all, off-premise standard size electronic billboards are auto dimmed by photocell. Some signs include user-defined dimming curve capability allowing total control over sign brightness and adjustability to accommodate local brightness ordinances. AA7 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City ofMinnetonka issues and may not be sufficient to address concerns ill other communities** Appendix C Electronic Outdoor Advertising Device Visual Performance Definitions A38 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City of Minnetonka issues and may not be sufficient to address concerns in other communities** Appendix C - Electronic Outdoor Advertisinl! Device Visual Performance Definitions Consoicuity Conspicuity is the property that related to the contrast between a sign and its background and its ability to stand out from its surroundings. This is a subjective property that depends on many factors of both the environment and the viewer. Contrast Contrast is the property that defines the relationship between the brightness of the brightest color possible to the darkest color possible on a sign, In times when ambient conditions are very bright, such as a sunny day, the darkest color may still be very bright due to the sun's reflection off the sign. In these cases, the lighter colored areas of the billboard's image must be much brighter than the contrasting dark areas. Legibility The ability of the driver to read a sign is related to its legibility. Large, legible text allows the driver to read the billboard from yarying distances and focus on the driving task. Conversely, with small text the driver is more likely to focus on the sign for a longer period of time and possibly wait until the sign is very close, State departments of transportation use NEMA' s TS-4 document for this criterion, This document specifies many characteristics related to legibility including character height, resolution and color. Glare Disability Glare The first form of glare is disability glare, This occurs when a driver is exposed to a light source so bright that it temporarily blinds the driver, impairing their ability to perform driving tasks. This temporary blindness is brief, but can be dangerous. Discomfort Glare Discomfort glare is when a light source is bright enough to distract or encourage the driver to look away from the light, but is not blinding, Discomfort glare is of particular concern in cases where a bright sign is located in the same line of sight as a traffic sign, signal or another vehicle. ~9 PRELIMINARY DRAFT FOR REVIEW BY CITY OF MINNETONKA Further changes are anticipated following Signage Workshop **Preliminary Report is specific to City of Minnetonka issues and may not be sufficient to address concerns in other communities** The frequency of change is determined by the interval of time between sign image changes. The rate of change can usually be adjusted by the owner and operator of the sign. Frequency of change is highly variable, with some on-premise signs changing faster than once per second. While no standard is generally accepted, local government agencies have used ordinances to limit the frequency to anywhere from 5 seconds to 24 hours, Frequencv of Change Interactive signs Interactive signs change their message based on the person viewing it. For example, the carmaker MINI has installed variable message signs that display a customized message to car owners who have special key dongles containing a radio frequency identification (RFJD) chips when the dongle is in close proximity to the sign. Another example is a microphone system that identifies the radio stations passing drivers are listening to and displays a specific message for that station. ~o I B. Wanace~ "Driver Distraction by advertising: genuine risk or urban myth?" Proceedings of the Institution of Civil Engineers, Municipal Engineer 156, 2003. 2 J. Wachtel, and R. Netherton. <'Safety and Environmental Design Considerations in the Use of Commercial Electronic Variable-Message Signage, Report No, FHWA-RD-80-0S1." Wasbington. D,C, 1980, 3 A.R. Lauer and J.e. Mcmonagle, "Do Road Signs Affect Accidents?" Eno Transportation Foundation, 1955. 4 D. Faustman, <'A study of the relationship between advertising signs and traffic accidents on U.S. 40 between Vallejo and Davis." San Francisco: California Roadside Council, Report eRC No. 165, 1961. S S. Weiner. "Review of report." Washington, D.c.: Federal Highway Administration, Environmental Design and Control Division~ August 1973. 6 J. Wachtel, and R. Netherton. "Safety and Environmental Design Considerations in the Use of Commercial Electronic Variable-Message Signage, Report No, FHW A-RD-80-0SI ," Washington, D,C, 1980, 7 D. Crundall et aI., '<Attraction and Distraction of Attention with Roadside Advertisements," Elsevier, 2006. S D. Beijer and A. Smiley~ '<Observed Driver Glance Behavior at Roadside Advertising Signs~" Transportation Research Record,200S, 9 A. Smiley et aI., <<Impact afVideo Advertising on Driver Fixation Patterns. Transportation Research Record, 2004. JO G. Wachtel, The Veridian Group, '<Video Signs in Seattle - Final Report." 2001. 1I J. Wachtel, and R. Netherton. "Safety and Environmental Design Considerations in the Use of Commercial Electronic Variable-Message Signage, Report No, FHW A-RD-80-0S1," Washington, D,C, 1980, 12 C. L Dudek et aI., "Impacts of Using Dynamic Features to Display Messages on Changeable Message Signs," Operations Office of Travel Management: Federal Highway Administration, Washington, D.C., 2005. 13 "NHTSA Driver Distraction Forum: Summary and Proceedings," <http://www-nrd.nhtsa.dot.gov/pdf/ nrd-13/FinalIntemetForumReport.pdf>, accessed on February 14,2007. J4"Report of the Road Safety Committee on the Inquiry into Driver Distraction," Parliament of Victoria, Australia, Victoria, Australia, 2006, p, 110, ]5 A. W. Johnston and B.L. Cole, "Investigations of Distraction By Irrelevant Information:' Australian Road Research Board,1976, ]6 S.G. Klauer et aI., '<Impact of Driver Inattention 0/1 Near-Crash/Crash Risk: An Analysis Using the 100-Car Naturalistic Driving Study Data:' National Highway Traffic Safety Administration, 2006. 17 Driver Inattention Is A Major Factor In Serious Traffic Crashes," <http://www.nhtsa.dot.gov/people/ outreachltraftechlTT243.htm>, accessed on February 14,2007. 18 J. Wang, "Role of Driver Inattention in Crashes; New Statistics from the 1995 Crashworthiness Data System, 40th Annual Proceedings, Association for the Advancement of Automotive Medicine, Vancouver, British Columbia, 1996. 19 University of North Carolina Highway Safety Research Center, "The Role of Driver Distraction in Traffic Crashes, "200 I, 20 K. Harder, "The Effectiveness and Safety of Traffic and Non-Traffic Related Messages Presented on Changeable Message Signs (CMS)", Minnesota Department of Transportation, St. Paul, Minnesota, 2003. 21 "Decision of the Outdoor Advertising Board in the Matter o.f John Donnelly & Sons, Pennitee, Telespot of New England, Inc., Intervenor, and DepG11ment of Public Works, Intervenor, with Respect to Permit Numbered 19260 as Amended," The Commonwealth of Massachusetts Outdoor Advertising Division, 1976. 22 Wisconsin Department of Transportation (1994). Milwaukee County Stadium Variable Message Sign Study. Wisconsin, USA: Internal Report, Wisconsin Department of Transportation. 23 T. Szymkowski, University of Wisconsin, Madison, Interviewed on February 20, 2007. 24 Federal Highway Administration, <<Research Review of Potential Safety Effects of Electronic Billboards on Driver Attention and Distraction," 2001. 2S G. Davis, FHWA Office of Safety Research and Development, Interviewed on February 23,2007. 26 CTC & Associates LLC, "Electronic Billboards and Highway Safety, <<'http://www.dot.wisconsin.gov/library/ research/docs/tsrs/tsrelectronicbillboards.pdf>, accessed on February J4, 2007. A41 27 Federal Highway Administration, "Research Review of Potential Safety Effects of Electronic Billboards on Driver Attention and Distraction," 2001. 28 '<Report of the Road Safety Committee on the Inquiry into Driver Distraction," Parliament of Victoria, Australia, Victoria, Australia, 2006. 29 D. Mandelker, A. Bertucci and W. Ewald. "Street Graphics and the Law," APA Planning Advisory Service, 2004, pp. 51- 55. A42 BILLBOARDS in the DIGITAL AGE J IMAGINE DRIVING along a twisting, two-lane Alabama road at night. As you slow for a curve, suddenly an enormous television screen pops into your field of vision, temporarily blinding you before flashing an ad for an insur- ance company. The glaring lights of this particular sign, slapped up in subur- ban Vestavia Hills, blindsided city zoning officials as well. They had unknowingly given entree to digital billboard technology when they approved what appeared to be a routine application to add lighting to a sign grandfathered in years ago. The appli- cation made no mention of changeable messages and gave no indication it would transform an old, static board into a giant vehicle for digital TV-like images. Police officers immediately complained the board posed a major safety hazard. Neighbors complained about the glaring lights. Lamar Advertising Company. which owns the board, claimed they'd made the changes in "good faith," Anyone who has been following the digital-billboard movement may recognize that argument as a popular tactic employed by an industry that finds it easier to ask localities for forgiveness than permission. It's one of many strategies being used to bring digital technology to as many cities and towns as possible, before localities have a chance to explore the implications of the new technology, update their sign ordinances, or ban digital signs outright. "There's a full-court press going on at the national, state, and local level, being waged by Lamar, Clear Channel, and CBS Outdoor," said Bill Brinton, an attorney specializing in sign law and a member of the board of Scenic America. Lobbyists are pushing state legislators to pass bills that clear the way for LED (light-emitting diode) signs on state and federal roads, and the industry is pressuring state departments of transpor- tation to rewrite regulations to allow them to transform static signs into digital boards. And in cities and counties aCI:OSS America, they are pressing for looser sign ordinances or simply installing the new technology without permission to do so. "For in-your-ftce results that won't end in a restraining order, out-ofhome is the only way to go." www.lalllilroutdoor.com Digital signs are far more of a threat than their predecessors, said Kevin Fry, president of Scenic America. They're brighter, which makes them visible from far greater distances; they're much more distracting, because of their brightness and because the messages are constandy changing; they're often taller than regular boards, giving the appearance oflarge, plasma-screen TVs; and they're substantially more expensive to remove, so localities without amortization laws could find themselves unable to afford taking them down. 1his would be especially true for signs along federal-aid highways where the use of amortization is prohibited by the Highway Beautification Act. Despite higher installation costs, the profitability of digital boards provides a powerful incentive for companies to put up as many as possible. Clear Channel Outdoor spent $3.5 million converting seven static boards to digital in Cleveland, but watched revenue jump from $300,000 to $3 million in the netw-ork's first year, according to Mark P. Mays, Clear Channel's CEO. That's because digital boards allow companies to sell ad space to 10 times as many clients as static ones; most signs change messages every six seconds. They also allow advertisers to change content several times a day or week, and unlike the static boards, which require contractors to change messages manually, digital boards allow operators to change content from remote locations in a matter of seconds, with just a click of a mouse. Lamar Advertising boasts that it has digital billboards in as many as 44 states. Clear Channel, the world's largest outdoor advertising company, is similarly upfront about its goals for spreading digital technology. In a November 2006 press release announcing the launch of multi-sign digital networks in Milwaukee and Tampa, Clear Channel Outdoor Global President Paul Meyer put it blundy: ~ ~) _/ ^/vv\re IHLLIIOAROS in tbe DIGITAL AGE continued "New digital technologies provide us with the capability to execute both general market and targeted advertising campaigns that consumers can't mute, fast forward or erase," he said. [Emphasis added.] When digital comes to town, local governments are often caught off guard. As was the case in Vestavia Hills, billboard owners are not always upfront about what they are doing, and the technology may be installed without notice. But in a rare victory for billboard opponents, the Vestavia Hills Board of Zoning Adjustment (BZA) ordered Lamar to turn off the lights and shut its board down-at least until they could hold a hearing for a zoning variance. The board ruled that the switch had been made under "false pretenses." Had Lamar asked for permission to add digital animation, the board likely would have said no, particularly for that location, zoning officials said. In fact, Vestavia Hills' new sign ordinance, which was under con- sideration at the time, would outlaw this kind oj sign entirely. 7he BZA later denied the variance request, and the billboard company jiled a lawsuit which is now in the county court system. In the meantime. the digital board has been covered with a traditional sign. A permit request to instaU a digital face on the other side of the sign was denied. City officials in several Minnesota communities were likewise surprised last year when digital billboards began to appear on Clear Channel and Lamar sign structures. In most cases, the companies that leased the signs had sought building permits only to upgrade them, omitting from their applications any indi- cation they planned to hang digital displays on those structures after the upgrades. Their chosen locations included communities with some of the strongest billboard prohibitions. Clear Channel's strategy backfired, especially in Minnetonka, which for more than 41 years has carried a prohibition on illu- minated signs that change in color or intensity. The city pulled the plug on the signs, issued stop-work orders, and then defeated an effort by Clear Channel to obtain an injunction. .As Judge Lloyd Zimmerman later found, "there is substantial evidence to support Minnetonka's claim that Clear Channel avoided disclosing its plans to deploy LED billboards in the City of Minnetonka, and operated 'under the radar' in order to get the billboards up and running, in order to meet its expansion and profit goals for 2006." Meanwhile, one Minnesota community after another has adop- ted a moratorium on digital display devices to temporarily protect themselves against a repeat of the companies' subterfuge. It's not unusual for billboard operators to erect digital signs even when State-Federal agreements or local ordinances pro- hibit them, knowing that local enforcement can be difficult due to lax or inefficient enforcement or the prospect of the lengthy and costly litigation that inevitably follows. The Texas Department of Transportation's State-Federal agree- ment dearly prohibits digital billboards. In fact, when state transportation officials requested darification from the Federal Highway Administration (FHWA) to see if they ccnld allow the boards, they were told in no uncertain terms they could not. "While the technology for LED displays did not exist at the time of the agreement, the wording in the agreement dearly , L prohibits such signs," the FHWA wrote to Texas transportation officials in a letter dated March 15,2006. Nonetheless, LED signs have gone up in several cities around the state. And in a recent media interview, Clear Channel Communications CEO Mark Mays made it clear his company had big plans for Texas, particularly San Antonio. "The question becomes how big an opportunity it will be over the next 10 years," he said. "Is it going to be half the signs in San Antonio, is it going to be a quarter of the signs in San Antonio or is it going to be 10 percent?" "If Texas is going to allow this, the public should be involved," said Margaret Lloyd, policy director for Scenic Texas. "In my judgment, we need at least three things: first, a safety study funded by a neutral, objective party; second, a cost study to determine the taxpayer burden if these signs have to be con- demned for highway widenings; and finally, a public opinion survey to determine if citizens want these signs to be erected along their publicly funded highways." One state where the industry hasn't been successful in getting what it wants is Kentucky, where state transportation regulations prohibit both Tri-Vision and LED signs. Tom Fitzgerald, director of the Kentucky Resources Council, said the outdoor advertising industry has tried on several occa- sions to push through legislation that would allow them to add the new technology, but lawmakers in the House have stood firmly against it. They came closest in 2004, when the industry had someone insert language allowing Tri-Vision signs into a bill that focused on tree-cutting around billboards. "That bill got through the Senate and into the House before people realized the provision was even in there," Fitzgerald said. But the House leadership killed the bill, as it has done to tree-cutting bills consistently over the years. 1his year, a bill that would have allowed electronic billboards and Tri-Vision signs was introduced but died in committee. "We've not really had a toe-to-toe fight on electronic bill- boards yet," Fitzgerald said. "I believe there are strong public safety issues at stake." For many outraged citizens, traditional concerns about "litter on a stick," have now been supplanted by the prospect of con- fronting "PowerPoint on a stick" along their communities' road- ways. The advent of digital technology has opened a new front in the battle against blight-with more at stake than ever before. ARE THEY SAFE? The billboard indtutry often tries to win support for its signs by offering to displll)' public scr-vice messages. But no amount of these inducements can compensate for the potential public safety consequences of these devices. BILLBOARDS ARE ADVERTISEMENTS. They are designed to grab our attention, and hold it,just like a television or radio commercial or an ad in a magazine. The latest in billboard technology- the digital or electronic sign-tries to hold our attention even longer by changing messages and pictures every few seconds using a series of extremely bright, colorful images produced mainly via LED (light- emitting diode) technologies. Common sense tells us that if we are looking at a billboard and not at the road when we are driving, that's a dangerous thing. Brightly lit signs that change messages every few seconds compel us to notice them, much the same way our eyes move to the television screen when it's on. They lure our attention away from what's happening on the road and onto the sign. It's just human nature. And it works. That's why these signs are so incredibly lucrative for the billboard industry. Proponents of digital billboards say nobody has ever proven that they increase traffic accidents. This statement is only partially true. Some studies have shown a link between digital billboards (as well as static boards) and traffic safety problems, while others remained inconclusive. Importantly, no objective studies have shown them to be safe. nor have studies been conducted since these signs have started to proliferate. What does the research currently say? lit A Wisconsin Department of Transportation study conducted in the 1980s examined crash rates on 1-94 East and West adjacent to the Milwaukee County stadium, after a variable message sign that showed sports scores and ads had been installed. The study found that sideswipe and rear-end collisions were up as much as 35 percent where the sign was most visible. IlII A 1998 FHWA memo noted that digital signs raise "significant high- way safety questions hecause of the potential to he extremely hright, raPidly changing. and distracting to motorists. D IIili A 2001 FHWA review of billboard safety studies found that "the saftty consequences of distraction from the driving task can he profound. D IIIl A 2003 report titled External-To-Vehicle Driver Distraction, by the Development Department Research Programme in Scotland. found that "there is overwhelming evidence that advertisements and signs placed near junctions can function as distratfers, and that this ton- stitutes a major threat to road safety." It further noted that, "Young (aged 17-21) drivers are particularly prone to external-to-vehicle driver distraction." If other studies have remained inconclusive, there is good reason, researchers say. First. many of the studies have been funded, and directed, by the billboard industry (see sidebar). Second, there are inherent diffi- culties in conducting traffic safety research. Jerry Wachtel, an engineering psychologist with 25 years of experience in the field of driver behavior, said too many variables contribute to traffic accidents to make it possible to prove causality from a single source. "Most accidents are not caused by one thing, but multiple things happening at once," he said. According to Wachtel, digital billboards undoubtedly contribute to the growing number of distractions that vie for a driver's attention today. Cell phones, navigational systems, and DVD players constitute in-car distractions, while billboards, especially those that change messages, constitute external distractions. Both, he said, contribute to traffic safety hazards that he believes are growing increasingly worse. "The outdoor advertising industry in my opinion is one part of the problem, but a significant part," he said. Wachtel co-authored a report for the Federal Highway Administration back in the 1980s, updated in 2001, which concluded that "some studies showed a clear relationship between the presence of outdoor signs and driver error or accidents and other studies hadn't shown anything." It recommended government-funded research into the issue, but the research was never funded. The Federal Highway Administration in January 2007, however, announced that it will initiate a study to examine the safety issues related to elec- tronic signs. Details on the scope and timing of the research have not been released, but results are not expected until 2009. Digital signs are often the hri'gbte.rt objects in tbe landscape, especially at night. They dominate the field of view and offer dOllgerous dirtroctiolls for the traveling public. Brigbt electronic signs with complex, cbanging messages contribute extra distractions to motorists already confronted by visually cluttered envir01zments.llow long WQuld it take you to comprehend the messages on this sipz.? fltfore than two seconds? A Word of Caution for Local and state Governments Local and state governments should be wary of approving electronic signs, pending the outcome of definitive objective studies regarding their safety. If research proves these signs to be unsafe, governments could face significant liability and negligence issues if accidents occur in the vicinity of the signs. Additionally, if the signs must later be removed because they are deemed a hazard, the cost of compensating sign owners would be enormous, particularly along federal-aid highways where the Highway Beautification Act requires cash compensation and prohibits compensation via amortization. There is no objective evidence that these signs are safe. To protect themselves from potentially catastrophic costs in the future, govern- ments at all levels should enact immediate moratoriums on these signs until it is known for sure whether or not they pose a hazard to the motoring public. THE FIRST STEP in fighting a digital billboard that has been erected or proposed in your locality is to find out whether your state's agreement with the Federal Highway Administration (FHWA) already prohibits them. Many do. While that hasn't stopped the billboard industry from erecting the signs anyway, it can give you some powerful ammunition with which to challenge them and argue for their removal. Flashing, Intermittent, or Moving Lights On July 17, 1996, the FHWA issued a memorandum clarifying the status of "changeable message signs." It noted that many State-Federal agreements would allow for changeable mes- sages such as the Tri-Vision signs that use rotating panels or slats. However, it also noted that, even ifTri-Vision signs were allowed, the agreement probably wouldn't allow LED signs. "In nearly all States, these signs may still not contain flashing, intermittent, or moving lights," the memo states. A 2006 letter to Texas Department ofTraosportation officials goes even further. If the state agreement prohibits signs "illuminated by any flashing, intermittent or moving light or lights.. .including any type of screen using animated or scroll- ing displays, such as LED (light-emitting diode) screen or any other type of video display, even if the message is stationary," then "the wording in the agreement dearly prohibits such signs," it states. Nonconforming Signs Another industry trick is to convert a static, nonconforming sign to an LED sign and claim that the change is not an "improvement," and therefore not prohibited. The 1996 FHWA memo clearly states that this is not permitted, as "applying updated technology to nonconforming signs would be considered a substantial change and inconsistent" with federal regulations. A July 1998 FHWA memo offers further guidance. It declares that signs with animation or scrolling messages should be considered nonconforming signs and notes that they raise "significant highway safety questions because of the potential to be extremely bright, rapidly changing, and distracting to motorists." I Additionally. nonconforming signs on state or local roads not covered by the Highway Beautification Act are often governed by local ordinances that do not allow them to be substantially altered or expanded either. Local jurisdictions have denied permits for conversion to digital technology, although some of those denials have been challenged. Local cities, towns or counties may usually impose stricter regulations on outdoor advertising than the state or federal government does. Can Local Governments Prohibit Signs Allowed in State-Federal Agreements? Yes, in almost all states. Local cities, towns or counties may usually impose stricter regulations on outdoor advertising than the state or federal government does. The State-Federal agree- ments govern signs on interstate and federal-aid highways. Local- ities may also create stricter standards for state and local roads. The First Amendment Often, billboard industry representatives try to convince local governments that if they ban billboards, they will be violating the Hrst Amendment right to free speech. This is not true. In almost all states, localities may ban billboards outright. or may restrict the size and types of billboards that are allowed. The only thing they cannot restrict is what they say. "It's only when you get into banning content that you get into trouble," said Eric Kelly, an attorney and professor of urban planning at Ball State University, who often helps local cities and towns draft or revise their sign ordinances. Kelly recommends that local governments also make any rules regarding sign technology consistent between on-premise and off-premise signs to avoid potential litigation that might charge they are giving preferential treatment to one type of business over another. But that doesn't mean that you have to allow digital billboards if you allow banks to show the time and temperature, or gas stations to regularly change the prices posted on their signs, he said. Allowing signs to change messages no more than once per minute, or restricting the size of the sign to no more than 30 square feet, allows for time and temperature signs, gas stations and church message boards but essentially bans Tri-Vision billboards and digital message boards that show new ads every six or eight seconds. It also helps, said Kelly, to include language in the ordinance explaining why the restrictions are there. If the ordinance states that its mission is to promote safety and aesthetics, and ties this goal back to goals in the local comprehensive plan, it strength- ens the ordinance and helps protect it from legal challenges. Fotlow this signs instructions and you may regret it. By taking extra seconds to watch the sign cbange (and change and change), drivers place themselves and others in potential danger. DON'T TAKE OUR WORD FOR IT... How Big is the Issue? Electronics industry analyst, iSuppli, "predicts that by 2010. 75,000, or 15 percent of total billboards in the U.S., will be digital displays, up from a mere 500 digital billboards, or 0.1 percent,of all billboards in 2006." Source: "Channel VIeWpOint: Consumerelectronics-just the sideshow to the advertising at CES,n eChannelLinl! Daily News,January 9,2007 What's Bad for You is Good for Them "Nobody likes being stuck in a traffic jam, but Clear Channel executives are coming to love them. 'Hey, traffic is a good thing,' quips Clear Channel Communications Inc. CEO Mark Mays. 'People listen to more radio, and they have more time to look at billboards.' Now that's a captive audience." Source: Business Ufek Online,June 20, 2005 And You Thought You'd Never Get that Big-Screen TV ''As one drives along Hwy. 101 between San Jose and San Francisco, there are many billboards that vie for your attention. But just as you near San Carlos. it is tough if not impossible to miss one particular two-sided billboard.... Its excellent positioning allows it to be seen by traffic as far as one kilometer from either side.... But then you couldn't miss a 34 ft. x 19 ft. Hi Definition TV on the side of the road that stands almost 40 feet above the ground, could you? And that's exactly what Silicon View's LED billboard looks like, a giant TV." Source: Outdoor Today,January 2005 If You Build It, They Will Stare... for More Than Two Seconds "[Electronic] Billboard scheduling is based on a 'repeating loop' of adver- tising messages. The Silicon View loop contains six different messages, each displayed for five seconds with a one-second pause between each message. Thus, one message loop lasts approximately 36 seconds. The loop continuously repeats on a 24-hour basis, which gives each advertiser at least 2,880 viewing exposures per day.... A factor that determines dwell time, or the amount of time a commuter sees a billboard. is the vehicle's speed approaching the board. At 65 mph, a Highway 101 driver sees one full rotation of the Silicon View hi/lhoard. During peak hours, when trajfit slows, a driver could see three to five loops." [emphasis added] Source: "Pixels and Prints: Outdoor's Future Fusion,~ Signs if/hI! Ti1Tll!s, August 2003 ADDITIONAL RESOURCES A dqinitive study on the saftty of electronic billboards has yet to be done, but the fallowing documents contain information that is important to the current debate. the research papers reftrenced below are available as PDF Jiles at the Scenic America website at www.scenic.org/billboards/electronic. You will need to have the Adobe Acrobat Reader on your computer to read them. The Impact of Driver Inattention on Near-Crash! Crash Risk: An Analysis Using the IOO-Car Naturalistic Driving study Data Apri12006, National Highway Traffic SafetyAdministrotion, US. Department of Transportation A major study of driver inattention, primarily involving distractions inside the car, but finding that any distraction of more than two seconds is a poten- tial cause of crashes and near crashes. Traffic Safety Evaluation of Video Advertising Signs Transportation Research Record: Journal of the Transportation Research Board, No. 1937, 2005 A study of electronic signs in Toronto, which finds that "On the basis of the eye fixation study and the pubic survey data, it is apparent that video advertising can distract drivers inappropriately and lead to individual crashes," but calls for additional research due to other conflicting data. Research Review of Potential Safety Effects of Electronic Billboards on Driver Attention and Distraction September 11,2001. Federal HighwayAdministration, U.S. Department ojTransportation A summary of existing research <as of 2001), on the subject of the safety of electronic signs and a call for additional studies. Milwaukee County Stadium Variable Message Sign Study: Impacts of an Advertising Variable Message Sign on Freeway Traffic December 1994, Wisconsin Department ojTransportation Study of the dangers posed by an electronic sign in Milwaukee along 1-94, that concluded that ('It is obvious that the variable message sign has had an effect on traffic, most notably in the increase of the side swipe crash rate." BE SURE TO VISIT THE SCENIC AMERICA WEBSITE AT WWW.SCENIC.ORG FOR ADDITIDNAL AND UPDATED INFORMATION ABOUT THIS AND OTHER SIGN CONTRDL ISSUES. :- I Attachment 7D-7 Draft Minutes from the August 1, 2007, Planning Commission Meeting September 10, 2007, City Council Meeting .... u.. <C ~ Q ARDEN HILLS PLANNING COMMISSION - AUGUST 1,2007 10 A. CLEAR CHANNEL SIGN PERMIT APPLICATION DENIAL APPEAL Mr. Lehnhoff said the Planning Commission is being requested to either overturn or sustain the City Planner's denial of the sign permit application from Clear Channel, Inc. for their May 21, 2007, after-the-fact sign permit application for the electronic billboard located in the northeast comer of the I-35W and 1-694 intersection. He reported that there has bean a difference in opinion between City Staff and Clear Channel over whether a sign permit was required for the changes made to the billboard, which included "replacing the existing billboard panel with an LED panel." Clear Channel has continued to support the idea that changes made to the billboard did not require a sign permit; nevertheless, a sign permit application was submitted on May 21, 2007. Arden Hills Sign Code states that the following activities require a sign permit: 1) Replacing the sign copy; 2) Removing the sign for the repair of the cabinet or any part thereof; 3) Changes made to the size, height, or bulk of the sign or addition of illumination; 4) Changes in poles, structural supports, bases or shrouds, footings, or anchor bolts; moving the sign to a new location; or replacement of the interior or exterior cabinet frame, except the sign face. However, since a sign permit has been submitted, the Commission does not need to determine if a permit was needed. The Commission's decision on the appeal should be based on whether or not the permit should have been denied by Staff. Mr Lehnhoff stated that the City Attorney has submitted an opinion on the State Statutes and how they apply to this situation. He noted that the City Attorney's letter is included in the Commission's packet, and that Staff and the City Attorney believe that the City's ordinances are in conformance with State Statutes; therefore, the focus should be more on whether or not the City's ordinances were applied correctly. Mr. Lehnhoff reviewed the Clear Channel sign permit timeline review: · December 2006 - removed existing billboard face and replaced with electronic message billboard. . January 2007 - violation letter . May 21, 2007 - sign permit application · June 18,2007 - sign permit application denial (must act within 30 days) Mr. Lehnhoff reviewed the basis for the sign permit application denial: · Billboards are nonconforming uses in Arden Hills (Section 1230.02 Subd 8 and Section 1280.01 Subd 4 ofthe Sign Code). · Lighting is limited to external lighting only (Section 1210.01 Subd 6). · Zoning Code prohibits expansion, alteration, relocation, or other modification without written approval from the City. Chair Sand stated the need to decide whether to affirm the decision of the City Planner or overturn the determination but, either way, the subject will come before the City Council. He said it is noteworthy, for the record, that the City Attorney is not in attendance and ARDEN HILLS PLANNING COMMISSION - AUGUST 1,2007 11 many questions are legally driven and analyses-based on case law and what has happened in other cities. He then opened the floor to Commission comment. Commissioner Larson stated that the subject is contentious and not popular with most people. He said the crux of the issue is definition of the word "alteration" of signage, City code states that a permit is needed for "alteration" of signs, and it seems clear that Clear Channel believes it is not. Commissioner Larson said it is unfortunate that Clear Channel and the City did not sit down before the sign was installed and decide what "alteration" meant and who was entitled to what, as it would have prevented a lot of problems, though noting that it is always easier to ask for forgiveness than to obtain permission. He said he is willing to stand with staff's determination that this alteration is a permitted activity and the sign was altered and the only matter of contention is deciding what alteration is, noting that Clear Channel obviously works in a lot of cities and is guided by State Statute. Commissioner Larson said a legal conclusion is needed, rather than an opinion conclusion, and as well as a need to find what rules govern the particular sign in question. Chair Sand agreed that it would come down to a legal determination. Commissioner Modesette said she doesn't disagree and doesn't wish to engage in legal conversation regarding the subject. She said it is her understanding of billboards is that they are special in Arden Hills, there is not an allowance for new billboards, and the two that exist are nonconforming and that puts them subj ect to an interpretation that is specific to how it has been described for the Commission. Commissioner Modesette says she thinks the increased nonconformity logic makes sense. Commissioner Stodola said she would require clarification as to what changes Clear Channel made to the billboard. Chair Sand pointed out the verbiage describing "alteration" as relating to repair, replacement, improvement and the ordinance prohibiting enlargement, movement, and alteration. He said "alteration" is vague, subject to alternative definitions, and anything adding to weight of a structure, increasing load-bearing capacity by adding structure steel, may have increased in weight, though perhaps not made an increase in height. Chair Sand said, first, he agreed with Commissioner Larson in that the lighting issue could be subject to interpretation but, second, alteration is a potential viable argument, and, third, adding weight load to the sign would require a City sign permit. Marvin Liszt, attorney from Bernick and Lifson representing Clear Chaunel, introduced himself and Tom McCarver of Clear Channel. He said he would provide an overview and answer Commission questions. Mr. Liszt stated that the question before the Commission this evening is not whether Clear Channel needed a permit but whether the permit was improperly denied. He said that he has had a cordial relationship with Mr. Lehnhoff and described him a very fine representative of Arden Hills. Mr. Liszt expressed disagreement with him and the City DRAFT ARDEN HILLS PLANNING COMMISSION - AUGUST 1, 2007 12 Attorney regarding the City's conformance with State Statutes in its ordinances. He said words are critical and owners of conforming uses have a right to "repair, replace, restore, maintain or improve" the nonconforming use, noting that "improvement" and "replacement" were added to the Statute for a variety of reasons, i.e., auto dealer booths that need to be improved to meet current technology. Mr. Liszt said the Legislature allows people who own nonconforming uses to be able to improve them to keep up and "improvement" is a right to alter and he doesn't know how there could be an improvement without alteration. He cited another example, bankers fmancing nonconforming uses and being able to keep up and maintain security, and said the City can't have an ordinance that violates the judicial planning end. Mr. Liszt said there are many municipalities that violate various statutes because cities haven't conformed ordinances to the State statutes. He then cited Minnesota Statute Chapter 173 concerning the Outdoor Advertising Control Act's specifications and prohibitions and said Clear Channel's sign does not violate those prohibitions. Mr. Liszt said he would submit that the City, under Statutes, cannot pass an ordinance that is contrary to the statute and can only do so when it obtains permission from MDOT, as set forth in the statute. Mr. Liszt challenged the City's three reasons for denial, describing them as clearly invalid: 1) Section 1230.02 Subd 8 of the Sign Code prohibits new permanent off-premise signs, including billboard. Due to this provision, the Clear Channel billboard is a legal, nonconforming use. Altering or enhancing a nonconforming use is prohibited (Section 1280.01 Subd 4). Any owner has the legal right to improve the nonconforming use, it is inherent that an improvement is an alteration, and Clear Channel had the right to do so under State statute. 2) Section 1240.02 Table 1 of the Sign Code limits lighting options for freestanding signs in Sign District 7 to external lighting only. Section 1210.01 Subd 6 of the Sign Code defines external lighting as "(illumination) by means of external light fixtures directed at the sign." The proposed sign is using a lighting source other than external lighting. Three reasons to be challenged: 1) The table's maximum sign dimension, according to table, is 45 feet and the Clear Channel sign is 462 feet, which means that this section of the Sign Code must not be applying to billboards; 2) the LED diodes direct light at the sign; 3) City doesn't have right to determine how signs will be lit, under Chapter 173 of the Minnesota statutes, as the prohibition deals with lights that interfere with driving or obstruct other signs or flashing lights. 3) Section 1320.13 Subd 6.0.3 of the Zoning Code states that "Any billboard located in the OB District may be expended, altered, relocated or otherwise modified solely upon written approval of the city, provided the expansion, alteration, relocation or modification is authored by the city of Arden Hills in connection with a transaction which will result in a net reduction in the number of billboards or in the aggregate sign face area of the billboards, located within the BO District." The provisions of this section have not been met. According to the ordinance, the Clear Channel would have to come to the City and the City would be able to consent if the reduced number of signs in the same district, clearly illegal under State law. The ordinance is not enforceable and not legitimate to deny a sign permit application. Commissioner Stodola stated that Clear Channel engineering drawings on page two talked about adding a lateral brace and she asked what the purpose of that served. DRAFT ARDEN HILLS PLANNING COMMISSION - AUGUST 1,2007 13 Mr. McCarver responded that he was not 100% certain but more bracing was added likely to hold the increased weight. Commissioner Stodola asked for clarification that it was added to accommodate the additional weight. Mr. McCarver provided some detailed information regarding stringers and torsion tubing that had been referenced in the Clear Channel narration and then agreed that bracing had been added for the additional weight. Commissioner Larson added, for further clarification, that the referenced "10" steel and weights. . . ..per foot" was a structural steel number. Commissioner Stodola asked for further details concerning the diode system and how light is directed. Mr. McCarver responded that LED signs on MDOT highway boards are monochromatic signs and, in the diode packet, red-green-blue make up the color of the sign and those dials rise out of the sign face. He added that the differentiating point is that traditional billboards have lights shining at the sign, and LED signs have diodes that externally shine on the sign face to create a picture. Commissioner Stodola inquired as to how the diodes are coordinated to get the desired picture. Mr. McCarver responded that the computer on the sign feeds the message to the sign and that message comes remotely from the Clear Channel office from a desktop computer. He added that a normal program is set for a day, week, or month, and the sign is regenerated every eight seconds. Commissioner Modesette asked what the word "notwithstanding" means to the balance of statements narration. Mr. McCarver responded by saying that the word in that narration means an ordinance cannot attempt to do what State law prohibits, citing 462.357, as an example, where the Legislature passed a prohibiting amortization of nonconforming uses and the City couldn't enforce an ordinance that allows for amortization. He said the law is very clear on rights of owners of nonconforming uses. Commissioner Larson commented that, having work with various cities in the past, he knows nonconforming uses are treated very harshly and he is of the opinion that there is need to revisit the subject of State statutes, which will take a while, and overturn Staff's denial at this point. He said he doesn't know if problems will be solved by supporting the denial, though doesn't know if problems will be solved by not supporting it either. Commissioner Larson stated that cities have not modified their sign ordinances by going to MDOT, as State law requires, and Clear Channel probably knows where those cities are, which is why Arden Hills got the sign. Commissioner Larson asked if Staff could appeal, and Mr. Lehnhoff responded that an appeal could come from Staff, a member of the public, or the Council. However, Staff would generally not appeal. Commissioner Zimmerman said he doesn't dispute the need to look at the sign ordinance to be in compliance but discussing whether denial was valid based on current sign ordinance and whether the ordinance needs to be changed are two separate issues. He said the Commission can't arbitrarily decide such things at this meeting, but he supports the denial ofthe current application as it stands based on current sign ordinance. DRAFT ARDEN HILLS PLANNING COMMISSION - AUGUST 1,2007 14 Commissioner Modesette said she agreed with Commissioner Zimmerman's logic, that the process towards legal resolution or interpretation would be furthered by moving forward and supporting Staffs denial on interpretation of the ordinance. She said she is interested in what the City Attorney has to say and then expressed her recommendation that the Commission not overturn Staffs denial. Commissioner Holewa stated that he had listened to the presentation and tried to absorb all that was said but said he is back at the same place, that this is a legal issue and he is not a legal person, relying on City Attorney for recommendation. He expressed his support for Staff s denial. Commissioner Stodola stated she had asked the detailed signage questions earlier in the meeting because she finds it hard to believe that anyone could not think what was done was anything but an alteration. Commissioner Larson said his opinion was not that City Staff acted in error but acted on their interpretation of the ordinance. He said questions have been raised as to how Statutes may be opposed to ordinances and he would like a proper sign ordinance crafted without having the pressure of an appeal, so that bases are covered and this situation doesn't happen again. Chair Sand asked what the added weight was of the added structural elements, and Mr. McCarver responded 9,000 pounds including the LED. Chair Sand commented that that amount was a substantial increase for an "alteration." Mr. Liszt stated that improvements are done all the time, legality conforms with time over the State with permits and involves very substantial increases in weight and structures, etc. He said, the fact is, Clear Channel had the right legally. Chair Sand said Minnesota Status 462.357 states "any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance or improvement, but not including expansion." He said a viable argument could be made to support Staff decision on grounds that, yes, an improvement was made and also an expansion, given the 9,000 pounds that had been added to the structure. Chair Sand said it was unfortunate that the City Attorney and building inspector could not be in attendance at the evening's meeting because the weight addition may have required a building permit and many issues could not be addressed because those individuals could not attend. He said, as he read the documentation, it is a reasonable interpretation that non-expansion could not include an additional 9,000 structural steel weight to the sign, which would be a basis for denial, as well as the State application, and lighting improvement and expansion. Chair Sand said the decision to deny was appropriate. Mr. Lehnhoff added that the City Attorney had reviewed State statutes and it was determined that the City had complied with State Statutes. Chair Sand restated that the DRAFT ARDEN HILLS PLANNING COMMISSION - AUGUST 1,2007 15 subject is a legal issue and the Commission relies on the City Attorney and Staff for opinion, adding that Staff relies on the City Attorney's opinion about codes allowed and City ordinances should be respected. He stressed the fact that there are processes in making decisions and City Staff rely on the City Attorney for information. Commissioner Holewa moved, seconded by Commissioner Zimmerman, to support Staffs denial of Clear Channel, Inc., May 21, 2007 sign permit application based on the City's sign and zoning regulations as presented in the June 18, 2007 denial letter to Clear Channel, Inc. The motion carried (5-1) (Larson). Chair Sand expressed appreciation for the presentations. DRAft Attachment 7D-8 August 1, 2007, Report to the Planning Commission (without attachments) September 10, 2007, City Council Meeting ~ ~HILLS MEMORANDUM DATE: August I, 2007 PC Agenda Item 4.A TO: Planning Commission FROM: James Lehnhoff, City Planner SUBJECT: Clear Channel Sign Permit Application Denial Appeal ATTACHMENTS: 4A-I Billboard Location Map and Picture 4A-2 Letters to Clear Channel from the City 4A-3 Clear Channel Sign Permit Application 4A-4 July 2, 2007, Sign Permit Denial Appeal from Clear Channel Requested Action The Planning Commission is being requested to either overturn or sustain the City Planner's denial of the sign permit application from Clear Channel, Inc., for their May 21,2007, after-the- fact sign permit application for the electronic billboard located in the northeast comer of the 1- 35W and 1-694 intersection. Backl!:round For the purposes of this memo, Staff will use the term "electronic billboard" in reference to Clear Channel's full-color, electronic changeable message billboard. In December 2006, Clear Channel replaced the western face of the westernmost billboard that is located in the northeastern comer of the Interstate 35W and 694 intersection (Attachment 4A-I). The new billboard face is a full-color, electronic message billboard that can change images on command. The images currently change every eight seconds, which can be modified as needed. Clear Channel did obtain the required electrical permit; however, a sign permit for the alteration was not submitted. The City did not have any reason to deny the electrical permit at that time. The electronic sign does not display any animation or emit any noise. The lighting levels can be adjusted based on ambient light conditions. City of Arden Hills Planning Commission Meetingfor August 1, 2007 IlMetro-inet.uslardenhillslPlanninglPlanning CommjssjonWew~Old Business\2007\080107 - Clear Channel Sign Permit Application Denial Appeal.doc Page 1 of 5 In early January 2007, the City sent a letter to Clear Channel informing them that the electronic billboard sign was not permitted by the Arden Hills Sign Code and it should be removed. Clear Channel stated that they believed the sign was in conformance with the City's sign regnlations. On January 24, 2007, the City issued a Sign Code violation letter to Clear Channel and requested that they submit a completed sign permit application and details about the previous traditional billboard and the new electronic billboard (Attachment 4A-2). A sign permit application was not submitted, and the City issued a citation. Although Clear Channel contends that a sign permit application is not needed, they submitted a sign permit application on May 21,2007 (Attachment 4A-3). The City's Sign Code requires the City Planner to approve or deny a sign permit within 30 days of receiving the application or the application is automatically approved (Section 1220.03). City Staff and the City Attorney met with Clear Channel on June 7, 2007, to discuss the status ofthe submitted sign permit. Due to the controversial nature of the electronic billboard sign and due to the interpretation by City Staffthat the electronic billboard is not in conformance with the Sign Code, the City Planner issued a denial to Clear Channel on June 18,2007 (Attachment 4A-2). The denial was needed to keep the process moving forward and to allow the Planning Commission and City Council the ability to review the case. Clear Channel submitted their official appeal of the City Planner's denial on July 2,2007 (Attachment 4A-4). Marvin Liszt of Bernick and Lifson and Tom McCarver of Clear Channel attended a work session with the City Council and Planning Commission on the July 9, 2007, to discuss the status of the electronic billboard. At that meeting, the City Council came to a consensus that the sign permit evaluation process should continue and, the Planning Commission should review Clear Channel's appeal as required by the Sign Code appeal process (Section 1220.04). Billboards in Arden Hills There are only two billboard structures within Arden Hills, both of which are located in the northeastern corner of the Interstate 35W and 694 intersection and both are owned by Clear Channel, Inc. (Attachment 4A-l). The two billboard structures host a total of four sign faces (each billboard structure has a sign face that displays to the east and west). Only one of the sign faces is of the electronic billboard type. The other three sign faces are traditional static billboards. The Sign Code does not permit the construction of entirely new billboards or other off-site signs in the City. The two remaining billboards are considered nonconforming. City of Arden Hills Planning Commission Meetingfor August 1, 2007 \\Metro-inet.uslardenhillslPlanninglPlanning CommissionWew-Old Business\2007\080107 - Clear Channel Sign Permit Application Denial Appeal.doc Page 2 ofS Basis for Sil!n Permit Application Denial A copy of the sign permit application denial is included in attachment 4A-4. For easy reference, the reasons for the denial are as follows: . Section 1230.02 Subd 8 ofthe Sign Code prohibits new permanent off-premise signs, including billboards. Due to this provision, the Clear Channel billboard is a legal, nonconforming use. Altering or enhancing a nonconforming use is prohibited (Section 1280.01 Subd 4 of the Sign Code). . Section 1240.02 Table 1 of the Sign Code limits lighting options for freestanding signs in Sign District 7 to external lighting only. Section 1210.01 Subd 6. of the Sign Code defines external lighting as "[illumination] by means of external light fIXtures directed at the sign." The proposed sign is using a lighting source other than external lighting. . Section 1320.13 Subd 6.G.3 of the Zoning Code states that "Any billboard located in the GB District may be expanded, altered, relocated or otherwise modified solely upon written approval of the City, provided the expansion, alteration, relocation or modification is authored by the City of Arden Hills in connection with a transaction which will result in a net reduction in the number of billboards or in the aggregate sign face area of the billboards, located within the GB District." The provisions of this section have not been met. There has been a difference in opinion between City Staff and Clear Channel over whether a sign permit was required for the changes made to the billboard. Clear Channel has continued to support the idea that the changes made to the billboard did not require a sign permit. Nevertheless, a sign permit application was submitted on May 21,2007 (Attachment 4A-3). For your reference, Section 1270.01 Subd. 2 of the Arden Hills Sign Code states that the following activities require a sign permit: A. Replacing the sign copy. B. Removing the sign for the repair of the cabinet or any part thereof. C. Changes made to the size, height or bulk of the sign or addition of illumination. D. Changes in poles, structural supports, bases or shrouds, footings or anchor bolts, moving the sign to a new location, or replacement of the interior or exterior cabinet frame, except the sign face. Since a sign permit has now been issued, whether a permit is needed or not is less of an issue in terms of evaluating the appeal. The Planning Commission's decision on the appeal should be based on the merits of the sign as opposed to whether a sign permit was needed. Reviewinl! Chanl!es to Nonconforminl! Structures/Uses When reviewing changes to nonconforming signs (and structures where appropriate), the following questions are commonly asked: City 0/ Arden Hills Planning Commission Meeting/or August 1, 2007 \\Metro-inet.uslardenhillslPlanninglPlanning CommissionWew-Old Business\2007\080107 - Clear Channel Sign Permit Application Denial Appeal.doc Page 3 of5 1. In detail, what alterations are proposed to the nonconforming sign/structure? 2. What are the existing dimensions, and what are the proposed dimensions of the nonconforming sign/structure (height, width, and depth)? 3. What is the existing weight, and what is the proposed weight of the nonconforming sign/structure? 4. What is the existing lighting source, and what is the proposed lighting source for the sign/structure? 5. Are any structural changes needed to support the modified sign/structure? Please be specific. To date, Clear Channel has not submitted specific information about the changes to the billboard or the structure. However, at the July 9,2007, work session, Clear Channel did state that the electronic billboard is heavier and thicker than the previous billboard and that the structural supports were added to accommodate the additional weight. State Statutes for Nonconforminl! StructureslUses The appeal letter from Clear Channel includes a portion of State Statute 462.357 Subd. 1 (e)(a) regarding nonconforming uses (Attachment 4A-3). Forreference, the full section for nonconformities from State Statutes is provided: 462.357 Subd. Ie. Nonconformities. (a) Any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion, unless: (1) the nonconformity or occupancy is discontinued for a period of more than one year; or (2) any nonconforming use is destroyed by fire or other peril to the extent of greater than 50 percent of its market value, and no building permit has been applied for within 180 days of when the property is damaged. In this case, a municipality may impose reasonable conditions upon a building permit in order to mitigate any newly created impact on adjacent property. (b) Any subsequent use or occupancy of the land or premises shall be a conforming use or occupancy. A municipality may, by ordinance, permit an expansion or impose upon nonconformities reasonable regulations to prevent and abate nuisances and to protect the public health, welfare, or safety. This subdivision does not prohibit a municipality from enforcing an ordinance that applies to adults-only bookstores, adults-only theaters, or similar adults-only businesses, as defined by ordinance. (c) Notwithstanding paragraph (a), a municipality shall regulate the repair, replacement, maintenance, improvement, or expansion of nonconforming uses and structures in floodplain areas to the extent necessary to maintain eligibility in the National Flood Insurance Program and not increase flood damage potential or increase the degree of obstruction to flood flows in the floodway. City of Arden Hills Planning Commission Meetingfor August I, 2007 IlMetro-inet.us\ardenhillslPlanning\Planning CommissionWew-Old Business\2007\080107 - Clear Channel Sign Permit Application Denial Appeal.doc Page 4 of 5 Options & Proposed Motion Lane:uae:e The only question before the Planning Commission is whether Staff correctly or incorrectly denied Clear Channel's sign permit application. The Planning Commission's recommendation will be sent to the August 27,2007, City Council meeting for review. I. Support Staffs Denial of the Application: Motion to support Staffs denial of Clear Channel, Inc., May 21, 2007, sign permit application based on the City's subdivision and zoning regulations as presented in the June 18, 2007, denial letter to Clear Channel, Inc. 2. Overturn Staffs Denial of the Application: Motion to overturn Staffs denial of Clear Channel, Inc., May 21,2007, sign permit application based on the following reasons... (reasons must be stated for the record to support overturning Staff's denial of the sign permit application) Attachments 4A-I Billboard Location Map and Picture 4A-2 Letters to Clear Channel from the City 4A-3 Clear Channel Sign Permit Application 4A-4 July 2,2007, Sign Permit Denial Appeal from Clear Channel IlMetro-inet.uslardenhi/lslPlanninglPlanning CommissionWew-Old Business\2007\OBOI07 - Clear Channel Sign Pennit Application Denial Appeal.doc Page SofS City of Arden Hills Planning Commission Meetingfor August 1. 2007