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Home My WebLink About12-17-07 Item 1A Sign Code " ~ ~HILLS MEMORANDUM DATE: December 17,2007 Agenda Item :I.A TO: Mayor and City Council James Lehnhoff, City Plarm# Sign Moratorinm & Dynamic Sign Regulations FROM: SUBJECT: Request Provide guidance to Staff on moving forward with developing dynamic sign regulations. Backl!round On January 29th, 2007, the City Council approved a one year moratorium related to the construction of new and the modification of existing electronic changeable copy signs, electronic graphic display signs, video display signs, flashing signs, and multi-vision signs in all sign districts. These types of signs are generally referred to as dynamic signs. The moratorium was enacted due to Clear Charmel' s illegal conversion of their traditional billboard to a dynamic billboard in the northeastern corner of Interstate 35W and 694. The City is in litigation with Clear Channel regarding the illegal sign conversion. Although the Clear Charmel dynamic sign was constructed in violation of the City's Sign Code, the City has begun the process of evaluating the current sign regulations to determine if the regulations meet City goals and if additional clarification is needed. Staff is now requesting guidance from the City Council on how to proceed with dynamic sign regulation in the Sign Code. Dvnamic Sil!n Rel!ulation The current Sign Code does not specifically address dynamic signs; however, the Sign Code does prohibit new flashing or scrolling signs and signs with moving, swinging or revolving parts. The Sign Code also prohibits the construction of new billboards, which makes all existing billboards nonconforming. A nonconforming sign can be replaced, maintained, and improved, but it cannot be expanded. Despite Clear Channel's conversion a traditional billboard sign to a \lMetro-inet.us\ardenhills\PlanninglPlanning Cases\2008\QX-OXX Sign Code (UPCOMING) \121707 - CC Report - dynamic signs. doc Page 1 of3 r dynamic billboard sign, it remains the opinion of the City that their dynamic sign does not conform to the current sign regulations. Due to the recent issues regarding dynamic signage in Arden Hills, Staff does believe that the Sign Code should be amended to better address dynamic signs since future requests are likely to occur. In reviewing dynamic sign regulations, Staff has identified three options for regulating dynamic signs in Arden Hills: 1. In conunercial zones, allow part of a sign to be dynamic and place restrictions on brightness, motion, frequency of message change, sign size, etc. 2. In conunercial zones, allow all of a sign to be dynamic and place restrictions on brightness, motion, frequency of message change, sign size, etc. 3. Ban new dynamic signs (except for electronic time and temperature). There are three existing partially dynamic signs in Arden Hills: I. the entrance sign at North Heights Lutheran Church on Highway 96,2. the Holiday Gas Station sign on Highway 96, and 3. Brausen's Garage sign on County Road E near Highway 51. If this option is chosen, Staffwill begin drafting regulations to allow a specific portion or percentage of a sigu within conunercial areas to be dynamic. Regulations that address brightness, frequency of message change, size, location, and other aspects of dynamic signs would also be included. The City of Minnetonka allows a percentage of a sign to be dynamic, which could be a model for Arden Hills. The City could also choose to allow entire signs to be dynamic signs. The recently converted Clear Channel billboard is an example of this type of dynamic sign. Ifthe City chooses to move in this direction, Staff can begin drafting the appropriate regulations, including regulations that address brightness, frequency of message change, size, location, etc. Finally, according to the League of Minnesota Cities, it is possible to completely ban new dynamic signs. A complete ban could have an exemption for electronic time and temperature signs, which has been upheld by the federal court of appeals as not being content based regulations. If a total ban is enacted, the three existing partially dynamic signs would be permitted to remain but no others could be permitted. If a ban on dynamic signs is enacted, it may be difficult to grant future variances for dynamic signs. Once a dynamic sign ban or other related regulations are adopted, it would be in the best interest of the City to maintain consistency in evaluating sign requests, dynamic or otherwise, because sign regulations are subject to a higher level of scrutiny under the law. The City Council cannot make a [mal decision at a work session; however, Staff can move forward with a consensus amongst the Council. Since I am unable to be at this work session, please provide any questions to Meg Beekman, and I will respond to those questions upon my return at the end of December or early January. IlMetro-inet.uslardenhillslPlanninglPlanning Cases\2008\OX-OXX Sign Code (UPCOMING)\121707 - CC Report - dynamic signs.doc Page 2 of3 ~ Dvnamic Sij!n Moratorium Expiration Although the dynamic sign moratorium expires on January 29th, 2008, the City Attorney has indicated that the City is not in danger of being forced to approve dynamic signs ifthe moratorium is allowed to expire prior to the adoption of new dynamic sign regulations. In the case with Clear Chatmel, the City maintains the opinion that their billboard was converted to a dynamic sign in violation of City sign regulations. The Sign Code does not currently have regulations allowing dynamic signage. Once Staff has direction on how to move forward with dynamic sign regulations, the regulations will be drafted for City Council review. While the pending moratorium expiration does not technically impact the adoption of new regulations, Staff will strive to draft the dynamic sign regulations by the end of January 2008. Attachments Regulating Dynamic Signage - League of Minnesota Cities Report \lMetro-inet.us\ardenhillslPlanninglPlanning Cases\2008\OX-OXX Sign Code (UPCOMING)\121707 - CC Report - dynamic signs. doc Page 3 of3 r LEAGUE OF MINNESOTA CITIES CONNECfING & INNOVATING SINCE 1913 REGULATING DYNAMIC SIGNAGE Executive summary Cities have authority and responsibility to regulate dynamic signs as appropriate for each community. There is no single correct approach to regulation. Because the regulation of signs involves the First Amendment, courts hold sign regulations to a higher standard than most land use regulations. Cities still have considerable discretion to regulate, as long as they do so reasonably and without regard to sign content. Introduction In the fall of 2006, a number of Minnesota cities were surprised by the appearance of large electronic billboards akin to giant television screens. These signs are the next generation of sign displays with the ability to feature changing images and movement-known collectively as dynamic signs. Attempts to regulate them resulted in litigation in at least one community- Minnetonka. In developing a regulatory response, Minnetonka partnered with the League of Minnesota Cities to commission a study, conducted by SRF Engineering, on the impact of such dynamic signs on traffic safety. This memorandum discusses the legal framework of regulating dynamic signage in light of the recent litigation and study. Regulatory framework While the federal and state government can enact and have enacted laws regulating signs, those regulations only provide minimum standards. Courts have explicitly recognized that cities have the ability to regulate signs, including dynamic signs, more restrictively. There is no uniform system of regulation that cities must follow. Each community is different and has different needs that local ordinances may reflect. Such regulations must meet the same basic legal tests for all sign regulation. Most city land use decisions get a very deferential standard of review known as rational basis review. Under this level of review, city decision will be upheld if they have any rational basis. Because sign regulations implicate free speech rights which are protected by the First Amendment, they are subjected to higher levels of scrutiny. The highest level of scrutiny, called strict scrutiny, applies when government tries to regulate based on the content of speech. The only content-based sign regulation that courts have upheld is treating off-premise signs (billboards) differently than on-premise signs that advertise the business on the same property. One distinction that may seem like it is content based, but our federal court of appeals has said is not, is a ban on dynamic signs with an exception for time and temperature displays. The court held LEAGUE OF MINNESOTA CITIES INSURANCE TRUST '45 UNIVIlJSITY AV!. WEST moolo (651) 281-1200 EAk (651) 281-1298 ST. PAUL. MN "103-20<4 lOLL flUio (800) 925-1122 WiIloWWW.LMC.ORG ,/ that because of their unique nature, allowing only time and temp displays is not a prohibited content-based regulation. It is important not to overstate this, however. Regulations that go further and carve out a broader exception for "public information" are likely to be struck down as impermissibly content-based. Sign regulations that are not content based are subject to intermediate scrutiny, which tests whether the regulation is substantially related to a significant government interest. This roughly translates to "regulate for a good reason." Cities should take care that the scope of the regulation is not excessive when viewed in light of all of the regulatory objectives, and that they do not create exceptions to the regulations that cannot be justified by reference to one or more of the city's articulated objectives Big-picture regulatory tools The available research on traffic impacts supports significant content-neutral limits or even bans on dynamic signs for safety reasons. The studies confIrm that billboards can tend to distract drivers, dynamic features contribute to the distraction, and even short distractions can increase the risk of accidents. This is not surprising as promotional materials put out by sign companies themselves boast the signs' ability to hold viewer attention as a benefit of dynamic signs. Safety is only one concern. Cities may also regulate signs based on values, preferences, and aesthetics. Not every sign is appropriate in every community or every neighborhood. Not every community wishes to become Las Vegas or even downtown Minneapolis. Cities can take a number of different macro-level approaches to regulation. Some examples include: I. Complete or near-complete bans that do not allow dynamic signs at all. 2. Allow dynamic signs with restrictions such as minimum display time, allowing only a percentage of a sign to change, or text size limitations. 3. Allow different things in different zoning districts, such as allowing brighter dynamic signs in a downtown business district than in residential neighborhoods. 4. Offering incentive programs to billboard companies to allow dynamic signs in exchange for removal of non-conforming static signs. 5. Encourage dynamic displays. Some communities like the clean, new look of dynamic signs and encourage them to remove old blighted and poorly maintained signs. Regulating sign aspects A content-neutral regulation that regulates dynamic signage will be subject to intermediate scrutiny, so a community must show a regulation is substantially related to a significant government interest. In plain language, you must articulate what problem a regulation is intended to address and how the regulation addresses it. There are at least six aspects of dynamic signs that regulations may address: 1. Duration of messages/ speed of changeover. Studies have described the Zeigarnik effect, a psychological need to see a task through to its end. In the case of dynamic signs, a driver's desire to read an entire message before it changes or to complete a scrolling message has been shown to 2 / negatively impact drivers' tendencies to maintain a constant speed or remain in a lane. To address these issues, many cities have imposed minimum message durations that might vary depending on community preference and traffic conditions. 2. Motion, animation, and video. Motion can range from simple visual effects to full realistic video. Motion can extend the period of time a driver will keep watching a sign, increasing distractedness. Cities may prohibit motion or limit it either to specific areas or to specific characteristics such as a motion time frame calibrated to traffic speed. 3. Brightness. Brightness can be a safety factor, particularly at night, as sudden brightness can be distracting or diminish night vision. A number of communities limit brightness based on time of day and by color displayed. This can be difficult to quantifY and measure. 4. Sign placement and spacing. The number of signs and their location can be a big factor in driver awareness. A large number of signs can increase distractedness. Poorly placed signs may block views or cause distraction in unsafe areas. Cities may impose site standards and spacing requirements. These may present regulatory challenges as spacing may be dependent on the actions of neighboring properly owners. 5. Size of signs. Size can have impacts in several ways. Too big, and it obstructs views and distracts. Too small, and it takes longer to read and encourages sign users to sequence messages. Cities may limit dynamic signs or the percentage of a sign that can be dynamic. 6. Text size and legibility. Signs that are difficult to read invite increased driver focus. Regulations can, for example, require minimum sizes based on road speed. The specifics of how to regulate each of these aspects is up to each community. Because review of regulations must face intermediate scrutiny, cities have to take some extra steps when drafting and adopting ordinances. For each aspect regulated, cities should consider adopting fmdings or local stndies that articulate the reason and any support for the regulation. The SRF study and other materials can provide a scientific basis for a number of regulatory steps. In addition, cities may choose more stringent regulation in order to take a conservative approach to protecting safety. Moving forward It is recommended that cities think about dynamic signs as early as possible. Regardless of your city's approach, it is better to make a rational choice rather than by having dynamic signs arrive before you have thought about the issue. Once the signs are up, Minnesota's nonconforming use law arguably grants them "grandfathered" status, with a narrow exception for safety. If your city would like more information about regulating dynamic signs, Paul Merwin, LMCIT Senior Land Use Attorney, can provide assistance and refer you to more information and resources. Contact Paul at (651) 281-1278 or omerwin{al,lmc.org. 3 Disclaimer: This memorandum is intended as general information only and should not be read as legal advice or as creating an attorney-client relationship. This memo addresses general concerns and has not been reviewed in the context of a specific client or situation. This memo was drafted as a loss control document and is intended to avoid conflicts rather than form an opinion as to the legality or defensibility of any action. Last updated: 7-26-07 4