Proposed Electronic Billboards

Electronic Digital BillboardThe City of Tacoma in 2010 proposed allowing the nation's biggest billboard company (Clear Channel Outdoor, Inc.) to erect nearly 40 digital billboards at locations throughout the City.  Our 2010 City leaders chose not to defend in court their predecessors' 1997 ordinance that would have banned all billboards except in very limited commercial and industrial areas.  Instead, they sought to settle Clear Channel's 2007 lawsuit that challenged the 1997 billboard ban by proposing to amend the City's sign code ordinances to permit Clear Channel to replace its standard billboards around the City with electronic ones that look like huge flat-screen TVs -- ten of which would be 14 feet by 48 feet (672 sq. ft.) and the rest would be 12 feet by 25 feet (300 sq. ft.).  An organization called Scenic America has many articles condemning billboards generally and digital electronic billboards in particular. (http://www.scenic.org/billboards/digital)

Studies show that electronic billboard distract drivers, just as they are designed to do.  To see some studies and articles, click here, and here, and here.  For a comprehensive report from April 2010 opposing digital billboards by the professional planning staff of the City and County of Durham, North Carolina, click here.

Many citizens signed a petition in 2011 (click here) to the Tacoma City Council Members opposing the proposed Clear Channel settlement and urging the Council to enforce and defend the 1997 billboard ban ordinance.

The Historic Tacoma organization (www.HistoricTacoma.org) sent a notice to its supporters alerting them about this digital electronic billboards proposal. Click here to see it.

The Central Neighborhood Council (CNC) board voted on March 3, 2011, to submit comments to the Tacoma Planning Commission opposing the proposed changes in the sign code ordinances, for which a public hearing was held on March 16, 2011, and for which the Commission acceped written comments through March 25, 2011.  The CNC broadcast by email a summary of its objections (click here) and submitted to the Planning Commission a 7-page letter (click here) along with many of the documents linked on this website.  The South Tacoma Neighborhood Council objected strongly (click here) to the proposal. So did the North End Neighborhood Council (click here) and the Northeast Tacoma Neighborhood Council (click here).

To listen to an audio recording of the 90-minute public hearing held on March 16, click here, or just the five minutes of remarks by the City's lawyer Shelley Kerslake instructing the Planning Commission that its role is to implement the City Council's policy directions, click here.  At the Planning Commission's next meeting, on April 6, all six members present voiced opposition to the proposed sign code revisions. Click here for their 33-minute discussion of billboards.

Mid-May 2011 Developments:  (1) The Planning Commission on May 18 issued its report soundly rejecting the sign code changes contemplated by the proposed settlement with Clear Channel.  Click here for that final report and its comprehensive findings.   (2) The City Council on May 17 enacted an ordinance (click here) imposing a moratorium up to six months on the issuance of permits to erect or modify a billboard. For the TNT's story, click here.

July 2011 Developments:  On July 19, the City Council held a public hearing on the Planning Commission's final report of May 18 and its recommended amendments to the City's sign code addressing billboards.  About 30 citizens testified, with the great majority supporting the Planning Commission's recommendations. Written testimony was also submitted. For the written testimony by the Central Neighborhood Council, click here, and for the written testimony by Doug Schafer, click here (large file).  On July 26, the City Council approved, for its First Reading, a Substitute Ordinance No. 28009, and scheduled it for adoption (possibly with  amendments) on August 9, 2011.

August 2011 Developments:  On August 9, the City Council adopted, by a 7-to-1 vote, Substitute Ordinance No. 28009.  For the TNT's article immediately following that meeting, click here.  Hooray!

Litigation with Clear Channel, Round Two:  On August 18, 2011, the City filed a Complaint in Pierce County Superior Court seeking a ruling that the settlement agreement is unenforceable. Clear Channel caused the case to be transferred to the United States District Court for Western Washington. To see the significant papers filed in the public files for that case, click here.

 

The City's website page about the 2010 proposal to change its billboard regulations is at: http://www.cityoftacoma.org/Page.aspx?hid=15962 (City Hall | Departments | Commerce and Economic Development | Billboard Regulations)

A News Tribune editorial on June 26, 2011 (click here) urges City officials to enforce the 1997 billboard ordinance making Clear Channel remove its 193 illegal billboards.

A News Tribune editorial from Feb. 7, 2011, (click here) criticizes City officials for settling Clear Channel's lawsuit "that it [the City] might have won."

Tribune reporter Lewis Kamb wrote on Aug. 3, 2010, an article (click here) very critical of the City Council's proposed settlement.

Trib reporter Kathleen Cooper enlightened readers (click here) on March 17, 2011 about the Planning Commission hearing the night before.

In Trib reporter Cooper's article on March 22, 2011, (click here) the City Manager disaffirmed Lawyer Kerslake's instructions to the Planning Commission, and Mayor Strickland affirmed that the Planning Commission could recommend that the City reject digital electronic billboards altogether.

Clear Channel Outdoor's media kits pitching advertisers to use its digital billboards in Des Moines, IA (where Eric Anderson was City Manager for 10 years before Tacoma hired him in 2005) and the Seattle market (5 digital billboards in Kent, only)

 

Click on the following documents to view/download PDF copies of them:

1988 Ordinance regulating billboards and forbidding more than the number existing at April 12, 1988.

1992 Ordinance regulating billboards and reorganizing the sign code. (large file)

1996 Ordinance imposing one-year moratorium on billboards; banning billboards from all zoning districts. (very large file)

1997 Ordinance regulating billboards, with a 10-year amortization period for removal of nonconforming billboards.

1998 Tacoma Sign Code showing how the 1997 Ordinance fit within Tacoma's sign code provisions.

Sept. 4, 2007, Memo from City Attorney with background of Tacoma's billboard regulations.

June 22, 2007, Table by City Staff listing nonconforming and conforming billboards.

October 2007 Nonconforming Billboard Inventory with photos (NOTE: this is a very large PDF file - 38 MB)

August 2011 Table by City Staff listing nonconforming and conforming billboards.

 

Documents from Clear Channel's lawsuit that the City chose not to defend are here:

Complaint by Clear Channel on July 26, 2007.

Stipulated Order to Toll Fines and Penalties, filed August 3, 2007.

Answer by the City on August 16, 2007.

Court docket showing that nothing much happened for two-and-a-half years; presumably negotiations were underway.

Clear Channel's motion for summary judgment filed Feb. 10, 2010.

Clear Channel's exhibits supporting its motion for summary judgment.

Settlement reported to the Judge on March 16, 2010.

Proposed Settlement Agreement, prepared in March, 2010 (see that month on its Exhibit 4, the last page).  Clear Channel has not yet signed this proposed agreement and likely will not do so until the City enacts the proposed billboard ordinance consistent with Clear Channel's specifications.

Tacoma City Council's meeting minutes from July 27, 2010 approving the Proposed Settlement Agreement.

Agreed Order Dismissing Lawsuit subject to attached Dismissal Agreement, entered October 13, 2010.

First Amendment to the Proposed Settlement Agreement bearing one signature dated January 25, 2011.

Clear Channel even drafted the proposed billboard ordinance it appears from email of Sept. 23, 2010.

 

Negotiations Began Early to Settle the Lawsuit by Giving Clear Channel Whatever It Sought.

July 24, 2007, Letter from City Manager Eric Anderson to Clear Channel Attorney

June 12, 2008, Email between City Manager Eric Anderson and Clear Channel President

 

Some critical analysis from attorney Doug Schafer (the CNC webmaster):

emails of March 7-8, 2011 by Doug Schafer to Sharon Winters re defenses that the City should have asserted in litigation.

email of March 8, 2011, by Doug Schafer to Sharon Winters re Clear Channel's not having signed the proposed Settlement Agreement.

email of March 14, 2011, by Doug Schafer to City lawyers Elizabeth Pauli and Shelley Kerslake requesting list of post-1997 court rulings that reportedly led City officials to not defend the 1997 billboards ordinance, together with the City lawyers' response.

A Memorandum of Law, dated May 13, 2011, by Doug Schafer addressed to City Council members analyzing Clear Channel's challenge to Tacoma's ordinance.

email of May 19, 2011, by Doug Schafer seeking count of billboards rendered nonconforming by the 1988 ordinance (23 years ago) and by the 1992 ordinance (19 years ago).

emails of June 7-8, 2011, by Doug Schafer to members of City Council and Planning Commission forwarding a key court case and journal article validating sign removal laws.

 

Relevant Court Rulings: (click on an item to see it)

Rhod-A-Zalea v. Snohomish County (WA Supreme Court, 1998), "Local governments, of course, can terminate nonconforming uses but they are constitutionally required to provide a reasonable amortization period."

University Place v. McGuire (WA Supreme Court, 2001), "Nonconforming uses are not favored, and may be extinguished, either after a period of nonuse or a reasonable amortization period allowing the owner to recoup on investment. [footnote 3: This case does not involve an amortization schedule requiring nonconforming use property owners to end their use in a reasonable period of time. Such a schedule has been approved in Washington State. See Rhod-A-Zalea, 136 Wash.2d at 7, 959 P.2d 1024; accord Teuscher v. Zoning Bd. of Appeals, 154 Conn. 650, 228 A.2d 518, 522-23 (1967).]"

Horan v. Federal Way (WA Court of Appeals, 2002), "The parties have not adequately briefed whether amortization is sufficient compensation, and we express no opinion on the issue."

Court rulings upholding amortization periods for nonconforming uses, such as billboards: see the 36 court rulings listed on page 12 of Professor Floyd's article, "The Takings Issue in Billboard Control," and see Law Prof. Stephen Durden's 2007 article, "Sign Amortization Laws: Insight Into Precedent, Property, and Public Policy."

League of Neighborhood Residential Advocates v. Los Angeles (9th Circuit, Fed. Ct. of Appeals, 2007), invalidating the City's litigation settlement agreement that granted the litigant a variance from the City's prior zoning laws.

Chung v. Sarasota County (Florida Ct. of Appeals, 1996), ruling as follows:

"We conclude that the County's settlement agreement here presents a case of improper contract zoning.  Although the County Commission approved the settlement at its regular meetings, it bypassed the more stringent notice and hearing requirements for a rezoning.  When it entered into the settlement agreement that obligated it to rezone Chung's property, the County contracted away the exercise of its police power, which constituted an ultra vires act.
"Chung argues that the County must still follow the formal requirements to enact the zoning amendments and that this process will provide the necessary due process opportunities for notice and a hearing. We reject this argument because the hearings that follow would be a pro forma exercise since the County has already obligated itself to a decision."

Ackerley Comm. v. Seattle (9th Circuit, Fed. Ct. of Appeals, 1997). Seattle in 1977 had banned new billboards and regulated the relocation of existing ones. The court in 1997 upheld the constitutionality of Seattle's 1993 ordinance that further regulated the spacing, dispersion, height, size, location and relocation of billboards, leading to a gradual net reduction in the number of billboards in the city.

Outdoor Systems v. Mesa (9th Circuit, Fed. Ct. of Appeals, 1993). Court upheld constitutionality of 1986 ordinance that banned new offsite signs, including all billboards, and required removal of nonconforming signs on parcel before owner could get a building permit.

Clear Channel Outdoor v. Los Angeles (9th Circuit, Fed. Ct. of Appeals, 2003). Ordinance imposed inspection fees on "Off-Site Signs" defined as "a sign which displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution or any other commercial message, which is generally conducted, sold, manufactured, produced, offered or occurs elsewhere than on the premises where such sign is located." [This definition is comparable to Tacoma's definition of "billboard sign" that Clear Channel challenges as content-based regulation.]  The court rejected Clear Channel's constitutional challenge. saying, "The Supreme Court, the Ninth Circuit, and many other courts have held that the on-site/off-site distinction is not an impermissible content-based regulation."

Metro Lights v. Los Angeles (9th Circuit, Fed. Ct. of Appeals, 2009). The Court again upheld LA's sign code that banned, with limited exceptions, off-site signs, meaning a sign on private property advertising commercial services or wares purveyed elsewhere than on the premises where the sign is located.  [Again, LA's definition of "Off-Site Sign" is comparable to Tacoma's definition of "billboard sign."]

Clear Channel Outdoor v. New York City (2nd Circuit, Fed. Ct. of Appeals, 2010). The Court upheld constitutionality of NYC regulations governing locations of, and requiring documentation concerning, "advertising signs" defined as "a sign that directs attention to a business, profession, commodity, service, or entertainment that is conducted, sold, or offered elsewhere than upon the premises where the sign is located." [This definition is comparable to Tacoma's definition of "billboard sign" that Clear Channel challenges as content-based regulation.]

Markham Advertising v. State of Washington (WA Supreme Court, 1968).  The Court ruled that the 1961 state law and regulations requiring removal of highway billboards without any compensation was a constitutional exercise of the government's police power to promote the general welfare.

Ackerley Communications v. Seattle (WA Supreme Court, 1979).  The Court upheld the constitutionality of Seattle's 1968 ordinance that required the removal, after a 3-year amortization period, of nonconforming billboards without payment of any monetary compensation.

Clear Channel Outdoor v. Schrem Partnership (WA Court of Appeals, Unpublished, 2007).

Jet Chevrolet v. Federal Way (WA Court of Appeals, Unpublished, 2004).

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