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This past February Scenic America was present for a landmark moment in the sign code shakedown battle between small municipalities and the well-financed outdoor advertising industry. On February 13, 2006, the entire Eleventh Circuit (twelve judges and one senior status judge) heard oral arguments in a case involving the efforts of a billboard company to locate giant billboards in Fayette County. Prior to oral arguments, Scenic America, Inc., joined by the American Planning Association and the International Municipal Lawyers Association, submitted an amicus brief in support of the position of local government. Scenic America has filed several amici briefs across the country in support of local citiznes trying to preserve their right to regulate signs and scenic beauty in their communities. Other amici curiae also submitted amicus briefs, including an important amicus brief submitted by the National League of Cities and the state local government organizations from Florida, Georgia, and Alabama.

On June 9, 2006, the Eleventh Circuit rendered a unanimous opinion 13-0 in Tanner Advertising Group, L.L.C. v. Fayette County, Georgia, rejecting the billboard company’s challenge. The Eleventh Circuit rejected the argument that the plaintiff could avoid the constitutional limitations that restrict its “standing” to challenge provisions that do not apply to the challenger. Specifically, the Eleventh Circuit held that the billboard company Tanner Advertising lacked standing to challenge a sign provision prohibiting “Attention-getting devices” due to the fact that there was no evidence that Tanner Advertising had been affected by this provision.

On June 13, 2006, a three-judge panel of the Eleventh Circuit reached a decision in a non-sign case that reiterated the limits of a plaintiff's ability under the First Amendment to challenge provisions that do not apply to it. The arguments advanced by local government counsel and amici in the Tanner Advertising case carried over to the June 13 decision and were clearly persuasive in the Court’s analysis in CAMP Legal Defense Fund Inc. v. City of Atlanta. In the CAMP ruling, the Eleventh Circuit held:

1. Each of the three elements of constitutional standing is an “indispensable part of the plaintiff’s case,” and “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.” 2. The principles of prudential standing, of which overbreadth is an exception, bear on the question of standing. However, a plaintiff cannot avoid proof of each element of constitutional standing. 3. A litigant cannot merely plead overbreadth as a strategy to challenge ordinance provisions that do not affect its particular interests or activities. Thus, an injury under one provision of an ordinance is insufficient “to confer standing on a plaintiff to challenge all provisions of an allegedly unconstitutional ordinance.”

Donate Today: Scenic America is the only national advocacy organization devoted to fighting blight and protecting the visual quality of our cities and towns. Please support our efforts to hire a technical staff person so that we can expand the level of assistance we provide to communities under attack by the outdoor advertising industry.

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Federal courts protected the value of Hawaii's unique scenic beauty in a ruling against the Center for Bio-Ethical Reform, a California-based anti-choice group that had challenged the constitutionality of Honolulu’s sign ordinance that bans aerial banners. The court unanimously ruled that Honolulu's sign code did not impinge on the group’s First Amendment rights, and that the city’s restriction on aerial banners is content-neutral.

As previously reported in Scenic Overlook, Scenic America filed an amicus brief supporting one of Hawaii’s oldest conservation organizations, the Outdoor Circle, in its efforts to protect Waikiki beachgoers from being visually assaulted by flying billboards overhead.

The group plans to appeal the decision to the Supreme Court and the director of the Center, Gregg Cunnigham, told the Star Bulleting, that he intends to "...absolutely swamp the state of Hawaii with our trucks and you’re not going to be able to cross the street without seeing one."

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SCENIC BYWAYS SUBMISSIONS REQUESTED

Scenic America’s long time ally and partner in the preservation of America’s scenic roads, the National Scenic Byways Program, is calling for submissions for the 2007 Scenic Byways Awards.

The National Scenic Byways Program helps communities preserve and promote byways with distinct scenic, cultural, historic, and natural resources, and the awards recognize byways from across the country that excel in the areas of resource protection, planning, built projects, and sustainable organizations, to name a few. The Byways Program has added a leadership award this year to honor individuals, organizations, or agencies that have used innovative approaches in byway protection.

Deadlines vary, but the majority of applications are due July 17, 2006. For more details on applying, visit American Association of State Highway and Transportation Officials (AASHTO) online.

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