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In the last issue of Scenic Overlook we were ecstatic to report that, with your help, we had achieved a major legislative victory against the billboard industry by having an amendment to the emergency supplemental appropriations bill thrown out. The amendment would have allowed states in hurricane-affected areas to opt out of a provision in the Highway Beautification Act that mandates that nonconforming billboards cannot be rebuilt after being destroyed by a natural disaster.

The celebration did not last long, as news has just reached us that the billboard industry is back on the attack, this time via a completely irrelevant provision to the Senate’s Energy and Water Appropriation Bill. Kevin E. Fry, President of Scenic America, said “this new measure is a direct and underhanded assault on one of the few remaining effective pieces of the HBA and a demonstration of disrespect for the interests of citizens and local governments nationwide.”  

Just like the last time, the measure was quietly slipped into an appropriations bill without public hearings or public input of any sort. No entity except the outdoor advertising industry was consulted, ignoring the interests of the millions of people potentially affected by the proposed change in a federal policy which has been in effect since 1965.  Click here for a background report on the situation prepared by Scenic America.

Rest assured - we will not let the Highway Beautification Act go down without a fight. The good news is that the House version of the bill has no similar provision, and we’re very optimistic that we will once again be able to pressure the conference committee into throwing out this destructive and subversive provision brought forth by the advertising industry.

We’re anticipating that this measure will be debated either when Congress returns in September, or more likely when they’re back again for a lame-duck session in November.  Be on the lookout for more information from Scenic America, including a special action alert letting you know how to contact your Congress members to tell them you want to preserve what’s left of the Highway Beautification Act.

With your help, we can defeat the billboard industry again.

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Several recent court cases have been decided in our favor. Here's a sampling:

On August 17 the Eleventh Circuit Court released a decision in favor of Cobb County in Granite State Outdoor Advertising vs. Cobb County, Georgia.

Cobb County’s sign ordinance is by no means extraordinarily stringent.  It permits many types of commercial and noncommercial signage. However, once type of signage it completely prohibits is off-premise outdoor advertising signage, defined in the ordinance as “off-premise signs with a commercial message.”

Granite State, like many other outdoor advertising companies have done, challenged the ordinance as a violation of first amendment rights.  The District Court disagreed, as did the Court of Appeals, noting that the Supreme Court has stated that a prohibition of off-site advertising goes “no further than necessary” to fulfill the goals of traffic safety and aesthetics.

Scenic America and Scenic Georgia joined several other organizations in filing an amicus brief in this appeal.

The Supreme Court of California recently affirmed the Court of Appeals decision in the case of Regency Outdoor Advertising vs. the city of Los Angeles.

In June 2000, Los Angeles undertook a beautification program aimed at enhancing the appearance of Century Boulevard, a primary access route to and from Los Angeles International Airport. As part of this project, the city planted mature palm trees along the north and south sides of the road, and in the median of the roadway.  This landscaping all occurred on property owned by the city.

At the time, Regency owned numerous billboards on Century Boulevard, which they leased for commercial advertisement purposes.  Regency protested when the city planted the palm trees along the road, claiming that the trees screened at least six of its billboard facings from motorists traveling along Century Boulevard.  Since fewer people could see its billboards clearly with the trees in the way, Regency argued that the city must compensate it for the supposedly reduced value of the obscured facings.

The State's Supreme Court agreed with the lower courts’ rulings that Regency did not suffer damages and that the City was not responsible for any loss in revenue supposedly caused by the planting of trees on city property.

A big victory for the city of Eden Prairie, Minnesota vs. Advantage Media and the ubiquitous billboard lawyer Adam Webb.

Eden Prairie, like many other municipalities, regulates what signage may be erected within its limits through its sign code. The sign code's stated purpose is to “preserve the city's visual amenities and protect residents from annoyance and danger.”

In 2004 Advantage submitted permit applications to the city for construction of thirteen 672 square foot, double-sided freestanding billboards. Each billboard was to contain trivision technology, which displays three different triangular images that rotate every ten seconds to allow for multiple displays.

All the applications were rejected by the city because they did not conform to its sign code. Advantage then sued, arguing that the sign code's regulations are unconstitutionally overbroad under the First and

Fourteenth Amendments. The District Court disagreed and ruled in the city’s favor. The Eighth Circuit Court of Appeals upheld that ruling.

Scenic America, Scenic Minnesota and several of our allies filed an amicus brief on behalf of the city of Eden Prairie.

The 11th U.S. Circuit Court of Appeals in Atlanta recently upheld the city of Hoover, a suburb of Birmingham, in a lawsuit that had challenged the city's sign ordinance.  A District Court issued a summary judgment in favor of the city in Advantage Advertising vs. Hoover, and the appeals court upheld the ruling. Hoover has one of the most stringent sign ordinances in the state of Alabama.

The city is facing another challenge, this time from a large furniture store which opened on unincorporated property in the midst of a planned business district. The store was built under the county's less stringent ordinances, which allowed an animated sign to be built. The store ownership then took advantage of the county's billboard law which allows new boards to be erected if an old one is taken down. The store purchased and dismantled four billboards elsewhere, and now plans to rent space on its "jumbotron" sign. Scenic Alabama is pushing a change in the county ordinance to not allow any new billboard construction.

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The Florida Legislature has recently passed legislation that was signed into law by Governor Bush granting the owners of billboards permanent compensable view easements over public property without payment of compensation. This new law prohibits trees and other vegetation that are part of a roadway beautification project from being planted in a legally established billboard "view zone." The new law also prohibits sound barriers that are a component of a road improvement project from blocking a sign's visibility, and allows signs to be elevated above noise walls.

This legislation is the second major victory achieved by billboard companies in Florida recently. In 2002, the Legislature passed a bill requiring cities and counties to compensate billboard companies when billboards are removed by local ordinances. Prior to the enactment of this law, a local government could simply provide an amortization period for a sign and force its removal, in lieu of paying compensation to the sign owner.

The  new legislation provides for permanent “view corridors” that limit both governments and private parties from planting vegetation in the public rights of ways of interstates, expressways, federal-aid primary facilities, and the State highway system. It will also allow a billboard to be raised above a sound barrier wall, regardless of any height limitations contained in state or local laws. If a local government should refuse to grant a height variance to allow a height increase, it must suffer the consequences by paying fair market value for both the sign and the underlying real estate.

Florida's Legislature has made it clear that the protection of property rights is more important than scenic preservation and public welfare in the state of Florida. Bill Jonson, Scenic America board member and President of Citizens for a Scenic Florida, told the Tampa Tribune in a May 8, 2006 article that "Their philosophy says we will use public property and grant an air easement right, without requiring [billboard companies] to pay anything for that use of public property."

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900 BILLBOARDS TO COME DOWN IN THE CITY OF PHILADELPHIA

All of Philadelphia’s 900 illegal "eight-sheet" billboards will be come down by January thanks to the settlement of a federal lawsuit announced August 9 by Mayor John Street. "Illegal outdoor advertising is a form of blight," the mayor said. "This settlement provides the city with stronger oversight of the billboard industry, and it will enhance the quality of life in our neighborhoods."

The settlement is a bit of a double-edged sword to those of us concerned about the scenic integrity of our communities. As part of the agreement future billboard licensing fees will be reduced and the outdoor industry will now be the sole watchdog for billboards in the city, responsible for reporting the location and legal status of every billboard in Philadelphia to local administrators.

"We are thrilled to see the eight-sheets come down, it's long overdue," said Mary Tracy, executive director of the Philadelphia-based Society Created to Reduce Urban Blight (SCRUB) and board member of Scenic America.  "What concerns me is they are shifting the responsibility from the city to the industry. It's like the fox watching the henhouse," she said. “We are in the process of studying [the settlement] closely and choosing the best strategy to combat its deleterious effects.”

In an eyebrow-raising move, Clear Channel Outdoor has agreed to pay the $350,000 to have the illegal billboards removed, even though they are not the owners of these particular billboards. Explaining his company's involvement, Clear Channel Outdoor president George Kauker said he hoped to improve the industry's image. "The eight-sheets have led to a lot of negative perception of the billboard industry,” he said. 

Ed. Note: As of this writing it appears SCRUB is preparing to contest the settlement.  Look for an update in the next newsletter, scheduled for release the second week of September.
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The Houston Chronicle recently opined, “Someone defined chutzpah as the condition of having enough gall to be divided into three parts. He must have been thinking of the billboard industry.” What would spawn such a statement? The answer is the recent actions taken by billboard companies across the country at each level of government. Here in Houston, they are: 

1. Local issues: Just outside Houston, in the city’s extraterritorial jurisdiction, RTM Media has built at least 42 prohibited billboards in the last two years. Cited and fined by the city of Houston hundreds of times, the company simply refuses to recognize the city’s authority. Billboard company officials argue that the federal Highway Beautification Act grants the right to regulate billboards outside cities only to cities that have zoning authority. But Houston’s right to regulate billboards in its ETJ stems from the state legislature. Elizabeth Poole, an attorney for the city of Houston, has stated publicly that “RTM’s billboards are contrary to the city’s sign code and detrimental to the intent of it."  Two lower courts in Houston agree with the city and the matter is pending at the third level of appeal.

Another recent Houston Chronicle article stated “From Florida to California, some billboard companies and their attorneys are turning to bold, controversial and sometime risky strategies to stake out new avenues of opportunity for sky-scraping solicitations. In a strategy billboard opponents have dubbed 'the sign-code shakedown,' opponents say companies erect structures without all the necessary permits and then sue cities in attempts to overturn ordinances that block new billboard construction.”

2. State issues: The outdoor advertising industry is trying to get states and cities to ban any tree that stands in front of a billboard. This worked effectively in the State of Florida where there is a now a law that allows a billboard company to egress unto a public right-of-way and cut down trees or other obstructions that block (or might block) its billboard.

3. Federal issues: Recently, the billboard industry drew criticism for twice slipping provisions into bills in Congress that weaken Lady Bird Johnson’s 40-year-old Highway Beautification Act. The first attempt failed; the second attempt is pending. So far, public-spirited members of Congress have resisted attempts to override the laws prohibiting billboard replacement. Lady Bird’s federal law doesn’t allow rebuilding of nonconforming billboards that are destroyed by an act of God, although states define “destroyed” in different ways. Texas includes 60% destruction due to a hurricane (or any storm) to meet the definition of “destroyed.”

David Parkhurst, the legislative counsel for the National League of Cities recently stated, “for cities, the amendments, the lawsuits and the tree issues amount to yet another assault on local authority. This is draining limited municipal revenue away from picking up trash and protecting the public and putting it into litigation in the courts.”  Given billboard companies’ press for more visual pollution, now is a critical time for all urban centers to let their local, state and federal elected representatives know that we stand for improving our quality of life, not with an industry that holds itself out to be above the law. 

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Scenic Nevada’s third annual “Quick Draw” Artists Auction & Dinner was held on Saturday, August 12, 2006, featuring twenty-two of northern Nevada’s finest artists. Each artist was allowed one hour to paint scenery, wildlife, or any subject of their choosing. Each painting was then auctioned off with the proceeds benefiting Scenic Nevada’s efforts to preserve, protect and enhance the scenic beauty of Nevada.

In addition, Scenic Nevada recognized their “Heroes” for 2006, including Shayne Del Cohen, host of the television program "We The People."  Also recognized were Ron Hunter of Patagonia and renowned Nevada artist Jeff Nicholson. Our “Heroes” contribute above and beyond the call of duty to maintain the state of Nevada's scenic beauty and quality of life.

Scenic Nevada has received 13 nominations statewide for their Nevada LAST CHANCE Scenic Places, underwritten by a generous grant from the John Ben Snow Memorial Trust. Members of the Scenic Nevada Board of Directors are conducting on-site orientation visits of all nominated places in order to familiarize ourselves with the merits of each.

If a nomination is accepted as a LAST CHANCE Scenic Place, Scenic Nevada will create and mail a brochure/booklet to Nevada legislators, city councils, county commissioners, environmentalists, preservationists, planning commissions and others to make them aware of a scenic area that is endangered by development or adverse governmental decisions.