Scenic Overlook  ::  March 2006

In this issue:

• 11th Circuit Takes on Landmark Billboard Case
• Scenic Wisconsin Says "NO" to Electronic Tri-Vision Billboard
• Meet the New Director of Scenic Conservation Services
• Sign Code Shakedown Seminar

In February in Atlanta, Ga., one of those battles took place in front of the judges of the United States 11th Circuit Court of Appeals. The case is Tanner Advertising Group, L.L.C. v. Fayette County, Georgia, and it is just one important outgrowth of the "sign code shakedown" legal strategy employed by the outdoor advertising industry. Scenic America was there, having filed an amicus brief in the case (as we do in many cases nationwide), along with other concerned organizations and local governments, all fighting to protect the legal right of local communities to control ugliness and preserve community character.

What follows is a report on the case by William Brinton, a member of the Scenic America Board of Directors and an indefatigable proponent of scenic resources and community rights. But Bill can't wage the battle on behalf of Scenic America alone. Your support is necessary in order to raise the funds we need to hire staff to continue this fight in courtrooms and city council chambers nationwide. Please donate today so that your town can be protected tomorrow.

Recap by Bill Brinton,
Scenic America Board Member

On February 14, 2006, the Circuit Court of Appeals for the United States Eleventh Circuit sat en banc to consider the case of Tanner Advertising Group, L.L.C. v. Fayette County, Georgia.  The case addressed an attempt by a billboard company to strike down the entirety of the sign regulations of Fayette County, Georgia.  An en banc review of a lower court decision is rare, and involves all active judges on a Circuit Court of Appeal.  In the Tanner case, all twelve active members of the Eleventh Circuit heard the case, along with one senior status Circuit Judge.  A decision is expected in Late Spring or Early Summer, although there is no precise deadline for the appellate court to render their decisions.  Most informed observers expect that the decision will reject the billboard companies' litigation strategy and uphold limitations on constitutional and prudential standing to engage in shotgun challenges to the entirety of a local government's sign regulations.

In November 2003, the U.S. Eleventh Circuit decided a similar suit involving an attack on the entirety of the sign regulations of Clearwater, Florida.  In that suit, Granite State Outdoor Advertising, Inc. v. City of Clearwater, Florida, a three-judge panel determined that Granite State lacked "standing" to mount a facial challenge to the entirety of the sign regulations, and only had standing to challenge the provisions that caused the actual injury.  The Granite decision cited the "actual case or controversy" provisions contained within Article III of the United States Constitution to limit the type of suit recently described in a California Public Law Journal article as the "sign code shakedown" scheme.  More than one hundred (100) suits have been filed in recent years in federal courts seeking to strike down the entirety of a local government's sign regulations by alleging deficiencies with various provisions that have absolutely nothing to do with the provisions that led to the denial or rejection of applications to erect unlawful billboards.  Many federal courts had followed the November 2003 Granite decision up until a three-judge panel reached a different result in the Tanner case in June 2005, believing that prior precedent within the Eleventh Circuit required a different result.  However, on November 1, 2005, a majority of the Eleventh Circuit vacated the June 2005 decision, and set the case for a rare en banc rehearing in early 2006 before the full court.

Four other pending appeals within the Eleventh Circuit are awaiting the outcome of the Tanner appeal.  Those cases involve the City of Fort Lauderdale, Florida; the City of Hoover, Alabama; Cobb County, Georgia; and Pickens County, Georgia.  Scenic America, Inc. has joined in amici curiae (friend of the court) briefs in those four cases, as well as in the Tanner appeal.  In the Tanner appeal, there were two amici curiae briefs filed in support of the billboard company [(1) the Outdoor Advertising Association of Georgia, and (2) the American Civil Liberties Union of Florida, the American Civil Liberties Union of Georgia, and the American Civil Liberties Union of Alabama] and three amici curie briefs in support of Fayette County [(1) Scenic America, Inc., the American Planning Association (APA), the Alabama, Florida and Georgia Chapters of the APA, the International Municipal Lawyers Association, and the League of California Cities, (2) the National League of Cities, the Florida League of Cities, Inc., the Florida Association of Counties, Inc., the Georgia Municipal Association, the Association County Commissioners of Georgia, the Alabama League of Municipalities, and (3) Cobb County, Georgia and Pickens County, Georgia)].

Excerpts from the amici curiae briefs:

The billboard companies' strategy rests on a fundamental misunderstanding of the role of federal courts.  Rather than satisfying the mandatory standing requirements arising from Article III, the companies completely ignore them.  Instead, they treat the phrase "First Amendment overbreadth" as the magic words they merely have to utter in order to open the courthouse doors for a full attack on any aspect of a sign code.  Pursuant to their theory, it does not matter if the particular provisions they challenge have interfered in any respect with what they propose to do.  The overbreadth doctrine should not be abused in a manner that makes it possible for a plaintiff to nullify and make a mockery of the Article III standing requirements.

Amici Curiae Amended Brief of

American Planning Association,

Scenic America, Inc., et al.

Billboard companies are not "crusaders" deserving of a special standing category to protect the First Amendment rights of citizens in whose jurisdictions the companies seek to erect unauthorized billboards. . . . OAAG's assertion that without overbreadth standing being extended to allow billboard companies to police sign ordinances, local governments will sit back and wallow in their unconstitutional ordinances illustrates a complete naivete of the governmental practice.  Local governments are not in the business of litigating - they are in the business of governing.  

Amici Curiae Brief of

Cobb County, Georgia and

Pickens County, Georgia

Local governments within the Eleventh Circuit and elsewhere have become increasingly plagued by these attempts to circumvent billboard regulations through challenges to completely unrelated provisions in a local government's sign regulations.  This litigation strategy requires a completely improper, and even abusive, use of both the First Amendment and the limited overbreadth exception sometimes applied in the First Amendment Context.

 
Watching the oral arguments were representatives from Scenic America, Citizens for a Scenic Florida, Scenic Alabama, and Scenic Georgia, as well as attorneys and representatives of local governments that have been targeted by the "sign code shakedown" scheme.  Eleven of the thirteen appellate judges on the en banc panel participated in the questioning of counsel for appellant and appellee.

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Scenic Wisconsin Says "NO" to Electronic Tri-Vision Billboards 

Proposed legislation in the Wisconsin state Senate drove Scenic Wisconsin to action this past month. The new legislation would allow electronic changeable message signs, which change messaging as often as every 6 seconds. The legislation places no restrictions on size, meaning that signs could be as large as 12x25 feet. An object of that size could be seen for miles before the message is even legible.

Currently the state of Wisconsin allows mechanical changeable message signs ("tri-vision") and it is likely that electronic versions of the tri-vision signs will be even more of a distraction. Mechanical tri-vision signs are already intrusive and damaging to scenic beauty throughout the state. Accordingly, Scenic Wisconsin believes the proliferation of electronic changeable sizes will be just as much or more of a nuisance and should continue to be prohibited.

Scenic Wisconsin launched an action campaign to let Wisconsin lawmakers know that the citizens of Wisconsin want to keep their roadways beautiful and continue to ban these increasingly dangerous distractions.

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Meet the New Director of Scenic Conservation Services

Scenic America is pleased to announce the addition of Brad Cownover, ASLA, as the new Director of Scenic Conservation Services.  Cownover will be joining us from the U.S. Department of Interior, where he served as Chief Landscape Architect at the Bureau of Land Management (BLM) in Washington, D.C.  In that position, Brad also served as the BLM's national Visual Resource Management (VRM) program lead and the BLM's national byways program lead.  In addition to his work on VRM and byways at the Bureau, he also provided leadership in the fields of universal design, visualization technology, and transportation policy and planning.

Brad commented on his move, "I am very excited to join Scenic America, an organization with such a positive track record in advocating for scenic values across the country.

I truly feel that there are tremendous opportunities for Scenic America to build on existing strengths and develop new ones to better protect the character and scenic quality of America's communities, byways, and diverse landscapes. I look forward to getting started."

In bringing several years of experience in scenery management and byways to Scenic America, Brad will be a strong asset in implementing the next step of a longstanding relationship with the America's Byways Resource Center.

It was announced last month that Scenic America has been awarded a contract to work in conjunction with the Resource Center to coordinate six scenic conservation workshops that will focus on various byways that have yet to be selected. The workshop will help byway leaders develop strategies for dealing with such issues as sign control, viewshed protection, context-sensitive road design, historic preservation and other design challenges.  Brad will oversee the workshops and will also be providing policy leadership and direct scenic conservation and visual assessment services, thereby continuing the role Scenic America has played for many years as an active advocate for strengthening the role of scenic conservation.  

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Sign Code Shakedown Seminar

While the billboard industry's sign code shakedown has been successful in breaking down regulations in communities like Barrow County, GA, experience has also shown that well-equipped communities are able to prevent their roadways from becoming visual junkyards.

In an effort to prepare city attorneys, scenic advocates and other key planners to defend their communities from this growing legal assault, Scenic Texas is hosting a seminar this April covering issues central to the protection of sign laws.  The seminar will be held in Austin, TX and offers sessions in First Amendment commercial speech, an overview of the sign code shakedown that is happening across the country, and a session on drafting constitutional sign ordinances.

Donate today to help Scenic America provide continued and expansive support to communities in need across the country.

MORE INFORMATION:
Register for the Sign Code Shakedown Seminar today

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