Billboard Update: March 2022

Missouri billboards

Victories, Setbacks, Plus New and Ongoing Concerns

February brought new developments, both positive and negative, on important billboard and signage issues in Houston, San Jose, Indianapolis, Tennessee, and Ohio.

Victory in Houston

In a win for the scenic community, on February 16 the Houston City Council voted unanimously to suspend all types of sign permits for 60 days upon the Supreme Court’s decision in Austin v. Reagan decision. This moratorium will safeguard the city’s existing sign code and prevent billboard companies from bombarding the permit office before the city has time to fix its sign code in the event of an adverse decision. Scenic Houston proposed the moratorium to the city attorney last spring. At the council vote, councilmembers from across the political spectrum praised Scenic Houston’s ongoing efforts to protect the sign code

A Win in Pennsylvania

Another victory emerged from Merion County, Pennsylvania, where residents and activists rallied to block a change to the zoning variance to allow for the construction of a massive electronic billboard in Upper Merion Township. The application was withdrawn on February 22, putting a stop to this widely unpopular intrusion.

A Setback in San Jose

Disappointing news came out of California as the San Jose City Council voted February 15 to allow Clear Channel Outdoor to build two digital billboards along Highway 101 and 87, near the airport, despite 93% of residents voicing their opposition to this scenic intrusion. This move marks the end of a ban that has prevented the construction of new billboards in San Jose since the 1980s. Although the agreement called for the removal of 12 traditional static billboards in exchange for the new digital ones, the decision only heightens residents’ concerns about the safety and environmental impacts of such signage.

The opposition effort, led by No Digital Billboards in San Jose, galvanized residents to speak out against the measure, arguing that such signs contribute to visual blight, contribute to car accidents, and have negative effects on local wildlife. The digital signs also raise environmental concerns, as they are predicted to use as much energy as 20 homes.

A Growing Concern in Indianapolis

Another billboard issue is looming in Indianapolis, where billboard company Geft Outdoor LLC filed a lawsuit with the city over its sign ordinance, as reported in the Indianapolis Star on February 16. The city’s ordinance currently states that billboards cannot be constructed within 660 feet of the inner I-465 loop and that approved signs must meet certain provisions. Geft seeks to build three 70-foot digital billboards in this area, which currently has a 40-foot restriction, prompting the zoning board to deny its application. In its suit, the Geft flags issues with the sign ordinance and the decision process, as well as content-based restrictions that harken to the Austin v. Reagan case.

As the Indianapolis Star reports: “The company argues that the variance procedure lacks objective criteria and procedural safeguards for those seeking approvals for signs and sign variances, including content-based restrictions that violate the First Amendment,”—again harkening to the Austin v. Reagan Supreme Court case.

The complaint states, “The off-premise ban draws distinctions on the types of signs that are prohibited versus those that are allowed, based on the message a speaker conveys. As a result, the Marion County Ordinance favors certain types of speech and/or speakers over others.”

Residents are overwhelmingly opposed to this development, highlighting concerns for safety and decreased property values. This case is still being litigated in court, where Geft boasts a successful track record of winning similar battles, heightening concern from locals.

Legislators Take Up Billboard Laws in Tennessee

And in Tennessee, multiple interests are vehemently opposing SB1760/HB1651, an industry-backed bill that defies long-standing principles of local control by requiring that municipalities “allow current structural and lighting technologies” when billboards are built or rebuilt. In effect, this gives owners blanket permission to convert nonconforming static signs to digital, possibly even when doing so would violate existing sign ordinances, and to continue to upgrade to the latest structural and/or illumination technologies in perpetuity.

Tennessee’s billboard lobby insists the bill is needed to clarify existing regulations and allow its members to keep up with changing times, but the Tennessee Municipal League disagrees. In addition to usurping local control and several other flaws, TML says the bill runs afoul of current law because converting a static display to a digital display constitutes a change of use rather than a simple expansion in size.

Legislators accepted these arguments at first, unanimously passing the bill out of two House committees with little discussion. Once opponents had a chance to organize, however, this early momentum stalled, and legislators are now proceeding more cautiously. As of this writing, the House floor vote has been pushed back two weeks to March 10—and that’s assuming the bill survives a Senate committee hearing on March 8. The chair of that committee, we’re glad to say, is a longtime ally of Scenic Knoxville.

Another Supreme Court Billboard Case Looms

The Supreme Court is considering another case with potential significant impacts for municipal billboard taxes. Lamar Advertising and Norton Outdoor Advertising filed briefs on February 25 asking the Court to review conflicting lower court decisions about municipal excise taxes regarding billboards. In 2021, the Ohio Supreme Court determined that Cincinnati’s billboard tax violated the First Amendment, while the Maryland Supreme Court ruled that a very similar tax in Baltimore did not.

“These cases are coming from different parts of the country, but they all show that Americans don’t want to see more digital billboards in their communities and along their roadways. There is plenty of evidence that shows that they cause driver distraction, create light pollution, waste electricity, and damage property values,” said Mark Falzone, president, Scenic America. “Community leaders and public officials need to recognize that these signs are more than just a threat to scenic beauty. They are a threat to our safety and our quality of life.”