Planning February 2016

Sign of the Times

The Supreme Court weighed in on signs last summer, but for planners those regulations are always on the docket.

By Bridget Mintz Testa

Imagine a town or a city without signs. Visitors would have no way of knowing where they were. In even a moderate-sized town, much less a bustling city, no one could find their way to a destination. Businesses and organizations couldn't advertise their locations, products, or services.

Without signs, towns and cities would be mute. Signs are necessary to commerce, wayfinding, culture, the arts — all aspects of modern life.

Yet signs can cause problems, too. They can be too bright, too big, too distracting. That's where sign ordinances come in: They aim to regulate signs in ways that are acceptable to both sign owners and viewers.

Gilbert, Arizona, learned that local efforts to create workable sign ordinances don't always succeed. But they often do, as shown by examples from Columbus, Ohio, and Tucson, Arizona.

This innocuous-looking sign took the town of Gilbert and Good News Community Church all the way to the Supreme Court. Courtesy Bruce Elefson.

Temporary sign, permanent consequences

In 2007, when Gilbert, Arizona — home to 240,000 people — first defended itself against a lawsuit pertaining to a temporary sign, it's safe to assume that nobody involved ever dreamed that the case would make it all the way to the U.S. Supreme Court. But after Gilbert won several times in lower courts, it finally lost the case last June in the country's highest court.

The Court ruled that the town's sign ordinance regulating temporary directional signs was based on content. And that, the justices ruled unanimously, is a clear violation of freedom of speech. (See "Sign Regulation Just Got More Complicated," October 2015:

Clyde Reed, pastor of the Good News Presbyterian Church (usually referred to as Good News Community Church), brought the lawsuit. The church had no permanent facility, so members met in various town locations. Gilbert's sign ordinance allowed temporary directional signs for nonprofit events, such as the church's meetings, to be posted 12 hours prior to a meeting. They had to be removed an hour or two after the event. Such temporary signs could not be placed in a road right-of-way, and the size limit was six square feet.

However, according to Michael Hamblin, attorney for the town, political signs, governed by both a state law and an identical town ordinance, could be up to 32 square feet in size. They could remain in a road right-of-way for 60 days prior to an election and up to 15 days postelection. Home owners associations could also erect signs on weekends on nearby farmland to provide directions to new developments.

After receiving citations for posting signs a day ahead of services, Reed sued the town. The basis of the suit was that the sign ordinance was a content-based regulation and thus violated the First Amendment's guarantee of freedom of speech, according to Sigrid Asmundson, a lawyer in Best, Best & Krieger's Municipal Law practice group in Sacramento.

"Signs are subject to 'strict scrutiny' — the highest kind of scrutiny," she says. "Under strict scrutiny, a sign ordinance must further a compelling government interest and must be narrowly tailored to that interest."

The town argued that its compelling government interests for the ordinance were preserving the town's aesthetics and ensuring traffic safety. The Supreme Court dismissed these arguments. Hamblin is now reviewing and amending Gilbert's entire sign code. Once Hamblin completes his work, the amended code will go to the planning commission and then the town council for approval.

"This was a case of benign regulation — the town was trying to describe a sign category, and it's difficult to do that without mentioning the sign's content because they describe events," says Daniel R. Mandelker, Stamper Professor of Law at the Washington University School of Law in St. Louis. Despite such benign intent, "the gist of the [Supreme Court] ruling is that signs that regulate content are not acceptable," he says.

The ruling puts "almost every sign ordinance in the country under threat today," Mandelker adds. "The ruling makes it difficult to make distinctions between different types of signs, such as political and message types. Sign regulations have always made distinctions between on-premise and off-premise types, commercial and noncommercial types. Now even these distinctions could be attacked by the sign industry. Many ordinances define signs by what they say, as with real estate and construction signs. [A company] can challenge billboard provisions and then as part of the suit, challenge other parts of the ordinance. It could get part of the ordinance thrown out and then possibly all of the ordinance."

In short, Mandelker says: "Expect litigation about signs."

The iconic diving girl sign on the old Pueblo Hotel in Tucson has been restored and retrofitted to include the name of the law firm that now owns the building. Photo by Jonathan Mabry.

Cursing brightness

In Columbus, Ohio, people were complaining about off-premise, brightly-lit signs with changing copy, also known as electronic message centers. "The signs created distractions because of their brightness and the speed of the change of messages," says Lisa Russell, a planner who works on zoning code development for the city. "Most of the complaints involved on-premise signs facing streets," she says. Russell cited an auto dealership EMC facing an intersection as an example of the type of sign they were dealing with. "The image flashed, the copy changed and scrolled, and it was very bright," she says. "Other signs were visible from the freeways, and freeway drivers complained."

In 2009 and 2010, off-premise signs like billboards had dwell times for messages, but on-premise signs didn't. In 2011, the department of building and zoning began holding meetings with staff and representatives of the sign industry to discuss changes to the city's graphics code. "City officials had asked that the issue be addressed," Russell says.

Initially, the plan was to work through the entire graphics code. The code was so long, and the list of recommended changes was so extensive, that "we decided to limit the changes to automatic changeable copy," Russell says. Even so, the meeting group "didn't want to write a code that couldn't be enforced," she adds. "So before finalizing the code and the method, we knew we should test it ourselves."

The stakeholder group included a community group representative who was also an architect who focused on lighting, a member of the International Sign Association, a sign manufacturer, and others with technical lighting knowledge. "The sign industry stakeholders did fieldwork with us," Russell says. "They showed the planners and code enforcement how to measure brightness."

Two methods were examined: lumens and foot-candles. The foot-candle method was chosen "because it better corresponded to human vision, was preferred by industry, was more accurate and was more affordable," she says.

It was also much more feasible, for a couple of reasons. The lumen method required the measurement device to be at eye level in front of a sign — difficult to do in the case of an actual complaint lodged about a sign surrounded by an eight-foot chain-link fence. The foot-candle method didn't require that.

The foot-candle method also allowed sign brightness to be compared to ambient light as if the sign illumination was off, even when it was on. This was achieved by blocking the sign when ambient light measurements were taken. And once the measurements were taken, sign owners could easily adjust a sign's brightness.

Even after the sign industry stakeholders showed the planners and code enforcement how to measure brightness with the foot-candle method, the building and zoning department wanted to make sure they could perform the measurements without help. "We went out by ourselves without the sign industry rep to make sure we could do it ourselves," Russell says.

Why go to so much trouble when the sign owner could just be asked to turn the sign off? "Complaints are anonymous," she says. "Following a complaint, if the test shows the sign is not too bright, then the case is simply closed. If the sign is too bright, then the sign owner is notified."

The foot-candle measuring device was purchased for approximately $150, versus a cost of roughly $2,000 for a lumen meter.

And after 18 months of code development work, Columbus changed its code to include the foot-candle measuring technique. The new brightness and automatic copy limits include an eight-second hold time on images, a brightness limit of 0.3 foot-candles above ambient light for static images, instantaneous transitions from one static display to another, and automatic dimming technology that keeps the brightness within the 0.3 foot-candle limit.

"Complaints have gone down," Russell says. "Code enforcement has used the measuring technique twice since the ordinance was approved on July 29, 2014."

The chubby chef on the sign above Caruso's, a family-owned restaurant in Tucson since 1938, shines again thanks to the city's ordinance allowing restoration of historic neon signs. A grant from the Fourth Avenue Merchants Association helped pay for repairs.

Neon city

Back in the 1950s, the diving girl neon sign alerted weary travelers in downtown Tucson to the Pueblo Hotel and its welcoming rooms, apartments, "refrigerated air," and swimming pool. By the 2000s, the diving girl, clad in a green two-piece bathing suit with white polka dots, was in bad shape. The diving girl was just one of many neon signs, icons of mid-century Tucson, that welcomed tourists.

The 21st century owner of the old Pueblo Hotel, the Piccarreta Davis law firm, spent a half million dollars renovating the building. The firm also wanted to adaptively reuse the diving girl sign for its historic significance and aesthetics.

But the diving girl broke too many rules to get an adaptive reuse permit, according to "Tucson's Historic Landmark Sign Ordinance," a 2012 article in APA's Urban Design and Historic Preservation newsletter written by James Carpentier, AICP, manager of state and local government affairs with the International Sign Association. He wrote that she was located in a right-of-way; exceeded the maximum height of 12 feet; failed to meet the required setback; was a pole sign in a pedestrian area where such signs were forbidden; and couldn't become a ground sign because they weren't allowed either. If the sign was taken down for repairs, it could not be put back up. "Denying the permit helped to set about a process that led to a lengthy discussion about the iconic images of the city's past, and whether they were worth preserving," Carpentier wrote. That process led the city to develop a Historic Landmark Sign Code designed to preserve such irreplaceable old signs.

The process began in 2009, with a call for a committee to come up with code to allow signs like the diving girl to be preserved. "The committee was made up of property owners, preservationists, and property managers," says Glenn Moyer, AICP, Tucson's sign code administrator. "The preservationists were interested in more than just signs, and the property owners and managers saw an opportunity to get better use out of their properties."

The community's perception of these large old signs in states of disrepair had evolved from "eyesores" to "historic treasures" that contributed to the unique visual character of the city," says Jonathan Mabry, the city's historic preservation officer. But many of them were "dead signs," advertising businesses that were no longer there, and the sign code did not allow current businesses to put their names on them. Mabry pointed out to the committee that, if these signs are considered to have historic value and viewed through the lens of national historic preservation standards for how buildings can be updated, minor alterations should be allowed to adapt them to advertise current businesses.

A subcommittee was also formed to develop a new historic sign code. "After 24 public meetings with the ad hoc subcommittee and others," the city council unanimously approved the Historic Landmark Sign code in June 2011, wrote Carpentier.

The code states that its explicit purpose is, in part, "to provide for the preservation of the City of Tucson's unique character, history, and identity, as reflected in its historic and iconic signs, and to restore the sense of place that existed within the central business district and in areas of the City with concentrations of surviving historic signs."

If the signs meet all the guidelines and requirements in the code, "then approval is an administrative process," Moyer says.

The code includes an incentive to preserve historic landmark signs. "The first HLS on a premise does not count toward the maximum total sign area," Moyer says. "A business can have a larger sign, with more neon, than otherwise allowed under the sign code and outdoor lighting code. Even if a sign doesn't have neon, it can still be approved if it will contribute to Tucson's unique character and historical identity." Historic landmark signs are permitted in every type of district in Tucson. "These signs are not in historic districts," he adds. "They're free-standing historic landmarks" in and of themselves.

And what of the diving girl? "Some forensic sanding was done to determine the nature of the swimsuit," Moyer says. "It's a two-piece green bathing suit with white polka dots. The sign was restored to a 1950s appearance, and the ordinance permits it to be updated to something current to the tenants using the property," meaning that the Piccarretta Davis law firm could add their name to the sign. Mabry says that two elements of the sign code change — not counting designated historic signs against the total sign allowance, and allowing minor changes to advertise current businesses — have been the most effective incentives to encourage owners to go through the designation process and restore them to their former glories.

The diving girl, along with the other historic landmark signs in Tucson, produces "a fairly limited impact," Moyer says, "but it's very visual." And proving the value of the Historic Landmark Sign ordinance, tourists are now coming back to Tucson just to see all that 1950s neon.

Bridget Mintz Testa is a Houston-based freelance writer specializing in planning, technology, and power and energy.


APA filed an amicus brief in Reed v. Town of Gilbert.

"Tucson's Historic Sign Ordinance," by James Carpentier, AICP.

"Bending the Rules," by Robin Donovan.

"U.S. Supreme Court Affirms That Content-Based Sign Codes Violate The First Amendment," by Sigrid K. Asmundson and William J. Priest:

"Vintage Tucson Neon Art Walk" study, Tucson Historic Preservation Foundation:

Changeable electronic message displays make it easier to rotate among a series of related messages, such as this one pondering questions of modern art. From Street Graphics and the Law, Fourth Edition (PAS 580, 2015) by Daniel R. Mandelker, John M. Baker, and Richard Crawford.