Sign Code Crackdown

When last we checked in on the world of sign codes (September 2019), Thomas v. Bright had replaced Reed v. Town of Gilbert (2015) as the case to watch regarding the regulation of exterior signage.

To recap: In Thomas v. Bright, a case that originated in Tennessee, the U.S. 6th Circuit Court of Appeals affirmed the ruling of a federal district court that the government cannot distinguish between on-premise and off-premise signage because it is an unconstitutional content-based distinction. The decision had the potential to change the way that signs are regulated across the country and the way that the sign industry does business. Tennessee appealed that case to the Supreme Court, and in summer 2020, the Supreme Court denied certiorari (fewer than four justices determined that the circumstances of the decision of the lower court warranted a review by the Supreme Court).

“So that is the law of the land in the states covered by the 6th Circuit,” said David Hickey, VP of advocacy, of the International Sign Association (ISA).

In essence, if a community’s sign code tries to regulate on-premise differently than billboards —at least to the extent that they did in Tennessee—then those regulations are content-based and therefore unconstitutional. 

“Tennessee did eventually amend their DOT regulations to be more compliant,” Hickey said. 

Austin City Limits

But when one case closes, another opens. In this case, we move from Tennessee to Texas and Reagan National Advertising of Texas v. City of Austin.

In a nutshell, outdoor companies wanted to install digital billboards in Austin, Tex., and applications to do so were declined by the city as the sign code prohibited off-premises digital signage, while allowing electronic message centers (EMCs) and other digital signage on-premises. As in Thomas v. Bright, it came down to an on-/off-premises signage issue (a distinction based on whether the sign advertises something physically located where the sign is placed).

At any rate, outdoor advertising company Reagan National Advertising sued the city, claiming that Texas’s sign ordinance was content-based and thus unconstitutional. On Aug. 25, 2020, the 5th Circuit Court of Appeals agreed and ruled that the on-/off-premises distinction is content-based, and therefore “presumably unconstitutional.” The city appealed to the supreme Court, and was supported with an amicus brief signed onto by ISA and its affiliated associations in the 5th Circuit, which include the Texas Sign Association and the Mid South Sign Association. The friend-of-the-court brief was joined by Scenic Texas and several Texas chambers of commerce.

“The ISA believe that the on-off distinction is location-based, not content-based, and a city should be allowed to decide between on- and off-premise signage,” Hickey said.

Scenic Texas, by the way, is a group that fights “visual pollution”—like billboards—and to find them and ISA on the same side of the issue shows how “this issue is making for strange bedfellows,” according to Hickey. This very unique joint filing proved effective, as on June 28 it was announced that the Supremes would in fact hear Reagan National Advertising of Texas v. City of Austin. ISA will likely be submitting a friend-of-the-court brief representing the on-premise sign and graphics industry in support of overturning the 5th Circuit’s decision.

At any rate, it’s not for nothing that many in the sign code world find the original Reed decision to be “the gift that keeps on giving.”

Keep It Dark

Still, it’s not all Reed all the time, and some new trends in sign regulations have been emerging, specifically involving sign lighting restrictions for traditional signs. The brightness of EMCs has long been a contentious issue, and ISA’s nighttime brightness recommendations have become extremely popular with state DOTs and they have become the gold standard for city and town officials drafting sign regulations around EMC brightness. The problem now is that communities are trying to apply those same recommendations to internally illuminated signs—sign types for which those recommendations were not intended.

“EMCs are LEDs that are exposed to the naked eye,” said Hickey, “whereas your typical cabinet sign could have LEDs or fluorescent lights, or even have two forms of lighting in there. Not all of those are dimmable, and they may work differently. And of course they’re not visible to the naked eye because there’s a plastic face over them at different distances from the lighting, and these plastic covers can have different thicknesses and different colors.”

Basically, the recommendations for apples are being applied to oranges. A lot of these new rules are being driven by “Dark Sky” movements, as well as other general anti-signage advocates. If you have ever been to a town meeting—or have seen episodes of "Parks and Recreation"—you know that one outspoken critic can drive a whole movement.

At any rate, ISA is currently considering developing a set of sign lighting recommendations à la its EMC document. After all, signage that is too dim to be effectively seen and that lacks that visual “pop” is bad for the business that owns the sign, and for the sign industry in general. 

The Day After

You may have noticed that virtually all pandemic-related signage that sprouted like mad in spring 2020 has all but vanished (see “Post-COVID Signage on page XX). There are a few reasons for that. 

Back at the height of the pandemic, everyone realized the power of signage to communicate important messages, such as safety guidelines, directions to testing (and later vaccination) sites and so forth. This was especially true with temporary and even digital signs, because they both have the ability to not only quickly communicate a message, but can be easily changed, as recommendations and guidelines evolved over the course of the year.

Soon after the pandemic began, ISA offered a webinar to city planners about temporary signs during times of crisis, and 200 communities participated.

“We recommended that they loosen up their temporary sign regulations to deal with all the shutdowns and to give businesses a chance to succeed,” said Hickey. “And many communities across the country did suspend enforcement of their sign ordinances to give essential businesses and other stakeholders a better chance to communicate.”

Throughout the pandemic, we all longed for a return to normal—which can sometimes be a case of “be careful what you wish for.”

“Now, with things opening back up over the last few months, we’re definitely seeing that the cities and towns are going back to the way things were, and they’re stepping up enforcement,” said Hickey. “We recommend that sign companies really keep an eye out and make sure that, if the communities where they do work relaxed enforcement during the pandemic, don’t count on that lasting too much longer.”

One reason that enforcement was relaxed was that during the pandemic, local government offices shut down, staffs were sent home, and communities didn’t have the resources to crack the whip on sign code violators. But at the same time, most communities were left with insufficient resources for permitting, which led to cities trying to get by with a limited capacity. This led to many sign companies having a difficult time getting permits and inspections for sign installation.

“A lot of communities don’t have online permitting, which slowed things down a lot, and then there was the problem of doing inspections and enforcement when you couldn’t even go to those locations,” said Hickey. “Sign companies were caught in the middle of that.”

As local government officials have been making their way back into their offices, look for more attention to be paid to sign code and permitting issues than had been the case in the last year or so—“which has its good and its bad points,” added Hickey. 

As with so many things, permitting problems had been a challenge in the "Before Times," and the pandemic only exacerbated them.

“A trend that we had been seeing in the last couple of years is an increasing amount of trouble with the permitting process, whether it’s the timelines or the cost of permits and related issues,” said Hickey. “That’s probably the number-one issue for sign companies: getting signs permitted in a timely fashion. That’s something that we expect to continue to see.”

As a result, ISA is working on a “best practices for sign permitting” that they will make available to planners and local enforcement officials.

“They can see that if this works in this large city, this works in a smaller rural community,” said Hickey, “to make sure that all stakeholders are heard and things are done efficiently and transparently.”

One solution would be to make more use of online permitting, but many communities don’t have the resources to build out online permitting capabilities. But if 2020 has taught us anything, it’s the need to be able to do things remotely.

“Hopefully there have been lessons learned and things will improve and we'll be able to get things done online in a more expedited process,” said Hickey. 

Code Comfort

Although compliance with sign codes and other regulations is ultimately the responsibility of the sign owner, the sign shop that is conversant in the local requirements can provide an invaluable service to its customers, and can help them from falling afoul of the sign police, especially as we return to normal. And while it’s the rare sign code that ends up in high-profile cases like Reed v. the Town of Gilbert or Austin v. Reagan, being prepared to deal with these trending regulatory issues (legal, lighting and permitting) can save sign companies a lot of grief—and make them look even better to their end user customers.