By Betsy Bean, Small Cities Publishing

Kansas City, Mo. attorney Stephen Chinn says in his over 25 years of experience, regulating signs is the most complex of the legal issues that cities face.

"The case law is confusing and not very definitive on what you can and cannot do," explains Chinn who is also chairman of the land development, zoning and planning section of the International Municipal Lawyers Association. "The curiosity is that most cities do what they want to do and most are willing to take the risk of adopting sign regulations that would not be constitutional."

Atlanta, Ga. planning consultant Bill Ross concurs that "cities can control signage to a certain extent but not nearly as much as they would like to. And that’s more true in small cities than large cities because smaller communities often are trying to encourage a certain look and feel that doesn’t include a multitude of garish signs."

Court rulings, both federal and state, over the last few years aren’t making it easy for such communities: Judges have come down squarely on the side of free speech in that anything about a sign can be regulated except its content and the definition of content is very broad. .

"For years everyone knew you couldn’t tell somebody what they could or couldn’t advertise; that was the interpretation of content," explains Ross. "Recently the courts have ruled that’s not the right interpretation. They say if you have to read it to regulate it, that’s content-based regulation and that’s not legal. If there are two signs side-by-side and they are the same height, same color, same size and look exactly alike except for wording, there is no legal difference between them."

That interpretation, for instance, invalidates the distinction between off-premises and on-premises signs because they have to be read to be regulated. It might invalidate an ordinance that differentiated between temporary real estate signs and temporary political signs. Given this increasing emphasis on the free speech aspects of sign regulation, both Chinn and Ross recommend that cities work closely with their attorneys, and perhaps employ an attorney with both zoning and "free speech" experience. The overriding legal point they say is that the courts have made it clear governments can regulate how many signs are on a property, whether they are temporary or permanent; location; size; lighting, height, duration, even materials… "virtually anything but what they say."

On-premise signs

Ray Foote, vice president for program development for Scenic America says his organization recommends that "communities analyze what is minimally necessary to communicate information to the public and permit no more than that. Otherwise, they become an accumulation of competing attention-getters that in the end are distracting and not that useful for someone looking for a specific business."

In an upcoming publication from Scenic America called "Guide to On-Premise Sign Ordinances for Rural and Small Communities," four principles are identified that a legally viable sign ordinance should follow:

1. All requirements should be content-neutral to the maximum extent possible.

2. Commercial speech should never be given more favorable treatment than non-commercial speech.

3. All requirements should address both community aesthetics and safety, and easily convey information. For example, restricting the size, number and location of signs reduces visual clutter, thus enhancing the effective communication of information by the signs that are allowed.

4. All requirements should be determined by factors logically related to the interests promoted by the requirement.

As communities begin to consider sign regulation revisions, Ross recommends beginning with a slide show and preference survey about what people like or don’t like. He says every community he’s worked with has come up with different answers. Some communities don’t mind larger free-standing signs but don’t want portables. Others want wall signs and no pole signs; regardless, go through the process to find out what the community wants. Consider an advisory committee that includes not only residents but also representatives from the business community and even the sign industry. Involve as many people as possible; the more opinions, the more valid the results.

Chinn stresses that it’s important for community leadership to take the time to set goals for what they want the sign regulations to achieve.

A citizens committee of different stakeholders and elected officials that come to consensus on the goals is "the first step to achieving regulations that can be implemented and enforced. Just trying to impose regulations without a consensus will take more time to adopt and often, changes will be made under pressure, and they won’t be good changes," he notes.

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