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Billboards, signage a complex issue

By From page A4 | December 25, 2013

Updating the county’s sign ordinance is far more complex than the public and many county officials might have imagined. Sign law is specialized, and the county has hired the San Diego firm of Sabine and Morrison to lead its staff through a forest of regulations filled with “simple” issues that represent a host of cliffs, quicksand and sinkholes.

Randal Morrison gave El Dorado County Supervisors and a rapt audience a tutorial on what sign law is and is not during the Dec. 17 board meeting. Much of his presentation focused on “what you can’t do” with respect to regulating signs. His caveat throughout was basically “regulate the messenger but not the message.”

A jurisdiction has the authority to set restrictions on signs and more particularly on billboards which was the primary topic. The two are entirely separate entities under the state’s Business and Professions Code, Morrison said. His slide presentation defined “sign” as “a visually communicative image on public display; and a sign is what the local law defines it to be.”

A billboard is “a separate business or profit center and not an accessory (of) land use,” he said. It is economic in nature as a general advertising tool and for rent to “all comers, anyone willing to pay.” Court rulings in the “Metromedia v. City of San Diego” case specify that a “government can ban billboards, even if it allows on-site signs.” The California Supreme Court further ruled that a government cannot favor commercial speech over non-commercial speech and cannot favor certain classes of non-commercial speech over others. In short, the court upheld the city’s claim that it sought to regulate billboards and related signs in order to improve traffic safety and for the aesthetic landscape of the city.

Therefore the county can adopt an ordinance that bans billboards for the public good. The most common and recurring example applies to stretches of state highways in the county that are classified as scenic roadways. Highway 50 from El Dorado Hills and especially in and around Shingle Springs provides panoramic views of the Sierra Nevada. The technical term is “view shed” and it is in a similar protected category as a sensitive habitat or watershed.

Short of an outright ban, the county has the authority to set reasonable restrictions on billboards. Those restrictions may relate to distance from a roadway or other public facility, height, width, type of base or pole structure, square footage of the display area and moving parts. In addition, the county may ban or restrict the kind of signs that have become extremely popular and are considered highly effective, the LED signs with changeable graphics and messages.

Morrison said that such “digital capability” has become very important to sign companies and might be used as a bargaining chip as is being done by Sacramento County. Sacramento is renting county land to sign companies and negotiating terms that include adding a city message to the display and getting the companies to remove old billboards. Known variously as “electronic signs,” “message centers” or “dynamic signs,” the digital signs can be regulated as to their location, such as a mall or shopping area, and “complete bans have been upheld,” Morrison said.

Long-Range Planner Shawna Purvines explained that the county’s sign ordinance has been under review and revision since August 2012, that the Community Development Division has held public informational meetings and that issues arising from public and agency comments have informed the development of the new ordinance.

Lack of enforcement of the existing sign ordinance ranked high on the list of public concerns, Purvines said. There is an unknown but estimated high number of signs throughout the county that are either illegal or “non-conforming” with current regulations, and the public wants the issue addressed. Responses from audiences also noted interest in having separate categories including “rural” signs, “suburban/urban” and “freeway” signs.

Supervisors, along with the public want “abatement of illegal non-conforming signs, and everyone is looking for clarification,” she said.

Illegal, non-conforming is vastly different from unpleasant or objectionable. The former relate to guidelines the county has established. The latter get into the area of freedom of speech. Morrison again stressed the caution any government should exercise when it seeks to control the message rather than the messenger.

By definition, he said “commercial speech” enjoys a somewhat lower level of protection under the First Amendment and includes advertising, marketplace debate over goods and services or attracting customers. “Non-commercial speech,” he explained is the “classical” or “core” speech and has full protection under the Constitution. It includes “debate in the marketplace of ideas, such as politics and religion and may seek adherents and supporters.”

Morrison showed a number of examples of free speech being exercised under the guidelines of “Protected Even Though Offensive to Many People.” Pornography that does not meet the definition of obscene is protected under the First Amendment as is desecration of the flag. The rights of American Nazis parading swastikas in Jewish neighborhoods have been upheld in court as have all manner of racist, sexist and ethnic comments.

The church group that demonstrates at military funerals has the right to hold signs and placards such as “God Hates Fags” and “Thank God for Dead Soldiers” despite the public outrage it evokes. “The government has no power to restrict expression because of its message, its ideas, its subject matter or its content,” Morrison explained.

Examples of speech that is not protected by law include defamation, obscenity, child pornography and fraud. Perjury, blackmail, criminal conspiracy and “fighting words” that is, incitement to violence are not protected under the First Amendment. Making threats against the president or vice president are not permitted by free speech laws either. Free speech laws are not absolute as the old shouting “Fire” in the crowded theater example shows. Limiting speech, however, must be clearly justified with a view toward the legitimacy of its importance to the broader public good.

Removing billboards is much more difficult than sending in a wrecking crew and taking them down. Under the law, the specific term is “amortization” and applies to the process of setting a date into the future on which the sign may be removed. The process involves compensating the owner for estimated lost revenue post-removal. An alternative method is to obtain a “relocation agreement” by which the county could offer another comparable site for the billboard.  If a billboard, such as one that is in the view shed, had been legally installed, it cannot be amortized without one of the two actions. The amortization period can be years, Morrison said. Some exceptions apply to billboards on residential or agricultural land, “but a grace period or compensation is still required,” Morrison’s presentation noted.

Development staff and Morrison recommend that the county take a two-prong approach to its coming sign ordinance, a regulatory element that deals with private property and a proprietary element that addresses public property. They also recommend separating rural, from suburban/urban applications and treating highway signage as a separate third element.

A completed Draft Ordinance is expected within the first quarter of the new year, the final ordinance should be done by the fall of 2014, planners told the board.

Additional information including resource documents are available on the county’s Community Development Agency websites.

Chris Daley


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