[Durham INC] Weekend reading: "The Planning staff recommends denial" of industry's billboard measure (memo)

[John Schelp]

MEMO

Date: April 13, 2010
To: Members of the Durham City-County Planning Commission
Through: Steven L. Medlin, AICP, City-County Planning Director
From: Julia Mullen, Planner
Re: Text Amendment to the Unified Development Ordinance (UDO) – Nonconforming Off-Premise Signs (Billboards) (TC1000002)

Summary.  This text amendment is requested by Fairway Outdoor Advertising (Fairway or the applicant) and would revise the off-premise sign provisions of the UDO.  Off-premise signs include signs commonly known as billboards.  The amendment would change City and County treatment of billboards, in particular by allowing digital billboards equaling twenty-five percent of Durham’s current billboard face area.  Existing billboards could be reconstructed, and could be relocated within a billboard overlay district created along interstates and major roads.  New billboards would have steel monopole construction, and could have lighting and the maximum height allowed under state law.  The UDO currently prohibits new billboards, and relocation and upgrade of existing billboards.  Existing billboards can be maintained but lighting, height, and materials cannot change.  The effect of the requested amendment would be to remove older billboards that are
 gradually being removed anyway and install new billboards, potentially in new locations.  One quarter of them could be digital and all could be 50 feet higher than the roadway and lit.

Recommendation.  The Planning staff recommends denial.

Based upon objective analysis of the available information, staff recommends denial of this request for many reasons.  First, the current ordinance has worked well for Durham and represents twenty years of carefully considered governing body decisions regarding the aesthetic and economic impacts of billboards.  Second, Durham citizens overwhelmingly support maintaining the current ordinance.  Third, increased prominence of billboards and digital billboards in particular could have a negative impact on the City’s appearance.  New billboards could disturb nearby residents and negatively affect economic development by deterring businesses and individuals that are choosing among Triangle communities.  Fourth, the applicant’s request is problematic in many other critical areas, including public safety, environmental impacts, effect on other aspects of the sign ordinance, and legal issues.  Fifth, implementing the request would provide little
 economic benefit to Durham and require significant resources that the City and County lack.

Billboards can serve a useful purpose by providing advertising for local businesses or attractions, and digital billboards have been used successfully to broadcast emergency information.  There are many other ways to advertise, however, and emergency information is displayed on official signs.  Display of public service announcements as proposed by the applicant is problematic as discussed further in Section 5, Legal Issues.  On balance, staff believes that the costs to Durham of implementing the applicant’s request would outweigh any potential benefits.

It is important to note that Fairway’s proposal cannot be adopted as submitted.  If adoption is considered, there are a number of changes required to make it lawful, clear, and implementable.  Staff would also recommend incorporating better technical and policy regulations.  In addition, a zoning map change would be required to create the proposed billboard overlay zoning district.

Background. Fairway’s application including cover sheet, proposed text amendment, and proposed text amendment justification is Attachment A to this memorandum.  Attachment B is a Planning Department map depicting current billboard locations and the approximate location of Fairway’s requested Billboard Overlay District.  The map also depicts where billboards could be located in the overlay under state law.  Attachment C contains information from the City’s peer cities and Attachment D provides a list of sources for this memorandum.  In preparing this report, Planning staff consulted with staff from the North Carolina Department of Transportation, the City and County Attorney’s Offices, City Transportation, City-County Inspections, and the City-County Sustainability Office, among others.  Analysis draws heavily from materials provided by the American Planning Association (APA), the American Association of State Highway and Transportation
 Officials (AASHTO), studies commissioned by federal, state, and local government, and information provided by the Outdoor Advertising Association of America (OAAA) and Scenic America.

In the mid-1980’s, with the support of Durham businesses and citizens, the City Council passed an ordinance that prohibited new billboards and required removal of billboards not subject to federal protection under the Highway Beautification Act (billboards on interstates or federally assisted highways).  Removal was required over a period of 5½ years, later changed to 6 years.  The County sign ordinance was similarly changed when City and County Planning functions merged, but most billboards subject to removal were within City limits.  Fairway’s corporate predecessor, Naegele Outdoor Advertising, sued the City.  The City spent more than a million dollars and over ten years litigating in federal court.  It ultimately prevailed after Naegele appealed unsuccessfully to the United States Supreme Court.  As a result, many billboards were removed from local roads.  The ordinance required the remaining billboards to comply with various restrictions
 commonly applied to nonconformities -- they can be maintained but not upgraded or relocated.  The intent was that over time many nonconforming billboards would be removed.  The current ordinance’s billboard provisions are substantially the same as the provisions adopted in the mid-1980’s and reflect the continuing policy direction of the governing bodies since that time.  That policy direction was reinforced in the early 1990’s when the governing bodies adopted changes to the on-premise sign ordinance that required many business signs to be removed or reduced in size after an amortization period.  The overall result of Durham’s sign ordinance, both off-premise and on-premise, has been to make signs less prominent and improve the community’s appearance.

Fairway’s current request is a revised version of a request it submitted in May of 2008.  After considering Fairway’s initial submission, the Joint City-County Planning Committee (JCCPC) recommended that Fairway present its proposal to various community groups and boards.  Fairway did so, and the responses as reported to the Planning Department are included in this discussion.  Fairway withdrew its initial request in August of 2008, saying that a new one would be forthcoming.  In February of 2009, the Planning Department made a presentation to the JCCPC on its billboard research to date.

Fairway submitted its current request with fee on November 6, 2009.  In March 2010, it submitted a slightly revised version of its proposed text, changing only responsibility for certain actions from the City or County Manager to the City or County, as appropriate.  On January 6, 2010, the JCCPC directed the Planning Department to give the request priority behind only state-mandated items.  The March 2010 Planning Commission meeting was cancelled, so this item is being presented in April 2010.  On March 3, 2007, the JCCPC asked for benchmarking information for Durham’s official peer cities and relevant case law regarding this request.  Peer city benchmarking is included as Attachment C and references to relevant case law are included in Attachment D. 

Fairway’s Proposal.  Attachment A contains Fairway’s proposed text.  Major points include:
•    Creation of a billboard overlay district along the interstates and major highways in the City and County, including NC 147, except in Research Triangle Park; US 70; US 15-501; I-85, except in the Major Transportation Corridor Overlay; and the planned East End Connector;
•    Mandatory billboard registration with the City or County as appropriate;
•    Removal, relocation and reconstruction of registered billboards only onto non-residentially-zoned lots in the billboard overlay district, assuming property owner assent, under permits issued by the Planning Department.  (Under state law, the underlying zoning must be commercial or industrial);
•    Digital changeable copy billboards.  An owner may replace 25 percent of its total display area with digital billboards.  Digital billboards must display one eight-second public service announcement (PSA) every 60 seconds, and must display a public emergency message for two hours or until no longer necessary.  Digital billboards must meet certain other standards, many of which are already state requirements;
•    Issuance of a permit given compliance with certain standards.  Billboards must be constructed entirely out of steel.  Unless a billboard replaces a billboard on the same lot that is constructed on multiple poles, it must be located 1,000 feet from another billboard on the same side of the road, at least 200 feet from a residentially zoned or used property on the same side of the road, and at least at least 500 feet from a local or national historic district.  Lighting may not shine directly onto or into a residentially zoned or used parcel.  Billboards may be 50 feet high as measured vertically from the adjacent edge of pavement of the main travelled way;
•    Size.  No face panel may be larger than the face panel of the billboard being relocated and/or reconstructed.  (Many existing billboards have multiple faces that presumably could be aggregated to allow one larger face); and
•    Landscaping or payment in lieu.  A new billboard must be landscaped or the owner must make payment in lieu of landscaping into a fund dedicated to gateway beautification.

Current Billboards and Projections.  Planning staff worked with North Carolina Department of Transportation staff in 2009 and 2010 to assess the existing billboards in Durham.  Existing billboard locations are shown on Attachment B.  Staff identified 94 billboards, down from 101 in 2000.  Of those, 61 are wood and 33 are metal, including 25 steel monopoles.  Forty-two of Durham’s 94 billboards have two or more faces.  (The North Carolina Department of Transportation (NCDOT) issues permits for billboard structures, each of which may have more than one face.)  Configurations include side-by-side, back-to-back, v-shape, and double-decker.  Forty-nine billboards are located in the City, and forty-three in the County.  Billboards are located on: 

US 15-501 Business North (1)    I-85 North (14)
US 15-501 Bypass North (2)     I-85 South (20)
US 15-501 Bypass South (4)    US 70 Business West (1)
US 501 Business (5)    US 70 Bypass East (18)
US 501 Bypass (6)    US 70 Bypass West (13)
NC 55 (3)    US 70 Highway (1)
NC 147 North (6)

At least 38 of Durham’s 94 billboards currently violate easily correctible state requirements.  Six appear to be dilapidated or abandoned and could possibly be removed.  Staff estimates that eight additional billboards will be removed due to East End Connector right-of-way acquisitions, and that Alston Avenue widening will remove one or two more.  Billboard owners receive compensation from the state for removals due to road construction.  

At least 45 of Durham’s billboards are considered nonconforming by the state due primarily to violation of state standards regarding location in local zoning districts, spacing, and distance to ramp access.  Thirty-one of those are in the County, 14 in the City.  Several more billboards along the East End Connector project will likely become nonconforming if not removed due to their proximity to each other and the road’s transition to fully controlled access.  A sign that is nonconforming under state law may not be converted to digital or relocated off the current sign site unless it moves to a conforming area under a new NCDOT sign permit and becomes a conforming sign that meets all current state standards.  Under local law, all of Durham’s billboards are currently nonconforming and may not be relocated or converted to digital.

Fairway owns half of the billboards in Durham.  It owns 47 billboards, 35 with two or more faces.  Twenty-two are metal monopole construction, five are other metal, and 20 are wood.  Twenty-eight Fairway billboards are located in the City, and 19 in the County.  Ten Fairway billboards appear to have correctible state violations.  At least 16 Fairway billboards appear to be nonconforming as interpreted by the state.  Fairway’s billboards are located on:

US 15-501 Bypass South (1)     I-85 North (3)        
US 501 Business (5)    I-85 South (9)
US 501 Bypass (4)    US 70 Business West (1)
NC 55 (2)    US 70 Bypass East (11)
NC 147 North (3)    US 70 Bypass West (8)

Digital billboards are lucrative.  Revenue from a standard billboard face is $1,000 to $2,000 per month, or $12,000 to $24,000 per year.  A digital billboard face generates at least $14,000 per month, or $168,000 per year, seven to 14 times the revenue of a standard sign.  Eleven digital billboard faces would mean revenues of $1,848,000 per year.  A digital billboard costs $200,000 to $500,000 and so could be paid off in two to three years.  Because they are so lucrative, digital billboards would be very expensive for Durham to remove once installed.  The City or County would have to pay “just compensation,” which could include the value of the property plus lost revenues.  A steel monopole billboard has a lifespan of 50 to 70 years and compensation for removal could therefore amount to millions of dollars.

Issues.  This requested text amendment raises concerns in the areas of aesthetics and economic development, public safety, environmental impacts, effect on other aspects of the sign ordinance, and potential legal problems.  It would also require resources that the Planning Department lacks.  Each of those topics is addressed below, as are moratoriums that have been imposed by state and local governments.  Also addressed are public opinion and the Proposed Text Amendment Justification provided by the applicant.   

Adequate regulation of digital billboards and other digital signs is technically complicated.  If a text amendment allowing digital billboards is desired, it should include specific technical criteria that are lacking in this proposal.  In addition, policy measures that benefit and protect the citizens of Durham should be included as they have in other local ordinances that allow digital billboards.  Both topics are also addressed below.

Section 1.  Public Opinion.  According to an August 2009 independent survey commissioned by the Durham Convention and Visitors Bureau, Durham citizens clearly support maintaining the current sign ordinance.  Seventy-two percent of those surveyed supported maintaining the ordinance, 20 percent were undecided, and 8 percent were opposed.  Results were consistent along gender lines.  Along racial lines, African-Americans supported the current ordinance 11-1, Caucasians 10-1, Hispanics 5.5-1, and Asians, 4-1.  Recent arrivals to the area showed lower support ratios (4.5-1) than long-time citizens whose support for the current ordinance ranged from 8-1 to 20-1.   In addition, Planning staff have reviewed numerous citizen e-mails concerning billboards, the vast majority of which oppose changing the sign ordinance, generally for aesthetic, safety, or environmental reasons.  The majority of newspaper letters to the editor appear to oppose digital
 billboards, and a citizen web site has been created in support of the current billboard ban.

Other information received by staff regarding group or advisory board opinion on billboard ordinance changes includes: 

•    November 18, 2008.  The former president of the Greater Durham Chamber of Commerce provided a memorandum in support of the previous requested text amendment to the Chamber Board of Directors.  It is not clear whether the memorandum represents the official position of the Chamber or simply a recommendation.  See, Memorandum to Chamber Board of Directors from Casey Steinbacher, President/CEO, entitled “Recommendation for Text Amendment to Enhance Existing Billboards in Durham County”, November 18, 2008.

•    January 2009.  The Durham City-County Appearance Commission voted 9-5 that digital billboards should not be considered in any proposed text amendment regarding billboards.  Six members voted against considering any text amendment at all.  Eight members voted for considering a text amendment regarding billboards, assuming that the existing billboards will otherwise never be removed and that the amendment would result in more attractive signs and a reduction in quantity.

•    January 15, 2009.  Downtown Durham Inc. issued a letter to Fairway in response to Fairway’s request that DDI consider the requested text amendment.  DDI declined to take a position on changes to the billboard ordinance, citing lack of consensus and insufficient information.

•    March 2009.  The Inter-Neighborhood Council voted to oppose any changes to Durham’s strict regulation of billboards after hearing presentations by Fairway and INC members on the subject.

Section 2.  Public Safety.  The threat to public safety presented by digital billboards, and digital signs generally, is a hot button regulatory issue.  Numerous United States studies have been conducted on driver distraction of various types, by entities including the Federal Highway Administration, the National Highway Traffic Safety Administration, the University of North Carolina Highway Safety Research Center, local governments, and insurance companies.  The data extrapolated from those studies indicates that digital billboards do indeed pose a safety risk to drivers due to their inherent distracting qualities.  Courts have agreed.  In 2008, the 1st U.S. Circuit Court of Appeals in Naser Jewelers, Inc. v. City of Concord, NH, stated “It is a given that a billboard can constitute a traffic hazard.  It follows that EMCs [Electronic Message Centers], which provide more visual stimuli than traditional signs, logically will be more distracting
 and more
 hazardous.”  

The billboard industry has issued two recent studies indicating that digital billboards are safe, which have been discredited by independent peer review studies commissioned by the State of Maryland (2007) and the Highways Subcommittee on Traffic Operations (SCOTE) of the American Association of State Highway and Transportation Officials (AASHTO) (2009).  Notably, the author of one of the industry studies, Suzanne Lee, believes that the potential for drivers to be distracted by digital billboards should be investigated further.  She recently stated, “[i]f we don’t study this, and get on top of it right now while the capabilities are expanding, every roadway will be filled with flashing lights and video.”  

In 2009, the FHWA issued a Phase 1 report on digital billboards that included a literature review and investigation of applicable research methods and techniques.  It also analyzed the numerous key factors or variables that affect driver response to digital signs or serve as indicators of driver safety.  It made recommendations for future research in three stages – determination of distraction, basis for possible regulation, and relationship of distraction to crashes.  The first stage of that research is now underway.  (Concurrently, the FHWA’s interpretation of the Highway Beautification Act to allow digital billboards, made in 2007 under the Bush administration, is under scrutiny.  In February 2010, the Georgetown Institute for Public Representation, a public interest law group, filed a petition with the FWHA to reverse its interpretation.)  The 2009 AASHTO report also provides a comprehensive review of the research to date, and offers
 guidance to
 state and local governments that wish to allow digital billboards prior to the FHWA results.  Particulars are discussed below in Section 10, Technical Regulation of Digital Billboards.  

The FHWA promulgates standards for official signs, including digital signs, which are contained in the Manual of Uniform Traffic Control Devices (MUTCD).  The 2009 MUTCD, effective January 15, 2010, contains a new Chapter 2L, Changeable Message Signs.  It strictly regulates such factors as legend height, color, phases per cycle, and display time in order to protect drivers.  The MUTCD training information explains that Chapter 2L was created “to consolidate all information about changeable message signs into one location and to incorporate the results of extensive research on changeable message sign legibility, messaging, and operations that has been conducted over a period of many years.”  Comparing the MUTCD standards to advertising usage, the 2009 AASHTO report explains: 

“[t]he MUTCD and the research on which it relies recognize that road signs are something of a “necessary evil”.  They are required to communicate warnings, regulations, guidance and other information to road users.  However, because even official signs draw the driver’s eyes away from the principal task, such signs are designed to communicate their message quickly, clearly, and consistently.  Advertisers, on the other hand, have demonstrated little predilection to follow these principles; rather, their goal is to attract the driver’s attention, and hold it long enough to communicate their message.”

Digital billboards have been used to assist in emergencies and crimestopping, but local governments are now recognizing that they need to balance that assistance against other concerns, especially driver safety.  Official signs regulated under the MUTCD are the appropriate venue for broadcasting public emergency messages.   

Section 3.  Aesthetics.  Aesthetics is, of course, in the eye of the beholder.  Citizens within communities can differ and communities overall have different aesthetic values and appearances.  The Triangle communities – Raleigh, Cary, Chapel Hill, and Morrisville – have tight sign regulations similar to Durham’s current ordinance. Cities like Greensboro, Asheville, and Wilmington have more permissive sign regulations.  Based on information received it appears that some people in Durham enjoy billboards but most believe they are unattractive and contribute to visual clutter.  The recent survey commissioned by the Durham Convention and Visitors Bureau indicates that citizens overwhelming support maintaining the current sign ordinance.

Beginning in the mid-1980’s, Durham, like many other areas nationwide, determined that removing existing billboards and prohibiting new ones would improve the aesthetics and overall image of the City and County.  The changes were supported by the business community, which advocated for a more attractive appearance for citizens and business alike, with an emphasis on attracting new business.  The decision resulted in years of litigation at great taxpayer expense, but was upheld in the end.  The consensus at the time was that Durham’s appearance was greatly improved by regulating signs, including billboards, with the removal of nonconforming signs through amortization and being handled as legal nonconforming.

The aesthetics of digital billboards add a new element to the analysis.  Again, some people appear to enjoy them: an Arbitron survey commissioned by the Outdoor Advertising Association of American found that a majority of digital billboard viewers in Cleveland found the signs to be attractive and helpful to the community. However, local citizen comments, independent local survey results, and nationwide reports indicate that many more people find them problematic.  They are designed to be the brightest item in a field of vision, often visible for great distances.  They can disturb citizens living nearby and generally obscure or distract from the natural and built environments.  Natural, green vistas, even if merely buffers, attract and retain business and residents.  Downtown Durham now has a clean, alluring cityscape thanks to significant public and private investment, and improving Durham’s gateways is an ongoing priority.

Staff has also received comments indicating that many of Durham’s existing billboards are considered an eyesore and could be improved in appearance.  These comments are being taken into account and, given available resources, increased state and local enforcement should improve maintenance on existing billboards and expedite removal of others.  The current ordinance requires that existing billboards be maintained up to a point.  They must be removed if maintenance requirements are excessive or if they become dilapidated.

Section 4.  Environmental Protection/Sustainability.  Any new billboard is by definition not as green as an existing billboard because it requires the use of new materials and causes land disturbance during construction.  In addition, digital billboards have high-energy usage and emissions.  One standard-sized digital billboard contains 449,280 light-emitting diodes (LEDs).  According to Scenic America, it consumes 397,486 kWh/year, has a carbon footprint equal to 49 traditional billboards or 13.39 homes, and generates 108.41 tons/year of carbon dioxide.  The Durham County Greenhouse Gas Emissions Inventory and Local Action Plan calls for a 30% reduction in greenhouse gas emissions by 2030.  Digital billboards would increase rather than reduce Durham’s emissions.

Light pollution is also an issue with digital billboards.  The applicant’s request requires that lighting be confined to the billboard area, but digital billboards are designed to be the brightest item in a field of vision, and can be visible for miles at night.  Even if digital billboards were deemed acceptable, the proposed language would not adequately protect Durham citizens as discussed below in Section 10, Technical Regulation of Digital Billboards.  Also, regulating LED lighting is technically complicated and staff lacks the necessary training and equipment.

The applicant’s request requires that new billboards be landscaped and maintained or that payment in lieu of the cost of landscaping be made.  Regarding landscaping criteria, the applicant’s requirement that a canopy tree be placed at each end of a billboard should be modified if adoption is considered.  It would result in trees that partially eclipse a sign or require unattractive pruning to maintain sign visibility.   Whether the proposed landscaping would enhance billboard appearance is debatable, but given the payment in lieu option, which is less expensive than installation and long-term maintenance, it may not occur in any case.

Tree removal around billboards is a more significant issue.  Small preexisting trees may be removed along 250 feet of the travel lane right of way near a billboard under a NCDOT permit.  (Trees can of course be removed to any extent on private land where the billboard is located.)  Last year, when the billboard industry attempted to increase the 250 feet standard to 375 feet, the North Carolina Chapter of the American Planning Association opposed the change on the grounds that “[t]he perception of our State, particularly for visitors, is defined to a large extent by views from our roads.  Natural, green vistas are what attract and retain businesses in our State; current standards help to protect this asset, while the proposed changes would accelerate its deterioration.”  

Section 5.  Legal Issues.  The law is clear that billboards can be regulated more strictly than other signs, and even banned entirely.  Nonetheless, sign regulation is legally challenging.  Litigation often results from unclear regulations or changes in sign ordinances.  The billboard industry is responsible for many lawsuits against local governments, and many communities are currently involved in sign litigation.  Most of the litigation involves digital technology, with some communities trying to require removal of signs that were built under ordinances that did not clearly disallow them.  Durham’s ordinance is, however, clear in that regard.  Since it has already been upheld, it is unlikely that the billboard provisions of Durham’s current ordinance will be subject to further challenge. 

The applicant’s request raises legal concerns in a number of areas.  The first is the allowance of billboards in zoning districts other than commercial or industrial districts.  The Highway Beautification Act and North Carolina law limit new billboards to locations in those two districts, as interpreted by NCDOT.  In addition, localities cannot zone areas solely to allow for billboard use.  It appears that the applicant’s proposal contravenes federal and state law.

A second concern is how to allocate billboards between or among companies if new locations are being requested.  Given the 1,000-foot separation requirement, multiple companies could request locations that are within a 1,000 feet of each other.  No mechanism to choose is included in the amendment.  

A third concern is the requirement to run public service announcements (PSAs) that include noncommercial advertising.  The proposed amendment requires each digital billboard to display one eight-second PSA per minute.  It describes PSAs as announcements for which no charge is made and which promote the programs, activities or services of governments or non-profit organizations, and announcements regarded as serving community interests.  The legal concern is that sign regulations must be “content neutral” and in particular, they cannot favor some noncommercial messages over others.  Announcements or activities from nonprofit groups may be controversial in nature.  It appears that since the noncommercial advertising would be a legal requirement imposed by government, then government would need to require that all requesters be allowed digital time without regard to the message they wish to display.  Profane or obscene messages could likely be
 excluded
 but it is not clear what else could be excluded without violating the constitutional mandate of content neutral government regulation.  The legally safest alternative is to not require that PSAs be run.  

In contrast, what occurs under the current ordinance works well, without government entanglement in this messy area.  The current ordinance does not require that noncommercial content appear on billboards, but sign companies nonetheless offer space to noncommercial organizations.  In fact, both noncommercial and commercial advertisers arguably receive better exposure under the current ordinance where their messages appear continuously than they would under a digital format where their exposure is eight seconds per appearance.  PSA placement could also be problematic - a Crimestoppers ad could be followed by six ads for alcohol and gun shows.  Many viewers will see more than one ad, as they try to watch them change (the Ziegarnik effect).  

A final legal concern is how the governing bodies can rationally justify allowing digital billboards without allowing the same digital technology for on-premise signs.  It is difficult to argue that digital signs should be allowed off-premise and not allowed on-premise, especially since the courts have historically allowed on-premise signs to be treated more favorably than off-premise signs.  The proliferation of digital billboards on major highways might necessarily lead to the proliferation of digital signs on local streets.

Section 6.  Effect on Other Sign Ordinances.  As discussed in Section 5, Legal Issues, any change to one area of a sign ordinance can lead to similar changes in other areas.  If digital billboards are allowed, the public safety and aesthetics justifications for prohibiting digital on-premise signs and digital portable signs could be compromised or eliminated.

The 2009 AASHTO report states, “The potential impact from these latest technologies goes far beyond a simple replacement of traditional, static billboards.  On-premise advertising signs, traditionally given much more freedom by FHWA and local authorities, are increasingly using the same LED technology now appearing on billboards.”  The report goes on to explain: 

“[t]he growing use of LED technology for advertising in on-premise applications is of concern because such signs may be larger than traditional billboards, closer to the right-of-way and to roadway sections with high task demands, and may include animation and full motion video. At least one State is considering the use of its official changeable message sign network for the display of digital advertising. And an unknown number of private or toll-road operators are also contemplating the sale of advertising within their rights-of-way. In addition, we are seeing the deployment of LED displays, often featuring video, on vehicles moving in the traffic stream. Vehicles as diverse as small trucks and vans, public transit buses, and large, over-the-road trailers, are now being outfitted with LED advertising, and the potential for driver distraction grows with each such installation. Our review suggests that, with few exceptions, government agencies have no
 regulations or guidelines in place to address these new uses.”

The report also describes personalized and interactive billboards, discussed further in Section 10, Technical Regulation of Digital Billboards, and the pressures being brought to bear on the FHWA to change the MUTCD to allow advertising on official signs.  Durham can expect increasing pressure to allow digital on-premise signs as shopping centers, automobile dealers, realtors and other business owners find that the signs are affordable and unprecedented in their attention-getting power.  

Section 7.  Financial Impact/Staffing.  The requested text amendment would create an unfunded initiative by imposing a significant new regulatory and enforcement burden upon the City-County Planning Department and possibly other departments.  New structures and processes would need to be implemented for the following:

1)    Registration by the City or County of all Durham billboards within 90 days of ordinance adoption, including assessment of state permit compliance for each;
2)    Assessment by the Planning Department of each permit application, including locational, structural, technical, and landscape elements, as well as any new state permit compliance;
3)    Landscape inspection by the Planning Department within 90 days after permit issuance;
4)    Review by the City or County of petitions for payment in lieu of landscaping and establishment and maintenance of a payment in lieu program, assuming statutory authority exists, and a gateway beautification program;
5)    Enforcement by the Planning Department after permit issuance, including enforcement of digital standards requiring training, expensive equipment, and consistent monitoring; and
6)    Creation by the City Police Department and the County Sherriff’s Department of a digital billboard emergency protocol and ongoing staffing as needed to ensure its implementation.

In addition, the Planning Department would need to bring forward proposed registration and permit fees and a proposed zoning map change to implement the billboard overlay district.  Registration and permit fees could offset certain permitting costs, but would not help with costs associated with other implementation or enforcement.

The City-County Inspections Department currently issues sign permits, and has raised a number of concerns about the requested text amendment.  The concerns relate to:
•    Division of labor between departments;
•    Resource demands and record-keeping;
•    The overlay district definition;
•    NCDOT permit verification;
•    Information requirements for permitting;
•    Clarification of legal responsibilities of sign owner and property owner;
•    Survey and lighting survey requirements;
•    Reference to state regulation instead of specifying height;
•    The rationale for exceptions for signs with multiple poles;
•    Creation and administration of a fund dedicated to gateway beautification;
•    Challenges in enforcement of lighting requirements;
•    The fact that sign companies do not typically handle landscaping;
•    Verification of all technical code requirements; and
•    Logistics and enforcement, generally.

Given the budget cuts of FY 2009-2010 and FY 2010-2011 and resulting reduced staffing levels, the Planning Department and possibly others could not perform the additional functions without additional staff resources and/or significant adjustments to ongoing and prioritized items in work programs.

Section 8.  Prohibition/Moratorium.  State and local governments nationwide are grappling with the issue of digital billboards, and adopting a variety of approaches.  Many allow digital billboards but an increasing number are either prohibiting them or imposing moratoriums to allow for study of the issue.  Between April and December of 2008, 23 cities within Texas alone prohibited digital billboards, and six imposed moratoriums.  At least 11 states prohibit digital billboards, and Montana and Kentucky have instituted temporary bans to allow for assessment of pending safety studies.  Michigan and Minnesota are currently considering moratoriums.  Many cities also prohibit digital billboards, including Houston, Austin, Galveston, Dallas, Fort Worth, San Diego, Little Rock, Pasadena, Santa Monica, Des Moines, St. Paul, Wichita, St. Petersburg, and Denver.  As mentioned above, local governments like Raleigh, Cary, Chapel Hill, Cary, Morrisville, and
 Apex also
 prohibit them.  San Francisco voters recently voted down a proposal for a new downtown billboard district with digital signs.  St. Louis, El Paso, and San Antonio have imposed moratoriums and Atlanta is considering a ban.  Many of the above locations prohibit all new billboards, standard as well as digital. 

In October 2009, Watauga County, North Carolina (Boone, Blowing Rock) prohibited all new billboards and conversion from standard to digital following citizen complaints about three digital billboards owned by Lamar Advertising.  In January 2009, the City of Los Angeles imposed a two-year moratorium due to negative citizen response, particularly from poorer citizens who happened to live near digital billboards, to a court settlement in which it allowed them.  In August 2009, Los Angeles adopted an emergency ordinance banning digital billboards, both new and converted, from most areas of the city.  The unanimous City Council vote came in response to another pending legal challenge to the moratorium, which had been previously upheld in federal court.  

Section 9.  Applicant Justification.  The applicant provides a “Proposed Text Amendment Justification” that lists five reasons for requesting the proposed changes.  Synopses with responses are listed below.

•    Reason 1.   The Durham Comprehensive Plan contemplates and supports the changes under Policy 4.2.3b, which states the UDO should “develop different design standards for attractive nonresidential signage appropriate to each development Tier.” The applicant requests changes in order to upgrade the appearance of billboards in each Tier.

Response 1.   The referenced policy is located in Objective 4.2.3, Attractive Nonresidential Development, which states, “[i]ncorporate attractive nonresidential development into the existing community character, ensuring that is made an integral and appealing part of the built environment.”  The referenced policy, Policy 4.2.3b, Nonresidential signage, also states, “Signs within the Suburban and Rural Tiers shall be compatible in appearance, while signs in the Downtown, Urban, and Compact Neighborhood Tiers shall be allowed greater variety and flexibility in their design.”  The Comprehensive Plan was adopted in 2005, long after new off-premise signs were prohibited and restrictions placed on the nonconforming signs.  This objective and policy clearly apply to on-premise signs in nonresidential developments, which is borne out by current UDO requirements and pending sign ordinance changes for the Downtown Tier.  The applicant’s request is
 not
 Tier-specific, and in any case, the requested changes would not meet the letter or intent of this objective and policy.  

•    Reason 2.  New billboard technology was not contemplated when the current billboard ordinance was enacted.  The new digital technology represents a change in circumstances that warrants revisions.

Response 2.  It is true that digital sign technology was not available when Durham’s sign ordinance was enacted.  However, new technology or changed circumstances do not necessarily warrant UDO revisions.  Durham does not need to revise its ordinances to prohibit digital signs, unlike many communities, which are revising them to do so as quickly as possible.  The current ordinance works very well, is protective of public safety and aesthetics, and the advent of new technology and associated requests only means that diligent efforts are required to safeguard it.  

•    Reason 3.  The Durham Comprehensive Plan supports using digital billboards for emergency management under Policy Goal 12.4, which states that Durham should “[p]rovide an effective program of emergency management to maintain a safe environment for Durham’s citizens,” and Objective 12.4.1, which states that Durham should “[e]stablish and maintain an appropriate level of emergency management in Durham.”  Also, Comprehensive Plan Summary of Issues item number 1 states that “[n]ew technology can improve the effectiveness of staff [emergency] resources…”

Response 3.  As recommended by the Durham Comprehensive Plan, Durham has an emergency management plan and systems that utilize the latest technology.  As discussed above in Section 2, Public Safety, even communities that have successfully used digital billboards for emergency messages now realize that such benefits need to be weighed carefully against the overall risk to public safety.  Durham has official NCDOT signs that broadcast emergency messages and are regulated under the MUTCD to protect the public. 

•    Reason 4.  Changes in state law present conflicts with the UDO sign ordinance, which the proposed changes would resolve.

Response 4.  The applicant cites two North Carolina Supreme Court cases for its proposition, Lamar OCI South Corporation v. Stanly County Zoning Board of Adjustment (N.C. 2008), and Morris Communications, d/b/a Fairway Outdoor Advertising v. the Board of Adjustment for the City of Gastonia (N.C. 2004).  Under those cases, state law would indeed trump contradictory UDO provisions.  Lamar says that a nonconforming billboard can be relocated back on the same Sign Location/Site, as long as it does not move more than 1/100th of a mile parallel to the highway.  (Lamar also says that a billboard that is nonconforming under local law is nonconforming under state law.)  Morris says that sign structures are part of the nonconforming sign that may be maintained.  However, both cases hold that state regulation does not preempt local regulation of outdoor advertising in general, and a new case, Morris Communication Corporation d/b/a Fairway Outdoor Advertising
 v. City of Bessemer Zoning Board of Adjustment, N.C. Court of Appeals, March 2, 2010, muddies the waters.  It holds that relocation of a nonconforming billboard on the same property due to highway construction as approved by NCDOT is prohibited where the local government requires a sign permit for relocation and the original sign permit had expired.

Whether specific UDO provisions do contradict state law is clearly uncertain.  If they do, however, the UDO severability clause at Sec. 1.9, Severability, will likely protect the sign ordinance as a whole.  Any changes to the existing ordinance to conform to state law would be minor and could be made through a simple technical changes amendment.  They would not require wholesale revision of the sign ordinance.

•    Reason 5.  The requested changes will aid Durham’s local economy and generate increased tax revenues from Durham’s billboards.

Response 5.  The applicant’s request presents no information indicating how the requested changes will aid Durham’s economy.  Presumably, however, more local businesses could advertise on the digital signs, which could help them generate business.  Of course, more out-of-town businesses could also advertise, drawing customers to other Triangle locations.  The LED components could be manufactured by Cree, which has facilities in Durham, Morrisville, and Research Triangle Park.  The Planning Department could charge permit and possibly registration fees.  Fairway is based in Georgia with an office in Raleigh.  It appears unlikely that the applicant will open an office in Durham or employ Durham citizens.  Digital signs would not require on-site message changes and the Raleigh staff would presumably continue to manage the rest.

Billboards are taxed as personal property.  According to County tax records, Fairway and its associated entities paid $2,605.60 in 2008.  Although 22 of Fairway’s billboards are steel monopole, the average taxable value per sign was $5,107.  In 2009, Fairway and associated entities paid $4,266.77.  The average taxable value per sign was $7,726.  Even assuming that digital billboards are 20 times as valuable as standard steel monopole billboards, and that one quarter of the existing billboards would be digital and the rest steel monopole, it appears that the total tax payment from all billboard companies would be well under $60,000 per year.  The income method of tax assessment for billboards is not currently allowed under North Carolina law.  Elsewhere, however, cities have switched to that method because the billboard industry could not exist without public investment in roads.  Milwaukee expects up to 1,000 percent increases in billboard tax
 revenues based on its 2009 change.  

Section 10.  Technical Regulation of Digital Billboards.  If Durham decides to change the billboard ordinance to allow digital signs, technical standards must be carefully drafted.  The standards contained in the requested text amendment are inadequate to protect Durham citizens and other drivers along its roadways.  All relevant departments and probably an outside consultant should be involved. 

Recognizing that state and local governments are struggling with pressures to issue digital billboard permits, and with threats of litigation should such permits be denied or revoked, AASHTO issued its 2009 report to provide some guidance.  Entitled “Safety Impacts of the Emerging Digital Display Technology for Outdoor Advertising Signs”, the report was prepared by Jerry Wachtel of the Veridien Group.  It analyzes the safety and regulation information currently available and recommends standards or, in many cases, methods of achieving standards, using the best existing information.  The FHWA digital billboard safety study currently underway is expected to provide a more comprehensive understanding of the safety implications of digital signs that may lead to guidance or regulation at the federal level.  

The report recommends site-specific regulation of the following factors:

•    Minimum Display Duration.  Sight distance to the digital billboard (ft)/Speed limit (ft/sec) = Min. display duration (sec).

•    Amount and Type of Information Displayed.  Upper limits on the amount of information displayed should differ depending upon sight distance, speed limits or prevailing speeds, and driver task demands imposed by the design and operation of the roadway.  Telephone numbers, internet addresses, text message instructions, etc. are public safety hazards, and evidence has been shown of traffic slowing, even for AMBER Alert messages on official signs, despite their conformance with MUTCD standards.

•    Information Presentation.  Message design, including text size, image placement, etc. should facilitate speed and ease of reading, and rapid, unambiguous message interpretation, to achieve lower levels of driver attentional demand and distraction.  The MUTCD standards result from years of development and constant refinement by human factor and traffic safety experts and the report suggests looking to those and information already available from the outdoor advertising industry.

•    Digital Billboard Size.  The larger the billboard, the larger the images, the brighter it can appear to be, and the greater the distance from which it can be viewed.  Digital billboards therefore need to be assessed differently than standard billboards.

•    Brightness, Luminance, and Illuminance.  The applicant requests maximum luminance levels that are much higher than the levels the report presents as accepted by both industry and regulators.  Levels should be set following on-site assessment with specific measurement methods, and take into account environmental and other relevant factors.  The methodology is described in the report.

•    Display Luminance in the Event of Failure.  In the event of malfunction, brightness should be reduced to a level independently determined to be the acceptable maximum under normal operation taking into account time of day and weather variables.  Otherwise, the billboard should shut down.  In 2007, a billboard on the San Francisco-Oakland Bay Bridge malfunctioned by maintaining day brightness at night and was not shut down, creating a serious safety hazard for drivers and generating complaints due to its visibility all over the Bay area.

•    Longitudinal Spacing Between Digital Billboards.  A set number is not adequate.  Factors that need to be assessed include prevailing travel speeds, sight distance, topography, and driver field of vision generally.

•    Digital Billboard Placement with Relation to Traffic Control Devices and Driver Decision and Action Points.   Different cognitive demands are placed on drivers at different locations.  The design and placement of traffic control devices themselves is the result of empirical research into those demands that led to nationwide standards.  Billboards should be assessed for their effects as well to promote traffic safety.

If on-site determinations are not viable, then stringent standards should be set to ensure safety in all situations.  

The report recommends prohibiting the following, which the applicant’s request does in fact prohibit:

•    Interval Between Successive Displays; 
•    Visual Effects Between Successive Displays; and 
•    Message Sequencing (a sequence of two or more signs with related messages).

The report also briefly addresses regulation of on-premise digital signs, digital signs in public rights-of-way, digital signs on moving vehicles, and new digital billboard technologies.  New billboard technologies currently used elsewhere that will likely require regulation include the following:

•    Billboard Audio and Other Stimuli.  A digital billboard broadcasts audio or other sensory stimuli like smells.  These billboards exist in the U.S. and have been prohibited in Tucson, Arizona, for instance.  

•    Personalized and Interactive Billboards.  These signs include billboards that convey a personal greeting to the driver, billboards that interact with the driver in real time, and billboards that unobtrusively obtain information from drivers and vehicles.  Personal greetings are used by Mini Cooper, which has billboards that recognize and convey a personal message to the vehicle of a driver who “opts in”.  Billboards that interact with drivers exist in Europe.  In a recent French trial, billboards call the cell phones of drivers who “opt in” with special promotions.  In Belgium, billboards text back and forth with drivers, who answer questions to get placed into a drawing.  Billboards that obtain information, or “smart signs”, include a billboard in California that monitors car radio information and tailors its advertising to the appropriate demographics.  A recent patent claims to be able to capture images of driver eye
 movements as they approach the billboard. 

Section 11.  Policy Regulation of Digital Billboards.  If Durham decides to change the billboard ordinance to allow digital signs, provisions should be included to ensure some benefit and protection for the citizens of Durham.  Options include:

•    Tradeoffs:  Under this mechanism, a billboard company must remove a specific number of existing nonconforming billboards for each new digital billboard it erects.  Asheville requires at least a three to one tradeoff, so that each new digital billboard requires removal of existing nonconforming billboards equaling at least three times the area of the new sign.  The tradeoff number should ideally reflect the increased revenue generated by digital signs, which typically generate 7-14 times the revenue of standard billboards; 

•    Specific Locations:  Under this mechanism, a local government requires removal of specific existing nonconforming billboards in exchange for new digital billboards.  This mechanism can be used to clean up high-visibility areas.  Wilmington’s ordinance is structured to clean up gateways and two other specific areas.  San Antonio, TX used this mechanism to clean up its downtown historic district.  Staff recommend cleaning up Durham gateways if ordinance adoption is considered;

•    Sunset Provisions:  Permit time limits can be imposed.  For example, the City of Oakdale, Minnesota, issues annual billboard permits.  This approach is suggested by the 2009 AASHTO Report.  It allows a local government to decline to renew if the billboard proves problematic due to accidents caused, frequent malfunctions, use of new, undesirable technologies, traffic delays, need for road widening, citizen dissatisfaction, or other reasons.  A clear limitation on the number of years authorized under a permit would allow government to avoid paying huge sums to remove billboards; 

•    Financial Assistance:  Enforcement of digital billboard regulations requires sophisticated, expensive instrumentation.  The applicant should purchase the equipment that the City and County, or their consultant, deem necessary for enforcement; and

•    Carbon Neutral:  In order to meet the goals set out in the Durham County Greenhouse Gas Emissions Inventory and Local Action Plan adopted by both the City Council and County Board of Commissioners in 2007, any changes to the current sign ordinance should mandate that digital signs be at least carbon neutral, either through direct use of renewable energy or the purchase of renewable energy generated in North Carolina.

Alternatives.  The Planning Commission may recommend approval or modification of the proposed text amendment or recommend an alternate proposal.

Contact.  Julia Mullen, Planner, 560-4137 x28255, julia.mullen at durhamnc.gov

Attachment:    Attachment A, Fairway UDO Text Amendment Request and Replacement Text
        Attachment B, Map of Proposed Overlay/State Billboard Status
        Attachment C, Benchmarking Information
        Attachment D, List of Sources