Planning Commission rejects change in billboard law

Great coverage. This memo (recommending denial of the billboard industry's measure) says it all...

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

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