Tacoma council considers ban on billboards soon; legal fight likely

Billboards have inspired decades of political and legal fights across the country.

Another chapter in that saga is likely to be written this week, if Tacoma decides Tuesday to require dozens of billboards that violate city laws to be taken down within six months.

That would likely trigger a court fight with billboard owner Clear Channel Outdoor. Other Washington cities wanting to enforce their own bans will be watching. So will opponents of billboards who have come from as far as Minnesota to watch the city at the forefront of the national battle.

Activists say billboards are visual blight. Some businesses, nonprofits and governments that advertise on the signs say they’re an effective way to take their messages to the public. Billboard companies invoke issues of free speech and property rights.

The latest in outdoor advertising is digital billboards, lighted signs that show a new ad every few seconds. They’re expensive to build and lucrative.

Eyeing that new frontier, Clear Channel reached an agreement with Tacoma. It would remove signs that city law has prohibited since 1997, but with a tradeoff: The company could replace some of the traditional signs with electronic billboards.

The council approved the settlement unanimously. Then came the public outcry. Now the council appears to have the votes for a ban on digital billboards and a renewed push to take down the billboards in violation – which would amount to a repudiation of the settlement agreement and almost certainly would mean Clear Channel will sue the city again.

Here are answers to some common questions about billboards.

How many billboards are there in Tacoma? How many are currently “nonconforming” – against the rules but still in place?

City staff estimate there are 253 billboard “faces,” with some billboards showing multiple faces. About 193 do not conform to the rules, the city says.

Who owns them?

Clear Channel Outdoor owns nearly all of the signs. A handful are owned by Bremerton-based Jacobs Billboards, while a few others have a different owner but are managed by Clear Channel, city principal planner Shirley Schultz said.

What makes a sign “nonconforming?” What are the rules?

Tacoma allows billboards only in industrial districts and “general community commercial districts,” containing businesses that serve a larger area than neighborhood commercial districts.

Plus, the signs must be at least 375 feet outside shoreline districts and at least 250 feet outside residential districts, parks and other public spaces, churches, schools and historic districts.

Billboards must be at least 100 feet from each other, with no more than two within any 1,000 feet. They can be up to 30 feet high from street level, or 45 feet in the Port of Tacoma area. Their faces may be as long as 25 feet and as high as 12.5 feet. Billboards must be kept in good repair with their backs covered.

Companies aren’t allowed to add a billboard in a new location unless they obtain a relocation permit by removing a billboard from another city location. Permits can be transferred between owners.

Clear Channel holds 169 relocation permits.

What might happen under changes the City Council is considering?

Councilmen Marty Campbell and David Boe’s proposal would increase both the required space between billboards and the buffers between billboards and banned zones.

The law would explicitly ban digital billboards and would specify that billboards are signs bigger than 72 square feet.

Landscaping and lighting requirements would be added, including a ban on flashing lights. Standard rules would be set for how billboard faces must be mounted on their structures.

City staff doesn’t yet know how many more signs would become nonconforming under the proposed rules. But all nonconforming signs would have to be removed within six months, and relocation permits would expire after a year.

What’s the difference between a digital billboard and a lighted sign like the one in front of Gray Lumber Co. on Sixth Avenue or the Tacoma Dome?

Billboards are off-premises signs – they deal with business that’s not being conducted in the same place as the sign. Signs on the premises of the business they advertise fall under different rules.

What are the rules in other places in Washington? On highways? On tribal land?

Pierce County permits billboards in some of its unincorporated areas, including the Parkland-Spanaway-Midland Community Plan Area and the areas not covered by a community plan. Zoning dictates where they can locate.

But restrictions keep new billboards from going up in many cities, including Puyallup, Federal Way, University Place and Lakewood. Similarly, King County has a freeze on its total number of billboards in unincorporated areas.

But in most – if not all – Washington cities with bans, old billboards are grandfathered in.

Some tried to force businesses to remove their signs by a deadline, but courts put a damper on that strategy. The state Court of Appeals ruled in 2002 against Federal Way, saying owners had to be paid for their losses.

A few billboards remain in University Place, despite the city law requiring them to come down by 2004. City officials tried to enforce the law in 2009, but ended up in talks with Clear Channel, which threatened to sue if the city followed through, said Steve Victor, University Place city attorney.

The city is holding off on enforcement in hopes of a negotiated resolution. Victor said Clear Channel has offered a swap of digital for traditional billboards similar to what it negotiated with Tacoma, but University Place hasn’t settled.

“At this point we’re still holding our options open,” Victor said, “and we are watching very carefully what’s occurring in Tacoma.”

Along the state highway system, Washington law generally limits billboards to industrial or commercial areas and requires permits for them. Billboards must either advertise a business within 12 miles of the sign or must be of “interest to the traveling public” – ads for eating, lodging or gas, for example.

Digital billboards are not allowed. The state Senate this year voted to allow them, but the House let the proposal die.

Many of the billboards seen on Interstate 5, though, sit on tribal trust land. Once the federal government allows tribes or their members to put land into trust, local zoning laws don’t apply and state and local governments have no say.

John Baker, a Minneapolis attorney who was one of the first to successfully defend a city against Clear Channel, said what happens on tribal land “affects people’s perceptions of what you can do.”

“When things become familiar and treated as accepted, councils will look at that and say, ‘it doesn’t bother them there; this isn’t worse than that,’ ” Baker said.

Here and there, Washington has reached agreements with tribes on limitations for signs, said Pat O’Leary, state Department of Transportation outdoor advertising specialist – but not with the Puyallup Tribe of Indians.

A number of parcels of land along I-5 in Tacoma, Fife, Milton and unincorporated Pierce County are in trust for the Puyallup Tribe, which allows traditional and electronic billboards.

The tribe has rules on how closely the signs can be placed – 1,000 feet apart – and does not allow billboards that show animated video, tribal spokesman John Weymer said.

Farther north, Kent has digital billboards, and King County is considering allowing them for unincorporated areas.

To try to settle a lawsuit brought by Clear Channel, the Tacoma City Council agreed to allow some digital billboards. What would those be like?

The digital billboards allowed under the settlement would not be video billboards. The ones Clear Channel proposed would have been similar to digital picture frames – no scrolling, flashing or motion pictures.

Under an early set of code changes, billboard images would have been static and required to stay in place for at least 8 seconds. The first 10 digital billboards could have been as large as 672 square feet – the size of the billboard now on top of the gray building at the corner of Union and Sixth avenues. After those 10, the largest could have been 300 square feet.

The planning commission would have had to determine how to regulate brightness and glare. City staff made several recommendations about this, including a method for measuring brightness against ambient light from certain distances, requiring digital billboards to have a light-sensing device that adjusts the sign as ambient conditions change, and requiring the digital billboards to be turned off between 10 p.m. and 5 a.m.

Clear Channel and the city both have signed the settlement agreement that proposes digital billboards, but the council now seems poised to ban them. What effect might the signed settlement agreement have?

It’s not clear, but it almost certainly opens up a new avenue of legal argument.

The settlement agreement suggested compensation for billboard removal under certain circumstances. Remarks last week by Clear Channel officials both highlighted that issue, with the company’s Seattle president, Olivia Lippens, saying that the new code is an “attempt to re-address just compensation matters that have already been mutually agreed upon within the settlement.”

Two lawyers with experience defending local governments against outdoor advertising companies said last week that it’s unclear how binding a contract the settlement will be. Elizabeth Pauli, the city’s attorney, said Clear Channel is putting itself in position for some kind of legal move.

“If their approach is to say, ‘Well, city, we get that you didn’t do this code but you’re still bound to these other provisions,’ there are several strong defenses to such an approach if that’s what they’re contemplating,” she said.

Dana Maine, an attorney in Atlanta who specializes in land-use issues and advises local governments, said the newest proposed code makes a strong statement because it’s so different from the settlement agreement.

“The city’s taking a position, a policy position, in the ordinance that’s been proposed, that they’re willing to defend” it in court, Maine said.

Maine is on the board of anti-billboard group Scenic America and opposes digital signs. She said the settlement agreement was a “pretty good deal” except for the digital billboard allowance.

“It’s not a compromise I would approve of, but I was surprised,” she said. “I’m so used to the billboard bullies getting so much more than this. Someone did something right to at least hammer this out. That’s a small consolation if you end up having to live by it, but I don’t think you will.”

City officials have said they tried to settle with Clear Channel to avoid expensive litigation. If a government chooses to fight a billboard company in court, do they have a chance? What are the issues?

Yes, governments can win, said both Maine and Baker, the Minneapolis-based attorney. The issues are whether billboard laws violate free speech and property rights.

Courts have consistently ruled that governments, on behalf of citizens, are allowed to regulate signs. But many older ordinances define signs by content instead of physical specifications, Maine said.

Tacoma’s current law, enacted in 1997, defines a billboard as a sign “which advertises goods, products, events or services.” The council is considering several changes to remove any language that can be construed as regulating content, even going so far as to say “the applicability of the term ‘sign’ does not depend on the content of the message or image conveyed.” The proposed code goes on to define billboards with specific physical terms, including being bigger than 72 square feet.

As for property rights, Tacoma tried to address compensation with an amortization program. In 1997 the city made most existing billboards illegal but gave billboard owners 10 years to recoup their investment before the boards had to be removed. Clear Channel argued in its initial lawsuit against Tacoma that, essentially, the amortization program wasn’t adequate compensation.

Maine said amortization programs “take a lot of courage” because “someone will be unhappy, and you are running the risk that at the end they’re going to say ‘you owe us’ or ‘it’s not going to work out.’ ”

Tacoma’s amortization program is another reason its fight with Clear Channel is being watched nationwide.

Where else has Clear Channel fought legal battles against governments?

Legal skirmishes over Clear Channel digital billboards started about five years ago in Minnesota. Baker said digital billboards simply appeared in about a half-dozen locations one weekend.

“No one applied for a permit first. They just showed up. And they showed up regardless of whether it was a community that had a strong ordinance,” he said. “The first move was to put them up and see what would happen.”

“The responses of the communities really ran the gamut,” Baker said. “One had a city administrator who liked them. In another case, the city had the electrical company pull the plug. Another required a permit, and the permit was denied, and a judge required (Clear Channel) to turn them off.”

Clear Channel and CBS Outdoor are involved in legal skirmishes in Los Angeles after a settlement agreement there resulted in dozens of digital boards. Other cities have banned digital boards entirely.

Baker said it’s hard to generalize the outcomes because each legal fight is different. But he and Maine said most cases turn on the strength of the ordinance, political will, and luck of the draw with judges.

“Some judges have a broader interpretation of the First Amendment when it comes to content neutrality and regulation of commercial speech,” Baker said. “Some take it literally: if you have to look at the sign to determine it, it’s content-based. Other judges are more practical.

“That’s part of the challenge in this area,” he said. “You don’t know what kind of judge you’ll get.”