purpose, scope and intent

Sign codes are by no means thetypical land use regulation. Notonly do they regulate a businessactivity, they also regulate tradedress, commercial communica-tion and, at times, political orreligious speech. But ratherthan dealing solely with thesign’s physical structure andpresentation, regulations oftenare based on what the sign says,or worse yet, an attempt to dic-tate the content itself. It is thisintrusiveness that causes theproblems so often associatedwith sign codes. In many cases,regulators simply do not recog-nize that their regulations areintrusive. But in other cases,regulations are either based onspecial interest motives (such as

increasing job security or power,or promoting a private socialagenda), or on incorrect inter-pretation of the law.

A city that is working to buildconsensus must be positive fromthe very beginning. In writingthe Purpose, Scope and Intentsection, aggressive wording canend up alienating partners. Forexample, when a city says itintends to limit signs for thepurpose of improving trafficsafety, it is, in effect, telling itsbusinesses that they are harmingpeople and causing accidents.When a city bases its sign limitson an intent to improve aesthet-ics and property values, it is, ineffect, telling its businesses that

they offend the senses and aredestroying their neighbor’sproperty value. Aside from thefact that sign restrictions do notaccomplish those intents, thistone creates division in the com-munity and damages its abilityto find common solutions to realissues.

Theoretically, a content-neutralsign code that only regulates thetime, place and manner in whichsigns may be displayed, can bejust like a building code or anelectrical code, in that any com-petent technician can simplyread the code and apply it, makethe application and obtain thepermit. Regardless of what thesign says, clear guidelines can

Purpose, Scopeand Intent

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If a city sets out from thebeginning of its efforts to drafta sign code to enhance theeconomic vitality of its busi-ness district or to increasedriver safety, it will not end upwith a code that restricts itsbusinesses’ ability to speak tocustomers or require signs tobe so small or inconspicuousthey cannot be seen by driv-ers in time to respond safelyand maneuver through traffic.

The Signage Sourcebook

maneuver through traffic. Manysign ordinances contain intentstatements that are incongruouswith the regulations they arecreating.

For example, consider the“Intent” section of a sign codeproposed in early 2002 forBoone County, Kentucky:

The purpose of this Article isto coordinate the type, place-ment and physical dimensionsof signs within the differentzones; to recognize the com-mercial communicationrequirements of all sectors ofthe business community; torecognize free speech; toencourage the innovative useof design through Special SignDistricts. Furthermore, thisarticle is intended to protectproperty values, create a moreattractive economic and busi-ness climate, and enhance andprotect the physical appear-ance of the community. Lastly,this article is further intendedto reduce sign or advertisingdistractions and obstructionsthat may contribute to trafficaccidents, reduce hazards thatmay be caused by signs over-hanging or projecting overpublic rights-of-way, and gen-erally enhance communitydevelopment.

The draft regulations then pro-ceed to undermine nearly everyone of the code’s stated goals,by tightly limiting the commer-cial speech needed by the busi-

ness community, by censoringthe speech, by creating SignDistricts that may have theeffect of hindering innovation,and by making signs harder toread by passing motorists, thusincreasing the potential for sign-related traffic accidents.

Merely stating a lofty intent isnot sufficient to shield a cityfrom legal challenge as a resultof the actual content and restric-tions contained within the code.The city has the burden of proofto show the regulations are nar-rowly crafted to accomplish thestated goal(s), and that they will,in fact, accomplish it.

The draft code further states:

Signs containing expressionswhich are protected by theFirst Amendment of the UnitedStates Constitution are permit-ted in all zoning districts. Thepermitted height and area ofsuch signs must be in accordwith the underlying zoningdistrict regulations. Under nocircumstance will additionalfree-standing or buildingmounted signs be permittedbecause an establishment hasopted to use their permittedsignage as free speech.

Apparently the County wasunaware that commercial speechenjoys protection under the FirstAmendment, and that reviewingthe content to determinewhether the speech was politicalor commercial was an act of

prior restraint1 (see the LegalConsiderations in SignRegulation section of this book).

Using Signs as aTool to AccomplishPublic Policy Goals

Through planning, cities seek toaccomplish a number of goals:ensure economic vitality and ahealthy tax base, enhance aes-thetics, protect the public’s safe-ty, guarantee inclusiveness,reduce urban sprawl and urbandeterioration, and create a senseof community, or “sense ofplace.” The following chapterswill show how signage is inte-gral to meeting each of thesegoals and how the sign code canbe written so that it recognizesthe advantages offered by cre-ative signage and utilizes thoseadvantages to further the goalsof the city.

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1. One way a city can foreclose a sign user from claiming they should have additional sign area for commercial messages because theyhave devoted their existing sign area to non-commercial messages is by ensuring that all sign users have a right to display both permanentand temporary signage. That way, the business user can display a political or personal message without replacing its commercial mes-sage.

be written to ensure that it canbe designed in such a way that apermit is a relatively simplematter.

We have laid out the assump-tions on which a benefit-costanalysis should be based, dis-cussed biases and stakeholders,and examined some of the histo-ry of signage and its value to thebusiness. Next we will examinethe public policy issues involvedin writing a sign code that isconsistent with the law andrespectful of the Constitution,and that advances the legitimategoals of the community.

Rationale andBenefit-CostAnalysis

In the regulation of signs, theextent of any benefit-cost analy-

sis is usually suggested in thePurpose, Scope and Intent sec-tion of the sign code. This sec-tion of the code usually statesthe city’s rationale for adoptingthe regulations, but the code thatfollows typically is inadequateto ever reach the goals it wasintended to accomplish. Its con-tents should be determined byelected officials and should pro-vide the direction to be followedin the drafting of the ordinance.Code writers should then findexperts who can help themdetermine how to realize thegoals set out by the elected offi-cials. Those experts should beexpected to produce credibleresearch to prove that the pro-posed regulations can reason-ably be expected to achieve theintentions of the elected offi-cials. (The Scope section of asign code explains what will be

regulated, and must be carefullycoordinated with the Definitionsection. If definitions are notcarefully crafted, the code maywell have unintended conse-quences and regulate morebroadly than intended.)

This section sets out what a cityproposes to accomplish byenacting the code. It ought toprovide the motivating factorsfor drafting the code, rather thanserving as an afterthought. If acity sets out from the beginningto enhance the economic vitalityof its business district, it will notend up with a code that restrictsits businesses’ ability to speak topotential customers. If a city’sintent is to increase driver safe-ty, it will not end up with a codethat makes signs so small theycannot be seen by drivers intime to respond safely and

Purpose, Scope and Intent

The safety implications of an electronic message center should not be any different whether itdisplays a feel-good noncommercial message, a commercial message, or a political message.