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BoA denies digital billboard end run

Wednesday, November 1, 2017 by Elizabeth Pagano

Another attempt to legalize digital billboards in Austin was shot down last week. This time, the Board of Adjustment was the arena for a battle that has been going on in Austin for years.

Under current city regulations, billboards are not allowed, though existing billboards can remain in place as nonconforming signs. Over the years, attempts to upgrade the static vinyl billboards to digital displays have come before City Council on several occasions and there is currently a petition to allow digital billboards in circulation.

In this latest chapter of the fight, Reagan National Advertising filed an appeal challenging staff’s decision to reject a permit that would allow it to modify a billboard with a new digital display. Board of Adjustment members voted unanimously to deny the appeal and uphold staff’s decision despite testimony that the city’s decision denied the company’s First Amendment rights.

“Like every layperson, I’ve always wanted to hear and preside over a constitutional free speech case,” said Board Member Rahm McDaniel. “But I guess I’m not following how that is before us here.”

Christopher Johnson, who is with the city’s Development Services Department, explained that the city had received 11 applications to convert billboards to digital signs in June. Johnson said that change was subject to a provision of the code that prohibits “any modification that changes the method or technology used to convey the message” of signs. He said staff found that the switch from vinyl to digital dynamic displays was a change in technology and the applications were denied.

Husch Blackwell’s Micah King represented Reagan National Advertising for the appeal. He asked the board to consider whether the current sign regulations regulate the content of the signs, which is protected as free speech. To help make his point, he presented a timeline that showed the day after Reagan submitted its applications, Council began the process of changing its sign regulations to address the “constitutional defects” that referenced content of the signs, ultimately adopting new regulations on Aug. 17.

“Unfortunately those amendments to the sign regulations came too little and too late for Reagan and that is something that needs to be addressed,” said King, who made several arguments that the city’s current regulations still regulated content, despite this summer’s changes.

King also argued that there was nothing about the method of conveying the message that was nonconforming, so changing the conveyance would not make it more nonconforming.

Assistant City Attorney Brent Lloyd told the board that staff had correctly applied the city code that, for any nonconforming sign, prohibits changes to technology. “Reagan’s signs were not digital when they were installed, and they cannot become digital now, because that would involve a change in technology,” he said.

As for the constitutionality of the city’s sign regulations, Lloyd said it was sound. He said the changes to the ordinance in August were made to correct problems raised by a recent court decision, specifically about how the city regulates noncommercial and political signs.

Lloyd also addressed the timing of the changes. “It’s not all about Reagan,” he said. “It’s about the city of Austin doing what cities around the country have done.”

King said the rule about changing the method by which a billboard company could convey messages only applies to off-premise nonconforming signs. That distinction, he argued, was based on content by merit of distinguishing between the two types of signs.

King also argued that the regulations affect the effectiveness of speech taking away a right to communicate through modern technology. “So even though you are still able to communicate in some way on the billboard, maybe the impact of that speech would be affected,” he said. “Based on the current regulations, we are limited.”

Board members remained unconvinced, voting to deny the appeal with limited discussion.

“I’m having a hard time, myself, finding that this is a free speech discussion,” said Chair William Burkhardt. “And I also have a hard time finding that this is a content discrimination discussion.”

Photo by Mack Male made available through a Creative Commons license.

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