Tag: Signs and billboards

Seventh Circuit follows SCOTUS lead, upholds validity of distinction between on- and off-premises signs

Gary Taylor

by Gary Taylor

Adams Outdoor Advertising v. City of Madison, Wisconsin
Seventh Circuit Court of Appeals, January 4, 2023

Adams Outdoor Advertising (AOA) owns billboards throughout the Midwest, including 90 in Madison, Wisconsin. Like a majority of cities Madison adopted a sign ordinance to promote traffic safety and aesthetics. It comprehensively regulates “advertising signs,” which is defined under the ordinance as any sign advertising or directing attention to a business, service, or product offered offsite; in other words, a sign that advertises something unrelated to the premises on which the sign sits. The construction of new advertising signs has been banned under the Madison ordinance since 1989. Existing advertising signs were allowed to remain but cannot be modified or reconstructed without a permit and are subject to size, height, setback, and other restrictions. In 2009, Madison amended its sign ordinance to prohibit digital displays. In 2017, the definition of “advertising sign” was amended to remove references to noncommercial speech. Several of these amendments spurred lawsuits against Madison by AOA which are not relevant to the present case. As the ordinance now stands, the term “advertising sign” is limited to off-premises signs bearing commercial messages.

AOA initiated the present litigation based on the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert. Although the distinction between on-premises and off-premises signs was not at issue in Reed, AOA argued that, under Reed, any ordinance treating off-premises signs less favorably than other signs is a content-based restriction on speech and thus is unconstitutional unless it passes the high bar of strict scrutiny. The district court disagreed and applied intermediate scrutiny. Relying on the Fifth Circuit case of Reagan National Advertising v. City of Austin AOA appealed the district court ruling. When the U.S. Supreme Court agreed to take up the Austin case the Seventh Circuit delayed ruling on the AOA v. Madison case pending the outcome of Austin. As readers of this blog know, the U.S. Supreme Court used the Austin decision to clarify that nothing in Reed altered its earlier precedents applying intermediate scrutiny to billboard ordinances and upholding on-/off-premises sign distinctions as ordinary content-neutral “time, place, or manner” speech restrictions.

For time, place, and manner restrictions to be valid they need only be narrowly tailored to serve a significant governmental interest.” It has been established through countless cases that traffic safety and visual aesthetics are significant governmental interests. AOA nonetheless argued that the Madison ordinance failed intermediate scrutiny because the city failed to provide empirical evidence linking billboards to aesthetic or safety-related harms. Citing earlier precedent, the Seventh Circuit stated that “billboards, by their very nature…can be perceived as an esthetic harm” and the city “need not try to prove that its aesthetic judgments are right.” Likewise, the connection between billboards and traffic safety is too obvious to require empirical proof. “It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it.”

The Seventh Circuit affirmed the district court’s dismissal of AOA’s claim.

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US. Supreme Court upholds distinction between on- and off-premises signs

Gary Taylor

by Gary Taylor

City of Austin, TX v. Reagan National Advertising of Austin
United States Supreme Court, April 21, 2022

The city of Austin, Texas regulates off-premises signs differently than on-premises signs. At the time this dispute arose Austin’s sign code prohibited construction of new off-premises signs. Existing off-premises signs were grandfathered, but could not be altered in ways that increase their non-conformity. Reagan National Advertising (RNA) sought permits to digitize some of its billboards and was denied. RNA sued, claiming the differential treatment of off-premises signs from on-premises signs (on-premises signs were allowed to be digitized) violated the First Amendment. The District Court held that Austin’s code provisions were content neutral under Reed v. Town of Gilbert and therefore did not violate the First Amendment. The Fifth Circuit Court of Appeals found the distinction to be content-based because the sign’s message must be read to determine the distinction between on- and off-premises signs, and therefore did violate the First Amendment. Austin appealed to the U.S. Supreme Court.

The Supreme Court ruled that the on- versus off-premises distinction was facially content neutral and therefore did not violate the First Amendment. Reed held that a regulation of speech is content based if it “targets speech based on its communicative content”; that is, if it applies to particular speech because of the topic discussed or the idea or message expressed. The Fifth Circuit’s interpretation of Reed – that a sign regulation cannot be content neutral if you have to read the sign to understand how to regulate it – is “too extreme” an interpretation. Unlike Reed, Austin’s sign code does not single out any topic or idea expressed for differential treatment; the message matters only insofar as it informs the sign’s location. In this respect, the on- vs. off-premises distinction is more like ordinary time, place or manner restrictions, which do not require the application of the strict scrutiny standard. Furthermore, the Supreme Court has previously validated distinctions between on- and off-premises signs as being content neutral. Reed did not overrule those cases.

Justice Thomas authored a dissent joined by Justices Gorsuch and Barrett. He asserted that the Fifth Circuit correctly interpreted Reed. The Austin code discriminates against certain signs based on the message they convey. This is not changed because the restriction depends on a content neutral factor: the sign’s location. A code enforcement official must not only know where the sign is located, but also what it says.

Suppose a sign [in a storefront window] says “Go To Confession.” After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign conveys a permissible “on-premises” message. If not, the sign conveys an impermissible off-premises message.

Justice Thomas contends that the majority “misinterprets Reed’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard.”

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Empirical evidence may not be necessary for time, place, and manner regulations on signage

ejchr

by Eric Christianson

Luce v. Town of Campbell
(Seventh Circuit Court of Appeals. September 22, 2017)

Interstate 90 runs through the town of Campbell, Wisconsin where it is crossed by two streets and a pedestrian overpass.

Gregory Luce and Nicholas Newman, two members of the local Tea Party, chose to use the pedestrian overpass to promote their views. With their group, they held American flags along with banners and signs messages such as “HONK TO IMPEACH OBAMA.” This led the Town’s legislature to enact an ordinance forbidding all signs, flags, and banners (other than traffic-control information) on any of the three overpasses, or within 100 feet of the end of these structures.

Complicating this case is the fact that the local police chief, Tim Kelemen, and the Tea Party protesters escalated the conflict. The members of the Tea Party group posted videos and messages online. One video showed police removing a protestor for unfurling an American flag.

The police chief responded by posting the name and email address of one of the protestors on same-sex dating and pornography websites. Kelemen also posted comments on the local newspaper’s website accusing that protestor of failing to pay his property taxes and other debts and asserting that his car was about to be repossessed. When this behavior was revealed, Kelemen resigned his post as police chief and was prosecuted for “unlawful use of a computerized communication system.”

In this case the plaintiffs considered the actions of the police chief to have been retaliation by the city for their speech. However the court found that Kelemen’s vigilante actions were private in nature:

The court concluded that Kelemen was not engaged in state action when “messing with” Luce and that the First Amendment therefore did not apply (for it deals only with governmental conduct). Acting as a vigilante is not part of a police officer’s job. Kelemen did some of the dirty work while on duty and used an office computer for some posts. But he did not use official information or privileged access to information. All of the facts he gathered and disclosed about Luce, such as his physical and email addresses, were available to the general public. Anyone else could have done exactly what Kelemen did.

While Kelemen’s actions were not “state action” the court does say that his actions undermine his credibility as a witness stating the dangers presented by signage on the overpass. While one photograph of a car, which had stopped to take a picture, was shared at trial, without Kelemen’s testimony there was no other evidence to prove this law advances a “significant governmental interest.”

However, the court asserts that case law shows that reasonable, content-neutral, time, place, and manner restrictions on speech have not required empirical evidence to pass constitutional muster. As long as the legislatures assertions are reasonable, “the Court “hesitate[s] to disagree with the accumulated, common-sense judgments of local lawmakers.” Novel signs do attract more attention than fixed billboards. The City Council does not need a specific double-blind study to support that fact in this case.

A regulation of the sort the Town has adopted rests on a belief that overhead signs and banners will cause at least some drivers to slow down in order to read what the banners say, and perhaps to react to them (say, by blowing the car’s horn in response to “HONK TO IMPEACH OBAMA”). Stopping to take a picture is just an extreme version of slowing down. Reading an overhead banner requires some of each driver’s attention, and diverting attention—whether to banners or to cell phones and texting—increases the risk of accidents. This effect is well established for cell phones and texting and is the basis for legislation by many jurisdictions, uncontested in court as far as we are aware, though talking and texting are speech.

It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it. When one car slows suddenly, another may hit it unless the drivers of the following cars are alert—and, alas, not all drivers are alert all the time

The court did remand a portion of the law which bans all signage within 100 feet of the overpasses including those which would not be visible to drivers on the interstate.

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Wisconsin statute regulating parking signs preempts local ordinance limiting “off premises” signs

Gary Taylor

by Andrea Vaage

City of Eagle River v. Slusarczyk
Wisconsin Court of Appeals, July 7, 2015

Mark Slusarczyk, owner of Traveler’s Inn, posted a sign in his parking lot which forbid customers of the neighboring Synergy Salon and Spa from using the lot. The sign read:

PRIVATE PROPERTY NO TRESPASSING!
TRAVELERS INN GUESTS
PARKING ONLY
DO NOT BLOCK DRIVEWAY ANY TIME
NO! SYNERGY OR THEIR RUDE GUESTS
PROHIBITED THANK YOU

Slusarczyk was cited for violating section §106-683 of the Eagle River Zoning Ordinance, which allows off-premises signs after procuring a conditional use permit. The City contended that Slusarczyk’s sign promoted another business, and therefore was an off-premises sign, defined under the Eagle River Ordinance as “a sign which directs attention to a business, product, service, or entertainment not conducted, sold or offered upon the property where such sign is located.” A trial was held on November 5, 2014 where the trial court determined that the sign directed attention to the Synergy Salon and Spa and therefore constituted and off-premise sign. Slusarczyk appealed to the Wisconsin Court of Appeals.

The primary question before the Court was whether the City’s ordinance conflicts with a preemptive state statute. Preemption occurs when a local ordinance comes into conflict with a state statute purporting to regulate the same matter. Both the legal interpretation of the town’s ordinance and the state statute were reviewed de novo.

Wisconsin state law provides for traffic regulations, including a section that authorizes signs permitting or prohibiting parking.  Wis. Stat. § 346.55(4) provides that “Owners or lessees of public or private property may permit parking by certain persons and limit, restrict or prohibit parking as to other persons if the owner or lessee posts a sign on the property indicating for whom parking is permitted, limited, restricted or prohibited.”

Slusarczyk contended his sign clearly fell within the scope of the state statute.  The City argued, on the other hand, that “Wis. Stat. § 346.55(4) permits the sort of sign Mark Slusarczyk put up in this matter[, and] City of Eagle River Ordinance § 106-683 also permits the sort of sign Mark Slusarczyk put up in this matter, as long as a conditional use permit is first granted for the sign.”  Citing the 2008 Wisconsin Supreme Court case of Town of Rhine v. Bizzell, the Court found, that “[e]ven though conditional uses may be authorized pursuant to the ordinance, that does not render them uses as of right.” Because a preemptive state statute grants Slusarczyk the right to indicate for whom parking is restricted or prohibited on his property, the City of Eagle River cannot restrict that right by requiring Slusarczyk to first obtain a conditional grant. The Court found that the City of Eagle River ordinance conflicted with the state statute allowing for signs which specifically prohibited certain persons and was therefore preempted.  The City cannot restrict this right by requiring a CUP. The judgment of the trial court was reversed.

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An APA webinar, also on Reed v. Gilbert

Gary Taylor

Just after I posted the last message I received information about another webinar on Reed v. Gilbert, this one offered by the APA Planning and Law Division.  Information below and here:

A Sign Regulation Apocalypse? Understanding the U.S. Supreme Court’s Decision In Reed v. Town of Gilbert

July 21, 2015
1:00–2:30 p.m. EST

CM | 1.50
L 1.50
CLE credits also will be available

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast A Sign Regulation Apocalypse? Understanding the U.S. Supreme Court’s Decision In Reed v. Town of Gilbert on Tuesday, July 21st from 1:00 to 2:30 PM EST. Registration is $20 for PLD members and $40 for nonmembers.

On June 15, 2015, the U.S. Supreme Court struck down the Town of Gilbert, Arizona’s sign code. In a rare unanimous decision, all of the justices of the Court agreed that the Town’s code violated the core First Amendment requirement of content neutrality, and the majority opinion provided new insight on what it means for a regulation to be “content neutral.” The Court’s decision is expected to put thousands of sign codes at increased risk of legal challenges, which could mean increased legal costs for local governments, as well as potential negative impacts on communities’ aesthetic concerns. This program will include presentations by some of the nation’s leading scholars and practitioners on First Amendment and land use issues. Panelists will discuss the facts of the Reed case, the Court’s rationale for its decision, some of the important questions and unanswered issues stemming from the case, and some helpful practice pointers on sign code drafting and enforcement.

Speakers include Brian J. Connolly, esq. of Otten Johnson Robinson Neff + Ragonetti, P.C. in Denver, CO; Daniel R. Mandelker, esq., Howard A. Stamper Professor of Law at Washington University in St. Louis; John M. Baker, esq. of Greene Espel PLLP in Minneapolis, MN; and Susan L. Trevarthen, esq., FAICP of Weiss Serota Helfman Cole & Bierman, P.L. in Fort Lauderdale, FL.

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Webinar on the fate of sign ordinances after Reed v. Gilbert

Gary Taylor

The State and Local Legal Center in Washington, D.C. is hosting a free webinar on Reed v. Gilbert.  The National League of Cities is a co-sponsor. The information is below:

Revising Sign Ordinances After Reed v. Town of Gilbert Webinar
Wednesday August 19, 1:00PM – 2:15 PM ETD
Reserve your Webinar seat now at:
https://attendee.gotowebinar.com/register/7566733836947059201
After registering, you will receive a confirmation email containing information about joining the Webinar.

In Reed v. Town of Gilbert the Supreme Court ruled that Gilbert’s sign code violates the First Amendment. Many, if not most, communities must now revise their sign codes. Most sign codes apply different rules to different categories of signs based on content, which the Supreme Court now generally prohibits. Discuss the practical implications of this case for local governments with John M. Baker, Greene Espel.

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US Supreme Court finds local sign ordinance an impermissible content-based restriction on speech

Gary Taylor

by Gary Taylor

Reed v. Town of Gilbert
United States Supreme Court, June 18, 2015

Gilbert, Arizona adopted a comprehensive sign code governing outdoor signs.  It identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions.  The Sign Code generally prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs from the permitting requirement.   Three of those 23 categories were relevant to the litigation before the Supreme Court:

  • Political signs – defined as signs designed to influence the outcome of an election, may be up to 32 square feet and only displayed during an election season.
  • Ideological signs – defined as signs communicating a message or idea that do not fit in any other sign code category, may be up to 20 square feet and have no time restrictions.
  • Temporary directional signs – defined as signs directing the public to a church or other qualifying event, are limited to 6 square feet, no more than 4 may be on a single property at the same time, and may be displayed no more than 12 hours before, and 1 hour after the event.

Good News Community Church (Church) is a small congregation that meets in various temporary locations in Gilbert on Sunday mornings.  The Church posted signs early each Saturday morning bearing the Church name and the time and location of the next service.  The signs were not removed until around midday Sunday.  Gilbert cited the Church for violation of the Sign Code, for failing to abide by the time restrictions for temporary directional signs and for failing to include an event date on the signs.  The Church appealed the citation and lost, brought suit in federal district court and lost, and lost on appeal to the U.S. 9th Circuit Court of Appeals.  The 9th Circuit ultimately concluded that the Sign Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.  The Church appealed to the U.S. Supreme Court.

Unlike the lower courts, the U.S. Supreme Court found the Sign Code to be a content-based regulation of speech.  It defines the categories of temporary, political and ideological signs on the basis of their messages and then subjects each category to different restrictions.  The restrictions thus depend entirely on the sign’s communicative content.  The 9th Circuit’s conclusion that the regulation was not based on a disagreement with the message conveyed “skips the crucial first step in the content-neutrality analysis: determining whether the law is neutral on its face.  A law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motives, content-neutral justification, or ‘lack of animus toward the ideas contained’ in the regulated speech….In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.”

The 9th Circuit also erred in concluding that the Sign Code was content neutral because it does not mention any idea or viewpoint, let alone single one out for differential treatment.  The Supreme Court noted that while government discrimination among viewpoints, or based on the opinion or perspective of the speaker is a more blatant and egregious form of content discrimination, it is also discriminatory when government prohibits public discussion of an entire topic.  Gilbert’s Sign Code gives ideological messages more favorable treatment than messages concerning a political candidate, which in turn are give more favorable treatment than messages “concerning announcing an assembly of like-minded individuals.”  “That is a paradigmatic example of content-based discrimination.”

The 9th Circuit’s conclusion that the Sign Code made only speaker-based and event-based distinctions was also in error.  The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. “If a local business, for example, sought to put up signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church.”  Besides, speech restrictions based on the identity of the speaker are all too often simply a means to control content.

Having determined that the Sign Code was content-based and thus subject to strict scrutiny, the Supreme Court went on to conclude that the Sign Code did not pass Constitutional muster.  Gilbert did not demonstrate that the Code’s differentiation between the various types of signs being discussed furthered a compelling governmental interest.  Gilbert cannot claim that placing strict limits on temporary directional signs is necessary to beautify the town when other types of signs create the same problem.  Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs.

The Supreme Court further observed:

Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “absolutist” content-neutrality rule would render “virtually all distinctions in sign laws . . . subject to strict scrutiny, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes.
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Spacing restrictions on digital billboards do not violate First Amendment

by Rachel Greifenkamp

Hucul Advertising, LLC v. Charter Township of Gaines

(Federal 6th Circuit Court of Appeals, February 5, 2014)

Hucul Advertising, LLC applied for permission to construct a billboard in the Charter Township of Gaines, MI. The application was denied by the Township on the ground that the billboard would violate Chapter 17 of the Gaines Township Zoning Ordinance. At the time, the ordinance permitted billboards only on property that was adjacent to the M-6 highway, and Hucul’s property did not satisfy the adjacency requirement. Hucul Advertising then applied to build a digital billboard on the same property. That application was also denied, both because of the adjacency requirement, and because the proposed digital billboard would be located within 4,000 feet of another digital billboard, which would also be a violation of the ordinance. Hucul then applied to the Zoning Board of Appeals (“ZBA”) for relief seeking approval to install the digital billboard, which the ZBA denied. The Township later amended the ordinance to require that any proposed billboard be built within 100 feet of the M-6 and to clarify that, in order for a parcel to be “adjacent” to the M-6, it must “abut and have frontage on the M-6.”

Hucul challenged the ZBA decision claiming that the ordinance violated the First Amendment, claiming that the requirement of 4,000 feet between billboards is an impermissible restriction on commercial speech in violation of the First Amendment, that the Township treated land adjacent to public property differently from land adjacent to private property in violation of Equal Protection, and that Hucul’s civil rights by enforcing the ordinance. The Township removed the case from state court to federal district court. The district court held that the 4,000-foot spacing requirement constituted a valid “time place, and manner” restriction on speech and did not violate the First Amendment, and also dismissed the other claims.

The Sixth Circuit Court of Appeals agreed that the “time, place, and manner” test was appropriate in this situation.  Hucul argued that the Central Hudson test for the regulation of commercial speech was the appropriate test; however, the Court recognized that the Township’s regulation did not distinguish between commercial and non-commercial billboards.  in applying the “time, place and manner” test the Court affirmed that aesthetics and traffic safety are significant interests that warrant government regulation.  The Court refused to invalidate the 4,000 foot spacing requirement, stating that just because state law would permit a lesser spacing requirement, evidence presented in district court supported a greater spacing for digital billboards because their increased visibility and changing copy make them greater distractions to motorists.  Finally, the regulation leaves open ample alternative avenues of expression because the regulations do not prohibit handing out leaflets or public speech in this or other locations.  The Court of Appeals affirmed the district court decision in favor of the Township.

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Addition of third support post did not cause billboard to lose nonconforming use status

by Rachel Greifenkamp

Lamar Central Outdoor, LLC v. State of Wisconsin Department of Transportation

(Wisconsin Court of Appeals, February 6, 2014)

Lamar Central Outdoor Advertising owns a sign located along Interstate highway 39/90/94 in the Town of Dekorra. On March 18, 1972 WIS. STAT. §84.30 became effective. This statute generally prohibits construction of signs along state or interstate highways subject to specified exceptions; however, because the sign in question was in existence before the statute was enacted it was granted nonconforming status. Section 84.30(5)(bm) also provides that if a lawful nonconforming sign is enlarged, replaced, relocated, or if additional signs are erected, the sign loses its lawful nonconforming status and is subject to removal. In November, 2010 the Wisconsin Department of Transportation (DOT) ordered Lamar to take down the sign because modifications had been made to the support structure. The DOT said that a third wooden support beam had been added to the sign along with several other modifications. The DOT argued that this modification constituted a substantial change to the structure, causing the sign to lose its legal nonconforming status.

The Division of Hearings and Appeals (DHA) heard the case and determined that the addition of the third wooden post constituted a substantial change but the other modifications did not. The DHA concluded that the sign had therefore lost its legal nonconforming status. A circuit court later reversed the decision made by the DHA because the addition of the third wooden post did not constitute a substantial change.  The DOT appealed the ruling and the Wisconsin Court of Appeals affirmed the circuit court ruling in favor of Lamar. The Court of Appeals decided that the support post constituted maintenance and repair because it did not enlarge or expand the sign, nor change the look or appearance of it, and did not exceed fifty percent of the replacement value of the sign.  “From all that we can glean from the record [the third post was] added to stabilize the sign structure, a maintenance and repair function.”  As a result, the sign did not lose its nonconforming status.

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Wisconsin county allowed to regulate billboards under general zoning authority, even when town specifically regulated billboards

Gary Taylor

by Victoria Heldt

Adams Outdoor Advertising, L.P., and Town of Madison v. County of Dane
(Wisconsin Court of Appeals, February 2, 2012)

Adams Outdoor Advertising, L.P. (Adams) wanted to construct a billboard on a highway located in the Town of Madison (Town) and within Dane County (County).  Adams obtained permits to build the billboard from the Town and from the Wisconsin Department of Transportation, but not from Dane County.  In order to clarify whether a permit from the County was also necessary, Adams brought a declaratory judgment action in circuit court.  The trial court concluded that the Town’s billboard ordinance preempts the County’s billboard ordinance, so a permit from the County was unnecessary.  The County appealed.

The Court analyzed the various layers of zoning laws governing the area in order to decide whether a billboard in the Town of Madison is subject to both the Town’s zoning ordinance regulating billboards and to Dane County’s similar ordinance.   The County claims it has the authority to regulate billboards pursuant to Wis. Stat. §59.69 (4), which is a broad, general county zoning enabling act.  Wis. Stat. §59.70 (22) is a more specific statute stating that the County has the authority to regulate billboards built next to highways that the County maintains.  Since the highway next to the billboard in question is maintained by the Town, it does not apply to this case.  Wis. Stat. § 60.23 (29) grants authority to the Town to regulate billboards located along highways maintained by the Town or by the County in which the town resides.  The Court identified two issues:  whether the Court has authority to regulate billboards under its general zoning authority (Wis. Stat. §59.69) and, if so, does a Town ordinance preempt any such authority.

Within Wis. Stat. §59.69 the County points to Section 4, which authorizes it to regulate “the location of buildings and structures.”  The Court looked to the Webster’s Dictionary definition of a structure as “something constructed or built…something made up of more or less interdependent elements or parts.”  It also cited the phrase “billboards and other similar structures” which can be found in several zoning statutes as evidence that a billboard is considered as structure.  The court confirmed that a billboard fit the definition of a structure.  Consequently, the County does indeed have the authority to regulate the construction and maintenance of billboards under Wis. Stat. §59.69.

As to the question of preemption, the Court concluded that the Town ordinance does not preempt the County ordinance.  It noted that the Town had indeed approved the County’s ordinance and, therefore, it was in effect within the Town’s boundaries.  Additionally, nothing within the Town’s ordinance explicitly prohibits County regulation of billboards.   Although preemptive languages does exist within the statutory scheme for regulating billboards, it applies only to ordinances pursuant to Wis Stat. §59.70(22).  Dane County draws its billboard regulation power from Wis. Stat. §59.69.  The Court concluded that the Town’s ordinance does not preempt the County’s ordinance and acknowledged that “the County and the Town share regulatory authority over billboards located on property that abuts the subject highway maintained by the Town.”

The Court addressed Adams’ main arguments and rejected them all.  First, Adams claims that the County does not have authority to regulate billboards under Wis. Stat. §59.69 because the statute makes no mention of signs or advertisement of any kind.  The Court referred to its previous discussion of the definition of a structure.  Next, Adams argues that, since Wis. Stat. §59.70 and Wis. Stat. § 60.23 are more specific to billboards, they should prevail over the general zoning enabling statutes.  The Court replied by noting that this rule of statutory construction normally applies when two statutes conflict.  Here, the two statutes do not conflict, but rather allow for shared regulatory authority.  Third, Adams purports that the County manipulated its general zoning ordinance in order to avoid regulating billboards under the more specific Wis Stat. §59.70.  The Court dismissed that claim for lack of evidence.  Lastly, Adams argued that “the County’s interest in promoting aesthetics is not sufficient to warrant its exercise of authority over billboards.”  In response, the Court notes that the statute provides more concerns than simply aesthetic concerns, mainly public health and the safety of structures.  The Court concluded that the County does have authority under Wis. Stat. §59.69 to regulate billboards and that the Town’s billboard regulation ordinance does not preempt that authority.  It reversed the circuit court’s decision and ruled in favor of Dane County.

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