Posted by: Patricia Salkin | March 21, 2016

TN Appeals Court Upholds Permanent Enjoinment from Conversion of Billboards from Vinyl Structures into Billboards with LED Digital Displays

In 2006, Lamar Tennessee, LLC began the conversion of two of its billboards from “vinyl-faced” to “digital display” utilizing light-emitting diode (LED) technology. Before Lamar could complete these conversions, a sign inspector for the City of Knoxville issued a stop-work order on each of the billboards. A zoning inspector for the City, in her own name, subsequently filed a complaint against Lamar, seeking temporary and permanent injunctive relief prohibiting Lamar from “repurposing” the two vinyl-faced billboards into billboards featuring LED digital displays. Lamar filed a complaint against the City seeking a declaration that the two billboards were not in violation of the zoning regulations and/or that the provisions of the zoning regulations pertaining to billboards with digital displays were unconstitutional. These cases were eventually consolidated, and each party filed a motion for summary judgment. The trial court granted the City’s motion and permanently enjoined Lamar from converting the billboards at issue from vinyl structures into billboards with LED digital displays.

In 2007, the General Assembly amended the 1972 Billboard Act. Specifically, the Legislature added Tenn.Code Ann. § 54–21–122, which, in pertinent part, states that changeable message signs with a digital display that meet all other requirements to this chapter are permissible. Lamar argued that the trial court erred by failing to conclude that the City’s “ban on billboards that display messages by means of digital display is in direct conflict with state law expressly permitting such activity.” Contrary to this contention, however, the City’s zoning regulations expressly allow billboards with digital displays in the form of EMCs, i.e., signs “which use a bank of lights that can be individually lit to form copy such as words, letters, logos, figures, symbols, illustrations, or patterns to form a message without altering the sign face.” Moreover, even though the City imposes certain regulations on the use of EMCs, in particular limiting where they can be located, the court found such restrictions were well within the City’s discretion.

Next, Lamar argued that it should be permitted to expand or reconstruct its preexisting nonconforming billboards at 6739 Kingston Pike and 406B North Peters Road pursuant to “grandfather clause” exceptions. Pursuant to Tenn.Code Ann. § 13–7–208(j), the “grandfather clause” exceptions applicable to off-site signs are not available in any home rule municipality where the local legislative body has not adopted such provisions. Here, there was no indication in the record that the City has ever opted in and approved these “grandfather clause” subsections with respect to off-site signs.

Lamar next contended that the trial court erred in holding that the City’s zoning regulations did not unlawfully restrict commercial and noncommercial speech in violation of the First Amendment and Article I, Section 19 of the Tennessee Constitution. After finding that the ordinance was a content-neutral regulation, the court noted that the United States Supreme Court has repeatedly held that traffic safety and esthetics are valid justifications for regulating advertising. Additionally, the City did not outright ban all digital billboards, and Lamar had viable alternative means of communicating to the public via its vinyl billboards. Therefore, the ordinances were narrowly tailored and not overly broad. 

As to Lamar’s due process claims, the digital displays in all four examples of “similarly situated signs” were preexisting nonconforming structures that were on-site business signs, valid under the City’s 2004 zoning regulations, and approved by either the Historic Zoning Commission or the Downtown Design Review Board. The court held that while all of these signs were similar in a general sense, it would be illogical to conclude that they are “similarly situated” given the obvious differences between them. Thus, the trial court was correct in denying Lamar’s motion for summary judgment on this ground. Lamar’s overbreadth and vagueness claim was likewise dismissed since the ordinances set forth straightforward restrictions for digital displays that make sense in the overall context of the City’s zoning regulations. Accordingly, the City’s motion for summary judgment was granted.

Lamar Tennessee, LLC v City of Knoxville, 2016 WL 746503 (TN App. 2/25/2016)

 

 


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