Posted by: Patricia Salkin | August 12, 2018

Recent Decisions Involving Digital Signs

This post was authored by Amy Lavine, Esq.

Over the past few months we’ve noticed quite a few cases involving digital signs and the various issues involved in defining and regulating them. Here’s an overview, in case you missed any of the blog posts covering these cases:
• Adams Outdoor Adver. Ltd. P’ship v. City of Fitchburg, 2018 WL 674007 (Wis. App. 2/1/18), held that a sign was an “alternating” sign where it was proposed to change from one image to another no more than once every two minutes. The court explained that the plain meaning of “alternating” encompassed this frequency of change, and the fact that it overlapped somewhat with another provision relating to “flashing” signs didn’t render the city’s interpretation unreasonable. As the court noted: “To conclude that the word ‘alternating’ cannot mean changing in message regardless of time interval, despite its common and plain meaning, would require adding words—that ‘alternating’ means changing in message at some interval of time—that were not in the ordinance.””
• 92 Montvale, LLC v. Zoning Board of Appeals of Stoneham, 93 Mass. App. Ct. 1104 (3/30/18), similarly found that a sign was a prohibited “intermittent” or “flashing” sign where it would display different messages every eight to ten seconds. The ordinance in this case defined flashing signs as those having “an intermittent or sequential flashing light source” and the board had interpreted this to mean that each time the display changed it would essentially constitute a change from one lighted image to another, which would therefore qualify as a flashing light source under the ordinance. This was a reasonable interpretation of the regulations, the court found, and it was also consistent with the ordinary meaning of “intermittent” and “flashing.”
• Bel-Air Nursing & Rehab Ctr., Inc. v. Town of Goffstown, 2018 WL 264091, 2018 U.S. Dist. LEXIS 239 (D.N.H. 1/2/18), held that a challenge involving the denial of variance approval for an electronic sign was barred by res judicata. Even if the state courts hadn’t already heard and decided the claims brought by the property owner, which operated a nursing home on the site, the New Hampshire federal district court held that the nursing home’s equal protection and due process challenges would have failed on the merits. This was because the nursing home failed to prove that it was similarly situated to other applicants for electronic signs that were treated more favorably, and because the term “internally illuminated” was not unconstitutionally vague.
• Antioch Community Church v. Board of Zoning Adjustment, 543 S.W.3d 28 (Mo. 4/3/18), held that there were no practical difficulties that would justify a variance for a church to install a digital display on an existing sign located in front of its building. The Missouri Supreme Court affirmed the decision of the board of zoning adjustment, which denied the variance relief sought by the church. The church had claimed difficulties of changing the old sign’s manual lettering in bad weather, wanting a sign with bigger and more easily read type in order to attract more membership, and the fact that it had already spent substantial amounts of money installing a new digital display. These circumstances were all merely inconveniences, however, not practical difficulties, and they arose because of personal circumstances and preferences rather than due to any unusual or peculiar features of the property itself.

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