Billboard Consent Agreement

Analysis of Billboard Consent Agreement

This analysis is based on a copy of the agreement received August 09, 2006, which did not include the exhibits referenced in the agreement.

Background
Philadelphia City Council, in its role as the legislative body of government and in response to testimony presented by citizens at public hearings, has passed several laws regulating outdoor advertising signs. Philadelphia City Code Chapter 14-1604 refers to the outdoor advertising laws passed unanimously by City Council in 1991. The law includes restrictions of size, height, and location. For example a billboard cannot be located within 500 feet of another licensed billboard, and is prohibited within 330 feet of residential property, within 660 feet of schools, parks, playgrounds, historic areas, along bridges or within 660 of the ingress or egress of highways. (Prior laws prohibited rooftop signs in neighborhood commercial zones and along the Vine Street Parkway)

City Code Chapter 9-602
In 2005, at the request of the Street Administration, City Council passed City Code 9-602 which was written to clarify definitions of various types of outdoor advertising signage and set new license fees. The law also required periodic engineering reports to assure the safety of these steel structures some of which can be over a hundred feet in the air. The annual license fee of $650 a sign face would be used to improve enforcement of the billboard codes, an issue strongly endorsed by community groups long frustrated by the billboard industry’s failure to comply with the law. Since license fees cannot be used to generate income, the $650 a sign face was carefully calculated by L&I to assure that the monies were needed and would be spent on this purpose. 9-602 is the subject of the lawsuit based on the industry’s accusation that the license fee violates free speech.

The billboard industry routinely sues municipalities across the nation on the same grounds and those choosing to stand up to the industry have won. Philadelphia’s City Solicitor elected to settle the matter and to the benefit of the industry. While removing a competitor’s 700 illegal 8-sheet billboards, Clear Channel, Steen and Viacom have not agreed to remove their own illegal signs. Rather, they have secured an agreement that will “certify” and license these signs, many of which are located in gateway areas and commercial corridors. This agreement not only rewrites 9-602 but would override the Zoning restrictions of 14-1602, legislation passed by elected representatives. The Law Department seems to have expanded its role from law enforcer to law maker. This is a dangerous precedent to the democratic process allowing the law department to dramatically change an existing law through a settlement agreement to a lawsuit filed by a disgruntled party.

Permitted Billboards
A permitted billboard is one that applied for permission to erect a billboard and met the zoning requirements. After securing the zoning permit, an owner must pay an annual license fee. At one time an owner could secure a permit over the counter for certain locations but as time went on, the lawmakers recognized the negative impact billboards were having on the city’s visual character and economic viability and passed laws restricting their placement. Many billboard companies never bothered to secure the permits when they could have and when a new law was introduced in 1990 to regulate billboards, they scrambled to legitimize those signs. But, in 1991, despite intense lobbying efforts by the billboard industry Council passed a law which did not legalize the list of 1500 self reported unpermitted billboards submitted by billboard companies.

Non-conforming signs
Permitted and legal billboards located in now protected areas i.e. near homes, schools etc., were considered “non-conforming outdoor advertising signs”. These billboards could remain standing but could be maintained only with minor repairs.

Background History
In 1990, Billboard owners, hoping to get their illegal signs grandfathered in, submitted a combined list of over 1500 of their illegal billboards. This self-reported list included PNE’s 8-sheets which at that time were owned by Chesapeake.

Since passage of the law (14-1604) requiring removal of the illegal signs or face paying a fine of $100 a day, billboard companies continued to collect revenue and have even rebuilt and enlarged non-conforming signs. Community groups have reported over 50 violations to L&I who properly sent violation notices. The Law Department continuously fails to enforce the citations, setting these cases aside for years. They have failed citizens by their lax enforcement and encouraged renegade behavior from this industry.

The City Solicitor has now signed an agreement that places the billboard industry as the decision maker regarding the legal status of its billboards

I. Statement of Purpose.
The Consent Agreement Statement notes that the Free Speech lawsuit against the City of Philadelphia alleges certain provisions of Chapter 9 Section 602 violated the 1st and 14th amendment by imposing a fee on speech. Nothing in the statement of purpose indicates Chapter 14 Section 1604 or other portions of the zoning code addressing signage were part of the suit, or violated the 1st or 14th amendment.

II. Definitions.
This section redefines sign face, potentially invalidating the sign area regulations of 14-1604(5) which are predicated on lot frontage.

In addition, the agreement’s definition of sign structure modifies the definition of structure as defined in 14-102(1) and (123), by removing “wall” from the definition of a sign structure.

III Expedited Billboard Removal Timeline:
Effective Date: August 9, 2006

Effective Period: Eight years, August 9, 2006 to August 9, 2014

Provisions of the Removal Schedule:

50% of the PNE Media billboards are to be removed by November 9, 2006
100% removal by February 9, 2007
Removal of the “third party that owns the billboards” refuses to remove all signs - Clear Channel will get additional time for removal, at a ratio of # of billboards *0.25 days. (i.e. if 400 billboards remain after Feb. 9, 2007, Clear Channel has an additional 100 business days to remove signs)
Every month, Clear Channel will provide a list of the billboards that have been eliminated.

This section also discusses liability issues in regards to injury and property damage during removal. Clear Channel holds the city and city personnel harmless from claims and liabilities, except in the case of negligence or willful misconduct by the city.

IV Certified OA Inventory
Interim Inventory: By September 9, 2006, Clear Channel, CBS Outdoor, and Steen will identify each OA sign they own in the city, stating location and number of sign faces.
Certified Inventory: By December 9, 2006, Clear Channel, Steen and CBS Outdoor will provide the city with a full inventory of their OA signs with:

address
information on structure
number of sign faces per structure or location
height – with an “understanding” that the height measurement may be in violation of the license or permit.
sign face area dimensions
photos
numerical identification
Statement that the certified location complies with Paragraph 6 of the agreement (outlining the criteria for licensing of signs without permits, that the companies have documentation of prior existence of billboards)
verification of license fee payment
verification that applicant is in compliance with 9-602(4)(e), (that applicant does not have outstanding violations or outstanding court orders for removal, for which all legal appeals have been exhausted.)
nameplate on billboard
current in tax payments, or in agreement to pay, or challenging in court
company officer statement

This list will be resubmitted and updated every March.
For recordkeeping, the companies must have documentation for the billboards in the inventory, and make that available to the department for inspection. They may require the department to travel to their office to look at the records, and may remove information that they (the companies) do not wish to provide as support of the certified inventory, before providing the city access to the records. There is no discussion on what avenues the city has available if the information and documentation provided is insufficient for city staff to make a reasonable determination of “certifiability”.

V. Lawful Status of Certified Billboard
All billboards on the certified list, regardless of zoning, will be legalized.

A certified billboard will lose legal status if
a) it is not on the annual certification list, or
b) it no longer complies with the (modified) 9-602(4), or
c) its size, location, height, or number of faces changes from the first certified inventory.
City and the companies will meet to resolve disputes on particular billboards. All unresolved disputes will be submitted to the Special Master for final and binding decision.

VI. Licensing of Certified OA Signs
A license will be issued to certified billboards, and a certified billboard will be found to comply with 602(4)(a), (originally requiring signs and their structures to conform with codes and have proper permits) when:

a sign was built on or after Feb. 9, 1991, and has a zoning or sign permit, variance or building permit.
a sign was built prior to Feb. 9, 1991 and there is any kind of “objective” documentation that an outdoor advertising sign of some sort existed on the property previously, and the location allowed for outdoor advertising signs at that time.

Regarding sign compliance:

Location compliance - The agreement notes that sign locations and BRT addresses may differ, and that a license cannot be denied if the billboard is not at the precise address specified by the BRT address.
Sign Size or Area compliance:

if the sign was built on or after Feb. 9, 1991, the sign face area must comply with its permit, variance or license. If it does not, it must be reduced to the permitted area within 180 days of the initial certified inventory
If the sign was built prior to Feb. 9, 1991, and is at least 336 square feet (larger than most 30 sheets), it may be 25% larger than what was allowed on the original zoning permit or variance. If it is more than 25% larger than the permitted sign face area, it must be reduced to the area specified by the permit within 180 days of the initial certified inventory.
If the sign was built prior to Feb. 9, 1991, and is less than 336 square feet (30 sheet size or smaller), and the permit specified the sign face area, then the area must conform to the permit.
If the sign was built prior to Feb. 9, 1991, and no permit or variance can be located for the sign, then the existing sign size is permitted.

Sign Height compliance:

if the sign was built on or after Feb. 9, 1991, the height may be 10 feet higher than its permitted height. If it is higher than that, it must be reduced to that 10’ higher-than-permitted height within 180 days of the initial certified inventory
If the sign was built prior to Feb. 9, 1991, and is at least 336 square feet (larger than most 30 sheets), the height must be the height that existed in 1991. In this section, the meaning of paragraph (ii) is unclear.
If the sign was built prior to Feb. 9, 1991, and is less than 336 square feet (30-sheet size or smaller), and the permit specified the sign height, then the height may be 5 feet higher than its permitted height. If it is higher than that, it must be reduced to the 5’ higher-than-permitted height within 180 days of the initial certified inventory.
If the sign was built prior to Feb. 9, 1991, and is less than 336 square feet (30-sheet size or smaller), and no permit or variance can be located, then the existing sign height is permitted, providing that the sign was not heightened after 1991.

Exhibit 3 is referenced as providing examples to clarify how these conformance issues will work. As of August 15, 2006, we do not have a copy of Exhibit 3 or the examples.

VII. Technical Clarifications

The consent agreement modifies 9-602(7) concerning inspections. Instead of having a registered engineer certify that the structure is sound and submitting those reports to the Department of Licenses and Inspections on a regular schedule, the billboard owners now will only have to have a report in their files from an engineer or materials testing laboratory indicating the mechanical fasteners to the wall or support structure are sound.

The consent agreement modifies14-2604(12) which deals with the removal and maintenance of signs designated as nuisance, unlawful or prohibited signs. While the original code notes : A prohibited sign shall be maintained in good condition, but it shall not be structurally altered so as to enlarge or extend the area or height of the sign. However, a prohibited sign shall not be reconstructed if for any reason it becomes necessary to replace the entire sign, including the sign face, the frame and any supporting mechanism, but excluding the foundation, the consent agreement provides language to allow the periodic repair or replacement of the components of the prohibited sign, including sign face, frame, and/or structure.

VIII. License Fee
The license fee structure is readily apparent, and is in place until the end of the Effective Period, which is Nov 9, 2014.

IX. Release and waiver
The only portion of the agreement that is not severable is the provisions of Paragraph III - the removal of the eliminated billboards. If legal action is commenced to contest the agreement, the collection of the permit fees and the excise tax will stop, and the removal of the eliminated billboards will stop. However, the certified inventory framework will continue, granting legal status to the certified billboards.
If the whole agreement is invalidated, the requirement for the removal of the eliminated billboards will be invalid.

Section D – language on final order, contractual agreements, and motions to dismiss case with prejudice.

Cost per billboard removed:

If there are approximately 780 PNE Media billboards remaining, the $350,000 paid by Clear Channel for removal equals $450 per sign face.