Tuesday, January 13, 2015

Even If You Like Digital Billboards...

... you should hate Indy's proposed digital billboard ordinance.

I wanted to show an example of a City that put its community ahead of the billboard industry.  St. Petersburg, FL, and the 2012 deal they struck on digital billboards is the one example I'd like to point to today.  Gary Welsh, over at Advance Indiana, went through it's deal briefly a few weeks back, but I want to compare in some detail, their billboard deal with what is being proposed for Indianapolis.

Prop 250, written by the billboard industry and its lobbyists, will be back on the table at the January 26, Metropolitan and Economic Development committee of the City-County Council.

That proposal, unlike the St. Pete deal, has not only been written by the very industry the ordinance would regulate, it has not included any investigation of best practices nor any analysis from our professional planners in the Department of Metropolitan Development.  It's one thing to have a seat at the table, it is quite another to have them all. 

The only world view the Councillors have heard for three years is that of the billboard industry - their paid for 'science', their input on what is important for regulation, and their closed door rebuttals of points made late in the debate by the Community.

So, lets take a few minutes to compare what a vigorous public process produced, with what has happened here in Indianapolis.


Swapout Ratio and Total Number of Digital Billboards

St. Pete saw 83 static billboards come down, and a conversion of 6 others to digital faces, for a ratio of 89 to 6 or over 14:1.

Prop 250 would have an equal square footage of static face come down and a conversion of one static face for a digital face, for a ratio of 2:1.  The total number of digital billboards that can go up are 'limited' to 75 in the first three years, with no more than 4 per year until all static billboards are converted or taken down - for 500-750 digital billboards total.


Digital Billboard Spacing

St. Pete -- All digital billboards must be spaced so that a driver cannot read more than one face at a time, or a minimum distance of 2500 feet in any case.

Prop 250 -- Digital billboards may be separated by no less than 500 feet.


Ad Display

St. Pete -- Each ad must be shown for a minimum of 10 seconds, there can be no sequential ads (ala the old Burma Shave ads), and there must be an instantaneous change between ads.

Prop 250 -- Each ad must be shown for at least 8 seconds, there is no ban on sequential ads (which are known to distract drivers more than other ad types), and there may be up to a 2 second delay between ads (also known to cause driver distraction).


Regulation of Light Levels

St. Pete -- They adopted the best practice of measuring and regulating the amount of emitted light, rather than reflected light.  The equipment is pricier, but it allows the light emitted to be regulated so that it appears to be as lit as a static billboard, but no more.  Using equipment and standards for reflected light, does not allow such tuning of the appearance of digital billboards.  The billboard companies must pay for the equipment and pay for the training of code enforcement officers in the proper use of the equipment.

Prop 250 -- Relies on reflected light and the lighting standards generated by the billboard industry.  There is no requirement that the billboard companies pay for the equipment and training.


Order of Removal and Conversion

St. Pete -- All static billboards used as swapped boards, must be removed before any permit is issued for any digital conversion.

Prop 250 -- The static billboard to be removed as part of the swap must be removed within 30 days of the issuance of the conversion permit.  A letter stating it has been removed must be filed.  There is no requirement that the removal be verified by Code Enforcement.


Removal of Structures and Re-permitting of Swapped Locations

St. Pete -- All structures must be removed along with the faces of static billboards counted as a swap.  There is a prohibition on reconstructing any sign removed, unless the ordinance is invalidated in Court, and then reconstruction must abide by the time formula noted below in "Legal Challenges to Law" section.

Prop 250 - There is no requirement that the pole be removed when a static face is removed as part of a swap.  There is no prohibition on the reissuance of a sign permit for any location where a static sign was removed as part of a swap.


Twenty Year Limitation on Digital Billboards

St. Pete -- After 20 years, all digital faces must be removed and converted back to static faces.

Prop 250 -- Any digital face may remain forever, and is allowed morph into any new technology that comes forward to replace the current LED standard without further public input, debate, or permits.


City-sponsored Ads

St. Pete -- The City is entitled to 1 ad slot per rotation during 12 separate 10-day periods per year to provide ads for non-profits and civic associations.

Prop 250 - There is no provision for free ad space to the City.


Future Changes to the Law

St. Pete -- If the laws change in the future, driven by new safety standards, the digital billboards will NOT be grandfathered into the old standards and will be required to meet the terms of the new law.

Prop 250 -- There is no provision for changes to local, state or federal laws and standards generated in the future due to a better understanding of safety issues.


Legal Challenges to the Law

St. Pete -- Should legal challenges to the 2012 St. Pete law be successful in Court, there will be a limit on how many static billboard may, by right, be reconstructed.  If the Court overturns the law within 5 years, only half the original static billboards may be re-commissioned.  If it takes action between years 5 and 10, only one quarter of the original billboards can come back.  And if the Court acts after 10 years, then no static billboards can come back.

Prop 250 -- There is no provision for what happens if Court action overturns the proposed Ordinance.



St. Pete -- Fines for violating the ordinance - $1000 per day for the first violation, $2500 per day for the second, and $5000 per day for the 3rd and any subsequent violation.

Prop 250 -- Does not change the current law, which appears to be $50 for the first violation in a 12-month period and $100 for the second and any subsequent violation.

There was not a single item contained in Indy's Prop 250 that was superior to the ordinance passed by St. Petersburg in 2012.  That probably is because the process used was behind closed doors and beyond the reach of any opinions other than those of the billboard industry.

Our community deserves a transparent and vigorous public process for any of our laws, especially one so important to the aesthetics of our City and the safety of our driving public.

Prop 250 should be killed off as it is not repairable and does not have any resemblance to good public policy for Indianapolis.

references: St. Pete zoning professionals' presentation to the City Council, Scenic St. Pete report on specifics passed into law, and City Council notes on the lease agreement.

Friday, January 9, 2015

Neighborhood Opposition to Digital Billboards Grows

This was posted on the Indiana Forefront blog.


I am always impressed with the folks who engage in their neighborhoods.  The amount of talent and passion is a huge resource that forever improves and invigorates Indianapolis, even if not appreciated as such from some quarters.

A perfect case in point is the coming together this past Wednesday, held at the absolutely beautiful Indiana Landmarks facility.

Representatives of 28 Neighborhood Organizations throughout Marion County braved the frigid weather to assemble and discuss Council Proposal 250.  This Council Resolution, which its  lobbyist/billboard company authors hope will lead to the legalization of digital billboards in Marion County, is still pending at the Council.  It was recently returned to the Metropolitan & Economic Development committee for further consideration, after an initial outburst of opposition erupted from Indy's Neighborhoods.

The 2 hour meeting at Indiana Landmarks included an exchange of information and discussion among the attendees.

The statement representing the overall opinions was,

"The consensus position within our coalition is that both the proposed ordinance, and the path it's traveled thus far, are unacceptable."

Official positions of individual Organizations are being taken as these representatives return to their groups and as other Organizations become aware that Prop 250 exists.

Once again, my faith in Neighborhoods is renewed, and my respect for Neighborhood leaders deepens.

Wednesday, December 31, 2014

2014 Zoning and Variance Decisions

If you could afford to file a rezoning petition for your property this year, you stood an 89% chance of having it approved.  If you could afford to file a variance petition this year, you stood an 86% chance of it being approved.


Of all 100 zoning petitions decided in 2014, 89 were approved, 2 denied, and 9 withdrawn (89% approved, 2% denied, and 9% withdrawn).

Most rezoning petitions are assigned to the Hearing Examiner, with some going to the Indianapolis Historic Preservation Commission for their first hearing.  A small number are sent directly to the Metropolitan Development Commission by the HE for their initial hearing.  Any side of a contested petition can appeal the HE's or IHPC's decision to the MDC.

The HE made 77 decisions on zoning petitions in 2014 - 68 approved, 2 denied, and 7 withdrawn - otherwise 88% approved, 3% denied, and 9% withdrawn.

The IHPC cast decisions on 11 zoning petitions in 2014 - all were approved.

The MDC held initial hearings on 7 petitions and accepted the withdrawal of 1 petition prior to hearing.  All 7 were approved.

The HE's decision was appealed to the MDC 6 times.  One was withdrawn prior to the MDC hearing it (the HE had recommended denial).  Of three petitions which the HE had recommended denial, 2 were overturned by the MDC and 1 approved.  Of two petitions which the HE had recommended approval, 1 was approved and 1 denied by the MDC.

Overall, the MDC heard testimony on 12 petitions, approving 10 (83%) and denying 2 (17%).


Of all 323 variance petitions decided in 2014, 287 were approved, 23 denied, and 23 withdrawn (86% approved, 7 % denied, and 7% withdrawn).   Looking at only those 123 petitions not on the expedited docket, 100 were approved and 23 denied - (81% approved and 19% denied).

Most variance petitions are assigned to the Boards of Zoning Appeals, of which there are three.  If a variance request is packaged with a rezoning or other type of petition that normally would be heard by the HE/MDC, then it is assigned to the HE and not the BZA.

BZA I had 111 petitions on its dockets in 2014.  71 were on the expedited portion of the docket, meaning Staff and any neighbors or neighborhood organizations recommended approval of the petition.  These are perfunctorily approved by the Board.  Additionally, 7 were withdrawn.  Of the 43 petitions for which BZA I took testimony, 29 were approved and 14 denied - otherwise 67% approved and 33% denied.

BZA II had 70 petitions on its dockets in 2014; 43 expedited, 7 withdrawn, and 20 for which testimony was taken.  Of the latter, 15 were approved and 5 denied - or 75% approved and 25% denied.

BZA III had 100 petitions on its dockets in 2014; 73 expedited, 5 withdrawn, and 22 heard.  Of those heard, 19 were approved and 3 denied - or 86% approved and 14% denied.

The HE got 34 variances; 30 approved, 1 denied, and 3 withdrawn.

The MDC got 11 variances (7 initial hearings, 3 appealed HE decisions, and 1 withdrawn).  All 7 for initial hearing were approved by the MDC.  Two of the appeals were approved and 1 denied.

This is actually better than I expected, having expected the mid-90% approval rate.  Still and all, the variances are supposed to be granted because of a hardship on the ground that sets that parcel apart from every other identically zoned parcel in Marion County.  It is hard to believe that such a standard was actually met for the number of approvals granted.

Monday, December 29, 2014

Why the BZA Got the Sullivan Hardware Decision Right

[I posted this on IBJ's IndianaForefront blog today]

On December 16, the Board of Zoning Appeals unanimously denied Sullivan Hardware's request of Variances for its property at 4838 N. Pennsylvania Street. There has been much wringing of hands and gnashing of teeth since.

The BZA got it right, though. Here's why.

Sullivan Hardware has shown little regard for the legally binding agreements they made in order to secure a Variance back in 2009, which allowed them to erect a greenhouse. In trade for the elimination of several setback, landscaping, and accessory use requirements, and the reduction of required parking spaces from 35 down to 19, Sullivan Hardware agreed to install a sidewalk on its 49th Street frontage and keep all outside storage within the new greenhouse to "visually enhance such storage". They have complied with none of their agreements, including to supply all 19 parking spaces. (For more of the zoning history at this location, I would direct you to Gary Welsh's post on Advance Indiana.)

Sullivan Hardware was issued a Violation notice back in August of 2013, listing 8 infractions. In September of that year, 4 Citations were issued. Four months later, with none of the fines paid and nothing done to clear the Violations, the City filed legal action against the 4838 N. Pennsylvania property.

It wasn't until April of 2014, that Sullivan Hardware filed several Variance requests with the Meridian Street Preservation Commission. By doing so, the legal action was put on hold until the Variance process could be completed. They asked the MSPC to agree to only 14 parking spaces (35 required by Code - but reduced to 19 by the 2009 Variance), to additional outside storage, to an unscreened trash container in the front yard, and to overturn the requirement that they install a sidewalk along 49th Street. The outside storage request referenced a site plan rather than a set number of square feet. From my calculations the total area requested for outdoor storage amounts to about 1000 square feet. Indy's Code would allow 200 square feet of outside storage if the agreement from 2009 were not in place to store all inside the greenhouse. However, the greenhouse allowed by the 2009 Variance gave Sullivan Hardware 2880 square feet for that storage. The matter was heard before the MSPC in June and approved.

There were some significant changes made sometime between the April filing with the MSPC and the September filing with the City.

Favorable changes included an apparent agreement to construct the sidewalk after all (which they could have completed over the summer, but did not), moving a proposed handicap parking space closer to the building (although shrinking its footprint), and enclosing the dumpster (even though it would remain in the front yard). Unfavorable changes that appeared in the Variance requests filed with the City included clarification that they were indeed seeking to store outside merchandise so close to the parking lot exits that they would violate the clear sight triangle required of all curb cuts in the County. The clear sight triangle law is in place for safety reasons - so that any driver exiting onto City streets can see oncoming traffic; be that pedestrians, bicycles, or motor vehicles. It is unsafe to drive the front of your car into oncoming traffic prior to your line of sight opening up enough to see what you could hit. They did mention that they would set the outdoor storage at one exit 10 feet back from the existing sidewalk, which would not entirely block the clear sight triangle. My calculations suggest that they were refusing to clear out less than 50 square feet blocking the clear site triangle at the two exits.

At the BZA hearing in December, Staff made it clear they had no problem with the request that an enclosed dumpster be allowed in the front yard - nor did the remonstrators voice any objection to that Variance request. Staff also had no problem with the outdoor storage on the south side of the property line, as long as the clear site triangle area was continuously clear of merchandise. Again, the remonstrators, representing neighbors of Sullivan Hardware, voiced no different opinion. The outdoor storage requested in front of the existing greenhouse, part of which occupied the clear sight triangle of the 49th Street exit, could be better used for parking and so not supported by Staff or the remonstrators.

The remonstrators made an excellent case against allowing the number of parking spaces to drop to 14. They brought up the fact that a number of Variances for properties at the intersection had already removed the requirement for about 65 off street parking spaces, while the on street parking capability was only 30. Businesses have resorted to posting signs limiting the remaining off street parking to their customers, and vowing to tow violators, because the parking is so scarce. Any further reduction in the parking available on the Sullivan Hardware site would only aggravate the existing parking problem.

The remonstrators also mentioned that the smaller footprint for the one handicap parking spot was too small to meet ADA requirements.

Other locally owned urban hardware or landscape businesses, including Hedlund Hardware, White's Ace Hardware at Nora, Habig's Garden Shop, and the Ace Hardware at Illinois and 38th Street, have not sought the Variances that Sullivan Hardware on Pennsylvania has, and yet they stay in business. Only one was issued a notice of Violation for outdoor display and storage of merchandise, and they brought their property into compliance.

Meanwhile, Sullivan appears to be following the same 'ask forgiveness later' path at his other location where he has been storing merchandise in the back yards of abutting residences, in violation of City laws, even though he has over 2 acres for his business. In July of this year, 5 residential properties, all owned by Patrick Sullivan, LLC, were issued notices of Violation. In aggregate there were 16 Violations noted, including no permit for accessory structures, oversized privacy fences, the outside storage of merchandise, and the outside storage of junk, trash & debris. Sullivan has filed a rezoning petition for these properties in response and a hearing is scheduled for January 29.

At the December 16 BZA hearing, the Petitioner was given the opportunity to have the Board vote on each Variance request separately; making it possible for some to be approved and others denied. They declined the offer. The evidence was very well presented and overwhelming. The Board voted  4 - 0 to deny the Variance requests.

Pat Sullivan threatened to close this location if he could not get the Variances. He reports that City leaders are reassuring him they "will find a solution", although their legal options are few and it is unclear what they can possibly do.

Sullivan Hardware is a popular spot in the area of 49th and Pennsylvania and there has been backlash to the BZA's unanimous decision to deny the Variances requested. The free popcorn notwithstanding, Sullivan Hardware should not be allowed to unsafely pile merchandise near the parking lot exits, they should have to create an ADA compliant handicap parking space, and they should not be allowed to offer fewer than half the required parking spaces in an already congested commercial node.

The BZA made the right decision.

Wednesday, December 3, 2014

How Many Existing Billboards are Illegal?

I posted this on the Indiana Forefront blog today.


If you listen to the representatives of Indy's three big billboard companies very closely, you will hear them talking about swapping and converting "legal non-conforming" billboards under the proposal written by themselves for themselves.  I refer to Prop 250, which the full Council sent back to committee on Monday night.

A legal non-conforming use is one that has been granted a certificate of legal non-conforming use (LNCU).  To obtain that certificate, documentation must be submitted showing the non-allowed use was in nearly continuous existence at a particular location since before 1969 or prior to the creation of the ordinance that created the non-conformity.

I have in my possession a list of billboard locations that Clear Channel offered, a couple of years ago, to swap out for digital billboards at new locations.  At the time, a Code Enforcement officer looked up locations to see if any permits had been obtained.  Of 42 locations with 52 sign faces, permits could not be found for 24 locations with 31 faces.

As of yesterday when I checked, none of these had certificates of LNCU noted in the City's online database.

Without a permit or an LNCU certificate, the billboard is illegal.

It would be an outrage to pass any change in the sign ordinance to allow swapping of illegal static faces for digital faces.

It would also be an outrage to pass any change in the sign ordinance that would allow the conversion of an illegal static face to a shiny new digital face.

Prop 250 does not disallow such exchanges.

The billboard companies should make public, before the January 26 Metropolitan & Economic Development committee meeting, a map of their current billboard locations as well as a table listing the address of each parcel and either the permit number or LNCU certificate number associated with the billboard at that location.

Any billboard that has neither a permit nor certificate is illegal and should be taken down at the expense of the billboard company with all due haste.

Monday, December 1, 2014

Digital Billboard Lobbyists Galore

A brief update - Prop 250 will be sent back to committee at tonight's Council meeting, the IBJ's Cory Schouten reports.

Now, without further delay - my post on lobbyists for the billboard industry.

One of the comments I made in my 'Ten Things You Didn't Know About the Proposed Digital Billboard Ordinance', brought a considerable amount of energy from the billboard industry representative during our meeting last Monday afternoon.

They came across as absolutely insulted that I would say that Prop 250 was "drafted by lobbyists for the billboard industry".  Who knew that members of the billboard industry would look down on lobbyists?

Representatives of Clear Channel, Lamar, and Outfront Media (formerly CBS Outdoor) made it clear that John Kisiel of Clear Channel wrote the majority of if, with their input.  No sense mentioning that Bose Public Affairs Group is listed on the proposal itself as having drafted it.  Kisiel told us he had to register as a lobbyist in order to talk with the Councillors.  So much for it not being lobbyist written.

But, the exchange sent me to the lobbyist registration for the City and County.

There has been a ramp up in the number of registered lobbyist representing the interests of billboard companies in the last two year - so much so there is no shortage of them.

Here is what I found by year:

2010 -- 57 individuals registered  -- 0 for billboard companies

2011 -- 34 individuals registered -- 1 from Bose, McKinney, & Evans representing both Lamar and CBS Outdoor

2012 -- 43 individuals registered -- 2 for billboard companies  -- 1 from BME for Lamar, the other John Kisiel of and for Clear Channel

2013 -- 28 individuals registered -- 4 for billboard companies -- 2 from Barnes & Thornburg for Clear Channel, 1 from BME for Lamar, and again Mr. Kisiel for Clear Channel

2014 -- 25 individuals registered -- 7 for billboard companies -- 4 from BME for Lamar and CBS-Indy, and 3 from B&T for Clear Channel.

The agencies listed as points of contact for these folks were primarily the City-County Council, but also included the Mayor's Office, DMD, DCE, IMPD, IndyGo, the MDC, and the Office of Corporation Counsel.

Wednesday, November 19, 2014

Ten Things You Didn't Know About The Proposed Digital Billboard Ordinance

This was just published on the Indiana Forefront blog.  Availability to Had Enough Indy is still handled like a porn site on the City Hall internet.


Now that the proposed digital billboard ordinance has been voted out of Council committee, it might be a good time to review the problems with the proposal.

1) The proposed ordinance, drafted by lobbyists for the billboard industry, requires that in year three of the law, the Council must decide if the law should continue to allow conversions into the future or not.  Once the third year is over, the taxpayers would be on the hook to pay the future value of potential conversions to each billboard company, should the Council or the Mayor or the public decide to change the law back. Say a billboard company has 1000 signs in Marion County (as at least one company does). In year one they can convert 6, year two another 6, and in each year thereafter they can convert 2 to digital. That gives this billboard company guaranteed conversions for nearly 500 years. The future value would be hundreds of thousands of dollars a year in revenue for each conversion. Quick math isn't even necessary to calculate the payoff would be catastrophic to the taxpayers.

2) The proposal grants a monopoly to those billboard companies now operating in Marion County. Only these 3 or 4 companies with existing billboards may convert them to digital. Those billboard companies who are not so qualified, will surely sue the City. It won't be Lamar or Clear Channel that pick up the litigation costs. No, the taxpayers of Indianapolis will.

3) Digital signs can be bigger that those they replace. The proposal says that any sign face of more than 300 square feet can be replaced by a digital billboard face of 672 square feet. There are three legally allowed configurations that are more than 300 square feet - a 378, a 600, and a 672.

4) The size of a digital billboard along a freeway can be more than twice the size now allowed. The current billboards along freeways are 300 square feet, compared to the 672 square feet that would be allowed for digital faces.

5) There is no requirement that the pole for an existing billboard be taken down when the sign face is removed as part of a swap for a digital billboard. It is possible that this is required elsewhere in the City's laws, but it certainly is not specified in the proposed ordinance.

6) If a billboard was removed as part of the conversion, another company (perhaps even the same company) could apply for a new billboard permit at that exact location. As long as the location met the criteria for regular billboard sizes and distances, a permit would have to be granted. This would severely impact any expectation for an actual reduction in the number of billboards in the County.

7) By any lucid individual, a digital billboard would qualify as an Electronic Variable Message Sign. But, since the proposed ordinances declares that not to be true, it would not be regulated as an EVMS. Currently EVM signs must be 600 feet or more from homes. The proposal would allow a digital billboard to be 500 feet from a home - and it is far brighter than the much smaller EVM signs.

8) Current law requires billboards to be separated by at least 1000 feet on city streets and no more than 2 per mile along freeways. Digital faces need only be 500 feet apart.

9) The proposed ordinance would allow up to a 2 second gap between ads. Studies have shown that gaps between ads are a hazard to driving, drawing longer gazes off the road and traffic. Two seconds is the distraction threshold accepted by the scientific community as hazardous driving conditions that lead to accidents and near accidents.

10) There is language in the proposed ordinance that claims that digital billboards are not intermittently lit, despite what lucid individuals might actually think.  It is there not only to get around our local EVMS laws, but also to circumvent the 1971 agreement between the State of Indiana and the US Federal Highway Administration on the control of outdoor advertising along freeways. In 2007, FHWA issued a memorandum that said digital billboards did not violate the intermittent lighting ban. That memorandum is being litigated in the Courts. If, as some expect, the memorandum is overturned, it would leave Indianapolis in an unenviable legal position - rescind the digital billboard ordinance and pay the future value of thousands of conversions -- or stand in violation of Federal Law for any digital faces erected along freeways in Marion County and face losing federal highway dollars. Either way it would be entirely too expensive for the taxpayer.

This proposed digital billboard ordinance is not only an affront to a vigorous public process, it is bad law for Indianapolis.