Court Overturns Madison, WI Ban on Portable Signs

 

This article, written by sign-code expert, John Gann, originally appeared in the September 2002 issue of Signs of the Times magazine.

Madison, WI, has been rated by Money magazine as the best medium-sized city in the United States. The city owes its amenities not only to nature and the generosity of taxpayers, but also to a legacy of intelligent planning. Madison acquired substantial lake frontage for public parks, created an extensive network of bicycle paths, resisted both slums and overbuilding, and preserved and enhanced State St., one of the nation’s liveliest, oldest business districts.

To preserve such a good thing, Madison maintains strict land-use regulations. Among them is a tough “Street Graphics” http://www.fasi.org/rhetorical/2016/7/6/what-the-three-street-graphics-books-say-about-signs?rq=street%20graphicscontrol ordinance modeled after William Ewald and Daniel Mandelker’s controversial book of the same name, published by the American Planning Assn. (APA).

Unfortunately, as in other cities, Madisons planners sometimes go too far. Two years ago, for example, one of their sign-control regulations was resoundingly defeated in the courts of public opinion and law.

The planners’ improbable adversaries were two, smart, young, independent business people who understood the value of portable signs — signs that are often the bane of codes nationwide. Making an all-too-common mistake, the planners enacted a mindless, outright prohibition in lieu of thoughtful regulation.

Fighting City Hall
Madison’s regulations banned virtually all portable signs, plus all signs in street rights-of-way, including downtown sidewalks. The ordinance justified the ban by characterizing portable signs as “more distracting and hazardous to pedestrian and traffic safety, less compatible with surrounding uses and graphics, of lesser quality and more difficult to uniformly regulate” than permanent signage.

Despite the enacted regulation, artists and cultural groups — with neither the need nor the funds for permanent signage — used portables to display temporary messages.

To take a stand against the portable-sign “blight,” City Hall decided to make an example of two owners of small businesses located near Madison’s premier, downtown, commercial thoroughfare, the State St. pedestrian/transit mall.

But city officials chose the wrong pair to pick on.

Madison sign regulations considered this sign, and another like it, intolerable. But, the community found them unobjectionable, and merchants deemed them indispensable. Refusing to comply with the portable-sign ban, Patty Roth and Kelly Doering used their limited resources to fight City Hall. And they won.

Ironically, Roth and Doering own stores that couldn’t have been more “politically correct” or more in tune with values that planners typically espouse. Roth’s Mimosa Community Bookstore stocked books on yoga, meditation and spirituality. Doering’s Home Environment sold environmentally friendly home and personal products. Unique niche stores ideally suited to a university neighborhood, both were handicapped by low-visibility locations a half block off the main pedestrian flow.

Their solution? Two, painted, 6-sq.-ft., A-frame signs, positioned on the sidewalk for visibility from busy State St.

While the code allowed outdoor café seating, sidewalk merchandise displays, newspaper boxes and street banners, the sandwich boards were “not a good thing,” ruled City Hall’s Martha Stewarts of aesthetic propriety.

Although the portable-sign ban had been on the books for the entire 14 years Roth had been in business – and although she’d used a portable sign during that time period – city inspectors suddenly and repeatedly began citing hers and Doering’s A-frames for violating the code.

Roth and Doering noticed that when they removed the signs, their businesses tanked. So they reinstated portables, and again, out came the inspectors’ citation pads.

Totaling $8,700, the fines levied against Mimosa “would have put me out of business,” says Roth.

Frustrated with the hostility from City Hall, Doering actually began scouting more business-friendly locations.

Strange bedfellows
In March 2000, the struggle caught the attention of Bill Lueders, a columnist for Isthmus, Madison’s “alternative” weekly newspaper. Although his journal had never been accused of being an apologist for business interests, Lueders concluded that the persecuted signs “are attractive, unobtrusive and have the support of downtown business boosters.” Lueders wasn’t alone in his backing of the business signage.

Wisconsin State Journal columnist George Hesselberg protested Madison’s “shamefully trying to intimidate small businesses into removing their signs.”

I published an op-ed in Isthmus faulting “the quest for neat, sign-free sidewalks” as an anti-urban policy hurting “an endangered species” — the surviving downtown retailer.

In addition, the signage drew support from some unexpected allies. A group of student environmentalists, the UW Greens, censured the city’s enforcement actions as “unwarranted attacks.”

Losing the verdict of public opinion, the city sought recourse in the courts. Legal action proved the only recourse for the merchants as well, as their other means of resolving the dispute had been unsuccessful.

Confident assurances by Downtown Madison Inc., the local downtown association, that an alderman would introduce legislation to solve the dispute, had come to nothing. The state’s sign association had offered the merchants no support. A moratorium on enforcement of the sign ban had been discussed but never enacted. And I had testified before the city’s Urban Design Committee, proposing a State St. aesthetic policy that would allow the prohibited signs. But nothing had happened.

David 1, Goliath 0
So the issue came before Madison’s Municipal Court. And the court came through with a stunning victory for the two small businesspeople.

In its ruling on City of Madison v. Patty Roth and Kelly Doering, Case Nos. 99-MOR-7676 and 00-MOR2118, 2119, 2371, 2372, 3158 and 3159 (2000), the Madison Municipal Court disapprovingly noted the city’s sporadic enforcement of the sign ban. But it deemed the ordinance’s fatal flaw was a lack of content neutrality. Declaring the ban unconstitutional, the judge noted that the city inconsistently allowed portable signs similar to Roth’s and Doering’s, provided the signs displayed public or civic messages, rather than commercial messages.

This was hardly news to the defendants. In a newspaper account prior to the court battle, Roth had reported, with some irony, about a sandwich board displayed in the street during a local art fair. The sign had directed motorists to a nearby parking facility – parking owned by the city of Madison.

Roth succinctly characterized their court victory as “David 1, Goliath 0.”

Portable signs have now been legal in Madison for two years. Have they brought about an aesthetic meltdown in one of the nation’s loveliest cities? Hardly. Portables are now more common than ever. Typically, the signs are small, reasonably good-looking, and both business and non-business users employ them with discretion and restraint.

In other words, sign users won, but the public didn’t lose. Mimosa and Home Environment are still operating, although both Roth and Doering – frustrated from their struggle with City Hall – sold the businesses.

The social cost of bad sign laws
Planners who want to improve their communities sometimes fail to understand that most business people and sign makers share the same goal. City planning — like business — involves trade-offs. There is never a benefit without an attendant cost. Planners go astray when they attempt to micromanage while ignoring the social costs of their policies. Regulatory assaults on signage that businesses need for survival can impose serious social and economic costs on a community.

John L. Gann Jr., is president of Gann Assoc., a development consulting firm. He has prepared sign regulations for numerous cities and written extensively on sign control. 

Posted in 1st Ammendment / Freedom of Speech, Blog: Rhetorical, Content Neutrality (Reed v. Gilbert), Sign Codes, Visibility and Legibility.