Tacoma Urbanist

Jun. 9, 2011 at 12:01am

New Legal Analysis: Tacoma's 1997 Billboard Law Looking More Legally Defensible Than Ever



(Yet, the US Supreme Court and the Washington State Supreme Court, which have the sole authority to interpret "constitutions" have consistently ruled that billboards may be removed and banned)

Background

Tacoma's 1997 billboard law made approximately 2/3rds of the billboards "non-conforming" requiring their removal after a 10 years amortization period (which ended in 2007).  The non-conforming billboards (see the list here) were generally the ones most objectionable as many were in neighborhoods.

Clear Channel has previously challenged Tacoma's billboard law in court. One of the reasons that the city seemed willing to capitulate and appease Clear Channel by offering blightful digital billboards, was that the city had a fear of litigation and a concern with legality of the current billboard law.

Regrettably, the City failed to even to take the preliminary step of havings Clear Channel's claims tested in court through a motion to dismiss.

As more legal analysis is performed, Tacoma's 1997 billboard law is looking stronger and stronger.

Below is the latest legal analysis on billboards in Tacoma from Central Neighborhood Councilmember and attorney Doug Schafer:

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FYI (I had not previously given sufficient attention to this 1968 case, but it now appears to me to be most relevant.  I'm going to add it to the CNC website page.)

-------- Original Message --------

Subject:Constitutionality of Billboard Removal Laws
Date:Tue, 07 Jun 2011 16:08:21 -0700
From:Doug Schafer <schafer@pobox.com>
To:Fey, Jake <Jake.Fey@cityoftacoma.org>, Woodards, Victoria<Victoria.Woodards@cityoftacoma.org>, Boe, David <David.Boe@cityoftacoma.org>, Mello, Ryan <Ryan.Mello@cityoftacoma.org>, Lonegran, Joe <Joe.Lonergan@cityoftacoma.org>, Manthou, Spiro <Spiro.Manthou@cityoftacoma.org>, Walker, Lauren<Lauren.Walker@cityoftacoma.org>, Strickland, Marilyn<Marilyn.Strickland@cityoftacoma.org>, Campbell, Marty<Marty.Campbell@cityoftacoma.org>

Please read at least the highlighted passages of the attached 15-page Washington State Supreme Court opinion, Markham Advertising v. State (1968), that upheld the consitutionality of our state's 1961 Highway Advertising Control Act and 1961 Highway Commission regulations that then required the immediate removal of nonconforming billboards without payment of any compensation whatsoever.  The opinion emphatically validates the government's exercise of it police power to regulate outdoor advertising -- rejecting all constitutional challenges.

I had not included this court opinion in the packet of cases that the Central Neighborhood Council provided to the Planning Commission in March, though I did include in that packet a later Washington State Supreme Court case, Ackerley Communications v. Seattle (1979), that favorably referred to the attached opinion.

Doug Schafer

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Subject:2007 Journal Article About Billboard Amortization Laws
Date:Wed, 08 Jun 2011 12:12:00 -0700
From:Doug Schafer <schafer@pobox.com>
To:Fey, Jake <Jake.Fey@cityoftacoma.org>, Woodards, Victoria<Victoria.Woodards@cityoftacoma.org>, Boe, David <David.Boe@cityoftacoma.org>, Mello, Ryan <Ryan.Mello@cityoftacoma.org>, Lonegran, Joe <Joe.Lonergan@cityoftacoma.org>, Manthou, Spiro <Spiro.Manthou@cityoftacoma.org>, Walker, Lauren<Lauren.Walker@cityoftacoma.org>, Strickland, Marilyn<Marilyn.Strickland@cityoftacoma.org>, Campbell, Marty<Marty.Campbell@cityoftacoma.org>

I urge you to read at least the highlighted parts of the attached 17-page (not counting its endnotes) journal article by law professor Steve Durden. He observes the ever since the U.S. Supreme Court's 1968 affirmance of the Washington State Supreme Court's opinion in Markham Advertising v. Washington State (that I emailed to you yesterday), no unconstitutional taking exists when anti-billboard laws requires the removal, without compensation, of billboards after an amortization period.  He (and he alone) suggests, however, that the U.S. Supreme Court should reconsider its Markham precedent in light of a 2005 ruling, but lower courts remain bound by Markham unless and until the U.S. Supreme Court overrules it.  Below is my exchange with Prof. Durden.

Doug Schafer

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Kudos to Doug Schafer for his unparalleled legal research and analysis into the legalities of Tacoma's billboard law.Here is more of his research on the matter on the Central Neighborhood Council website.

Here is Schafer's testimony before the Tacoma City Council where he points out that the legal attacks against Tacoma's billboard law would be defensible if the city retained competent counsel to do it.

comments [4]  |  posted under tacoma

Comments

by Erik on 6/9/2011 @ 1:14am
Looks like the City of Tacoma is planning to have the final showdown on banning the threat of digital billboards on July 19, 2011 before the Tacoma City Council.

cms.cityoftacoma.org/cityclerk/Files/Cit...

Will Tacoma be able to enjoy a digital billboard free skyline that Seattle basks in?

We will soon see.

by Jesse on 6/9/2011 @ 8:10am
If the billboard elimination laws weren't enforceable than, in theory, I could build whatever I wanted wherever I wanted as long as I put a message on the outside of it so I could claim 1st amendment rights.

by Erik on 6/9/2011 @ 3:37pm
@ Jesse. True.

There is no constitution right to erect these throughout Tacoma:



Tacoma needs a Safe and Clean billboard removal day like this:

The History of Safe and Clean

Great things happened when Tacoma citizens partnered with City staffers in April 2008 and talked about ways to reduce crime rates while doing away with debris, junk vehicles and other nuisances. Working within existing City budgets, by the end of June 2009 we helped bring about an 18 percent reduction in crime and eliminated over 500 tons of debris during community clean-ups.

We regrouped in June 2009, proud of what had been accomplished, but with a clear understanding that more work needed to be done. With knowledge gleaned from previous efforts, a number of specialized teams were developed that focused on reducing crime rates even further. From 2007 – 2010, there was a 21 percent reduction in violent crime and a 17 percent reduction in property crime.


www.cityoftacoma.org/Page.aspx?hid=12828

by Erik on 6/11/2011 @ 12:32am
Listen to Doug Schafer on KLAY AM 1180 on Equal Time Radio on the threat of digital billboards in Tacoma:



Click on this link:

equaltimeradio.org/shows/20110610.mp3

(Segment starts at 23:21)

equaltimeradio.org/

Excellent interview Doug!