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Billboard City: Part One

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By Ryan W. Briggs

When Peter Kendzierski started renting a loft apartment at 310 N. 11th Street, he was well aware that his new living room's stunning views of the Philadelphia skyline would be partially obscured by an unfortunately placed billboard on nearby Vine Street.  It would be a hard fact to ignore: the billboard is massive.

But, it was, perhaps a small price to pay to be in a spacious, affordable loft near Center City for Kendzierski, was drawn by the affordability and character of the neighborhood. "It maintains its grit and charm while still being within walking distance of everything Center City has to offer...[it] retains a cohesive aesthetic defined by Philadelphia's history of industry," he said.

So imagine being in Kendzierski's shoes as an energetic new resident when he learned that the City had approved a request from Steen Outdoor Advertising, the owner of the billboard, to convert their sign into a backlit digital display the size of a movie theater's screen.

Kendzierski wondered if he would even be able to stay in his home. "These things are on 24/7. It would pretty much make our place uninhabitable by flooding it with this constantly changing light," he said.

To add insult to injury, Kendzierski says he and other tenants were "never approached by anyone at Steen" and only found out about the proposal because ScenicVine SAtreet Billboard.jpg Philadelphia, a group that opposes public advertising, notified their building owner. They also told the tenants that Steen had gotten and over-the-counter L&I permit to alter the sign because Philadelphia's antiquated zoning code doesn't distinguish between digital and non-digital signage.

Now that code is about to be updated.  City Council will hold hearings on a new signage section for the zoning code next week.  Though no action is expected until the fall, the code revision gives the city an opportunity to revisit the issue of advertising in public spaces.

It is coming just in time.  Many conversions to digital have already done by Steen and other large billboard companies, such as Keystone, Interstate, CBS Outdoor and Clear Channel Outdoor.  "We had kind of been on alert since another electronic billboard went up at 5th and Callowhill last year," said Kendzierski.

Kendzierski is as much a victim of the city's outdated codes as he is its cadre of aggressive billboard owners, a powerful collection of corporations and individual leasers who have an extensive history of using political influence to wage an unceasing effort to erode the City's regulations on public advertisement.  They generally refer to their trade with the less divisive blanket term "outdoor advertising".

Yet, as new technology has allowed people to shift their media habits to better avoid advertising - i.e. subscription-based satellite radio and DVR-based television viewing - pressure has increased on advertisers to find new and more obtrusive methods to push their products and services. The movement even has name "space colonization" with ads turning up where they never were before.

Billboard owners would be more than happy to meet that demand, yet according to Philadelphia's zoning codes they are nominally restricted from creating new billboards.

So, the industry looks for every opportunity to open up new avenues for profit by circumventing or ignoring city codes whenever possible, cutting deals with the municipality when they catch too much heat.

In fact, the only reason Kendzierski even has a story to tell is because the City's Law Department has continuously failed to enforce complaints against existing signs that are in violation of City codes. Like many of Philadelphia's 1,784 existing billboards, the sign that will soon be glaring into Peter's living room technically shouldn't even exist.

The history of how Philadelphia ended up with hundreds of non-conforming billboards is a complex one.

Over the past 50 years, Philadelphia and the Federal government have passed a number of regulations seeking to tighten controls on outdoor advertising, which was relatively unregulated in the first half of the last century.  The 1960s brought about the ugly p[hilly boards.jpgFederal Highway Beautification Act, which sought to control the proliferation of advertisements along the nations roadways by threatening to withhold federal transportation funds to states that refused to comply with the new standards. Later amendments encouraged local governments to enact their own codes and established that municipalities would not be punished for enacting more stringent controls.  Philadelphia enacted a string of regulations in the 1970s and 80s and established a general rule that billboards must be spaced at least 500 feet apart and 300 feet from residences.  Thousands of existing billboards were rendered "non-conforming" in relation to the city's zoning ordinances.

Each round of lawmaking saw attempts by the sign industry to ignore or informally "grandfather in" signs that had been made illegal.  In 1990, they submitted a list of 1,500 non-conforming signs to City Council, demanding exemption from the law.

Instead, Philadelphia's City Council, responding to complaints from citizen's groups, attempted to purge the backlog of illegal signs by introducing a $150-a-day penalty for owners of illegal signs and increasing controls to ban advertising near schools recreation areas, historic districts and certain city streets - including Vine Street and Kendzierski's sign.

Thousands of non-conforming signs were taken down, but over a decade later, hundreds more unlicensed billboards still remained. Continuous outcry from community groups over the refusal of the sign industry to comply with long-established laws led to even more legislation in 2006, this time increasing license fees to $650 annually in order to pay for better enforcement from the Department of Licenses and Inspections. 

But this time the ad industry fought back.

Steen, Clear Channel and CBS Outdoor Advertising formed a coalition called "Free Speech, LLC" to challenge the new law on First Amendment grounds in federal court.  Scenic Philadelphia quickly intervened in the case, arguing that there was ample precedent for municipalities regulating signage in this manner.  But, before the case could proceed it was withdrawn from court by the plaintiffs.  Mary Tracy learned that Free Speech, LLC had been meeting with the city behind closed doors and had hammered out a settlement agreement that has dictated signage enforcement for the last six years.

Around the same time as the lawsuit, complaints about the blatantly illegal and unchecked proliferation of "eight sheet" signs in lower income neighborhoods - imagine small, wall-mounted ad for Kool Cigarettes at your corner bodega - had also reached a head.  In their a closed door session, the Law Department got billboard owners to give up these smaller billboards in exchange for effectively legalizing all of the larger, non-conforming billboards.  Although the settlement did not allow for the construction of new billboards, it did allow for the reconstruction and enlargement of existing signs 25% beyond what the zoning code allows. The agreement is frequently invoked by the Law Department as the reason they do not enforce L&I complaints related to unlicensed or non-conforming signs.Walt Whitman Billboard.jpg

To critics of the sign industry, the idea that the Law Department could privately cut a deal with billboard owners that overrode existing zoning was unthinkable.  Mary Tracy, head of Scenic Philadelphia, recalls the 2006 decision with incredulity. 

"The City instead of defending our law, or even simply lowering the fee, made this settlement agreement that basically legalized all of the signs on the complaint list.  Hundreds of these signs that could have come down.  Instead, they lowered their licensing fee to $50" she said, adding that the decreased licensing fee means there is now no dedicated sign enforcement inspector at L&I.

Tracy said the agreement has cost the city millions in fines for unlicensed signs will likely never be accounted for.  She also decried the impact it has had on recent highway  ramp construction along I-95, the area of the city with the densest collection of billboards.

"We had a great opportunity here with the expansion of I-95 to clear the clutter out from these neighborhoods that have already been split in two by the highway years ago. All these signs have already been condemned, but you have our council members getting legislation passed that allows them to rebuild these billboards even though they're being compensated [for demolition] by the state," said Tracy.

"You have one group, Steen, that's actually suing the City right now, asking for more compensation and at the same time they're already filing paperwork to rebuild those signs," she added.

Scenic Philadelphia is currently appealing a decision in Commonwealth Court in an attempt to strike down the settlement, after six years of legal wrangling with the City.

Andrew Ross, a lawyer for the city's Law Department who was instrumental in the  creation of the 2006 settlement, said that Scenic Philadelphia's challenge of the City's agreement has languished in court because his department did nothing wrong.

"Legally speaking, we weren't overriding anything," he said, referring to the existing zoning controls on signage. "We were putting into place a mechanism to better utilize the City's resources as it relates to enforcement of these signs."

Ross said that because more recent sign regulations rendered the bulk of the city's billboards illegal, it would have been too expensive and time consuming for a Law Department with "shrinking resources" to battle with notably litigious sign owners over each one.

Ben Franklin Bridge.jpgRoss said the City was already in a weak position when it came to challenging the legality of many existing billboards.  "A lot of the enforcement issue is a paper issue...a lot of these signs go back decades and neither the city nor the companies in question have the original paperwork. Even if we went the route of saying that we were going to hold you to the letter of the law, there's still the problem of the records," he said.

"Is it possible that some illegal signs might qualify under [the 2006 settlement]?  To be fair, I would say 'yes'," he said, adding, "But I don't think that was what the overall effect was."

Ross said that in addition to purging the city of the "8 sheet" signs, the agreement established a firm inventory of what signs were legal, something that had not been in place previously, in order to make future enforcement more practicable.  "Now if we think there is an issue with the legality of these signs we can test that."  Ross also noted that the agreement had prevented the City from possibly losing its ability to tax billboards in federal court, one of the complaints levied by Free Speech, LLC.

Scenic Philadelphia claims Ross is leaving out the fact that many other municipalities have fought and won this battle before, even banning billboards outright.  Tracy sees the settlement agreement as political deal making, noting the outdoor advertising industries cozy relationship with Philadelphia's political actors.

 "This industry seems to be able to come in and talk with some of the council members very easily," Tracy said. "They're big donors, they're at all of their parties, they're friends with some of the council members, so you have council members who feel sorry for them."

Tracy says it is unusual for municipal level politicians to directly accept donations from these groups, with money usually being disbursed through PACs and filtered through the Democratic Committee.  "No one likes their name associated with the industry," she said.  However, Controller's reports from last year indicate that Council Members Blondell Reynolds Brown, David Oh, Bill Green and Brian O'Neill all directly received small amounts of money from Clear Channel's PAC.  FEC reports indicate that Congressmen Bob Brady and Chaka Fattah have both received thousands of dollars in the past few years from Dominick Cipollini, of Keystone Outdoor, and Drew Katz, of Interstate Outdoor.

Scenic Philadelphia sees itself as a counter balance to that influence. Tracy, who is also president of the national group Scenic America, has been the city's most vocal billboard opponent for decades.

"This is an industry that has really been out of control in the city for decades.  I'm really hoping we can wake up our leaders and say, 'Is this the direction that we really want to go?'," said Tracy.

A lawyer from Duane Morris that has represented Philadelphia's outdoor advertising companies in the past did not respond to inquiries by press time.

Kendzierski is appealing the L&I decision to convert his sign and the City has assured other aggrieved parties that the new Zoning Code will address digital signage.

But Mary Tracy is worried.  She believes that new code has already been influenced by the outdoor advertising industry and that a new loophole will allow for the placement of even more billboard than before.

 

Tomorrow: How the new zoning code could open loopholes to more outdoor advertising.

 

 

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