After failing to win a city committee appeal, it looks like Adams Outdoor Advertising will continue on its attempt to change the Madison ordinance on billboards through a federal lawsuit.
At an unusual Urban Design Commission meeting Wednesday night, an Adams representative framed the debate in big terms, saying UDC was deciding on a matter of constitutionality and could save the city from a lawsuit. UDC commissioners argued the Constitution wasn’t their concern.
“What we’re really here to talk about is the constitutionality of the city’s ordinance,” said Brian Potts, lawyer for Adams, by way of introducing the topic.
“We’re not the Supreme Court,” said UDC chair Dick Wagner.
Adams was asking to reverse an earlier city decision that denied the company permission to raise the height or add digital displays to 22 signs on streets across the city, including East Washington Avenue, University Avenue, South Park Street and West Beltline Highway.
In June, city zoning administrator Matt Tucker denied the request for permits to change the signs. Madison ordinances do not allow new construction or replacement of signs, with the exception of some signs that can be relocated with redevelopment.
In one of the written responses to the requests, Tucker explained that advertising signs have been prohibited under Madison city ordinance since 1990. Existing signs remain as “grandfathered signs,” but are not allowed to be “relocated, replaced, expanded, enlarged, repositioned, or raised in height.”
Adams’ proposed changes would also exceed the maximum height allowed for billboards, and city ordinance doesn’t allow digital image technology.
After Tucker’s rejection, Adams appealed to the UDC.
Adams also filed suit in July against the city in federal court over those ordinances, claiming they are unconstitutional, citing free speech and due process.
“The city’s ordinance is designed to eventually completely eliminate an important and protected form of speech based on the content of such speech,” the lawsuit says.
On Wednesday, Potts said the city restricts signage based on the content, as ordinances specifically target advertising signs but not other signs like political or real estate signs. This gives city employees too much discretion, he said. He cited the Supreme Court case Reed. v. Town of Gilbert, which he said overturned a similar municipal ordinance.
Potts said that in his opinion, the question of constitutionality wouldn’t even be a “close call" before a court, and that the UDC had a “chance to right this wrong before we ask the federal courts to do it.”
He said he thought the federal court would certainly overturn the ordinance, which would have a broad impact on the city.
Lara Mainella, assistant city attorney, said it wasn’t in the UDC’s purview to decide on the constitutionality of the ordinance, nor its responsibility to protect the city from a law suit.
The commissioners seemed to agree. Cliff Goodhart began the discussion by asking the Adams team to identify where Tucker made an error in rejecting the permits.
Potts said that the as the “ordinance on the books shouldn’t be on the books … whether he erred is immaterial.”
“No it isn’t,” he said. “You have to demonstrate to us how he was in error of interpretation of the ordinance.”
The commission then proceeded to individually reject each of the appeals.
Adams has also sued Dane County and Fitchburg over its billboards. They were unsuccessful both times, but have appealed the decisions.