Gilroy City Council
March 20, 2023

18873791.9
3 While I fully understand the decision to allow
digital billboards in Gilroy should be decided by
the proper authorities in Gilroy, I believe you will
benefit from the information No Digital
Billboards in San Jose has made public after an
exhaustive review of the proposal to bring
digital billboards to San Jose. Accordingly, with
your approval, I will be happy to forward
documents relevant to this issue.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.
4 In the meantime, it is important to understand
that the erection of digitals never comes from
citizens but always from the billboard lobby
because digital billboards return a much greater
profit to billboard companies than do
conventional paper billboards. This is all about
money. Billboard company money.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.
5 Digital billboards are much more intrusive and
unavoidable than conventional billboards. They
can’t be ignored and even a few will change the
aesthetics of the community.

The Aesthetics chapter of the MND analyzed
the impact of the digital billboard on scenic
vistas, scenic resources, and day or nighttime
views due to a new source of substantial light.

Under the thresholds of significance related to
aesthetics, only in non-urbanized areas does a
project have a significant aesthetic impact if it
would substantially degrade the existing visual
character area. If the project is in an urban
area, it does not have a significant impact if the
project is consistent with applicable zoning and
other regulations governing scenic quality.

Because (1) installation of billboards would not
be allowed in non-urbanized areas; (2) the
proposed billboard would comply with design
standards set forth in the proposed Electronic
Billboard Ordinance; and (3) the proposed
billboard would be one-sixth as bright as
allowable state brightness maximums set forth
in illumination intensity standards found in state
law, impacts would be less than significant.

Please see the March 21, 2021 Letter from the
applicant re Outdoor Advertising Display 6490
Auto Mall Parkway, which addresses brightness
standards, as well as its attachments, all of
which are incorporated herein by this reference.

Substantial evidence shows that digital
billboards are in fact less obtrusive than
traditional displays, as digital billboards have
superior technology that directs light at limited
audiences (here, motorists). By contrast,
traditional displays are illuminated by reflecting

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18873791.9
light sources of the display's facings, at levels
that are 31 to 212 brighter than LED bulbs.

Additionally, with adoption of mitigation
measure AES-1, which requires the City
Community Development Department to review
and approve the signs' operational lighting
parameters to ensure a driver would not be
adversely affected or impacts by trespass glare,
the Project would have a less than significant
impact.
6 Digital billboards increase profits for billboard
companies but on private property they produce
no revenue for city government. The city would
be lucky if annual permit fees covered the cost
of administering digital billboards.

Economic impacts are not significant
environmental impacts under CEQA. 14 Cal.

Code Regs. §15131.
7 Digital billboards primarily help big national
companies like CitiBank and Verizon not local
businesses who have to compete with these
national advertisers which are preferred
customers of the billboard companies.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.
8 But even if local auto dealers obtained
advertising on digital billboards how is that a
benefit to the people of Gilroy, who as a result,
will experience a degradation of the city’s
architectural integrity, historic character and
natural environment?
As discussed in Response A5 above, the MND
determined that, with mitigation, the Project
would not have a significant aesthetic impact.

Additionally, the Cultural Resources and Tribal
Cultural Resources section of the MND
determined that the Project will not have a
significant impact on historic resources,
including architecturally significant structures.

The billboards would not be located in a historic
district, and there are only two recorded
historical resources within a 0.5-mile radius of
the project area. Rather, the sign would be
constructed in a parking lot where vehicle are
stored, adjacent to automobile-related
businesses (including a Tesla dealership, Buick
GMC dealership, auto repair business, fueling
stations, and similar uses, as well as amid
numerous, similar illuminated signs and
freestanding lights; see next section for further
discussion of baseline conditions). The Project
site is a non-sensitive, commercial portion of
the City that is compatible with the proposed
structure. As a result, the likelihood of the
Project to have an adverse effect on historic
resources is low.

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9 The light from digital billboards harms wildlife, The Biological Resources section of the MND reviewed the impacts of the light from the digital
billboard on wildlife and determined that, with
mitigation incorporated, there would be no
significant impact. Under the CEQA thresholds
of significance, a substantial adverse effect on a
species protected by the California Department
of Wildlife or United States Fish and Wildlife
Service amounts to a significant impact. Only
one special status species has the potential to
occur within the project site, the white-tailed
kite. Per the MND, there is marginal nesting
habitat near the proposed display and potential
foraging habitat located more than 800 feet to
the northeast.

During an August 2021 field survey, the nearest
recorded occurrence of the white-tailed kite to
the project site was 2.6 miles away. While it is
true that migrating birds can be affected by
artificial light, the MND determined that the
proposed electronic billboard would not create a
substantial change in illumination levels due to
baseline light sources. The baseline light
sources in the project area, which sits adjacent
to an interstate highway, are numerous,
including local street lighting, parking lot
lighting, interior lights, other illuminated
billboards at nearby auto dealerships and other
commercial businesses, headlights from
automobile traffic, and highway lighting
structures. CEQA requires an evaluation of
impacts relative to baseline conditions, not
relative to a hypothetical dark, undegraded
condition that does not exist at the project site.
14 Cal. Code Regs. §15125(a).

In addition, the billboard would be operated at
one-sixth the illumination intensity standards in
the California Outdoor Advertising Act and
Vehicle Code. Specifically, the display would be
limited to a maximum light output level of 0.3
foot-candle1 at 250 feet from the billboard above

1 Foot candle is the amount of light a single candle makes at a distance of 1 foot (see Attachment E), and so a 0.3 change in foot candle would be 30 percent of the light one would experience at 1 foot away from a candle. To apply this in a real-world example, if a person in the dark cabin of an airplane, sitting four rows in front of you in an aisle seat, opened

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ambient conditions,2 which is equivalent to 300
nits, a significantly more conservative lighting
intensity standard for electronic billboards of
than the State maximum of 1,713 nits. (Please
see the MND and the applicant's March 21,
2021 letter to the City). At this lighting level,
light cast beyond 250 feet would not register on
a light meter, ensuring the proposed display
does not make a considerable contribution to
any lighting impact.

Please note further that birds have co-existed
with the existing urban landscape, including the
myriad of illuminated signs, parking lot lights,
vehicle headlights (which move at variable rates
of speed), and other sources of illumination for
a very long time in the project vicinity. The
addition of a digital sign would not affect the
status quo, and, in fact, digital billboards are
less impactful than static light sources for the
following reasons:
 Studies show that birds are attracted to
fixed lights, and the billboard would not
constitute a fixed light, but would
change its messaging every 8 seconds.
message (and thus varying its light
profile). Steady-burning red lights that
result in the greatest impacts to bird
species, and the outdoor advertising
display would have a wide diversity of
copy and it would never be the case
that the display would broadcast
uninterrupted light of any hue.3

a Word document on a 17" laptop, you would experience a 0.3 foot candle increase in light. 2 The project's technology is able to tether lighting levels to ambient conditions through the use of a photocell that measures ambient light. Simply, cloudy days will register a lower ambient light level than sunny days on the photocell, and dusk and dawn lighting levels are also traceable. These values read back to the display, and light output is adjusted automatically and accordingly. In addition to this function, the applicant maintains a “watchdog” program that update the dusk and dawn times each day based on the display's longitude and latitude. After dusk, the watchdog records and fixes the light output at the nighttime level and, if the sensor on the display attempts to communicate bright ambient conditions (e.g., a nighttime event with other illumination sources occurs in the parking lot), the display will ignore the high feedback from the sensor.
3 See Jones, J., and C. M. Francis. 2003. The effects of light characteristics on avian mortality at lighthouses. Journal of Avian Biology 34(4): 328-333; Gauthreaux, S. A., and C. G. Belser.

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 The applicant's lighting expert has
evaluated the project and can confirm
the sign will lose luminance and visibility
above 14 degrees and, coupled with the
horizontal viewing angle of
approximately 40 degrees, the viewing
angle of the sign will be narrow enough
to preclude attracting birds on clear
nights, when they fly high enough to be
outside the viewing angle of the sign.

Even at 250 feet nearer to the ground,
where light levels would not exceed 0.3
foot candles, the billboard would
produce a peak value of 27 cd/sq. ft. By
comparison, a full moon at its brightest
generates about 232 cd/sq. ft. All of this
assumes the display would broadcast a
solid white background, where in
practice advertisements contain a
variety of colors.

It is important to appreciate that this analysis is
conservative. To the extent studies have been
conducted with respect to lighting impacts on
avian species, they appear to have
contemplated environments with little ambient
light other than the source studied (e.g.,
lighthouses along unlit shorelines, towers in
rural areas, towers with lights 116-305 meters
above the ground). A critical difference is that
the location of the project here is in an area with
dozens of light sources on the same scale,
including without limitation dozens of parking lot
lights, an existing illuminated Caltrans sign,
illuminated signage from surrounding
businesses, and a fairly constant stream of
vehicle headlights on the adjacent highway.
10 keeps light-sensitive people from driving and
causes traffic accidents for those who do.

Please see response to Response A9,
incorporated herein. Furthermore, the
transportation section of the MND evaluated the
Project's impacts on traffic hazards and
determined there would be a less than

2006. Effects of artificial night lighting on migrating birds. Pages 67-93 in Rich, C., and T.

Longcore, editors. Ecological Consequences of Artificial Night Lighting. Covelo, CA:

Island Press; and Gehring, J., P. Kerlinger, and A. Manville II. 2009. Communication towers, lights, and birds: Successful methods of reducing the frequency of avian collisions. Ecological Applications 19(2): 505-514.

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18873791.9
significant impact. Under the thresholds of
significance for traffic hazard, a project only
causes a significant impact if it would conflict
with a program plan, ordinance or policy
addressing the circulation system, be
inconsistent with CEQA's transportation
guidelines, substantially increase hazards due
to a geometric design feature or incompatible
uses, or result in inadequate emergency
access. The Project does not exceed these
thresholds. The electronic billboard would not
interfere with drivers' visibility because it would
be required to adhere to California Outdoor
Advertising Act requirements and the Outdoor
Advertising Association of America ("OAAA")
recommendations that govern illumination.

California law. The OAAA allow LED billboards
to operate at a minimum dwell time of four
seconds. Studies from the Fedral Highway
Administration ("FHWA") and other experts
have determined that a dwell time of eight
seconds does not adversely impact road safety.

Please see Letter From Project Applicant re
Outdoor Advertising Display 6490 Auto Mall
Parkway (March 21, 2021), pp. 5-6 and
attached materials, incorporated herein by this
reference. Furthermore, the proposed electronic
billboard would have a required minimum
distance of 1.5 miles from other billboards
consistent with local ordinance, reducing
hazards from electronic billboards to the drivers
on the surrounding roadways at the project site.

Please note that State law only requires there
exist 1,000 feet between electronic displays.

Substantial evidence demonstrates that the
proposed electronic display would not have
significant impacts on safety.
11 They brighten the night sky and interfere with
the work of Lick Observatory on Mt. Hamilton.

The Project's impact on Lick Observatory is not
an environmental impact under CEQA.

Additionally, the MND concluded that the
proposed electronic billboard would not create a
substantial change in illumination levels due to
baseline light source. The Project commits to a
maximum ambient light output level of a 0.3
foot-candle at 250 feet from the billboard,
meaning at 250 feet, light from the sign is
generally not perceptible, and does not register
on a light meter. Please see Letter From Project

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18873791.9
Applicant re Outdoor Advertising Display 6490
Auto Mall Parkway (March 21, 2021) and
Attachment A thereto, incorporated herein.

Accordingly, the light contribution from the
proposed display would not cumulate with other
sources to produce a significant impact.

Additionally the perceptible vertical light
footprint rises to a height of about 85 feet. At a
distance of 25 miles from the city of Gilroy, the
Lick Observatory operations will not be
impacted by the Project. The billboard also
reduces light pollution and glare by angling
each of the individual LEDs downwards towards
motorists, in contrast to a traditionally
illuminated display that creates more significant
sky glow and illuminates copy by reflecting light
off display facings at a brightness level of 31 to
312 times greater than the brightness of LED
displays. Letter From Project Proponent re
Outdoor Advertising Display 6490 Auto Mall
Parkway (March 21, 2021), p. 2.
12 Digital billboards use tremendous amounts of
energy, cause greenhouse gases and generate
e waste.

The Utilities and Service Systems section of the
MND determined that the Project would have no
significant impact related to use of electrical
power because the Project would not require
the relocation or construction of new electrical
power facilities. The billboard would be installed
pursuant to current electrical codes, including
Title 24 of the State Building Code. These
standards would ensure that electrical energy
would be used efficiently. The Greenhouse Gas
Section of the MND finds that the Project would
have a less than significant impact. Operation of
the Project is expected to emit only 6 MT CO2e
per year. This is far below the 660 MT CO2e
per year threshold of significance. In the
Hazards and Hazardous Materials section, the
MND explains that the Project will not generate
any electronic waste. A digital billboard with two
displays consumes approximately 40,000 to
48,000 kilowatt hours (kwH) per year, whereas
the average United States home conserves
approximately 11,000 kwH annually (the 52,400
kwH usage cited in the MND is based on older
technology). Accordingly, substantial evidence
supports a determination the proposed display
would not have a significant impact with respect
to energy consumption.

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13 Digital billboards lower property values and
invite litter and graffiti.

There is no evidence that digital displays invite
blight, and the Project site is located on a
fenced, maintained commercial business.

Moreover, social and economic impacts are not
significant environmental impacts under CEQA.
14 Cal. Code Regs. §15131. Any impact to
property values, litter, or graffiti fall within the
category of social and economic impacts that
do not require consideration under CEQA.
"Argument, speculation, unsubstantiated
opinion or narrative, … does not constitute
substantial evidence" of a significant impact
under CEQA. 14 Cal. Code Regs. § 15384. The
commenter's opinion that the Project may cause
lower property values, litter, and graffiti is highly
speculative, and does not require CEQA
consideration on that basis as well.
14 Digital billboards are a parasite on the roads
and highways taxpayers pay for and they don’t.

Unlike other highway users, billboard
companies do not pay a user fee to maintain
the public right of way without which billboards
have no value. On the roads the public pays for,
will the Gilroy City Council turn its constitutents
into a captive audience forced to see
advertisements they can’t ignore? It’s like
forcing them to pay for only one cable channel
that shows only commercials but no programs.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.
15 Once billboards are erected they are almost
impossible to take down thanks to a state law
requiring their removal be “compensated” by
cash payments to the billboard company for
future lost earnings. Put up digital billboards
today and they will remain in place for
decades…City leaders should think about that,
for if they allow digitals, it will constitute their
legacy.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.
16 Why should the city of Gilroy cater to the desire
of the billboard industry to erect profitable digital
billboards while externalizing all costs to the
taxpayer?
Economic impacts are not significant impacts
under CEQA. 14 Cal. Code Regs. §15131. As a
result, comments related to the taxpayer cost of
the Project do not require a response.

Regardless, the proposed Project affords the
community benefits through the negotiated
development agreement between the City and
the applicant, including free public messaging
space and financial benefits. There are no costs

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to taxpayers, as the applicant is responsible for
maintaining the display through the term of its
operation.
17 Think you can allow only a few digital
billboards? Once in the door, billboard
companies will litigate against restrictions as a
cost of doing business. Los Angeles is a good
example. Here is a link
https://www.latimes.com/opinion/editorials/laed-billboard-ordinance20170605-story.html . In San Jose, the erection of illegal billboards has already tied up the city
in costly court battles that a billboard companies
knows it can’t win but pursues to generate
revenue during protracted litigation. Here’s a
link https://sanjosespotlight.com/battle-overbillboards-san-jose-faces-lawsuit-pushback-onproposed-changes/ And in San Mateo, the city attorney predicts billboard-sponsored litigation
may be in the cards if the city pursues its hastily
concocted plan to allow digitals only on public
property.
https://www.smdailyjournal.com/news/local/san
mateo-considers-ads-on-city-buildings-and
billboards/article_bb9b96c4-2aef-11eb-a5f1
476100872817.html
The applicant has worked collaboratively with
City staff in proposing the Project. This
comment's claims that approval of the digital
billboard will result in billboard companies
bringing litigation in the City are not
substantiated by evidence, and such claims are
based on unrelated circumstances. "Argument,
speculation, unsubstantiated opinion or
narrative, … does not constitute substantial
evidence" of a significant impact under CEQA.
14 Cal. Code Regs. § 15384.

It bears mention that the commenter has not
faithfully communicated the facts of the San
Jose matter. It was a private property owner
that illegally constructed a sign near the
interchange of Highways 101 and 80 in San
Jose — not a sign company — and that sued
the City. (See Attachment A, a March 17, 2021
article from the San Jose Spotlight that reports
on the lawsuit.) Outfront adamantly opposed the
illegal construction of this sign in the City of San
Jose, and in January 2019 notified the
California Department of Transportation about
its construction and encouraged the State to
investigate and take appropriate action to
discourage this activity (see Attachment B,
hereto.)
The comment does not question the content or
conclusions of the MND, so no response is
warranted.

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18 In my view, there are no compelling reasons for
ending the current restrictions on billboards in
Gilroy. Doing so does not provide substantial
benefits to the citizens and taxpayers of your
community. Clearly, this proposal is a violation
of best practices in city governance, urban
planning and responsiveness to preservation
and environmental values overwhelmingly
subscribed to by the majority of the public. The
only beneficiaries of this proposal will be the
billboard companies themselves.

So the question is why even consider spending
staff time to prepare for the erection of digital
billboards without alerting the community in
advance and seeking the voters' opinion? In
San Jose, voters were most upset that city
council members and city staff met with
billboard lobbyists over 50 times and as a result
spent hundreds of thousands of taxpayer
dollars greasing the skids to allow digital
billboards in San Jose before informing the
public. Better to actively seek constituent input
before making such a commitment.

Need less to say, if I can provide you with the
information I mentioned previously, or answer
any questions, do not hesitate to contact me.

Thank you for your attention.

The allegations that the City has not sought
public input is incorrect. Through the MND
process, the City has sought comments and
input form members of the public and public
agencies. Additionally, the City will hold a public
hearing where it will listen to constituent input
before making a final decision on the Project.

Insofar as the commenter alleges the Project is
contrary to best urban planning processes, the
Project site is located in an automobile row
where there exist many lights and signage, and
it is important that cities concentrate such
activities in this manner and not, for instance,
locate them in residential areas. The Project
therefore implements good urban planning
practices, and the MND confirms less-thansignificant land use impacts would result. With respect to community benefits, there are
significant community benefits, including public
messaging time and financial benefits, set forth
in the Project Development Agreement. On the
whole, the comment does not question the
content or conclusions of the MND, so no
additional response is warranted.

B. John Miller (April 2, 2021)
1 The San Jose Planning Department has just
posted a survey of over 2,000 people regarding
their position on digital billboards. You can find
the results here
https://www.sanjoseca.gov/home/showpublishe
ddocument?id=70836
I copied below some of the most impressive
findings.

Opinions from anonymous residents of the City
of San Jose related to their opposition to
billboards is not relevant in the determination if
a digital billboard in Gilroy will have a significant
environmental effect. Speculative lay testimony
that is not based in fact is not substantial
evidence of a significant impact on the
environment. 14 Cal. Code Regs. § 15384. It is
also relevant that the City of San Jose
considered the results of this survey and still
approved two outdoor advertising digital
billboards on Norman Y. Mineta San Jose
International Airport premises.

C. Dan Graeber (August 12, 2022)
1 Please do not vote for the electronic bill board
they will be a major eye sore sucking up
valuable electricity. Our city is
not in Las Vegas and does not need the bright
lights.

For a discussion of the Project's energy use,
see Response A12. For a discussion of the
Project's impacts on aesthetics, see Response
A5.

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18873791.9
2 Plus with the bright lights it will be tough for the
homeless to sleep at night.

The MND determined that the proposed
electronic billboard would not create a
substantial change in illumination levels
because of the preexisting baseline light
source. As a result, the billboard would not have
an impact on the area's homeless population.

The Project site is a fenced, maintained
business, and substantial evidence
demonstrates that light emitted from the display
would not register on a light meter at a distance
of more than 250 feet. For further discussion of
the Project's impacts on aesthetics, see
Response A9.

D. Michelle Maquinalez (August 15, 2022)
1 Hello I’m writing about the proposed billboards.

I don’t believe they are worth our hard earned
money just like the other Starbucks that is being
built. Why not bring in something new/different
instead of another Starbucks. Also the curb by
the new Starbucks on first street at the station
that continues to damage numerous tires and
rims because of poor planning/construction
needs to be repaired.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.

E. John Miller (August 14, 2022)
1 I am writing in opposition to the proposal to
revoke the ban on off-premise advertising and
allow the construction of electronic billboards in
Gilroy. This is an incredibly shortsighted and
just plain bad idea that the city will end up
regretting. Let us review the reasons why:

This comment contains general statements
which do not warrant a response.
2 There is no public outcry in favor of revoking the
existing ban. The only proponents of this
scheme are some auto dealers and billboard
companies. The only people who will make a
sizable amount of money will be the billboard
companies. Why is the City Council so intent to
look after the interests of billboard companies?
Is there nothing else they ought to be doing on
behalf of their actual constituents?
The comment does not question the content or
conclusions of the MND, so no response is
warranted.

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3 Nothing changes the architectural integrity,
historic character and natural environment of a
community more than in-your-face off-premise
advertising mostly promoting products and
services not available at the location of the sign.

I would be surprised if even one member of the
City Council wants to contend such billboards
have no significant aesthetic impact as was
advocated by the billboard-friendly consultancy
that justified declaring a negative declaration.

Just how much did they charge and who paid
them?
For a discussion of the impact of the Project on
the architectural integrity and historic character
of the community, see Response A8.
4 Electronic billboards emit light that interferes
with wildlife and human sleep patterns as well
as triggers individuals with light sensitivity not to
mention distracts drivers and contributes to
traffic accidents
For a discussion of the impact of the Project on
wildlife, see Response A9. For a discussion of
the Project's impact on traffic hazards, see
Response A10. The Project would not impact
human sleep patterns or trigger individuals with
light sensitivity because the proposed electronic
billboard would not create a substantial change
in illumination levels due to baseline light
source and the proposed displays limited light
footprint.
5 Electronic billboards use a lot of energy
(requiring cooling systems during most days),
energy that contributes to greenhouse gas
emissions and that ought to be used for a more
legitimate purpose then subjecting residents to
advertising messages.

For a discussion of the Project's energy use and
greenhouse gas emissions see Response A12.
6 Off-premise advertising has no value if it is not
visible from the publicly financed right of way
whose maintenance is not contributed to by
billboard companies in the way of a user fee.

Why does the City Council believe it has the
right to force tax-paying residents to be a
captive audience to unwanted commercial
messages for which there is no off switch on
streets they paid for? The city may have a legal
right to do so but it does not have an ethical or
moral right.

And would you pay for a cable TV channel that
only televised commercials and no
programming? Why is the City Council asking
their constituents to tolerate the equivalent?
The City has the legal discretion to approve the
proposed Project, and has carefully architected
a zoning ordinance that responsibly imposes
controls on the operation and location of
billboards. The comment does not question the
content or conclusions of the MND, but merely
states an opinion based on personal
preferences. No additional response is
warranted.

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18873791.9
7 What’s the limiting principle at play here? If x
number of off-premise electronic billboards are
“good” then would not y number be even
better? At what point are there too many inyour-face advertising signs and who determines that using what standard?
The comment does not question the content or
conclusions of the MND, so no response is
warranted. We note the Outdoor Advertising Act
and local ordinance determine what number
billboards are allowed on City highways. Here,
the City has elected a minimum spacing
requirement of 1.5 miles between billboards.
8 Do note that once the city of San Jose
amended its sign ordinance to allow electronic
billboards on city property it was only a short
time until a major billboard company illegally
erected two billboards violating the still existing
ban on new billboards on private property. The
city spent an undisclosed amount of money
over several years defending its ban in court
while the signs remained standing and
generating revenue. While the court decided in
favor of the city, the city attorney’s office has yet
to tell us how many staff hours were spent
defending the ban. Now, Outfront Media is
currently suing the city of San Jose for allegedly
unfairly granting the right to construct electronic
billboards at the San Jose Airport to Clear
Channel in violation of city provisions calling for
competitive bidding. On top of that, an article in
a billboard industry publication predicted that if
San Jose persisted in allowing new billboards
on city property while banning them
on private property the industry would sue the
city for restraint of trade and denial of due
process. The moral of this story is, don’t let
even one off-premise billboard company set
foot in your city or the city will be spending a lot
of costly time in court.

For a discussion of the relationship between the
Project potential litigation, see Response A17.

The commenter has misrepresented the facts in
its comment.

Notwithstanding the above, the comment does
not question the content or conclusions of the
MND, so no additional response is warranted.
9 So, proponents of this scheme. Tell us one
more time what’s in it for Gilroy to allow the first
of many off-premise billboards to take root?
Money for the city? An improved local
economy? Off-premise sign-induced "urban
vibrancy"? Please enlighten us.

The commenter is invited to review the Project
Development Agreement, incorporated herein
by reference, for details on the Project's public
benefits.

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18873791.9
10 Some 1,500 communities around the nation
including the states of Alaska, Hawaii, Maine
and Vermont prohibit new offpremise
advertising signs both electronic and
conventional. I am happy to report that
residents there are not starving on the highways
for lack of information on where the nearest
restaurant might be nor are the economies of
those places harmed by not having the alleged
advantages provided by off-premise advertising.

Case in point is the San Jose metro area. For
50 years San Jose banned billboards on public
property and for 37 years have done so on
private property.

None the less San Jose is second in the nation
in terms of per capita domestic product,
achieved without the “benefit" of new billboards.

Beautification (not billboards) is good for the
local economy.

The comment does not question the content or
conclusions of the MND, so no response is
warranted. We note that many, many thousands
of jurisdictions do allow electronic billboards,
and Outfront Media has had many
longstanding, cooperative partnerships with
California cities and counties.
11 To sum up, the proposal before you provides no
public benefit while resulting in many negative
externalities which would be borne by the
public. And once an off-premise billboard goes
up, it is almost impossible to remove, thanks to
your friends in the billboard industry having
lobbied the state legislature to require cash
compensation be paid for the removal of an
existing billboard. How much compensation?
Ask the city of St. Paul, Minnesota whose state
law required them to pay $4 million to remove
just one existing digital billboard.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.

F. Mark Deger (August 22, 2022)
1 I am writing you to communicate my disdain
over the proposal to erect electronic billboards
in Gilroy. I’ve listed a number of my reasons
below.

The comment introduces the letter and does not
question the content or conclusions of the MND,
so no response is warranted.
2 I think that the aesthetics would be offensive
and make us look like a low-class commercial
community. These items are usually dumped on
poorer communities who do not have the power
or influence to prevent it from happening.

For a discussion of the Project's impacts on
aesthetics, see Response A5. Please also see
Responses A18 and E6 regarding the Project's
implementation of important land use planning
policies.
3 The light emitted from the billboards would add
to light pollution that is not productive. This
harms people with light sensitivity more
adversely.

For a discussion of the impact of the Project on
people with light sensitivity, see Response E4.

Please also see Response A18 for an
explanation of the brightness standards under
which the proposed display will be operated.
4 They will distract drivers traveling on freeway
101.

For a discussion of the Project's impact on
traffic hazards, see Response A10.

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18873791.9
5 They would probably interfere with the nocturnal
population of beneficial insects and vertebrates
to agriculture.

For a discussion of the Project's impacts on
biological resources, see Response A9.
6 Electronic billboards are expensive so mostly
large corporations would afford them, shutting
out local businesses.

Economic impacts are not significant
environmental impacts under CEQA. 14 Cal.

Code Regs. §15131. As a result, the comment's
allegations that local businesses will not be able
to afford advertising on the electronic billboards
is not a significant impact under CEQA and
does not warrant a response.
7 People should be free to move about public
spaces without being exposed to advertising.

This comment does not address environmental
impacts under CEQA, therefore no response is
warranted.
8 The billboards add to materialism, making
people feel unhappy and unsuccessful if they
can’t afford the items advertised. They exploit
and deepen inequality.

This comment does not address environmental
impacts under CEQA, therefore no response is
warranted.
9 They promote unsustainable consumption
during a period of adverse climate changes
Please see Response A12.
10 Electronic billboards consume 10 times the
energy of a single-family home.

For a discussion of the Project's energy use,
see Response A12. This comment is
inaccurate. Operation of the Project would
result in an estimated use of 40,000 to 48,000
kwH per year (the MND's 52,400 kwH estimate
is based on outdated technology) while an
average U.S. household consumes about
11,000 kwH per year (according to the U.S.

Energy Information Administration.) Thus, the
Project utilizes approximately 3.6 to 4.4 times
the energy of a single family home.
11 Adding an ordinance to allow this project opens
the door for more billboards in the future. We
have smaller monstrosities along
Masten/Fitzgerald/Santa Teresa. We don’t need
monstrous electronic versions.

An MND is only required to analyze the impacts
from the Project's reasonably foreseeable direct
and indirect physical impacts on the
environment and cumulative impacts with other
reasonably foreseeable projects. It is
speculative whether additional billboards will be
constructed in the future, and therefore they are
outside of the scope of the MND. There are no
other pending applications for electronic
billboards in the City, and it is important to
recognize the City's proposed ordinance
imposes stringent controls on new digital
displays, including size restrictions and a 1.5-
mile minimum spacing requirement would
apply. Please see Responses A9 and A10.

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18873791.9
12 I would like to see the content of the
appendices that have been omitted from the
report used to rubber-stamp this project.

The appendices to the EIR are publicly
available in a manner consistent with the,
including on the City's web site at
https://www.cityofgilroy.org/298/DevelopmentActivity-Projects. 13 I will be deeply disappointed if Gilroy adds
these monstrosities to our community. Gilroy
has been a pleasant break from the
commercialism and materialism of the Bay
area.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.

G. John Bauters (August 24, 2022)
1 Thank you for considering this public comment
with respect to the proposed Mitigated Negative
Declaration for an electronic billboard along
Hwy 101 in Gilroy. My comments are specific to
two sets of findings/conclusions that I do not
believe are adequately researched or discussed
in the document, and leave significant
environmental impacts unmitigated.

As explained in detail below, Project MND fully
complies with all applicable requirements CEQA
and adequately analyzes and mitigates all
potentially significant impacts.
2 The discussion of Biological Resources
correctly identifies impacts on birds and other
wildlife as an issue to review, but includes an
inappropriately abridged scope of review that
jeopardizes endangered birds, including
migratory species, that live in this area and
migrate through this area.

The discussion in Section 2.4 and then again in

2.20 is overly-focused on the construction site --
a small parcel along Hwy 101. The lack of nests
by migratory or endangered birds is cited as a
reason for lower concern and the proposed
mitigation is how to handle construction in the
event a nest is discovered.

While this is good, it is insufficient. Birds are
dramatically impacted by large, elevated LED
signs. There are extensive reports and studies
on how LED signs confuse migratory birds,
disorienting them at night; how they impair their
reproductive functions; and how night predators
lose the ability to hunt effectively as these
billboards make their ability to find food difficult.

Bright spaces like this can have impacts for a
multiple mile radius from a high-rise sign, which
can eliminate spaces where both migratory and
non-migratory birds can nest. The white-tailed
kite, cited in Section 2.4, may not have a known
sighting within a couple miles of the project site,
but the addition of such a sign in one of the only
The Project is a 60-foot, single-sided display
located in an urban parking lot adjacent to a
highway and other urban uses, including
automobile dealerships and other light-intensive
uses. The proposed display, meanwhile, will
emit light that will abide by a standard of 0.3
foot candles at 250 feet, and light beyond that
perimeter is generally indiscernible and does
not register on a light meter. As discussed in
the MND, there were no white-tailed kite nests
or other migratory bird nests observed near the
Project site, and the closest potential foraging
site is a vacant parcel to the east of Automall
Parkway and north of the Princevalle Channel,
located approximately 850 feet to the northeast
of the proposed display location. Contrary to the
commenters assertions, while the white-tailed
kite is a protected species, the City of Gilroy is
not one of the only zones in the United Space
where the species is known to exist, maps
published by the California Department of Fish
and Wildlife, the species' habitat ranges along
the entire California Coast and Central Valley
(see Attachment C, hereto). The white-tailed
kite also hunts by day and is not, per the
California Department of Fish and Wildlife, a
migratory bird (see Attachment D, attached
hereto). The commenter's claim that the species
would be disoriented at night and has a limited

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18873791.9
zones in the United States where the species is
known to exist further harms it's population and
puts the species at risk. There is no discussion
of any of the significant research being
conducted into how LED signs impact migration
patterns, reproductive patterns, hunting/food
sourcing, or nesting. The date points provided
in the report fail to address these issues
adequately and the scope of review is limited
almost exclusively to the parcel itself, which
does not adequately address the reality of a
larger geographic impact this kind of light has
on birds.
range that would be disrupted is contradicted by
reliable evidence prepared by the State agency
tasked with protecting the species.

For further discussion of the Project's impacts
on biological resources, see Response A9. The
MND does address the potential impact of
artificial light on migratory birds. Substantial
evidence supports the MND's conclusion that
the Project will not have a significant impact on
migration patterns, reproductive patterns,
hunting/food sourcing, or nesting because it
would not create a substantial change in
illumination levels as described in Section 2.1 of
the MND. In other words, the illumination would
not be significant by itself, and especially when
compared to the existing light sources in the
project area including local street lighting,
parking lot lighting, other illuminated billboards
at nearby auto dealerships, headlights from
automobile traffic, and highway lighting
structures.

The commenter is not an expert in biological
resources, and his lay opinion regarding the
impacts of the Project on the white-tailed kite
does not amount to substantial evidence.

Newtown Preservation Society v. County of El
Dorado (2021) 65 Cal.App.5th 771, 790-791.

Additionally, the studies that the commenter
references, but does not provide, are general
studies that are not specific to the Project, and
therefore cannot be used to demonstrate a
significant environmental impact under CEQA.

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18873791.9
3 Section 2.20 of the report states that there are
some impacts on humans but that all of those
can or will be mitigated, as discussed
throughout the document. There is no
discussion about how these types of bright
lights impact circadian rhythym (sleep),
especially in children. Bright lights can and do
impact and are harmful to the development of
children. Sleep is one of the most important
components of healthy child development,
which is necessary for proper brain
development, educational attainment, and is
also linked to attention/focus, and mood. Bright
LED lights on billboards create light pollution
much greater than the ambient levels of street
lights and other night-time lights which are often
much closer to the ground. The UV levels in
these lights will create lighter sleep levels,
disrupt sleep, and negatively impact human
health and growth. There are significant
residential communities proximate to
the proposed billboard site which will
experience the impacts of the proposed
billboard sign. The report does not demonstrate
adequate study or review of how the location of
this sign and the reach of the projected LED
lights will change the light pollution baselines in
residential areas near the sign, and what that
could mean for human health - especially
developing children.
https://ncceh.ca/documents/fieldinquiry/
health-effects-large-led-screens-local-residents
The Project would not impact human sleep
patterns or trigger individuals with light
sensitivity because the proposed electronic
billboard would not create a substantial change
in illumination levels due to baseline light
source. As discussed in Response A9, LED
displays do not cast light farther than 250 feet
from the sign's facing. Moreover, there are no
nearby sensitive receptors located near the
proposed display's location. Per the MND, the
nearest sensitive receptors are residents of the
Monterey Gateway Apartments, which are
located approximately 1,372 feet west of the
site and on the far side of multiple roadways
and intervening structures. Moreover, the sign
will be oriented toward the highway, and will not
face west.

The comment cites to a 2013 Canadian case
study, that was not peer reviewed, about the
potential for LED screens for a sports stadium
to cause potential health effects such as
photosensitive epilepsy. This study does not
identify the distance the residents were located
from the screens, and it concludes that the
screen would likely avoid retinal damage.

Additionally, it acknowledges that further
information was needed in order to conduct a
thorough assessment. This cannot be relied
upon as evidence that the Project will have
significant health impacts.
4 Finally, a sign like this is not necessary. The
City of Gilroy has had a good ordinance that
prohibits these types of signs for a long time -
and for a good reason. Drivers do not need
additional distractions on the roadways. At
night, bright lights will only further impair driver
abilities on the road, putting all road users at
greater risk as a result.

For a discussion of the Project's impact on
traffic hazards, see Response A10.

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18873791.9
5 These bright signs are little more than a
proverbial "tramp stamp" in the sky - letting
people from miles away know that the city is so
cheap that it has to resort to bright light
commercial ads as it's community identify.

Gilroy can and should be a place people are
proud to be from - one that doesn't need
additional light pollution that will harm children's
development or impair our local environmental
wildlife resources. I hope that planning
commission will give careful consideration to
both the adequacy of this report as well as the
necessity of this sign. Bright signs originated
years ago to tell motorists where there was safe
lodging at night, where there was food or fuel to
continue their journey, or where a local medical
center was if help was needed. Today, we allow
any commercial advertisement to be put up
along a roadway. Making them electronic
undermines the original purpose behind
electronic roadway signs, diminishes the
character of our community, and harms our
greatest assets: our environment and our
children. Please vote against accepting this
proposed Mitigated Negative Declaration.

Thanks for your time and consideration
This comment summarizes prior comments that
have been addressed in the responses above.

H Maria Aguilar (August 28, 2022)
1 I am writing in opposition of amending
ordinance 30.37.30 prohibited signs within 660
feet off highway 101.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.
2 I believe this to be a distraction for drivers, this
is an area where traffic becomes congested and
this could cause accidents.

For a discussion of the Project's impact on
traffic hazards, see Response A10.
3 These signs are large and unsightly, if the
ordinance gets changed it opens the door for
other signs to be erected.

The MND is not required to evaluate the
impacts of future billboard projects, for a
discussion on this topic see Responses A18
and F11
I Dr. Paul D. Lynam, Lick Observatory (April
26, 2021)
1 For almost 140 years, the people of the Valley
of Heart's Delight and the University of
California's Lick Observatory have enjoyed a
fruitful relationship. The city fathers of the Bay
Area have consistently supported the
observatory's ability to stay at the forefront of
astronomy and technological innovation.

Strategically located atop Mount Hamilton since
This comment provides an introduction and
background on Lick Observatory. The comment
does not question the content or conclusions of
the MND, so no response is warranted.

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18873791.9
the 1880s, the observatory's threshold is
crossed by some 35,000 visitors annually.

Thousands more enjoy its scenic approaches
and hinterland for recreation. New worlds
continue to be discovered from within sight of
the City of Gilroy. Lick Observatory maintains a
global reputation as an authority on
astronomical matters. For decades, the
observatory has advised local authorities on
lighting ordinances, including (in the 1960s and
1970s) the deployment of sodium lighting,
subsequent upgrades to Iight emitting diode
(LED) technologies and, most recently, the
deployment of electronic billboards.
2 Naturally, from a purely astronomical
perspective, it would be best to have no
electronic billboards at all. However, guidelines
to minimize damage to dark skies by electronic
billboards, developed by the International DarkSky Association, inform Lick Observatory's recommendations to reduce negative impacts.

They include: limits on brightness, a curfew for
turning off signs at 11 p.m. or midnight,
constraints on sign size and density, use of
lower-temperature (less blue light) LEDs, tilting
electronic billboards downwards by 15 degrees
and ensuring mechanical shielding is installed
to reduce light being scattered upwards.

Light pollution, in large part, is a consequence
of the physics of ever-present aerosols (e.g.
water vapor, particles, etc.), which preferentially
redirect light. Hence, mechanical design of
responsible lighting fixtures seeks to minimize
wasted light. In contrast, billboards intentionally
project light laterally. Thus, billboards
disproportionately compound already-vexatious
light pollution via two mechanisms. First,
billboards add to pollution intensity. The
efficiency of electronic illumination represents a
manyfold increase in wasted light, compared
with former illumination methods. Second, the
nature of LED technology (i.e. combining
emission from multiple intensity peaks)
contaminates the entire visible spectrum,
whereas incandescent or discharge (e.g.
sodium) lighting consists of isolated spectral
peaks, with adjacent spectral regions free from
contamination. In sum, proliferation of electronic
For a discussion of the Project's impact on Lick
Observatory, see Response A11. Please also
see Response A5. Substantial evidence shows
that digital billboards are in fact less obtrusive
than traditional displays, as digital billboards
have superior technology that directs light at
limited audiences (here, motorists). By
contrast, traditional displays are illuminated by
reflecting light sources of the display's facings,
at levels that are 31 to 212 brighter than LED
bulbs. Ultimately, the LED displays proposed
here will direct light downward at the nearby
highway, as set forth in greater detail below.

The billboards will also abide by brightness
standards that ensure the sign will cast 0.3 foot
candles at 250 feet (see Attachment E, hereto.)
While the sign is visible beyond that distance,
lighting levels beyond 250 feet will generally not
register on a light meter. We note the proposed
display is 25 miles away from the observatory,
and there is no evidence the display will affect,
individual or cumulatively observatory
operations. Notwithstanding the above, impacts
on such operations are not cognizable under
CEQA.

The commenter's observations on LED lights in
comparison to traditional sign illumination are
incorrect; in fact, there is significantly greater
sky glow associated with older technologies.

To reach an audience, the illumination of
traditional billboards is imprecise; the billboard
face is blasted with light at a level

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18873791.9
billboards along the State highway 101 corridor
(including in-and-around the City of Gilroy)
would render a deleterious impact upon Lick
Observatory.
ranging from 31 to 312 times the brightness of
an LED bulb (where brightness depends on
color), and light reflects off the sign's vinyl
surface in all different directions. As such, the
target audience is reached along with a host of
others, and this is why receptors see, for
instance, sky glow from traditional, illuminated
signs.

The Project adopts new technology that
reduces horizon light and skyglow. The
billboards utilize a combination of (a) long and
short louvers, (b) internally lensed diodes with
outputs of 25° down and 20° up and finally
(c) the mounting of the diodes at a 6° downward
angle. With reference to horizon, this results in
an overall output of 31° below and 14° above.

This reduces skyglow by 60% as compared to
an ordinary output of 35° above (see
Attachment E).

The comment assumes that the billboard
creates white light the same way as LED street
lights, this is not so. LED light output is across a
broad spectrum, and blue is strong and wide
nearing the ultra violet spectrum. The Project
uses three primary colors of narrow band light
to create light. As a result, the spectral radiance
is far lower than an LED street light (see
Attachment F for a comparison of the spectral
radiance of LEDs versus a billboard).

The comment refers to the International DarkSky Association’s (2019) Guidance for Electronic Message Centers and suggests that
the Project has not incorporated best practices.

Guidance from non-regulatory agencies and
extraterritorial jurisdictions is not binding on the
City of Gilroy. Additionally, the Project does in
fact comply with many of the best management
practices identified in this document, and would
emit light at one-sixth the brightness level
allowed by State law. The Project also complies
with the best management practices and
standards related to sensitive area setbacks,
size limits, and density limits.

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18873791.9
3 Typically, local authorities engage public
opinion when considering changes to
ordinances. Experience shows that the
overwhelming majority of contributors perceive
the most compelling arguments against
electronic billboards to be the well-established
detrimental consequences on human health
and safety, the similarly well-established
impacts on wildlife habits and habitats, and
aesthetic visual blight. For the most part, the
needs of observatories are well-aligned with
majority public opinion. The University of
California's Lick Observatory encourages the
City of Gilroy to perform due diligence during
deliberations regarding the proposed
deployment of electronic billboards (e.g. by
canvassing a fair, balanced representation of
community/stakeholder opinion and undertaking
a full and proper environmental impact
assessment). The observatory remains
available to advise on these matters, while
continuing to foster the fruitful relationship that
has persisted for well over a century.

Through the MND process, the City is engaging
public opinion by receiving and responding to
comments and holding public hearings. For a
discussion of the Project's impact on human
health, see Response G3. For a discussion of
the Project's impacts on wildlife, see Response
A9. For a discussion of the Project's impact on
aesthetics, see Responses A5, A9, A10, and
A13.

J Dr. Paul D. Lynam, Lick Observatory
(September 5, 2022)
1 The University of California Observatories’ Lick
Observatory (UCO/Lick) - the world's first high
altitude astronomical observatory - hosts 10
telescopes, plus multiple cutting-edge research
instruments atop Mount Hamilton, 25 miles
north of Gilroy. Named in classic literature and
from Apollo 11’s Tranquility Base, the
observatory routinely opens new vistas on the
universe, discovers new worlds, develops new
technology, educates science and “tech-savvy”
students and inspires all comers.

Lick Observatory leads the world, setting
standards on astronomical matters. Annually,
the observatory serves hundreds of faculty
(including Nobel laureates) and students of the
University of California, in addition to 35,000
visitors. This cannot be achieved without a
fruitful relationship between the observatory and
neighboring settlements.

This comment provides an introduction and
background on Lick Observatory. The comment
does not question the content or conclusions of
the MND, so no response is warranted.
2 As outlined in written (26 April 2021) and
spoken (15 August 2022) contributions to Gilroy
City Council, I reiterate that the proposed
Electronic Billboard Ordinance and Sign Permit
For a discussion of the Project's impact on Lick
Observatory, see Response A11 and
Responses I-1 to I-3. Please note that impacts
on astronomical study are not environmental

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18873791.9
proposal (described in the 4 August 2022 Initial
Study) shall render a disproportionate and
deleterious impact on astronomical pursuits,
fauna, flora and public health. From an
astronomical perspective, it would be ideal to
have no illuminating sources at all. However,
UCO/Lick has no wish to crusade in pursuit of
this ideal. A higher aspiration is to sustain the
rapport and understanding between neighboring
communities and observatory
that has endured since the 1870s. Responsibly
installed billboards may confer benefits to the
community. Distressingly, however, the Initial
Study is unbalanced in its failure to consider
negative effects of electronic billboards on
astronomy. For example, the International DarkSky Association’s (2019) Guidance for Electronic Message Centers (repeatedly
advocated for in previous contributions)
continues to be neglected. As a result of such
omissions, the Initial Study cannot be
considered to be representative of best
practice.
impacts under CEQA. Notwithstanding the
above, please note also there is no evidence
the proposed display, which abides by
restrictive light standards, will have any
cognizable individual or cumulative impact on
the Lick Observatory's operations.
3 Experience regarding proposed electronic
billboards elsewhere in Santa Clara County
shows that the needs of Lick Observatory align
with public opinion: a (2021) survey conducted
by the City of San Jose Planning Department
revealed 93% opposition. Expert advisors (e.g.

Norman Y. Mineta San Jose international
Airport Commission) repeatedly recommended
against billboards. The City of San Jose is now
subject to litigation from competing outdoor
advertising interests.

For a discussion of why this survey of San Jose
residents is not relevant to the determination of
whether the Project will have a significant
impact under CEQA, see Response B1. For a
discussion of why litigation in other jurisdiction
is not relevant to the determination of whether
the Project will have a significant impact under
CEQA, see Response A17.
4 Quite apart from astronomers’ niche concerns,
the most commonly cited objection to billboards
(electronic and conventional) is visual blight.

Billboards are notorious for intrusive, poorlymaintained, malfunctioning, decrepit and unsightly structures – often imposed on underserved neighborhoods For a discussion of the Project's impacts on
aesthetics and blight, see Responses A5 and
A13.
5 The outdoor advertising industry is noted (even
celebrated) for wasteful practices.

The comment does not question the content or
conclusions of the MND, so no response is
warranted.
6 Outdoor advertising typically constitutes a minor
fraction of overall advertising budgets. As
The comment does not question the content or
conclusions of the MND, so no response is
warranted.

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18873791.9
on-line media continues to grow, revenues
derived from outdoor advertising are projected
to decline.
7 Regardless of whether one favors or opposes
electronic billboards, it must be acknowledged
that the Initial Study has failed to
allay concerns. Thus, a full-and-proper
Environmental Impact Report should ultimately
be undertaken. However, in order to
avoid embarking on such a costly endeavor
unnecessarily, the City of Gilroy is first urged to
proactively canvass the community
in an effort to gain insight into the public attitude
and reception to electronic billboards.

The MND adequately discusses and mitigates
all potential significant impacts to the
environment, and therefore, an Environmental
Impact Report ("EIR") is not required under
CEQA.

K Shani Kleinhaus, Santa Clara Valley
Audubon Society and Gladwyn D’Souza
Conservation Committee Chair Sierra Club
Loma Prieta Chapter (September 6, 2022)
1 Santa Clara Valley Audubon Society and Sierra
Club Loma Prieta Chapter submit the following
comments and responses to highlight the
shortcomings of the Initial Study/Draft Mitigated
Negative Declaration and the environmental
impacts that would result from implementation
of the Electronic Billboard
Ordinance Project in the City of Gilroy. The
comments with attached references provide
unequivocal scientific evidence to establish the
significant and unavoidable harm that Artificial
Light At Night (ALAN) in general, and electronic
billboards specifically, impose on human health
and on ecosystems. The IS/DMND does not
adequately address these issues.

This comment introduces the issues raised in
the letter, the responses below explain in detail
that the MND adequately addressed the
impacts of the electronic billboard on human
health and biological resources.
2 In March 2021, Sierra Club National adopted a
new light pollution policy: “Sierra Club
recognizes that while artificial light provides
desirable benefits to society, such as extended
hours of social space at night, its excessive,
inappropriate and poorly controlled use also
leads to significant harm. Sierra Club defines
light pollution as artificial light that adversely
affects ecosystems and any living organism.

Sierra Club includes in this definition
anthropogenic light that is wasteful, or
misdirected; has negative ecological impacts; is
used as a form of aggression; is harmful to
health, safety, or other human rights; or disrupts
our view of the natural night sky, disconnecting
While the Sierra Club’s policy statement sets
forth the organization’s goals and objectives
with regard to ALAN, the policy does not include
comments on the adequacy of the analysis in
the MND for this specific project and, therefore,
does not require a direct response under
CEQA. The design and operational
characteristics of the proposed electronic signs
are specifically intended to address the adverse
effects of ALAN and are consistent with the
objectives of the Sierra Club’s policy.

For a discussion of the Project's impact on
biological resources, see Response A9.

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us from our cosmic environment, including the
Milky Way Galaxy where we live. Therefore,
light pollution imposes natural resources,
economic, biological, political, psychological,
and cultural burdens.” In addition, the Sierra
Club retained a 60-year policy which “opposes
billboard development along highways and
supports measures to restrict these billboards.”
The Sierra club policy is supported by a
comprehensive compilation of resources
pointing to the significant impacts of ALAN,
please see “Attachment ResourcesReferences-LightPollutionPolicy_20210307,” attached, and the recently published “Artificial
Light at Night: State of the Science 2022”1. The
information and scientific studies referenced in
this attachment point to the devastating impact
of lighting on ecosystems and organisms that
comprise our biological resources and our
health. The Santa Clara Valley Audubon
Society (SCVAS) is similarly concerned with the
proliferation of ALAN and its pervasive harm to
organisms, species, ecological food webs, and
human health and safety. SCVAS is one of the
largest National Audubon Society chapters in
California, and its mission is to promote the
enjoyment, understanding, and protection of
birds and other wildlife by engaging people of
all ages in birding, education, and conservation.
3 Our organizations and our thousands of
members in the region are working to protect
our common natural resources, and we are
greatly concerned with detrimental impacts of
electronic billboards and signs to biological
resources, the night sky, the aesthetic character
of our City of Gilroy and region, and the health
and quality of life of our region’s residents. We
are opposed to allowing electronic billboards
and encourage the City of Gilroy to tighten
regulation and reduce, rather than increase
their prevalence and impacts. We believe that
electronic billboards anywhere, including at the
proposed location, will cause significant and
irreversible harm to the biological and aesthetic
environment resources. We encourage the City
of Gilroy to amend its sign ordinance to prohibit
highway-facing and major-road
facing electronic billboards.

This comment expresses the purpose of the
Sierra Club and the Audubon Society and their
opposition to electronic billboards. The
comment does not question the content or
conclusions of the MND, so no response is
warranted. Please see Responses A5, A9, A10,
and A13 for information concerning the
proposed display's lighting and aesthetic
impacts. Please note the City's sign ordinance
allows limited digital displays under very
restrictive conditions, and has minimum spacing
requirements of 1.5 miles.

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4 Aesthetic Resources
Electronic signs are, by design, intended to be
viewed from a distance. By design, electronic
billboards offend aesthetics and visual
character, and produce day and nighttime
illumination, light and glare. The public abhors
them. A 2021 survey conducted by the City of
San Jose revealed that over 95% of over 2200
respondents are strongly opposed to electronic
billboards on freeways (presentation attached).

The concerns over aesthetics were one of the
primary reasons provided by the opposing
respondents. Highway 101 in this area is not, by
designation, a scenic highway. But the public
and the drivers clearly consider electronic
advertisement “a form of aggression” which
assaults our senses and health, and imperils
drivers as it diverts their attention and puts them
at an increased risk of collision.
● The entire portion of US-101 that passes
through the City of Gilroy is a
County-designated scenic route, and is only
approximately 660 feet east of the proposed
billboard site. The Project clearly intends the
advertisements to be highly visible from
US-101 which traverses a relatively rural
landscape in Gilroy and its vicinity, a rural
landscape that travelers value. The Project will
disrupt the visual character of the 101
corridor, despoil scenic elements, and offend
landscape characteristics that contribute to
the rural character of the Bay Area south of San
Jose and to the well being of travelers.

For a discussion of the Project's impacts on
aesthetics, see Responses A5, A9, A10, and
A13. For a discussion of why this survey of the
opinions San Jose residents is not relevant to
the determination of whether the Project will
have a significant impact under CEQA, see
Response B1. Notably, the City of San Jose
considered the public's input and still proceeded
to approve electronic billboards.

The MND fully evaluated light levels. First, light
levels from the electronic billboard would only
be perceptible up to 250 feet away (see
Response A9), and will not cast light on scenic
resource located outside that perimeter.

Signage is readable beyond 250 feet, but it is
important to note that, here, the proposed
display is located in an urbanized area,
surrounding by a parking lot and structures on
the western side of the adjacent highway and
by structures on the east side of the highway.

As detailed in Response A9, the existing urban
environment is replete with other sources of
light and signage, as well as commercial and
industrial uses. Vegetated, rural highway
segments begin well more than 1/2 mile south
of the proposed display location and many
miles north of the proposed display location
and, due to intervening highway geometry and
topography, the proposed sign would not be
visible from more rural highway segments.

Nor would the proposed display, as detailed in
the MND, substantially obstruct any views of
scenic resources. Consistent with Appendix G
of the CEQA Guidelines, the MND evaluates
impacts on scenic resources within a State
Scenic Highway. To the extent zoning
regulations address scenic resources, as noted
in the City's General Plan, the purpose of scenic
routes is to protect ‘high quality vistas’ and
‘important scenic qualities’ (see General Plan
Natural and Cultural Resources, Goal NCR,
Policies NCR 2.1 & 2.3.) The Project would not
have a substantial adverse effect on a scenic
vista or damage scenic resources because it
will be located in an urban infill site,
characterized by numerous existing signs,

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lights, parking lots, industrial building (including
automobile dealerships), and other elements of
the urban landscape (see Attachment G,
hereto). While portions of Gilroy constitute a
rural setting, the location of the project site is
within the context of the City's auto-row, with
multiple dealerships and other commercial
venues, including a Tesla dealership, Chevrolet
dealership, automobile repair shops, gas
stations, recycling centers, and other
commercial and industrial buildings.

Additionally, the MND analyzes the Project's
potential impact on traffic hazards and
determined that the impact would be less than
significant. For a discussion of the Project's
impact on traffic hazards, see Response A10.
5 ● The finding that aesthetic impacts of Light and
Glare are less than significant relies on
Mitigation Measure MM AES-1 “The signs’
operational lighting parameters shall be
provided to the City of Gilroy Community
Development Department for review and
approval prior to the regular operation of the
light-emitting diode (LED) billboards, and shall
be implemented by the project proponent to
ensure a driver would not be adversely affected
or impacted by trespass glare lighting.”
○ Since drivers overwhelmingly and
unequivocally find that electronic billboards
affect them, there is no feasible way to “ensure
a driver would not be adversely affected or
impacted by trespass glare lighting”.

There is no doubt that impact on Aesthetic
Resources is significant and unavoidable, and
should be recognized as such in an
Environmental Impact Repost and a Statement
of Overriding considerations.

The Project's operational parameters are selfmitigating and Mitigation Measure AES-1 in the MND merely provides the City with confirmation
that these operational parameters are followed.

Specifically, Mitigation Measure AES-1
requires City review and confirmation that the
sign complies with the following operational
standards: (1) the frequency at which electronic
advertisements will change, referred to as
"dwell time," will not occur more frequently than
eight seconds; and (2) the brightness at which
Outfront will broadcast the proposed electronic
messaging will not exceed 0.3 foot candles at
250 feet. See Letter From Project Proponent re
Outdoor Advertising Display 6490 Auto Mall
Parkway (March 21, 2021), p. 1. The MND
determined that these parameters would reduce
any impact to a less than significant level, and
therefore, no EIR or Statement of Overriding
Considerations is required. The MND defers no
analysis and, to clarify, Measure AES-1 is
merely a mitigation meant to assure the display
is operating as proposed.

Regarding driver distraction, please see
Response A10. All evidence demonstrates that
electronic billboards do not have a safety
impact with respect to drivers.
6 Biological Resources: For a discussion of the Project's impact on biological resources, see Response A9. The

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The Biological Report underestimates the
potential impact to ecosystems including those
non-special status species that may make use
of the adjacent Princevalle drainage that benefit
from its water and relative cover and including
those that may transit it between the larger
habitats of Uvas Creek and Llagas Creek.

Recent scientific studies highlight the pervasive,
cumulative, and harmful impacts of ALAN to
terrestrial and aquatic organisms, species, and
ecosystems. The impacts, including effects on
circadian rhythms, metabolism and behavior in
fish, birds, insects, and other taxa, have been
summarized in several recent publications in
major scientific journals. It seems that CEQA
guidelines have not caught up and are
inadequate to measure the impact to biological
resources. Science shows that ALAN is harmful
to all biological resources that see or otherwise
perceive it - including both plants and animals.

The many studies cited in this and the attached
document show that biological impacts are not
limited to the area illuminated but can extend to
a large distance.

The mechanism by which light impacts
organisms is explored in a November 2020
study titled “Exposure to Artificial Light at Night
and the Consequences for Flora, Fauna, and
Ecosystems.”
This study shows that dozens of behavioral
activities in all biological taxa display daily and
annual rhythms, and are thus impacted by
ALAN. This includes locomotor activity and
sleep, schooling behavior (fish), vertical (fish)
and horizontal (all vertebrates) migration,
behavioral hermoregulation (fish), vocalization
(fish, birds), foraging and food intake, mating
and reproduction.

Contemporary scientific evidence shows that
attraction to light is having a devastating and
direct impact on insect numbers and diversity,
and indirect effects to entire ecosystems.

Impacts to biological resources can be lessened
by limiting operation hours, and turning the
billboards off between the hours of 11PM and
8AM.

MND contains considerable discussion of the
reasons why impacts of increased lighting
would not result in significant impacts on
biological resources. The MND concluded that
the minor increases in lighting levels would be
less than significant due to baseline lighting
conditions. CEQA requires an evaluation of
impacts relative to baseline conditions, not
relative to a hypothetical, undegraded condition
that does not exist at the project site.

This comment acknowledges that it is
concerned about the Project's impact on nonspecial status species that utilize the Princevalle drainage. Under the CEQA
thresholds of significance, only impacts to
species identified as a candidate, sensitive, or
special-status species in local or regional plans,
policies, or regulations, or by the California
Department of Fish and Wildlife or United
States Fish and Wildlife Service are considered
significant. A qualified biologist conducted a site
survey (Appendix C) and determined that the
white-tailed kite was the only special status
species with potential to occur in the vicinity. In
undertaking this analysis, the MND's supporting
biological report evaluated the potential for
species potentially associated with aquatic
habitat to occur in the Princevalle Channel
specifically, and determined it does not contain
suitable habitat to support the California tiger
salamander, California red-legged frog, tricolored blackbird, white-tailed kite, least Bell's vireo, Monterey hitch, steelhead, or western
pond turtle. The channel, located approximately
50 feet north of the proposed display, is a manmade channel constructed for stormwater drainage purposes that does not contain State
or federally protected wetlands. Conservatively,
the MND determined that only construction
impacts could indirectly occur, and prescribed
appropriate mitigation. All evidence
demonstrates there are no protected species in
the storm drainage ditch at issue, and therefore
Project lighting impacts would not have the
potential to occur.

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Recent studies also implicate ALAN as one of
the primary drivers of the global decline in
insect numbers and diversity (the insect
apocalypse) The loss of insects and the loss of
ecological services they provide (for example,
pollination, and as food for fish and birds)
should be considered a significant, unavoidable
impact for 24/7 light sources as proposed for
this Project.

The comment identifies very general categories
of animals that could be impacted by exposure
to artificial light at night, but has not identified
any special status species that may be
impacted. It relies on a 2020 French study titled,
“Exposure to Artificial Light at Night and the
Consequences for Flora, Fauna, and
Ecosystems.” This study does not address the
specific impacts of billboards; rather, it just
discusses the impacts of LEDs in general,
though acknowledges much of the supporting
data "necessarily comes from older lighting
technology."
It acknowledges that "the avian responses to
ALAN are complex, depending very much on
the species, sex and age, geographical area as
well as on the experimental conditions." It does
not discuss white-tailed kite or any kind of
raptor. Moreover, the study presupposes the
proximity of various fauna whereas, with
respect to the Project site, there is no evidence
that any protected species or habitat exists in its
vicinity other than a remote change the whitetailed kite will nest or forage nearby. An overriding consideration here is that the Project
site is located amid a highly urbanized,
highway-adjacent location that is replete with
lights and illuminated signage. The Project itself
has a very small light footprint, and there is no
evidence the proposed display's light would
impact, individually or cumulatively, any
protected species.

This generalized study cited by the commenter
does not amount to substantial evidence of a
significant impact on biological resource on the
fauna found in Gilroy. The commenter also
includes an uncurated list of other reports, but
does not utilize them for the purpose of
supporting any specific argument, and
specifically acknowledges that "this list should
not be construed as an endorsement by Sierra
Club."
7 Migratory birds
The IS/DNMD acknowledges that “migrating
birds can be affected by human-built structures
For a discussion of the Project's impact on
migratory birds, see Response G2.

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because of their propensity to migrate at night,
their low flight altitudes, and their tendency to
be disoriented by artificial light, which makes
them vulnerable to collision with obstructions
that could potentially lead to injury or mortality.

In addition, birds migrating at night can be
strongly
attracted to sources of artificial light, particularly
during periods of inclement weather”. The
IS/DMND provides two reasons why the
”proposed electronic billboard would not have a
significant impact on the movement of migrating
birds” (IS/DNMD p. 41). These reasons and the
findings are not supported by evidence:
● Illuminations levels – The IS/DMND implies
that the “proposed electronic billboard
would not create a substantial change in
illumination levels' ' from the baseline light
sources in the area” (IS/DNMD p. 41). This is a
subjective opinion. To substantiate this
statement, a photometric study and a study of
glare and light spillage must be provided,
and light levels and the spectrum of the LED
lights should be analyzed within a
biological-impact context.
● Billboard sign face display – The IS/DMND
states that the proposed billboard sign face
would not be allowed to change “more than
every 8 seconds, and messages would be
static (i.e., not moving, or animated) resulting in
changing color patters [sic] rather than
a fixed unchanging light which may be more
attractive to birds'' (IS/DNMD p. 41). There
is no research to indicate what is an effective
length of time a billboard image should be
displayed to reduce the attraction to birds. The
proposed 8 second interval is arbitrary.

Therefore, the IS/DNMD does not show that
there is a less than significant impact on
wildlife, and mitigation measures to safeguard
migratory birds should be implemented.

The MND's conclusion that the billboard would
not create a substantial change in the
illumination levels from baseline light sources is
not subjective. Substantial evidence in the
administrative record demonstrates that the
Project would not produce brightness levels that
exceed 0.3 foot candles at 250 feet above
ambient levels, and the City has imposed
mitigation, discussed above, to confirm that the
Project will operate within these parameters.

These are objective standards based on
objective evidence. For a discussion of the
lighting effects on avian species, please see
Response A9. The display would change copy
every eight seconds and result in a frequently
changing set of colors and patterns, and in the
setting of an urban setting. Evidence shows it is
unchanging, static white and red light sources
that significantly impact bird species, and in
environments without other significant light
sources. There is no evidence the display, in
this context, would have any significant impacts
on avian species.
8 2.2 Connectivity for wildlife
Open storm drains, irrigation channels and
other flood management infrastructure features
As discussed in Response K6, incorporated
herein, a biologist conducted a detailed
evaluation of the Project site and its
surrounding area, including the Princevalle

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often connect habitat patches and provide
pathways for animals to traverse an urban
landscape. This connectivity for wildlife is
important to preserve biodiversity, and is easily
disrupted by lighting. The Project is adjacent to
the Princevalle Channel, which is currently a
wildlife connectivity corridor and allows
permeability between Uvas and Llagas creeks
(Figure 1).

The DMND provides no analysis of wildlife
movement in the channel, dismissing impact to
wildlife movement. PDF p. 49 “The project site
is bounded by a chain link fencing to the north,
east, and south.

These factors along with existing urban
developments within the general project vicinity
limit wildlife movement through the project site.

Additionally, the project site is not part of or
within a wildlife movement corridor”
PDF p. 48 provides, “The Princevalle Channel
is located approximately 50 feet north of the
project site and is a tributary to Llagas Creek,
which flows into the Pajaro River, which
empties into Monterey Bay, a traditional
navigable water of the United States. While the
project site does not contain State or federally
protected wetlands, construction of the
proposed electronic billboards has the potential
for indirect (temporary) adverse impacts to the
aquatic habitat of the Channel. Potential
temporary indirect impacts (during construction)
include pollutant loading, increased erosion and
sedimentation, and debris dispersal into the
Channel.

Implementation of MM BIO-5 and MM BIO-6
would reduce potential indirect adverse impacts
to the aquatic habitat of the Channel to less
than significant levels through avoidance and
minimization measures.”
● Please provide wetland delineation for the
channel’s aquatic habitat, and discuss
application of requirements by the State Water
Board and the Habitat Agency
● MM BIO-5 and BIO-6 mitigate the impacts to
Princevalle Channel during the construction
phase. Without a study of terrestrial animal
movement within the Princevalle Channel, the
Channel, and determined there was no potential
habitat for protected species. It bears mention
too that the north-facing display will be 60 feet
high and, as demonstrated in the administrative
record of proceedings, the vertical light footprint
of displays does not cast light on the ground
within the first 100 to 150 feet or so. Please see
March 21, 2021 Letter from the Project
Applicant re Outdoor Advertising Display 6490
Auto Mall Parkway. The Princeville Channel is
located 50 feet north of the proposed display,
and below the grade of the Project site. Even if
the study demonstrated that the Princevalle
Channel contained protected species, the MND
clearly demonstrates that the Project operations
would not create a substantial change in
illumination levels due to the physical
dimensions of the light footprint and the existing
topography. These considerations further do not
account for the fact that the Tesla facility to the
north has parking lot lights located directly
adjacent to the channel, such that the baseline
lighting levels already illuminate the channel.

A wetland delineation is unnecessary for the
Project for a number of reasons. The Project is
clearly not located within the wetland because
the billboard will be installed on a paved parcel
adjacent to the highway, which is currently used
for truck trailer parking. While the proposed
display is located 50 feet from the Princevalle
Channel, Project construction will be limited to
close proximity of the Project Site and, to the
extent there is any potential for construction
debris, materials, or runoff to reach the channel,
Mitigations Measures BIO-5 and BIO-6 would
prevent such from occurring. CEQA does not,
per established case law, require the
preparation of every last test and, here, a
wetland delineation would not provide any
meaningful environmental information.

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finding that the Project will not interfere
substantially with the movement of native
wildlife species or with established native
resident or migratory wildlife corridors cannot be
made.
9 2.3 Conflict with the Valley Habitat Plan
The finds that “Conflict with the provisions of an
adopted Habitat Conservation Plan, Natural
Community Conservation Plan, or other
approved local, regional, or State habitat
conservation plan” is less than significant with
mitigation. The proposed mitigation, MM BIO-7,
provides, “The project applicant shall submit a
Santa Clara Valley Habitat Plan (SCVHP)
Coverage Screening Form to the Planning
Department for review and shall complete
subsequent forms, reports, and/or
studies as needed.”
● For Mitigated Negative Declarations, CEQA
does not allow mitigation measures to
depend on future disclosure of impacts and
actual mitigation measures. Please specify
any studies that will be needed and discuss the
potential impacts and how these will be
addressed
MM BIO-7 does not rely on future disclosure of
impacts. The MND explains that the Project will
be consistent with the Valley Habitat Plan,
because project site is within the “UrbanSuburban” land cover as defined by the SCVHP and is not located in any special status plant
and wildlife survey areas, or fee zone.

Additionally, coverage under the SCVHP is only
needed if the project or activity has a
reasonable potential or likelihood to take a
covered species. A highly unlikely or
speculative take does not meet this criterion.

Because the Project would not result in a take
of a covered species, no additional studies
under the SCHVHP will be required. Mitigation
Measure BIO-7 merely contemplates confirming
standard paperwork must be filed to document
the foregoing conditions with administrators of
the SCVHP.

3. Driver Safety The IS/DMND acknowledges
that the project undermines driver safety but the
impact and of this hazard understated by the
IS/DMND. As expressed above, driver Safety
was a great concern to the responders to the
San Jose survey. The risk to drivers is evident,
and supported in a plethora of studies (See
attachments)
● Please analyze current vehicle collision data
for the target stretch of US-101 and consider
the potential of additional collisions due to
drivers’ attention being diverted.

For a discussion of the Project's impact on
traffic hazards, see Response A10. This
analysis sufficiently satisfies applicable legal
requirements, and the analysis requested would
provide no meaningful information with respect
to CEQA impacts.
10 4. Energy consumption, brightness, greenhouse
gas emissions In his study of energy use and
other environmental impacts of electronic
billboards (attached), Mr. George Young
discusses energy consumption for lighting and
cooling of LED billboards, as well as brightness
of the billboards, materiality and recyclability.

Ceqa requires the analysis of all direct and
indirect impacts on a project, and we believe
that all these environmental burdens are
significant. The possibilities of mitigation are
For a discussion of the Project's impact on
energy use, see Response A12. The
commenter's note on greenhouse gases is
factual incorrect. The project is estimated, very
conservatively, to produce 5 metric tons of
carbon dioxide equivalent and, amortizing
construction emissions, 6 metric tons (mega
tons, as expressed by the commenter, is not an
applicable metric, and it appears the
commenter is aggrandizing the impact). The
applicable threshold of significance is 660

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limited and therefore, the environmental
impacts are generally unavoidable. Mr. Young
makes many technical recommendations which
we incorporate into this letter by reference. We
ask for an Environmental Impact report to
consider these mitigation, and analyze the
project compliance with them. While the
IS/DMND lists the estimated 52,400
kilowatts/year of electricity and 6.6 megatons of
CO2/year expected to be released into the
atmosphere with the energy required for the
billboards, the IS/DMND only states that it
meets standards and does not prescribe
mitigation for the greenhouse gas emissions in
our current climate emergency.
metric tons per year, and therefore the Project
is below the applicable threshold by two orders
of magnitude, as detailed in the MND.
11 5. The City of San Jose has recently approved
billboards at the airport, and included several
feasible structural and operational requirements
and mitigation measures that should be
incorporated into the requirements for Gilroy’s
ordinance and the billboards project. Table 1
highlights some of these requirements: [chart
omitted]
The chart cited in the comment demonstrates
that the Project adopts several of the same
structural and operational requirements as the
City of San Jose. The chart inaccurately states
that the Project includes no measures to shield
the night sky. In fact, each of the individual
LEDs on the sign's display facing are angled
downwards.
12 On brightness, the EIR provides,
○ PDF p. 21: "The proposed project commits to
a maximum ambient light output level of a

0.3 foot-candle at 250 feet from the billboard,
which is a more conservative lighting
intensity standard for electronic billboards of
this proposed size when compared to State
standards. For a frame of reference, 0.3 footcandle is comparable in brightness to the light emanating from a computer monitor, and
the light levels emitted from the
proposed billboards would be programmed to
adjust based upon ambient light
conditions at any given time (i.e., nighttime
versus daytime). Therefore, impacts would
be less than significant"
○ PDF p. 27: "proposed Ordinance would
require billboard projects to commit to a
maximum ambient light output level of 0.3 footcandle at 250 feet from the billboards, which is a more conservative lighting intensity standard
for billboards of this proposed
size when compared to State standards"
Pages 40-41 of the MND address the impacts
of the Project's brightness on white-tailed kite
and other nesting birds. It determined that the
proposed electronic billboard would not create a
substantial change in illumination levels due to
baseline light sources in the project area
including local street lighting, parking lot
lighting, other illuminated billboards at nearby
auto dealerships, headlights from automobile
traffic, and highway lighting structures. Based
on this analysis, the impact to migratory birds is
less than significant. Please also see
Responses K6 and K7; there is no evidence of
protected species or habitat being subject to
any discernable increase in brightness levels.

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However, the standards seem to address visual
and aesthetic impacts, and ignore the biological
impacts of lighting that is 3 times the brightness
of the moon, and the hazard this brightness
imposes on migratory birds and on insects. The
brightness, 0.3 foot-candle, remains a
significant unmitigated environmental impact to
species and the ecosystem.
13 We ask the City of Gilroy not to approve
highway or road-facing electronic billboards.

Instead, the city should develop an ordinance
prohibiting such billboards city-wide. If the city
persists in moving forward with this project, an
EIR must be prepared.

This comment concludes the comment letter, as
discussed above, this Project does not require
an EIR because there are no unmitigated
significant impacts on the environment.

Very truly yours,
Natalie C. Kirkish
Associate
NCK:NCK
CC:

Cindy McCormick
City of Gilroy Customer Services Manager
7351 Rosanna Street
Gilroy, California 95020
Email: [email protected]
Encls.

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ATTACHMENT A

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Mr. Andrew Faber
Ms. Jolie Houston
September 29, 2022

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Ms. Jolie Houston
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ATTACHMENT B

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Ms. Jolie Houston
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ATTACHMENT C

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Ms. Jolie Houston
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ATTACHMENT D

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Ms. Jolie Houston
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ATTACHMENT E

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ATTACHMENT F
Spectral Radiance of Standard LED Lightbulb
Spectral Radiance of Billboard

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Ms. Jolie Houston
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ATTACHMENT G

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Hanson Bridgett LLP
500 Capitol Mall, Suite 1500, Sacramento, CA 95814

SEAN MARCINIAK

PARTNER
E-MAIL [email protected]
CHRISTINA L. BERGLUND

SENIOR COUNSEL
E-MAIL [email protected]
March 21, 2021

VIA ELECTRONIC MAIL ONLY
Mr. Andrew Faber
Berliner Cohen LLP
10 Almaden Blvd., 11th Floor
San Jose, CA 95113
E-mail: [email protected]
Ms. Jolie Houston
Berliner Cohen LLP
10 Almaden Blvd. 11th Floor
San Jose, CA 95113
E-Mail: [email protected]
Re: Outdoor Advertising Display 6490 Auto Mall Parkway
Dear Mr. Faber and Ms. Houston:

As you are aware, our client OUTFRONT Media LLC ("Outfront") intends to negotiate a development agreement or other instrument with the City of Gilroy ("City") for construction and operation of an outdoor advertising display on property located at 6490 Auto Mall Parkway (the "Sign") in the City of Gilroy ("City"). We understand a zoning amendment also might be necessary, and look forward to partnering with the City in determining a land use entitlement pathway.

In response to your request, we submit this letter explaining how Outfront intends to operate the Sign, particularly with respect to (1) the frequency at which electronic advertisements will change, referred to as "dwell time"; and (2) the brightness at which Outfront will broadcast the proposed electronic messaging. These operational parameters have a bearing on the Sign's potential light-related or traffic safety impacts (or lack thereof).

We understand you have expressed an interest in understanding the Sign's brightness levels and the possibility that the Sign's operation might distract drivers and pose a safety risk. Below, we have compiled information and materials that explain how Outfront plans to operate the Sign, particularly with respect to (1) the brightness at which Outfront will broadcast the proposed electronic messaging; and (2) the frequency at which electronic advertisements will change — again, known as the “dwell time” — which informs the risk of distraction. Outfront’s operational parameters are consistent with federal, state, and local standards, and in fact are more protective of the public than applicable regulations.

1. General Overview of Light "Footprints"
Digital billboards are designed with more thought than most realize. A sign’s brightness automatically adjusts in response to ambient conditions, as measured by on-site sensors, and ensures the sign operates at a luminosity that is only slightly greater than background conditions. This difference is a maximum of 0.3 foot candles measured at 250 feet, which is roughly the brightness one would experience when looking at a candle through a dark filter, and

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this measurement is equivalent to 300 nits and 87.7 foot Lamberts. (The concept of foot candles and brightness are discussed in greater detail, below, in Sections 2 and 3.) Each of the individual light emitting diodes (“LEDs”) on the sign’s display facings, meanwhile, is angled downward toward motorists, thereby reducing light pollution and glare when compared to traditionally illuminated signs. In fact, at 250 feet, light from an Outfront sign generally does not register on a light meter.

As a consequence, a sign’s light “footprint” is fairly minimal. For instance, the vertical footprint of a 60- to 65-foot-high sign with display panels measuring 14 feet by 48 feet is depicted as follows:

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The above diagram illustrates typical differences in signage-related brightness through the use of colors, with blue representing smaller differences (i.e., differences of 0.1 to 0.3 foot candles), green representing 1 to 1.5 foot candles, and warmer colors (e.g., red, orange, and red) showing greater brightness differences. The perceptible, vertical light footprint of a 60- to 65- foot sign therefore rises to a height of about 85 feet and extends laterally to about 250 feet; beyond this footprint, changes in brightness are minimal, and generally do not register on a light meter. Please note this illustration conservatively depicts brightness levels, and many sitespecific analysis show brightness levels are in fact slightly lower than depicted here.

Meanwhile, a sign’s horizontal footprint is similarly limited in scope, as follows:

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While digital billboards are clearer than traditionally illuminated signs, they are not brighter.

More information about these design characteristics are addressed in the FAQs in Attachment A.

2. Dwell Time Standards
A. California and Federal Standards
California law allows LED billboards, a type of commercial electronic variable message sign ("CEVM"), to operate at a minimum dwell time of no less than four seconds before the display may transition to the next image. This requirement is set forth in Business and Professions Code section 5405(d)(1), which provides, in relevant part, "no message center display may include any illumination or message change that is in motion or appears to be in motion or that changes in intensity or exposes its message for less than four seconds." The Outdoor Advertising Association of America (“OAAA”) likewise recommends that billboards display a message for no less than four seconds. (Cal. Dept. of Transportation, Caltrans Division of Research and Innovation, Effects of Outdoor Advertising Displays on Driver Safety, (Oct. 11, 2012) p. 9, attached hereto and referred to herein as Appendix 1.) The Federal Highway Administration ("FHWA"), meanwhile, has approved of a similar dwell time standard. According to an FHWA memorandum, the acceptable range for the "[d]uration of each display is generally between 4 and 10 seconds – 8 seconds is recommended." (U.S. Dept. of Transportation, Fed. Highway Admin., Guidance on Off-Premise Changeable Message Signs (Sept. 25, 2007), p. 2, attached hereto and referred to herein as Appendix 2.) B. Dwell Times in Other Jurisdictions
A Caltrans Preliminary Investigation, published on October 12, 2012, noted that 43 states in the country have set dwell times ranging from four to 10 seconds, with dwell times of six and eight seconds being the most common. (Appendix 1, App., A, pp. 13-16; see also Menelaos Triantafillou, Alan C. Weinstein, National Signage Research and Education Conference, The Regulation of Signage: Guidelines for Local Regulation of Digital On-Premise Signs (2010) p. 6 ["the most common regulatory provisions applicable to digital on-premise signs … [r]equire that the sign display remain static for a minimum of 5-8 seconds"], attached hereto and referred to herein as Appendix 3.) Specifically, Caltrans noted the following minimum dwell times:
4 seconds – CA, CO, IA, VA
5 seconds – NM, PA
6 seconds (average) – AL, AZ, CT, FL, GA, IA, MI, MN, NV, NY, SD, WI, RI 8 seconds – AR, ID, IN, KS, LA, MO, MS, NJ, NC, OH, OK, OR, SC, TN, UT, WV, WA Other/State-Company Discretion – KY, MA, MT
(Appendix 1, pp. 14-15.)

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Moreover, a recent federal court further noted that FHWA identified certain "'acceptable criteria' based on certain ranges of acceptability that have been adopted in those States that do allow CEVMs … recommending, among other things, that each display generally remain static for between four and ten seconds, and transition to a new display in one to four seconds[.]" (Scenic America, Inc. v. United States Dept. of Transportation (D.C. Cir. 2016) 836 F.3d 42, 46-47, attached hereto and referred to herein as Appendix 4.)
C. Dwell Time of Eight Seconds Does Not Adversely Impact Road Safety An OAAA Digital Technology Brief dated February 2015, attached hereto and referred herein as Appendix 5, notes that "digital billboards" display static images that typically transition every six or eight seconds. Of particular significance, the report also noted the following:

Effective January 1, 2015, New York State switched from 24-hour to 8-second display time on digital billboards. New York's analysis of crash data "suggests there is no change in crash patterns in the vicinity of the off-premise CEVMS billboards," and continue monitoring is warranted.
(Appendix 5, p. 4, emphasis added.)
Further, FHWA conducted two studies on driver visual behavior with regard to electronic billboards, and released a report documenting its findings entitled "Driver Visual Behavior in the Presence of Commercial Electronic Variable Message Signs (CEVMS)." (William A. Perez et al., U.S. Dept. of Transportation, Fed. Highway Admin., (Sept. 2012), Report No., FHWA-HEP-16- 036 attached hereto and referred to herein as Appendix 6.) The report explained that the studies were "conducted to provide the FHWA with data to determine if CEVMS capture visual attention differently than standard off-premise advertising billboards." (Id. at 5.) The studies were initiated in response to a safety concern raised by Scenic America, a nonprofit organization seeking to preserve the scenic qualities of America's roadways. (Id.) Specifically, the FHWA report noted:
[T]he current Federal Highway Administration (FHWA) guidance recommends that CEVMS should not change content more frequently than once every 8 seconds. However, according to Scenic America, [CEVMS present a safety concern in that] the "distinguishing trait" of a CEVMS "is that it can vary while a driver watches it, in a setting in which that variation is likely to attract the drivers' attention away from the roadway."
(Id.)
Drivers in Richmond, VA and Reading, PA participated in the FHWA studies on driver distraction. (Id. at 6.) The billboards in the study "changed content approximately every 8 to 10 seconds." (Id. at 2.) The FHWA report noted that the presence of CEVMS did not correlate to a decrease in looking toward the road head. (Id.) Moreover, the report found that glance duration toward digital billboards averaged 0.379 seconds, while glances at static billboards were at

0.335 seconds at both test sites — a difference of about four hundredths of a second. The result did not provide evidence indicating that CEVMs, as deployed and tested in the two selected cities, were associated with unacceptably long glances away from the road. (Id. at 54.) In fact, the report noted that "the average fixation durations to CEVMS and standard billboards were

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similar to the average fixation durations to CEVMS and standard billboards were similar to the average fixation duration to the road ahead." (Id. at 2.) FHWA concluded:

The present data suggest that the drivers in this study directed the majority of their visual attention to areas of the roadway that were relevant to the task at hand (e.g., the driving task). Furthermore, it is possible, and likely, that in the time that the drivers looked away from the forward roadway, they may have elected to glance at other objects in the surrounding environment (in the absence of billboards) that were not relevant to the driving task. When billboards were present, the drivers in this study sometimes looked at them, but not such that overall attention to the forward roadway decreased.
(Id. at 4; see also Darrin Friskney, Federal Highway Administration study confirms safety of digital billboards and signs, published June 16, 2014, attached hereto and referred to herein as Appendix 7.)
Finally, a study conducted by experts at the University of Utah found that in-vehicle information systems (e.g., gadgets, buttons, etc. inside the vehicle) create "moderate to high level cognitive workload for drivers," and that after drivers interact with these information systems, it takes about 27 seconds to return to normal levels on performance. (Ken Klein, The Hunt for Distractions Leads to Inside the Vehicle (May 4, 2016) Billboard Insider, http://billboardinsider.com/the-hunt-for-districtions-leads-to-insider-the-vehicle/ [as of Dec. 5, 2016], attached hereto and referred to herein as Appendix 8.) This study suggests that invehicle information systems pose significantly greater risks than CEVMs.

3. Brightness Standards
A. CaliforniaStandard
Business and Professions Code section 5403(g) defines that brightness standard for CEVMs in relation to Vehicle Code section 21466.5, which provides:

No person shall place or maintain or display, upon or in view of any highway, any light of any color of such brilliance as to impair the vision of drivers upon the highway. A light source shall be considered vision impairing when its brilliance exceeds the values listed below.

The brightness reading of an objectionable light source shall be measured with a

1.5-degree photoelectric brightness meter placed at the driver's point of view.

The maximum measured brightness of the light source within 10 degrees from the driver's normal line of sight shall not be more than 1,000 times the minimum measured brightness in the driver's field of view, except that when the minimum measured brightness in the field of view is 10 foot-lamberts or less, the measured brightness of the light source in foot-lambert shall not exceed 500 plus 100 times the angle, in degrees, between the driver's line of sight and the light source.

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The provisions of this section shall not apply to railroads as defined in Section 229 of the Public Utilities Code.

Under the foregoing, the most conservative brightness limit with which the Sign would have to comply is 500 foot-lamberts above ambient levels,1 which is equivalent to 1713 nits above ambient levels. Outfront proposes to operate the Sign's night-time limit at about 300 nits above ambient levels (which equates to 0.3 foot candles at 250 feet),2 meaning the Sign's brightness would always be about one-sixth of the maximum brightness level allowed under California state law.

For a frame of reference, 0.3 foot candles is comparable to the light emanating from a computer monitor. Outfront has no interest in operating its Sign at greater brightness levels, which would make the display look "washed out" and difficult to read.

B. Brightness Standards in Other Jurisdictions
As discussed above, Outfront currently proposes to operate the Sign at issue at a night-time brightness level of approximately 300 nits above ambient levels, which is equal to or less than the standards adopted by the great majority of states. A 2010 report entitled "The Regulation of Signage: Guidelines for Local Regulation of Digital On-Premise Signs" found that a recent survey of numerous jurisdictions showed that the most common regulatory provisions applicable to digital on-premise signs limit brightness changes to 500 or more nits at night. (Appendix 3, p. 6; Appendix 1, p. 3.) For instance, CEVMs in San Antonio, Texas must comply with a maximum brightness level of 2,500 nits at night, while CEVMs in Oakdale, Minnesota have a maximum brightness of 500 nits at night. (Appendix 1, p. 2.) Meanwhile, Washington state prohibits brightness from exceeding 1,000 nits or equivalent candelas between dusk and dawn (Wash.

Admin. Code, § 468-66-050(3)(g)(v), attached hereto and referred to herein as Appendix 9; Appendix 1, pp. 10-11), whereas Arizona allows CEVMs to operate at 342 nits at night. (OAAA, Issue Brief, Outdoor Lighting and Dark Skies, (Nov. 2016) p. 2, attached hereto and referred to herein as Appendix 10). The regulations in these jurisdictions thus allow CEVMs to operate at significantly higher brightness levels than Outfront’s proposed operation of the Sign at 300 nits.

Only nine jurisdictions have adopted the more conservative standard (i.e., 300 nits or 0.3 foot candles) with which Outfront proposes to comply, including Colorado, Massachusetts, Michigan, Missouri, New Mexico, Oregon, Tennessee, Wyoming, and Puerto Rico. (See id., pp. 1-2; Or.

Admin. R. no. 734-060-0007(3)(a)(C), attached hereto and referred to herein as Appendix 11; Appendix 1, p. 7-8; Appendix 5, p. 3.)
1 This calculation assumes a minimum measured brightness in the field of view of less than 10 foot-lamberts, and a view angle of zero degrees (i.e., directly in front of the driver). 2 Setting a standard in foot candles is a more appropriate metric by which to judge impacts on sensitive receptors, as a foot candela measures light intensity experienced at the receptor, whereas measurement in candela/square meters or nits reveals only the intensity of light at its source.

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4. Conclusion
Outfront's signs are operated at approximately one-sixth of the maximum brightness levels allowed by California state law. Moreover, as shown herein, the Sign's contributions to ambient brightness levels generally do not register on light meters beyond 250 feet. The information and sources cited herein support that digital outdoor advertising displays, as designed and operated by Outfront, do not result in significant light-related or traffic safety impacts. Operation of the Sign will comply with dwell time and brightness standards espoused by the California legislature, Caltrans, and FHWA, where these standards are supported by scientific analysis and constitute substantial evidence. In fact, as explained above, the Sign would comply with much more conservative standards than required by law. We understand that site-specific light studies might prove necessary insofar as the City of Gilroy considers Outfront's sign project, and offer this evidence as background information that we hope will help the City make an informed decision on this matter.

Please let us know if you or the City have any further questions.

Very truly yours,
Sean Marciniak
Partner
Christina L. Berglund
Senior Counsel
CLB
Attachment A: Frequently Asked Questions
Attachment B: Appendices
cc: Jeff McCuen, Outfront Media, LLC ([email protected]) Bryan Scott, Outfront Media, LLC ([email protected])

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Attachment A

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FREQUENTLY ASKED QUESTIONS
Over the years, Outfront has received a number of questions from city and county decisionmakers, as well as the public, related to how its signs are operated and what impacts they may have on a community. Below, we've included frequently asked questions along with answers. These answers are based on the materials attached to this letter, and the input of industry lighting experts.

Question 1: Which is brighter, an LED sign or a traditional, vinyl billboard illuminated by flood lights.

Short Answer: On the highway where motorists will see any given sign, LED signs are very slightly brighter; outside this targeted area, such as in neighborhoods, the brightness of LED signs are equal or less than the brightness of traditional billboards.

Longer Answer: To best understand the answer to this question, it first is necessary to understand how traditional, static billboards are illuminated. To reach an audience, the illumination of traditional billboards is imprecise; the billboard face is blasted with light at a level ranging from 31 to 312 times the brightness of an LED bulb (where brightness depends on color), and light reflects off the sign's vinyl surface in all different directions. As such, the target audience is reached along with a host of others, and this is why receptors see, for instance, sky glow from traditional, illuminated signs.

By contrast, LED billboards are very precise, in that they are focused on and directed at a specific target audience, and receptors in the periphery are affected at a much lesser level. The graphics below illustrate this "targeting" principle and the difference between LEDs and static billboards.
[Graphics continued on next page]

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So is illuminated static display brighter? Any difference in brightness between a static and an LED billboard is negligible beyond 250 feet, and likely would not even register on a light meter.

We know this because, when one looks at typical light studies for a digital billboard, one sees that, beyond 250 feet, the change in light is less than 0.1 foot candles, and often close to 0.0 foot candles.

To the right and below
are excerpts from a
site-specific light study
prepared for an
Outfront LED display in
Southern California,
showing the brightness
"footprint" of a sign
when operated at 0.3
foot candles above
ambient levels. Please
note, Outfront provides
the local agency with a
similar light study for
each sign it proposes,
taking into account the
specificities of the
sign's design and the
project site.

This overhead diagram illustrates differences in brightness through the use of colors, with blue representing smaller differences (i.e., differences of less than 0.1 foot candles), green showing a difference of 0.3 foot candles, and warmer colors (e.g., red, orange, and yellow) showing

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greater brightness differences. The study shows that, beyond 250 feet, the brightness difference rounds out to 0.0 foot candles, and therefore is unlikely to be detected on light meters.3 The footprint of a traditional illuminated billboard, by contrast, is depicted below:

Accordingly, an LED billboard produces about the same amount of light directly in front of the billboard, and less light at ground-level and other peripheral locations. In no case does brightness increase to any measurable extent beyond 250 feet.

Finally, it should be mentioned that digital signs incorporate technology that takes account of existing ambient lighting, and ensures light from the sign never exceeds 0.3 foot candles at 250 feet above ambient conditions. A traditional illuminated sign has "one-speed," and emits light at the same brightness regardless of ambient conditions. Under some ambient light conditions, then, a traditional sigh will in fact create more light pollution than an LED sign.

Question 2: What is a foot candle, in lay terms?
Answer: A foot candle is the amount of light a single candle makes at a distance of 1 foot (see illustration below), and so a 0.3 change in foot candle would be 30 percent of the light one would experience at 1 foot away from a candle. To apply this in a real-world example, if a person in the dark cabin of an airplane, sitting four rows in front of you in an aisle seat, opened a Word document on a 17" laptop, you would experience a 0.3 foot candle increase in light. 3 Note, at 250 feet, light generally is less than 0.3 foot candles at ground level because the sign facings are generally located significantly above grade.

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Question 3:If all the above is true, why do digital billboards appear more noticeable? Answer: Terms like "noticeable" do not have a scientific underpinning. Many who ask this question are responding to the fact that digital signs can appear clearer than traditional signs.

But enhanced clarity is not the same as increased brightness. For example, when one replaces an older television, incorporating a cathode-ray tube, with a newer 4k screen, the picture appears crisper and more engaging. The brightness, however, does not change.

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Attachment B

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Excerpts from:

Preliminary Investigation
Caltrans Division of Research and Innovation Produced by CTC & Associates LLC Effects of Outdoor Advertising Displays on Driver Safety Requested by
Suzy Namba, Caltrans Division of Design
October 11, 2012
The Caltrans Division of Research and Innovation (DRI) receives and evaluates numerous research problem statements for funding every year. DRI conducts Preliminary Investigations on these problem statements to better scope and prioritize the proposed research in light of existing credible work on the topics nationally and internationally. Online and print sources for Preliminary Investigations include the National Cooperative Highway Research Program (NCHRP) and other Transportation Research Board (TRB) programs, the American Association of State Highway and Transportation Officials (AASHTO), the research and practices of other transportation agencies, and related academic and industry research. The views and conclusions in cited works, while generally peer reviewed or published by authoritative sources, may not be accepted without qualification by all experts in the field.

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9 • The message change interval should not exceed 2 s.
• The displayed image should remain static from the moment it first appears until the moment it is changed.
• No animation, flashing or moving lights should be allowed. • No message or image that could be mistaken for a traffic control signal should be displayed. • Messages should be simple and concise.

United States
New York State
Regulations proposed in 2008 include:
• Minimum message duration of 62 seconds, so that no motorist would be able to see more than one message change as he or she approached any particular changeable electronic variable message sign.
• Message transition time should be instantaneous to minimize distraction. • Minimum spacing between changeable electronic variable message sign is 5,000 feet. • Maximum changeable electronic variable message sign brightness of 5,000 cd/m2 in daylight and
280 cd/m2
at night.
• Prohibited locations:
o On interstate and controlled access highways: Within 1,100 feet of an interchange, at-grade intersection, toll plaza, signed curve or lane merge/weave area; within 5,000 feet of another changeable electronic variable message sign or official traffic device that has changeable messages.
o On primary highways: Within 1,100 feet of an entrance or exit from a controlled access highway, a signed curve or a lane/merge area; within 5,000 feet of another changeable electronic variable message sign or official traffic control device with changeable messages.

Revised criteria made these requirements less restrictive, reducing message duration from 62 to 6 seconds and changing spacing requirements and prohibited locations. The requirements for instantaneous message transition and maximum brightness did not change.

San Antonio, TX
Regulations for a trial evaluation of 15 off-premise digital signs included a message duration time of 10 seconds; change intervals of one second or less; brightness less than or equal to 7,000 nits during the day and 2,500 nits at night; and various other regulations. (One nit = one candela per square meter.) Flowery Branch, GA
Regulations in this community begin on page 138 of the report and include:
• Minimum message duration: to the amount of time that would result in one message per mile at the highest speed limit posted within the 5000 feet approaching the sign for the road from which the sign is to be viewed.
• Transition time: less than one-tenth of a second, with no animated transitions. • Illumination and brightness: not greater than 12 foot-candles from the nearest point of the road. • Freezing of the display on malfunction.
• Prohibition of message sequencing.

Oakdale, MN
Brightness is limited to 2,500 nits during the day and 500 nits at night, with adjustments for ambient light conditions and a minimum display duration of 60 seconds.

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29 State Regulations
State and Local Regulation Summaries
State Changeable Message Chart, Outdoor Advertising Association of America, undated. http://www.superliciousdesign.com/ledmedia/State_Changeable_Message.pdf (or see Appendix A).

This chart summarizes changeable message advertising sign regulations for 46 states:
• Three states (New Hampshire, North Dakota and Wyoming) do not allow these signs. • Five states (Maryland, Massachusetts, Oregon, Texas and Washington) allow tri-action signs only.
• Thirty-eight states allow changeable message signs. Of these, 19 states (California, Colorado, Connecticut, Delaware, Florida, Georgia, Indiana, Kansas, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, Oklahoma, Tennessee, Utah, Virginia and Wisconsin) have statutes; 10 states (Arkansas, Idaho, Illinois, Iowa, Louisiana, Nebraska, Nevada, North Carolina, South Carolina and West Virginia) have regulations; seven states (Alaska, Arizona, Kentucky, Montana, New Mexico, Rhode Island and South Dakota) have interpretations of the federal/state agreement; and two states (Mississippi and Pennsylvania) have policy memoranda.

The document categorizes each of these states by regulations for minimum message duration (“dwell time”—generally from 4 to 10 seconds, with 6 or 8 seconds most common); maximum interval between messages (typically from 1 to 4 seconds), and spacing (500 feet is most common). It is unclear how up-todate these regulations are; we were unable to determine the date for this chart or obtain the latest information from the OAAA, which requires paid registration for access.

The Regulation of Signage: Guidelines for Local Regulation of Digital On-Premise Signs, Menelaos Triantafillou, Alan C. Weinstein, National Signage Research and Education Conference, 2010. http://www.thesignagefoundation.org/LinkClick.aspx?fileticket=3inv%2fFyrpFk%3d&tabid=59&mid=46 8 From the report: Based on a recent survey of numerous jurisdictions by one of the authors, the most common regulatory provisions applicable to digital on-premise signs appear below:
• Require that the sign display remain static for a minimum of 5-8 seconds and require “instantaneous” change of the display; i.e., no “fading” in/out of the message. • Prohibit scrolling and animation outside of unique—and mostly pedestrian-oriented—locations. • Limit brightness to 5,000 nits during daylight and 500 nits at night. • Require automatic brightness control keyed to ambient light levels. • Require display to go dark if there is a malfunction. • Specify distancing requirements from areas zoned for residential use and/or prohibit orientation of s sign face towards an area zoned for residential use.

See also Appendices B and C in Research Review of Potential Safety Effects of Electronic Billboards on Driver Attention and Distraction in Related Research for an overview of state regulations and practices as of 2001.

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30 Survey of Current State Regulations
We found digital display regulations for 12 states. These regulations are summarized in the following table and then detailed by state.

State Duration
≥
Interval ≤Brightness/
Illumination
Font Size Visual Effects Sequencing Spacing Locations Billboard Size
DE 10s 1s Must appropriately
adjust display
brightness as ambient
light levels change.

Size not specified. A
sign that attempts or
appears to attempt to
direct the movement
of traffic or which
contains wording,
color, shapes, or
likenesses of official
traffic control devices
is prohibited.

May not contain
or display any
lights, effects, or
messages that
flash, move,
appear to be
animated or to
move, scroll, or
change in
intensity during
the fixed display
period
Prohibited. >2,500ft from
another VMS
>500ft from a
static sign
Permitted within 660ft
of the edge of the
right-of-way of any
interstate or federalaid primary highway.
> 1,000ft from an
interchange, interstate
junction of merging or
diverging traffic, or an
at-grade intersection.

May not be placed
along designated
Delaware byways.

Not
specified.

FL 6s 2s Lighting which causes
glare or impairs the
vision of the driver of
any motor vehicle, or
which otherwise
interferes with any
driver’s operation of a
motor vehicle is
prohibited. A sign may
not be illuminated so
that it interferes with
the effectiveness of, or
obscures, an official
traffic sign, signal or
device. Lighting may
not be added to or
increased on a
nonconforming sign.

Not specified. Flashing,
intermittent,
rotating, or
moving lights are
prohibited.

Instantaneous
transition for
entire sign face
required.

Not
specified.

Not specified. Not specified. Not
specified.

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31 State Duration
≥
Interval ≤Brightness/
Illumination
Font Size Visual Effects Sequencing Spacing Locations Billboard Size
GA 10s 3s Must be effectively
shielded so as to
prevent beams or rays
of light from being
directed at any portion
of the traveled way,
which beams or rays are
of such intensity or
brilliance as to cause
glare or to impair the
vision of the driver of
any motor vehicle or
which otherwise
interfere with the
operation of a motor
vehicle.

Must not obscure or
interfere with the
effectiveness of an
official traffic sign,
device, or signal.

Not specified. May not contain
flashing,
intermittent, or
moving light or
lights except those
giving public
service
information such
as time, date,
temperature,
weather.

Not
specified.
>5,000ft from
another
multiple
message sign.

Not specified. Not
specified.

IA 8s 1s The intensity of the
illumination may not
cause glare or impair
the vision of the driver
of any motor vehicle or
otherwise interferes
with any driver’s
operation of a motor
vehicle.

Not specified. No traveling
messages (e.g.,
moving messages,
animated
messages, fullmotion video, or
scrolling text
messages) or
segmented
messages are
allowed.

No
segmented
messages
allowed.
>500ft from
another LED
display facing
the same way
in cities.
>1000ft in
rural areas.

Not specified. Not
specified.

KS 8s 2s Must be effectively
shielded so as to
prevent beams or rays
of light from being
directed at any portion
Not specified. Cannot contain or
display flashing,
intermittent or
moving lights,
including
Not
specified.
>1000ft from
another CMS.

Not specified. Not
specified.

10.1 p. 573 of 947
32 State Duration
≥
Interval ≤Brightness/
Illumination
Font Size Visual Effects Sequencing Spacing Locations Billboard Size
of the traveled way of
any interstate or
primary highway and
are of such intensity or
brilliance as to cause
glare or to impair the
vision of the driver of
any motor vehicle or to
otherwise interfere with
any driver’s operation
of a motor vehicle.

Must not be so
illuminated that they
obscure any official
traffic sign, device or
signal, or imitate or
may be confused with
any official traffic sign,
device or signal.
animated or
scrolling
advertising.

MA 10s 0s Must automatically
adjust the intensity of
its display according to
natural ambient light
conditions.

May not cause beams or
rays of light from being
directed at any portion
of the traveled way,
which beams or rays are
of such intensity or
brilliance as to cause
glare or to impair the
vision of the driver of
any motor vehicle or
otherwise interfere with
the operation of a motor
Not specified. May not contain
flashing,
intermittent, or
moving lights; or
display animated,
moving video,
scrolling
advertising; or
consist of a static
image projected
upon a stationary
object.

May not display
illumination that
moves, appears to
move or changes
in intensity during
Not
specified.
>500ft from
any sign.
>2000ft from
another off
premise
electronic
sign on the
same side of
the highway.
>1000ft from
another off
premise
electronic
sign on the
opposite side
of the
Not specified. Not
specified.

10.1 p. 574 of 947
33 State Duration
≥
Interval ≤Brightness/
Illumination
Font Size Visual Effects Sequencing Spacing Locations Billboard Size
vehicle.

May not obscure or
interfere with the
effectiveness of an
official traffic sign,
device or signal, or
cause an undue
distraction to the
traveling public
the static display
period. This does
not include
changes to a
display for time,
date and
temperature.
highway.

NY 6s 3s Not specified. Not specified. Not specified. Not specified.

Not specified. Not specified. Not
specified.

OH 8s 3s Not specified. Not specified. A multiple
message or
variable message
advertising device
shall not be
illuminated by
flashing,
intermittent, or
moving lights. No
multiple message
or variable
message
advertising device
may include any
illumination
which is flashing,
intermittent, or
moving when the
sign face is in a
fixed position.

Not
specified.
>1000ft from
another
MMS.

Not specified. Not
specified.

OR 8s 2s Must operate at an
intensity level of not
more than 0.3 footcandles over ambient
light as measured by the
distance to the sign
Not specified. No flashing or
varying intensity
light; cannot
create the
appearance of
movement.

Not
specified.

Not specified. Not specified. Not
specified.

10.1 p. 575 of 947
34 State Duration
≥
Interval ≤Brightness/
Illumination
Font Size Visual Effects Sequencing Spacing Locations Billboard Size
depending upon its size
(150 feet if the display
surface of the sign is 12
feet by 25 feet, 200 feet
if the display surface is

10.5 by 36 feet, and 250
feet if the display
surface is 14 by 48
feet).

TN 8s 2s Not specified. Not specified. Video, animation, and continuous
scrolling
messages are
prohibited.

Not
specified.
>2000ft from
another CMS.

Not specified. Not
specified.

WS A single
message
or a
message
segment
must have
a static
display
time of at
least two
seconds
after
moving
onto the
signboard,
with all
segments
of the
total
message
to be
displayed
within ten
seconds.
4s No electronic sign lamp
may be illuminated to a
degree of brightness
that is greater than
necessary for adequate
visibility. In no case
may the brightness
exceed 8,000 nits or
equivalent candelas
during daylight hours,
or 1,000 nits or
equivalent candelas
between dusk and
dawn. Signs found to be
too bright shall be
adjusted as directed by
the department.

Not specified. Displays may
travel horizontally
or scroll vertically
onto electronic
signboards, but
must hold in a
static position for
two seconds after
completing the
travel or scroll.

Displays shall not
appear to flash,
undulate, or pulse,
or portray
explosions,
fireworks, flashes
of light, or
blinking or
chasing lights.

Displays shall not
appear to move
toward or away
from the viewer,
Not
specified.

Not specified. Not specified. Not
specified.

10.1 p. 576 of 947
35 State Duration
≥
Interval ≤Brightness/
Illumination
Font Size Visual Effects Sequencing Spacing Locations Billboard Size
A onesegment
message
may
remain
static on
the
signboard
with no
duration
limit.
expand or
contract, bounce,
rotate, spin, twist,
or otherwise
portray graphics
or animation as it
moves onto, is
displayed on, or
leaves the
signboard.

WI 6s 1s No variable message
sign lamp may be
illuminated to a degree
of brightness that is
greater than necessary
for adequate visibility.

Not specified. No flashing,
intermittent or
moving light.

Traveling
messages
prohibited.

Not
specified.

Not specified. Not specified. Not
specified.

10.1 p. 577 of 947
45 (B) 200 feet for 10.5’x 36’.
(C) 250 feet for 14’x 48’.

Tennessee
Control of Outdoor Advertising, Chapter 1680-2-3, Rules of Tennessee Department of Transportation Maintenance Division, Tennessee Department of Transportation, February 2003.

Current regulations do not include electronic billboards:
http://www.tdot.state.tn.us/environment/beautification/pdf/1680-02-03.pdf.

However, proposed revisions are under review that include guidance on digital displays:
http://www.tdot.state.tn.us/environment/beautification/docs/Revised-ODA-Rules-Redline.pdf.

From the web site:
1680-10-01-.03 CRITERIA FOR THE CONTROL OF OUTDOOR ADVERTISING DEVICES.

4. Spacing
(i) (IV) The minimum spacing for changeable message signs with a digital display is two thousand (2,000) feet, except as follows:

I. An outdoor advertising device that uses a digital display which does not exceed one hundred (100) square feet in total area to give public information such as time, date, temperature, or weather, or to provide the price of a product, the amount of a lottery prize or similar numerical information supplementing the content of a message otherwise displayed on the sign face shall not be subject to the two thousand (2,000) feet minimum spacing requirement in this item (IV).

5. Changeable Message Signs
Changeable message signs are permissible, subject to the following restrictions: (i) The message display time shall remain static for a minimum of eight (8) seconds with a maximum change time of two (2) seconds. (ii) Video, animation, and continuous scrolling messages are prohibited. (iii) Nonconforming devices shall not be converted to a changeable message sign. (iv) The changeable message sign shall contain a default design that will freeze the sign face to one position if a malfunction occurs. (v) The structure for a changeable message sign may contain sign faces that are in a double-faced, back-to-back, or V-type configuration. (vi) The minimum spacing for changeable message signs with a digital display is as provided in Rule 1680-10-.03(1)(a)4.(i)(IV).

Washington
Highway Advertising Control, M22-95, Washington State Department of Transportation, March 2011. http://www.wsdot.wa.gov/publications/manuals/fulltext/M22-95/HighwayAdvertisingControl.pdf From the report:
468-66-050 Sign classifications and specific provisions (3) Type 3 – On-premise signs.
(b) Type 3(b) – Business complex on-premise sign. A Type 3(b) business complex on-premise sign may display the name of a shopping center, mall, or business combination. (i) Where a business complex erects a Type 3(b) on-premise sign, the sign structure may display additional individual business signs identifying each of the businesses conducted on the premises. A Type 3(b) on-premise sign structure may also have attached a display area, such as a manually changeable copy panel, reader board, or electronically changeable message center, for advertising on-premise activities and/or presenting public service information.

10.1 p. 578 of 947
46 (g) Electronic signs may be used only as Type 3 on-premise signs and/or to present public service information, as follows:
(i) Advertising messages on electronic signboards may contain words, phrases, sentences, symbols, trademarks, and logos. A single message or a message segment must have a static display time of at least two seconds after moving onto the signboard, with all segments of the total message to be displayed within ten seconds. A one-segment message may remain static on the signboard with no duration limit.
(ii) Displays may travel horizontally or scroll vertically onto electronic signboards, but must hold in a static position for two seconds after completing the travel or scroll. (iii) Displays shall not appear to flash, undulate, or pulse, or portray explosions, fireworks, flashes of light, or blinking or chasing lights. Displays shall not appear to move toward or away from the viewer, expand or contract, bounce, rotate, spin, twist, or otherwise portray graphics or animation as it moves onto, is displayed on, or leaves the signboard. (iv) Electronic signs requiring more than four seconds to change from one single message display to another shall be turned off during the change interval. (v) No electronic sign lamp may be illuminated to a degree of brightness that is greater than necessary for adequate visibility. In no case may the brightness exceed 8,000 nits or equivalent candelas during daylight hours, or 1,000 nits or equivalent candelas between dusk and dawn. Signs found to be too bright shall be adjusted as directed by the department.
(h) The act does not regulate Type 3(a), 3(b), 3(c), and 3(d) on-premise signs located along primary system highways inside an incorporated city or town or a commercial or industrial area.

Wisconsin
Control of Outdoor Advertising Along and Visible from Highways on the Interstate and FederalAid Primary Systems, Chapter Trans 201, Wisconsin Administrative Code, February 2005. http://docs.legis.wisconsin.gov/code/admin_code/trans/201.pdf From the web site:

Trans 201.15 – Electronic signs
(3) Variable Message Signs.
(c) No message may be displayed for less than one-half second. (d) No message may be repeated at intervals of less than 2 seconds. (e) No segmented message may last longer than 10 seconds. (f) No traveling message may travel at a rate slower than 16 light columns per second or faster than 32 columns per second.
(g) No variable message sign lamp may be illuminated to a degree of brightness that is greater than necessary for adequate visibility.
(4) Multiple Message Signs.
(a) The louver rotation time to change a message shall be one second or less. (b) The time a message remains in a fixed position shall be 6 seconds or more.

84.30 Regulation of Outdoor Advertising, Wisconsin Legislative Documents, 2012. http://docs.legis.wisconsin.gov/statutes/statutes/84/30 From the web site:
(3)(c)(1) Signs that contain, include or are illuminated by any flashing, intermittent or moving light or lights are prohibited, except electronic signs permitted by rule of the department.

10.1 p. 579 of 947
47 (4)(bm) Signs may contain multiple or variable messages, including messages on louvers that are rotated and messages formed solely by use of lights or other electronic or digital displays, that may be changed by any electronic process, subject to all of the following restrictions:

1. Each change of message shall be accomplished in one second or less.

2. Each message shall remain in a fixed position for at least 6 seconds.

3. The use of traveling messages or segmented messages is prohibited.

4. The department, by rule, may prohibit or establish restrictions on the illumination of messages to a degree of brightness that is greater than necessary for adequate visibility.

10.1 p. 580 of 947

1 State Changeable Message Chart
(Source: OAAA State Statute Matrix)
No changeable
message Tri- action Only Changeable Message
signs allowed: /Digital Technology
(3 STATES) (5 STATES) (38 STATES)

ND, NH, WY MD, MA, OR, AL, AR, AZ, CA, CO, CT

TX, WA, DE, FL, GA, ID, IL, IA, IN,

KS, KY, LA, MI, MN, MO,

MS, MT, NE, NV, NJ, NM,

NY, NC, OH, OK, PA, RI,

SC, SD, TN, UT, VA, WV, WI
State-by-state breakdown of the 38 states allowing Changeable Message/Digital technology
• States which have statutes (19):

CA, CO, CT, DE, FL

GA, IN, KS, MI, MO

MN, NJ, NY, OH

OK, UT, TN, VA, WI
• Regulations (10):

AR, ID, IL, IA*, LA, NE,

NV, NC, SC, WV
• States with interpretations of the federal/state agreement (7):

AL, AZ, KY, MT,

NM, RI, SD
● Policy memoranda (2):

MS approved a policy DOT memorandum
PA approved the technology through an internal PENNDOT memorandum (2002) IA* regulations are undergoing a comment period

10.1 p. 581 of 947

2 OAAA Changeable Message Criteria
Dwell Time Sequence – By State
Dwell Time (Static Message) State
4 seconds CA, CO, IA, VA
5 seconds NM, PA
6 seconds AL, AZ, CT, FL, GA, IA, MI, MN,
NV, NY, SD, WI, RI (average)
8 seconds AR, ID, IN, KS, LA, MO, MS, NJ,

NC, OH, OK, OR, SC, TN, UT,
WV, WA
10 seconds DE, IL, NE, MD, TX
Other/State-Company KY, MA, MT
Discretion
Dwell and Twirl Times for message changes and spacing criteria States Allowing Changeable Message/Digital Technology
State Dwell time Twirl time Spacing *traditional 500 ft AL 6 seconds
______________________________________________________________ AR 8 seconds or more 2 seconds or less 1500 feet
______________________________________________________________ AZ 6 seconds 1 second *
______________________________________________________________ CA 4 seconds 4 seconds 1000 feet
______________________________________________________________ CO 4 seconds 1 second 1000 feet
______________________________________________________________ CT 6 seconds 3 seconds *
______________________________________________________________ DE 10 seconds 1 second 2500 feet
______________________________________________________________ FL 6 seconds 2 seconds 1000 to 1500 feet
______________________________________________________________ GA 10 seconds 2 seconds 5000 feet

10.1 p. 582 of 947

3 Dwell and Twirl Times for message changes and spacing criteria (cont’d) States Allowing Changeable Message Including Electronics State Dwell time Twirl time Spacing
ID 8 seconds 2 seconds *
______________________________________________________________ IL 10 seconds 3 seconds *
______________________________________________________________ IN 8 seconds 2 seconds *
______________________________________________________________ IA 6 seconds 1 second *
______________________________________________________________ KS 8 seconds 2 seconds 1000 feet
___________________________________________________________________ KY
At discretion of state DOT______________________________________________ LA 8 seconds 4 seconds *
______________________________________________________________ MI 6 seconds 1 second *
______________________________________________________________ MN 6 seconds none *
______________________________________________________________ MS 8 seconds instantaneous *
______________________________________________________________ MO 8 seconds 2 seconds 1400 feet
______________________________________________________________ MT At discretion of state DOT_____________________________________________________________ NE 10 seconds 2 seconds 5000 feet
______________________________________________________________ NV 6 seconds 3 seconds *
______________________________________________________________ *NJ 8 seconds 1 second 3000 feet
(regulatory change
pending_____________________________________________________________ NM 5 seconds 1-2 seconds *
Company discretion__________________________________________________ NY 6 seconds 3 seconds *
______________________________________________________________ NC 8 seconds 2 seconds 1000 feet
______________________________________________________________ OH 8 seconds 3 seconds 1000 feet
______________________________________________________________ OK 8 seconds 4 seconds *

10.1 p. 583 of 947

4 Dwell and Twirl Times for message changes and spacing criteria (cont’d) States Allowing Changeable Message Including Electronics State Dwell time Twirl time Spacing
PA 5 seconds 1 second *
______________________________________________________________ RI 5-7 seconds 2-3 seconds *
Company discretion__________________________________________________________________ SD 6 seconds none *
______________________________________________________________ SC 8 seconds 2-3 seconds *
______________________________________________________________ TN 8 seconds 2 seconds 2000 feet
______________________________________________________________ UT 8 seconds 3 seconds *
______________________________________________________________ VA 4 seconds none *
______________________________________________________________ WV 8 seconds 2 seconds 1500 feet
______________________________________________________________ WI 6 seconds 1 second *
______________________________________________________________ States Allowing Changeable Message Including Electronics Tri-action Only
State Dwell time Twirl time Spacing
MD 10 seconds 4 seconds *
______________________________________________________________ MA none none *
______________________________________________________________ OR 8 seconds 4 seconds 1000 feet
______________________________________________________________ TX 10 seconds 2 seconds *
Rural Roads Only____________________________________________________ WA 8 seconds 4 seconds *
_______________________________________________________________

10.1 p. 584 of 947
12/6/2016 Guidance On Off­Premise Changeable Message Signs ­ Policy and Guidance ­ Outdoor Advertising Control ­ Real Estate ­ FHWA http://www.fhwa.dot.gov/real_estate/oac/policy_and_guidance/offprmsgsnguid.cfm 1/3 Laws, Regs and Policy Guidance
Guidance On Off­Premise Changeable Message Signs
U.S. Department of
Transportation
Federal Highway
Administration
Memorandum
Subject: INFORMATION: Guidance On Off­Premise Changeable Message Signs Date: September 25, 2007
ORIGINAL SIGNED BY: Gloria M. Shepherd
From: Gloria M. Shepherd
Associate Administrator for
Planning, Environment, and Realty
Reply
to
HEPR­20
To: Division Administrators
ATTN: Division Realty Professionals
Purpose
The purpose of this memorandum is to provide guidance to Division Realty Professionals concerning offpremises changeable message signs adjacent to routes subject to requirements for effective control under the Highway Beautification Act (HBA) codified at 23 U.S.C. 131. It clarifies the application of the Federal Highway Administration (FHWA) July 17, 1996, memorandum on this subject. This office may provide further guidance in the future as a result of additional information received through safety research, stakeholder input, and other sources.

Pursuant to 23 CFR 750.705, a State DOT is required to obtain the FHWA Division approval of any changes to its laws, regulations, and procedures to implement the requirements of its outdoor advertising control program. A State DOT should request and the Division offices should provide a determination as to whether the State should allow off­premises changeable Electronic Variable Message Signs (CEVMS) adjacent to controlled routes, as required by our delegation of responsibilities under 23 CFR 750.705(j).

The Divisions that already have formally approved CEVMS use on HBA controlled routes, as well as, those that have not yet issued a decision, should re­evaluate their position in light of the following considerations. The decision of the Division should be based upon a review and approval of a State's affirmation and policy that: (1) is consistent with the existing Federal/State Agreement (FSA) for the particular State, and (2) includes but is not limited to consideration of requirements associated with the duration of message, transition time, brightness, spacing, and location, submitted for the FHWA approval, that evidence reasonable and safe standards to regulate such signs are in place for the protection of the motoring public. Proposed laws, regulations, and procedures that would allow permitting CEVMS subject to acceptable criteria (as described below) do not violate a prohibition against "intermittent" or "flashing" or "moving" lights as those terms are used in the various FSAs that have been entered into during the 1960s and 1970s.

This guidance is applicable to conforming signs, as applying updated technology to nonconforming signs would be considered a substantial change and inconsistent with the requirements of 23 CFR 750.707(d) (5). As noted below, all of the requirements in the HBA and its implementing regulations, and the specific provisions of the FSAs, continue to apply.

Background
The HBA require  State  to maintai  e ective con

10.1 p.  of

12/6/2016 Guidance On Off­Premise Changeable Message Signs ­ Policy and Guidance ­ Outdoor Advertising Control ­ Real Estate ­ FHWA http://www.fhwa.dot.gov/real_estate/oac/policy_and_guidance/offprmsgsnguid.cfm 2/3 The HBA requires States to maintain effective control of outdoor advertising adjacent to certain controlled routes. The reasonable, orderly and effective display of outdoor advertising is permitted in zoned or unzoned commercial or industrial areas. Signs displays and devices whose size, lighting and spacing are consistent with customary use determined by agreement between the several States and the Secretary, may be erected and maintained in these areas (23 U.S.C. § 131(d)). Most of these agreements between the States and the Secretary that determined the size, lighting and spacing of conforming signs were signed in the late 1960's and the early 1970's.

On July 17, 1996, the Office of Real Estate Services issued a memorandum to Regional Administrators to provide guidance on off­premise changeable message signs and confirmed that the FHWA has "always applied the Federal law 23 U.S.C. 131 as it is interpreted and implemented under the Federal regulations and individual FSAs." It was expressly noted that "in the twenty­odd years since the agreements have been signed, there have been many technological changes in signs, including changes that were unforeseen at the time the agreements were executed. While most of the agreements have not changed, the changes in technology require the State and the FHWA to interpret the agreements with those changes in mind." The July 17, 1996, memorandum primarily addressed tri­vision signs, which were the leading technology at the time, but it specifically noted that changeable message signs "regardless of the type of technology used" are permitted if the interpretation of the FSA allowed them. Further advances in technology and affordability of LED and other complex electronic message signs, unanticipated at the time the FSAs were entered into, require the FHWA to confirm and expand on the principles set forth in the July 17, 1996, memorandum.

The policy espoused in the July 17, 1996, memorandum was premised upon the concept that changeable messages that were fixed for a reasonable time period do not constitute a moving sign If the State set a reasonable time period, the agreed­upon prohibition against moving signs is not violated. Electronic signs that have stationary messages for a reasonably fixed time merit the sam considerations.

Discussion
Changeable message signs, including Digital/LED Display CEVMS, are acceptable for conforming offpremise signs, if found to be consistent with the FSA and with acceptable and approved State regulations, policies and procedures.

This guidance does not prohibit States from adopting more restrictive requirements for permitting CEVMS to the extent those requirements are not inconsistent with the HBA, Federal regulations, and existing FSAs. Similarly, Divisions are not required to concur with State proposed regulations, policies, and procedures if the Division review determines, based upon all relevant information, that the proposed regulations, policies and procedures are not consistent with the FSA or do not include adequate standards to address the safety of the motoring public. If the Division Office has any question that the FSA is being fully complied with, this should be discussed with the State and a process to change the FSA may be considered and completed before such CEVMS may be allowed on HBA controlled routes. The Office of Real Estate Services is available to discuss this process with the Division, if requested.

If the Division accepts the State's assertions that their FSA permits CEVMS, in reviewing State­proposed regulations, policy and procedures for acceptability, the Divisions should consider all relevant information, including, but not limited to duration of message, transition time, brightness, spacing, and location, to ensure that they are consistent with their FSA and that there are adequate standards to address safety for the motoring public. The Divisions should also confirm that the State provided for appropriate public input, consistent with applicable State law and requirements, in its interpretation of the terms of their FSA as allowing CEVMS in accordance with their proposed regulations, policies, and procedures.

Based upon contacts with all Divisions, we have identified certain ranges of acceptability that have been adopted in those States that do allow CEVMS that will be useful in reviewing State proposals on this topic.

Available information indicates that State regulations, policy and procedures that have been approved by the Divisions to date, contain some or all of the following standards:

Duration of Message
Duration of each display is generally between 4 and 10 seconds ­ 8 seconds is recommended.

Transition Time
Transition between messages is generally between 1 and 4 seconds ­ 1­2 seconds is recommended.

Brightness

10.1 p. 6 of

12/6/2016 Guidance On Off­Premise Changeable Message Signs ­ Policy and Guidance ­ Outdoor Advertising Control ­ Real Estate ­ FHWA http://www.fhwa.dot.gov/real_estate/oac/policy_and_guidance/offprmsgsnguid.cfm 3/3 Adjust brightness in response to changes in light levels so that the signs are not unreasonably bright for the safety of the motoring public.

Spacing
Spacing between such signs not less than minimum spacing requirements for signs under the FSA, or greater if determined appropriate to ensure the safety of the motoring public.

Locations
Locations where allowed for signs under the FSA except such locations where determined inappropriate to ensure safety of the motoring public.

Other standards that the States have found helpful to ensure driver safety include a default designed to freeze a display in one still position if a malfunction occurs; a process for modifying displays and lighting levels where directed by the State DOT to assure safety of the motoring public; and requirements that a display contain static messages without movement such as animation, flashing, scrolling, intermittent or full­motion video.

Conclusion
This guidance is intended to provide information to assist the Divisions in evaluating proposals and to achieve national consistency given the variations in FSAs, State law, and State regulations, policies and procedures. It is not intended to amend applicable legal requirements. Divisions are strongly encouraged to work with their State in its review of their existing FSAs and, if appropriate, assist in pursuing amendments to address proposed changes relating to CEVMS or other matters. In this regard, the Office of Realty Estate Services is currently reviewing the process for amending FSAs, as established in 1980, to determine appropriate revisions to streamline requirements while continuing to ensure there is adequate opportunity for public involvement.

For further information on guidance on Off­Premise Changeable Message Signs, you may contact the Office of Real Estate Services' "Point of Contact" serving your Division or the contact on this page.

10.1 p.  of

1 The Regulation of Signage: Guidelines for Local Regulation of Digital On-Premise Signs
Menelaos Triantafillou – University of Cincinnati
Alan C. Weinstein – Cleveland State University
Introduction
Advancements in technology and their application to signage have been a constant in the evolution of signs, their design, and their role in defining physical places. Parallel to this, with each successive application of new technology to new signs – internal/external lighting, backlit awnings, and currently digital sign technology or electronic message centers -- local governments have found themselves unable to understand the new sign technology or the specifics of how to regulate the new types of signs it allowed. Eventually, during the first phase of the use of new technologies, sign regulations are amended to impose various restrictions on the new type of signs.

During subsequent phases, a more balanced picture emerges because more knowledge about the new technology becomes available, the sign industry provides more options and technical specifications to address community concerns and meet statutory standards, and local governments gain experience with regulating these new signs,.

Perhaps there are no better places that illustrate the evolution in sign design, specifically lighting and graphics, and the integration of new sign technology in a concentrated district than Times Square in New York City and “The Strip” in Las Vegas. Even though these districts do not resemble the typical American commercial strip, their current visual character is the result of the evolution of new technology in the design of signage and its use in a very defined space.

In the 1890’s, the introduction of incandescent light bulbs made the electrification of Broadway possible and began to give a new aesthetic to New York’s theater district and Times Square. The first electrically-illuminated sign appeared in Times Square 1892 and was an advertisement for a Coney Island resort. Signs illuminated with light bulbs replaced the previous hand painted wooden billboards that Appendix 3, Page 1 of 8

10.1 p. 588 of 947
2 were primarily textual in nature, similar to signs that are the average preference for Main Street-type historic places. Times Square became known as “The Great White Way” due to its saturation of electric billboards and signs in theater marquees, restaurants, and shops. There were many negative reactions to the use of this new technology that added colorful lighting displays to the content of building signs and billboards. The concentration of specific land uses, the theaters, and the location of the square were driving the continuous need for exciting signs. New advances in technology fed the need for inventing new creative graphics. Gradually, the current character of Times Square emerged, but each time technology made it possible to invent a new sign, opposition by New Yorkers resulted in regulatory responses.

Finally, in 1987, a comprehensive signage ordinance was enacted to regulate billboards on buildings.

Today, Times Square and the Las Vegas “Strip” contain some of the world’s largest signs and the new technology of Electronic Message Centers is defining a new era of exciting graphics, messaging, and place definition making these two districts unlike any other place in the world. With the collaboration of the sign industry, the businesses, the regulators and the elected officials, both Times Square and “The Strip” have evolved into unique districts with a distinctive character.

But how much of this new sign technology can – or should be – adapted to the rest of the country -- to “Mainstreet USA”? And, what are the appropriate regulatory options for local governments to consider when businesses and sign companies seek to introduce this technology in their communities? These questions are the focus of this session.

New Technology
Currently, the concern with the applications and regulation of on-premise digital sign technology is in its initial phase, marked by confusion among the planning and zoning community both as to how these signs work and how they can and should be regulated. Further adding to the confusion is the fact that the technology is evolving rapidly, offering exciting possibilities for new types of sign displays in exterior and interior environments. For example, during the opening ceremonies of the 2008 Appendix 3, Page 2 of 8

10.1 p. 589 of 947
3 Beijing Olympics, the floor of the stadium was equipped with a 3000 sq m video digital screen that used very similar type LED technology.

Technically, digital signs are a more complex and graphically versatile technology than what planners are used to: internally or externally illuminated signs that present a fixed message. Rather than using incandescent lamps or fluorescent tubes as a light source, digital signs use light-emitting diodes (LEDs), a semiconductor-based light source. LEDs transmit across the visible, ultraviolet and infrared wavelengths, and can generate very bright colors. According to Wikipedia, when a light-emitting diode is forward biased (switched on), electrons are able to recombine with holes within the device, releasing energy in the form of photons. This effect is called electroluminescence and the color of the light (corresponding to the energy of the photon) is determined by the energy gap of the semiconductor. An LED is usually small in area (less than 1 mm2), and integrated optical components are used to shape its radiation pattern and assist in reflection.

Key Issues with LED Signage
Digital sign manufacturers operate at the national level and that makes it difficult for local planners to have direct access to the technology before an application for a sign permit is made through a local sign company. In addition, there are no national standards for the production of digital signs; however, the sign industry, through the International Sign Association, is working with various states to develop such standards. In short, digital signs present planners with the question of how to regulate a type of sign that uses a new technology and is dynamic, rather than the static signs to which they are accustomed … and there is little guidance to answer that question. Thus, local government is asked to issue a permit for something it does not understand.

Assuming the local government does not have any regulations that are specific for digital sign technology, what does it do? Usually it will copy another community’s requirements. But how were those regulations developed? Most local governments have limited experience with LED signs, mainly from electronic billboards on highways, a small number of electronic message centers signs in commercial areas, and signs embedded in the monument signs of houses of worship and administration Appendix 3, Page 3 of 8

10.1 p. 590 of 947
4 buildings. In fact, most of the reaction to digital signs from APA and other groups is focused on the off-premise digital billboards with many studies looking at the issue of driver’s safety when reading the bright and changeable billboard messages. Research by the Federal Highway Administration and the Transportation Research Board has been examining digital signs along highways. In addition, APA has reviewed a few communities that have enacted amendments to their sign codes to address digital signs, mainly focusing on digital billboards. These studies do not directly help the local planner and zoning regulator with the enactment of local regulations to manage on-premise LED-based signs. Specific knowledge from research of commercial environments at the local level where digital signs will need to be incorporated into the existing signs and visual character is not yet available. That said, the International Sign Association has been funding research to address key aspects of digital signs and is working with the States to develop standards.

Electronic Message Center Sign Luminance
An important question is: What level of digital sign brightness is acceptable at night? Many local sign ordinances include standards and guidelines for commercial signs that employ a variety of light source types (fluorescent, neon, incandescent and high intensity discharge such as mercury, metal halide or high pressure sodium).

These signs have a fixed message. The lamps inside the sign illuminate letters or symbols that do not have the ability to change what is displayed on the sign: a graphic that was approved by the building/zoning department. In these signs, the only change possible is through switching on or off or dimming certain parts of the sign.

Digital signs, on the other hand, use LEDs and the sign face consists of a multitude of closely spaced dots of pixels or light elements similar to a television screen. These signs are controlled by a computer and their message can change and be displayed as a colored image on the sign’s face. As a result, the brightness of the displayed image changes according to the program that drives it and the sign can produce varying levels of luminance. Consequently, the regulation of lighting limits will depend on the signage graphic display program, its location within an environmental zone (i.e. dense urban areas where there is much electric light as opposed to ‘darker’ Appendix 3, Page 4 of 8

10.1 p. 591 of 947
5 suburban and exurban areas), the size of the sign, and the distance from which it is seen.

At present, most communities that regulate the luminance of on-premise digital signs have merely copied the standards that have been previously applied to digital billboards. Typically, these currently call for a maximum luminance of 5000 nits during daylight hours and 500 nits at night; however, the daylight luminance will likely be increasing to 7,500 nits based on discussions between the off-premise industry and the federal government.

Methodologies are being developed that will allow to compute new maximum levels of luminance depending on the factors explained, and their placement and proximity to residential areas.

Changing Display Message and/or Image
The programmable change of messages and/or images in a combination with vivid colors and graphics makes digital signs unique. Digital signs have the ability to accommodate any changing display pattern through the computer program that drives them and turn on and off color and brightness to compose new images. Static signs do not change their message and/or image. Most sign ordinances do not permit flashing signs or ‘light movement’ on the sign. A key question with digital signs is:

Should the number of changes in the display be regulated? If yes, how do we establish a practical and defensible number? What should the time interval (in seconds) be between each successive display frame? Currently, there are no unified standards among the local sign ordinances that have been amended to accommodate digital signs. Of the ordinances sampled/referenced, most have considered the research done for billboards and have focused on driver distraction from changing messages. Approaches range from a complete ban on digitally changing graphics to the use of arbitrary guidelines and standards. Currently, many communities have adopted an 8 second static image requirement derived from an interim guidance recommendation issued by the federal government that governs off premise advertising signs/ billboards.

Appendix 3, Page 5 of 8

10.1 p. 592 of 947
6 . However, as was pointed out, local commercial areas where on-premise signs are installed and are regulated are different than highways where off-premise billboards are located.

Digital Display Sign Size, Height, and Placement
Sign size and height have been key considerations of sign regulations. Almost all existing sign regulations have provisions for sign size that arbitrarily set total sign area without considering driving speeds, the driver’s cone of vision, the sight distance needed to read a sign, or reaction time after the sign is read to make a decision to turn. The United States Sign Council has conducted considerable research on these issues and has developed standards and guidelines to address them effectively. In addition the Council has developed guidelines to be used to determine size of lettering so that it can be detected by the driver. On-premise digital signs need to be regulated on the basis of the standards and guidelines developed by the United States Sign Council and we will provide recommendations on how to address these and other issues with regard to the regulation of on-premise digital signs discussed during this session.

Current Practice
Based on a recent survey of numerous jurisdictions by one of the authors, the most common regulatory provisions applicable to digital on-premise signs appear below:
 Require that the sign display remain static for a minimum of 5- 8 seconds and require “instantaneous” change of the display; i.e., no “fading” in/out of the message.
 Prohibit scrolling and animation outside of unique – and mostly pedestrianoriented – locations.  Limit brightness to 5,000 nits during daylight and 500 nits at night.  Require automatic brightness control keyed to ambient light levels.  Require display to go dark if there is a malfunction.  Specify distancing requirements from areas zoned for residential use and/or prohibit orientation of s sign face towards an area zoned for residential use.

Appendix 3, Page 6 of 8

10.1 p. 593 of 947
7 Opportunities for the Use of LED On-Premise Signage in the Local Commercial District
At the local commercial district or arterial strip the character of the environment and the driving speed are different than the highway where billboards are mostly located. The regulation of billboards at the local commercial districts varies from State to State and it is not really relevant to the regulation of on-premise signs. A typical commercial area already has many signs dispersed throughout a very loose mix of mostly freestanding buildings, parking lots, and utility poles and wires. Its character, including signage, evolved over a long period of time. The focus on the new technology and signs cannot ignore the existing spatial arrangements and the relationship with existing signs. Regulations will need to be applied in concert with the total environment, not by isolating these new signs. If planners were to apply a comprehensive approach to the management of signage, regulations for on-premise digital signs will be more effective and can also provide a way to ‘visually decongest’ existing strip commercial areas from ill-placed and ineffective signs.

Planners also need to consider differing approaches to digital signs for different types of zoning districts. What may be appropriate in a regional commercial district may well be “too little” signage for a downtown entertainment or sports arena district and “too much” for a neighborhood commercial district. In this regard, planners may want to consider using the “character areas” approach of the SFI Model Sign Code as a guide to the development of digital sign regulations that are tailored to specific zoning districts, as suggested below.

Appendix 3, Page 7 of 8

10.1 p. 594 of 947
8 Appendix 3, Page 8 of 8

10.1 p. 595 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 836 F.3d 42
United States Court of Appeals,
District of Columbia Circuit.

Scenic America, Inc., Appellant,
v.

United States Department of
Transportation, et al., Appellees.

No. 14-5195
|
Argued September 25, 2015
|
Decided September 6, 2016
Synopsis
Background: Non-profit organization brought action
pursuant to Administrative Procedure Act (APA) against
Department of Transportation and its Secretary, as well as Federal Highway Administration (FHWA) and its
Administrator, challenging guidance memorandum issued
by FHWA, which interpreted Highway Beautification
Act's (HBA) prohibition on “flashing, intermittent or
moving” lights on billboards to permit state approval
of those digital billboards that met certain timing and brightness requirements. After defendants' motion to
dismiss for lack of standing was denied, 983 F.Supp.2d
170, the United States District Court for the District
of Columbia, James E. Boasberg, J., 49 F.Supp.3d
53, granted defendants' motion for summary judgment.

Organization appealed.

Holdings: The Court of Appeals, Wilkins, Circuit Judge, held that:
[1] organization's alleged organizational injury was not redressable through vacatur of guidance memorandum;
[2] organization presented sufficient evidence that it had suffered representational injury-in-fact;
[3] organization's representational injury was redressable through repudiation of FHWA's interpretation;
[4] guidance memorandum was final agency action; and
[5] guidance memorandum was not promulgated contrary
to law.

Affirmed in part; vacated and remanded in part.

West Headnotes (19)
[1] Federal Courts
Limited jurisdiction; jurisdiction as
dependent on constitution or statutes
170B Federal Courts
170BII Jurisdiction, Powers, and Authority in
General
170BII(A) In General
170Bk2012 Judicial Power of United States;
Power of Congress
170Bk2015 Limited jurisdiction; jurisdiction as
dependent on constitution or statutes
Federal courts are not courts of general
jurisdiction; they have only the power that is
authorized by Article III of the Constitution
and the statutes enacted by Congress pursuant
thereto. U.S. Const. art. 3.

Cases that cite this headnote
[2] Constitutional Law
Separation of Powers
Constitutional Law
Nature and scope in general
Federal Civil Procedure
In general; injury or interest
92 Constitutional Law
92XX Separation of Powers
92XX(A) In General
92k2330 In general
92 Constitutional Law
92XX Separation of Powers
92XX(C) Judicial Powers and Functions
92XX(C)1 In General
92k2450 Nature and scope in general
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.2 In general; injury or interest
Appendix 4, Page 1 of 15

10.1 p. 596 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 The standing requirements of Article III are
grounded in respect for the separation of
powers tenets that are the foundation of the
nation's system of government, and they help
prevent the judicial process from being used
to usurp the powers of the political branches.

U.S. Const. art. 3.

Cases that cite this headnote
[3] Federal Courts
Determination of question of jurisdiction
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(B) Appellate Jurisdiction and
Procedure in General
170Bk3252 Determination of question of
jurisdiction
Observing the federal court's Article
III limitations is always important, and
particularly so in a case where the Court of
Appeals is asked to invalidate an action of the
Executive branch. U.S. Const. art. 3.
1 Cases that cite this headnote
[4] Federal Civil Procedure
In general; injury or interest
Federal Civil Procedure
Causation; redressability
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.2 In general; injury or interest
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.3 Causation; redressability
The irreducible constitutional minimum of
standing requires that a plaintiff demonstrate
three elements: (1) injury in fact; (2) causation;
and (3) redressability. U.S. Const. art. 3.
1 Cases that cite this headnote
[5] Federal Civil Procedure
In general; injury or interest
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.2 In general; injury or interest
The party invoking federal jurisdiction bears
the burden of establishing the elements of
Article III standing; each element must be
supported in the same way as any other matter
on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of
evidence required at the successive stages of
the litigation. U.S. Const. art. 3.

Cases that cite this headnote
[6] Federal Civil Procedure
Pleading
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.5 Pleading
At the pleading stage, general factual
allegations of injury resulting from the
defendant's conduct may suffice to establish
Article III standing. U.S. Const. art. 3.

Cases that cite this headnote
[7] Federal Civil Procedure
In general; injury or interest
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.2 In general; injury or interest
A court's determination that a plaintiff has
established Article III standing at the motion
to dismiss stage by alleging sufficient facts in
her pleadings is only the first step, because
that finding does not obviate the court's
responsibility to ensure that the plaintiff can
actually prove those allegations when one or
both parties seek summary judgment. U.S.

Const. art. 3.

Cases that cite this headnote
Appendix 4, Page 2 of 15

10.1 p. 597 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 [8] Federal Civil Procedure
In general; injury or interest
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.2 In general; injury or interest
Even where the court denies a motion to
dismiss based on lack of Article III standing,
in response to a summary judgment motion,
the plaintiff can no longer rest on mere
allegations, but must set forth by affidavit
or other evidence specific facts establishing
standing; if, upon review of the evidence, the
court determines that the plaintiff has not
introduced sufficient evidence into the record
to at least raise a disputed issue of fact as to
each element of standing, the court has no
power to proceed and must dismiss the case.

U.S. Const. art. 3.
3 Cases that cite this headnote
[9] Federal Courts
Determination of question of jurisdiction
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(B) Appellate Jurisdiction and
Procedure in General
170Bk3252 Determination of question of
jurisdiction
Every federal appellate court has a special
obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts
in a cause under review.

Cases that cite this headnote
[10] Federal Courts
Determination of question of jurisdiction
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(B) Appellate Jurisdiction and
Procedure in General
170Bk3252 Determination of question of
jurisdiction
If the Court of Appeals determines that the
district court was without jurisdiction, then
the Court of Appeals has jurisdiction on
appeal, not of the merits but merely for the
purpose of correcting the error of the lower
court in entertaining the suit.

Cases that cite this headnote
[11] Federal Courts
Standing
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(K) Scope and Extent of Review
170BXVII(K)2 Standard of Review
170Bk3576 Procedural Matters
170Bk3585 Parties
170Bk3585(2) Standing
The Court of Appeals reviews a district court's
decision as to Article III standing de novo.

U.S. Const. art. 3.

Cases that cite this headnote
[12] Federal Civil Procedure
In general; injury or interest
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.2 In general; injury or interest
When the existence of one or more of the
essential elements of Article III standing
depends on the unfettered choices made by
independent actors not before the courts
and whose exercise of broad and legitimate
discretion the courts cannot presume either to
control or to predict, it becomes substantially
more difficult to establish standing. U.S.

Const. art. 3.
1 Cases that cite this headnote
[13] Federal Civil Procedure
Causation; redressability
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.3 Causation; redressability
Mere unadorned speculation as to the
existence of a relationship between the
Appendix 4, Page 3 of 15

10.1 p. 598 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 challenged government action and the thirdparty conduct will not suffice to invoke the federal judicial power under the redressability
element of Article III standing. U.S. Const.
art. 3.

Cases that cite this headnote
[14] Associations
Actions by or Against Associations
41 Associations
41k20 Actions by or Against Associations
41k20(1) In general
Non-profit organization lacked Article III
standing to challenge, through Administrative
Procedure Act (APA) notice-and-comment
claim, Federal Highway Administration
(FHWA) guidance memorandum which
interpreted Highway Beautification Act's
(HBA) prohibition on “flashing, intermittent
or moving” lights on billboards to permit
state approval of digital billboards that met
certain timing and brightness requirements;
organization's alleged injury, that it was
forced to expend greater resources opposing
digital billboards, was not redressable through
vacatur of the memorandum, since state
officials could find such billboards permissible
for reasons other than those stated in the
memorandum. U.S. Const. art. 3.; 5 U.S.C.A.
§ 551 et seq.; 23 U.S.C.A. § 131.

Cases that cite this headnote
[15] Associations
Actions by or Against Associations
41 Associations
41k20 Actions by or Against Associations
41k20(1) In general
Non-profit organization presented sufficient
evidence that it had suffered
representational injury-in-fact, stemming
from Federal Highway Administration's
(FHWA) promulgation of guidance
memorandum that interpreted Highway
Beautification Act's (HBA) prohibition on
“flashing, intermittent or moving” lights on
billboards to permit state approval of those
digital billboards that met certain timing
and brightness requirements, as required for
organization to have Article III standing to
bring an arbitrary and capricious challenge
to the memorandum; one of organization's
members alleged that digital billboard near
her home generated bright flash, and that
billboard marred view from her home and
negatively affected value of her property. U.S.

Const. art. 3.; 5 U.S.C.A. § 551 et seq.; 23
U.S.C.A. § 131.

Cases that cite this headnote
[16] Associations
Actions by or Against Associations
41 Associations
41k20 Actions by or Against Associations
41k20(1) In general
Alleged representational injury of nonprofit organization stemming from Federal Highway Administration's (FHWA)
promulgation of guidance memorandum that
interpreted Highway Beautification Act's
(HBA) prohibition on “flashing, intermittent
or moving” lights on billboards to permit
state approval of digital billboards that met
certain timing and brightness requirements,
was redressable through judicial repudiation
of FHWA's interpretation, as required for
organization to have Article III standing to
bring an arbitrary and capricious challenged
to the memorandum; repudiation would
prohibit FHWA from relying on that
interpretation in future rulemaking and
require FHWA to subject extant billboards
to either removal or an order requiring
their operation consistent with flashing light
restrictions. U.S. Const. art. 3.; 5 U.S.C.A. §
551 et seq.; 23 U.S.C.A. § 131.

Cases that cite this headnote
[17] Administrative Law and Procedure
Finality; ripeness
15A Administrative Law and Procedure
15AV Judicial Review of Administrative
Decisions
15AV(B) Decisions and Acts Reviewable
15Ak704 Finality; ripeness
Appendix 4, Page 4 of 15

10.1 p. 599 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 An agency action will be deemed
final, and therefore reviewable under the
Administrative Procedure Act (APA), if it
marks the consummation of the agency's
decisionmaking process and is an action
by which rights or obligations have been
determined, or from which legal consequences
will flow; the most important factor in
determining whether an agency action is
one from which legal consequences will flow
concerns the actual legal effect, or lack
thereof, of the agency action in question on
regulated entities. 5 U.S.C.A. § 551 et seq.

Cases that cite this headnote
[18] Highways
Billboards and highway beautification in
general
200 Highways
200IX Regulation and Use for Travel
200IX(A) Obstructions and Encroachments
200k153.5 Billboards and highway
beautification in general
Federal Highway Administration's (FHWA)
promulgation of guidance memorandum,
which interpreted Highway Beautification
Act's (HBA) prohibition on “flashing,
intermittent or moving” lights on billboards
to permit state approval of those digital
billboards that met certain timing and
brightness requirements, was final agency
action that was subject to review under
Administrative Procedure Act (APA);
memorandum came to definitive conclusion
in interpreting HBA, and memorandum
withdrew some of the discretion concerning
billboard permitting that states previously
held. 5 U.S.C.A. § 551 et seq.; 23 U.S.C.A. §
131.

Cases that cite this headnote
[19] Highways
Billboards and highway beautification in
general
200 Highways
200IX Regulation and Use for Travel
200IX(A) Obstructions and Encroachments
200k153.5 Billboards and highway
beautification in general
Federal Highway Administration's (FHWA)
guidance memorandum, which interpreted
Highway Beautification Act's (HBA)
prohibition on “flashing, intermittent or
moving” lights on billboards to permit state
approval of digital billboards that met certain
timing and brightness requirements, was not
promulgated contrary to law in violation
of the Administrative Procedure Act (APA);
HBA required lighting standards in federalstate agreements to be “consistent with customary use,” and guidance memorandum
did not change lighting standards to such
extent that those standards were no longer
consistent with customary use. 5 U.S.C.A. §
551 et seq.; 23 U.S.C.A. § 131.

Cases that cite this headnote
*45 Appeal from the United States District Court for the District of Columbia, (No. 1:13-cv-00093)
Attorneys and Law Firms
Daniel H. Lutz, Orrville, OH, argued the cause for
appellant. With him on the briefs was Hope M. Babcock.

Thomas M. Gremillion entered an appearance.

William D. Brinton, Jacksonville, FL, was on the brief for amici curiae The American Planning Association, et al. in support of petitioner.

Jeffrey E. Sandberg, Attorney, U.S. Department of
Justice, argued the cause for federal appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney
at the time the brief was filed, and Mark R. Freeman,
Attorney.

Kannon K. Shanmugam argued the cause for intervenorappellee Outdoor Advertising Association of America, Inc. With him on the brief was Allison B. Jones,
Washington, DC.

Before: Pillard and Wilkins, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Appendix 4, Page 5 of 15

10.1 p. 600 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Opinion
Wilkins, Circuit Judge:

The Highway Beautification Act (“HBA”), 23 U.S.C.
§ 131, requires the Federal Highway Administration
(“FHWA”) and each state to develop and implement
individual federal-state agreements (“FSAs”), detailing, among other things, “size, lighting and spacing” standards for the billboards now found towering over many of
our country's interstate highways. One of those adopted standards, included in most states' FSAs, prohibits
those states from erecting any billboard with “flashing, intermittent or moving” lights (the “FSA lighting
standards”).

Plaintiff-Appellant Scenic America is a non-profit
organization which “seeks to preserve and improve
the visual character of America's communities and
countryside.” Compl. ¶ 7, J.A. 10. It challenges
a guidance memorandum issued by the FHWA in
2007, which interpreted that prohibition on “flashing,
intermittent or moving” lights to permit state approval of those digital billboards that met certain timing
and brightness requirements. Scenic argues that the
guidance memorandum must be invalidated because
it (1) was not promulgated using notice-and-comment
procedures, and (2) violates the HBA, and was therefore promulgated “contrary to law” in violation of § 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551
et seq.

We hold that we lack jurisdiction to hear Scenic's
notice-and-comment claim because Scenic has failed to
demonstrate that it has standing to bring that challenge, and deny its § 706 claim on the merits.

I.

A.

In 1965, Congress enacted the Highway Beautification
Act to control “the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System ... in order to protect the public investment in such highways, to promote the safety
and recreational value of public travel, and to preserve natural beauty.” 23 U.S.C. § 131(a). The HBA penalizes
those states that fail to maintain “effective control” over their advertising signs by permitting the Secretary of
Transportation to reduce their federal highway funds by ten percent. Id. § 131(b).

To maintain effective control, each state is required to, among other things, negotiate *46 an FSA with the
Secretary that establishes standards for the “size, lighting and spacing” of billboards that come within 660 feet of the Interstate. Id. § 131(d). The HBA requires that those standards be “consistent with customary use.” Id. All fifty states entered into such FSAs, most of which were written in the 1960s and 1970s. See Scenic Am., Inc. v. U.S. Dep't of Transp. (Scenic II), 49 F.Supp.3d 53, 57 (D.D.C. 2014).

FHWA regulations, promulgated under the HBA, require
that states “[d]evelop laws, regulations, and procedures” that implement the standards contained in each state's
FSA. 23 C.F.R. § 750.705(h). States must submit these
laws, regulations, and procedures to the FHWA's regional offices, known as Division Offices, for approval. Id. § 750.705(j). The FHWA has one Division Office located in each state.

Although each of the FSAs was individually negotiated,
most contain similar terms. Nearly all of the FSAs
contain a prohibition against “flashing,” “intermittent,” and “moving” lights. See, e.g., J.A. 120 (New York FSA); J.A. 131 (Colorado FSA); J.A. 139 (North Carolina FSA).

As billboard technology changed, states began
considering or passing laws that permitted digital
billboards to be displayed along the Interstate. See,
e.g., J.A. 422-23 (letter from Indiana Department
of Transportation to Indiana FHWA Division Office
informing the Division Office that Indiana had passed
a law permitting certain digital billboards); J.A. 424
(letter from the Indiana FHWA Division Office to the
Indiana Department of Transportation acknowledging
the letter and agreeing that the digital billboards
discussed in Indiana's previous letter “do[ ] not constitute flashing, intermittent or moving lights”); J.A. 437
(letter from Arkansas Highway Commission to Arkansas
FHWA Division Office noting new regulations permitting
digital billboards); J.A. 183 (United States Department of Transportation memorandum discussing digital
billboard in Nebraska). These billboards, sometimes
referred to as “commercial electronic variable message
signs” (“CEVMS”), typically use LED lights to display
Appendix 4, Page 6 of 15

10.1 p. 601 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 a static advertisement that remains on the screen for a specified period of time before quickly transitioning to a different static advertisement. Advertisements typically remain visible for around ten seconds, and usually take approximately two seconds to transition to the next ad.

The FHWA's Division Offices differed on whether digital billboards complied with the FSA lighting standards.

Compare, e.g., J.A. 424 (Indiana Division Office agreeing that digital billboards “do[ ] not constitute flashing, intermittent or moving lights”), with, e.g., J.A. 263 (Texas Division Office stating that “[w]hile the technology for LED displays did not exist at the time of the [FSA], the wording in the [FSA] clearly prohibits such signs”). In 2007, the national FHWA office weighed in. It issued to its Division Offices a memorandum entitled “Guidance on Off-Premise Changeable Message Signs” (the “Guidance”
or “2007 Guidance”), a portion of which stated as follows:

Proposed laws, regulations, and
procedures that would allow
permitting CEVMS subject to
acceptable criteria (as described
below) do not violate a prohibition
against “intermittent” or “flashing”
or “moving” lights as those terms are
used in the various FSAs that have
been entered into during the 1960s
and 1970s.

J.A. 535. The FHWA went on to identify those
“acceptable criteria” based on “certain ranges of
acceptability that have been adopted in those States that do allow CEVMS.” J.A. 534, 537 (recommending, among
other things, that each display generally remain static for between four and *47 ten seconds, and transition to a
new display in one to four seconds).

According to a survey the FHWA distributed to states
shortly before issuing the 2007 Guidance, many states
with FSAs that included a ban on intermittent, flashing, or moving lights permitted digital billboards before the FHWA issued the Guidance. J.A. 531-32. The Division
Office for at least two states, Texas and Kentucky, did not permit digital billboards prior to the 2007 Guidance.

See Scenic Am., Inc. v. U.S. Dep't of Transp. (Scenic
I), 983 F.Supp.2d 170, 179–80 (D.D.C. 2013). After
the Guidance, Texas began to permit the use of digital
billboards. Lloyd Decl. ¶ 9, J.A. 41.

B.

Scenic brought this suit against the United States
Department of Transportation, the federal executive
department responsible for implementation of the HBA;
the FHWA, which promulgated the 2007 Guidance; Ray
LaHood, the Secretary of Transportation at the time; and Victor Mendez, the Administrator of FHWA at the time.

Scenic did not include any of the FHWA's Division Offices in this suit. Outdoor Advertising Association of America, Inc. (“OAAA”) intervened as a defendant shortly after
Scenic brought suit.

Scenic's suit alleges two claims relevant to this appeal:
(1) the 2007 Guidance constitutes a legislative, not
interpretive rule, thus violating § 553 of the APA,
because it was not promulgated using notice-andcomment procedures; and (2) the Guidance violates § 706 of the APA because it creates a new lighting standard that is not “consistent with customary use,” as required by the HBA. 1 Compl. ¶¶ 48-53, 57-62, J.A. 17-19.
1 Scenic abandoned a third claim on appeal—that the
Guidance improperly creates new lighting standards,
in contravention of the procedures for creating
new standards set forth in the HBA. See Br. for
Defendants-Appellees [hereinafter “FHWA Br.”],
Scenic Am., Inc. v. U.S. Dep't of Transp., No. 14–5195
(D.C. Cir. Feb. 20, 2015), Doc. No. 1538780, at 16 &
n.7.

The FHWA and the OAAA (collectively “Defendants”)
moved to dismiss, contending that Scenic lacked standing, and that the court lacked jurisdiction over the Guidance because it did not constitute final agency action under the APA. Scenic I, 983 F.Supp.2d at 172–73. The District Court denied Defendants' motion as to both claims. Id.

Relevant to our decision here, the District Court held, at the motion to dismiss stage, that Scenic's requested relief would redress its harm because “vacating the Guidance
would return the FHWA to agnosticism on the question
[of permitting digital billboards], leaving Division Offices free to draw their own conclusions.” Id. at 181. According to the District Court, this would prevent Scenic from
“hav[ing] to police as intensively new digital-billboard construction around the country.” Id.

Appendix 4, Page 7 of 15

10.1 p. 602 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 Defendants later moved for summary judgment, and
the District Court granted the motions, finding that
the Guidance was not subject to notice-and-comment
requirements because it was an interpretive, not legislative rule, and that it did not violate the “consistent with
customary use” provision of the HBA. Scenic II, 49
F.Supp.3d at 59–71. Defendants, in their summary
judgment briefing below, did not again challenge Scenic's standing, and the District Court did not discuss Scenic's standing in its written Opinion granting Defendants'
summary judgment motions.

II.

We begin, as we must, by addressing our jurisdiction to review Scenic's appeal. Because Scenic must demonstrate its *48 standing separately as to each of the two claims it brings on appeal, see Catholic Soc. Serv. v. Shalala, 12 F.3d 1123, 1125 (D.C. Cir. 1994), we find that, although Scenic has standing to bring its claim concerning FHWA's alleged § 706 violation, Scenic has failed to demonstrate it has standing to bring its notice-and-comment claim.

A.
[1] [2] [3] As has been expressed time and time again,
“[f]ederal courts are not courts of general jurisdiction; they have only the power that is authorized by Article
III of the Constitution and the statutes enacted by
Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). As Chief Justice Marshall observed, “[i]f
the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision [and] if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting
4 PAPERS OF JOHN MARSHALL 95 (C. Cullen
ed. 1984)) (emphases omitted). Thus, without studious
adherence to the metes and bounds of our jurisdiction
as imposed by Article III, Chief Justice Marshall warned that “the other departments [of the government] would
be swallowed up by the judiciary.” Id. The standing
requirements of Article III are therefore grounded in
respect for the separation of powers tenets that are the foundation of our system of government, Valley Forge
Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471-74, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), and they help “prevent the judicial process from being used to usurp the powers of the political
branches,” Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). Observing our Article III limitations is therefore always important, and particularly so in a case such as this, where we are asked to invalidate an action of the Executive branch.
[4] [5] The “irreducible constitutional minimum of
standing” requires that a plaintiff demonstrate three
elements: (1) injury in fact; (2) causation; and (3)
redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The
party invoking federal jurisdiction bears the burden of establishing these elements”; “each element must be
supported in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561, 112 S.Ct. 2130.
[6] [7] [8] Thus, the plaintiff must meet this burden at the outset of each phase. “At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice....” Id. And a court's determination that a plaintiff has established standing at the motion to dismiss stage by alleging sufficient facts in her pleadings is only the first step, because that finding does not obviate the court's responsibility to ensure that the plaintiff can actually prove those allegations when one or both parties seek summary judgment. So even where the court denies a motion to dismiss based on lack of standing, “[i]n response to a summary judgment motion, ... the plaintiff can no
longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts [establishing standing].” Id. (internal quotation marks omitted). 2 If, upon review *49 of the evidence, the court determines
that the plaintiff has not introduced sufficient evidence into the record to at least raise a disputed issue of fact as to each element of standing, the court has no power to
proceed and must dismiss the case. See, e.g., Clapper, 133 S.Ct. at 1148–49 (dismissing case where plaintiff did not raise an issue of fact as to standing at summary judgment). 2 Our treatment of standing in cases that come to
us directly on administrative review is instructive.

Because these petitions for administrative review
Appendix 4, Page 8 of 15

10.1 p. 603 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 bypass the district court and come to us directly,
we treat them as a district court would in deciding
a motion for summary judgment. See Sierra Club
v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). In
Sierra Club, we held, “mindful of our independent
obligation to be sure of our jurisdiction,” that the
petitioner there had failed to establish its burden
as to standing. Id. at 898, 902. We explained that
“[t]he petitioner's burden of production in the court
of appeals is ... the same as that of a plaintiff moving for summary judgment in the district court: it must
support each element of its claim to standing ‘by
affidavit or other evidence.’ ” Id. at 899 (quoting Defs. of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130).

Just as we must ensure our jurisdiction over
petitions brought to us directly, so too must the
district court assure itself of its jurisdiction before assessing a summary judgment motion on the
merits.
[9] [10] In addition, “every federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.’ ” Bender, 475 U.S. at 541, 106 S.Ct. 1326 (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)). If we determine that the District Court was without jurisdiction, then “we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 73, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)).
[11] We review the District Court's decision (or lack
thereof) as to standing de novo, Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029
(D.C. Cir. 2003), and hold that Scenic has not met its
burden of establishing its standing to bring its notice-andcomment claim. 3 3 The FHWA challenged Scenic America's standing at
the motion to dismiss stage, and though the District
Court held in favor of Scenic, it noted that the issue
“presents difficult and close questions.” Scenic I, 983 F.Supp.2d at 172. When the FHWA later moved
for summary judgment, therefore, Scenic was already
on notice that its standing might be questioned on
appeal, at which time the record would be closed.

Scenic therefore cannot claim to have been deprived
of a fair and “full opportunity to make a record
of [its] standing in the district court.” Swanson Grp.

Mfg. LLC v. Jewell, 790 F.3d 235, 241 (D.C. Cir.
2015). Scenic should have accompanied its summary
judgment materials with evidence of its standing. See
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 897, 110
S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“[A] litigant's
failure to buttress its position because of confidence
in the strength of that position is always indulged in
at the litigant's own risk.”).

Because the plaintiff has the burden to establish the
evidentiary basis for its standing at the summary
judgment stage in every case, just as it has the
burden to plead sufficient facts at the motion to
dismiss stage in every case, the District Court may
wish to consider amending its local rules to provide
that the plaintiff include its evidentiary basis for
standing in the statement of material facts that
every party is required to file either in support of, or in opposition to, a motion for summary judgment.

See Civil Local Rule 7(h)(1). Such a rule would
ensure that the plaintiff is on notice of its obligation to present such evidence, make the District Court's
job much easier (as well as ours), and function
similarly to our Circuit Rule 28(a)(7), which we
adopted after our ruling in Sierra Club.
*50 B.

1. Scenic's notice-and-comment claim turns on the
redressability prong of Article III standing. Scenic asserts that the 2007 Guidance forced certain FHWA Division
Offices to reinterpret the FSA lighting standards—that
billboards may not contain “flashing, intermittent or
moving” lights—so that those offices would thereafter
find the FSA language to permit, rather than bar,
digital billboards. Scenic claims that this alleged change of position made it easier for states to erect digital
billboards, because they no longer had to worry about
being prevented from doing so by the Division Offices.

As a result, Scenic allegedly has to work harder, and
thus spend greater resources, to fight these billboards— its injury in fact. Scenic claims that vacating the Guidance will redress that injury.
[12] [13] In this way, Scenic asserts injuries that stem not directly from the FHWA's issuance of the 2007 Guidance, but from third parties not directly before the court—
the Division Offices and the states. When “[t]he existence of one or more of the essential elements of standing”—
Appendix 4, Page 9 of 15

10.1 p. 604 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 in this case redressability—“ ‘depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,’ ” it becomes “ ‘substantially more difficult’ to establish” standing. Defs. of Wildlife, 504 U.S. at 562, 112 S.Ct. 2130 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615, 109
S.Ct. 2037, 104 L.Ed.2d 696 (1989); Allen v. Wright, 468 U.S. 737, 758, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984));
accord Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004). “[M]ere ‘unadorned
speculation’ as to the existence of a relationship between the challenged government action and the third-party
conduct ‘will not suffice to invoke the federal judicial power.’ ” Nat'l Wrestling, 366 F.3d at 938 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)).

Scenic's complaint makes only two arguments concerning
the redressability of its notice-and-comment claim. First, it argues that if we vacate the 2007 Guidance, “Scenic
America and its affiliate members would spend fewer
resources combating new digital billboards.” Compl. ¶
21, J.A. 12. This speaks to Scenic's alleged organizational standing. See PETA v. U.S. Dep't of Agric., 797 F.3d
1087, 1093 (D.C. Cir. 2015) (organizational standing
“requires [an organizational plaintiff], like an individual plaintiff, to show actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision” (internal quotation marks omitted)). Second, Scenic contends that if we vacate the 2007 Guidance, “digital billboards that injure Scenic America members would be subject to
removal or an order to cease operating in a manner that violates the regulatory prohibition against intermittent lighting in billboard advertisements.” Compl. ¶ 21, J.A.

12. This speaks to Scenic's representational standing. See Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (recognizing
“that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit”).

2. a.
[14] Scenic has failed to demonstrate that our vacatur
of the Guidance would *51 redress its alleged
organizational injury—that it is forced to expend greater resources fighting digital billboards because the 2007
Guidance makes it easier for states to erect such
billboards.

States are required to seek permission from the FHWA
Division Offices before they permit the use of digital
billboards. See 23 C.F.R. § 750.705(j). Prior to the
FHWA's issuance of the Guidance, those Offices could,
and often did, authorize that use, finding that it accorded with a given state's FSA. Scenic has introduced no
evidence into the record—as it must at summary judgment —establishing that if we were to vacate the Guidance,
any Division Office would respond by preventing the
state it oversees from erecting digital billboards; nor has Scenic submitted evidence establishing that states would successfully erect, or even seek to erect, fewer billboards.

Without providing any indication that our vacatur of
the Guidance will diminish the number of billboards
Scenic has to fight, Scenic has failed to demonstrate that its requested remedy would prevent Scenic from having
to expend the same amount of resources fighting these
billboards.

A brief look at some of our previous decisions in this area reinforces the point. In National Wrestling, we assessed the standing of several associations representing men's wrestling teams, some of whom had been cut from
college athletic programs. 366 F.3d at 933. Department
of Education regulations, promulgated under Title IX,
required college athletic programs to ensure that they
provided equal athletic opportunities to both sexes, based in part on the resources that are devoted to various
programs. Id. at 934–35. Plaintiffs did not challenge those regulations. Instead, plaintiffs challenged a Department of Education interpretation of those regulations, which they claimed caused several athletic programs to eliminate their wrestling teams. Id. We held that plaintiffs lacked standing because they were unable to show that a
favorable decision would redress their injuries. Id. at 938.

Appendix 4, Page 10 of 15

10.1 p. 605 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 We noted that the “direct causes of appellants' asserted injuries—loss of collegiate-level wrestling opportunities for male student-athletes—are the independent decisions of educational institutions.” Id. at 936–37. Even if we vacated the Department of Education's interpretation,
there was no indication that it would alter those
institutions' independent decisions to eliminate their
wrestling teams. Id. at 939. Nothing in the Department's interpretation required schools to eliminate their wrestling teams; schools did so in an attempt to ensure that
they were distributing athletic resources equally—a
requirement of Title IX more generally, irrespective of the interpretation that plaintiffs challenged. See id. at 939–40 (asserting that “nothing but speculation suggest[ed] that schools would act any differently” if the court vacated the interpretation). We noted that plaintiffs would only meet standing requirements if they “took the position that gender-conscious elimination of men's sports teams would be illegal in the absence of the challenged” interpretation, but that plaintiffs made no such claim. Id. at 941. Finally, we explained that the “possibility” that wrestling teams would have “better odds” if we vacated the Department's interpretation “falls far short of the mark.” Id. at 942 (emphasis omitted).

We held similarly in Renal Physicians Ass'n v. United
States Department of Health and Human Services. 489
F.3d 1267 (D.C. Cir. 2007). That case involved the Stark Law, which limited the ability of a physician to refer a Medicare patient to clinical laboratories with which the physician had a “financial relationship,” but permitted *52 referrals where the physician's only financial interest was the receipt of compensation at “fair market value.” Id. at 1269. The Department of Health and Human Services,
which was authorized to promulgate regulations under the Law, created a “safe harbor” provision, describing two
methods for demonstrating that a physician's hourly rate was at fair market value. Id. at 1270. The Department also noted, however, that the safe harbor was voluntary, and that health care providers could continue to establish fair market value through other methods. Id. at 1269–71.

After a physicians' association challenged the safe harbor provision under the APA, we held that plaintiff lacked
standing because it failed to show that vacating the
safe harbor provision would redress its members' alleged injuries—namely that the safe harbor provision caused
them to be paid less for their services than would otherwise be the case. Id. at 1276–78. Because the safe harbor
was merely one way that hospitals could determine
“fair market value,” we noted that “it is ‘speculative,’ rather than ‘likely,’ that invalidating the safe harbor will somehow cause these facilities to pay more,” and that
“[t]he effect (if any) of the safe harbor cannot be simply undone.” Id. at 1277.

As in Renal Physicians, the FHWA created what is,
in essence, a safe harbor provision regarding digital
billboards. The 2007 Guidance made it clear that state
laws and regulations regarding digital billboards meeting the specifications listed in the Guidance would not be
rejected for violating the FSA lighting standards. Yet
even after the Guidance, Division Offices can still approve state laws and regulations permitting billboards that fall outside those specifications, and they can still reject laws and regulations allowing billboards that meet those specifications, but that violate state FSAs for other
reasons. The safe harbor created by the Guidance is
voluntary in the same way as the safe harbor in Renal
Physicians; Division Offices can rely on it to find certain billboards permissible, but those Offices can find those billboards permissible for other reasons as well. It is “speculative,” rather than “likely,” that invalidating the Guidance would stop any particular billboard from being constructed. Indeed, many states with FSAs that included a ban on intermittent, flashing, or moving lights permitted digital billboards prior to the 2007 Guidance.

In sum, we cannot assume, without more, that vacating
the Guidance would eliminate or lessen the construction of digital billboards.

Scenic contends that because the Texas Division Office
barred Texas from constructing digital billboards prior to the Guidance, vacating the Guidance would redress
Scenic's injuries, at least with respect to Texas. However, Scenic has introduced no evidence suggesting that Texas, or the Texas Division Office, would behave any differently in the absence of the 2007 Guidance. Scenic simply
assumes, without any proof, that Texas will revert to
its pre-Guidance position as soon as the Guidance is
invalidated.

Scenic's assumption is nothing more than “unadorned
speculation.” Simon, 426 U.S. at 44, 96 S.Ct. 1917. Several other possibilities seem just as likely, were we to vacate the 2007 Guidance. The Guidance may have focused the
Texas Division Office on the fact that a majority of states Appendix 4, Page 11 of 15

10.1 p. 606 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 had already determined that the FSA lighting standards
permitted digital billboards. Knowing as much, Texas's
Division Office might be more inclined to “jump on the
bandwagon” and permit such billboards going forward,
even absent the 2007 Guidance. Or the Division Office
might be persuaded to continue allowing digital billboards now that Texas has already *53 issued permits for at least 150 of them, Lloyd Decl. ¶ 9, J.A. 41. See Renal Physicians, 489 F.3d at 1278 (“[T]he word is already out, and therefore it is too late to reverse course.... [T]he undoing of the governmental action will not undo the harm, because the new status quo is held in place by other forces.”).

Scenic has introduced no evidence that would make
any one of these possibilities more likely than another.

Particularly given the difficulty of establishing standing based on the actions of third parties not before the Court, see Defs. of Wildlife, 504 U.S. at 562, 112 S.Ct. 2130, Scenic's lack of any evidentiary basis for its redressability contentions requires us to reject its standing as to its notice-and-comment claim.

As a final argument, Scenic relies on Village of Arlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and
contends that vacating the 2007 Guidance would remove
one of several barriers to Scenic's anti-digital billboard efforts, and that this is sufficient for redressability purposes. However, Arlington Heights is inapposite here.

As an initial matter, Arlington Heights involved a party directly harmed by the challenged action, not one harmed by the actions of a third party not before the Court.

See id. at 254, 97 S.Ct. 555. Moreover, Arlington Heights involved a developer's challenge to a zoning ordinance
that prevented it from building low-income housing. Id. at 255–58, 97 S.Ct. 555. The Supreme Court characterized the zoning ordinance as an “absolute barrier.” Id. at 261, 97 S.Ct. 555. Although the developer still needed to secure financing and qualify for federal subsidies, the challenged zoning ordinance ensured that the developer could not
proceed with its goal of constructing low-income housing.

Id. at 261–62, 97 S.Ct. 555. A court decision to remove that barrier would redress the developer's injury because a major impediment to the developer's efforts would be
eliminated.

Scenic has introduced no evidence showing that vacating the 2007 Guidance would remove an “absolute barrier”
to its efforts. As we have already stated above, absent the 2007 Guidance, states remain free to pursue digital billboard construction, and Division Offices remain
free to permit such construction. Thus, Scenic has not
established that invalidating the Guidance would improve or ease Scenic's efforts in any way. 4
4 Scenic did not argue that the FHWA's failure to
undertake notice and comment before promulgating
the Guidance constitutes a procedural injury, and we
express no opinion on such an argument. Although a
party cannot forfeit a claim that we lack jurisdiction, it can forfeit a claim that we possess jurisdiction. See Huron v. Cobert, 809 F.3d 1274, 1279–80 (D.C. Cir.
2016).
b.

Scenic's representational standing claim fares no better.

Scenic argues that vacating the 2007 Guidance will
redress its members' injuries because it will cause the digital billboards allegedly injuring those members to be removed. Compl. ¶ 21, J.A. 12. Scenic came dangerously
close to forfeiting this argument. See Huron v. Cobert, 809 F.3d 1274, 1279–80 (D.C. Cir. 2016).

Presumably because the District Court had upheld
Scenic's standing at the motion to dismiss stage, and
Defendants had not contested Scenic's standing before the District Court at the summary judgment stage, Scenic did not address its standing in its opening brief on appeal. In their responding brief, however, the FHWA challenged
anew Scenic's standing. The FHWA contended that Scenic
had offered “no basis for expecting that vacating the *54 Guidance would cause any existing digital billboards to be dismantled.” See FHWA Br. 29. In reply, Scenic appeared to abandon the allegation. It repeated the FHWA's
contention and responded that “Plaintiff need only show that vacatur would reduce Plaintiff's continuing injury of diverting limited resources to counteract billboard
approvals.” Reply Br. for Appellant 10.

Nonetheless, Scenic appears to have preserved its
representational standing argument by painting it in a
somewhat different light. It argues that the alleged injuries of one of its members—Nikki Laliberte—are “traceable
to the Guidance” because the Guidance prohibits the
Division Office in Minnesota, where Laliberte lives,
from considering whether digital billboards violate the Appendix 4, Page 12 of 15

10.1 p. 607 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 FSA lighting standards. See Reply Br. for Appellant

12. Scenic's implication seems to be that vacating
the Guidance might cause Minnesota's Division Office
to remove some digital billboards. Although Scenic's
argument is couched in terms of causation, “causation and redressability are closely related, and can be viewed as two facets of a single requirement.” Newdow v. Roberts, 603 F.3d 1002, 1012 n.6 (D.C. Cir. 2010) (internal quotation marks omitted). Thus, Scenic's assertion is sufficient to preserve its representational standing claim.

As we noted above, however, Scenic has introduced no
evidence demonstrating that our vacatur of the Guidance would cause Division Offices or states to prohibit the
construction of new digital billboards. See supra Part
II.B.2.a. It is even less plausible, given Scenic's complete lack of any evidentiary showing on the matter, that
Division Offices or states would require extant billboards to be dismantled.

By neglecting to “set forth by affidavit or other evidence specific facts” establishing its representational standing, Defs. of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted), Scenic has failed to meet its burden to demonstrate its representational standing to
bring its notice-and-comment claim.

3. Scenic does fare better, however—at least as to standing —on its claim that the Guidance violated § 706, although barely.
a.

In its complaint, Scenic alleges that FHWA's actions, in promulgating the Guidance, are “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law, in violation of the APA.” Compl. ¶ 62, J.A.

19. That language appears to be taken from § 706(2)(A)
of the APA, which sets forth the well-known “arbitrary
and capricious” standard, and which would likely provide an effective cause of action for Scenic to challenge
the FHWA's alleged failure to comport with the HBA.

Confusingly, however, Scenic does not cite § 706 as part of its second claim, but rather cites § 553, the provision that concerns notice-and-comment rulemaking. See id. ¶¶ 57-62, J.A. 18-19.

Construing the complaint liberally, as is sometimes
appropriate, but cf. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1104, 1106 (D.C. Cir. 2005) (explaining that although “the complaint—particularly a complaint filed
by a pro se prisoner—should be construed liberally,”
“the rule of liberal construction of complaints applies to factual allegations,” and refusing to liberally construe a counseled plaintiff's complaint so as to include new
defendants (quoting Fletcher v. District of Columbia, 370 F.3d 1223, 1227 n.* (D.C. Cir. 2004))), it might be possible to construe Scenic's complaint as having relied upon § 706 rather than, or in addition to, § 553. At oral argument, however, counsel for Scenic was specifically asked whether its second *55 claim included a § 706 challenge to
FHWA's promulgation of the guidance, and Scenic's
counsel replied “no, we did not present that.” Counsel
went on to state that to the extent it brought anything resembling an arbitrary-and-capricious challenge it did it through the “backdoor” of its notice-and-comment
claim, specifically highlighting its argument that that the Guidance is a legislative rule because it is 180 degrees counter to the FSA text it alleged to be interpreting.

Thus, it appears that Scenic disclaimed any arbitraryand-capricious challenge to FHWA's alleged failure to comport with the HBA.

Nonetheless, during that same colloquy at oral argument, Scenic did state, with respect to its § 706 claim, that it “focused solely on the customary use provision, finding that it was contrary to law.” Giving Scenic the benefit of the doubt, Scenic's papers and statements at oral argument are sufficient for us to eke out a § 706 claim.
b.
[15] Scenic has standing to bring such a § 706 claim. First, Scenic has offered sufficient evidence that it has suffered a representational injury in fact. The record at summary judgment demonstrates that at least one of its members, Nikki Laliberte, has suffered a concrete injury because a digital billboard near her home “generates a bright flash when its display transitions from one advertisement to
another.” Laliberte Decl. ¶ 4, J.A. 52. She asserts that the billboard “has marred the view from [her] home[ ],” and that she is “concerned that the billboard has negatively Appendix 4, Page 13 of 15

10.1 p. 608 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 affected the value of [her] property.” Id. ¶¶ 6, 9, J.A. 52-53.

This sort of harm to an individual's property is sufficient to constitute a concrete injury in fact. See Idaho, By & Through Idaho Pub. Utils. Comm'n v. ICC, 35 F.3d 585,
591 (D.C. Cir. 1994) (noting that a private landowner
“suffers concrete injury if [her] property is despoiled”). [16] The causation and redressability prongs of our
standing analysis are equally clear here. Scenic's § 706 claim is that the Guidance runs afoul of the statute's
“customary use” requirement as that requirement has
been interpreted in the FSAs. If we were to find for Scenic on the merits of its claim, a point we must assume for
standing purposes, see LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011), we could only do so by effectively repudiating the FHWA's interpretation of the FSAs.

Repudiation would provide much more robust relief than
vacatur. Not only would it prohibit the agency from
relying on that interpretation in any future rulemakings, it would also require the agency to subject extant billboards to either removal or an order requiring those billboards to operate in a manner that does not violate the FSAs, for instance by keeping the image displayed by the billboard constant and unchanging. Scenic's injury, clearly caused by the Guidance, is therefore redressable. See Renal
Physicians, 489 F.3d at 1278 (holding that “the only way to prevent” a finding that redressability is lacking in the third-party context is “for a court not only to invalidate [the contested agency action] but also to repudiate” it).

III.

FHWA argues that the Guidance is not a final agency
action and is therefore not reviewable under the APA. We disagree.
[17] An agency action will be deemed final if it “mark[s] the consummation of the agency's decisionmaking
process” and is an action “by which rights or obligations have been determined, or from which legal consequences
will flow.” Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotation
*56 marks omitted). “The most important factor” in
determining whether an agency action is one “from which legal consequences will flow” “concerns the actual legal effect (or lack thereof) of the agency action in question on regulated entities.” Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014).
[18] The Guidance marks the consummation of
FHWA's decision-making process. It comes to a
definitive conclusion: the FSA's prohibition on “flashing, intermittent or moving” lights does not prevent states
from permitting digital billboards, so long as they meet certain prescribed requirements. Although the Guidance
does state that the FHWA “may provide further guidance
in the future as a result of additional information” FHWA might receive, J.A. 535, such a statement is fairly read as a “boilerplate” indication that the agency may issue further interpretations in the future. See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022–23 (D.C. Cir. 2000). The fact that a regulation might be interpreted again at some point in the indeterminate future cannot, by itself, prevent the initial interpretation from being final.

The Guidance is also an action “from which legal
consequences will flow.” It creates a safe harbor such
that Division Offices and states may not deny a
digital billboard permit for violating the FSA lighting standards where that billboard meets the timing and
other requirements set forth in the Guidance. In this
way, the Guidance withdraws some of the discretion
concerning billboard permitting the Division Offices and states previously held. See NRDC v. EPA, 643 F.3d
311, 320 (D.C. Cir. 2011) (concluding that where agency action withdraws an entity's previously-held discretion, that action “alter[s] the legal regime,” “binds” the entity, “and thus qualifies as final agency action”). That safe harbor has a clear legal effect on the regulated entities here —the Division Offices and the states—and the Guidance
is therefore a final agency action.

IV.

Having concluded that Scenic has standing to bring its § 706 claim, and that the Guidance constitutes final agency action, we now review the merits of the claim de novo, see Khan v. Parsons Glob. Servs., Ltd., 428 F.3d 1079, 1082 (D.C. Cir. 2005), and find them lacking.

Scenic argues that the Guidance is invalid because it fails to comport with the HBA's “customary use” provision.

That provision states that “signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to be determined by agreement between the several States and the Secretary, may be erected” within 660 feet Appendix 4, Page 14 of 15

10.1 p. 609 of 947
Scenic America, Inc. v. United States Department of Transportation, 836 F.3d 42 (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 of the Interstate. 23 U.S.C. § 131(d) (emphasis added).

Scenic contends that the FHWA, in issuing the Guidance, changed the FSA lighting standards to such an extent that those standards are no longer “consistent with customary use.” According to Scenic “[a]nything outside the scope of what an FSA meant at the time it was created cannot be
‘customary use.’ ” Opening Br. for Appellant 36.

In Cajun Electric Power Cooperative, Inc. v. FERC, we
clarified that
[a]ny agreement that must be filed
and approved by an agency loses its
status as a strictly private contract
and takes on a public interest
gloss. That means that when the
agency reconciles ambiguity in such
a contract it is expected to do so
by drawing upon its view of the
public interest. And, therefore, the
agency to which Congress entrusted
the protection and discharge of the
public interest is entitled to just
as much benefit of the doubt in
interpreting such an agreement as
it would in interpreting its own
orders, *57 its regulations, or its
authorizing statute.
924 F.2d 1132, 1135 (D.C. Cir. 1991) (internal citations omitted); see also Nat'l Fuel Gas Supply Corp. v. FERC, 811 F.2d 1563, 1569–71 (D.C. Cir. 1987) (treating an
agency interpretation of a settlement agreement as entitled to deference similar to that owed under Chevron where
the settlement agreement had to be approved by the
agency). The FSAs, as agreements between the FHWA
and individual states, see 23 U.S.C. § 131(d), were thus approved by the FHWA as described in Cajun Electric.

Further, as the District Court explained, “[b]oth
Defendants and Scenic America recognize ... that all
FSA lighting provisions were established consistent with customary use.” Scenic II, 49 F.Supp.3d at 71 (quoting
or citing both parties' briefing) (internal quotation marks omitted); see also Opening Br. for Appellant 36; FHWA
Br. 51-52. Thus, so long as the FHWA has merely
interpreted in a reasonable fashion, rather than amended, those lighting standards, that interpretation must itself be “consistent with customary use,” whether or not it is precisely the interpretation that would have been given to the standards at the time the FHWA and states first agreed upon them. Cf. Ass'n of Am. R.Rs. v. Surface Transp.

Bd., 162 F.3d 101, 107 (D.C. Cir. 1998) (“Our deference to an agency's reasonable interpretation of its governing statute ‘is a product both of an awareness of the practical expertise which an agency normally develops, and of a
willingness to accord some measure of flexibility to such an agency as it encounters new and unforeseen problems
over time.’ ” (quoting Int'l Bhd. of Teamsters v. Daniel, 439 U.S. 551, 566 n.20, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979))). [19] We agree with the District Court's conclusion that the FHWA's interpretation of the FSA lighting standards is not one that “ ‘runs 180 degrees counter to the plain meaning of the’ FSAs,” and that it therefore “construes, rather than contradicts” the FSAs. Scenic II, 49 F.Supp.3d at 62–63, 70 (quoting Nat'l Family Planning & Reprod.

Health Ass'n v. Sullivan, 979 F.2d 227, 235 (D.C. Cir.
1992)). Although it might be possible to read the FSA
lighting standards to prohibit digital billboards, those standards do not foreclose other interpretations, including the FHWA's here. Because the FHWA's interpretation
of the FSA lighting provision was reasonable, the
interpretation cannot be “contrary to customary use.”
Accordingly, Scenic's claim that the Guidance violates § 706 must fail.
***
For the foregoing reasons, we affirm the District Court's grant of summary judgment as to Scenic's § 706 claim,
vacate its judgment as to Scenic's notice-and-comment
claim, and remand with instructions to dismiss Scenic's notice-and-comment claim.

So ordered.

All Citations
836 F.3d 42
End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

Appendix 4, Page 15 of 15

10.1 p. 610 of 947
Message Points
 Digital billboards serve businesses and communities by communicating information that can be quickly changed
 Digital billboards are accepted by government and the public  Digital billboards are regulated by government and self-regulation by the industry  Digital billboards are not distracting to drivers, according to government research  Government relies of digital billboards on behalf of public safety

 Digital billboards support jobs
Government-sponsored anti-distraction message on digital billboard in Connecticut OAAA Digital Technology Brief
Digital Billboards
Appendix 5, Page 1 of 7

10.1 p. 611 of 947
OAAA Digital Technology Brief February 2015
Digital Billboards
High-tech communication for advertisers and communities Digital technology is a non-manual way to change billboard “copy,” via computer.

Digital billboards do not flash or scroll; they display static images that rotate typically every six or eight seconds.

Advertisers can change their messages quickly, without the time and expense of printing or posting. Other media are major buyers of digital billboards, featuring news, sports, weather, programming, and personalities.

Likewise, communities use digital billboards to deliver information to the public.

Other media are major buyers of digital billboards
Digital billboards are accepted/regulated

“Digital billboards are right in line with the whole cityscape. They communicate that we are a city that embraces technology. We actually have some of the newest state-of-the art cutting edge advertising,” said Joe Cimperman, a longtime city councilman in Cleveland, OH.

Keeping pace with technology, government has regulated and authorized digital billboards. The federal government says states can allow digital billboards as long as they do not flash, scroll, or feature full motion. Nearly all states with billboards allow digital billboards, which operate in nearly 1,000 communities.

Anti-billboard Scenic America attacked the federal guidelines in court; in 2014 a federal judge dismissed the case, with prejudice.

Appendix 5, Page 2 of 7

10.1 p. 612 of 947
OAAA Digital Technology Brief February 2015
Industry practices conform to federal guidance, such as display times and lighting. Federal guidelines, issued in 2007, say digital billboards should “adjust brightness in response to changes in light levels so that the signs are not unreasonably bright for the safety of the motoring public.” Digital billboards are equipped with light sensors that adjust brightness to surrounding light conditions, to avoid glare.

The out of home advertising industry has established standards that lighting levels should not exceed 0.3 foot candles above the level of surrounding light conditions. State and local governments have incorporated this standard into regulations.

The OAAA Code of Industry Principles commits to providing effective and safe digital billboards:
 We are committed to ensuring that the commercial and noncommercial messages disseminated on standard-size digital billboards will be static messages and the content shall not include animated, flashing, scrolling, intermittent or full-motion video elements (outside established entertainment areas).
 We are committed to ensuring that the ambient light conditions associated with standard-size digital billboards are monitored by a light sensing device at all times and that display brightness will be appropriately adjusted as ambient light levels change.

The respected media research firm Arbitron has studied public opinion (Los Angeles County, 2009, and the metro area of Cleveland, OH, 2008). With similar findings in each study, Arbitron says most commuters feel that digital billboards are a cool way to advertise and also provide important community information.

Traffic Safety
On December 30, 2013, the Federal Highway Administration (FHWA) released the findings of its multi-year research on drivers' behavior in proximity to digital billboards.
"DOT study finds digital billboards don't distract drivers," said the headline in The Hill newspaper in Washington, DC (January 7, 2014).

The government's findings tracked the outcome of industry-sponsored research, which found no connections to accidents.

FHWA’s sister agency the National Highway Traffic Safety Administration (NHTSA) said in 2006: “Short, brief glances away from the forward roadway for the purpose of scanning the driving environment are safe and actually decrease near-crash/crash risk.”
Appendix 5, Page 3 of 7

10.1 p. 613 of 947
OAAA Digital Technology Brief February 2015
This 2006 NHTSA study (“100-Car Naturalistic Driving Study”) said glances totaling more than 2 seconds increase crash risk. FHWA’s later research on digital billboards, released December 30, 2013, said the longest glances toward digital billboards were less than 1.3 seconds.

State review of crash data
Meanwhile, states have reviewed crash data. Effective January 1, 2015, New York State switched from 24-hour to 8-second display time on digital billboards.

New York’s analysis of crash data “suggests there is no change in the crash patterns in the vicinity of the off-premise CEVMS billboards,” and continued monitoring is warranted.

Massachusetts DOT also looked at crash data: “The traffic engineers preparing the reports found no detrimental safety impacts” of the digital billboards.

A media report in 2015 summarized state regulatory acceptance of digital billboards, including New York State and Massachusetts.

Digital billboards help public safety
Emergency message after the Boston Marathon bombing
Government relies on digital billboards to communicate with the public.

Since 2008, the National Center for Missing & Exploited Children has transmitted more than 1,000 AMBER Alerts to digital billboards. The Center points out that time is of the essence after child abductions, and, therefore, quick posting on digital billboards is an important part of the AMBER Alert network.

Appendix 5, Page 4 of 7

10.1 p. 614 of 947
OAAA Digital Technology Brief February 2015
The FBI says it has apprehended 53 fugitives as a direct result of tips from the public prompted by information on digital billboards.

The FBI calls digital billboards a "force multiplier." On March 16, 2012, FBI Director Robert S. Mueller presented the Director's Community Leadership Award to Ken Klein of the Outdoor Advertising Association of America in recognition of the industry's partnership to help law enforcement via digital billboards.

FBI Director Robert S. Mueller presents award to Ken Klein (OAAA) At the local level, Albuquerque, NM, used digital billboards to urge conservation during a winter-time natural gas shortage. Police in Janesville, WI, post a variety of messages. "An elderly female suffering from Alzheimer's disease wandered away from family in a local shopping mall and was found by a citizen using the digital billboard information. When spring floods along the Rock River posed significant danger to the public, billboards were used to post warnings about the danger," wrote Chief of Police Neil Mahan (retired) in The Police Chief magazine.

Appendix 5, Page 5 of 7

10.1 p. 615 of 947
OAAA Digital Technology Brief February 2015
FEMA message on digital billboard after storms hit Tuscaloosa, AL Digital billboards support jobs
Billboard advertising supports jobs in local communities, typically more than two dozen jobs per advertiser. The digital sign industry also supports thousands of manufacturing jobs, incubates new ideas, and produces exports.

In 2001, Time-O-Matic, known for time-and-temperature signs, added Watchfire to its name to represent new products such as LED signs. "Watchfire is a living, thriving example for communities across America” that small business development is an engine of the overall economy, says Vicki Haugen of the economic development arm of Danville, IL, and surrounding Vermillion County.

U.S. Senator John Thune, R-SD, echoes that point. “Daktronics is the type of company that communities dream of having,” said Thune, calling the company an “integral” part of the community of Brookings, SD. Daktronics designs and builds digital displays, electronic scoreboards, and programmable display systems.

Each day in nearly 100 countries, millions of people depend on displays and scoring systems made by Daktronics, which is competing globally from smalltown America.

In 1920, an immigrant from England named Tom Young went into the sign business with $300. Today, Young Electric Sign Company – based in Salt Lake City, UT -- manufactures on-premise and off-premise signs including high-tech LED boards in Logan, UT.

Appendix 5, Page 6 of 7

10.1 p. 616 of 947
OAAA Digital Technology Brief February 2015
References
“Built in the USA: Growing Outdoor at Home,” Ken Klein, Outdoor Advertising Magazine, January/February 2009

"Digital Advertising Board -- Pilot Program," Bonnie Polin, Chief Safety Analyst, Massachusetts Department of Transportation, November 22, 2011 “Digital Billboards and Law Enforcement Agencies: A New, High-Tech Partnership,” Neil Mahan, chief of police (retired), Janesville, WI, The Police Chief magazine, March 2009
"Digital Billboard Initiative: Catching Fugitives in the Information Age," Federal Bureau of Investigation, posted online December 24, 2014 “Driving Performance and Digital Billboards,” Virginia Tech Transportation Institute, Center for Automotive Safety Research, March 22, 2007 "DOT study finds digital billboards don't distract drivers," The Hill, 1625 K Street, NW, Washington, DC 20006, January 7, 2014
“Guidance on Off-premise Changeable Message Signs,” Federal Highway Administration memorandum, Gloria M. Shepherd, Associate Administrator for Planning, Environment, and Realty, September 25, 2007
"The Effects of Commercial Electronic Variable Message Signs (CEVMS) on Driver Attention and Distraction: An Update," John A. Molino, Jerry Wachtel, John E. Farbry, Megan B. Hermosillo, Thomas Granda; Publication No. FHWAFHT-09-018, Federal Highway Administration, February 2009 Appendix 5, Page 7 of 7

10.1 p. 617 of 947

DRIVER VISUAL BEHAVIOR IN THE PRESENCE OF COMMERCIAL

ELECTRONIC VARIABLE MESSAGE SIGNS (CEVMS)
SEPTEMBER 2012
FHWA-HEP-16-036
Appendix 6, Page 1 of 70

10.1 p. 618 of 947

FOREWORD
The advent of electronic billboard technologies, in particular the digital Light-Emitting Diode (LED) billboard, has necessitated a reevaluation of current legislation and regulation for controlling outdoor advertising. In this case, one of the concerns is possible driver distraction. In the context of the present report, outdoor advertising signs employing this new advertising technology are referred to as Commercial Electronic Variable Message Signs (CEVMS). They are also commonly referred to as Digital Billboards and Electronic Billboards.

The present report documents the results of a study conducted to investigate the effects of CEVMS used for outdoor advertising on driver visual behavior in a roadway driving environment. The report consists of a brief review of the relevant published literature related to billboards and visual distraction, the rationale for the Federal Highway Administration research study, the methods by which the study was conducted, and the results of the study, which used an eye tracking system to measure driver glances while driving on roadways in the presence of CEVMS, standard billboards, and other roadside elements. The report should be of interest to highway engineers, traffic engineers, highway safety specialists, the outdoor advertising industry, environmental advocates, Federal policymakers, and State and local regulators of outdoor advertising.

Monique R. Evans
Director, Office of Safety
Research and Development
Nelson Castellanos
Director, Office of Real Estate
Services
Notice
This document is disseminated under the sponsorship of the U.S. Department of Transportation in the interest of information exchange. The U.S. Government assumes no liability for the use of the information contained in this document. This report does not constitute a standard, specification, or regulation.

The U.S. Government does not endorse products or manufacturers. Trademarks or manufacturers’ names appear in this report only because they are considered essential to the objective of the document.

Quality Assurance Statement
The Federal Highway Administration (FHWA) provides high-quality information to serve government, industry, and the public in a manner that promotes public understanding. Standards and policies are used to ensure and maximize the quality, objectivity, utility, and integrity of its information. The FHWA periodically reviews quality issues and adjusts its programs and processes to ensure continuous quality improvement.

Appendix 6, Page 2 of 70

10.1 p. 619 of 947

TECHNICAL DOCUMENTATION PAGE

1. Report No.

FHWA-HRT2. Government Accession No. 3. Recipient’s Catalog No.

4. Title and Subtitle
Driver Visual Behavior in the Presence of Commercial Electronic Variable Message Signs (CEVMS)

5. Report Date

6. Performing Organization Code

7. Author(s)
William A. Perez, Mary Anne Bertola, Jason F. Kennedy, and John A.

Molino

8. Performing Organization Report No.

9. Performing Organization Name and Address
SAIC
6300 Georgetown Pike
McLean, VA 22101

10. Work Unit No. (TRAIS)

11. Contract or Grant No.

12. Sponsoring Agency Name and Address
Office of Real Estate Services
Federal Highway Administration
1200 New Jersey Avenue SE
Washington, DC 20590

13. Type of Report and Period Covered

14. Sponsoring Agency Code

15. Supplementary Notes
The Contracting Officer’s Technical Representatives (COTR) were Christopher Monk and Thomas Granda.

16. Abstract
This study was conducted to investigate the effect of CEVMS on driver visual behavior in a roadway driving environment. An instrumented vehicle with an eye tracking system was used. Roads containing CEVMS, standard billboards, and control areas with no off-premise advertising were selected. Data were collected on arterials and freeways in the day and nighttime. Field studies were conducted in two cities where the same methodology was used but there were differences in the roadway visual environment. The gazes to the road ahead were high across the conditions; however, the CEVMS and billboard conditions resulted in a lower probability of gazes as compared to the control conditions (roadways not containing off-premise advertising) with the exception of arterials in Richmond where none of the conditions differed from each other. Examination of where drivers gazed in the CEVMS and standard billboard conditions showed that gazes away from the road ahead were not primarily to the billboards. Average and maximum fixations to CEVMS and standard billboards were similar across all conditions. However, four long dwell times were found (sequential and multiple fixations) that were greater than 2,000 ms. One was to a CEVMS on a freeway in the day time, two were to the same standard billboard on a freeway once in the day and once at night; and one was to a standard billboard on an arterial at night. In Richmond, the results showed that drivers gazed more at CEVMS than at standard billboards at night; however, in Reading the drivers were equally likely to gaze towards CEVMS or standard billboards in day and night. The results of the study are consistent with research and theory on the control of gaze behavior in natural environments. The demands of the driving task tend to affect the driver’s selfregulation of gaze behavior.

17. Key Words
Driver visual behavior, visual environment, billboards, eye tracking system, commercial electronic variable message signs, CEVMS, visual complexity

18. Distribution Statement
No restrictions.

19. Security Classif. (of this report)
Unclassified

20. Security Classif. (of this page)
Unclassified

21. No. of Pages 22. Price
Form DOT F 1700.7 (8-72) Reproduction of completed page authorized Appendix 6, Page 3 of 70

10.1 p. 620 of 947
ii SI* (MODERN METRIC) CONVERSION FACTORS

APPROXIMATE CONVERSIONS TO SI UNITS
Symbol When You Know Multiply By To Find Symbol
LENGTH
in inches 25.4 millimeters mm
ft feet 0.305 meters m
yd yards 0.914 meters m
mi miles 1.61 kilometers km
AREA
in2square inches 645.2 square millimeters mm2
ft2 square feet 0.093 square meters m
2 yd2 square yard 0.836 square meters m
2 ac acres 0.405 hectares ha
mi2square miles 2.59 square kilometers km2
VOLUME
fl oz fluid ounces 29.57 milliliters mL
gal gallons 3.785 liters L
ft3 cubic feet 0.028 cubic meters m
3 yd3 cubic yards 0.765 cubic meters m
3 NOTE: volumes greater than 1000 L shall be shown in m3 MASS
oz ounces 28.35 grams g
lb pounds 0.454 kilograms kg
T short tons (2000 lb) 0.907 megagrams (or "metric ton") Mg (or "t") TEMPERATURE (exact degrees)
o
F Fahrenheit 5 (F-32)/9 Celsius oC
or (F-32)/1.8

ILLUMINATION
fc foot-candles 10.76 lux lx
fl foot-Lamberts 3.426 candela/m2 cd/m2
FORCE and PRESSURE or STRESS
lbf poundforce 4.45 newtons N
lbf/in2poundforce per square inch 6.89 kilopascals kPa

APPROXIMATE CONVERSIONS FROM SI UNITS
Symbol When You Know Multiply By To Find Symbol
LENGTH
mm millimeters 0.039 inches in
m meters 3.28 feet ft
m meters 1.09 yards yd
km kilometers 0.621 miles mi
AREA
mm2square millimeters 0.0016 square inches in2
m
2 square meters 10.764 square feet ft2
m
2 square meters 1.195 square yards yd2
ha hectares 2.47 acres ac
km2 square kilometers 0.386 square miles mi2
VOLUME
mL milliliters 0.034 fluid ounces fl oz
L liters 0.264 gallons gal
m
3 cubic meters 35.314 cubic feet ft3
m
3 cubic meters 1.307 cubic yards yd3
MASS
g grams 0.035 ounces oz
kg kilograms 2.202 pounds lb
Mg (or "t") megagrams (or "metric ton") 1.103 short tons (2000 lb) T TEMPERATURE (exact degrees)
oC Celsius 1.8C+32 Fahrenheit o
F

ILLUMINATION
lx lux 0.0929 foot-candles fc
cd/m2candela/m20.2919 foot-Lamberts fl
FORCE and PRESSURE or STRESS
N newtons 0.225 poundforce lbf
kPa kilopascals 0.145 poundforce per square inch lbf/in2 *SI is the symbol for th Internat e ional System of Units. Appropriate rounding should be made to comply with Section 4 of ASTM E380. (Revised March 2003)
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iii

TABLE OF CONTENTS
EXECUTIVE SUMMARY _____________________________________________________1 INTRODUCTION_____________________________________________________________5 BACKGROUND ___________________________________________________________5 Post-Hoc Crash Studies____________________________________________________5 Field Investigations _______________________________________________________6 Laboratory Studies _______________________________________________________8 Summary _______________________________________________________________9 STUDY APPROACH _______________________________________________________9 Research Questions ______________________________________________________12 EXPERIMENTAL APPROACH _______________________________________________13 EXPERIMENTAL DESIGN OVERVIEW ____________________________________14 Site Selection __________________________________________________________14 READING __________________________________________________________________16 METHOD _______________________________________________________________16 Selection of Data Collection Zone Limits ____________________________________16 Advertising Conditions ___________________________________________________16 Photometric Measurement of Signs _________________________________________19 Visual Complexity ______________________________________________________20 Participants ____________________________________________________________21 Procedures _____________________________________________________________21 DATA REDUCTION ______________________________________________________23 Eye Tracking Measures___________________________________________________23 Other Measures _________________________________________________________25 RESULTS _______________________________________________________________26 Photometric Measurements ________________________________________________26 Visual Complexity ______________________________________________________27 Effects of Billboards on Gazes to the Road Ahead ______________________________28 Fixations to CEVMS and Standard Billboards _________________________________30 Comparison of Gazes to CEVMS and Standard Billboards _______________________36 Observation of Driver Behavior ____________________________________________36 Level of Service ________________________________________________________36 DISCUSSION OF READING RESULTS _____________________________________37 RICHMOND ________________________________________________________________40 METHOD _______________________________________________________________40 Selection of DCZ Limits __________________________________________________40 Advertising Type _______________________________________________________40 Photometric Measurement of Signs _________________________________________42 Visual Complexity ______________________________________________________42 Participants ____________________________________________________________43 Procedures _____________________________________________________________43 DATA REDUCTION ______________________________________________________44 Eye Tracking Measures___________________________________________________44 Appendix 6, Page 5 of 70

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iv
Other Measures _________________________________________________________44 RESULTS _______________________________________________________________44 Photometric Measurement of Signs _________________________________________44 Visual Complexity ______________________________________________________45 Effects of Billboards on Gazes to the Road Ahead ______________________________45 Fixations to CEVMS and Standard Billboards _________________________________47 Comparison of Gazes to CEVMS and Standard Billboards _______________________50 Observation of Driver Behavior ____________________________________________51 Level of Service ________________________________________________________51 DISCUSSION OF RICHMOND RESULTS ___________________________________51 GENERAL DISCUSSION _____________________________________________________53 CONCLUSIONS __________________________________________________________53 Do CEVMS attract drivers’ attention away from the forward roadway and other driving relevant stimuli? ________________________________________________________53 Do glances to CEVMS occur that would suggest a decrease in safety? ______________54 Do drivers look at CEVMS more than at standard billboards? ____________________54 SUMMARY ______________________________________________________________55 LIMITATIONS OF THE RESEARCH _______________________________________55 REFERENCES ______________________________________________________________57 Appendix 6, Page 6 of 70

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v

LIST OF FIGURES
Figure 1. Eye tracking system camera placement. ____________________________________13 Figure 2. FHWA’s field research vehicle. __________________________________________14 Figure 3. DCZ with a target CEVMS on a freeway. ___________________________________17 Figure 4. DCZ with a target CEVMS on an arterial. __________________________________18 Figure 5. DCZ with a target standard billboard on a freeway. ___________________________18 Figure 6. DCZ with a target standard billboard on an arterial. ___________________________18 Figure 7. DCZ for the control condition on a freeway. ________________________________19 Figure 8. DCZ for the control condition on an arterial. ________________________________19 Figure 9. Screen capture showing static ROIs on a scene video output. ___________________23 Figure 10. Mean feature congestion as a function of advertising condition and road type (standard errors for the mean are included in the graph). ________________________27 Figure 11. Distribution of fixation duration for CEVMS in the daytime and nighttime. _______30 Figure 12. Distribution of fixation duration for standard billboards in the daytime and nighttime. ________________________________________________________________31 Figure 13. Distribution of fixation duration for road ahead (i.e., top and bottom road ahead ROIs) in the daytime and nighttime. ______________________________________31 Figure 14. Heat map for the start of a DCZ for a standard billboard at night on an arterial. __________________________________________________________________33 Figure 15. Heat map for the middle of a DCZ for a standard billboard at night on an arterial. __________________________________________________________________33 Figure 16. Heat map near the end of a DCZ for a standard billboard at night on an arterial. __________________________________________________________________33 Figure 17. Heat map for start of a DCZ for a standard billboard at night on a freeway. _______34 Figure 18. Heat map for middle of a DCZ for a standard billboard at night on a freeway. __________________________________________________________________34 Figure 19. Heat map near the end of a DCZ for a standard billboard at night on a freeway. __________________________________________________________________34 Figure 20. Heat map for the start of a DCZ for a standard billboard in the daytime on a freeway. ________________________________________________________________35 Figure 21. Heat map near the middle of a DCZ for a standard billboard in the daytime on a freeway. ______________________________________________________________35 Figure 22. Heat map near the end of DCZ for standard billboard in the daytime on a freeway. __________________________________________________________________35 Figure 23. Heat map at the end of DCZ for standard billboard in the daytime on a freeway. __________________________________________________________________35 Figure 24. Example of identified salient areas in a road scene based on bottom-up analysis. __________________________________________________________________38 Figure 25. Example of a CEVMS DCZ on a freeway. _________________________________41 Figure 26. Example of CEVMS DCZ an arterial. _____________________________________41 Figure 27. Example of a standard billboard DCZ on a freeway. _________________________41 Figure 28. Example of a standard billboard DCZ on an arterial. _________________________42 Figure 29. Example of a control DCZ on a freeway. __________________________________42 Figure 30. Example of a control DCZ on an arterial. __________________________________42 Appendix 6, Page 7 of 70

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Figure 31. Mean feature congestion as a function of advertising condition and road type. _____________________________________________________________________45 Figure 32. Fixation duration for CEVMS in the day and at night. ________________________47 Figure 33. Fixation duration for standard billboards in the day and at night. ________________48 Figure 34. Fixation duration for the road ahead in the day and at night. ___________________48 Figure 35. Heat map for first fixation to CEVMS with long dwell time. ___________________49 Figure 36. Heat map for later fixations to CEVMS with long dwell time. __________________50 Figure 37. Heat map at end of fixations to CEVMS with long dwell time. _________________50 Appendix 6, Page 8 of 70

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vii

LIST OF TABLES
Table 1. Distribution of CEVMS by roadway classification for various cities. ______________15 Table 2. Inventory of target billboards with relevant parameters. ________________________17 Table 3. Summary of luminance (cd/m2) and contrast (Weber ratio) measurements. _________27 Table 4. The probability of gazing at the road ahead as a function of advertising condition and road type. _____________________________________________________28 Table 5. Probability of gazing at ROIs for the three advertising conditions on arterials and freeways. _____________________________________________________________29 Table 6. Level of service as a function of advertising type, road type, and time of day. _______37 Table 7. Inventory of target billboards in Richmond with relevant parameters. _____________40 Table 8. Summary of luminance (cd/m2) and contrast (Weber ratio) measurements. _________44 Table 9. The probability of gazing at the road ahead as a function of advertising condition and road type. _____________________________________________________46 Table 10. Probability of gazing at ROIs for the three advertising conditions on arterials and freeways. ______________________________________________________46 Table 11. Estimated level of service as a function of advertising condition, road type, and time of day.____________________________________________________________51 Appendix 6, Page 9 of 70

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viii

LIST OF ACRONYMS AND SYMBOLS
CEVMS Commercial Electronic Variable Message Sign
EB Empirical Bayes
DCZ Data Collection Zone
ROI Region of Interest
LED Light-Emitting Diode
IR Infra-Red
CCD Charge-Coupled Device
MAPPS Multiple-Analysis of Psychophysical and Performance Signals GEE Generalized Estimating Equations
FHWA Federal Highway Administration
DOT Department of Transportation
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1 EXECUTIVE SUMMARY
This study examines where drivers look when driving past commercial electronic variable message signs (CEVMS), standard billboards, or no off-premise advertising. The results and conclusions are presented in response to the three research questions listed below:

1. Do CEVMS attract drivers’ attention away from the forward roadway and other drivingrelevant stimuli?

2. Do glances to CEVMS occur that would suggest a decrease in safety?

3. Do drivers look at CEVMS more than at standard billboards? This study follows a Federal Highway Administration (FHWA) review of the literature on the possible distracting and safety effects of off-premise advertising and CEVMS in particular. The review considered laboratory studies, driving simulator studies, field research vehicle studies, and crash studies. The published literature indicated that there was no consistent evidence showing a safety or distraction effect due to off-premise advertising. However, the review also enumerated potential limitations in the previous research that may have resulted in the finding of no distraction effects for off-premise advertising. The study team recommended that additional research be conducted using instrumented vehicle research methods with eye tracking technology.

The eyes are constantly moving and they fixate (focus on a specific object or area), perform saccades (eye movements to change the point of fixation), and engage in pursuit movements (track moving objects). It is during fixations that we take in detailed information about the environment. Eye tracking allows one to determine to what degree off-premise advertising may divert attention away from the forward roadway. A finding that areas containing CEVMS result in significantly more gazes to the billboards at a cost of not gazing toward the forward roadway would suggest a potential safety risk. In addition to measuring the degree to which CEVMS may distract from the forward roadway, an eye tracking device would allow an examination of the duration of fixations and dwell times (multiple sequential fixations) to CEVMS and standard billboards. Previous research conducted by the National Highway Traffic Safety Administration (NHTSA) led to the conclusion that taking your eyes off the road for 2 seconds or more presents a safety risk. Measuring fixations and dwell times to CEVMS and standard billboards would also allow a determination as to the degree to which these advertising signs lead to potentially unsafe gaze behavior.

Most of the literature concerning eye gaze behavior in dynamic environments suggests that task demands tend to override visual salience (an object that stands out because of its physical properties) in determining attention allocation. When extended to driving, it would be expected that visual attention will be directed toward task-relevant areas and objects (e.g., the roadway, other vehicles, speed limit signs) and that other salient objects, such as billboards, would not necessarily capture attention. However, driving is a somewhat automatic process and conditions generally do not require constant, undivided attention. As a result, salient stimuli, such as CEVMS, might capture driver attention and produce an unwanted increase in driver distraction.

The present study addresses this concern.

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2 This study used an instrumented vehicle with an eye tracking system to measure where drivers were looking when driving past CEVMS and standard billboards. The CEVMS and standard billboards were measured with respect to luminance, location, size, and other relevant variables to characterize these visual stimuli extensively. Unlike previous studies on digital billboards, the present study examined CEVMS as deployed in two United States cities. These billboards did not contain dynamic video or other dynamic elements, but changed content approximately every 8 to 10 seconds. The eye tracking system had nearly a 2-degree level of resolution that provided significantly more accuracy in determining what objects the drivers were looking at compared to an earlier naturalistic driving study. This study assessed two data collection efforts that employed the same methodology in two cities.

In each city, the study examined eye glance behavior to four CEVMS, two on arterials and two on freeways. There were an equal number of signs on the left and right side of the road for arterials and freeways. The standard billboards were selected for comparison with CEVMS such that one standard billboard environment matched as closely as possible that of each of the CEVMS. Two control locations were selected that did not contain off-premise advertising, one on an arterial and the other on a freeway. This resulted in 10 data collection zones in each city that were approximately 1,000 feet in length (the distance from the start of the data collection zone to the point that the CEVMS or standard billboard disappeared from the data collection video).

In Reading, Pennsylvania, 14 participants drove at night and 17 drove during the day. In Richmond, Virginia, 10 participants drove at night and 14 drove during the day. Calibration of the eye tracking system, practice drive, and the data collection drive took approximately 2 hours per participant to accomplish.

The following is a summary of the study results and conclusions presented in reference to the three research questions the study aimed to address.

Do CEVMS attract drivers’ attention away from the forward roadway and other driving relevant stimuli?
 On average, the drivers in this study devoted between 73 and 85 percent of their visual attention to the road ahead for both CEVMS and standard billboards. This range is consistent with earlier field research studies. In the present study, the presence of CEVMS did not appear to be related to a decrease in looking toward the road ahead.

Do glances to CEVMS occur that would suggest a decrease in safety?  The average fixation duration to CEVMS was 379 ms and to standard billboards it was 335 ms across the two cities. The average fixation durations to CEVMS and standard billboards were similar to the average fixation duration to the road ahead.  The longest fixation to a CEVMS was 1,335 ms and to a standard billboard it was 1,284 ms. The current widely accepted threshold for durations of glances away from the road ahead that result in higher crash risk is 2,000 ms. This value comes from a NHTSA Appendix 6, Page 12 of 70

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3 naturalistic driving study that showed a significant increase in crash odds when glances away from the road ahead were 2,000 ms or longer.
 Four dwell times (aggregate of consecutive fixations to the same object) greater than 2,000 ms were observed across the two studies. Three were to standard billboards and one was to a CEVMS. The long dwell time to the CEVMS occurred in the daytime to a billboard viewable from a freeway. Review of the video data for these four long dwell times showed that the signs were not far from the forward view while participant’s gaze dwelled on them. Therefore, the drivers still had access to information about what was in front of them through peripheral vision.
 The results did not provide evidence indicating that CEVMS, as deployed and tested in the two selected cities, were associated with unacceptably long glances away from the road. When dwell times longer than the currently accepted threshold of 2,000 ms occurred, the road ahead was still in the driver’s field of view. This was the case for both CEVMS and standard billboards.

Do drivers look at CEVMS more than at standard billboards?  When comparing the probability of a gaze at a CEVMS versus a standard billboard, the drivers in this study were generally more likely to gaze at CEVMS than at standard billboards. However, some variability occurred between the two locations and between the types of roadway (arterial or freeway).
 In Reading, when considering the proportion of time spent looking at billboards, the participants looked more often at CEVMS than at standard billboards when on arterials (63 percent to CEVMS and 37 percent to a standard billboard), whereas they looked more often at standard billboards when on freeways (33 percent to CEVMS and 67 percent to a standard billboard). In Richmond, the drivers looked at CEVMS more than standard billboards no matter the type of road they were on, but as in Reading, the preference for gazing at CEVMS was greater on arterials (68 percent to CEVMS and 32 percent to standard billboards) than on freeways (55 percent to CEVMS and 45 percent to standard billboards). When a gaze was to an off-premise advertising sign, the drivers were generally more likely to gaze at a CEVMS than at a standard billboard.  In Richmond, the drivers showed a preference for gazing at CEVMS versus standard billboards at night, but in Reading the time of day did not affect gaze behavior. In Richmond, drivers gazed at CEVMS 71 percent and at standard billboards 29 percent at night. On the other hand, in the day the drivers gazed at CEVMS 52 percent and at standard billboards 48 percent.
 In Reading, the average gaze dwell time for CEVMS was 981 ms and for standard billboards it was 1,386 ms. The difference in these average dwell times was not statistically significant. In contrast, the average dwell times to CEVMS and standard billboards were significantly different in Richmond (1,096 ms and 674 ms, respectively).

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4 The present data suggest that the drivers in this study directed the majority of their visual attention to areas of the roadway that were relevant to the task at hand (e.g., the driving task).

Furthermore, it is possible, and likely, that in the time that the drivers looked away from the forward roadway, they may have elected to glance at other objects in the surrounding environment (in the absence of billboards) that were not relevant to the driving task. When billboards were present, the drivers in this study sometimes looked at them, but not such that overall attention to the forward roadway decreased.

It also should be noted that, like other studies in the available literature, this study adds to the knowledge base on the issues examined, but does not present definitive answers to the research questions investigated.

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5 INTRODUCTION
“The primary responsibility of the driver is to operate a motor vehicle safely. The task of driving requires full attention and focus. Drivers should resist engaging in any activity that takes their eyes and attention off of the road for more than a couple of seconds. In some circumstances even a second or two can make all the difference in a driver being able to avoid a crash.” – US Department of Transportation(1)
The advent of electronic billboard technologies, in particular the digital Light-Emitting Diode (LED) billboard, has prompted a reevaluation of regulations for controlling outdoor advertising.

An attractive quality of these LED billboards, which are hereafter referred to as Commercial Electronic Variable Message Signs (CEVMS), is that advertisements can change almost instantly. Furthermore, outdoor advertising companies can make these changes from a central remote office. Of concern is whether or not CEVMS may attract drivers’ attention away from the primary task (driving) in a way that compromises safety.

The current Federal Highway Administration (FHWA) guidance recommends that CEVMS should not change content more frequently than once every 8 seconds.(2) However, according to Scenic America, the basis of the safety concern is that the “…distinguishing trait…” of a CEVMS “… is that it can vary while a driver watches it, in a setting in which that variation is likely to attract the drivers’ attention away from the roadway.”(3)This study was conducted to provide the FHWA with data to determine if CEVMS capture visual attention differently than standard off-premise advertising billboards.

BACKGROUND
A 2009 review of the literature by Molino et al. for the FHWA failed to find convincing empirical evidence that CEVMS, as currently implemented, constitutes a safety risk greater than that of conventional vinyl billboards.(4) A great deal of work has been focused in this area, but the findings of these studies have been mixed.(4,5) A summary of the key past findings is presented here, but the reader is referred to Molino et al. for a comprehensive review of studies prior to 2008.(4)
Post-Hoc Crash Studies
Post-hoc crash studies use reviews of police traffic collision reports or statistical summaries of such reports in an effort to understand the causes of crashes that have taken place in the vicinity of some change to the roadside environment. In the present case, the change of concern is the introduction of CEVMS to the roadside or the replacement of conventional billboards with CEVMS.

The literature review conducted by Molino et al. did not find compelling evidence for a distraction effect attributable to CEVMS.(4)The authors concluded that all post-hoc crash studies are subject to certain weaknesses, most of which are difficult to overcome. For example, the vast majority of crashes are never reported to police; thus, such studies are likely to underreport crashes. Also, when crashes are caused by factors such as driver distraction or inattention, the involved driver may be unwilling or unable to report these factors to a police investigator.

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6 Another weakness is that police, under time pressure, are rarely able to investigate the true root causes of crashes unless they involve serious injury, death, or extensive property damage.

Furthermore, to have confidence in the results, such studies need to collect comparable data before and after the change, and, in the after phase, at equivalent but unaffected roadway sections. Since crashes are infrequent events, data collection needs to span extended periods of time both before and after introduction of the change. Few studies are able to obtain such extensive data.

Two recent studies by Tantala and Tantala examined the relationship between the presence of CEVMS and crash statistics in Richmond, Virginia, and Reading, Pennsylvania.(6,7)For the Richmond area, 7 years of crash data at 10 locations with CEVMS were included in the analyses.

The study used a before-after methodology where most sites originally contained vinyl billboards (before) that were converted to CEVMS (after). The quantity of crash data was not the same for all locations and ranged from 1 year before/after to 3 years before/after. The study employed the Empirical Bayes (EB) method to analyze the data.(8)The results indicated that the total number of crashes observed was consistent with what would be statistically expected with or without the introduction of CEVMS. The analysis approach for Reading locations was much the same as for Richmond other than there were 20 rather than 10 CEVMS and 8 years of crash statistics. The EB method showed results for Reading that were very similar to those of Richmond.

The studies by Tantala and Tantala appear to address many of the concerns from Molino et al. regarding the weaknesses and issues associated with crash studies.(4,6,7)For example, they include crash comparisons for locations within multiple distances of each CEVMS to address concerns about the visual range used in previous analyses. They used EB analysis techniques to correct for regression-to-mean bias. Also, the EB method would better reflect crash rate changes due to changes in average daily traffic and the interactions of these with the roadway features that were coded in the model. The studies followed approaches that are commonly used in posthoc crash studies, though the results would have been strengthened by including before-after results for non-CEVMS locations as a control group.

Field Investigations
Field investigations include unobtrusive observation, naturalistic driving studies, on-road instrumented vehicle investigations, test track experiments, driver interviews, surveys, and questionnaires. The following focuses on relevant studies that employed naturalistic driving and on-road instrumented vehicle research methods.

Lee, McElheny, and Gibbons undertook an on-road instrumented vehicle study on Interstate and local roads near Cleveland, Ohio.(9)The study looked at driver glance behavior in the vicinity of digital billboards, conventional billboards, comparison sites (sites with buildings and other signs, including digital signs), and control sites (those without similar signage). The results showed that there were no differences in the overall glance patterns (percent eyes-on-road and overall number of glances) between the different sites. Drivers also did not glance more frequently in the direction of digital billboards than in the direction of other event types (conventional billboards, comparison events, and baseline events) but drivers did take longer glances in the direction of digital billboards and comparison sites than in the direction of conventional billboards and baseline sites. However, the mean glance length toward the digital billboards was less than Appendix 6, Page 16 of 70

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7 1,000 ms. It is important to note that this study employed a video-based approach for examining drivers’ visual behavior, which has an accuracy of no better than 20 degrees.(10) While this technique is likely to be effective in assessing gross eye movements and looks that are away from the road ahead, it may not have sufficient resolution to discriminate what specific object the driver is looking at outside of the vehicle.

Beijer, Smiley, and Eizenman evaluated driver glances toward four different types of roadside advertising signs on roads in the Toronto, Canada, area.(11)The four types of signs were: (a) billboard signs with static advertisements; (b) billboard advertisements placed on vertical rollers that could rotate to show one of three advertisements in succession; (c) scrolling text signs with a minor active component, which usually consisted of a small strip of lights that formed words scrolling across the screen or, in some cases, a larger area capable of displaying text but not video; and (d) signs with video images that had a color screen capable of displaying both moving text and moving images. The study employed an on-road instrumented vehicle with a headmounted eye tracking device. The researchers found no significant differences in average glance duration or the maximum glance duration for the various sign types; however, the number of glances was significantly lower for billboard signs than for the roller bar, scrolling text, and video signs.

Smiley, Smahel, and Eizenman conducted a field driving study that employed an eye tracking system that recorded drivers’ eye movements as participants drove past video signs located at three downtown intersections and along an urban expressway.(12)The study route included static billboards and video advertising. The results of the study showed that on average 76 percent of glances were to the road ahead. Glances at advertising, including static billboards and video signs, constituted 1.2 percent of total glances. The mean glance durations for advertising signs were between 500 ms and 750 ms, although there were a few glances of about 1,400 ms in duration. Video signs were not more likely than static commercial signs to be looked at when headways were short; in fact, the reverse was the case. Furthermore, the number of glances per individual video sign was small, and statistically significant differences in looking behavior were not found.

Kettwich, Kartsen, Klinger, and Lemmer conducted a field study where drivers’ gaze behavior was measured with an eye tracking system.(13)Sixteen participants drove an 11.5 mile (18.5 km) route comprised of highways, arterial roads, main roads, and one-way streets in Karlsruhe, Germany. The route contained advertising pillars, event posters, company logos, and video screens. Mean gaze duration for the four types of advertising was computed for periods when the vehicle was in motion and when it was stopped. Gaze duration while driving for all types of advertisements was under 1,000 ms. On the other hand, while the vehicle was stopped, the mean gaze duration for video screen advertisements was 2,750 ms. The study showed a significant difference between gaze duration while driving and while stationary: gaze duration was affected by the task at hand. That is, drivers tended to gaze longer while the car was stopped and there were few driving task demands.

The previously mentioned studies estimated the duration of glances to advertising and computed mean values of less than 1,000 ms. Klauer et al., in his analysis of the 100-Car Naturalistic Driving Study, concluded that glances away from the roadway for any purpose lasting more than 2,000 ms increase near-crash/crash risk by at least two times that of normal, baseline driving.(14) Appendix 6, Page 17 of 70

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8 Klauer et al. also indicated that short, brief glances away from the forward roadway for the purpose of scanning the driving environment are safe and actually decrease near-crash/crash risk.(14) Using devices in a vehicle that draw visual attention away from the forward roadway for more than 2,000 ms (e.g., texting) is incompatible with safe driving. However, for external stimuli, especially those near the roadway, the evaluation of eye glances with respect to safety is less clear since peripheral vision would allow the driver to still have visual access to the forward roadway.

Laboratory Studies
Laboratory investigations related to roadway safety can be classified into several categories:
driving simulations, non-driving-simulator laboratory testing, and focus groups. The review of relevant laboratory studies by Molino et al. did not show conclusive evidence regarding the distracting effects of CEVMS.(4) Moreover, the authors concluded that present driving simulators do not have sufficient visual dynamic range, image resolution, and contrast ratio capability to produce the compelling visual effect of a bright, photo-realistic LED-based CEVMS against a natural background scene. The following is a discussion of a driving simulator study conducted after the publication of Molino et al.(4) The study focused on the effects of advertising on driver visual behavior.

Chattington, Reed, Basacik, Flint, and Parkes conducted a driving simulator study in the United Kingdom (UK) to evaluate the effects of static and video advertising on driver glance behavior.(15)
The researchers examined the effects of advertisement position relative to the road (left, right, center on an overhead gantry, and in all three locations simultaneously), type of advertisement (static or video), and exposure duration of the advertisement. (The paper does not provide these durations in terms of time or distance. The exposure duration had to do with the amount of time or distance that the sign would be visible to the driver.) For the advertisements presented on the left side of the road (recall that drivers travel in the left lane in the UK), mean glance durations for static and video advertisements were significantly longer (approximately 650 to 750 ms) when drivers experienced long advertisement exposure as opposed to medium and short exposures. Drivers looked more at video advertisements (about 2 percent on average of the total duration recorded) than at static advertisements (about 0.75 percent on average). In addition, the location of the advertisements had an effect on glance behavior. When advertisements were located in the center of the road or in all three positions simultaneously, the glance durations were about 1,000 ms and were significantly longer than for signs placed on the right or left side of the road. For advertisements placed on the left side of the road, there was a significant difference in glance duration between static (about 400 ms) and video (about 800 ms).

Advertisement position also had an effect on the proportion of time that a driver spent looking at an advertisement. The percentage of time looking at advertisements was greatest when signs were placed in all three locations, followed by center location signs, then the left location signs, and finally the right location signs. Drivers looked more at the video advertisements relative to the static advertisements when they were placed in all three locations, placed on the left, and placed on the right side of the road. The center placement did not show a significant difference in percent of time spent looking between static and video.

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9 Summary
The results from these key studies offer some insight into whether CEVMS pose a visual distraction threat. However, these same studies also reveal some inconsistent findings and potential methodological issues that are addressed in the current study. The studies conducted by Smiley et al. showed drivers glanced forward at the roadway about 76 percent of the time in the presence of video and dynamic signs where a few long glances of approximately 1,400 ms were observed.(12) However, the video and dynamic signs used in these studies portray moving objects that are not present in CEVMS as deployed in the United States. In another field study employing eye tracking, Kettwich et al. found that gaze duration while driving for all types of advertisements that they evaluated was less than 1,000 ms; however, when the vehicle was stopped, mean gaze duration for advertising was as high as 2,750 ms.(16) Collectively, these studies did not demonstrate that the advertising signs detracted from drivers’ glances forward at the roadway in a substantive manner while the vehicle was moving.

In contrast, the simulator study by Chattington et al. demonstrated that dynamic signs showing moving video or other dynamic elements may draw attention away from the roadway.(15) Furthermore, the location of the advertising sign on the road is an important factor in drawing drivers’ visual attention. Advertisements with moving video placed in the center of the roadway on an overhead gantry or in all three positions (right, left, and in the center) simultaneously are very likely to draw glances from drivers.

Finally, in a study that examined CEVMS as deployed in the United States, Lee et al. did not show any significant effects of CEVMS on driver glance behavior.(9) However, the methodology that was used likely did not employ sufficient sensitivity to determine at what specific object in the environment a driver was looking.

None of these studies combined all necessary factors to address the current CEVMS situation in the United States. Those studies that used eye tracking on real roads had animated and videobased signs, which are not reflective of current off-premise CEVMS practice in the United States.

STUDY APPROACH
Based on an extensive review of the literature, Molino et al. concluded that the most effective method to use in an evaluation of the effects of CEVMS on driver visual behavior was the instrumented field vehicle method that incorporated an eye tracking system.(4) The present study
employed such an instrumented field vehicle with an eye tracking system and examined the degree to which CEVMS attract drivers’ attention away from the forward roadway.

The following presents a brief overview and discussion of studies using eye tracking methodology with complex visual stimuli, especially in natural environments (walking, driving, etc.). The review by Molino et al. recommended the use of this type of technology and method; however, a discussion laying out technical and theoretical issues underlying the use of eye tracking methods was not presented.(4)
This background is important for the interpretation of the results of the studies conducted here.

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10 Standard and digital billboards are often salient stimuli in the driving environment, which may make them conspicuous. Cole and Hughes define attention conspicuity as the extent to which a stimulus is sufficiently prominent in the driving environment to capture attention. Further, Cole and Hughes state that attention conspicuity is a function of size, color, brightness, contrast relative to surroundings, and dynamic components such as movement and change.(17) It is clear
that under certain circumstances image salience or conspicuity can provide a good explanation of how humans orient their attention.

At any given moment a large number of stimuli reach our senses, but only a limited number of them are selected for further processing. In general, attention can be focused on a stimulus because it is important for achieving some goal, or because the properties of the stimulus can attract the attention of the observer independent of their intentions (e.g., a car horn may elicit an orienting response). When the focus of attention is goal directed, it is referred to as top-down.

When the focus of attention is principally a function of stimulus attributes, it is referred to as bottom-up.(18)
In general, billboards (either standard or CEVMS) are not relevant to the driving task but are presumably designed to be salient stimuli in the environment where they may draw a driver’s attention. The question is to what degree CEVMS draw a driver’s attention away from drivingrelevant stimuli (e.g., road ahead, mirrors, and speedometer) and is this different from a standard billboard? In his review of the literature Wachtel leads one to consider CEVMS as stimuli in the environment where attention to them would be drawn in a bottom-up manner; that is, the salience of the billboards would make them stand out relative to other stimuli in the environment and drivers would reflexively look at these signs.(19) Wachtel’s conclusions were in reference to research by Theeuwees who employed simple letter stimulus arrays in a laboratory task.(20) Research using simple visual stimuli in a laboratory environment are very useful for testing different theories of perception, but often lack direct application to tasks such as driving. The following discusses research using complex visual stimuli and tasks that are more relevant to natural vision as experienced in the driving task.

A recent review of stimulus salience and eye guidance by Tatler et al. shows that most of the evidence for the capture of attention by the conspicuity of stimuli comes from research in which the stimulus is a simple visual search array or in which the target is uniquely defined by simple visual features.(21) In other words, these are laboratory studies that use letters, arrays of letters, or simple geometric patterns as the stimuli. Pure salience-based models are capable of predicting eye movement endpoint in simple displays, but are less successful for more complex scenes that contain task-relevant and task-irrelevant salient areas.(22,23) Research by Henderson et al. using photographs of actual scenes showed that subjects looked at non-salient scene regions containing a search target and rarely looked at salient non-task-relevant regions of the scenes.(24)Salience of the stimulus alone was not a good predictor of where participants looked. Additional research by Henderson using photographs of real world scenes also showed that subjects fixated on regions of the pictures that provided task-relevant information rather than visually salient regions with no task-relevant information. However, Henderson acknowledges that static pictures have many shortcomings when used as surrogates for real environments.(25)
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11 Land’s review of eye movements in dynamic environments concluded that the eyes are proactive and typically seek out information required in the second before each new activity commences.(26)
Specific tasks (e.g., driving) have characteristic but flexible patterns of eye movement that accompany them, and these patterns are similar between individuals. Land concluded that the eyes rarely visit objects that are irrelevant to the task, and the conspicuity of objects is less important than the objects’ roles in the task. In a subsequent review of eye movement and natural behavior, Land concluded that in a task that requires fixation on a sequence of specific objects, the capture of gaze by irrelevant salient objects would, in general, be an obtrusive nuisance.(22)
The literature examining gaze control under natural behavior suggests that it is principally topdown driven, or intentional.(24,25,26,22,21,27) However, top-down processing does not explain all
gaze control or eye movements. For example, imagine driving down a two-lane country road and a deer jumps into the road. It is most likely that you will attend and react to this deer. Unplanned or unexpected stimuli capture our attention as we engage in complex natural tasks. Research by Jovancevic-Misic and Hayhoe showed that human gaze patterns are sensitive to the probabilistic nature of the environment.(28) In this study, participants’ eye movement behavior was observed while walking among other pedestrians. The other pedestrians were confederates and were either safe, risky, or rogue pedestrians. When the study began, the risky pedestrian took a collision course with the participant 50 percent of the time, and the rogue pedestrian always assumed a collision course as he approached the participant, whereas the safe pedestrian never took a collision course. Midway through the study the rogue and safe pedestrians exchanged roles but the risky pedestrian role remained the same. The participants were not informed about the behavior of the other pedestrians. Participants were asked to follow a circular path for several laps and to avoid other pedestrians. The study showed that the participants modified their gaze behavior in response to the change in the other pedestrians’ behavior. Jovancevic-Misic concluded that participants learned new priorities for gaze allocation within a few encounters and looked both sooner and longer at potentially dangerous pedestrians.(28) Gaze behavior in natural environments is affected by expectations that are derived through longterm learning. Using a virtual driving environment, Shinoda et al. asked participants to look for stop signs while driving an urban route.(29) Approximately 45 percent of the fixations fell in the general area of intersections during the simulated drive, and participants were more likely to detect stop signs placed near intersections than those placed in the middle of a block. Over time, drivers have learned that stop signs are more likely to appear near intersections and, as a result, drivers prioritize their allocation of gazes to these areas of the roadway.

The Tatler et al. review of the literature concludes that in natural vision, a consistent set of principles underlies eye guidance. These principles include relevance or reward potential, uncertainty about the state of the environment, and learned models of the environment.(21) Salience of environmental stimuli alone typically does not explain most eye gaze behavior in naturalistic environments.

In sum, most of the literature concerning eye gaze behavior in dynamic environments suggests that task demands tend to override visual salience in determining attention allocation. When extended to driving, it would be expected that visual attention will be directed toward taskrelevant areas and objects (e.g., the roadway, other vehicles, speed limit signs, etc.) and other Appendix 6, Page 21 of 70

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12 salient objects, such as billboards, will not necessarily capture attention. However, driving is a somewhat automatic process and conditions generally do not require constant undivided attention. As a result, salient stimuli, such as CEVMS, might capture driver attention and provide an unwarranted increase in driver distraction. The present study addresses this concern.

Research Questions
The present research evaluated the effects of CEVMS on driver visual behavior under actual roadway conditions in the daytime and at night. Roads containing CEVMS, standard billboards, and areas not containing off-premise advertising were selected. The CEVMS and standard billboards were measured with respect to luminance, location, size, and other relevant visual characteristics. The present study examined CEVMS as deployed in two United States cities.

Unlike previous studies, the signs did not contain dynamic video or other dynamic elements. In addition, the eye tracking system used in this study has approximately a 2-degree level of resolution. This provided significantly more accuracy in determining what objects the drivers were looking at than in previous on-road studies examining looking behavior (recall that Lee et al. used video recordings of drivers’ faces that, at best, examined gross eye movements).(9) Two studies are reported. Each study was conducted in a different city. The two studies employed the same methodology. The studies’ primary research questions were:

1. Do CEVMS attract drivers’ attention away from the forward roadway and other driving relevant stimuli?

2. Do glances to CEVMS occur that would suggest a decrease in safety?

3. Do drivers look at CEVMS more than at standard billboards? Appendix 6, Page 22 of 70

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13 EXPERIMENTAL APPROACH
The study used a field research vehicle equipped with a non-intrusive eye tracking system. The vehicle was a 2007 Jeep® Grand Cherokee Sport Utility Vehicle. The eye tracking system used (SmartEye® vehicle-mounted infrared (IR) eye-movement measuring system) is shown in figure

1. (30)
The system consists of two IR light sources and three face cameras mounted on the dashboard of the vehicle. The cameras and light sources are small in size, and are not attached to the driver in any manner. The face cameras are synchronized to the IR light sources and are used to determine the head position and gaze direction of the driver.

Figure 1. Eye tracking system camera placement.

As a part of this eye tracking system, the vehicle was outfitted with a three-camera panoramic scene monitoring system for capturing the forward driving scene. The scene cameras were mounted on the roof of the vehicle directly above the driver’s head position. The three cameras together provided an 80-degree wide by 40-degree high field of forward view. The scene cameras captured the forward view area available to the driver through the left side of the windshield and a portion of the right side of the windshield. The area visible to the driver through the rightmost area of the windshield was not captured by the scene cameras.

The vehicle was also outfitted with equipment to record GPS position, vehicle speed, and vehicle acceleration. The equipment also recorded events entered by an experimenter and synchronized those events with the eye tracking and vehicle data. The research vehicle is pictured in figure 2.

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14 Figure 2. FHWA’s field research vehicle.

EXPERIMENTAL DESIGN OVERVIEW
The approach entailed the use of the instrumented vehicle in which drivers navigated routes in cities that presented CEVMS and standard billboards as well as areas without off-premise advertising. The participants were instructed to drive the routes as they normally would. The drivers were not informed that the study was about outdoor advertising, but rather that it was about examining drivers’ glance behavior as they followed route guidance directions.

Site Selection
More than 40 cities were evaluated in the selection of the test sites. Locations with CEVMS displays were identified using a variety of resources that included State department of transportation contacts, advertising company Web sites, and a popular geographic information system. A matrix was developed that listed the number of CEVMS in each city. For each site, the number of CEVMS along limited access and arterial roadways was determined.

One criterion for site selection was whether the location had practical routes that pass by a number of CEVMS as well as standard off-premise billboards and could be driven in about 30 minutes. Other considerations included access to vehicle maintenance personnel/facilities, proximity to research facilities, and ease of participant recruitment. Two cities were selected:

Reading, and Richmond.

Table 1 presents the 16 cities that were included on the final list of potential study sites.

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15 Table 1. Distribution of CEVMS by roadway classification for various cities.

State Area Limited Access Arterial Other (1) Total
VA Richmond 4 7 0 11
PA Reading 7 11 0 18
VA Roanoke 0 11 0 11
PA Pittsburgh 0 0 15 15
TX San Antonio 7 2 6 15
WI Milwaukee 14 2 0 16
AZ Phoenix 10 6 0 16
MN St. Paul/Minneapolis 8 5 3 16
TN Nashville 7 10 0 17
FL Tampa-St. Petersburg 7 11 0 18
NM Albuquerque 0 19 1 20
PA Scranton-Wilkes Barre 7 14 1 22
OH Columbus 1 22 0 23
GA Atlanta 13 11 0 24
IL Chicago 22 2 1 25
CA Los Angeles 3 71 4 78
(1) Other includes roadways classified as both limited access and arterial or instances where the road classification was unknown. Source: www.lamar.com and www.clearchannel.com In both test cities, the following independent variables were evaluated:
 The type of advertising. This included CEVMS, standard billboards, and no off-premise advertising. (It should be noted that in areas with no off-premise advertising, it was still possible to encounter on-premise advertising; e.g., for gas stations, restaurants, and other miscellaneous stores and shops.)
 Time of day. This included driving in the daytime and at night.  The functional class of roadways in which off-premise advertising signs were located. Roads were classified as either freeway or arterial. It was observed that the different road classes were correlated with the presence of other visual information that could affect the driver’s glance behavior. For example, the visual environment on arterials may be more complex or cluttered than on freeways because of the close proximity of buildings, driveways, and on-premise advertising, etc.

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16 READING
The first on-road study was conducted in Reading. This study examined the type of advertising (CEVMS, standard billboard, or no off-premise advertising), time of day (day or night) and road type (freeway or arterial) as independent variables. Eye tracking was used to assess where participants gazed and for how long while driving. The luminance and contrast of the advertising signs were measured to characterize the billboards in the current study.

METHOD
Selection of Data Collection Zone Limits
Data collection zones (DCZ) were defined on the routes that participants drove where detailed analyses of the eye tracking data were planned. The DCZ were identified that contained a CEVMS, a standard billboard, or no off-premise advertising.

The rationale for selecting the DCZ limits took into account the geometry of the roadway (e.g., road curvature or obstructions that blocked view of billboards) and the capabilities of the eye tracking system (2 degrees of resolution). At a distance of 960 ft (292.61 m), the average billboard in Reading was 12.8 ft (3.90 m) by 36.9 ft (11.25 m) and would subtend a horizontal visual angle of 2.20 degrees and a vertical visual angle of 0.76 degrees, and thus glances to the billboard would just be resolvable by an eye tracking system with 2 degrees of accuracy.

Therefore 960 ft was chosen as the maximum distance from billboards at which a DCZ would begin. If the target billboard was not visible from 960 ft (292.61 m) due to roadway geometry or other visual obstructions, such as trees or an overpass, the DCZ was shortened to a distance that prevented these objects from interfering with the driver’s vision of the billboard. In DCZs with target off-premise billboards, the end of the DCZ was marked when the target billboard left the view of the scene camera. If the area contained no off-premise advertising, the end of the DCZ was defined by a physical landmark leaving the view of the eye tracking systems’ scene camera.

Table 2 shows the data collection zone limits used in this study.

Advertising Conditions
The type of advertising present in DCZs was examined as an independent variable. DCZs fell into one of the following categories, which are listed in the second column of table 2:
 CEVMS. These were DCZs that contained one target CEVMS. Two CEVMS DCZs were located on freeways and two were located on arterials. Figure 3 and figure 4 show examples of CEVMS DCZs with the CEVMS highlighted in the pictures.  Standard billboard. These were DCZs that contained one target standard billboard. Two standard billboard DCZs were located on freeways and two were located on arterials.

Figure 5 and figure 6 show examples of standard billboard DCZs; the standard billboards are highlighted in the pictures.

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17  No off-premise advertising conditions. These DCZs contained no off-premise advertising. One of these DCZs was on a freeway (see figure 7) and the other was on an arterial (see figure 8).

Table 2. Inventory of target billboards with relevant parameters.

DCZ Advertising
Type
Copy
Dimensions
(ft)
Side of
Road
Setback
from Road
(ft)
Other
Standard
Billboards
Approach
Length (ft)
Type of
Roadway
1 CONTROL N/A N/A N/A N/A 786 Freeway
6 CONTROL N/A N/A N/A N/A 308 Arterial
3 CEVMS 10'6" x 22'9" L 12 0 375 Arterial
5 CEVMS 14'0" x 48'0" L 133 1 853 Freeway
9 CEVMS 10'6" x 22'9" R 43 0 537 Arterial
10 CEVMS 14'0" x 48'0" R 133 1 991 Freeway
2 Standard 14'0" x 48'0" L 20 0 644 Arterial
7 Standard 14'0" x 48'0" R 35 1 774 Freeway
8 Standard 10'6" x 22'9" R 40 1 833 Arterial
4 Standard 14'0" x 48'0" L 10 0 770 Freeway
*N/A indicates that there were no off-premise advertising in these areas and these values are undefined.

Figure 3. DCZ with a target CEVMS on a freeway.

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18 Figure 4. DCZ with a target CEVMS on an arterial.

Figure 5. DCZ with a target standard billboard on a freeway.

Figure 6. DCZ with a target standard billboard on an arterial.

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19 Figure 7. DCZ for the control condition on a freeway.

Figure 8. DCZ for the control condition on an arterial.

Photometric Measurement of Signs
Two primary metrics were used to describe the photometric characteristics of a sample of the CEVMS and standard billboards present at each location: luminance (cd/m2 ) and contrast (Weber
contrast ratio).

Photometric Equipment
Luminance was measured with a Radiant Imaging ProMetric 1600 Charge-Coupled Device (CCD) photometer with both a 50 mm and a 300 mm lenses. The CCD photometer provided a method of capturing the luminance of an entire scene at one time.

The photometric sensors were mounted in a vehicle of similar size to the eye tracking research vehicle. The photometer was located in the experimental vehicle as close to the driver’s position as possible and was connected to a laptop computer that stored data as the images were acquired.

Measurement Methodology
Images of the billboards were acquired using the photometer manufacturer’s software. The software provided the mean luminance of each billboard message. To prevent overexposure of Appendix 6, Page 29 of 70

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20 images in daylight, neutral density filters were manually affixed to the photometer lens and the luminance values were scaled appropriately. Standard billboards were typically measured only once; however, for CEVMS multiple measures were taken to account for changing content.

Photometric measurements were taken during day and night. Measurements were taken by centering the billboard in the photometer’s field of view with approximately the equivalent of the width of the billboard on each side and the equivalent of the billboard height above and below the sign. The areas outside of the billboards were included to enable contrast calculations.

Standard billboards were assessed at a mean distance of 284 ft (ranging from 570 ft to 43 ft). The CEVMS were assessed at a mean distance of 479 ft (ranging from 972 ft to 220 ft). To include the background regions of appropriate size, the close measurement distances required the use of the 50 mm lens whereas measurements made from longer distances required the 300 mm lens. A significant determinant of the measurement locations was the availability of accessible and safe places from which to measure.

The Weber contrast ratio was used because it characterizes a billboard as having negative or positive contrast when compared to its background area.(31) A negative contrast indicates the background areas have a higher mean luminance than the target billboard. A positive contrast indicates the target billboard has a higher mean luminance than the background. Overall, the absolute value of a contrast ratio simply indicates a difference in luminance between an item and its background. From a perceptual perspective luminance and contrast are directly related to the perception of brightness. For example, two signs with equal luminance may be perceived differently with respect to brightness because of differences in contrast.

Visual Complexity
Regan, Young, Lee and Gordon presented a taxonomic description of the various sources of driver distraction.(32)Potential sources of distraction were discussed in terms of: things brought into the vehicle; vehicle systems; vehicle occupants; moving objects or animals in the vehicle; internalized activity; and external objects, events, or activities. The external objects may include buildings, construction zones, billboards, road signs, vehicles, and so on. Focusing on the potential for information outside the vehicle to attract (or distract) the driver’s attention, Horberry and Edquist developed a taxonomy for out-of-the-vehicle visual information. This suggested taxonomy includes four groupings of visual information: built roadway, situational entities, natural environment, and built environment.(33)These two taxonomies provide an organizational structure for conducting research; however, they do not currently provide a systematic or quantitative way of classifying the level of clutter or visual complexity present in a visual scene.

The method proposed by Rozenholtz, Li, and Nakano provides quantitative and perhaps reliable measures of visual clutter.(34)
Their approach measures the feature congestion in a visual image.

The implementation of the feature congestion measure involves four stages: (1) compute local feature covariance at multiple scales and compute the volume of the local covariance ellipsoid, (2) combine clutter across scale, (3) combine clutter across feature types, and (4) pool over space to get a single measure of clutter for each input image. The implementation that was used employed color, orientation and luminance contrast as features. Presumably, less cluttered Appendix 6, Page 30 of 70

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21 images can be visually coded more efficiently than cluttered images. For example, visual clutter can cause decreased recognition performance and greater difficulty in performing visual search.(35)
Participants
In the present study participants were recruited at public libraries in the Reading area. A table was set up so that recruiters could discuss the requirements of the experiment with candidates.

Individuals who expressed interest in participating were asked to complete a pre-screening form, a record of informed consent, and a department of motor vehicles form consenting to release of their driving record.

All participants were between 18 and 64 years of age and held a valid driver’s license. The driving record for each volunteer was evaluated to eliminate drivers with excessive violations.

The criteria for excluding drivers were as follows: (a) more than one violation in the preceding year; (b) more than three recorded violations; and (c) any driving while intoxicated violation.

Forty-three individuals were recruited to participate. Of these, five did not complete the drive because the eye tracker could not be calibrated to track their eye movements accurately. Data from an additional seven participants were excluded as the result of equipment failures (e.g., loose camera). In the end, usable data was collected from 31 participants (12 males, M = 46 years; 19 females, M = 47 years). Fourteen participants drove at night and 17 drove during the day.

Procedures
Data were collected from two participants per day (beginning at approximately 12:45 p.m. and 7:00 p.m.). Data collection began on September 18, 2009, and was completed on October 26, 2009.

Pre-Data Collection Activities
Participants were greeted by two researchers and asked to complete a fitness to drive questionnaire. This questionnaire focused on drivers’ self-reports of alertness and use of substances that might impair driving (e.g., alcohol). All volunteers appeared fit.

Next, the participant and both researchers moved to the eye tracking calibration location and the test vehicle. The calibration procedure took approximately 20 minutes. Calibration of the eye tracking system entailed development of a profile for each participant. This was accomplished by taking multiple photographs of the participant’s face as they slowly rotate their head from side to side. The saved photographs include points on the face for subsequent real-time head and eye tracking. Marked coordinates on the face photographs were edited by the experimenter as needed to improve the real-time face tracking. The procedure also included gaze calibration in which participants gazed at nine points on a wall. These points had been carefully plotted on the wall and correspond to the points in the eye tracking system’s world model. Gaze calibration relates the individual participant’s gaze vectors to known points in the real world. The eye tracking system uses two pulsating infrared sources mounted on the dashboard to create two corneal glints that are used to calculate gaze direction vectors. The glints were captured at 60 Hz. A second set Appendix 6, Page 31 of 70

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22 of cameras (scene cameras), fixed on top of the car close to the driver’s viewpoint, were used to produce a video scene of the area ahead. The scene cameras recorded at 25 Hz. A parallax correction algorithm compensated for the distance between the driver’s viewpoint and the scene cameras so that later processing could use the gaze vectors to show where in the forward scene the driver was gazing.

If it was not possible to calibrate the eye tracking system to a participant, the participant was dismissed and paid for their time. Causes of calibration failure included reflections from eye glasses, participant height (which put their eyes outside the range of the system), and eyelids that obscure a portion of the pupil.

Practice
After eye-tracker calibration, a short practice drive was made. Participants were shown a map of the route and written turn-by-turn directions prior to beginning the practice drive. Throughout the drive, verbal directions were provided by a GPS device.

During the practice drive, a researcher in the rear seat of the vehicle monitored the accuracy of eye tracking. If the system was tracking poorly, additional calibration was performed. If the calibration could not be improved, the participant was paid for their time and dismissed.

Data Collection
Participants drove two test routes (referred to as route A and B). Each route required 25 to 30 minutes to complete and included both freeway and arterial segments. Route A was 13 miles long and contained 6 DCZs. Route B was 16 miles long and contained 4 DCZs. Combined, participants drove in a total of 10 DCZs. Similar to the practice drive, participants were shown a map of the route and written turn-by-turn directions. A GPS device provided turn-by-turn guidance during the drive. Roughly one half of the participants drove route A first and the remaining participants began with route B. A 5 minute break followed the completion of the first route.

During the drives, a researcher in the front passenger seat assisted the driver when additional route guidance was required. The researcher was also tasked with recording near misses and driver errors if these occurred. The researcher in the rear seat monitored the performance of the eye tracker. If the eye tracker performance became unacceptable (i.e., loss of calibration), then the researcher in the rear asked the participant to park in a safe location so that the eye tracker could be recalibrated. This recalibration typically took a minute or two to accomplish.

Debriefing
After driving both routes, the participants provided comments regarding their drives. The comments were in reference to the use of a navigation system. No questions were asked about billboards. The participants were given $120.00 in cash for their participation.

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23 DATA REDUCTION
Eye Tracking Measures
The Multiple-Analysis of Psychophysical and Performance Signals (MAPPS™) software was used to reduce the eye tracking data.(36)
The software integrates the video output from the scene cameras with the output from the eye tracking software (e.g., gaze vectors). The analysis software provides an interface in which the gaze vectors determined by the eye tracker can be related to areas or objects in the scene camera view of the world. Analysts can indicate regions of interest (ROIs) in the scene camera views and the analysis software then assigns gaze vectors to the ROIs.

Figure 9 shows a screen capture from the analysis software in which static ROIs have been identified. These static ROIs slice up the scene camera views into six areas. The software also allows for the construction of dynamic ROIs. These are ROIs that move in the video because of own-vehicle movement (e.g., a sign changes position on the display as it is approached by the driver) or because the object moves over time independent of own-vehicle movement (e.g., pedestrian walking along the road, vehicle entering or exiting the road).

Static ROIs need only be entered once for the scenario being analyzed whereas dynamic ROIs need to be entered several times for a given DCZ depending on how the object moves along the video scene; however, not every frame needs to be coded with a dynamic ROI since the software interpolates across frames using the 60-Hz data to compute eye movement statistics.

Figure 9. Screen capture showing static ROIs on a scene video output.

The following ROIs were defined with the analysis software:

Static ROIs
These ROIs were entered once into the software for each participant. The static ROIs for the windshield were divided into top and bottom to have more resolution during the coding process.

The subsequent analyses in the report combines the top and bottom portion of these ROIs since it appeared that this additional level of resolution was not needed in order to address research questions:
 Road ahead: bottom portion (approximately 2/3) of the area of the forward roadway (center camera).

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24  Road ahead top: top portion (approximately 1/3) of the area of the forward roadway (center camera).
 Right side of road bottom: bottom portion (approximately 2/3) of the area to the right of the forward roadway (right camera).
 Right side of road top: top portion (approximately 1/3) of the area to the right of the forward roadway (right camera).
 Left side of road bottom (LSR_B): bottom portion (approximately 2/3) of the area to the left of the forward roadway (left camera).
 Left side of road bottom (LSR_T): top portion (approximately 1/3) of the area to the left of the forward roadway (left camera).
 Inside vehicle: below the panoramic video scene (outside of the view of the cameras, but eye tracking is still possible).
 Top: above the panoramic video scene (outside of the view of the cameras, but eye tracking is still possible).

Dynamic ROIs
These ROIs are created multiple times within a DCZ for stimuli that move relative to the driver:
 Driving-related safety risk: vehicle which posed a potential safety risk to the driver, defined as a car that is/may turn into the driver’s direction of travel at a non-signalized or non-stop-controlled intersection (e.g., a car making a U-turn, a car waiting to turn right, or a car waiting to turn left). These vehicles were actively turning or entering the roadway or appeared to be in a position to enter the roadway.
 Target standard billboard: target standard billboard that defines the start and end of the DCZ.
 Other standard billboard: standard billboard(s) located in the DCZ, other than the target standard billboard or the target digital billboard.
 CEVMS: target digital billboard that defines the start and end of the DCZ.

The software determines the gaze intersection for each 60 Hz frame and assigns it to an ROI. In subsequent analyses and discussion, gaze intersections are referred to as gazes. Since ROIs may overlap, the software allows for the specification of priority for each ROI such that the ROI with the highest priority gets the gaze vector intersection assigned to it. For example, an ROI for a CEVMS may also be in the static ROI for the road ahead.

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25 The 60 Hz temporal resolution of the eye tracking software does not provide sufficient information to make detailed analysis of saccade characteristics, 1 such as latency or speed. The
analysis software uses three parameters in the determination of a fixation: a fixation radius, fixation duration, and a time out. The determination begins with a single-gaze vector intersection. Any subsequent intersection within a specified radius will be considered part of a fixation if the minimum fixation duration criterion is met. The radius parameter used in this study was 2 degrees and the minimum duration was 100 ms. The 2-degree selection was based on the estimated accuracy of the eye tracking system, as recommended by Recarte and Nunes.(37) The 100 ms minimum duration is consistent with many other published studies; however, some investigators use minimums of as little as 60 ms.(37,38) Because of mini-saccades and noise in the eye tracking system, it is possible to have brief excursions outside the 2 degree window for a fixation. In this study, an excursion time outside the 2-degree radius of less than 90 ms was ignored. Once the gaze intersection fell outside the 2-degree radius of a fixation for more than 90 ms, the process of identifying a fixation began anew.

Other Measures
Driving Behavior Measures
During data collection, the front-seat researcher observed the driver’s behavior and the driving environment. The researcher used the following subjective categories in observing the participant’s driving behavior:
 Driver Error: signified any error on behalf of the driver in which the researcher felt slightly uncomfortable, but not to a significant degree (e.g., driving on an exit ramp too quickly, turning too quickly).
 Near Miss: signified any event in which the researcher felt uncomfortable due to driver response to external sources (e.g., slamming on brakes, swerving). A near miss is the extreme case of a driver error.
 Incident: signified any event in the roadway which may have had a potential impact on the attention of the driver and/or the flow of traffic (e.g., crash, emergency vehicle, animal, construction, train).

These observations were entered into a notebook computer linked to the research vehicle data collection system.

Level of Service Estimates
For each participant and each DCZ the analyst estimated the level of service of the road as they reviewed the scene camera video. One location per DCZ was selected (approximately halfway through the DCZ) where the number of vehicles in front of the research vehicle was counted.

The procedure entailed (1) counting the number of travel lanes visible in the video, (2) using the

1 During visual scanning, the point of gaze alternates between brief pauses (ocular fixations) and rapid shifts (saccades).

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26 skip lines on the road to estimate the approximate distance in front of the vehicle that constituted the analysis zone, and (3) counting the number of vehicles present within the analysis zone.

Vehicle density was calculated with the formula:

Vehicle Density = [(Number of Vehicles in Analysis Zone)/(Distance of Analysis Zone in ft/5280)]/Number of Lanes.

Vehicle density is the number of vehicles per mile per lane.

Vehicle Speed
The speed of the research vehicle was recorded with GPS and a distance measurement instrument. Vehicle speed was used principally to ensure that the eye tracking data was recorded while the vehicle was in motion.

RESULTS
Results are presented with respect to the photometric measures of signs, the visual complexity of the DCZs, and the eye tracking measures. Photometric measurements were taken and analyzed to characterize the billboards in the study based on their luminance and contrasts, which are related to how bright the signs are perceived to be by drivers.

Photometric Measurements
Luminance
The mean daytime luminance of both the standard billboards and CEVMS was greater than at night. Nighttime luminance measurements reflect the fact that CEVMS use illuminating LED components while standard billboards are often illuminated from below by metal halide lamps.

At night, CEVMS have a greater average luminance than standard billboards. Table 3 presents summary statistics for luminance as a function of time of day for the CEVMS and standard billboards.

Contrast
The daytime and nighttime Weber contrast ratios for both types of billboards are shown in table

3. Both CEVMS and standard billboards had contrast ratios that were close to zero (the surroundings were about equal in brightness to the signs) during the daytime. On the other hand, at night the CEVMS and standard billboards had positive contrast ratios (the signs were brighter than the surrounding), with the CEVMS having higher contrast than the standard billboards.

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27 Table 3. Summary of luminance (cd/m2
) and contrast (Weber ratio) measurements.

Luminance (cd/m2) Contrast
Day Mean St. Dev. Mean St .Dev.

CEVMS 2126 798.81 -0.10 0.54
Standard Billboard 2993 2787.22 -0.27 0.84
Night
CEVMS 56.00 23.16 73.72 56.92
Standard Billboard 17.80 17.11 36.01 30.93
Visual Complexity
The DCZs were characterized by their overall visual complexity or clutter. For each DCZ, five pictures were taken from the driver’s viewpoint at various locations within the DCZ. In Reading, the pictures were taken from 2:00 p.m. to 4:00 p.m. In Richmond, one route was photographed from 11:00 a.m. to noon and the other from 2:30 p.m. to 3:30 p.m. The pictures were taken at the start of the DCZ, quarter of the way through, half of the way through, three quarters of the way through, and at the end of the DCZ. The photographs were analyzed with MATLAB® routines that computed a measure of feature congestion for each image. Figure 10 shows the mean feature congestion measures for each of the DCZ environments. The arterial control condition was shown to have the highest level of clutter as measured by feature congestion. An analysis of variance was performed on the feature congestion measure to determine if the conditions differed significantly from each other. The four conditions with off-premise advertising did not differ significantly with respect to feature congestion; F(3,36) = 1.25, p > 0.05. Based on the feature congestion measure, the results indicate that the four conditions with off-premise advertising were equated with respect to the overall visual complexity of the driving scenes.

Figure 10. Mean feature congestion as a function of advertising condition and road type (standard errors for the mean are included in the graph).

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28 Effects of Billboards on Gazes to the Road Ahead
For each 60 Hz frame, a determination was made as to the direction of the gaze vector. Previous research has shown that gazes do not need to be separated into saccades and fixations before calculating such measures as percent of time or the probability of looking to the road ahead.(39) This analysis examines the degree to which drivers gaze toward the road ahead across the different advertising conditions as a function of road type and time of day. Gazing toward the road ahead is critical for driving, and so the analysis examines the degree to which gazes toward this area are affected by the independent variables (advertising type, type of road, and time of day) and their interactions.

Generalized estimating equations (GEE) were used to analyze the probability of a participant gazing at driving-related information.(40,41)The data for these analyses were not normally distributed and included repeated measures. The GEE model is appropriate for these types of data and analyses. Note that for all results included in this report, Wald statistics were the chosen alternative to likelihood ratio statistics because GEE uses quasi-likelihood instead of maximum likelihood.(42)For this analysis, road ahead included the following ROIs (as previously described and displayed in figure 9): road ahead, road ahead top, and driving-related risks. A logistic regression model for repeated measures was generated by using a binomial response distribution and Logit (i.e., log odds) link function. Only two possible outcomes are allowed when selecting a binomial response distribution. Thus, a variable (RoadAhead) was created to classify a participant’s gaze behavior. If the participant gazed toward the road ahead, road ahead top, or driving-related risks, then the value of RoadAhead was set to one. If the participant gazed at any other object in the panoramic scene, then the value of RoadAhead was set to zero. Logistic regression typically models the probability of a success. In the current analysis, a success would be a gaze to road ahead information (RoadAhead = 1) and a failure would be a gaze toward nonroad ahead information (RoadAhead = 0). The resultant value was the probability of a participant gazing at road-ahead information.

Time of day (day or night), road type (freeway or arterial), advertising condition (CEVMS, standard billboard, or control), and all corresponding second-order interactions were explanatory variables in the logistic regression model. The interaction of advertising condition by road type was statistically significant, χ2 (2) = 6.3, p = 0.043. Table 4 shows the corresponding probabilities for gazing at the road ahead as a function of advertising condition and road type.

Table 4. The probability of gazing at the road ahead as a function of advertising condition and road type.

Advertising Condition Arterial Freeway
Control 0.92 0.86
CEVMS 0.82 0.73
Standard 0.80 0.77
Follow-up analyses for the interaction used Tukey-Kramer adjustments with an alpha level of

0.05. The arterial control condition had the greatest probability of looking at the road ahead (M = 0.92). This probability differed significantly from the remaining five probabilities. On Appendix 6, Page 38 of 70

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29 arterials, the probability of gazing at the road ahead did not differ between the CEVMS (M = 0.82) and the standard billboard (M = 0.80) DCZs. In contrast, there was a significant difference in this probability on freeways, where standard billboard DCZs yielded a higher probability (M = 0.77) than CEVMS DCZs (M = 0.73). The probability of gazing at the road ahead was also significantly higher in the freeway control DCZ (M = 0.86) than in either of the corresponding freeway off-premise advertising DCZs. The probability of gazing at road-ahead information in arterial CEVMS DCZs was not statistically different from the same probability in the freeway control DCZ.

Additional descriptive statistics were computed to determine the probability of gazing at the various ROIs that were defined in the panoramic scene. Some of the ROIs depicted in figure 9 were combined in the following fashion for ease of analysis:
 Road ahead, road ahead top, and driving-related risks combined to form road ahead.  Left side of road bottom and left side of road top combined to form left side of vehicle.  Right side of road bottom and right side of road top combined to form right side of vehicle.
 Inside vehicle and top combined to form participant vehicle.

Table 5 presents the probability of gazing at the different ROIs.

Table 5. Probability of gazing at ROIs for the three advertising conditions on arterials and freeways.

Road Type ROI CEVMS
Standard
Billboard Control
Arterial CEVMS 0.07 N/A N/A
Left Side of Vehicle 0.06 0.06 0.02
Road ahead 0.82 0.80 0.92
Right Side of Vehicle 0.03 0.06 0.04
Standard Billboard N/A 0.03 N/A
Participant Vehicle 0.03 0.05 0.02
Freeway CEVMS 0.05 N/A N/A
Left Side of Vehicle 0.08 0.07 0.04
Road ahead 0.73 0.77 0.86
Right Side of Vehicle 0.09 0.02 0.05
Standard Billboard 0.02* 0.09 N/A
Participant Vehicle 0.04 0.05 0.05
* The CEVMS DCZs on freeways each contained one visible standard billboard.

The probability of gazing away from the forward roadway ranged from 0.08 to 0.27. In particular, the probability of gazing toward a CEVMS was greater on arterials (M = 0.07) than on freeways (M = 0.05). In contrast, the probability of gazing toward a target standard billboard was greater on freeways (M = 0.09) than on arterials (M = 0.03).

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30 Fixations to CEVMS and Standard Billboards
About 2.4 percent of the fixations were to CEVMS. The mean fixation duration to a CEVMS was 388 ms and the maximum duration was 1,251 ms. Figure 11 shows the distribution of fixation durations to CEVMS during the day and night. In the daytime, the mean fixation duration to a CEVMS was 389 ms and at night it was 387 ms. Figure 12 shows the distribution of fixation durations to standard billboards. Approximately 2.4 percent of fixations were to standard billboards. The mean fixation duration to standard billboards was 341 ms during the daytime and 370 ms at night. The maximum fixation duration to standard billboards was 1,284 ms (which occurred at night). For comparison purposes, figure 13 shows the distribution of fixation durations to the road ahead (i.e., top and bottom road ahead ROIs) during the day and night. In the daytime, the mean fixation duration to the road ahead was 365 ms and at night it was 390 ms.

Figure 11. Distribution of fixation duration for CEVMS in the daytime and nighttime.

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31 Figure 12. Distribution of fixation duration for standard billboards in the daytime and nighttime.

Figure 13. Distribution of fixation duration for road ahead (i.e., top and bottom road ahead ROIs) in the daytime and nighttime.

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32 Dwell times on CEVMS and standard billboards were also examined. Dwell time is the duration of back-to-back fixations to the same ROI.(43,44)The dwell times represent the cumulative time for the back-to-back fixations. Whereas there may be no long, single fixation to a billboard, there might still be multiple fixations that yield long dwell times. There were a total of 25 separate instances of multiple fixations to CEVMS with a mean of 2.4 fixations (minimum of 2 and maximum of 5). The 25 dwell times came from 15 different participants distributed across four different CEVMS. The mean duration of these dwell times was 994 ms (minimum of 418 ms and maximum of 1,467 ms).

For standard billboards, there were a total of 17 separate dwell times with a mean of 3.47 sequential fixations (minimum of 2 fixations and maximum of 8 fixations). The 17 dwell times came from 11 different participants distributed across 4 different standard billboards. The mean duration of these multiple fixations was 1,172 ms (minimum of 418 ms and maximum of 3,319 ms). There were three dwell-time durations that were greater than 2,000 ms. These are described in more detail below.

In some cases several dwell times came from the same participant. In order to compute a statistic on the difference between dwell times for CEVMS and standard billboards, average dwell times were computed per participant for the CEVMS and standard billboard conditions. These average values were used in a t-test assuming unequal variances. The difference in average dwell time between CEVMS (M = 981 ms) and standard billboards (M= 1,386 ms) was not statistically significant, t(12) = -1.40, p > .05.

Figure 14 through figure 23 show heat maps for the dwell-time durations to the standard billboards that were greater than 2,000 ms. These heat maps are snapshots from the DCZ and attempt to convey in two dimensions the pattern of gazes that took place in a three dimensional world. The heat maps are set to look back approximately one to two seconds and integrate over time where the participant was gazing in the scene camera video. The green color in the heat map indicates the concentration of gaze over the past one to two seconds. The blue line indicates the gaze trail over the past one to two seconds.

Figure 14 through figure 16 are for a DCZ on an arterial at night. The standard billboard was on the right side of the road (indicated by a pink rectangle). There were eight fixations to this billboard, and the single fixations were between 200 to 384 ms in duration. The dwell time for this billboard was 2,019 ms. At the start of the DCZ (see figure 14), the driver was directing his/her gaze to the forward roadway. Approaching the standard billboard, the driver began to fixate on the billboard. However, the billboard was still relatively close to the road ahead ROI.

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33 Figure 14. Heat map for the start of a DCZ for a standard billboard at night on an arterial.

Figure 15. Heat map for the middle of a DCZ for a standard billboard at night on an arterial.

Figure 16. Heat map near the end of a DCZ for a standard billboard at night on an arterial.

Figure 17 through figure 19 are for a DCZ on a freeway at night. The standard billboard was on the right side of the road (indicated by a green rectangle). There were six consecutive fixations to this billboard, and the single fixations were between 200 and 801 ms in duration. The dwell time for this billboard was 2,753 ms. At the start of the DCZ (see figure 17), the driver was directing his/her gaze to a freeway guide sign in the road ahead and the standard billboard was to the left of the freeway guide sign. As the driver approached the standard billboard, his/her gaze was directed toward the billboard. The billboard was relatively close to the top and bottom road ahead ROIs. Near the end of the DCZ (see figure 19), the billboard was accurately portrayed as being on the right side of the road.

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34 Figure 17. Heat map for start of a DCZ for a standard billboard at night on a freeway.

Figure 18. Heat map for middle of a DCZ for a standard billboard at night on a freeway.

Figure 19. Heat map near the end of a DCZ for a standard billboard at night on a freeway.

Figure 20 through figure 23 are for a DCZ on a freeway during the day. The standard billboard was on the right side of the road (indicated by a pink rectangle). This is the same DCZ that was discussed in figure 17 through figure 19. There were six consecutive fixations to this billboard, and the single fixations were between 217 and 767 ms in duration. The dwell time for this billboard was 3,319 ms. At the start of the DCZ (see figure 20), the driver was principally directing his/her gaze to the road ahead. Figure 21 and figure 22 show the location along the DCZ where gaze was directed toward the standard billboard. The billboard was relatively close to the top and bottom road-ahead ROIs. As the driver passed the standard billboard, his/her gaze returned to the road ahead (see figure 23).

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35 Figure 20. Heat map for the start of a DCZ for a standard billboard in the daytime on a freeway.

Figure 21. Heat map near the middle of a DCZ for a standard billboard in the daytime on a freeway.

Figure 22. Heat map near the end of DCZ for standard billboard in the daytime on a freeway.

Figure 23. Heat map at the end of DCZ for standard billboard in the daytime on a freeway.

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36 Comparison of Gazes to CEVMS and Standard Billboards The GEE were used to analyze whether a participant gazed more toward CEVMS than toward standard billboards, given that the participant was gazing at off-premise advertising. With this analysis method, a logistic regression model for repeated measures was generated by using a binomial response distribution and Logit link function. First, the data was partitioned to include only those instances when a participant was gazing toward off-premise advertising (either to a CEVMS or to a standard billboard); all other gaze behavior was excluded from the input data set.

Only two possible outcomes are allowed when selecting a binomial response distribution. Thus, a variable (SBB_CEVMS) was created to classify a participant’s gaze behavior. If the participant gazed toward a CEVMS, the value of SBB_CEVMS was set to one. If the participant gazed toward a standard billboard, then the value of SBB_CEVMS was set to zero.

Logistic regression typically models the probability of a success. In the current analysis, a success would be a gaze to a CEVMS (SBB_CEVMS = 1) and a failure would be a gaze to a standard billboard (SBB_CEVMS = 0).2 A success probability greater than 0.5 indicates there were more successes than failures in the sample. Therefore, if the sample probability of the response variable (i.e., SBB_CEVMS) was greater than 0.5, this would show that participants gazed more toward CEVMS than toward standard billboards when the participants gazed at offpremise advertising. In contrast, if the sample probability of the response variable was less than

0.5, then participants showed a preference to gaze more toward standard billboards than toward CEVMS when directing gazes to off-premise advertising.

Time of day (i.e., day or night), road type (i.e., freeway or arterial), and the corresponding interaction were explanatory variables in the logistic regression model. Road type was the only predictor to have a significant effect, χ2 (1) = 13.17, p < 0.001. On arterials, participants gazed more toward CEVMS than toward standard billboards (M = 0.63). In contrast, participants gazed more toward standard billboards than toward CEVMS when driving on freeways (M = 0.33).

Observation of Driver Behavior
No near misses or driver errors were observed in Reading.

Level of Service
The mean vehicle densities were converted to level of service as shown in table 6. (45) As
expected, less congestion occurred at night than in the day. In general, there was traffic during the data collection runs. Review of the scene camera data verified that all eye tracking data within the DCZs were recorded while the vehicle was in motion.

2 Success and failure are not used to reflect the merits of either type of sign, but only for statistical purposes.

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37 Table 6. Level of service as a function of advertising type, road type, and time of day.

Arterial Freeway
Day Night Day Night
Control B A C B

CEVMS C A B A
Standard A A B A

DISCUSSION OF READING RESULTS
Overall the probability of gazing at the road ahead was high and similar in magnitude to what has been found in other field studies addressing billboards.(11,9,12) For the DCZs on freeways, CEVMS showed a lower proportion of gazes to the road ahead than the standard billboard condition, and both off-premise advertising conditions had lower probability of gazes to the road ahead than the control. On the other hand, on the arterials, the CEVMS and standard billboard conditions did not differ from each other but were significantly different from their respective control condition. Though the CEVMS condition on the freeway had the lowest proportion of gazes to the road ahead, in this condition there was a lower proportion of gazes to CEVMS as compared to the arterials (see table 5 for the trade-off of gazes to the different ROIs). A greater proportion of gazes to other ROIs (left side of the road, right side of the road, and participant vehicle) contributed to the decrease in proportion of gazes to the road ahead. Also, for the CEVMS on freeways, there were a few gazes to a standard billboard located in the same DCZ and there were more gazes distributed to the left and right side of the road than in standard billboard and control conditions. The gazes to ROIs other than CEVMS contributed to the lower probability of gazes to the road ahead in this condition.

The control condition on the arterial had buildings along the sides of the road and generally presented a visually cluttered area. As was presented earlier, the feature congestion measure computed on a series of photographs from each DCZ showed a significantly higher feature congestion score for the control condition on arterials as compared to all of the other DCZs.

Nevertheless, the highest probability for gazing at the road ahead was seen in the control condition on the arterial.

The area with the highest feature congestion, especially on the sides of the road, had the highest probability for drivers looking at the road ahead. Bottom-up or stimulus driven measures of salience or visual clutter have been useful in predicting visual search and the effects of visual salience in laboratory tasks.(34,46)
These measures of salience basically consider the stimulus characteristics (e.g., size, color, brightness) independent of the requirements of the task or plans that an individual may have. Models of visual salience may predict that buildings and other prominent features on the side of the road may be visually salient objects and thus would attract a driver’s attention.(47)
Figure 24 shows an example of a roadway photograph that was analyzed with the Salience Toolbox based on the Itti et al. implementation of a saliency based model of bottom-up attention.(48,49)
The numbered circles in figure 24 are the first through fifth salient areas selected by the software. Based on this software, the most salient areas in the photographs are the buildings on the sides of the road where the road ahead (and a car) is the fifth selected salient area.

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38 Figure 24. Example of identified salient areas in a road scene based on bottom-up analysis.

It appears that in the present study participants principally kept their eyes on the road even in the presence of visual clutter on the sides of the road, which supports the hypothesis that drivers tend to look toward information relevant to the task at hand.(50,26,22) In the case of the driving task,
visual clutter may be more of an issue with respect to crowding that may affect the driver’s ability to detect visual information in the periphery.(51) Crowding is generally defined as the negative effect of nearby objects or features on visual discrimination of a target.(52) Crowding impairs the ability to recognize objects in clutter and principally affects perception in peripheral vision. However, crowing effects were not analyzed in the present study.

Stimulus salience, clutter, and the nature of the task at hand interact in visual perception. For tasks such as driving, the task demands tend to outweigh stimulus salience when it comes to gaze control. Clutter may be more of an issue with the detection and recognition of objects in peripheral vision (e.g., detecting a sign on the side of the road) that are surrounded by other stimuli that result in a crowding effect.

The mean fixation durations to CEVMS, standard billboards, and the road ahead were found to be very similar. Also, there were no long fixations (greater than 2,000 ms) to CEVMS or standard billboards. The examination of multiple sequential fixations to CEVMS yielded average dwell times that were less than 1,000 ms. However, when examining the tails of the distribution, there were three dwell times to standard billboards that were in excess of 2,000 ms (the three dwell times came from three different participants to two different billboards). These three standard billboards were dwelled upon when they were near the road ahead area but drivers quit gazing at the signs as they neared them and the signs were no longer near the forward field of view. Though there were three dwell times for standard billboards greater than 2,000 ms, the difference in average dwell times for CEVMS and standard billboards was not significant.

Using a gaze duration of 2,000 ms away from the road ahead as a criterion indicative of increased risk has been developed principally as it relates to looking inside the vehicle to invehicle information systems and other devices (e.g., for texting) where the driver is indeed looking completely away from the road ahead.(14,53,54)
The fixations to the standard billboards in
the present case showed a long dwell time for a billboard. However, unlike gazing or fixating inside the vehicle, the driver’s gaze was within the forward roadway where peripheral vision could be used to monitor for hazards and for vehicle control. Peripheral vision has been shown to be important for lane keeping, visual search orienting, and monitoring of surrounding objects.(55,56)
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39 The results showed that drivers were more likely to gaze at CEVMS on arterials and at standard billboards on freeways. Though every attempt was made to select CEVMS and standard billboard DCZs that were equated on important parameters (e.g., which side of the road the sign was located on, type of road, level of visual clutter), the CEVMS DCZs on freeways had a greater setback from the road (133 ft for both CEVMS) than the standard billboards (10 and 35 ft). Signs with greater setback from the road would in a sense move out of the forward view (road ahead) more quickly than signs that are closer to the road. The CEVMS and standard billboards on the arterials were more closely matched with respect to setback from the road (12 and 43 ft for CEVMS and 20 and 40 ft for standard billboards).

The differences in setback from the road for CEVMS and standard billboards may also account for differences in dwell times to these two types of billboards. However, on arterials where the CEVMS and standard billboards were more closely matched there was only one long dwell time (greater than 2,000 ms) and it was to a standard billboard at night.

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40 RICHMOND
The objectives of the second study were the same as those in the first study, and the design of the Richmond data collection effort was very similar to that employed in Reading. This study was conducted to replicate as closely as possible the design of Reading in a different driving environment. The independent variables included the type of DCZ (CEVMS, standard billboard, or no off-premise advertising), time of day (day or night) and road type (freeway or arterial). As with Reading, the time of day was a between-subjects variable and the other variables were within subjects.

METHOD
Selection of DCZ Limits
Selection of the DCZ limits procedure was the same as that employed in Reading.

Advertising Type
Three DCZ types (similar to those used in Reading) were used in Richmond:
 CEVMS. DCZs contained one target CEVMS.
 Standard billboard. DCZs contained one target standard billboard.  Control conditions. DCZs did not contain any off-premise advertising.

There were an equal number of CEVMS and standard billboard DCZs on freeways and arterials.

Also, there two DCZ that did not contain off-premise advertising with one located on a freeway and the other on an arterial.

Table 7 is an inventory of the target employed in this second study.

Table 7. Inventory of target billboards in Richmond with relevant parameters.

DCZ Advertising
Type
Copy
Dimensions
(ft)
Side of
Road
Setback
from Road
(ft)
Other
Standard
Billboards
Approach
Length (ft)
Roadway
Type
5 CONTROL N/A N/A N/A N/A 710 Arterial
3 CONTROL N/A N/A N/A N/A 845 Freeway
9 CEVMS 14'0" x 28'0" L 37 0 696 Arterial
13 CEVMS 14'0" x 28'0" R 37 0 602 Arterial
2 CEVMS 12'5" x 40'0" R 91 0 297 Freeway
8 CEVMS 11'0 x 23'0" L 71 0 321 Freeway
10 Standard 14'0" x 48'0" L 79 1 857 Arterial
12 Standard 10'6" x 45'3" R 79 2 651 Arterial
1 Standard 14'0" x 48'0" L 87 0 997 Freeway
7 Standard 14'0" x 48'0" R 88 0 816 Freeway
* N/A indicates that there were no off-premise advertising in these areas and these values are undefined.

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41 Figure 25 through figure 30 below represent various pairings of DCZ type and road type. Target off-premise billboards are indicated by red rectangles.

Figure 25. Example of a CEVMS DCZ on a freeway.

Figure 26. Example of CEVMS DCZ an arterial.

Figure 27. Example of a standard billboard DCZ on a freeway.

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42 Figure 28. Example of a standard billboard DCZ on an arterial.

Figure 29. Example of a control DCZ on a freeway.

Figure 30. Example of a control DCZ on an arterial.

Photometric Measurement of Signs
The methods and procedures for the photometric measures were the same as for Reading.

Visual Complexity
The methods and procedures for visual complexity measurement were the same as for Reading.

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43 Participants
A total of 41 participants were recruited for the study. Of these, 6 participants did not complete data collection because of an inability to properly calibrate with the eye tracking system, and 11 were excluded because of equipment failures. A total of 24 participants (13 male, M = 28 years; 11 female, M = 25 years) successfully completed the drive. Fourteen people participated during the day and 10 participated at night.

Procedures
Research participants were recruited locally by means of visits to public libraries, student unions, community centers, etc. A large number of the participants were recruited from a nearby university, resulting in a lower mean participant age than in Reading.

Participant Testing
Two people participated each day. One person participated during the day beginning at approximately 12:45 p.m. The second participated at night beginning at around 7:00 p.m. Data collection ran from November 20, 2009, through April 23, 2010. There were several long gaps in the data collection schedule due to holidays and inclement weather.

Pre-Data Collection Activities
This was the same as in Reading.

Practice Drive
Except for location, this was the same as in Reading.

Data Collection
The procedure was much the same as in Reading. On average, each test route required approximately 30 to 35 minutes to complete. As in Reading, the routes included a variety of freeway and arterial driving segments. One route was 15 miles long and contained two target CEVMS, two target standard billboards, and two DCZs with no off-premise advertising. The second route was 20 miles long and had two target CEVMS and two target standard billboards.

The data collection drives in this second study were longer than those in Reading. The eye tracking system had problems dealing with the large files that resulted. To mitigate this technical difficulty, participants were asked to pull over in a safe location during the middle of each data collection drive so that new data files could be initiated.

Upon completion of the data collection, the participant was instructed to return to the designated meeting location for debriefing.

Debriefing
This was the same as in Reading.

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44 DATA REDUCTION
Eye Tracking Measures
The approach and procedures were the same as used in Reading.

Other Measures
The approach and procedures were the same as used in Reading.

RESULTS
Photometric Measurement of Signs
The photometric measurements were performed using the same equipment and procedures that were employed in Reading with a few minor changes. Photometric measurements were taken during the day and at night. Measurements of the standard billboards were taken at an average distance of 284 ft, with maximum and minimum distances of 570 ft and 43 ft, respectively. The average distance of measurements for the CEVMS was 479 ft, with maximum and minimum distances of 972 ft and 220 ft, respectively. Again, the distances employed were significantly affected by the requirement to find a safe location on the road from which to take the measurements.

Luminance
The mean luminance of CEVMS and standard billboards, during daytime and nighttime are shown below in table 8. The results here are similar to those for Reading.

Contrast
The daytime and nighttime Weber contrast ratios for both types of billboards are shown in table

8. During the day, the contrast ratios of both CEVMS and standard billboards were close to zero (the surroundings were about equal in brightness to the signs). At night, the CEVMS and standard billboards had positive contrast ratios. Similar to Reading, the CEVMS showed a higher contrast ratio than the standard billboards at night.

Table 8. Summary of luminance (cd/m2) and contrast (Weber ratio) measurements.

Luminance (cd/m2) Contrast
Day Mean St. Dev. Mean St. Dev.

CEVMS 2134 798.70 -0.20 0.53
Standard Billboard 3063 2730.92 0.03 0.32
Night
CEVMS 56.44 16.61 69.70 59.18
Standard Billboard 8.00 5.10 6.56 3.99
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45 Visual Complexity
As with Reading, the feature congestion measure was used to estimate the level of visual complexity/clutter in the DCZs. The analysis procedures were the same as for Reading.

Figure 31 shows the mean feature congestion measures for each of the advertising types (standard errors are included in the figure). Unlike the results for Reading, the selected offpremise advertising DCZs for Richmond differed in terms of mean feature congestion; F(3, 36) =

3.95, p = 0.016. Follow up t-tests with an alpha of 0.05 showed that the CEVMS DCZs on arterials had significantly lower feature congestion than all of the other off-premise advertising conditions. None of the remaining DCZs with off-premise advertising differed from each other.

The selection of DCZs for the conditions with off-premise advertising took into account the type of road, the side of the road the target billboard was placed, and the perceived level of visual clutter. Based on the feature congestion measure, these results indicated that the conditions with off-premise advertising were not equated with respect to level of visual clutter.

Figure 31. Mean feature congestion as a function of advertising condition and road type.

Effects of Billboards on Gazes to the Road Ahead
As was done for the data from Reading, GEE were used to analyze the probability of a participant gazing at the road ahead. A logistic regression model for repeated measures was generated by using a binomial response distribution and Logit link function. The resultant value was the probability of a participant gazing at the road ahead (as previously defined).

Time of day (day or night), road type (freeway or arterial), advertising type (CEVMS, standard billboard, or control), and all corresponding second-order interactions were explanatory variables in the logistic regression model. The interaction of advertising type by road type was statistically significant, χ2 (2) = 14.19, p < 0.001. Table 9 shows the corresponding probability of gazing at the road ahead as a function of advertising condition and road type.

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46 Table 9. The probability of gazing at the road ahead as a function of advertising condition and road type.

Advertising Condition Arterial Freeway
Control 0.78 0.92
CEVMS 0.76 0.82
Standard 0.81 0.85
Follow-up analyses for the interaction used Tukey-Kramer adjustments with an alpha level of

0.05. The freeway control had the greatest probability of gazing at the road ahead (M = 0.92).

This probability differed significantly from the remaining five probabilities. On arterials, there were no significant differences among the probabilities of gazing at the road ahead among the three advertising conditions. On freeways, there was no significant difference between the probability associated with CEVMS DCZs and the probability associated with standard billboard DCZs.

Additional descriptive statistics were computed for the three advertising types to determine the probability of gazing at the ROIs that were defined in the panoramic scene. As was done with the data from Reading, some of the ROIs were combined for ease of analysis. Table 10 presents the probability of gazing at the different ROIs.

Table 10. Probability of gazing at ROIs for the three advertising conditions on arterials and freeways.

Road Type ROI CEVMS
Standard
Billboard Control
Arterial CEVMS 0.06 N/A N/A
Left Side of Vehicle 0.03 0.05 0.04
Road ahead 0.76 0.81 0.78
Right Side of Vehicle 0.07 0.06 0.09
Standard Billboard N/A 0.02 N/A
Participant Vehicle 0.07 0.06 0.09
Freeway CEVMS 0.05 N/A N/A
Left Side of Vehicle 0.03 0.01 0.01
Road ahead 0.82 0.85 0.92
Right Side of Vehicle 0.04 0.04 0.03
Standard Billboard N/A 0.04 N/A
Participant Vehicle 0.06 0.06 0.05
The probability of gazing away from the forward roadway ranged from 0.08 to 0.24. In particular, the probability of gazing toward a CEVMS was slightly greater on arterials (M = 0.06) than on freeways (M = 0.05). In contrast, the probability of gazing toward a standard billboard was greater on freeways (M = 0.04) than on arterials (M = 0.02). In both situations, the probability of gazing at the road ahead was greatest on freeways.

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47 Fixations to CEVMS and Standard Billboards
About 2.5 percent of the fixations were to CEVMS. The mean fixation duration to a CEVMS was 371 ms and the maximum fixation duration was 1,335 ms. Figure 32 shows the distribution of fixation durations to CEVMS during the day and at night. In the daytime, the mean fixation duration to a CEVMS was 440 ms and at night it was 333 ms. Approximately 1.5 percent of the fixations were to standard billboards. The mean fixation duration to standard billboards was 318 ms and the maximum fixation duration was 801 ms. Figure 33 shows the distribution of fixation durations for standard billboards. The mean fixation duration to a standard billboard was 313 ms and 325 ms during the day and night, respectively. For comparison purposes, figure 34 shows the distribution of fixation durations to the road ahead during the day and night. In the daytime, the mean fixation duration to the road ahead was 378 ms and at night it was 358 ms.

Figure 32. Fixation duration for CEVMS in the day and at night.

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48 Figure 33. Fixation duration for standard billboards in the day and at night.

Figure 34. Fixation duration for the road ahead in the day and at night.

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49 As was done with the data for Reading, the record of fixations was examined to determine dwell times to CEVMS and standard billboards. There were a total of 21 separate dwell times to CEVMS with a mean of 2.86 sequential fixations (minimum of 2 fixations and maximum of 6 fixations). The 21 dwell times came from 12 different participants and four different CEVMS.

The mean dwell time duration to the CEVMS was 1,039 ms (minimum of 500 ms and maximum of 2,720 ms). There was one dwell time greater than 2,000 ms to CEVMS. To the standard billboards there were 13 separate dwell times with a mean of 2.31 sequential fixations (minimum of 2 fixations and maximum of 3 fixations). The 13 dwell times came from 11 different participants and four different standard billboards. The mean dwell time duration to the standard billboards was 687 ms (minimum of 450 ms and maximum of 1,152 ms). There were no dwell times greater than 2,000 ms to standard billboards.

In some cases several dwell times came from the same participant. To compute a statistic on the difference between dwell times for CEVMS and standard billboards, average dwell times were computed per participant for the CEVMS and standard billboard conditions. These average values were used in a t-test assuming unequal variances. The difference in average dwell time between CEVMS (M = 1,096 ms) and standard billboards (M= 674 ms) was statistically significant, t(14) = 2.23, p = .043.

Figure 35 through figure 37 show heat maps for the dwell-time durations to the CEVMS that were greater than 2,000 ms. The DCZ was on a freeway during the daytime. The CEVMS is located on the left side of the road (indicated by an orange rectangle). There were three fixations to this billboard, and the single fixations were between 651 ms and 1,335 ms. The dwell time for this billboard was 2,270 ms. Figure 35 shows the first fixation toward the CEVMS. There are no vehicles near the participant in his/her respective travel lane or adjacent lanes. In this situation, the billboard is relatively close to the road ahead ROI. Figure 36 shows a heat map later in the DCZ where the driver continues to look at the CEVMS. The heat map does not overlay the CEVMS in the picture since the heat map has integrated over time where the driver was gazing.

The CEVMS has moved out of the area because of the vehicle moving down the road. However, visual inspection of the video and eye tracking statistics showed that the driver was fixating on the CEVMS. Figure 37 shows the end of the sequential fixations to the CEVMS. The driver returns to gaze directly in front of the vehicle. Once the CEVMS was out of the forward field of view, the driver quit looking at the billboard.

Figure 35. Heat map for first fixation to CEVMS with long dwell time.

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50 Figure 36. Heat map for later fixations to CEVMS with long dwell time.

Figure 37. Heat map at end of fixations to CEVMS with long dwell time.

Comparison of Gazes to CEVMS and Standard Billboards
As was done for the data from Reading, GEE were used to analyze whether a participant gazed more toward CEVMS than toward standard billboards, given that the participant was looking at off-premise advertising. Recall that a sample probability greater than 0.5 indicated that participants gazed more toward CEVMS than standard billboards when the participants gazed at off-premise advertising. In contrast, if the sample probability was less than 0.5, participants showed a preference to gaze more toward standard billboards than CEVMS when directing visual attention to off-premise advertising.

Time of day (i.e., day or night), road type (i.e., freeway or arterial), and the corresponding interaction were explanatory variables in the logistic regression model. Time of day had a significant effect on participant gazes toward off-premise advertising, χ2 (1) = 4.46, p = 0.035.

Participants showed a preference to gaze more toward CEVMS than toward standard billboards during both times of day. During the day the preference was only slight (M = 0.52), but at night the preference was more pronounced (M = 0.71). Road type was also a significant predictor of where participants directed their gazes at off-premise advertising, χ2 (1) = 3.96, p = 0.047.

Participants gazed more toward CEVMS than toward standard billboards while driving on both types of roadways. However, driving on freeways yielded a slight preference for CEVMS over standard billboards (M = 0.55), but driving on arterials resulted in a larger preference in favor of CEVMS (M = 0.68).

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51 Observation of Driver Behavior
No near misses or driver errors occurred.

Level of Service
Table 11 shows the level of service as a function of advertising type, type of road, and time of day. As expected, there was less congestion during the nighttime runs than in the daytime. In general, there was traffic during the data collection runs; however, the eye tracking data were recorded while the vehicles were in motion.

Table 11. Estimated level of service as a function of advertising condition, road type, and time of day.

Arterial Freeway
Day Night Day Night
Control B A C B

CEVMS B A B A
Standard C A C C

DISCUSSION OF RICHMOND RESULTS
Overall the probability of looking at the forward roadway was high across all conditions and consistent with the findings from Reading and previous related research.(11,9,12) In this second study the CEVMS and standard billboard conditions did not differ from each other. For the DCZs on arterials there were no significant differences among the control, CEVMS, and standard billboard conditions. On the other hand, while the CEVMS and standard billboard conditions on the freeways did not differ from each other, they were significantly different from their respective control conditions. The control condition on the freeway principally had trees along the sides of the road and the signs that were present were freeway signs located in the road ahead ROI.

Measures such as feature congestion rated the three DCZs on freeways as not being statistically different from each other. These types of measures have been useful in predicting visual search and the effects of visual salience in laboratory tasks.(34) Models of visual salience may predict that, at least during the daytime, trees on the side of the road may be visually salient objects that would attract a driver’s attention.(47) However, it appears that in the present study, participants principally kept their eyes on the road ahead.

The mean fixations to CEVMS, standard billboards, and the road ahead were found to be similar in magnitude with no long fixations. Examination of dwell times showed that there was one long dwell time for a CEVMS greater than 2,000 ms and it occurred in the daytime on a sign located on the left side of the road on a freeway DCZ. Furthermore, when averaging among participants the mean dwell time for CEVMS was significantly longer than to standard billboards, but still under 2,000 ms. For the dwell time greater than 2,000 ms, examination of the scene camera video and eye tracking heat maps showed that the driver was initially looking toward the forward roadway and made a first fixation to the sign. Three fixations were made to the sign and then the Appendix 6, Page 61 of 70

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52 driver started looking back to the road ahead as the sign moved out of the forward field of view.

On the video there were no vehicles near the subject driver’s own lane or in adjacent lanes.

Only the central 2 degrees of vision, foveal vision, provide resolution sharp enough for reading or recognizing fine detail.(57) However, useful information for reading can be extracted from parafoveal vision, which encompasses the central 10 degrees of vision.(57) More recent research
on scene gist recognition3 has shown that peripheral vision (beyond parafoveal vision) is more useful than central vision for recognizing the gist of a scene.(58) Scene gist recognition is a
critically important early stage of scene perception, and influences more complex cognitive processes such as directing attention within a scene and facilitating object recognition, both of which are important in obtaining information while driving.

The results of this study do show one duration of eyes off the forward roadway greater than 2,000 ms, the duration at which Klauer et al. observed near-crash/crash risk at more than twice those of normal, baseline driving.(14,53) When looking at the tails of the fixation distributions, few fixations were greater than 1,000 ms, with the longest fixation being equal to 1,335 ms.(53,54) The one long dwell time on a CEVMS that was observed was a rare event in this study, and review of the video and eye tracking data suggests that the driver was effectively managing acquisition of visual information while driving and fixated on the advertising. However, additional work needs to be done to derive criteria for gazing or fixating away from the forward road view where the road scene is still visible in peripheral vision.

The results showed that drivers are more likely to look at CEVMS than standard billboards during the nighttime across the conditions tested (at night the average probability of gazing at CEVMS was M= 0.71). CEVMS do have greater luminance than standard billboards at night and also have higher contrast. The CEVMS have the capability of being lit up so that they would appear as very bright signs to drivers (for example, up to about10,000 cd/m2 for a white square on the sign.). However, our measurements of these signs showed an average luminance of about 56 cd/m2. These signs would be conspicuous in a nighttime driving environment but significantly less so than other light sources such as vehicle headlights. Drivers were also more likely to look at CEVMS than standard billboards on both arterials and freeways, with a higher probability of gazes on arterials.

In this second study, CEVMS and standard billboards were more nearly equated with respect to setback from the road. Gazes to the road ahead were not significantly different between CEVMS and standard billboard DCZs across conditions and the proportion of gazes to the road ahead were consistent with previous research. One long dwell time for a CEVMS was observed in this study; however, it occurred in the daytime where the luminance and contrast (affecting the perceived brightness) of these signs are similar to those for standard billboards.

3 “Scene gist recognition” refers to the element of human cognition that enables us to determine the meaning of a scene and categorize it by type (e.g., a beach, an office) almost immediately upon seeing it.

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53 GENERAL DISCUSSION
This study was conducted to investigate the effect of CEVMS on driver visual behavior in a roadway driving environment. An instrumented vehicle with an eye tracking system was used.

Roads containing CEVMS, standard billboards, and control areas with no off-premise advertising were selected. The CEVMS and standard billboards were measured with respect to luminance, location, size, and other relevant variables to characterize these visual stimuli. Unlike previous studies on digital billboards, the present study examined CEVMS as deployed in two United States cities and did not contain dynamic video or other dynamic elements. The CEVMS changed content approximately every 8 to 10 seconds, consistent within the limits provided by FHWA guidance.(2) In addition, the eye tracking system used had nearly a 2-degree level of resolution that provided significantly more accuracy in determining what objects the drivers were gazing or fixating on as compared to some previous field studies examining CEVMS.

CONCLUSIONS
Do CEVMS attract drivers’ attention away from the forward roadway and other driving relevant stimuli?
Overall, the probability of looking at the road ahead was high across all conditions. In Reading, the CEVMS condition had a lower proportion of gazes to the road ahead than the standard billboard condition on the freeways. Both of the off-premise advertising conditions had a lower proportion of gazes to the road ahead than the control condition on the freeway. The lower proportion of gazes to the road ahead can be attributed to the overall distribution of gazes away from the road ahead and not just to the CEVMS. On the other hand, for the arterials the CEVMS and standard billboard conditions did not differ from each other, but both had a lower proportion of gazes to the road ahead compared to the control. In Richmond there were no differences among the three advertising conditions on the arterials. However, for the freeways the CEVMS and standard billboard conditions did not differ from each other but had a lower proportion of gazes to the road ahead than the control.

The control conditions differed across studies. In Reading, the control condition on arterials showed 92 percent for gazing at the road ahead while on the freeway it was 86 percent. On the other hand, in Richmond the control condition for arterials was 78 percent and for the freeway it was 92 percent. The control conditions on the freeway differed across the two studies. In Reading there were businesses off to the side of the road; whereas in Richmond the sides of the road were mostly covered with trees. The control conditions on the arterials also differed across cities in that both contained businesses and on-premise advertising; however, in Reading arterials had four lanes and in Richmond arterials had six lanes. The reason for these differences across cities was that these control conditions were selected to match the other conditions (CEVMS and standard billboards) that the drivers would experience in the two respective cities. Also, the selection of DCZs was obviously constrained by what was available on the ground in these cities.

The results for the off-premise advertising conditions are consistent with Lee et al., who observed that 76 percent of drivers’ time was spent looking at the road ahead in the CEVMS scenario and 75 percent in the standard billboard scenario.(9) However, it should be kept in mind Appendix 6, Page 63 of 70

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54 that drivers did gaze away from the road ahead even when no off-premise advertising was present and that the presence of clutter or salient visual stimuli did not necessarily control where drivers gazed.

Do glances to CEVMS occur that would suggest a decrease in safety? In DCZs containing CEVMS, about 2.5 percent of the fixations were to CEVMS (about 2.4 percent to standard billboards). The results for fixations are similar to those reported in other field data collection efforts that included advertising signs.(12,11,9,13)Fixations greater than 2,000 ms were not observed for CEVMS or standards billboards.

However, an analysis of dwell times to CEVMS showed a mean dwell time of 994 ms (maximum of 1,467 ms) for Reading and a mean of 1,039 ms (maximum of 2,270 ms) for Richmond. Statistical comparisons of average dwell times between CEVMS and standard billboards were not significant in Reading; however, in Richmond the average dwell times to CEVMS were significantly longer than to standard billboards, though below 2,000 ms. There was one dwell time greater than 2,000 ms to a CEVMS across the two cities. On the other hand, for standard billboards there were three long dwell times in Reading; there were no long dwell times to these billboards in Richmond. Review of the video data for these four long dwell times showed that the signs were not far from the forward view when participants were fixating.

Therefore, the drivers still had access to information about what was in front of them through peripheral vision.

As the analyses of gazes to the road ahead showed, drivers distributed their gazes away from the road ahead even when there were no off-premise billboards present. Also, drivers gazed and fixated on off-premise signs even though they were generally irrelevant to the driving task.

However, the results did not provide evidence indicating that CEVMS were associated with long glances away from the road that may reflect an increase in risk. When long dwell times occurred to CEVMS or standard billboards, the road ahead was still in the driver’s field of view.

Do drivers look at CEVMS more than at standard billboards? The drivers were generally more likely to gaze at CEVMS than at standard billboards. However, there was some variability between the two locations and between type of roadway (arterial or freeway). In Reading, the participants looked more often at CEVMS when on arterials, whereas they looked more often at standard billboards when on freeways. In Richmond, the drivers looked at CEVMS more than standard billboards no matter the type of road they were on, but as in Reading the preference for gazing at CEVMS was greater on arterials (68 percent on arterials and 55 percent on freeways). The slower speed on arterials and sign placement may present drivers with more opportunities to gaze at the signs.

In Richmond, the results showed that drivers gazed more at CEVMS than standard billboards at night; however, for Reading no effect for time of day was found. CEVMS do have higher luminance and contrast than standard billboards at night. The results showed mean luminance of about 56 cd/m2in the two cities where testing was conducted. These signs would appear clearly visible but not overly bright.

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55 SUMMARY
The results of these studies are consistent with a wealth of research that has been conducted on vision in natural environments.(26,22,21) In the driving environment, gaze allocation is principally controlled by the requirements of the task. Consistent results were shown for the proportion of gazes to the road ahead for off-premise advertising conditions across the two cities. Average fixations were similar to CEVMS and standard billboards with no long single fixations evident for either condition. Across the two cities, four long dwell times were observed: one to a CEVMS on a freeway in the day, two to the same standard billboard on a freeway (once at night and once in the daytime), and one to a standard billboard on an arterial at night. Examination of the scene video and eye tracking data indicated that these long dwell times occurred when the billboards were close to the forward field of view where peripheral vision could still be used to gather visual information on the forward roadway.

The present data suggest that the drivers in this study directed the majority of their visual attention to areas of the roadway that were relevant to the task at hand (i.e., the driving task).

Furthermore, it is possible, and likely, that in the time that the drivers looked away from the forward roadway, they may have elected to glance at other objects in the surrounding environment (in the absence of billboards) that were not relevant to the driving task. When billboards were present, the drivers in this study sometimes looked at them, but not such that overall attention to the forward roadway decreased.

LIMITATIONS OF THE RESEARCH
In this study the participants drove a research vehicle with two experimenters on board. The participants were provided with audio turn-by-turn directions and consequently did not have a taxing navigation task to perform. The participants were instructed to drive as they normally would. However, the presence of researchers in the vehicle and the nature of the driving task do limit the degree to which one may generalize the current results to other driving situations. This is a general limitation of instrumented vehicle research.

The two cities employed in the study appeared to follow common practices with respect to the content change frequency (every 8 to 10 seconds) and the brightness of the CEVMS. The current results would not generalize to situations where these guidelines are not being followed.

Participant recruiting was done through libraries, community centers and at a university. This recruiting procedure resulted in a participant demographic distribution that may not be representative of the general driving population.

The study employed a head-free eye tracking device to increase the realism of the driving situation (no head-mounted gear). However, the eye tracker had a sampling rate of 60 Hz, which made determining saccades problematic. The eye tracker and analyses software employed in this effort represents a significant improvement in technology over previous similar efforts in this area.

The study focused on objects that were 1,000 feet or less from the drivers. This was dictated by the accuracy of the eye tracking system and the ability to resolve objects for data reduction. In addition, the geometry of the roadway precluded the consideration of objects at great distances.

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56 The study was performed on actual roadways, and this limited the control of the visual scenes except via the route selection process. In an ideal case, one would have had roadways with CEVMS, standard billboards, and no off-premise advertising and in which the context surrounding digital and standard billboards did not differ. This was not the case in this study, although such an exclusive environment would be inconsistent with the experience of most drivers. This presents issues with the interpretation of the specific contributions made by billboards and the environment to the driver’s behavior.

Sign content was not investigated (or controlled) in the present study, but may be an important factor to consider in future studies that investigate the distraction potential of advertising signs.

Investigations about the effect of content could potentially be performed in driving simulators where this variable could be systematically controlled and manipulated.

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41. Stokes, M. E., C. S. Davis, and G. G. Koch. Categorical Data Analysis Using the Sas System (2nd Ed.). SAS Institute, Inc., Cary, NC, 2000.

42. Molenbergs, G., and G. Verbeke. Likelihood Ratio, Score, and Wald Tests in a Constrained Parameter Space. The American Statistican, 61, 2007, 22-27.

43. ISO, 2002: Road Vehicles — Measurement of Driver Visual Behaviour with Respect to Transport Information and Control Systems —Part 1: Definitions and Parameters. ISO.

44. ISO, 2001: Road Vehicles — Measurement of Driver Visual Behaviour with Respect to Transport Information and Control Systems — Part 2: Equipment and Procedures. ISO.

45. Highway Capacity Manual. Transportation Research Board, Washington, DC, 2000.

46. Itti, L., and C. Koch. A Saliency-Based Search Mechanism for Overt and Covert Shifts of Visual Attention. Vision Research, 40, 2000, 1489-1506.

47. Walther, D., and C. Koch. Modeling Attention to Salient Proto-Objects. Neural Networks, 19, 2006, 1395-1407.

48. Itti, L., C. Koch, and E. Niebur. A Model of Saliency-Based Visual Attention for Rapid Scene Analysis. Pattern Analysis and Machine Intelligence, IEEE Transactions on, 20, 1998, 1254-1259.

49. Walther, D. B. Saliency Toolbox. [Available online at http://www.saliencytoolbox.net/index.html.] Accessed 6/27/2012.

50. Land, M. F. Predictable Eye-Head Coordination During Driving. Nature, 359, 1992, 318- 320.

51. Balas, B., L. Nakano, and R. Rosenholtz. A Summary-Statistic Representation in Peripheral Vision Explains Visual Crowding. Journal of Vision, 9, 2009, 1-18.

52. Levi, D. M. Crowding--an Essential Bottleneck for Object Recognition: A Mini-Review.

Vision Research, 48, 2008, 635-654.

53. Horrey, W. J., and C. D. Wickens. In-Vehicle Glance Duration: Distributions,Tails, and Model of Crash Risk. Transportation Research Record, 2018, 2007, 22-28.

54. Wierwille, W. W., 1993: Visual and Manual Demands of in-Car Controls and Displays.

Automotive Ergonomics, B. Peacock, and W. Karwowsk, Eds., Taylor and Francis, 299- 320.

55. Strasburger, H., I. Rentschler, and M. Jüttner. Peripheral Vision and Pattern Recognition:

A Review. Journal of Vision, 11, 2011, 1-82.

Appendix 6, Page 69 of 70

10.1 p. 686 of 947
60 56. Reimer, B. Impact of Cognitive Task Complexity on Drivers’ Visual Tunneling.

Transportation Research Record: Journal of the Transportation Research Board, No. 2138, 2009, 13–19.

57. Rayner, K., A. W. Inhoff, R. E. Morrison, M. L. Slowiaczek, and J. H. Bertera. Masking of Foveal and Parafoveal Vision During Eye Fixations in Reading. Journal of Experimental Psychology: Human Perception and Performance, 7, 1981, 167-179.

58. Larson, A. M., and L. C. Loschky. The Contributions of Central Versus Peripheral Vision to Scene Gist Recognition. Journal of Vision, 9, 2009, 1-16.

Appendix 6, Page 70 of 70

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12/6/2016 Federal Highway Administration study confirms safety of digital billboards and signs | Digital Signage Today http://www.digitalsignagetoday.com/blogs/federal­highway­administration­study­confirms­safety­of­digital­billboards­and­signs/?style=print 1/2 Federal Highway Administration study confirms safety
of digital billboards and signs
The U.S. Department of Transportation Federal Highway Administration has released a landmark study declaring that digital billboards do not pose a safety risk to passing motorists. For those within the industry, the results of this study come as no surprise. Numerous traffic studies and analyses performed in the last couple of decades have come to a similar conclusion.

The report, actually divided into two studies, is officially titled "Driver Visual Behavior In The Presence of Commercial Electronic Variable Message Signs." For the purposes of the studies, the FHA refers to digital billboards as Commercial Electronic Variable Message Signs. The studies sought to address three specific questions:

1. Do CEVMS attract drivers’ attention away from the forward roadway and other driving­relevant stimuli?

2. Do glances to CEVMS occur that would suggest a decrease in safety?

3. Do drivers look at CEVMS more than at standard billboards? To conduct the study, the FHA tracked participant’s eye movements with an eye­tracking camera device mounted in the vehicle. This device was able to track the driver’s eyeball movement and determine if the driver was looking ahead at the roadway or off to the side of the roadway at a static bil board or CEVMS.

Appendix 7, Page 1 of 2

10.1 p. 6 of 97
12/6/2016 Federal Highway Administration study confirms safety of digital billboards and signs | Digital Signage Today http://www.digitalsignagetoday.com/blogs/federal­highway­administration­study­confirms­safety­of­digital­billboards­and­signs/?style=print 2/2 Drivers in Richmond, Va., and Reading, Pa., participated in the study, and the research concluded that drivers do indeed look at digital bil boards longer than they do at static billboards. Glance duration toward digital bil boards averaged 0.379 seconds, while glances at static billboards were at 0.335 seconds at both test sites. Both of these measurements fall far below the two­second benchmark, which would constitute a hazard, according to the National Highway Traffic Safety Administration.

In conclusion, the study states, “The results did not provide evidence indicating that CEVMS, as deployed and tested in the two selected cities, were associated with unacceptably long glances away from the road. When dwell times longer than the currently accepted threshold of 2,000 ms [milliseconds] occurred, the road ahead was still in the driver’s field of view. This was the case for both CEVMS and standard billboards.” This peer­reviewed study should help put to rest concerns that digital bil boards, and other outdoor digital signs, pose a hazard to passing motorists. The study will also help pave the way for communities to bring this powerful outdoor advertising medium to their communities, benefiting not just local operators and advertisers but the entire local economy as well.

Topics: Advertising, Digital Billboards, DOOH Advertising, LED Signs, Trends / Statistics Darrin Friskney / Darrin Friskney is director of Danville, Illinois­based Watchfire Signs, which has been manufacturing outdoor electric signs since 1932. He can be reached at [email protected]. www
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Appendix 7, Page 2 of 2

10.1 p. 69 of 97
12/6/2016 The Hunt For Distractions Leads To Inside The Vehicle 1 Billboard Insider

LIND MARK

OUTDOOR MEDIA
has a«~ IIi red

NEWMAN OUTDOOR

ADVERTISING
NE.W MEXICO
The und~ned acted as, e:.cdu$ive. br()ker k'llhi$
b:ans:action amd assid~ i1111he negoliationl!
Kalil & Co., Inc.

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Tuesday, December 6, 2016
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The Hunt For Distractions Leads To Inside The
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May 4, 2016 1:05am · Comments Off on The Hunt For Distractions Leads To Inside The Vehicle Views: 182 http://bi II boardi nsider.com/the-hunt-for -districtions-leads-to-insider -the-vehicle/ 1/9

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12/6/2016 The Hunt For Distractions Leads To Inside The Vehicle 1 Billboard Insider By Ken Klein, EVP-Government Affairs, OAAA.

I ran into a policy analyst (April 27) for the huge AAA auto club based in southern California. She said two things of note:
• A California lawmaker had invited AAA to join his effort to restrict digital billboards based on safety, but AAA declined because the science didn't show a problem
• I should read AAA's latest distraction report from its Foundation for Traffic Safety (based in Washington, DC)
I did. It's not about signs. The latest AAA report is about distraction inside the vehicle.

In-vehicle information systems (IVIS) create "moderate to high level cognitive workload" for drivers, said this research, conducted by experts at University of Utah. Further:
• Practice does not eliminate interference caused by in-car info systems • Older drivers have more trouble figuring out in-car gadgets compared to younger drivers • After drivers interact with in-car info systems, it takes 27 seconds to return to normal levels of performance. "At 25 MPH, drivers would have traveled more than three football fields in this interval." Thank you, AAA policy analyst.

The AAA safety study reminded me what Peter said about distraction a few days ago: Billboards aren't the problem.
http://bi II boardi nsider.com/the-hunt-for -districtions-leads-to-insider -the-vehicle/ 2/9

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12/6/2016 The Hunt For Distractions Leads To Inside The Vehicle 1 Billboard Insider is Congressman Peter DeFazio (D-OR), the top Democrat on the House Transportation & Infrastructure Committee.

Like the AAA motor club, the congressman is worried about information overload inside the vehicle, with more gizmos on the way.

DeFazio's home-state DOT (Oregon Department of Transportation) wants to "change cultural norms when it comes to distracted driving."
When Oregon's Transportation Director Matt Garrett says "cultural norms," he means driver behavior inside the vehicle.

Oregon commissioned new research that says:
• Three of four Oregon drivers admitted to driving while distracted, "mostly by using a cell phone." • As passengers, more than eight of 10 feel uncomfortable riding with a driver who is distracted. But nearly half of those surveyed (by Oregon State University) "admitted to driving while distracted with passengers in the vehicle."
• A distracted-driver crash occurred every 2.5 hours, according to state data.

Driving into Portland (OR), I saw another example of government using billboards on behalf of safety. http://bi II boardi nsider.com/the-hunt-for -districtions-leads-to-insider -the-vehicle/ 3/9

10.1 p. 692 of 947
12/6/2016 The Hunt For Distractions Leads To Inside The Vehicle 1 Billboard Insider The kids-buckle-up message- on a digital bulletin- was posted by the National Highway Traffic Safety Administration (NHTSA).

When we hear terms like "distraction" and "changing cultural norms," remember these basics:
• Billboards helped change culture norms, for safety, by increasing seatbelt usage and making impaired driving un-cool
• Serious, respected safety advocates like the AAA's Foundation for Traffic Safety are focused on distraction inside the vehicle
• State and federal research shows that digital billboards are not distracting Paid Advertisement
http://bi II boardi nsider.com/the-hunt-for -districtions-leads-to-insider -the-vehicle/ 4/9

10.1 p. 693 of 947
12/6/2016

JUGGERNAUT
BILLBOARDS, fCqUad
OU"'!DOOR ASSET:S
in

ARIZONA

REAGAN OUTDOOR
ADVERTI1SING
Tt. u!lde~rwd a~;t.d H ~ bro t1 i5 lr~oal ~~~~~ l!l!l!l!l'.ell in 1r1e negol~ Kalil & Co., Inc. :s&o N. !ira1 fltd , Sm Qlo 'TJ;a:,o:n, -~71i+ liZ!l~ID!o:l Share this:

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The Hunt For Distractions Leads To Inside The Vehicle 1 Billboard Insider Australian Research Builds The Case:

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July 6, 2016
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In "Digital Signs"
Author: billboardinsiderDave Westburg started billboard insider in September 2015 to provide a source of daily news and analysis for the outdoor business. He writes about what interests him as an outdoor advertising owner, lender and investor. You can reach Dave at [email protected] or 206-910-1283 . •
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12/6/2016 The Hunt For Distractions Leads To Inside The Vehicle 1 Billboard Insider

FORMETCO
INPUSfRY FIRSf!~
New Standard
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(SOOJ S67- 169-82 • www.formetco.com.
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12/6/2016 WAC 468­66­050: Sign classifications and specific provisions. http://apps.leg.wa.gov/WAC/default.aspx?cite=468­66­050 1/6 Signs shall be classified and restricted to the provisions following:
(1) Type 1 ­ Directional or other official signs and notices. Directional or other official signs and notices may be erected and maintained on private property or public property, other than state highway right of way, for the purposes of carrying out an official duty or responsibility. The signs may only be installed by public offices or public agencies within their territorial or zoning jurisdiction and shall follow federal, state, or local law.
(a) Type 1(a) ­ Directional sign. A directional sign may only be installed in accordance with the provisions following:
(i) Publicly or privately owned places ­ Directional signs for publicly or privately owned places that feature natural phenomena; historical, cultural, scientific, or educational opportunities; areas of scenic beauty, or outdoor recreation areas:
• Publicly owned places ­ Directional signs for public places owned or operated by federal, state, or local government, or their agencies;
• Privately owned places ­ Directional signs for nonprofit privately owned places that feature scenic attractions. The attractions must be nationally or regionally known, or of outstanding interest to travelers. (ii) A sign message shall be limited to identification of the activity or attraction and directional information. Directional information is limited to that which helps the motorist locate the activity, such as providing mileage to the activity, highway route or exit numbers. (iii) Descriptive words, phrases, and photographic or pictorial representations of the activity or attraction are prohibited.
(iv) Type 1(a) signs shall not exceed twenty feet in length, width, or height, or one hundred fifty square feet in area, including border and trim but excluding supports. (v) The department must approve the proposed installation location. (vi) Along the interstate system and other limited access highways having grade separations (interchanges), a sign shall not be located within two thousand feet of an interchange or rest area, measured from the ramp physical gore, or within two thousand feet of a parkland or scenic area. (vii) Type 1(a) signs shall not be spaced closer than one mile apart. (viii) Visible to a state route approaching an activity or attraction, a maximum of three signs per direction of travel are allowed for each activity or attraction. (ix) Type 1(a) signs located along the interstate system shall be within seventy­five air miles of the activity or attraction.
(x) Type 1(a) signs located along the primary and scenic systems shall be within fifty air miles of the activity or attraction.
(b) Type 1(b) ­ Official sign. An official sign may be installed subject to the provisions following:
(i) Type 1(b) signs may only be erected and maintained by public offices or public agencies. (ii) Type 1(b) signs may only be located within the governing jurisdiction of the public office or public agency.
(iii) Type 1(b) signs shall follow federal, state, or local law. (iv) Type 1(b) sign message content is limited to providing information that furthers an official duty or responsibility.
(v) Type 1(b) signs shall not exceed twenty feet in length, width, or height, or one hundred fifty square feet in area, including border and trim but excluding supports. (vi) Type 1(b) signs may be historical markers authorized by federal, state, and local law. (vii) Type 1(b) signs are not regulated by the act with regard to visibility to highways, zoning requirements, number of signs, or spacing.
(c) Type 1(c) ­ Service activity sign. A service activity sign may be installed subject to the provisions following:

WAC 468­66­050
Sign classifications and specific provisions.

Appendix 9, Page 1 of 6

10.1 p. 699 of 947
12/6/2016 WAC 468­66­050: Sign classifications and specific provisions. http://apps.leg.wa.gov/WAC/default.aspx?cite=468­66­050 2/6 (i) Type 1(c) signs shall contain only the name of a nonprofit organization, its address, and the time of its meeting or service.
(ii) Type 1(c) signs shall not exceed eight square feet in area. (iii) Type 1(c) signs are not regulated by the act with regard to visibility to highways, zoning requirements, number of signs, or spacing.
(2) Type 2 ­ For sale or lease sign. A Type 2 sign may only advertise the sale or lease of the parcel of real property upon which the sign is located. The name of the owner of the property offered for sale or lease, or the owner's agent and phone number shall not be displayed more conspicuously than the words "for sale" or "for lease." No other message may be displayed on the sign. (a) Type 2 signs shall not exceed twenty feet in length, width, or height, or one hundred fifty square feet in area, including border and trim but excluding supports. (b) Not more than one Type 2 sign may be installed that is visible to traffic proceeding in any one direction on an interstate, primary, or scenic system highway. (c) The act does not regulate Type 2 signs with regard to zoning requirements or spacing. (3) Type 3 ­ On­premise signs.
(a) Type 3(a) ­ On­premise sign. A Type 3(a) on­premise sign may only advertise an activity conducted on the property upon which the sign is located.
(i) A Type 3(a) on­premise sign shall be limited to advertising the business or the owner, or the products or services offered on the property. A sign consisting mainly of a brand name, trade name, product or service incidental to the main products or services offered on the property, or a sign bringing rental income to the property, is not an on­premise sign. (ii) A Type 3(a) on­premise sign more than fifty feet from the advertised activity may not exceed twenty feet in length, width, or height, or one hundred fifty square feet in area, including border and trim but excluding supports. The act does not regulate the size of Type 3(a) on­premise signs located within fifty feet of the advertised activity.
(iii) A Type 3(a) on­premise sign located at a shopping center, mall, or business combination is not authorized more than fifty feet from the individual activity it advertises, unless it is installed together with a Type (3)(b) business complex on­premise sign as described in (b)(i) of this subsection. (b) Type 3(b) ­ Business complex on­premise sign. A Type 3(b) business complex on­premise sign may display the name of a shopping center, mall, or business combination. (i) Where a business complex erects a Type 3(b) on­premise sign, the sign structure may display additional individual business signs identifying each of the businesses conducted on the premises. A Type 3(b) on­premise sign structure may also have attached a display area, such as a manually changeable copy panel, reader board, or electronically changeable message center, for advertising on­premise activities and/or presenting public service information. (ii) Type 3(b) on­premise signs are not regulated by the act with regard to size. Any Type 3(a) onpremise sign and any display area, installed together with a Type 3(b) on­premise sign, may not exceed twenty feet in length, width, or height, or one hundred fifty square feet in area, including border and trim. (c) Type 3(c) ­ Future site on­premise sign. A Type 3(c) future site on­premise sign may only display the name of a business activity, or other activity of interest to motorists, planned for the property upon which the sign is located and the anticipated opening date of such activity. (i) The owner, or owner's representative, shall by letter notify the department at least thirty days prior to the installation of the proposed Type 3(c) future site on­premise sign. Said notice shall include the location, sign message, and installation date.
(ii) Type 3(c) future site on­premise signs may remain until the business activity is operational, but shall not exceed one year from the planned installation date. The sign must be removed at the end of one year after the planned installation date if the business activity is not yet operational. (iii) Type 3(c) future site on­premise signs shall not exceed twenty feet in length, width, or height, or one hundred fifty square feet in area.
(d) Type 3(d) ­ Temporary political campaign sign. A Type 3(d) temporary political campaign sign may express a property owner's endorsement of a political candidate or ballot issue.

Appendix 9, Page 2 of 6

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12/6/2016 WAC 468­66­050: Sign classifications and specific provisions. http://apps.leg.wa.gov/WAC/default.aspx?cite=468­66­050 3/6 (i) Type 3(d) temporary political campaign signs are limited to a maximum size of thirty­two square feet. (ii) Type 3(d) temporary political campaign signs must be removed within ten days after an election.

After primary elections, temporary political campaign signs endorsing a successful candidate may remain up to ten days after the succeeding general election.
(e) Not more than one Type 3(a) or 3(b) sign, visible to traffic proceeding in any one direction on an interstate system highway; on a primary system highway outside an incorporated city or town or commercial or industrial area; or on a scenic system highway, may be permitted more than fifty feet from the advertised activity. Not more than one Type 3(c) sign may be installed visible to traffic proceeding in any one direction on an interstate system highway; on a primary system highway outside an incorporated city or town or commercial or industrial area; or on a scenic system highway. The act does not regulate Type 3(d) signs with regard to the number of signs installed, visibility from highways, zoning requirements, or spacing.
(i) For Type 3(a) on­premise signs, the fifty­foot distance from the advertised activity shall be measured from the sign to the nearest portion of that building, storage, or other structure or processing area, which is the most regularly used and essential to the conduct of the advertised activity as determined solely by the department.
(ii) For Type 3(b) on­premise signs, the fifty­foot distance from the advertised activity may be measured in the same manner as for Type 3(a) on­premise signs, or may be measured fifty feet from the nearest portion of a combined parking area.
(f) A Type 3(a) or 3(b) on­premise sign more than fifty feet from the advertised activity shall not be erected or maintained at a greater distance from the advertised activity than one of the options following, as applicable, selected by the owner of the business being advertised:
(i) One hundred fifty feet measured along the edge of the protected highway from the nearest edge of the main entrance to the activity advertised;
(ii) One hundred fifty feet from any outside wall of the main building of the advertised activity; or (iii) Fifty feet from any outside edge of a regularly used parking lot maintained by, and contiguous to, the advertised activity.
(g) Electronic signs may be used only as Type 3 on­premise signs and/or to present public service information, as follows:
(i) Advertising messages on electronic signboards may contain words, phrases, sentences, symbols, trademarks, and logos. A single message or a message segment must have a static display time of at least two seconds after moving onto the signboard, with all segments of the total message to be displayed within ten seconds. A one­segment message may remain static on the signboard with no duration limit. (ii) Displays may travel horizontally or scroll vertically onto electronic signboards, but must hold in a static position for two seconds after completing the travel or scroll. (iii) Displays shall not appear to flash, undulate, or pulse, or portray explosions, fireworks, flashes of light, or blinking or chasing lights. Displays shall not appear to move toward or away from the viewer, expand or contract, bounce, rotate, spin, twist, or otherwise portray graphics or animation as it moves onto, is displayed on, or leaves the signboard.
(iv) Electronic signs requiring more than four seconds to change from one single message display to another shall be turned off during the change interval. (v) No electronic sign lamp may be illuminated to a degree of brightness that is greater than necessary for adequate visibility. In no case may the brightness exceed 8,000 nits or equivalent candelas during daylight hours, or 1,000 nits or equivalent candelas between dusk and dawn. Signs found to be too bright shall be adjusted as directed by the department.
(h) The act does not regulate Type 3(a), 3(b), 3(c), and 3(d) on­premise signs located along primary system highways inside an incorporated city or town or a commercial or industrial area. (4) Type 4 ­ Off­premise signs; and
(5) Type 5 ­ Off­premise signs. Type 4 off­premise signs are distinguishable from Type 5 off­premise signs only by message content. Type 4 off­premise sign messages are those that do not qualify as Type 5 sign messages described in (b) of this subsection.

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12/6/2016 WAC 468­66­050: Sign classifications and specific provisions. http://apps.leg.wa.gov/WAC/default.aspx?cite=468­66­050 4/6 (a) A Type 4 sign shall be located within twelve air miles of the advertised activity. A Type 4 sign that displays any trade name which refers to or identifies any service rendered or product sold, used, or otherwise handled more than twelve air miles from such sign shall not be permitted unless the name of the advertised activity, which is within twelve air miles of such sign, is displayed as conspicuously as such trade name.
(b) A Type 5 sign displays a message of specific interest to the traveling public. On Type 5 signs, only information about public places operated by federal, state, or local governments, natural phenomena, historic sites, areas of natural scenic beauty or outdoor recreation, and places for lodging, camping, eating, and vehicle service and repair is deemed to be in the specific interest of the traveling public. A trade name is authorized on a Type 5 sign only if it identifies or represents a place of specific interest to the traveling public; or identifies vehicle service, equipment, parts, accessories, fuels, oils, or lubricants being offered for sale at such place. The display of any other trade name is not permitted on Type 5 signs. (c) Type 4 and Type 5 signs are restricted in size to the following:
(i) Visible to interstate highways, signs may not exceed twenty feet in length, width, or height, or one hundred fifty square feet in area including border and trim but excluding supports. (ii) Visible to primary highways, the maximum area for any one sign, except as provided in (c)(iii) of this subsection, shall be six hundred seventy­two square feet with a twenty­five­foot maximum height and a fifty­foot maximum length, including the border and trim but excluding the base or apron, supports, and structural members. Cut­outs and extensions may add up to twenty percent of additional sign area. (iii) Each sign face of a double­faced (flanking and side­by­side) sign may not exceed three hundred twenty­five square feet.
(d) The spacing of Type 4 and Type 5 signs along interstate highways and visible to traffic traveling in one direction shall be restricted as follows:
(i) Type 4 and Type 5 signs visible to traffic approaching an intersection of the main­traveled way of an interstate highway and an exit roadway may not exceed the number following:

Distance from
intersection
Number of signs
0 ­ 2 miles. . . . 0
2 ­ 5 miles. . . . 6
More than 5 miles. . . . Average of one sign
per mile
The specified distances shall be measured to the nearest point of intersection of the traveled way of the exit roadway and the main­traveled way of the interstate highway. (ii) Not more than two such signs may be permitted within any mile distance and no such signs may be permitted less than one thousand feet apart.
(iii) Type 1, 2, and 3 signs shall not be considered in determining compliance with the above spacing requirements.
(iv) Type 4 and Type 5 signs may not be permitted adjacent to interstate highway right of way within the limits of an interchange, including its entrance or exit roadways. (v) Type 4 and Type 5 signs visible to interstate highway traffic, which has passed an entrance roadway, may not be permitted within one thousand feet of the point where the entrance roadway intersects with the interstate highway. The distance shall be measured from the intersection point farthest from the preceding interchange.
(vi) Not more than one Type 4 or Type 5 sign, advertising activities conducted as a single enterprise or giving information about a single place, may be erected or maintained in such manner as to be visible to traffic moving in any one direction on any one interstate highway. (e) The spacing of Type 4 and Type 5 signs visible to primary highways shall be restricted as follows:
(i) On limited access highways, no two signs may be spaced less than one thousand feet apart, and no sign may be located within three thousand feet of the center of a grade separated interchange, a safety rest area, or an information center, or within one thousand feet of an at­grade intersection. Not more than Appendix 9, Page 4 of 6

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12/6/2016 WAC 468­66­050: Sign classifications and specific provisions. http://apps.leg.wa.gov/WAC/default.aspx?cite=468­66­050 5/6 a total of five sign structures may be permitted per mile, including both sides of the highway. Double­faced (flanking or side­by­side) signs are prohibited.
(ii) On nonlimited access highways inside the boundaries of incorporated cities or towns, not more than a total of four sign structures, including both sides of the highway, may be permitted within a space of six hundred sixty feet or between platted intersecting streets or highways. There shall also be a minimum of one hundred feet between sign structures, including both sides of the highway. (iii) On nonlimited access highways outside the boundaries of incorporated cities or towns, the minimum spacing between sign structures on each side of the highway shall be five hundred feet. (iv) Back­to­back signs and V­type signs shall be considered one sign structure. (f) The minimum space between sign structures located on the same side of the highway shall be measured between two points along the nearest edge of pavement. The measurement points are established at the origin of lines extending perpendicular from the edge of pavement to the apparent centers of the sign structures.
(g) The minimum space between sign structures located on opposite sides of the highway shall be measured in the applicable manner following:
(i) Along tangent sections, sign spacing is measured between two points along the edge of pavement in the increasing milepost direction of travel. One measurement point is established at the origin of a line extending perpendicular from the edge of pavement to the apparent center of the sign structure located in the increasing direction of travel. The second measurement point is established at the origin of a line extending perpendicular from the edge of pavement to the apparent center of the sign structure located in the decreasing direction of travel.
(ii) Along horizontal curve sections, sign spacing is measured between two points on the edge of pavement along the arc on the inside of the curve. One measurement point is established at the origin of a line extending perpendicular from the edge of pavement to the apparent center of the sign structure located along the highway in the increasing milepost direction of travel. The second measurement point is established at the origin of a line extending perpendicular from the edge of pavement to the apparent center of the sign structure located along the highway in the decreasing milepost direction of travel. (h) Type 1, 2, 3, 7, and 8 signs shall not be considered in determining compliance with the above spacing requirements.
(i) Type 4 and Type 5 signs may be permitted within commercial and industrial areas adjacent to interstate and primary highways, provided that spacing is available as specified in (d) and (e) of this subsection.
(j) Type 4 and Type 5 signs are not permitted visible to the scenic system. (k) Pursuant to the 1991 Intermodal Surface Transportation Efficiency Act, a National Scenic Byway Demonstration Project is established on State Route 101, from the Astoria/Megler Bridge to Fowler Street in Raymond and from the junction with State Route 109 near Queets to the junction with State Route 5 near Olympia. No new Type 4 or Type 5 signs may be permitted within the limits of this project. Type 4 or Type 5 signs installed prior to July 25, 1993, may remain as nonconforming signs. (6) Type 6 ­ Landmark signs.
(a) Type 6 signs shall have been lawfully in existence on October 22, 1965, and have historic or artistic significance, including signs on farm structures or natural surfaces. (b) Historic or artistic significance shall be determined by the department and approved by the Federal Highway Administration.
(c) Within the limits of the National Scenic Byway Demonstration Project identified in (5)(h) of this subsection, Type 6 signs may remain as nonconforming signs. (7) Type 7 ­ Public service signs located on school bus stop shelters. Type 7 signs may display safety slogans or messages, and identify the donor, sponsor, or contributor of a school bus stop shelter. No other message(s) may be displayed.
(a) Safety slogans or messages must occupy at least sixty percent of the sign area, and appear more predominant than the name of the donor, sponsor, or contributor.

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12/6/2016 WAC 468­66­050: Sign classifications and specific provisions. http://apps.leg.wa.gov/WAC/default.aspx?cite=468­66­050 6/6 (b) Type 7 signs may be located on school bus stop shelters only as authorized or approved by state law or regulation, or city or county ordinance or resolution, and may be installed visible to primary and scenic system highways.
(c) Type 7 signs may not exceed thirty­two square feet. A sign shall not protrude above the roofline or beyond the sides of the school bus stop shelter.
(d) Not more than one sign on each shelter may face in any one direction. (e) The act does not regulate Type 7 signs with regard to zoning requirements or spacing between Type 7 signs and other types of signs.
(8) Type 8 ­ Temporary agricultural directional signs. Type 8 signs provide directional information to places of business having seasonal agricultural products for sale. (a) Type 8 signs may display the business name, product(s) for sale, travel direction, and travel distance to the nearest mile from the state highway to the business. (b) Type 8 signs may not exceed thirty­two square feet. (c) There shall be at least three hundred feet spacing between Type 8 signs. (d) Not more than two signs advertising a place of temporary agricultural business may be installed visible to traffic proceeding in one direction of travel on any one state route. (e) Premises on which the seasonal agricultural products are sold must be within fifteen air miles of the state highway.
(f) Type 8 signs may be posted only during the period of time the seasonal agricultural product(s) is being sold.
(g) Any necessary supplemental follow­through signs along city streets or county roads must be installed before the Type 8 signs may be installed visible to the state highway. (h) The signs may be installed visible to primary system highways outside incorporated cities or towns, and scenic system highways.
(i) Type 8 signs may not be installed visible to interstate highways, including interstate highways that are also part of the scenic system, or visible to primary system highways within incorporated cities or towns.
(j) The act does not regulate Type 8 signs with regard to zoning requirements or spacing between Type 8 signs and other types of signs.
[Statutory Authority: RCW 47.42.120. WSR 14­22­055, § 468­66­050, filed 10/30/14, effective 11/30/14.

Statutory Authority: Chapter 47.42 RCW and Title 23 Code of Federal Regulations part 750. WSR 06­03­ 005, § 468­66­050, filed 1/4/06, effective 2/4/06. Statutory Authority: Chapter 34.05 RCW and RCW

47.42.060. WSR 99­24­083 (Order 195), § 468­66­050, filed 11/30/99, effective 12/31/99. Statutory Authority: Chapter 47.42 RCW and RCW 47.01.101(5). WSR 94­12­049 (Order 144), § 468­66­050, filed 5/27/94, effective 6/27/94. Statutory Authority: RCW 47.42.060. WSR 88­22­002 (Order 116), § 468­66­ 050, filed 10/20/88. Statutory Authority: Chapter 47.42 RCW. WSR 85­17­012 (Order 96), § 468­66­050, filed 8/12/85. Statutory Authority: RCW 47.42.060. WSR 80­05­055 (Order 55), § 468­66­050, filed 4/18/80. Statutory Authority: 1977 ex.s. c 151. WSR 79­01­033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468­66­050, filed 12/20/78. Formerly WAC 252­40­040.] Appendix 9, Page 6 of 6

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016 Message Points
 Illumination is fundamental to effective outdoor advertising, a round-the-clock mass communication medium
 Unreasonable limits on lighting hurt the traveling public, advertisers and public safety
 Billboard lighting is a tiny fraction of the overall ambient light level In a mobile society, outdoor lighting is an essential part of commerce and security.

Anti-lighting proponents seek to damage the effectiveness of illuminated outdoor advertising by placing arbitrary lighting limits. Restrictions on lighting undermine the business of outdoor advertising by requiring costly retro-fitting of sign structures or elimination of lighting fixtures.

Lighting on outdoor advertising structures is a tiny fraction of the overall ambient light level. A previous report by Lighting Sciences, Inc. concludes that most sky glow – some 96 percent – is produced by sources other than billboards. A summary of this report is enclosed as a reference.

Plus, a new generation of halogen lights is more efficient, requiring only two fixtures to illuminate a standard bulletin (14-by-48 foot billboard) rather than three or four fixtures. These new fixtures also direct the light more evenly onto the face of the bulletins, reducing ambient light spillage around a bulletin edges and also cutting energy consumption.

Digital Billboards
Based on a March, 2008, report by Lighting Sciences, Inc, Phoenix, AZ, the OAAA has recommended brightness criteria for digital billboards, suggesting that light produced by digital billboard structures should not exceed 0.3 footcandles over ambient light levels. Eight states have adopted this standard. Using the industry standard of 0.3 footcandles over ambient light levels, provides reasonable, objective method to a achieve a site specific lighting requirement for digital billboards.

Issue Briefs
Outdoor Lighting and Dark Skies
Appendix 10, Page 1 of 11

10.1 p. 705 of 947
Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016 States with 0.3 foot candle criteria include:
 Colorado: 0.3 foot candles over ambient lighting levels*  Massachusetts: 0.3 foot candles over ambient lighting levels  Michigan: 0.3 foot candles over ambient lighting levels  New Mexico: 0.3 foot candles over ambient lighting levels  Oregon: 0.3 foot candles over ambient lighting levels  Puerto Rico: 0.3 foot candles over ambient lighting levels  Tennessee: 0.3 foot candles over ambient lighting levels  Wyoming: 0.3 foot candles over ambient lighting levels *(includes a back-up measurement of 300 Nits at night)
States with Candelas/Square meter (Nits) criteria or have proposed criteria include:
 West Virginia: candelas per square foot (note, not a nit), as follows:

Candelas/Sq Ft Day Night
Red 300 100
Green 600 200
Amber 450 150
Blue 800 350
White 550 50
All Color 650 250
 Arizona: 342 nits at night
 Missouri: 300 nits at night
States with Custom Criteria:
 Delaware: no maximum brightness level, but sign must adjust to ambient light changes
 Illinois: No brightness standards, but a letter from the manufacturer discussing the malfunction mechanism and hold time is required  Mississippi: Sign must have “capability to adjust its intensity in response to ambient lighting conditions”
Light equals security
Illumination enhances public safety and security. Lack of adequate lighting can compromise safety, promote criminal activity, damage consumer confidence, and depress nighttime commerce.

State legislatures have rejected lighting restrictions
Numerous law-making bodies have considered, but rejected these proposals. (Michigan, Montana, Oregon, Washington, and Wyoming).

Appendix 10, Page 2 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016 In 1999, New Mexico enacted the Night Sky Protection Act, which sought to strike a balance of preserving and enhancing the state’s dark sky while promoting safety, security, and conserving energy. The Act exempts outdoor lighting fixtures on advertisement signs on interstates and federal-aid primary highways, as well as other lighting such as navigational lighting systems at airports.

Appendix 10, Page 3 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016 References
OAAA Recommended Brightness Guidelines, based on a report from Dr. Ian Lewin, Principle, Lighting Sciences Incorporated, Scottsdale, AZ, March, 2008 “General Outdoor Advertising Lighting Guidelines,” Illuminating Engineering Society of North America (IESNA), 2003
“A Preliminary Estimation of the Impact of Billboard Lighting on Sky Glow,” Executive Summary, Ian Lewin, Ph.D, FIES, L.C., Lighting Sciences Inc., Phoenix, AZ

New Mexico Night Sky Protection Act, 1999

Appendix 10, Page 4 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016 OAAA Recommended Brightness Guidelines
A. OAAA Guidelines: The OAAA recommended brightness criteria for digital billboards is as follows:
 Light produced by a digital billboard should not exceed 0.3 Footcandles over ambient light levels.
 Measurement should be taken utilizing a Footcandle meter from the following distances (perpendicular to the face of the digital billboard):

Posters: 150 feet 10'6x36 Bulletins: 200 feet
14x48 Bulletins: 250 feet 20x60 Bulletins: 350 feet
The measurement distances are based on the average minimum viewing distances for each type of billboard.
 Digital billboards must have automatic dimming capability.

B. Basis for the Guidelines. These guidelines are based on recommendations by Dr.

Ian Lewin of Lighting Sciences Inc. (Scottsdale, AZ) in a March, 2008 report to the OAAA. Dr. Lewin developed brightness criteria to meet the following general guidelines:
 Appropriately Legible Copy. Digital advertising copy is appropriately legible and not overly bright.
 Simplicity. Provide a guideline that can be easily implemented and enforced.

Measurement of the ambient light level of the sign on and off is conducted by a footcandle meter. If the difference in measurements is less than 0.3 footcandles, the digital billboard is in compliance.
 Established Guidelines. The criteria is based on established scientific methodology and established industry standards from the Illuminating Engineering Society of North America (IESNA) publication TM-11-00 “light trespass” theory which is an accepted standard in the lighting industry.  Flexibility. Ensure proper brightness levels in a variety of lighting environments.

C. Additional Issues/Clarification

 Automatic Dimming Capability. A digital billboard must be able to automatically adjust as ambient light levels change. An automatic light sensing device (such as photocell or similar technology) should be utilized for adjusting the digital billboard’s brightness. Sunset-sunrise tables and manual methods of controlling brightness are not acceptable as a primary means of controlling brightness.  Brightness Measurement Methodology. The brightness standard requires the use of a Footcandle meter (also known as a “Lux meter”; ~$100-1000). A Footcandle meter measures the amount of light arriving at the meter (illuminance), as opposed to an absolute measurement of the amount of light emanating from a light source or light sources (luminance). A Footcandle is a measure of lumens (light rays) that fall on one square foot area; Lux is the metric equivalent of a Footcandle.

Appendix 10, Page 5 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016  In contrast, a Candela Meter / NIT Gun (~$3,000) measures the amount of light emanating from a specific light source (luminance). A NIT gun measures candelas (a measure of luminance or brightness) per meter squared (also known as “NITS”), which is a measure of the brightness emanating from a specific light source. It excludes ambient light (which may include light from many sources) from the measurement. Standard NIT levels and/or utilization of a NIT gun are not a part of the OAAA recommended brightness guideline.

General Outdoor Advertising Lighting Guidelines referenced by the Illuminating Engineering Society of North America (IESNA)

A billboard can be illuminated either by fixtures located in front of the sign (front lit), from behind the sign (back lit) or from fixtures mounted away from the sign (remote).

Each mounting location will present different issues:

Front lit / Top Mount
 May increase installation cost due to need for additional structure elements.
 Orientation of the fixture may create veiling glare and direct glare to the viewer.
 May possibly reduce the sky glow.
 Increased maintenance cost.
 Location interferes with changing of the sign message.  Interferes with use of embellishments or cutouts.
 Daytime shadowing will detract from the readability of the sign.

Front lit / Bottom Mount
 Ability to mount fixtures to catwalks eases maintenance.  Properly designed optical system will minimize sky glow.  Does not interfere with changing of the sign message.  Does not interfere with the use of embellishments.
 No daytime shadowing.
 Light source less likely to create veiling glare.

Remote
 Light source able to cover larger sign surface.
 Maintenance may be easier when mounted on the ground.  May require additional wiring and installation cost.
 May contribute to sky glow.

Back lit
 Requires significantly more luminaires to illuminate the sign.  Depends on the transmittance characteristics of the vinyl.  Increase maintenance and installation cost.

Appendix 10, Page 6 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016  Cost to produce the translucent vinyl media for backlight signs may be more expensive than traditional methods.
 Lamp sources used are typically less efficient and consume more energy.
 Sign face brightness depends on the transmittance characteristics of the vinyl or other face material.

The vast majority of outdoor advertising signs use a front-lit configuration. The proper position of the luminaire (either top or bottom) is greatly determined by the associated costs of owning and operating the billboard. The current standard light fixture for a billboard needs to be mounted 4 to 6 feet out and 1 to 3 feet above or below the display face and is designed to be mounted on 1-1/4” rigid conduit. (The differences in distance have to do with the size of the display area.) The use of catwalks to provide safety to the crew responsible to perform placement and removal of advertisements affords the billboard company a secure structural mounting location. These catwalks are, by need, 3 to 4 feet wide. The fixture is mounted just below the catwalk so that it does not interfere with the worker’s movement in front of the billboard. This arrangement also serves to further support and brace the luminaires to hold them in proper positioning. All electrical gear is integral to the fixture thereby providing for ease of installation and maintenance.

The following points explain further the pros/cons of mounting of fixtures on signs.

The current design of the billboard structure does not provide a similar mounting method if the fixtures were to be mounted on top of the billboard.

When the fixtures are placed on top of the display area a new set of engineering issues are created. Since there is no catwalk above the sign the light fixtures must be supported by another means. However the conduit is mounted to the structure it must be able to support the weight of the fixture on an arm that is long enough to position the fixture in its proper location (above and in front of the sign face). In this application the amount of weight placed on the base of the conduit would run from 192 lbs to 288 lbs. The inherent vibration of the structure from any wind movement will increase substantially the deflection of the fixture creating a “live load.” This will multiply the load on the conduit by a factor of 50%. This increase in weight and stress will accelerate the metal fatigue and may more frequently result in failure.

Another issue that must be taken into consideration when placing luminaires is the use of embellishments. The embellishment, or cutout, most always used at the top of the billboard, may extend the graphic surface up to an additional 4 to 5 feet. The use of top mounted lights will be in direct conflict whenever trying to use embellishments.

The location of the luminaires will also impact the ability of the outdoor company to change the messages on the sign. Traditionally, the sign message is “rolled” across the sign face. The ability of the installers to Appendix 10, Page 7 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016 perform this task quickly and safely (on signs that could be up to 150’ in the air) will be hindered if fixtures and/or additional hardware are positioned at the top of the sign.

The presence of overhead lighting will also create a shadow on the sign during daylight hours. This shadowing will detract from the message and therefore diminish the economic value the sign offers to the customer.

A top mounted fixture will also increase costs of operation due to servicing issues. The fixture can either be installed on a retractable arm or installed on a permanent basis. The first method increases installation costs substantially while the second suffers from the challenges mentioned in the switching of the message and the proper support of the luminaires. In some instances, such as a remote location that does not provide access, a bucket truck may not be able to gain access to the permanent top mount fixture. Changing any of the components becomes a safety issue. The traditional location of the fixture allows for maintenance to be performed without increase risk to the installer as well as no additional costs in equipment by the owner. Any other method will increase operating costs and therefore cost to the consumer.

Types of luminaires
When choosing the type of fixture to use for billboard lighting it is important to understand the performance features of the type of fixtures available. The ability to control light is accomplished by the types of reflectors and refractors used.

Appendix 10, Page 8 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016 A Preliminary Estimation of the Impact of Billboard Lighting on Sky Glow
(Executive Summary), Lighting Sciences Inc., Phoenix, AZ

By Ian Lewin, Ph.D, FIES L.C.

Sky glow is caused by lighting at night entering the atmosphere and being scattered by airborne particles. Sky glow may result from the use of lighting fixtures that emit light above a horizontal plane so that it enters the atmosphere directly. The effect also is caused by light reflecting from lighted objects, such as road surface or a billboard.

This study has evaluated the amount of light entering the atmosphere from a variety of lighting installations. Measured in “sky lumens,” the results allow a comparison to be made of different lighting systems relative to sky glow. Specifically, calculations have been made to compare the sky lumens produced by a typical billboard lighting system to the sky lumens caused by roadway and parking lot lighting.

Various scenarios have been used for the roadway lighting, combining residential and major highway lighting in a typical neighborhood. Areas have been considered that consist only of roadway lighting, as well as areas that contain both roadway and parking lot lighting.

The results of the study support a conclusion that the vast majority of sky glow is a product of urban development. Even where full cut-off fixtures are used on all roadway and parking lot fixtures, and if there is an average of one billboard per square mile, over 96% of the sky glow produced per urban square mile is from those sources and not billboard lighting, for the conditions examined. For the examples considered, a single three fixture billboard lighting systems produces approximately 2 to 3 % of the sky lumens caused by roadway/parking area lighting in a typical one square mile area. For a four fixture billboard lighting system, the range becomes roughly 2.5 to 4 %. These figures can be prorated. For example, if there are two such billboards per square mile, the percentages are doubled; if there is one such billboard per two square miles, the percentages will be halved.

The exact percentages of sky glow are affected by the density of roadways/parking areas, the type of lighting fixtures used and the lighting level provided, among other factors. However, it is apparent that for the scenarios considered, the contribution of billboard lighting to sky glow is small in comparison to that from other sources of lighting. The other sources produce 96 to 98% of sky glow, compared to the 2 to 4 % produced per billboard in the example urban square mile.

Appendix 10, Page 9 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016 Highlights of the New Mexico Night Sky Protection Act
Enacted by the 1999 Legislature and signed into law by Governor Gary Johnson on April 6, 1999, the Night Sky Protection Act regulates outdoor night lighting fixtures to preserve and enhance the state’s dark sky while promoting safety, conserving energy and preserving the environment for astronomy. Outdoor lighting fixtures includes permanent or portable outdoor artificial illuminating devices such as searchlights, spot and floodlights, architectural and landscape lighting, parking lot, billboard, and street lighting. In addition to the specific provisions outlined below, the Act specifically prohibits the sale and installation of mercury vapor outdoor lighting fixtures after
January 1, 2000.

Provisions of the Night Sky Protection Act will impact night lighting as follows:

MERCURY VAPOR LIGHTING FIXTURES
No new mercury vapor outdoor lighting fixtures shall be sold or installed after January 1, 2000.

SHIELDING OF OUTDOOR LIGHT FIXTURES
All outdoor lighting fixtures installed after January 1, 2000, shall be shielded, except incandescent fixtures of one hundred fifty watts or less and other sources of seventy watts or less.

A shielded light fixture is shielded such that light rays emitted by the fixture, either directly from the lamp or indirectly from the fixture, are projected below a horizontal plane running through the lowest point on the fixture where light is emitted.

NONCONFORMING LIGHT FIXTURES
In addition to other exemptions provided in the Night Sky Protection Act, an outdoor lighting fixture not meeting these provisions shall be allowed if the fixture is extinguished by an automatic shutoff device from 11:00 p.m. to sunrise.

No outdoor recreational facility, whether public or private, shall be illuminated after 11:00 p.m. except for a national or international tournament or to conclude any recreational or sporting event or other activity conducted, which is in progress prior to 11:00 p.m. at a ballpark, outdoor amphitheater, arena or similar facility.

EXEMPTIONS
The following are exempt from the requirements of the Night Sky Protection Act:

1. An outdoor lighting fixture on advertisement signs on interstates and federal primary highways.

2. Outdoor lighting fixtures existing and legally installed prior to the effective date of the Night Sky Protection Act. However, when the existing lighting fixtures become unrepairable, their replacements are subject to all provisions of the Night Sky Protection Act.

Appendix 10, Page 10 of 11

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Outdoor Lighting and Dark Skies: An OAAA Issue Brief November 2016

3. Navigational lighting systems at airports and other lighting necessary for aircraft safety.

4. Outdoor lighting fixtures are necessary for worker safety at farms, ranches, dairies, feedlots or industrial, mining or oil and gas facilities.

The provisions of the Night Sky Protection Act are cumulative and supplemental and shall not apply within any county or municipality that, by ordinance or resolution, has adopted provisions restricting light pollution that are equal to or more stringent than the provisions of the Night Sky Protection Act.

Appendix 10, Page 11 of 11

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12/6/2016 Oregon Secretary of State Archives Division
http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 1/11 The Oregon Administrative Rules contain OARs filed through November 15, 2016 QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES? CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION DEPARTMENT OF TRANSPORTATION,
HIGHWAY DIVISION
DIVISION 60
SIGNS
734­060­0000
Outdoor Advertising Sign Application Process
(1) Application forms. An application for a sign permit under the Oregon Motorist Information Act (OMIA)  is  made  by  completing  and  submitting  the  appropriate  form,  attaching  to  the  form  all documents necessary to show the application meets the requirements of the law, and submitting the  correct  fee  to  the  Outdoor  Advertising  Sign  Program  of  the  Oregon  Department  of Transportation.  Application  forms  are  available  from  the  Outdoor  Advertising  Sign  Program.

There  are  three  different  Outdoor  Advertising  Sign  application  forms:  “Standard  Outdoor Advertising Sign Permit Application” for new permits for outdoor advertising signs that preexisted the law change on May 30, 2007, relocations and reconstructions of such permitted signs; “Digital Billboard  Outdoor  Advertising  Sign  Application”  for  digital  permits  newly  issued  under  ORS 377.710,  or  relocation  and  reconstruction  of  such  permitted  signs  and  “Application  for  Transit Bench or Shelter Sign” for signs on bus/transit benches and bus/transit shelters. The Department may deny a permit application if the applicant does not use the correct form. (2)  Copies  of  sign  laws.  The  Department  will  make  available  copies  of  all  state  sign  statutes, administrative rules, federal statutes, federal regulations, and federal­state agreements in effect.

The  Department  may  charge  for  the  copies  at  the  rate  established  by  law  for  public  records requests, and may require prepayment. The Department may also provide these documents by email, web site, or in other forms for the convenience of the public and the Department. (3)  Summary  of  regulations.  To  assist  potential  permit  applicants  and  the  general  public,  the Department  will make  available  a  summary  of  sign  permit  regulations.  The  summary  does  not bind the  Department  to  the  items  listed  or  waive  its  right  and  duty  to  enforce  all  requirements under the law.
(4) Contents of applications for Standard Outdoor Advertising Signs and Digital Billboard Outdoor Advertising Signs. To be complete the application must include the following. (a)  Application  form  Part  1:  Applicant  Information,  Sign  Specifications.  Information  must  be complete  and  accurate  for  applicant,  sign  builder,  purpose  of  application,  description, township/range/section/tax lot, highway  route number or name and side of highway, how site is marked, name and address of property owner, and why the sign will be an  “outdoor advertising sign.”  The  location  boxes  should  be  completed  to  the  best  of  applicant’s  ability  to  enable  the Department to find the site.
(b) Application form Part 2: Certification of Applicant. The application form must be  signed and dated by the  applicant,  certifying the  information  provided  by  applicant  is  accurate  and  has  not been changed after the local government certification (see section (c) below). If the applicant is a corporate or other business entity the individual signing must include their title  so as to indicate the authority to sign for the applicant.
(c) Application form Part 3: Certification of Local  Jurisdiction. After  completing Part 1, applicant must  submit  the  complete  application  to  the  local  jurisdiction  for  zoning  and  local  compliance information. The local official must complete Part 3 and, if relevant, attach a letter of explanation of local code compliance. The local official must sign and date Part 3. This section does not apply to transit signs.
(d) Fee. The fee is based on square footage as described in OAR 734­059­0100. To be complete applicant must submit the correct application fee. The Sign Program does not accept cash, debit or credit cards; checks must be made out to Oregon Department of Transportation. (e)  Written  proof  of  landowner  consent.  All  applications,  except  transit  sign  applications,  must include written proof that the landowner consents to have applicant maintain the proposed sign.

The document must be signed by the landowner and the application filed during the base term of the agreement, or during a  renewal term that is automatic or at applicant’s election. If during a renewal  period  applicant  must  certify  that  the  renewal  was  exercised  and  continues  in  effect.

Examples of acceptable documents are the land lease, land lease plus applicant’s certification as described  above,  land  lease  plus  owner’s  written  confirmation  that  an  extension  is  being exercised,  or  a  current  memo  signed  and  dated  by  land  owner  stating  that  applicant  has Appendix 11, Page 1 of 11

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http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 2/11 permission to  put the  sign  at the  specified  location. Payment  information  need  not  be  included unless it is the evidence that compensation is exchanged making it an outdoor advertising sign. (f) Business License. The applicant and the sign builder must have a current outdoor advertising sign  business  license  as  required  under  ORS  377.730.  It  is  the  responsibility  of  the  Business License  holder  who  erects  or maintains  an  outdoor  advertising  sign to  ensure that the  outdoor advertising sign, visible to a state highway, is in compliance with the OMIA. Compliance includes ensuring signs have an active state sign permit prior to placing or maintaining any message on the sign, and ensuring that the sign stays in compliance during the time that the licensee operates or maintains the sign. Violations may result in suspension or revocation of the licensee’s business license as allowed under ORS 377.730.
(g) Relocation permit application. For a relocation application, if the zoning was first commercial or  industrial  after  1/1/1973,  or  if  the  local  jurisdiction  cannot  determine  the  date,  the  applicant must submit a sketch or other document showing the site is within 750 feet of a commercial  or industrial area to comply with ORS 377.767(3).
(h) Pre­existing sign permit application. For an application for a new pre­existing sign under ORS 377.712 the following additional items are required:
(A) Complete the application form “Supplement for Pre­existing Sign Permit” and sign it before a notary public;
(B) Submit documents demonstrating each of your claims, such as a lease showing the sign was posted for compensation; and
(C)  Pursuant  to  ORS  377.712(1),  include  documentation  demonstrating  how  applicant  was ignorant of the permit requirement for outdoor advertising signs as of May 30, 2007. (5) Digital Billboard applications must also include the following information:
(a) When  being  reconstructed  or  relocated  for  the  first  time  as  a  digital  billboard  the  applicant must  provide  the  eligible  permit(s)  or  relocation  credit(s)  being  retired  pursuant  377.700  to 377.840 and OAR 734­060­0007.
(b) Whether the proposed sign is a  “Poster,”  “Bulletin,” or other sign as described in OAR 734­ 060­0007(2).
(c)  Emergency  malfunction  contact  information  including  name,  phone  number  along  with proposed response procedure to possible malfunction.
(d) Whether or not a renewable energy resource is available and being utilized. If none, then the applicant must complete the affidavit attesting that no renewable resource is available. (6) Transit Bench or Shelter Application. A transit shelter or bus bench application must provide documentation demonstrating that the  site is at an official bus or transit  stop on a  city or urban transit system route.
(7) Complete Applications.
(a)  The  Outdoor  Advertising  Sign  Program’s  mailing  address  is:  Oregon  Department  of Transportation, Right of Way Section — Sign Program,  4040 Fairview Industrial Drive SE, MS #2, Salem  OR  97302.  The  Sign  Program  receives  hand  deliveries  at  4040  Fairview  Industrial Drive  SE,  Salem  Oregon.  The  Sign  Program  receives  facsimiles  at  503­986­3625.  The  Sign Program receives electronic mail at [email protected]. (b)  The  Department  requires  original  signatures  and  original  initials  to  any  changes  on  the application  form.  Therefore  the  Department  will  not  accept  the  application  form  by  electronic transmission  (including  facsimile).  The  Department  may  accept  other  documents  by  electronic transmission. The Department will not accept any changes made verbally; all changes must be in writing.
(c)  The  Department  will  indicate  on  each  application  document  the  date  and  time  received.

Application materials received by mail will be treated as received at the time a representative of the  sign  program  physically  receives  the  program’s  mail  for  that  day.  Application  materials received  in  person,  by  fax,  or  by  electronic  transmission  will  be  treated  as  received  when  a representative of the sign program physically receives those materials. (d) The Department will only process applications that are complete. An application is complete when  the  Outdoor  Advertising  Sign  program  receives  the  signed  application  form  including  all necessary  information,  all  documents  necessary  for  issuance  of  a  permit,  and  the  correct application fee.
(A)  Within  15  calendar  days  of  receiving  an  application  the  Department  will  provide  to  the applicant  written  notice  whether  the  application  is  complete.  If  the  Department  determines  the application is complete, the notice will state the application’s priority among all pending, complete applications.
(B)  If  the  Department  determines  any  information  provided  is  incorrect,  the  application  is  not complete.  The  Department  may  rescind  a  notice  of  completeness  and  priority  date  if  it  later Appendix 11, Page 2 of 11

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http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 3/11 determines that information provided by applicant is not correct. (e)  If  an  application  is  not  complete,  within  15  calendar  days  of  receiving  the  application  the Department  will  return  the  entire  application  with  written  instructions  on  what  is  needed  to complete  it.  The  applicant  must  initial  any  subsequent  changes  and,  if  the  changes  are substantive to the local jurisdiction, must obtain a new certification from the local jurisdiction. (A)  If  an  application  form  is  complete  but  the  application  is  considered  incomplete  due  to insufficient  supporting  documents  or  failure  to  submit  the  fee,  the  Department  may  return  the entire application with written instructions on how to complete it or the Department may hold the application and notify the applicant in writing of what is needed and when it must be provided. (B) Within  15  days  of  receiving  the  corrected  form  or  additional  materials  the  Department  will provide the applicant written notification whether the application is complete and, if complete, the priority among all pending, complete applications.
(C)  If  the  applicant  makes  any  change  to  the  application  after  it  is  deemed  complete,  the Department will change the priority date to the date of that change. (D)  If  the  Department  has  held  an  incomplete  application  for  60  days  from  the  date  of  initial receipt, the application is deemed withdrawn by the applicant. The Department will return a copy of  the  application  and  may  refund  any  eligible  deposited  fee.  The  Department  will  retain  the original application for our records.
(8) Processing of complete permit application.
(a) The Department will  approve  or  deny  a  permit within  60  days  of the  complete  application’s priority date as determined under section (7)(d) or (e) of this rule if the application clearly does not conflict with another complete application.
(b) An application for a permit that conflicts with the location of an expired or canceled permit will not be processed until the time for any hearing or appeal on the latter permit has passed, unless the permit is being canceled as a condition for issuance of the new permit. (c) When a complete application might conflict with another complete application due to spacing or any other reason, the application with the earliest priority date and time takes precedence over later applications. Subject to  all  other  requirements  of the OMIA, the Department will  issue the permit to the earlier applicant.
(d) If multiple complete applications have the same priority date and time, and are determined by the Department to compete for the same spot, the Department shall notify the applicants of the circumstances  within  seven  days  of  the  Department’s  determination.  If  an  affected  applicant requests  a  contested  case  hearing,  the  matter  will  be  determined  by  a  single  contested  case hearing under Oregon’s Administrative Procedures Act. The Department shall refer the matter to the Office of Administrative Hearings within seven days of an applicant’s written hearing request. (e) If the Department does not approve or deny a permit application within the time allowed under section (8)(a) of this rule, such actions do not require the Department to issue a permit or require any remedy except as provided otherwise in law.
(9) Field checks; applicant requirements and Department method. (a) When the Department determines an application is complete, the Department will perform a field  check  to  determine  the  milepoint  and  all  other  information  necessary  to  process  the application.
(b)  The  applicant must  place  a  marking  at  the  site  to  show  the  proposed  location  for  the  sign permit. The applicant may use a stake, ribbon, paint, or any method or material that will allow the Department to easily locate the site and attribute it to the applicant. If the marked site is other than that represented to the local authority in obtaining its signature on the application form, or is other than where the applicant actually builds the sign, the Department may consider that a violation of ORS 377.725(10).
(c) If the Department cannot locate the site it will notify the applicant pursuant to (5)(e) above that the application is incomplete due to incorrect information and may  request  reasonable action by the applicant to identify the site.
(d) The Department will conduct a field check by traveling to the proposed site and calculating the milepoint to the one­hundredth of a mile or, when necessary, to the one­thousandth of a mile. The Department  may  also  determine  the  engineering  station.  The  Department  may  also  make  any other determination regarding the site that is relevant to the application, such as proximity to the right of way and to a commercial or industrial area. Once a field check has been conducted the application fee is non­refundable.
(e) The Department may use intersections, highway structures, or other highway feature and its corresponding milepoint  or  engineering  station,  to  measure  and  calculate  the  milepoint  of  the proposed  site.  Milepost  markers  are  for  the  convenience  of  motorists  and  are  not  precise indications  of  the  milepoint,  therefore  the  Department  will  not  use  milepost  markers  for  these calculations without other indication of accuracy.

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http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 4/11 (10) Denied Permit Applications. If the Department denies an application, it will consider that site as conflicting with other applications:
(a) Until the time to request a hearing elapses without a hearing request from the applicant; or (b) If a hearing is requested, until the time to request an appeal on the final order has elapsed or until the final appellate court enters a judgment on the matter, whichever is later. (c)  The  Department  will  keep  the  original  application  and  any  accompanying  documents  and return a copy after an application is denied.
(11) Issued Permits.
(a) The permit will specify the 180th day by which the sign must be constructed. (b) Within 190 days of permit issuance, the permittee must notify the Department in writing if the action  described  in  the  permit  has  been  completed,  and  include  at  least  one  photograph demonstrating that  completion.  For  a  reconstruction  permit  or  a  relocation  permit  based  on  a relocation  credit,  the  notice  must  state  that  the  new  sign  has  been  constructed.  For  a  direct relocation the notice must state that the new sign has been constructed and the former sign on which  the  permit  was  based  has  been  removed.  If  the  Department  has  not  received  the notification within 180 days the Department will alert the permittee about the upcoming 190­day deadline. If the permittee fails to submit the written notice and photograph within the time allowed, the Department will cancel the permit to  relocate or  reconstruct, and the permit will  revert to its prior status. No fees will be refunded.
(c)  “Constructed” means that the  structure  and  all  sign faces  are  permanently  in  place  and the permit  plate  is  attached.  “Removed”  means  the  taking  down,  removing,  or  eliminating  all  sign structure elements that are visible from the state right of way Stat. Auth.: ORS 184.616, 184.619, 377.715, 377.725
Stats. Implemented: ORS 377.715, 377.725
Hist.: HWD 2­2009, f. 3­20­09, cert. ef. 3­23­09; HWD 9­2011(Temp), f. 8­24­11, cert. ef. 9­29­11 thru 3­26­12; HWD 6­2012, f. & cert. ef. 3­26­12; HWD 11­2014, f. & cert. ef. 12­19­14 734­060­0007
Digital Billboard Procedures
(1) This rule describes the process for applying for a permit for a digital billboard. (2) Definitions for the purposes of this rule:
(a)  “Sign” means the  sign  structure,  the  display  surfaces  of  the  sign,  and  all  other  component parts of the sign.
(b) “Retire” means to use a relocation credit such that it no longer exists or to remove an existing sign to become a relocation permit or credit for use.
(c) “Bulletin” means an outdoor advertising sign with a display surface that is 14 feet by 48 feet. (d) “Poster” means an outdoor advertising sign with a display surface that is 12 feet by 25 feet. (e) “Digital Billboard” means an outdoor advertising sign that is static and changes messages by any electronic process or remote control, provided that the change from one message to another message is no more frequent than once every eight  seconds and the actual  change process  is accomplished in two seconds or less.
(3) Qualifications for receiving a digital billboard state sign permit:
(a) The proposed site and digital billboard must meet all requirements of the OMIA including, but not limited to, the following:
(A) The digital billboard is not illuminated by a flashing or varying intensity light. (B) The display surface of the digital billboard does not create the appearance of movement. (C) The digital billboard must operate at an intensity level of not more than 0.3 foot­candles over ambient light as measured by the distance to the sign depending upon its size. (D) The distance measurement for ambient light is: 150 feet if the display surface of the sign is 12 feet by 25 feet, 200 feet if the display surface is 10.5 by 36 feet, and 250 feet if the display surface is 14 by 48 feet.
(b) Applicant must submit a completed application for a digital billboard state sign permit using the approved form that may be obtained by one of the following methods:
(A) Requesting from Sign Program Staff by phone at 503­986­3650; (B) Email: [email protected];
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http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 5/11 (C) Website: http://www.oregon.gov/ODOT/HWY/SIGNPROGRAM/pages/index.aspx. (c)  The  Department  shall  confirm  that  any  existing  permitted  Outdoor  Advertising  Sign  or relocation credit being retired for the purpose of receiving a new digital billboard state sign permit has  been  removed  within  the  180  days  allowed  to  construct  the  new  permitted  sign.  The Department will not charge a Banking Permit Fee for the cancellation of state sign permits retired for the purpose of receiving a new digital billboard permit. (4) This  section  sets forth the  criteria for  determining the  required  relocation  credits  or  existing permitted signs that an applicant shall retire to receive one new digital billboard state sign permit:
(a) Applicants who own 10% or less of all active  relocation credits at the time the application is submitted shall either remove one existing state permitted outdoor advertising sign with a display area of at least 250 square feet or provide one active relocation credit of at least 250 square feet and  retire  that  permit.  Applicants  meeting  these  criteria  are  not  limited  to  either  “Bulletin”  or “Poster” billboards.
(b)  Applicants  who  own  more  than  10%  of  all  active  relocations  credits  shall  apply  for  a  new digital billboard state sign permit as follows:
(A) For a digital billboard that is intended to be a bulletin, the applicant has three options:
(i)  Remove two  existing  bulletins,  retire  the  permits  for  those  signs,  and  retire  three  relocation credits; or
(ii) Remove  one  existing  bulletin  and two  existing  posters,  retire those  permits  and  retire three active relocation credits; or
(iii) Remove four  existing  posters,  retire the  permits for those  signs,  and  retire three  relocation credits.
(B) For a digital billboard that is intended to be a poster, the applicant has two options:
(i)  Remove  two  existing  posters,  retire  the  permits  for  those  signs,  and  retire  three  relocation credits;
(ii) Remove one existing bulletin, retire the permit for that sign, and retire three relocation credits. (c) For an active relocation credit to be eligible it must be at least 250 square feet. All permits and relocation credits  submitted  under these  procedures  will  be  permanently  cancelled  and  are  not eligible for renewal.
(d) Any  state  sign permits  submitted for  retirement must  include the  written  statement  notifying the Department that the “lease has been lost or cancelled.” (5) The Department will determine the percentage of relocation credits owned by an applicant by dividing the total number  of  unused  relocation  credits  by the total  number  of  unused  relocation credits owned by the applicant on the day the application is received. (6) Two digital billboard state sign permits are required for any back to back or V­type digital sign.

A separate application is required for each digital sign face. (7)  The  first  time  a  digital  billboard  is  permitted  it  is  not  subject  to  the  100­mile  rule  in  ORS 377.767(4).  The  site  of  the  newly  permitted  billboard  will  become  the  established  location  for future reference.
(8)  Relocation  of  permitted  digital  billboards.  The  Department  will  issue  one  digital  relocation credit for each permitted digital sign that is removed. The digital relocation credit issued will be for the same square footage as the permitted digital sign that was removed. A digital relocation credit can only be used to relocate a digital billboard. A permitted digital sign can only be reconstructed as a digital billboard.
(9)  Use  of  renewable  energy  resource.  The  applicant  must  provide  a  statement  with  the application that clarifies what, if any, renewable energy resources are available at the site and are being  utilized.  If  none,  then  a  notarized  statement  to  that  effect  must  be  included  with  the application.
(10) All permitted digital billboards must have the capacity to either freeze in a static position or display a black screen in the event of a malfunction.
(a) The applicant must provide emergency contact information that has the ability and authority to make modifications to the display and lighting levels in the event of emergencies or a malfunction. (b) The Department will notify the sign owner of a malfunction that has been confirmed by ODOT in the following instances:
(A) The light impairs the vision of a driver of any motor vehicle; or (B) The message is in violation of ORS 377.710(6) or 377.720(3)(d).

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http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 6/11 (11) All digital billboard signs must comply with the light intensity and sensor requirements of ORS 377.720(3)(d).
(a) The Department will take measurements of the permitted digital billboard when notified that the sign has been constructed and the permit plate has been installed. (b)  The  Department  will  use  an  approved  luminance  meter  designed  for  use  in  measuring  the amount of light emitted from digital billboards using the industry standard for size and distance as follows:
(A) 150 feet for 12’x 25.’
(B) 200 feet for 10.5’x 36’.
(C) 250 feet for 14’x 48’.

Stat. Auth.: ORS 184.616, 184.619, 377.710, 377.729, 377.753 Stats. Implemented: ORS 377.710, 377.720, 377.750, 377.767 Hist.: HWD 9­2011(Temp), f. 8­24­11, cert. ef. 9­29­11 thru 3­26­12; HWD 6­2012, f. & cert. ef. 3­ 26­12; HWD 11­2014, f. & cert. ef. 12­19­14
734­060­0010
Criteria for Issuance of New Permits for Benches Utilized as Outdoor Advertising Signs (1) New permits may be issued for a bus or transit bench utilized for an outdoor advertising sign (bench  signs)  and  such  signs  may  only  be  erected  after  a  permit  has  been  obtained  from  the Department  of  Transportation.  These  rules  do  not  authorize the  placement  of  any  new  bench, only the addition of an outdoor advertising sign to an already existing bench structure. (a) Bench signs are prohibited where the sign would be visible to:
(A) An interstate highway;
(B) A full control access highway;
(C) Any state highway where the area adjacent to the highway is a designated scenic area under ORS 377.505 to 377.540; or
(D) Any state highway designated as a scenic byway, unless the sign was legally in place before the byway designation.
(b) Size. The maximum allowable size for a bench sign is 16 square feet and the sign shall not exceed two feet in height or eight feet in length excluding supports. (c) Height. The maximum allowable height is four feet including supports. (d) Special Requirements:
(A) Bench signs may only be located in a commercial or industrial zone or, if located in unzoned city  street  right  of  way,  only  where  such  right  of  way  is  adjacent  to  a  commercial  or  industrial zone;
(B)  Bench  signs  may  only  be  located  inside  incorporated  city  limits  or  within  an  urban  growth boundary;
(C) Bench signs may only be located at a bus or transit  stop on an official  city or urban transit system route. The applicant must provide official documentation, such as a route map produced by the transit system, showing that the site meets this requirement; (D) Bench signs shall not be located on state highway right of way. (f) These  rules do not apply to any bench  sign for which a preexisting outdoor advertising  sign permit has already been issued under ORS 377.725.
(2) All  signs  subject to these  regulations  are  also  subject to the  provisions  of  ORS  377.700 to 377.840 and 377.992 and to all applicable federal laws, regulations and agreements entered into by the Transportation Commission and the Federal Highway Administration. (3) All signs erected under these  regulations are also subject to any city or county ordinance or regulation.
(4) All bench signs granted permits under these rules are subject to removal in accordance with ORS 377.775.

Stat. Auth.: ORS 184.616, 184.619, 377.753
Stats. Implemented: ORS 377.753
Hist.:  1  OTC  17­1979(Temp),  f.  &  ef.  7­19­79;  1  OTC  26­1979,  f.  &  ef.  10­30­79;  HWY  5­ 1993(Temp), f. & cert. ef. 7­23­93; HWY 6­1993, f. & cert. ef. 10­21­93; HWD 1­2009, f. & cert. ef. 2­20­09; HWD 6­2012, f. & cert. ef. 3­26­12
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http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 7/11 Portable Signs on Right of Way
734­060­0060
Portable Signs and Repeated Violations of ORS 377.650
Any sign as defined by ORS 377.710, which is portable in nature and which has been deposited, left or displayed on a state highway in violation of 377.650 may be removed and disposed of in the following manner:
(1) Five days after written notice of the violation of ORS 377.650 is mailed or 24 hours after notice is delivered in person to the person owning or controlling the portable sign, the District Manager (DM) or Assistant District Manager (Asst. DM) may have the sign removed and may charge the owner for the cost of removal and storage. The sign shall be stored for 30 days and if the sign is not claimed within 30 days, it may be sold, destroyed or otherwise disposed of. (2) If the portable sign is determined by the DM or Asst. DM to create a traffic hazard, (e.g., signs on the paved portion of a highway or gravel shoulder, or signs placed upon state highway signs or appurtenances), the five day advance written notice need not be made but notice is to be made within 24 hours after removal.
(3) If the owner of the portable sign or person in control of the sign is not readily identified, by the sign itself or by contacting adjacent property owners, the sign may be removed immediately without notice. However, notice should be made upon subsequent identification of the sign owner.

Stat. Auth.: ORS 184 & ORS 377
Stats. Implemented: ORS 377.650
Hist.: 2HD 4­1985, f. & ef. 11­22­85
734­060­0065
Notice to a Portable Sign Owner
Notice to a portable sign owner shall include at least the following:
(1) Statement that the sign is in violation of ORS 377.650. (2) The approximate location of the sign and a description of the sign. (3) Date the sign will be removed, or date on which the sign was removed. (4) Statement that the removal and storage costs are the responsibility of the owner. (5) Statement that sign shall be disposed of after 30 days of storage. (6) The cost of removal and storage.
(7) A location of where the sign will be stored, or a person to contact concerning the storage. (8) A statement that the owner may remove the sign at the owner's expense prior to date of removal by the Department.
(9) A statement that further violation will result in immediate removal without prior notification.

Stat. Auth.: ORS 184 & ORS 377
Stats. Implemented: ORS 377.650
Hist.: 2HD 4­1985, f. & ef. 11­22­85
734­060­0070
Previous Notice
If a previous notice has been given that a portable sign or other personal property violates ORS 377.650, and that sign, (a change of legend or message does not constitute a different sign), or property is again placed on a state highway, such items may be removed without further notice and stored for 30 days before further disposal. In such event notice shall be given subsequent to removal and the owner shall be given an opportunity for a hearing before the DM or Asst. DM to contest the violation and removal. The request for a hearing must be made within three working days after removal and the hearing must be held within five working days after such removal. The scope of this hearing shall be limited to whether proper prior notice was given, whether there was a subsequent violation and whether the sign or property was placed on a state highway. A written decision shall be made concerning the violation and removal procedure.

Stat. Auth.: ORS 184 & ORS 377
Stats. Implemented: ORS 377.650
Hist.: 2HD 4­1985, f. & ef. 11­22­85
734­060­0075
Removal Provisions
Appendix 11, Page 7 of 11

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http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 8/11 Signs subject to OAR 734­027­0005 through 734­027­0050 are subject to the removal provisions of those rules and ORS 377.775.

Stat. Auth.: ORS 184 & ORS 377
Stats. Implemented: ORS 377.650
Hist.: 2HD 4­1985, f. & ef. 11­22­85
Exempt Sign Rules
734­060­0105
Signs of a Governmental Unit
(1)  In  order  to  qualify  for  a  permit  exemption  under  ORS  377.735(1)(a)  as  a  sign  of  a governmental unit the following criteria must be satisfied:
(a) The sign must be within the territorial or zoning jurisdiction of the governmental unit; (b) The governmental unit must have the authority to declare, expound, administer, or apply the law within the area;
(c) The governmental unit may only erect the  sign, or allow it to be erected, for the purpose of carrying out an official duty or responsibility directed or authorized by law. (2) Location. Signs permitted by this rule are prohibited on state highway right of way. (3) Size. Maximum area allowed is 200 square feet; maximum height or length allowed is 20 feet. (4)  Number.  A  governmental  unit  may  have  two  such  permit  exemptions.  If  the  limitation  on number of signs will cause undue hardship, a waiver for additional signing may be granted by the Director, or authorized representative, upon application by the sign owner. (5) The entire message must be contained on one sign. Fragmentation of messages on separate sign panels is prohibited.
(6) Signs erected under this rule are subject to the provisions of ORS 377.720 and to applicable federal requirements. Nothing in this rule is intended to permit a sign that is otherwise prohibited by a local government.
(7) No person may receive compensation for displaying the sign. (8) This rule is not intended to regulate official traffic control signs or devices. (9) To apply for the permit exemption an official of the governmental unit must submit a completed certification  form,  and  an  image  of  the  proposed  sign  showing  dimensions  and  copy,  to  the Outdoor Advertising Sign Program office.

Stat. Auth.: ORS 184.616, 184.619 & 377.735
Stats. Implemented: ORS 377.735
Hist.: HWY 1­1989, f. &  cert. ef. 5­2­89; TO 7­2001, f. &  cert. ef. 12­13­01; HWD 1­2009, f. & cert. ef. 2­20­09
734­060­0175
Temporary Signs
(1) This rule is enacted pursuant to ORS 377.735 regarding the permit exemption for temporary signs and in furtherance of the Oregon Motorist Information Act (OMIA, 377.700 through 377. 840 and 377.992).
(2) Location generally. A temporary  sign may  be  erected  outside  of  state  highway  right  of way, within view of a state highway, subject to the requirements of the local jurisdiction and the OMIA.

A sign that complies with all the provisions of ORS 377.735(1)(b) may be erected without  prior approval of the Department. A sign that requires a variance to comply must obtain that variance before erecting the sign. The Department may, at its discretion, retroactively grant a variance. (3) The entire message must be contained on one sign. Fragmentation of messages on separate sign panels is prohibited.
(4) Changes in copy or location. For the sake of the time limits described in ORS 377.735(1)(b), the following will be considered one sign:
(a) The same sign structure, regardless of copy, moved less than 600 feet from a former site; or (b) A different sign structure,  regardless of copy, in approximately the same location as another sign that was removed.
(5) Variance Procedure.

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10.1 p. 723 of 947
12/6/2016 Oregon Secretary of State Archives Division
http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 9/11 (a) A  variance  request must  be  in  writing  on  a form  provided  by the  Department.  The  request must be sent to the Outdoor Advertising Sign Program. There is no fee for a variance. (b) A variance request must describe the specific location including:
(A) Name or number of highway;
(B) Side of highway; and
(C)  Approximate  milepoint,  distance  from  a  known  highway  feature  (e.g.  an  intersection),  or physical address.
(c)  A  variance  request  must  describe  the  reason  that  constitutes  good  cause  to  grant  the variance. If a reason is the amount of copy itself, requester must include the proposed copy. The Department may consider the amount, not the substance, of the copy. (d)  The  request  must  include  the  name  and  mailing  address  of  the  requester.  If  the  requester wants  the  Department  to  be  able  to  make  contact  in  any  other  way,  such  as  to  obtain supplemental  information  to  process  the  request,  requester  may  also  include  that  contact information. The requester will be considered a sign owner for the sake of violation of sign laws. (e) The request must include the date the sign will be posted and the date it will be removed so as to comply with the time limits to qualify for the exemption. (f) Requester must certify that he or she:
(A) Has permission from the person in control of the property to post the sign; (B) Will comply with all requirements of the local jurisdiction; (C) Will not pay or receive any form of compensation for posting the sign; and (D) Will comply with all requirements of the OMIA.
(g) The Department must grant or deny the request within 14 days after the Outdoor Advertising Sign Program receives it. The Department may deny applicant’s variance request due to lack of required  information;  the  applicant  may  re­submit  the  request.  If  the  Department  denies  a request,  fails  to  make  a  decision  within  14  days,  or  grants  and  later  revokes  a  variance,  the requester  may  request  a  contested  case  hearing.  Failure  of  the  Department  to  meet  the  time limits required by this rule does not require that the variance be granted. (h)  If  the  Department  determines  a  requester  provided  false  information,  including  a  false certification under (3)(f), it may deny the request and revoke any variance already granted to that person or the organization the applicant represents.
(i)  Variances  for  both  size  and  time  will  not  be  granted  to  the  same  sign  or  location.  The Department will not grant more than 10 variances to one requester or organization for the same period of time.
(6) Specific Variance Criteria.
(a) Variance for size. The Department may grant a variance for size up to 32 square feet per side of a back­to­back sign. Good cause to grant a size variance may include, but is not limited to the following:
(A) Due to highway speed, width of right of way, topography, or other similar reasons beyond the applicant’s control, the  sign  copy will  not  be  legible to motorists  if the  sign  is  12  square feet  or less;
(B) Due to the amount of copy on the sign, the copy will not be legible to motorists if the sign is 12 square feet or less; or
(C) The sign was manufactured before the 12/13/2001 change in administrative  rules  regarding exempt signs, and the sign continues to comply with those former rules. (b) Variance for time. The Department may grant a variance for time up to a total of 90 continuous days in a  calendar  year. The Department may grant the  variance for good  cause  shown. Good cause may include, but is not limited to, a showing that:
(A) The applicant is attempting to obtain an outdoor advertising sign permit for the sign but will be unable to complete the application process within 60 days; (B)  Due  to  conditions  of  the  land,  weather,  or  similar  reasons  beyond  requester’s  control, requester will be unable to remove the sign within 60 days. (7) Prohibitions and penalties.
(a) Other than  official traffic  control  devices,  signs  are  prohibited  in  state  highway  right  of  way.

Accessing a sign or sign site by crossing access­controlled right of way is prohibited. Violations of this  rule  are  subject to ORS  377.725(9)  and  any  other  removal  or  penalty  provision  under  law.

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12/6/2016 Oregon Secretary of State Archives Division
http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_734/734_060.html 10/11 Signs in or overhanging state highway  right of way may be  removed pursuant to ORS 377.650 and OAR 734­060­0060 to 734­060­0070.
(b) Signs outside of right of way are subject to the removal procedures of ORS 377.775, and the penalty provisions of ORS 377.992 as well as any other penalty provision under law. (c) If the sign or site has been accessed from access­controlled right of way, or the sign has been placed in or overhanging right of way, the Department may revoke any variance for that sign, by that  requester,  or  by the  represented  organization. The Department may  deny  any  subsequent variance  request  for  that  sign,  by  that  requester,  or  by  that  organization  at  any  location.  If  the Department  discovers  multiple  violations  of  (a)  above,  it  may  file  for  an  injunction  under  ORS 374.415.
(8)  Signs  erected  under  this  rule  are  subject  to  the  provisions  of  ORS  377.720  and  to  all applicable state and federal requirements.

Stat. Auth.: ORS 184.616, 184.619 & 377.735
Stats. Implemented: ORS 377.735
Hist.: HWY 1­1989, f. & cert. ef. 5­2­89; TO 7­2001, f. &  cert. ef. 12­13­01; HWD 1­2009, f. & cert. ef. 2­20­09; HWD 11­2014, f. & cert. ef. 12­19­14 734­060­0185
Public Convenience and Safety Signs
(1) Location. Public convenience or safety signs are allowed on private property visible to a state highway,  under  the  exemption  in  ORS  377.735,  except  as  prohibited  by  these  rules.  Public convenience  or  safety  signs  are  prohibited  on  state  highway  right  of  way  unless  approved  in writing  by  the  Deputy  Director  of  the  Department  of  Transportation.  Public  convenience  signs must be within one mile of the convenience covered by the sign. (2) Size. The maximum permissible size for public convenience or safety signs is six square feet. (3) Spacing and Form. Minimum spacing between two public convenience or safety signs on the same  side  of  the  highway  is  100  feet.  The  entire  message  must  be  contained  on  one  sign.

Fragmentation of messages on separate sign panels is prohibited. (4) Qualification. Public safety signs are those necessary for the safety of the public such as, but not limited to, signs with legal notices or warnings, or signs warning of danger to the public. Public convenience signs are those necessary for guiding the public in the use of the state transportation system such as, but not limited to, signs identifying transit stops, freight entrances, train stations, ports, airports, or signs identifying public rest rooms. (5)  Signs  erected  under  this  rule  are  subject  to  ORS  377.720  and  to  applicable  federal requirements.
(6) Removal. Signs erected under this rule are subject to the removal procedures as provided in ORS 377.775.
(7)  No  person  or  organization  may  receive  compensation  for  the  act  of  displaying  a  public convenience or safety sign.
(8)  This  rule  is  not  intended to  regulate,  prohibit  or  limit  official  highway traffic  control  signs  or devices.

Stat. Auth.: ORS 184.616, 184.619 & 377.735
Stats. Implemented: ORS 377.735
Hist.: TO 7­2001, f. & cert. ef. 12­13­01; HWD 1­2009, f. & cert. ef. 2­20­09 734­060­0190
Illuminated, Digital, or LED Signs Other than Outdoor Advertising Signs (1)  By  statute,  all  signs  visible  to  state  highways  are  subject  to  state  sign  prohibited  sign  and safety regulations. No signs visible to a state highway, other than official traffic control signals or devices, may include moving or  rotating parts or lights. Signs may not be made to  resemble an official  traffic  signal  or  device  and  they  may  not  have  lights  that  project  onto  the  roadway  or impede the sight of traveling motorist.
(2) In interpreting ORS 377.715 and 377.720, signs visible to a state highway, other than official traffic control signals or devices, may not:
(a) Be illuminated by flashing lights or a light that varies in intensity; (b) Have a display surface that creates the appearance of movement; (c) May not operate at an brightness level of more than 0.3 foot­candles over ambient light, nor intensity greater than the  luminance  indicated  in the table  1,  as measured  perpendicular to the face  of  the  billboard  at  the  indicated  measurement  distance  for  a  designated  sign  dimension:
[Table not included. See ED. NOTE.]
Appendix 11, Page 10 of 11

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Appendix 11, Page 11 of 11

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City of Gilroy

STAFF REPORT
Agenda Item Title: Introduce Draft Policy Recommendations to Regulate Electronic Billboards in the City of Gilroy
Meeting Date: March 15, 2021
From: Jimmy Forbis, City Administrator
Department: Community Development Department
Submitted By: Karen Garner
Prepared By: Karen Garner
Cindy McCormick
Strategic Plan Goals
☐ Fiscal Stability ☐ Downtown
Revitalization
 Economic
Development
☐ Neighborhood Services ☐ Enhanced Public
Safety
☐ Workforce Stability ☐ Public Engagement

RECOMMENDATION
Review recommendations and provide staff with direction regarding allowance and regulation of Electronic Billboards in the City of Gilroy.

EXECUTIVE SUMMARY
Although consideration of allowing electronic billboards in the City was prompted by a formal application, staff recommends a more holistic view given the significance of such a change in policy direction. Therefore, the policy recommendations prepared by staff are based on feedback received from the Council in September and best practices from other cities, rather than the applicant’s specific proposal. If the Council wants to move forward with allowing electronic billboard(s) in the City, the recommended policies could

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inform a future amendment to the City’s Sign Ordinance. Once the Council has weighed in on the requested policy direction, staff will proceed with drafting the necessary zoning amendment(s) and scheduling the corresponding public hearings with the Planning Commission and the City Council.

Following formal adoption of a zoning amendment, staff could then proceed with processing any application that complies with the standards set forth in the new Ordinance. Once Council identifies the general thresholds for allowing electronic billboard signs in the City, the current applicant will have a better understanding of Council expectations, and can then modify their proposal, if necessary.

Some of the major policy considerations before the Council include whether such signage would be allowed off-site and under what circumstances, how many electronic billboard signs should be allowed in the City and where, and the maximum height and sign area that would be permitted. The Council will also need to consider that most of the advertisements on the electronic billboard would likely be for businesses that are not actually located in Gilroy. With some exceptions that could be memorialized in an operating agreement, content control will largely be out of the Council’s hands since the sign would be owned and operated by a third party.

BACKGROUND
On September 14, 2020, the City Council discussed the potential for allowing electronic billboard sign(s) in Gilroy. The Council was generally receptive to this possibility; but had concerns about the total number allowed in the City, the height of the sign, and the location(s) where they would be permitted. The Council also wanted to ensure that such signage, if allowed, would benefit City businesses, particularly regional-serving and high revenue generating businesses, such as auto dealerships and/or regional shopping centers including the Gilroy Outlets. The Council had several questions that are addressed in the discussion below, including the potential costs and benefits of the sign.

It was also requested that the sign company be invited to a Council meeting for further discussion of Council’s goals, concerns, and questions. Outfront Media will be available during the virtual meeting to answer any questions the City Council may have. Outfront Media leases out advertising space on electronic billboards such as the one proposed by the applicant.

Existing City Code: The Gilroy Sign Ordinance does not currently allow off-site advertising signs (other than real-estate signs) and has general restrictions for freewayoriented signs and automobile dealership signs (e.g., height and size limits). The Sign Ordinance also prohibits signs that utilize scrolling or moving text or images (i.e., electronic billboards). Allowance of such signs would require an amendment to City Code Sections 30.37.30 (Prohibited Signs), 30.37.50 (Commercial and Industrial districts), and 30.37.51 (Freeway Oriented Signs).

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General Plan: The Gilroy 2040 General Plan was adopted in November 2020 and has the following policies related to billboards and freeway signage. While the policies do not directly address digital media, the policies do encourage signage for freeway commercial uses (such as auto dealerships), so long as such signage has minimal negative impact on the visual environment. Staff will ensure that a future zoning amendment would have sufficient design standards to minimize such impacts.

LU 4.11 Freeway Signage - Work with Caltrans to explore ways to increase directional signage to freeway commercial uses at U.S. 101 interchanges.

LU 8.7 Signs and Billboards - Require the location of signs and billboards to respect the surrounding context to minimize any negative impact on the visual environment.

Enforce sign regulations and design standards to reduce sign clutter and illegal signage along corridors.

DISCUSSION
Although this policy discussion was initially prompted by an active application before the City, staff recommends taking a holistic view of allowing electronic billboard(s) in the City. The application, as currently proposed, does not conform to current City sign requirements and therefore, could not be approved without modifications to several sections of the zoning code. The policy recommendations prepared by staff are based on feedback received from the Council in September and best practices in other cities, rather than the applicant’s specific proposal. Furthermore, based on questions and discussion at the last Council meeting, staff reached out to the applicant with a list of specific questions. The questions and answers have been provided as Attachment 1.

Some questions were more general in nature, whereas others were more specific to the applicant’s proposal. The provided answers should facilitate City Council’s understanding of how an electronic billboard might operate in the City of Gilroy.

Benefit to Auto Dealerships: An important consideration identified by the Council in September, was the potential costs and benefits to the City’s auto dealerships. While the intent of allowing off-site signage in the City would be to primarily benefit the auto dealerships, the attached questionnaire estimates that approximately six of eight advertisement spots would be sold to non-auto dealers. In terms of cost, an auto dealership could be expected to pay approximately $2,500 for a four (4) week-long / 8- second advertising spot, while national advertisers would likely pay between $3,000 and $3,500 per four (4) weeks. The attached letter from the applicant includes signatures from four (4) dealerships expressing their support for the electronic billboard and their intention to advertise on the sign (Attachment 2).

Policy Recommendations: While staff would continue to research best practices in terms of illumination (e.g., light sensing/adjustment device, maximum foot candles) and message standards (e.g., minimum display time), staff has made some specific

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recommendations for Council consideration regarding quantity, location, distance between signs, sign area and sign height, as illustrated in the following table.

Furthermore, two of the major policy considerations before the Council include whether such signage should be allowed off-site and under what circumstances and how many electronic billboard signs should be allowed in the City. The Council will also need to consider that most of the advertisements on the electronic billboard would likely be for businesses that are not actually located in Gilroy. With some exceptions that could be memorialized in an operating agreement, content control will largely be out of the Council’s hands since the sign would be owned and operated by a third party.

Following is a table summarizing policy considerations, followed by additional information discussing the rationale behind the recommendations.

City Council Decision Points
ON Site Electronic Billboards
Recommended Policy:

Allow on-site on private property
Alternative Policy:

Prohibit all Electronic Billboards on-site and/or
off-site (Status Quo)
OFF Site Electronic Billboards
Recommended Policy:

Allow off-site on both private and
public property
Alternative Policies:
• Only allow off-site on public property
• Prohibit off-site signs
City Agreement Requirements
Recommended Policy:

Prior to scheduling an Electronic Billboard Sign application for review by the Planning Commission, the owner/operator shall enter into a development agreement, operating agreement, lease agreement, contract, license or other accord in form acceptable to the City Attorney ("City Agreement") with the City, setting forth any required fees, terms, offsite advertisement criteria, content control standards, community service message provisions, community outreach requirements, maintenance standards, conditions that trigger sign removal, and other covenants or restrictions needed to offset or mitigate the impacts of a proposed Electronic Billboard Sign.

Alternative Policy: No specific alternative is recommended.

Permit Requirements

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Recommended Policy:
☒ Conditional Use Permit & CEQA
☒ Architectural & Site Review
☒ Caltrans Off-Site Advertising Permit
Alternative Policy: No specific alternative is recommended.

Conformance Hearings
Recommended Policy:

Require minimum of three (3) compliance hearings before the City Planning Commission and/or City Council, as follows:

1. Six (6) months from the date of final building permit issuance,

2. Six (6) months from the date of the first compliance hearing, and

3. Twelve (12) months from the date of the second compliance hearing.

Following the three initial compliance hearings, the owner, operator, and/or property lease holder shall be subject to periodic compliance hearings before the City upon request, due to non-compliance.

Alternative Policy:

Require only two (2) compliance hearings; one at six (6) months from final building permit issuance, and another one year from the date of the first compliance hearing.

City Branding
Recommended Policy:

Unless otherwise approved by the
City Council, the Electronic Billboard
sign shall include the words "City of
Gilroy" and/or the City insignia
permanently affixed somewhere on
the sign structure.

Alternative Policy:

Do not require such branding.

Maximum number of Electronic Billboards allowed in City Recommended Policy:

A maximum of two (2) Electronic
Billboard Signs may be allowed in the
City of Gilroy.

Alternative Policy:

Allow up to three (3) electronic billboards (e.g.,
on Highway 152, east of Highway 101)
Permitted Locations

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Recommended Policy:

The sign shall be located on property designated as General Services Commercial or City Gateway District.

Alternative Policy: No specific alternative is recommended.

Maximum Distance to Freeway
Recommended Policy:

The electronic billboard shall be located within 660 feet of Highway 101.

Alternative Policy: No specific alternative is recommended.

Minimum Distance between Signs
Recommended Policy:

No Electronic Billboard sign shall be
placed within 1.5 miles from another
Electronic Billboard sign.

Alternative Policy:

If three (3) signs are permitted in Gilroy, the
minimum recommended distance is 1,000 feet.

Angle to Freeway
Recommended Policy:

To the extent possible, the Electronic Billboard sign shall be located and oriented in a manner that avoids or minimizes the direct exposure of the display to view from adjacent or nearby residential or hotel uses.

Alternative Policy: No specific alternative is recommended.

Maximum Height
Recommended Policy:

The overall height of the sign shall not
exceed seventy-five (75) feet.

Alternative Policy:

Allow a maximum height of eighty (80) feet
Maximum Sign Area
Recommended Policy:

The maximum sign area of the digital display shall not exceed 672 square feet.

Alternative Policy: No specific alternative is recommended.

Public Service / City Announcements

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Recommended Policy: The City of Gilroy shall be guaranteed a minimum of one (1) advertising spot per week for City events, public information, emergency alerts, and other similar public service announcements.

Alternative Policy: No specific alternative is recommended.

Policy Discussion: The following discussion is intended to provide the Council with staff’s rationale for its recommendations, while also encouraging Council discussion of alternative standards.

Off-Site versus On-site Signage. One of the major policy considerations before the Council is whether to require that electronic billboard signs be located on-site (e.g., auto mall property) or allow them off-site (e.g., a property adjacent to the auto mall). If offsite, the Council would need to decide whether to allow off-site electronic billboard on private property, or to limit off-site signs to City owned property. The primary benefit of allowing off-site signs on private property is the potential for locating the sign where it has the most visibility and where a driver can safely exit the freeway to access the advertised businesses. The primary benefit of limiting off-site signage to public property is more control by the City, and the ability to get proposals (via a competitive RFP) from multiple sign companies who may be more willing to agree to the terms of a development agreement that is in the best interest of Gilroy. For example, the development agreement could disallow advertisements for cannabis, which is currently prohibited in the City even though it is legal in the state.

City Agreement: In addition to the typical conditional use permit and design review permits that the City utilizes to minimize potential impacts, staff is recommending that the owner/operator of an electronic billboard sign be required to enter into an agreement with the City (e.g., Development Agreement or Operating Agreement) setting forth any required fees, terms, standards, provisions, etcetera needed to offset or mitigate the impacts of an electronic billboard sign. The Agreement could also include language requiring removal or replacement of other billboards owned by the owner/operator, if applicable.

The type of Agreement will depend on whether the sign is on private property or public property and whether there is a relocation requirement.

For example, in the City of Rocklin, the owner/operator of an electronic billboard on private property has an Operating Agreement with the City and pays the City a monthly fee of $2,000 in year 1-6, with increases of 2% for every year thereafter.

The City of Rohnert Park has a Master Lease Agreement with a company who would install, operate, and maintain a new electronic billboard on public property. The company will pay Rohnert Park a one-time fee of $50,000 in addition to permit fees. The City also receives a guaranteed monthly rent of $15,000 in years 1 to 5, and variations on the lease rates for the remaining years of the 20-year term. Rohnert Park is also

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guaranteed exclusive use of 10% of the total advertising time on the electronic billboard sign.

Likewise, in Milpitas where the electronic billboard will be on public property, the City will collect an initial fee and payments will be made to the City on either a quarterly or annual basis. The City of Milpitas will also ask for a certain number of City postings per day. The fees and details of the Agreement have not been worked out yet.

Compliance Hearings: Staff is recommending initial compliance hearings before the City to review the owner/operator’s compliance with the City Agreement (e.g., content standards, message frequency, etc.). The Ordinance and City Agreement would also be structured to allow the City to request subsequent compliance hearings, as needed, if the City receives a verifiable complaint of non-compliance with the City Agreement and/or City standards.

Maximum Number of Electronic Billboards: Staff recommends a maximum two (2) electronic billboard signs in the City of Gilroy since these types of signs are generally located adjacent to the freeway and there is a limited distance between the major gateways to the city. Alternatively, the Council could authorize up to three (3) signs, given that many drivers will be coming into Gilroy from Highway 152, east of 101.

Sign Location: Staff recommends that electronic billboards be located within 660 feet of Highway 101, since this distance will require an Outdoor Advertising Permit from Caltrans. Furthermore, if off-site signage is allowed on private property, staff recommends that these signs be limited to properties designated as General Services Commercial or City Gateway District. These two designations are primarily comprised of regional-serving commercial uses and are also adjacent to the freeway.

Distance between Signs: Staff recommends a minimum distance of 1.5 miles between signs, as this is the approximate distance between the Leavesley Road exit and the 10th Street exit off Highway 101. This is also a reasonable distance between signs, if only two (2) signs are permitted in the City. However, if three (3) electronic billboards were permitted in the City, a shorter distance is recommended. For example, if a third sign were desired in the vicinity of Highway 152 and Highway 101, the minimum distance would need to be reduced to something closer to 1,000 feet.

Sign Height and Sign Area: Another major policy decision before the Council is the allowable sign height and sign area. Staff1is recommending a maximum height of 75- feet above freeway grade based on the current allowance for the Gilroy Crossings sign.

Staff is also recommending a maximum digital sign area of 672 square feet per side, based on the industry billboard standard of 48-feet wide by 14-feet tall. This 672 square foot allowance per side is consistent with other city codes, including Concord, Rocklin, and South San Francisco.
1 The applicant requested zoning amendments that would allow a maximum sign height of 80-feet above freeway grade and a maximum sign area of 1,200 square feet.

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FISCAL IMPACT/FUNDING SOURCE
There are no fiscal impacts associated with conducting this policy discussion.

NEXT STEPS
Following Council direction on these policy recommendations, staff will draft a zoning amendment and schedule the item for public hearings with the Planning Commission (advisory) and City Council. The zoning amendment will also require environmental review (paid for by the applicant) prior to approval, given the potential significant impacts of allowing such signage. If the applicant chooses to move forward with an application that conforms to the new ordinance, staff will also prepare a draft City Agreement for Council consideration.

Attachments:

1. Outfront Media answers to questionaire

2. Autodealer's letter of support

9.B
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10.1 p. 736 of 947
1 Cindy McCormick
From: John Miller <[email protected]>
Sent: Tuesday, March 30, 2021 11:21 AM
To: Mayor Marie Blankley; Council Member Fred Tovar; Council Member Rebeca Armendariz; Council Member Dion Bracco; Council Member Zachary Hilton; Council Member Peter Leroe-Munoz; Council Member Carol Marques
Cc: Jimmy Forbis; Karen Garner; Cindy McCormick
Subject: EXTERNAL - Digital Billboards in Gilroy
Mayor Marie Blankley
Mayor Pro Tempore Fred Tovar
Council Member Rebeca Armendariz
Council Member Dion Bracco
Council Member Zach Hilton
Council Member Peter Leroe-Munoz
Council Member Carol Marques
cc: Jimmy Forbis, City Administrator
Karen Garner & Cindy McCormick, Community Development Department Dear Mayor Blankley and Council Members,
My name is John Miller. I am a member of the Steering Committee of No Digital Billboards in San Jose, a grass roots organization opposing the erection of digital billboards in that city. I’m emailing you as an individual after being informed that Gilroy is considering negating its prohibition on off-premise advertising to allow for the erection of digital billboards.

While I fully understand the decision to allow digital billboards in Gilroy should be decided by the proper authorities in Gilroy, I believe you will benefit from the information No Digital Billboards in San Jose has made public after an exhaustive review of the proposal to bring digital billboards to San Jose. Accordingly, with your approval, I will be happy to forward documents relevant to this issue. In the meantime, it is important to understand that the erection of digitals never comes from citizens but always from the billboard lobby because digital billboards return a much greater profit to billboard companies than do conventional paper billboards. This is all about money. Billboard company money.

Here are significant reasons to oppose the erection of digital billboards in Gilroy.

1. Digital billboards are much more intrusive and unavoidable than conventional billboards. They can’t be ignored and even a few will change the aesthetics of the community.

2. Digital billboards increase profits for billboard companies but on private property they produce no revenue for city government. The city would be lucky if annual permit fees covered the cost of administering digital billboards.

3. Digital billboards primarily help big national companies like CitiBank and Verizon not local businesses who have to compete with these national advertisers which are preferred customers of the billboard companies.

4. But even if local auto dealers obtained advertising on digital billboards how is that a benefit to the people of Gilroy, CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

10.1 p. 737 of 947
1 Cindy McCormick
From: John Miller <[email protected]>
Sent: Friday, April 2, 2021 8:04 AM
To: Mayor Marie Blankley; Council Member Fred Tovar; Council Member Rebeca Armendariz; Council Member Dion Bracco; Council Member Zachary Hilton; Council Member Peter Leroe-Munoz; Council Member Carol Marques
Cc: Jimmy Forbis; Karen Garner; Cindy McCormick
Subject: EXTERNAL - Digital Billboards in Gilroy
Mayor Marie Blankley
Mayor Pro Tempore Fred Tovar
Council Member Rebeca Armendariz
Council Member Dion Bracco
Council Member Zach Hilton
Council Member Peter Leroe-Munoz
Council Member Carol Marques
cc: Jimmy Forbis, City Administrator
Karen Garner & Cindy McCormick, Community Development Department Dear Mayor Blankley and Council Members,
The San Jose Planning Department has just posted a survey of over 2,000 people regarding their position on digital billboards. You can find the results here https://www.sanjoseca.gov/home/showpublisheddocument?id=70836 I copied below some of the most impressive findings.

Thank you for your attention.

Sincerely,
John Miller
928 Oak Ridge Rd.

Los Gatos, CA 95033
408 354-2400
CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

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2 who as a result, will experience a degradation of the city’s architectural integrity, historic character and natural environment?

5. The light from digital billboards harms wildlife, keeps light-sensitive people from driving and causes traffic accidents for those who do. They brighten the night sky and interfere with the work of Lick Observatory on Mt. Hamilton.

5. Digital billboards use tremendous amounts of energy, cause greenhouse gases and generate e waste.

6. Digital billboards lower property values and invite litter and graffiti.

7. Digital billboards are a parasite on the roads and highways taxpayers pay for and they don’t. Unlike other highway users, billboard companies do not pay a user fee to maintain the public right of way without which billboards have no value. On the roads the public pays for, will the Gilroy City Council turn its constitutents into a captive audience forced to see advertisements they can’t ignore? It’s like forcing them to pay for only one cable channel that shows only commercials but no programs.

8. Once billboards are erected they are almost impossible to take down thanks to a state law requiring their removal be “compensated” by cash payments to the billboard company for future lost earnings. Put up digital billboards today and they will remain in place for decades…City leaders should think about that, for if they allow digitals, it will constitute their legacy.

9. Why should the city of Gilroy cater to the desire of the billboard industry to erect profitable digital billboards while externalizing all costs to the taxpayer?

10. Think you can allow only a few digital billboards? Once in the door, billboard companies will litigate against restrictions as a cost of doing business.

Los Angeles is a good example. Here is a link https://www.latimes.com/opinion/editorials/la-ed-billboard-ordinance20170605-story.html In San Jose, the erection of illegal billboards has already tied up the city in costly court battles that a billboard companies knows it can’t win but pursues to generate revenue during protracted litigation. Here’s a link https://sanjosespotlight.com/battle-over-billboards-san-jose-faces-lawsuit-pushback-on-proposed-changes/ And in San Mateo, the city attorney predicts billboard-sponsored litigation may be in the cards if the city pursues its hastily concocted plan to allow digitals only on public property. https://www.smdailyjournal.com/news/local/sanmateo-considers-ads-on-city-buildings-and-billboards/article_bb9b96c4-2aef-11eb-a5f1-476100872817.html In my view, there are no compelling reasons for ending the current restrictions on billboards in Gilroy. Doing so does not provide substantial benefits to the citizens and taxpayers of your community. Clearly, this proposal is a violation of best practices in city governance, urban planning and responsiveness to preservation and environmental values overwhelmingly subscribed to by the majority of the public. The only beneficiaries of this proposal will be the billboard companies themselves.

So the question is why even consider spending staff time to prepare for the erection of digital billboards without alerting the community in advance and seeking the voters' opinion? In San Jose, voters were most upset that city council members and city staff met with billboard lobbyists over 50 times and as a result spent hundreds of thousands of taxpayer dollars greasing the skids to allow digital billboards in San Jose before informing the public. Better to actively seek constituent input before making such a commitment.

Need less to say, if I can provide you with the information I mentioned previously, or answer any questions, do not hesitate to contact me.

Thank you for your attention.

10.1 p. 742 of 947
3 Sincerely,
John Miller
928 Oak Ridge Rd.

Los Gatos, CA 95033
408 354-2400

10.1 p. 743 of 947
1 Cindy McCormick
From: Cindy McCormick
Sent: Friday, August 12, 2022 2:22 PM
To: Dan Graeber
Subject: No on the electronic billboards
Good afternoon Dan Graeber,
Thank you for your comment. I will add it to the public record and include it in the packet going to the Planning Commission. The hearing date is not yet set, but would likely occur on either September 15th or October 6th. A separate notice will be sent prior to the public hearing.

Respectfully,

CINDY MCCORMICK

CUSTOMER SERVICE MANAGER
Direct 408.846.0253 l [email protected] Main 408.846.0440 l www.cityofgilroy.org/planning 7351 Rosanna Street | Gilroy | CA 95020
-----Original Message-----
From: Dan Graeber <[email protected]>
Sent: Friday, August 12, 2022 1:02 PM
To: Planning Division (Public) <[email protected]> Subject: EXTERNAL - No on the electronic billboards
CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

Please do not vote for the electronic bill board they will be a major eye sore sucking up valuable electricity . Our city is not in Las Vegas and does not need the bright lights .

Plus with the bright lights it will be tough for the homeless to sleep at night .

Sent from my iPhone

10.1 p. 744 of 947
1 Cindy McCormick
From: Cindy McCormick
Sent: Monday, August 15, 2022 8:28 AM
To: Michelle Maquinalez
Subject: - Billboard
Good Morning Michelle -
Thank you for your comments. I will add it to the public record and include it in the packet going to the Planning Commission. The hearing date is not yet set, but would likely occur on either September 15th or October 6th. A separate notice will be sent prior to the public hearing.

Respectfully,

CINDY MCCORMICK

CUSTOMER SERVICE MANAGER
Direct 408.846.0253 l [email protected] Main 408.846.0440 l www.cityofgilroy.org/planning 7351 Rosanna Street | Gilroy | CA 95020
-----Original Message-----
From: Michelle Maquinalez <[email protected]>
Sent: Sunday, August 14, 2022 9:39 AM
To: Planning Division (Public) <[email protected]> Subject: EXTERNAL - Billboard
CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

Hello I’m writing about the proposed billboards. I don’t believe they are worth our hard earned money just like the other Starbucks that is being built. Why not bring in something new/different instead of another Starbucks. Also the curb by the new Starbucks on first street at the station that continues to damage numerous tires and rims because of poor planning/construction needs to be repaired.

Thanks, Michelle

10.1 p. 745 of 947
1 Cindy McCormick
From: Cindy McCormick
Sent: Monday, August 15, 2022 8:33 AM
To: John Miller
Subject: Public Comment on Electronic Billboard Ordinance Good morning Mr. Miller -
Thank you for your comments. I will add your email to the public record and include it in the packet going to the Planning Commission. The hearing date is not yet set, but would likely occur on either September 15th or October 6th. A separate notice will be sent prior to the public hearing.

Respectfully,

CINDY MCCORMICK

CUSTOMER SERVICE MANAGER
Direct 408.846.0253 l [email protected] Main 408.846.0440 l www.cityofgilroy.org/planning 7351 Rosanna Street | Gilroy | CA 95020
-----Original Message-----
From: John Miller <[email protected]>
Sent: Sunday, August 14, 2022 11:53 AM
To: Planning Division (Public) <[email protected]> Subject: EXTERNAL - Public Comment on Electronic Billboard Ordinance CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

To: Ms. Cindy McCormick
Planning Division
City of Gilroy
Submission to Public Comments
Project Number: Z 18-04, AS 18-09, SP 21-08 Project Title: Electronic Billboard Ordinance and Sign Permit Dear Ms. McCormick,
I am writing in opposition to the proposal to revoke the ban on off-premise advertising and allow the construction of electronic billboards in Gilroy. This is an incredibly shortsighted and just plain bad idea that the city will end up regretting. Let us review the reasons why:
• There is no public outcry in favor of revoking the existing ban. The only proponents of this scheme are some auto dealers and billboard companies. The only people who will make a sizable amount of money will be the billboard companies. Why is the City Council so intent to look after the interests of billboard companies? Is there nothing else they ought to be doing on behalf of their actual constituents?

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2 • Nothing changes the architectural integrity, historic character and natural environment of a community more than in-your-face off-premise advertising mostly promoting products and services not available at the location of the sign. I would be surprised if even one member of the City Council wants to contend such billboards have no significant aesthetic impact as was advocated by the billboard-friendly consultancy that justified declaring a negative declaration.

Just how much did they charge and who paid them?
• Electronic billboards emit light that interferes with wildlife and human sleep patterns as well as triggers individuals with light sensitivity not to mention distracts drivers and contributes to traffic accidents. • Electronic billboards use a lot of energy (requiring cooling systems during most days), energy that contributes to greenhouse gas emissions and that ought to be used for a more legitimate purpose then subjecting residents to advertising messages.
• Off-premise advertising has no value if it is not visible from the publicly financed right of way whose maintenance is not contributed to by billboard companies in the way of a user fee. Why does the City Council believe it has the right to force tax-paying residents to be a captive audience to unwanted commercial messages for which there is no off switch on streets they paid for? The city may have a legal right to do so but it does not have an ethical or moral right.

And would you pay for a cable TV channel that only televised commercials and no programming? Why is the City Council asking their constituents to tolerate the equivalent?
• What’s the limiting principle at play here? If x number of off-premise electronic billboards are “good” then would not y number be even better? At what point are there too many in-your-face advertising signs and who determines that using what standard?
• Do note that once the city of San Jose amended its sign ordinance to allow electronic billboards on city property it was only a short time until a major billboard company illegally erected two billboards violating the still existing ban on new billboards on private property. The city spent an undisclosed amount of money over several years defending its ban in court while the signs remained standing and generating revenue. While the court decided in favor of the city, the city attorney’s office has yet to tell us how many staff hours were spent defending the ban. Now, Outfront Media is currently suing the city of San Jose for allegedly unfairly granting the right to construct electronic billboards at the San Jose Airport to Clear Channel in violation of city provisions calling for competitive bidding. On top of that, an article in a billboard industry publication predicted that if San Jose persisted in allowing new billboards on city property while banning them on private property the industry would sue the city for restraint of trade and denial of due process. The moral of this story is, don’t let even one off-premise billboard company set foot in your city or the city will be spending a lot of costly time in court.

So, proponents of this scheme. Tell us one more time what’s in it for Gilroy to allow the first of many off-premise billboards to take root? Money for the city? An improved local economy? Off-premise sign-induced "urban vibrancy"? Please enlighten us.

Some 1,500 communities around the nation including the states of Alaska, Hawaii, Maine and Vermont prohibit new offpremise advertising signs both electronic and conventional. I am happy to report that residents there are not starving on the highways for lack of information on where the nearest restaurant might be nor are the economies of those places harmed by not having the alleged advantages provided by off-premise advertising. Case in point is the San Jose metro area. For 50 years San Jose banned billboards on public property and for 37 years have done so on private property.

None the less San Jose is second in the nation in terms of per capita domestic product, achieved without the “benefit" of new billboards. Beautification (not billboards) is good for the local economy.

To sum up, the proposal before you provides no public benefit while resulting in many negative externalities which would be borne by the public. And once an off-premise billboard goes up, it is almost impossible to remove, thanks to your friends in the billboard industry having lobbied the state legislature to require cash compensation be paid for the

10.1 p. 747 of 947
3 removal of an existing billboard. How much compensation? Ask the city of St. Paul, Minnesota whose state law required them to pay $4 million to remove just one existing digital billboard.

Should you be interested, I would be happy to answer any questions about embarking on this benighted proposal.

Sincerely,
John Miller
Los Gatos

10.1 p. 748 of 947
1 Cindy McCormick
From: Cindy McCormick
Sent: Monday, August 22, 2022 3:29 PM
To: Mark Deger
Subject: RE: EXTERNAL - Electronic Billboard Ordinance Project Good afternoon Mr. Deger,
Thank you for your comments. I will add them to the public record and include them in the packet going to the Planning Commission and City Council. The hearing date is not yet set, but would likely occur on either September 15th or October 6th. A separate notice will be sent prior to the public hearing. Please accept my apologies for you not being able to locate the appendices. They had been previously uploaded to the website but the links had not been imbedded on the actual page.

Please let me know if you are now able to open them. Development Activity Projects | Gilroy, CA - Official Website (cityofgilroy.org)
Re sp e ct fu lly ,

C I N D Y M C C O R M I C K

C U S T O M E R S E R V I C E M A N A G E R
Direct 40 8.84 6.0253 l Cin dy .Mc Cormick@ city ofg ilroy.org Ma in 408.846.0440 l www.c ity ofg ilroy.org/p lann ing 7 3 5 1 R o s a n n a S t r e e t | G i l r o y | C A 9 5 0 2 0 From: Mark Deger [mailto:[email protected]]
Sent: Monday, August 22, 2022 2:03 PM
To: Cindy McCormick <[email protected]>
Subject: EXTERNAL - Electronic Billboard Ordinance Project Dear Ms. McCormick,
I am writing you to communicate my disdain over the proposal to erect electronic billboards in Gilroy. I’ve listed a number of my reasons below.

1. I think that the aesthetics would be offensive and make us look like a low-class commercial community. These items are usually dumped on poorer communities who do not have the power or influence to prevent it from happening.

2. The light emitted from the billboards would add to light pollution that is not productive. This harms people with light sensitivity more adversely.

3. They will distract drivers traveling on freeway 101.

4. They would probably interfere with the nocturnal population of beneficial insects and vertebrates to agriculture.

CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

10.1 p. 749 of 947
2 5. Electronic billboards are expensive so mostly large corporations would afford them, shutting out local businesses.

6. People should be free to move about public spaces without being exposed to advertising.

7. The billboards add to materialism, making people feel unhappy and unsuccessful if they can’t afford the items advertised. They exploit and deepen inequality.

8. They promote unsustainable consumption during a period of adverse climate changes.

9. Electronic billboards consume 10 times the energy of a single-family home.

10. Adding an ordinance to allow this project opens the door for more billboards in the future. We have smaller monstrosities along Masten/Fitzgerald/Santa Teresa. We don’t need monstrous electronic versions.

I would like to see the content of the appendices that have been omitted from the report used to rubber-stamp this project. I will be deeply disappointed if Gilroy adds these monstrosities to our community. Gilroy has been a pleasant break from the commercialism and materialism of the Bay area.

Respectfully,
Mark Deger
***This e-mail message is intended only for individual(s) to whom it is addressed and may contain information that is privileged, confidential, proprietary, or otherwise exempt from disclosure under applicable law. If you believe you have received this message in error, please advise the sender by return e-mail and delete it from your mailbox.***

10.1 p. 750 of 947
1 Cindy McCormick
From: Cindy McCormick
Sent: Wednesday, August 24, 2022 3:35 PM
To: John Bauters; Planning Division (Public)
Subject: Attn: Cindy McCormick / RE: Proposed Electronic Billboard Good afternoon Mr. Bauters
Thank you for your comments. I will share them with the CEQA consultant and also add them to the public record. We have not yet scheduled the public hearing for this item; however a notice will go out when we do schedule the public meeting.

Cindy
From: John Bauters <[email protected]>
Sent: Wednesday, August 24, 2022 3:03 PM
To: Planning Division (Public) <[email protected]> Subject: EXTERNAL - Attn: Cindy McCormick / RE: Proposed Electronic Billboard Dear City of Gilroy Planning Commissioners, Councilmembers, and Staff:

Thank you for considering this public comment with respect to the proposed Mitigated Negative Declaration for an electronic billboard along Hwy 101 in Gilroy.

My comments are specific to two sets of findings/conclusions that I do not believe are adequately researched or discussed in the document, and leave significant environmental impacts unmitigated. (1) The discussion of Biological Resources correctly identifies impacts on birds and other wildlife as an issue to review, but includes an inappropriately abridged scope of review that jeopardizes endangered birds, including migratory species, that live in this area and migrate through this area.

The discussion in Section 2.4 and then again in 2.20 is overly-focused on the construction site -- a small parcel along Hwy 101. The lack of nests by migratory or endangered birds is cited as a reason for lower concern and the proposed mitigation is how to handle construction in the event a nest is discovered. While this is good, it is insufficient. Birds are dramatically impacted by large, elevated LED signs. There are extensive reports and studies on how LED signs confuse migratory birds, disorienting them at night; how they impair their reproductive functions; and how night predators lose the ability to hunt effectively as these billboards make their ability to find food difficult. Bright spaces like this can have impacts for a multiple mile radius from a high-rise sign, which can eliminate spaces where both migratory and nonmigratory birds can nest. The white-tailed kite, cited in Section 2.4, may not have a known sighting within a couple miles of the project site, but the addition of such a sign in one of the only zones in the United States where the species is known to exist further harms it's population and puts the species at risk. There is no discussion of any of the significant research being conducted into how LED signs impact migration patterns, reproductive patterns, hunting/food sourcing, or nesting. The date points provided in the report fail to address these issues adequately and the scope of review is limited almost exclusively to the parcel itself, which does not adequately address the reality of a larger geographic impact this kind of light has on birds.

CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

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2 (2) Section 2.20 of the report states that there are some impacts on humans but that all of those can or will be mitigated, as discussed throughout the document. There is no discussion about how these types of bright lights impact circadian rhythym (sleep), especially in children. Bright lights can and do impact and are harmful to the development of children. Sleep is one of the most important components of healthy child development, which is necessary for proper brain development, educational attainment, and is also linked to attention/focus, and mood. Bright LED lights on billboards create light pollution much greater than the ambient levels of street lights and other night-time lights which are often much closer to the ground. The UV levels in these lights will create lighter sleep levels, disrupt sleep, and negatively impact human health and growth. There are significant residential communities proximate to the proposed billboard site which will experience the impacts of the proposed billboard sign. The report does not demonstrate adequate study or review of how the location of this sign and the reach of the projected LED lights will change the light pollution baselines in residential areas near the sign, and what that could mean for human health - especially developing children. https://ncceh.ca/documents/field-inquiry/health-effects-large-led-screens-local-residents Finally, a sign like this is not necessary. The City of Gilroy has had a good ordinance that prohibits these types of signs for a long time - and for a good reason. Drivers do not need additional distractions on the roadways. At night, bright lights will only further impair driver abilities on the road, putting all road users at greater risk as a result.

These bright signs are little more than a proverbial "tramp stamp" in the sky - letting people from miles away know that the city is so cheap that it has to resort to bright light commercial ads as it's community identify. Gilroy can and should be a place people are proud to be from - one that doesn't need additional light pollution that will harm children's development or impair our local environmental wildlife resources. I hope that planning commission will give careful consideration to both the adequacy of this report as well as the necessity of this sign. Bright signs originated years ago to tell motorists where there was safe lodging at night, where there was food or fuel to continue their journey, or where a local medical center was if help was needed. Today, we allow any commercial advertisement to be put up along a roadway. Making them electronic undermines the original purpose behind electronic roadway signs, diminishes the character of our community, and harms our greatest assets: our environment and our children.

Please vote against accepting this proposed Mitigated Negative Declaration.

Thanks for your time and consideration.

Sincerely,
John Bauters
--
The strength of a nation is measured by the least of its people.

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1 Cindy McCormick
From: Cindy McCormick
Sent: Monday, August 29, 2022 10:05 AM
To: Maria Aguilar; Planning Division (Public)
Subject: RE: - 75' foot tall electronic billboard
Good morning Ms. Aguilar
Thank you for your comments. I will add them to the public record. We have not yet scheduled the public hearing for this item; however a notice will go out when we do schedule the public meeting.

Cindy
From: Maria Aguilar <[email protected]>
Sent: Sunday, August 28, 2022 4:19 PM
To: Planning Division (Public) <[email protected]>; Cindy McCormick <[email protected]> Subject: EXTERNAL - 75' foot tall electronic billboard
Iam writing in opposition of amending ordinance 30.37.30 prohibited signs within 660 feet off highway 101. I believe this to be a distraction for drivers, this is an area where traffic becomes congested and this could cause accidents. These signs are large and unsightly, if the ordinance gets changed it opens the door for other signs to be erected.

Thank you
Maria Aguilar
Sent from Yahoo Mail on Android
CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

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1 Cindy McCormick
From: Cindy McCormick
Sent: Wednesday, September 7, 2022 5:11 PM
To: Gregory Bumb
Subject: - Digital Sign Project
Good afternoon Mr. Bumb –
Thank you for your comments. I will add them to the public record. We have not yet scheduled the public hearing for this item; however a newspaper notice will go out when we do schedule the public meeting.

Cindy
From: Gregory Bumb <[email protected]>
Sent: Wednesday, August 31, 2022 12:22 PM
To: Cindy McCormick <[email protected]>; Planning Division (Public) <[email protected]> Subject: EXTERNAL - Digital Sign Project
Dear Ms McCormick,
My name is Greg Bumb. I am the owner and General Manager of Gilroy Motorcycle Center - an establishment that has been doing business in Gilroy for 50 years.

I am writing to communicate my support for the new digital sign project in Gilroy. I believe the proposed design, with the city logo, is sleek and professional which will make a beautiful display for visitors. Furthermore, the sign would provide much needed opportunities for local businesses to promote their local goods and services: something currently not available in Gilroy. Additionally, I understand that these signs will be available to the city for local events providing an invaluable tool for local awareness and support. More importantly, these signs would provide an incredibly vital tool for emergency communications e.g. Amber Alerts, and essential announcements that need to reach a last a large amount of people, as quickly as possible: something only a sign of this caliber can achieve. Moreover, this project will come at a zero cost to the city and its residents, meaning there is no downside to the city - and I strongly encourage you to approve this program.

Sincerely,

Greg Bumb
Owner & General Manager
Gilroy Motorcycle Center
303 E. 10th Street
Gilroy, CA 95020
Office: (408) 842-9955 ext 102
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10.1 p. 754 of 947
2 CONFIDENTIALITY NOTICE: This message (including any attachments) is intended exclusively for the individual(s) to whom it is originally addressed and may contain proprietary, protected, or confidential information. If you are not the named addressee, you are not authorized to read, print, copy, or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately.

10.1 p. 755 of 947
1 Cindy McCormick
From: Cindy McCormick
Sent: Wednesday, August 31, 2022 8:05 AM
To: Michael Ramirez
Subject: RE: EXTERNAL - Support for expanding advertising opportunities Mr. Ramirez –
Thank you for your comments. They have been added to the public record.

Cindy
From: Michael Ramirez <[email protected]>
Sent: Wednesday, August 31, 2022 7:20 AM
To: Cindy McCormick <[email protected]>
Subject: EXTERNAL - Support for expanding advertising opportunities Hello Cindy,
Please excuse my reaching out with much context. I’m Michael Ramore, a partner at local advertising agency H&L Partners based in Oakland, CA. I am sending my support for the potential expansion of advertising opportunities around Gilroy. We represent local McDonald’s and Toyota franchise owners around Northern California. Our out-of-home advertising plays a strong role in driving these local businesses. Thanks for your time and consideration. We have had long partnerships with local providers for out-of-home and would be thrilled for new opportunities in Gilroy.

Best regards,
--
Michael Ramirez
Senior VP, Media Director
[email protected]
w: (415) 544-4160

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10.1 p. 756 of 947
2 to, this email transmission is strictly prohibited. If you have received this transmission in error, please notify us and delete the message and any/all attachments from your computer.

10.1 p. 757 of 947
1 Cindy McCormick
From: Chrys Diskowski <[email protected]>
Sent: Thursday, October 27, 2022 12:54 PM
To: Cindy McCormick
Subject: EXTERNAL - Comments: Please Vote NO on electronic billboard proposal Dear Mayor Blankley, City Council and Planning Commission members, Thank you for the opportunity to comment on the proposal. I hope you will agree, that electronic billboards are an eyesore and a nuisance. We will be shooting ourselves in the foot, including economically, if we approve the proposal for an electronic billboard in Gilroy.

Not only do these particular billboards disrupt the view shed of our greenbelt, they also contribute to light pollution at night.

Light pollution shrouds the beautiful view of Gilroy's starry night sky, a potential attraction for our tourists*, and also disrupts human circadian rhythms and wildlife who rely on darkness to survive. If you have a subscription to National Geographic, you can read about light pollution at the link below.

Even though this billboard could potentially grab visitors' eyes to contribute to sales tax / TOT revenue, we need to consider the first impressions our visitors might have entering Gilroy (101 is a gateway), along with our objectives of becoming an agritourism, cycling, and family recreation destination.

Does an electronic billboard reflect Gilroy as a place where agritourists, cyclists, and families want to spend time in our great outdoors? Electronic billboards do not give a good first impression consistent with what many visitors will be looking for. If we are wanting to set ourselves up for success as an agritourism, cycling, and family-friendly recreation destination, these billboards are not "on brand", to use a marketing term. They are, "on-brand", for places like Las Vegas. In Gilroy, we need to attract tourists that partake in the outdoor attractions that we offer, that value and want to bolster our natural beauty and greenbelt. And that which bolsters our natural beauty and greenbelt, attracts tourist spending, and also bolsters the health and happiness of our residents.

Please give our burgeoning Downtown, Gilroy Gardens, Adventure Park / Cycling Paths, Fruit Stands, Agritourism, Local Wineries, Ice Rink, Retail, and Car Dealerships a chance to succeed with other, less obnoxious, forms of advertising.

Advertising on websites, social media, podcasts, and “good ole” radio and newsprint is far less obtrusive than electronic billboards. There are also press-releases that can bring sales tax and TOT dollars to Gilroy. Press releases often lead to written news articles, such as the one from the San Jose Mercury, linked below, promoting our downtown pubs.

Let the electronic billboards in Vegas, stay in Vegas, please. Our tourists and visitors will eventually return to their homes, but for the people who call Gilroy home, we would have to endure both the shadow and constant glare of a hideous 2- sided, 75-foot-tall (6+ story) electronic billboard that blocks our starlight and defaces our natural beauty. Please vote NO on the electronic billboard proposal.

Thank you kindly for your consideration, and your service to the well-being of our Gilroy environment, visitors, and residents alike.

Sincerely,
Chrys Diskowski
24-year Gilroy resident
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10.1 p. 758 of 947
2 * Dark sky parks are becoming a tourist draw in many rural areas.

Light Pollution Article: https://www.nationalgeographic.com/science/article/nights-are-getting-brighter-earth-paying-theprice-light-pollution-dark-skies Gilroy Downtown / Brewery Article: https://www.mercurynews.com/2022/09/28/brewery-day-trip-gilroy-adventures-forcraft-beer-lovers/

10.1 p. 759 of 947
1 Cindy McCormick
From: james rogers <[email protected]>
Sent: Tuesday, October 25, 2022 7:56 PM
To: Cindy McCormick
Cc: Carolyn Tognetti; Carol Marques; Chrys Diskowski
Subject: EXTERNAL - Electronic Billboard ordinance
Hello Again Cindy,
I tried to tune in to the community meeting on this topic tonight, but was late at 6:30 PM. I was unable to find the meeting, so am submitting these public comments.

I am very much against electronic billboards of all types and in all locations. I have been following the “NO Digital Billboards” site in San Jose and agree with most of their positions. I believe they are garish and potentially distractions for drivers on the adjacent highway. They do not project the peaceful, bucolic image of Gilroy I believe in.

Will these two billboards provide any benefit for the citizens of Gilroy? Possibly increased sales tax from auto sales, which ARE important to the City. Has there been any analysis on this question? Thank you.

Connie Rogers
7690 Santa Theresa Drive
Gilroy, CA 95020
[email protected]
408-842-8494
Borrowing from the No On Digital billboards effort from San Jose, these are my reasons for opposition:
 Litigation threats - Billboard companies are already threatening to sue the City and each other over these billboards. This risk of endless litigation does not appear to be factored into the cost/benefit here.
 Insignificant revenue - Any proceeds from these billboards would be a tiny fraction of 1% of the City’s annual revenue; is it worth the tradeoff for more visual blight and an assault on our quality of life?  Driver distraction - Digital billboards threaten driver safety and runs counter to the city’s Vision Zero policy to eliminate traffic fatalities.

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10.1 p. 760 of 947
2 Energy hogs - Although LEDs by themselves may be energy efficient, these large energy intensive billboards require constant cooling and computer systems, and would be giant symbols of disregard for the City’s Climate Smart and Carbon Neutral 2030 policies.  Wildlife disruption - Digital billboards are opposed by the Audubon Society and the Sierra Club.  Light pollution - Lick Observatory would be negatively impacted due to light pollution, similar to the already intrusive Levi’s stadium Jumbotrons.

Local businesses do not benefit - Digital billboards typically advertise national consumer products.  No takedown requirement - Several of the proposed downtown sites do not have a requirement to take down existing conventional billboards.

10.1 p. 761 of 947
1 Cindy McCormick
From: [email protected]
Sent: Sunday, October 30, 2022 8:02 PM
To: Cindy McCormick
Subject: EXTERNAL - Gilroy billboards, why they're a bad idea Hi Cindy,
Thanks for giving the public an opportunity to speak at your Planning meeting regarding the proposed digital billboard(s) along 101 freeway.

Curious, when I posed a question about the restrictions from the California Outdoor Advertising Act protecting billboards once they go up, who was the gentleman that responded? I didn’t get a chance to comment after, but wanted to relay a concern that once a sign goes up along major corridors, such as freeways, the Act imposes a restriction on local municipalities. Thanks to billboard lobbyists, towns are required to pay sign owners for future loss of revenue, should local officials want or need to take the sign down. A similar state law in Minnesota resulted in St. Paul being required paying $4 million to take down one sign in order to expand a bridge.

Aside from the State law, there are several other reasons why such a project is detrimental to our local community, especially when you consider that media companies have been actively pursuing digital billboards in multiple cities along the peninsula (ie, Santa Clara, San Jose, Redwood City, Belmont, etc). When you consider one or two going up in a town, it may not seem that significant. However, when you consider the cumulative effect of these billboards, it becomes a greater concern. For example, commuters that are driving along 101 it becomes yet another distraction (compared to driving along 280 billboard free). A Lick Observatory representative has spoken multiple times at San Jose Council and Committee meetings, describing the negative impact to night sky viewing with the cumulation of light pollution from multiple sources - including digital billboards, even from miles away.

Should the City of Gilroy decide to pursue new billboards, you may want to be mindful that the process is fair and allows alternative vendors to bid or participate, lest you invite litigation - which is common practice in the billboard industry.

San Jose just got hit with a lawsuit from OutFront Media due to awarding a no-bid contract to ClearChannel (see article below).

The group I’m affiliated with, No Digital Billboards in San Jose, has a list of multiple references and reasons why digital billboards are a bad idea. You can view them on our website, along with multiple articles and op-eds on the topic here:
https://www.billboardsno.org/know-the-issue
Some articles that may interest you:

South Bay astronomers fear proposed airport billboards would threaten night viewing https://drive.google.com/drive/folders/1_G4SJ5Vf8ydJoTBR75tr-s2bHO5bftGD San Jose gets sued for ignoring it’s billboard rules
https://sanjosespotlight.com/san-jose-gets-sued-for-ignoring-its-billboard-rules/ Why we voted against San Jose airport digital billboard plans (by San Jose Airport Commissioners) https://drive.google.com/drive/folders/1_G4SJ5Vf8ydJoTBR75tr-s2bHO5bftGD CAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.

10.1 p. 762 of 947
2 Let me know if you have any questions or when I might get to hear when the Planning Commission plans to review this project again.

Regards,
Jason Hemp
San Jose Resident

10.1 p. 763 of 947
1 Cindy McCormick
From: Laurel Lindner <[email protected]>
Sent: Monday, January 16, 2023 1:07 PM
To: Planning Division (Public)
Subject: EXTERNAL - Electronic sign
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A giant electronic sign along one01 in Gilroy is a terrible idea and will be an eyesore. It’s not something we need, and hope you will definitely reconsider!
Laurel Lindner
408 823-2090
Sent from my iPhone

10.1 p. 764 of 947
1 Cindy McCormick
From: Genevieve Corbin <[email protected]>
Sent: Sunday, January 15, 2023 8:05 PM
To: Planning Division (Public)
Subject: EXTERNAL - No to electronic sign
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Do we really need something so obtrusive in our country atmosphere Sent from my iPhone

10.1 p. 765 of 947
1 Cindy McCormick
From: Jenniferthomson <[email protected]>
Sent: Monday, January 16, 2023 6:56 PM
To: Planning Division (Public)
Subject: EXTERNAL - Proposed Giant Billboard in Gilroy
To the Planning Dept -
As a member of the Gilroy community, I am asking you NOT to consider or allow a giant lighted billboard.

I think street lights should be considered as our town is too dark at night, making addresses harder to read.

Gilroy is not the place for giant lighted billboards. I think it is a bad idea, it would look tacky and they are much too bright. The smaller ones they have in San Jose are too bright - whoever came up with this idea, it is absurd.

Please strick down this idea. I do not want to see this type of advertisement looming over our town. I say NO to a giant billboard!!
Thank you
Jennifer Thomson
7571 Alexander Ave., Gilroy
************
Jen T.

Smile, smile, smile
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10.1 p. 766 of 947
1 Cindy McCormick
From: Judith Ames <[email protected]>
Sent: Monday, January 16, 2023 12:43 PM
To: Planning Division (Public)
Subject: EXTERNAL - Big Billboards
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Please do not allow billboards to be put up in Gilroy. We already have a poor reputation for visitors, let’s not make it worse.

VOTE NO

10.1 p. 767 of 947
1 Cindy McCormick
From: [email protected]
Sent: Monday, January 16, 2023 2:58 PM
To: Planning Division (Public)
Subject: EXTERNAL - Fwd: Giant Electronic Billboard in Gilroy? Is this a joke? A sign like this has no place in Gilroy. Bad enough we have the 3 story apartment building, Alexander Pl. right next to the train tracks reflecting noise. We don't need this kind of light pollution. If you want this, put it in your yard facing into your bedroom window.
-----Original Message-----
From: Your Hidden Glen neighbors <[email protected]> To: [email protected]
Sent: Mon, Jan 16, 2023 1:31 pm
Subject: Giant Electronic Billboard in Gilroy?
With 2 blazing screens (each the size of a small apartment at 672 square feet), looming 7-stories (75 ft) in the air, off of... 20 Giant Electronic Billboard in Gilroy? With 2 blazing screens (each the size... See more
Chrys D.
26 7 Share
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