"Beautiful," "Exceptional" "Design" Test for Sunset Strip Billboard Approval Violates First Amendment

This is in West Hollywood, right near where I lived for a while; many of the Sunset Strip billboards are indeed visually striking, but that doesn't mean the permitting scheme can rely on city officials' aesthetic judgments.

From Judge Fernando Aenlle-Rocha (C.D. Cal.) in KBS Holdco, LLC v. City of West Hollywood, decided July 8 but just recently posted on Westlaw:

The amendments to the Sunset Specific Plan (the "Amended Billboard Plan") include "new standards and guidelines to regulate the distribution, size, location, and operation of new and modified billboards and tall walls," and design principles intended to "ensure high-quality signage projects that are creative, contextual for Sunset Boulevard, and sensitive to adjacent land uses." Under the Amended Billboard Plan, applications for new off-site signs must be "screened for design excellence in accordance with a process and procedures established by the City Manager, or designee" and granted concept awards, before applicants may apply for development agreements with the City. According to Plaintiff, the City Manager or his or her designees created the Sunset Arts and Advertising Program to conduct the screening process and delegated all discretion and decision-making authority to the Design Excellence Screening Committee (the "Screening Committee")….

Round 2 applications were reviewed and scored by the Screening Committee on ten "evaluative criteria" stated in the Submission Guide. Applications were required to receive an average weighted score of 225 out of 250 points to secure a concept award. These criteria and their associated point values were:

1) "Is the design exceptional (see Section 2.1 'Design Quality' of the 2019 Billboard Policy)" – 50 points;

2) "Does the project create a unique opportunity for the display and experience of public art?" – 30 points;

3) "Does the project showcase a commitment and sensitivity to the importance of diversity in the architectural design and/or advertising industry?" – 30 points;

4) "Does the project create and sustain a positive land use outcome? (New development project, rehab of building, preserve an important building or use)" – 30 points;

5) "Does the project add value to the public realm, the experience of place, and the pedestrian experience along Sunset?" – 25 points;

6) "Does the project create valuable signage that reinforces Sunset as the premier destination for creative advertising?" – 25 points;

7) "Does the project create positive economic development outcomes on the Sunset Strip?" – 25 points;

8) "Does the project align with the City of West Hollywood's ongoing and future initiatives toward sustainability and best green practices?" – 15 points;

9) "Does the project build on the historic and cultural aspects of the Sunset Strip?" – 10 points; and

10) "Is there a positive relationship between the proposed sign and existing or other proposed signage projects?" – 10 points.

As pleaded here, the Amended Billboard Plan and Round 2 submission process require applications for new off-site signs to be evaluated based on broad, subjective and indefinite criteria including whether the designs proposed are "exceptional," "create a unique opportunity for the display and experience of public art," "add value to the public realm, the experience of place and the experience along Sunset Blvd," and "create valuable signage that reinforces Sunset as the premier destination for creative advertising." These evaluation criteria vest unbridled discretion on the members of the Screening Committee to deny applications and are insufficiently narrow, specific, and objective to survive constitutional review….

The unbridled nature of the discretion and decision-making authority the City vested in the Screening Committee is demonstrated by the first criterion alone, which the Submission Guide explains as follows:

IS THE DESIGN EXCEPTIONAL?

Innovative media formatting integrated with excellent building design

• Size, proportion, display materials/methods differentiates from standard billboard formats and display methods.
• Is there a consistency of style, a cohesive approach between the proposed sign and development? This includes: vertical orientation, curved or multi-planar surfaces, and/or non-standard proportions to which create an original and imaginative sign.
• Creatively uses the latest in technology to ensure digital image quality.
• Durable, functional, beautiful, harmonious with context.

Timeless design approach that contributes to the iconic nature of Sunset Blvd

• Simple, durable, classic proportions, minimal, relatively unadorned.

Quality of design approach for the billboard, building architecture, public spaces

• Such as architectural lighting elements, green walls, or other innovative design features. Especially those that complement, integrate, or operate with any proposed off-site signage and public art.

Responds to topography and curves of the street

• Aligns to curves and topography creating focal points, visual surprise and interest.

Quality & cohesion of creative features, signage, and architecture integration

• How well do the features integrate into the overall project?
• Is there a cohesive design approach through materials, style, colors, lighting, texture, and other features?

Most if not all of the elements of this explanation (such as whether the design is "innovative," "excellent," "beautiful," "harmonious with context," "[c]reatively uses the latest in technology," or reflects a "[t]imeless design approach that contributes to the iconic nature of Sunset Blvd") are so vague, indefinite, and subjective as to vest unbridled discretion on the individual evaluators. These statements and questions do not give either applicants or evaluators a clear idea of what would merit a full score of 50 points for a design, rather than 25 points or 0.

It is also unclear whether each of these five sub-criteria must be evaluated separately and the weight each should receive, or whether evaluators simply assign a single point value for this criterion while keeping all these disparate statements and questions in mind. Accordingly, it is impossible for a court to review the score given by an evaluator and decide objectively whether he or she applied the design principles stated in the Amended Billboard Plan correctly to grant or deny a concept award. Given that this criterion is worth 50 points, an average score of less than 25 on this criterion alone would be sufficient to bring the total score below the 225-point threshold for a concept award, rendering the applicant ineligible to apply for a development agreement or obtain a permit to erect the proposed sign. The other criteria are no better.

This issue is also demonstrated by the scores Plaintiff allegedly received on one of its submitted applications: 230, 211, 191, 188, 168, and 95. It is unclear why the highest scoring evaluator believed the application merited a 230 (92%)—which reflects a determination that the design was "one of the highest top-scoring projects within the designated submission category"—while another evaluator believed it merited only a 95 (38%). Tellingly, the single score of 95 alone would have been sufficient to bring the average score for the application below the 225-point threshold for a concept award, even if all five other evaluators gave the application perfect scores.

The subjective nature of these criteria and unbridled nature of the discretion granted are compounded by the fact that the applications are evaluated and compete against other applications for a limited number of concept awards—requiring the Screening Committee to decide not only whether an application meets these criteria but whether it does so better or worse than other applications. It is also unclear who selected these criteria and related explanations, determined the weight each should receive, or decided the threshold score to secure a concept award. To the extent these actions were taken by the City Manager or Screening Committee rather than through an ordinance enacted by the City, this would further demonstrate the City delegated overly broad and unbridled discretion and decision-making authority to the City Manager and Screening Committee.

The City contends the Amended Billboard Plan and Round 2 screening process provide "adequate standards to guide" discretion and "cabins discretion far more than the Supreme Court and Ninth Circuit have required in other cases" … citing Outdoor Media Grp. v. City of Beaumont (9th Cir. 2007) & G.K. Ltd. Travel v. City of Lake Oswego (9th Cir. 2006)). The court disagrees. Unlike in the cases cited, the Amended Billboard Plan and Round 2 screening process do not establish clear standards to cabin the licensing official's discretion to grant or deny applications based on specific objective and measurable criteria established by ordinance. Cf. City of Beaumont (finding a regulation constitutional where the ordinance "delineate[d] fairly specific criteria regarding the relationship between the sign and the site" and the licensing official's "discretion [was] not unlimited, but cabined by specific findings regarding the relationship of the sign to the site, the freeway, and other signs in the area"); City of Lake Oswego (finding a regulation constitutional where "[t]he City [could] deny permits only when the sign [did] not comport with the Code's reasonably specific size and type criteria or [was] not compatible with the surrounding environment" based on "a limited and objective set of criteria" explicitly established by the ordinance, "namely 'form, proportion, scale, color, materials, surface treatment, overall sign size and the size and style of lettering'").

In sum, the court finds the Amended Billboard Plan and Round 2 submission process unconstitutionally delegate overly broad and unbridled discretion and decision-making authority to the City Manager and Screening Committee …. Plaintiff has alleged sufficient facts to plead the Amended Billboard Plan and Round 2 submission process violated the First Amendment ….

Comments

[Dr. Ed 2]

How is this different from a Board of Zoning Appeals specifying that a building be painted a certain color because it feels that color is more esthetically pleasing? Or have three windows instead of two on a certain floor, and things like that....

Or how about the Hadley (MA) ordinance that every building must have clapboard siding and a pitched roof? (They have a lot of existing nonconforming gas stations and such that were built before the ordinance.)

Conversely, some of the things in the old Boston Combat Zone (more painted on buildings than freestanding) legitimately ought not have been in public.

[ReaderY]

The court here articulated the standard that distinguishes the two. The color, the number of windows, the existence of a pitched roof, and similar features that you described are all objectively discernable, so officials aren’t given unfettered discretion to grant or deny a permit as they please. But whether a sign is “beautiful” or “outstanding” is not objectively measurable or discernible, so officials’ discretion is not meaningfully or reviewably cabined.

[ReaderY]

In National Endowment of the Arts v. Finley, the plaintiffs had argued that considering the moral qualities of art in deciding whether to provide grants constituted censorship violating the First Amendment.

I always wondered what would have happened if the plaintiffs had managed to persuade the Supreme Court of this point. For if considering the moral qualities of art in deciding grants violates the First Amendment, surely considering its aesthetic qualities must also do so, as this case illustrates. What could the plaintiffs have gotten as a remedy? Would the NEA have had to award grants by lottery?

In Finley, the plaintiffs had attempted to distinguish the two by arguing that aesthetic qualities, unlike moral qualities, are completely objective. Not only do I agree with the court in this case that they are not, it seems so obvious to me that I find myself wondering how the lawyers who argued otherwise managed to keep a straight face.

This case is obviously different from Finley because here government is not giving people grants, where it has considerable discretion in deciding how to spend its own money. Here it is regulating how people will be permitted to use their own property, a very different situation.

[Drewski]

"Not only do I agree with the court in this case that they are not, it seems so obvious to me that I find myself wondering how the lawyers who argued otherwise managed to keep a straight face."

That's because you and the court are both ignorant of how art criticism works and too stupid to understand that ignorance is not the same as knowledge.

[Bill Poser]

You really mean to say that art criticism is objective! Seriously?

[Frank Drackman]

Hey-Zeus! Californians would have had more rights under Mexican rule, maybe they will in the future.

[John F. Carr]

Subway musicians in Massachusetts were required by regulation to have a permit granted after an audition. I wondered how that would hold up in court.

The MBTA did repeal a regulation requiring a permit to take pictures in the subway, a decade or more after it was no longer enforceable in practice.

[Absaroka]

Speaking of MA doing a good job of consumer protection, it seems require licenses for fortune tellers. Think of the harm that could be caused by quack fortune tellers giving out false fortunes.

[Krayt]

4) "Does the project create and sustain a positive land use outcome? (New development project, rehab of building, preserve an important building or use)" – 30 points

Most of the points are nebulous, feel-good generalities with a hole big enough to drive a censorship convoy through. That's bad enough, but this is a bridge too far. Government can speak whatever it wants with its voice, but not with yours.

[Bored Lawyer]

I've been to LA. Most of it looks like a dump.

[Frank Drackman]

But it's a "Green" dump!

[Sarcastr0]

Whatever. LA contains multitudes.
Some of them are dumpy; some of them are plasticky; some of them are suburban; some of them are desert.

It's very big - hardly a single city at all.

[SRG2]

I'm reminded of what happened with Morgan Stanley's HQ in Times Square. They had acquired the building owing to a default (itself a fascinating story) and decided on the usual modest Wall Street-type signage - a small brass plate with their name and address. (As Goldman used to say, anyone who knows us and where we are doesn't need to see a large sign, and anyone who does isn't anyone we care about.) They were informed that zoning regulations in Times Square required them, to have conspicuous signage, so up went the giant ticker, Morgan Stanley signs, etc. And people at all the other Wall Street firms said, "damn, why can't our offices have something as cool as that?"

[Randal]

Another problem that AI will soon solve.

[Stephen Lathrop]

Not going to engage the legal argument.

But please note: the scores noted in the OP cluster fairly nicely if you discard the highest and the lowest. That is not surprising to me. Professional design is not as subjective a field as the court supposes, or for that matter, the commenters here suppose.

It is of course true that if you imposed those criteria on lawyers, who attempted to comply by offering designs of their own, the results would be all over the map. Lawyers, doctors, economists, statisticians, historians, psychologists, and god knows how many other kinds of learned professionals typically lack design expertise.

That is not news to professional designers—who generally regard doctor/businessmen as among their most troublesome potential clients—combining the worst extremes of design ignorance with the highest levels of assertive self-assurance.

In the design profession it is common practice at the outset of a design development effort to present the client with a range of alternative approaches to choose from. That practice has to be handled with restraint in the cases of doctor clients, who too often choose the worst alternative, and insist on it. The reasoning is that the client hires you to deliver help, not to do harm. Sometimes loyalty to that principle requires recognition that a client does not need to review every mistaken approach.

After many years working in a nationally influential design studio I gained experience enough to notice something I thought was interesting. If you gave multiple designers the same set of client criteria, and said, "Give it your best shot," design theme results from various professional designers likely be strikingly different. But if you then convened the designers and asked what tweaks would best improve each approach, the initial suggestions matched closely, and converged quickly. The first result demonstrated the role of creativity and originality, the second result demonstrated the role of design professionalism.

Design expertise is at least as objective as legal analysis, except when legal professionals are doing the design analysis. In the case presented above, someone will be imposing a design standard on the area under consideration. It is less rational than the lawyers suppose to insist it ought to be them, instead of professional designers.