U.S. Supreme Court Justice George Sutherland (a former U.S. senator and congressman from Utah) colorfully noted in the landmark 1926 case of Euclid v. Ambler Realty Co.: "A nuisance may be merely a right thing in the wrong place — like a pig in the parlor instead of the barnyard."
Euclid upheld the constitutionality of local zoning ordinances that regulate the use of property by analogizing such regulation to the uncontroversial power of government to remedy nuisances. In so doing, Sutherland noted that the validity of such restrictions would undoubtedly vary because of local circumstances — that restrictions that made sense in a metropolis might be inappropriate in a rural area, and vice versa.
In determining issues like the compatibility of land uses or how land use might affect public safety and aesthetics, context is everything. That is why it makes sense to leave zoning issues to local government; local government comprehends, better than any other level of government, the contextual issues that affect compatible use and safety. It knows whether the right thing is in the wrong place.
This is the primary reason Sen. Wayne Niederhauser's SB136 is terribly misguided. In an arena where local context means everything, SB136 would override local control of billboards. Among other things, the bill would allow billboard companies to change existing billboards to bright LED displays regardless of local zoning ordinances.
Two justifications are being put forward in favor of the bill. The first is that billboard companies are subjected to a patchwork of different zoning requirements. They would, understandably, prefer to have just one set of standards to deal with. But if one accepts that local control makes sense in this regard — that signage for Times Square might be regulated in a different manner than signage for a historic mountain ski town — then a patchwork of local regulations is no more unreasonable than any other local zoned-used restriction.
The second justification is that property and commercial speech rights are jeopardized when local governments regulate billboards. It is true that the regulation of billboards affects speech rights. But the Supreme Court has provided clear standards for how commercial speech rights should be balanced with land use planning, holding that traffic safety and aesthetics are substantial government interests that can be advanced through regulation of signage, provided the scope of the regulation is not too extensive.
Our primary concern about this legislation is the imprudent override of local control. But when we looked closely at the 47-page amended bill, we became even more alarmed at what this imprudent legislation says about the power of special interests in our Legislature. Let us leave for another day the many important ways that eminent domain might be reformed in Utah, but why is it that the state would modify its core eminent domain statute with provisions and procedures specific to the billboard industry?
Reports indicate that a billboard company that would benefit specifically from SB136 has spent hundreds of thousands of dollars in campaign contributions over the past several years. That is their right. But it is our right to note that this legislation is so larded up with provisions that favor one industry at the expense of long-settled principles of land use planning and local control that legislators should, at the very least, scrutinize the bill's provisions and their own motives when they consider it. To us it smells too much like a pig in the parlor.
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