Evidence-Based Sign Regulation: Regulating Signage on the Basis of Empirical Wisdom

Since the advent of zoning, communities have attempted to regulate signage on grounds of health, safety, and welfare.^sup 8^ These regulations controlled a number of variables, including, but not limited to: sign size,^sup 9^ letter height,^sup 10^ luminosity,^sup 11^ positioning,^sup 12^ height,^sup 13^ and construction materials.^sup 14^ When challenged, cities defend most of these regulations based on claims of traffic safety, i.e. signs that are "too big" are dangerous to drivers.^sup 15^ While traffic safety may be a valid police power-supported concern,^sup 16^ many sign codes have been successfully challenged given the protections afforded by the First Amendment to both commercial and noncommercial signs.^sup 17^ This article suggests that communities should be allowed to regulate signage, but only to the extent that the municipality can prove that the regulations are based on empirical evidence that supports the alleged safety concerns.^sup 18^ In this paper, the authors describe their efforts to develop a model evidence-based sign code and a model example of performance zoning with the intent of balancing the municipality's desire to regulate signage with the right of business owners to identify prospective customers and communicate with them. Performance zoning ordinances now commonly protect natural resources. Because it is such a flexible tool, proposals for potential uses of performance standards range from reducing obesity to overcoming racial segregation.