Drivers in Daphne will soon notice a new digital billboard along U.S. 98, as a result of a settlement agreement with Lamar advertising.
The first digital sign in Daphne will consist of two 14-foot-by-28-foot faces and may not exceed a height of 36 feet above ground, according to the settlement. The sign will be located on U.S. 98, north of Jordan Drive, near Pizza Hut.
The conflict initially arose when the Daphne City Council denied five permit applications for off-premise signs. Lamar sued in Federal court in 2007, claiming the city denied its right to free speech, equal protection and due process, according to the settlement agreement.
At the time, the city felt it had the right to deny the applications because of a long-standing ordinance banning billboards within the city limits, said former City Council member Gus Palumbo.
The city allowed five Lamar signs to be grandfathered in, but once the face of the billboards had been destroyed by more than 50 percent they had to be taken down, in accordance with the ordinance, he said.
“The signs were destroyed by (hurricanes) Ivan and Katrina,” Palumbo said. “Lamar was supposed to take them down, but instead they put signs back up and we issued citations.”
As part of the agreement, Lamar will remove the five signs that were grandfathered in as part of the ordinance and won’t be allowed to erect another sign within the city limits, or within the police jurisdiction, which includes portions of U.S. 181.
“There’s a lot of give and take,” City Attorney Jay Ross said. “It was approved by a majority of City Council members.”
The council approved the measure last month by a 5-2 vote. The two dissenters were John Lake and Tommie Conaway. Both cited concerns with the settlement and the legal ramifications of allowing Lamar the only access to billboards in the city that had previously outlawed them.
“We gave them everything they wanted and got nothing in return,” Lake said. “What we’ve created is an eyesore in the middle of Daphne.”
Conaway said the agreement gives other billboard companies the chance to sue Daphne to prevent Lamar from having exclusive access to the city, which is provided by the agreement.
“It opens up the possibility of other companies coming in and putting up signs,” Conaway said.
Palumbo said he “guarantees other companies will apply for billboards.”
“You don’t have to be a legal genius to know that allowing one and keeping others out is unconstitutional,” he said. “We’ve traded one suit for others.”
Ross said that while the possibility of other suits was discussed at length, he doesn’t see the settlement opening the city up to other winnable suits. Andy Rutens, the lead litigator on the case, said he doesn’t see a loophole in the ordinance now that would allow another suit.
“Lamar had several legal theories to support their claim that the city of Daphne sign ordinance was unconstitutional when they applied for their signs several years ago,” Rutens said. “Since that time, the city has amended the sign ordinance and the main argument made by Lamar is no longer viable.”
Conaway, who admitted she doesn’t like digital billboards, also complained the new sign would detract from the beauty of the city.
“Having signs up would take away from the city,” she said. “This sets a bad precedent for Daphne.”
As part of the settlement, Lamar gets the right to cut down a tree that would block the view of the sign. The company would also be allowed to trim a pecan tree and four live oak trees near the location of the sign, according to the settlement. The city and Lamar must agree on a professional tree service, which will trim the trees on a regular basis. Lake and Conaway said they both had issues with allowing the trees to be removed or trimmed, because of the sign.
“This thing allows them to top the trees from now until perpetuity,” Lake said. “Where else in Alabama do we allow a sign company to cut down trees.”
Conaway said that portion of the agreement bothers her because “Daphne is a tree city.”
Mayor Dane Haygood said the company would replace the removed tree with a flowerbed. He added the agreement would consolidate all of the city’s billboards into a digital billboard.
“At the end of the day it’s the best thing for the city,” Haygood said.
Lake argued the five billboards Lamar now has to remove was a moot issue because they were obscured from sight because of tree growth.
“The reason they were so eager to take them down is because they were worthless,” Lake said.
Haygood added that while most of the litigation for the city was insured, he estimated Daphne still spent close to $50,000 in legal fees and that number would’ve continued to climb if the case hadn’t been settled.
“We eliminated the risk of liability if we lost (the case,)” Haygood said. “The litigation has been going on for seven years. If we would’ve lose we think the costs would’ve been $1 million.”
Lake and Palumbo said the city would’ve won its case in federal court and the settlement wasn’t necessary. The case was moved from federal court to state court in order to allow the settlement to be accepted, but Ross said that was because there were issues stipulated in the argument that weren’t argued in court.
Troy Tatum, general manager of Lamar’s Mobile office, said he believes the agreement was fair to both sides.
“I think it’s a fair compromise,” he said.
As part of the settlement, Lamar will donate one of the 12 advertising slots on the new billboard to the city for promotional messages and community announcements.
Once the billboard is placed, the city and Lamar will agree on a brightness level of the digital display. Lamar will purchase for the city, a luminance meter to measure the brightness. It’s unknown when the sign will be erected.