AGENDA #12

 

MEMORANDUM

 

 

TO:                  Mayor and Town Council

 

FROM:            W. Calvin Horton, Town Manager

Ralph D. Karpinos, Town Attorney

 

SUBJECT:       Town Regulation of Non-Commercial Signage

 

DATE:             January 14, 2002

 

This report has been prepared in response to the directive of the Town Council, on September 19, 2001, for a comprehensive report on the Town’s development regulations and current ordinance enforcement policies pertaining to non-commercial signage.   On the basis of our review of the Town’s regulations we recommend that the Manager be directed to resume enforcement of current regulations.  We also recommend the Council consider modifications, as discussed below, of certain provisions of the Town’s Development Ordinance pertaining to non-commercial signage. 

 

Resolution A would direct the Town Manager to re-institute enforcement of the Town’s regulations regarding non-commercial signage on private property.  Resolution B would call a public hearing to modify the current Development Ordinance regulations on the length of time a political sign can be posted and the number of such signs permitted on a zoning lot.

 

BACKGROUND

 

Following the tragic events of September 11, 2001, a banner was placed on the facade of the Top of the Hill Restaurant at the corner of Franklin and Columbia Streets.  The message on the banner read “GOD BLESS AMERICA; WOE TO OUR ENEMIES”.  Concerns were raised by citizens, including Town elected officials, regarding the content of the sign and the sign’s compliance with provisions of the Town’s Development Ordinance.  A determination was made by the Town’s Inspections Department that the sign did not comply with the size limitation for movable signs in the Town Center-1 zoning district as provided in the Development Ordinance.  Based on that determination, the matter was brought to the attention of the persons responsible for placing the sign and the sign was voluntarily removed. 

 

Considerable local and some national attention was drawn to the actions taken by the Town.  The Council, on September 19, unanimously adopted the recommendation of the Mayor to instruct the Town Manager to immediately suspend enforcement of the Town’s sign ordinances that regulate or prohibit non-commercial signs on private property unless the signs are determined, due to structure or location, to constitute a hazard to public safety.[1]  The Council further asked for this comprehensive report on Town sign regulations (see Attachment 1).

 

Current Town Regulations

 

            Current Town regulations applicable to non-commercial signage are located in a number of places in the Town’s Ordinances:

 

A)    Development Ordinance.  Town zoning regulations for signs on private property are found in Section 14.13 of the Town Development Ordinance. (Attachment 2).   Section 14.13.4 of the Development Ordinance exempts from regulation a number of categories of signs provided the signs do not violate traffic safety standards in 14.13.5 of the Development Ordinance.  Signs exempt under 14.13.4 include:

 

“h)  Temporary political signs advertising candidates or issues, provided such signs do not exceed one sign per zoning lot nor four (4) square feet in area per display surface, are not erected prior to thirty (30) days before the date of the appropriate election, and are removed within seven (7) days after the election.”

 

                  Signs exempt under 14.13.4 also include: 

 

                         “l)   Signs in the Town Center 1 and 2 districts which are no more than six (6) square feet in area per display surface.  This provision applies only to changeable or moveable signs which are limited to one (1) per business.  Changeable or moveable signs are those non-illuminated signs that change or are moved on a daily basis.”  

 

(Signs not exempted are subject to the size and permitting provisions of the Development Ordinance.  In the case of the sign at the Top of the Hill, upon receipt of the complaint, the staff examined the sign and the site and reviewed the provisions of the Ordinance.  The staff concluded that the sign, based on the size limitations for exemptions cited above, appeared not to fit any of the exemptions. The sign therefore would need to go through the appropriate application and review process to determine if it could be permitted and displayed.)   

                       

B)     Town Code. Chapter 16 of the Town Code regulates signs on the public right of way.  (Attachment 3).  Based on this Chapter, and in particular, Sec. 16-2, the Town Manager has generally allowed political signs in the right of way that would otherwise be allowed on private property, under 14.13.4 (h) of the Development Ordinance,  as long as the signs do not interfere with the use of the right of way or create a safety concern.  There are some specific exceptions to this rule in Chapter 16 of the Code including a prohibition on signs on trees and utility poles.

 

C)    Policy on Town Property. The Town Administration’s policy with respect to Town Property, as opposed to Town maintained public right of way, has been to not allow political signs.  Precise measurements are not made to ensure that a candidate sign is on right of way, rather than the site of a particular Town facility.  However, Town practice has been to remove political candidate signs that are clearly on Town property.  An exception to this policy is made on Election Day, when signs are allowed at Town facilities that serve as polling places.  Signs at polling places still must comply with the requirement of State law that they not be within 50 feet of the polls. (N.C. General Statute Sec. 163-147).

 

D)    Picketing on Sidewalks.  Signs being carried by persons engaging in picketing are regulated by Sec. 11-58 of the Town Code (Attachment 4) and may not exceed two feet in width and two feet in length. 

 

Current Town Enforcement Policies and Techniques

 

The Town Administration’s enforcement techniques depend on the nature and severity of the particular violation involved.           

 

A)       Development Ordinance.  Enforcement of provisions of the Development Ordinance is usually based on receipt of a complaint.  A principal reason for this policy is the limitation on resources available to follow up alleged ordinance violations that the staff observes on its own.  (Staff would, however, take a more pro-active enforcement role if they observed an apparent violation that was newly established and/or clearly constituted a health or safety hazard.) The particular reason for the complaint (e.g., objection to the location, message, or size, etc.) is not considered by staff in deciding whether to investigate a complaint called in.  The particular site subject to the complaint is viewed by the Inspections staff.  If necessary, consultation with the Planning Department and Town Attorney may take place.  If it is determined that a violation appears to exist, we attempt to contact the property owner or person responsible for the sign to discuss the situation and see if voluntary compliance can be achieved.  If such efforts to seek a resolution of an alleged violation are not successful, the Development Ordinance (Article 23, Attachment 5) provides a process whereby an owner is notified in writing that a violation exists, and given an opportunity to correct the violation or appeal the staff determination to the Board of Adjustment. 

 

B)        Town Code.  The Town has a different responsibility and enforcement procedure for activity in the public right-of-way.  Generally, if a sign is located in a manner which interferes with the orderly use of said, Town staff will remove the sign.  Depending on the location and the nature of the Town’s need to remove the sign, the sign may be placed on the ground nearby (for example, if removal is necessary to allow mowing of a highway median) or may be brought to Town Hall or the Public Works office where the owner may be afforded an opportunity to reclaim it. 

 

C)       Signs on Town Property.  Signs improperly placed on Town property are subject to removal by Town staff and also may be brought to Town Hall or the Public Works office where the owner may be afforded an opportunity to reclaim it. 

 

 

Statutory Authority for Sign Regulations

 

North Carolina Municipalities derive their regulatory authority from a grant of power from the North Carolina General Assembly.  Statutory authority for the Town to regulate signs comes from the General Police Power granted municipalities.  See, in particular, N.C. General Statutes Secs. 160A-174 and 160A-296, the latter providing the Town the power to control streets.  The Town’s Police Power also includes the authority to regulate the use of private land under the Town’s Planning and Zoning Police Power.  See N.C.G.S. Sec. 160A-381. 

 

As explained by N.C. G. S. Sec. 160A-174, any regulations established by the Town must be consistent with State and Federal Constitutional Lae (Statutes are in Attachment 6).

           

Constitutional Limitations

 

As was correctly noted during the brief public debate over the Top of the Hill sign, the primary Federal Constitutional issue raised by the Town’s regulation of non-commercial political signs is the right to free speech found in the First Amendment to the U.S. Constitution.  A second issue raised by the discussion last fall was whether the Town’s policy of enforcement based on receipt of complaint raised a separate First Amendment issue or an issue under the Equal Protection Clause of the Fourteenth Amendment.  Attached are a number of excerpts from legal research materials in the Town Attorney’s Law Library which discuss some of the legal and constitutional issues pertaining to regulation of non-commercial signage (Attachments 7, A-D).

 

A.     First Amendment.  Municipalities may enact reasonable regulations relating to the posting of non-commercial signage under the First Amendment to the U.S. Constitution.  Such regulations may establish reasonable limits on the time, place and manner of such signs and should not be based on the subject matter of the message or the particular point of view expressed in the message.  The Courts will look carefully, if a case is brought to them, at any such regulations to determine the reasons for the regulations and their reasonableness.  Any such regulations should be tailored to achieve a significant or substantial governmental purpose and should leave open adequate alternative channels of communication.   Aesthetic considerations are recognized as a legitimate governmental purpose.  (Please see the Attachments for a thorough commentary on these matters.)

 

B.     Enforcement Policy.  Last September the Town was criticized for its complaint-driven enforcement policy.  Comments indicated that this could result in enforcement being based on the content of the message on a sign.  Town staff does not inquire as to the motivation of the person bringing a potential violation of any Town regulation to the attention of the staff for investigation.   We believe that enforcement procedures that depend primarily on receipt of a citizen complaint allow the staff to be responsive to community concerns, and that this is the best way to allocate limited Town resources.  We believe that such enforcement policies are “content-neutral.”  If, on the other hand, the staff were to select which citizen complaints to respond to based on the reason for the complaint, (for example, whether the complainant objected to the content of a particular political sign-- which cannot be an enforcement concern-- as opposed to just its size) we believe that such decision-making would not be content-neutral and would be more likely to be legally suspect than the current practice. 

           

General Observations

 

Based on our review of the Town’s current regulations and the legal commentary attached, we offer the following general observations:

 

1.      We believe that the Town’s current regulations are, for the most part, reasonable and meet the needs and expectations of the community.  Even after the temporary suspension of regulations in September, 2001, we note candidates in the November election campaign appears to have generally followed the Town’s size and time limits. 

 

2.      Given the Town’s limited resources, we believe that the Town’s current policies on enforcement are reasonable and appropriate and, for the most part, meet the needs and expectations of the community.

 

3.      The extraordinary and tragic facts and circumstances of September 11, which shortly preceded the Top of the Hill sign controversy created a highly charged atmosphere, as evidenced by the national publicity and scores of e-mail messages received by the Town.  We believe a contributing factor to the controversy was the somewhat inaccurate manner in which the facts were reported in the media.[2]  The sign enforcement controversy that followed these events may not necessarily warrant substantial modification to the Town’s policies and regulations.  

 

4.      Based on changing circumstances in the community the Council may determine that it would be appropriate to reevaluate and modify certain provisions of the Town’s current regulations on non-commercial signage.

 

5.      Upon review of the attached legal commentary, we believe that the Council should consider modification of certain provisions of the Town’s Development regulations.  Specifically, we believe:

 

a.       The time period in the exemption for temporary political signs (which establishes a 30 day pre-election and 7 day post-election time limit) is very restrictive.  We believe that many candidates will continue to choose to wait until about a month before an election to post signs.  However, based on the Court decisions discussed in the attached materials, a reasonable argument could be made in support of extending this time period.  We would specifically propose that the Council consider modifying the time periods to 45 days pre-election and 12 days post-election.  This would allow signs to be displayed on the weekend six weeks before a Tuesday election and would allow candidates until the second weekend following an election to collect their signs. 

 

b.      The time period for non-commercial signs not associated with an election would benefit from clarification.  The current exemption for political signs four square feet or less has a clear time limit for those signs associated with an election.  For political signs that are not associated with an election it is not clear that a time limit applies or, if a 30 (or 37 day) time limit does apply, for how long a sign must be taken down before it can be replaced. 

 

c.       The limit on exemptions for political signs to one per zoning lot is currently often violated and perhaps should be considered for change.

 

d.      It may be desirable to review current size and time limits on exemptions for temporary banners and movable signs to see if these continue to yield results that the Council and community find acceptable.  

 

Next Steps

 

We believe that Council may wish to consider this report, invite interested groups to offer comment and then consider whether to pursue modifications to the Town’s regulations pertaining to non-commercial signs.  Modification of the regulations in the Development Ordinance would require a public hearing and receipt by the Council of a recommendation from the Planning Board.  Revisions to the Town Code (which regulate signs on the right-of-way and Town property) do not require these additional steps.

 

RECOMMENDATION

 

We recommend that the Council adopt Resolution A, rescinding its motion of September 19, 2001, and thereby authorizing the Town Manager to begin enforcement of Town sign ordinances that regulate or prohibit temporary non-commercial signs on private property.

 

We also recommend that the Council adopt Resolution B, calling a public hearing on revisions to the Town’s Development Ordinance to modify limits pertaining to time and number of signs per zoning lot and to clarify the applicability of these provisions to non-election political signs.

 


 

ATTACHMENTS

 

  1. Excerpt from Council Meeting minutes, September 19, 2001 (p. 1).
  2. Section 14.13 of the Town Development Ordinance (p. 3).
  3. Chapter 16 of the Town Code of Ordinances (p. 13).
  4. Section 11-58 of the Town Code (p. 14).
  5. Article 23 of the Town Development Ordinance (p. 15).
  6. North Carolina General Statutes:
    1. G.S. Sec. 160A-174. General ordinance-making power (p. 16).
    2. G.S. Sec. 160A-296. Establishment and control of streets; center and edge lines (p. 17).
    3. G.S. Sec. 160A-381. Grant of power (p. 18).
  7. Legal Commentary:
    1. “Municipal Regulation of Political Signs:  Balancing First Amendment Rights Against Aesthetic Concerns” (p. 19).
    2. Federal Land Use Law (Section on Political Signs) (p. 47).
    3. “Election Signs and Time Limits” (p. 60).
    4. Zoning and Planning Deskbook (Section on Sign Controls) (p. 80).

 


RESOLUTION A

 

A RESOLUTION DIRECTING THE TOWN MANAGER TO RESUME ENFORCEMENT OF TOWN REGULATIONS PERTAINING TO NON-COMMERCIAL SIGNS ON PRIVATE PROPERTY (2002-01-14/R-16a)

 

WHEREAS, the Council has received and considered a report from the Town Manager and Town Attorney pertaining to non-commercial signs on private property;

 

NOW, THEREFORE BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council’s directive of September 19, 2001, to the Town Manager to not enforce sign regulations pertaining to non-commercial signs on private property is hereby rescinded and the Manager is hereby directed to resume the Town’s standard practices for enforcement of such regulations.

 

This the 14th day of January, 2002.

 


RESOLUTION B

 

A RESOLUTION CALLING A PUBLIC HEARING TO CONSIDER AMENDMENTS TO THE TOWN DEVELOPMENT ORDINANCE RELATED TO THE TIME FOR POSTING OF POLITICAL SIGNS AND THE NUMBER OF SUCH SIGNS PERMITTED ON A ZONING LOT (2002-01-14/R-16b)

 

WHEREAS, the Council has received a considered a report from the Town Manager and Town Attorney pertaining to non-commercial signs on private property;

 

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council calls a Public Hearing to consider amendments to the Development Ordinance related to the time for posting of political signs, the number of such signs permitted on a zoning lot, and the application of such regulations to signs not related to elections;

 

BE IT FURTHER RESOLVED that this matter be referred to the Town Manager and the Planning Board for a report and recommendation, and that the Manager is authorized to schedule this for Public Hearing at an upcoming Council Public Hearing prior to the Council’s summer recess.

 

This the 14th day of January, 2002.

 



[1] The sign at Top of the Hill was not displayed again, however, following this action by the Council.

[2] We believe two inaccurate elements of local media coverage in particular should be noted for the record:

a) headlines and reports that the Town “ordered” removal of the sign; and,

b) reports that the Town’s actions were taken as a result of objections by elected officials to the message of the sign. 

For clarification purposes:

a)Town staff approached the person responsible for the sign and, based on its size, requested its removal, which was done voluntarily. Town staff also said that a sign could be put up as long as it met the 6 square foot limitation.

b)The apparent violation was first brought to the attention of Town staff by private citizens, other than elected officials, and staff was in the process of following up on the complaint before elected officials raised their concerns.