TO: Mayor and Town
Council
FROM: W. Calvin Horton,
Town Manager
Ralph D. Karpinos, Town Attorney
SUBJECT: Town Regulation of
Non-Commercial Signage
DATE:
This report has been prepared in response to the directive of the Town
Council, on
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.
Following the tragic events of
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).
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.
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.
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).
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.
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.
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
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
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
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
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.