AGENDA #5e

 

MEMORANDUM

 

TO:                  Mayor and Town Council

                       

FROM:            W. Calvin Horton, Town Manager

                        Ralph D. Karpinos, Town Attorney

 

SUBJECT:       Response to Petition on Signs Posted on Utility Poles

 

DATE:             June 10, 2002

 

The purpose of this report is to respond to petitions presented to the Town Council on April 8 and May 13, 2002, seeking a change to the Town’s regulation prohibiting the posting of signs on utility poles.

 

We recommend that the Council take no action to modify the existing regulations. 

 

If the Council wishes to consider modifying these regulations we recommend the Council schedule such consideration for a regular business meeting this fall and provide public notice that it is considering amending these regulations. 

 

BACKGROUND

 

On April 8, 2002, a citizen appeared before the Council and asked that the Council consider repealing the Town’s regulations which prohibit the posting of signs on utility poles. The citizen raised issues regarding the use of the poles for advertising and notices to the community of upcoming events.  The citizen appeared again on May 14, 2002, and submitted written petitions containing 900 signatures supporting revision or repeal of the Ordinance.

 

The written petition requests “that the Chapel Hill Town Council revise or repeal Chapel Hill Ordinance Sec. 16-3 to allow the posting of signs or notices for advertising purposes on utility poles, in order to encourage free speech and grassroots marketing by local citizens and businesses” (Attachment 1).

 

A copy of the applicable Ordinance (Sec. 16-3) prohibiting the posting of signs on utility poles on Town streets and sidewalks is Attachment 2. Removal of signage on utility poles is handled, in the downtown, primarily by the Public Works staff and, in others areas of Town, by Inspections staff.

 

DISCUSSION

  1. Legal Issues.  

 

Section 16-3 of the Town Code is a legal and constitutional exercise of the Town’s general police power to regulate the streets and sidewalks and does not violate the Petitioner’s right to free speech.  Aesthetic values and other legitimate concerns related to public safety and littering are sufficient to support the Town’s current regulation.  Please see the attached excerpt from McQuillin, Municipal Corporations, (West Publishing 1997), (Attachment 3), in particular the text accompanying  footnotes 7-9, citing Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984):

 

            “The mere fact that government property can be used as a vehicle for communication such as the use of lampposts as signposts does not mean that the constitution requires such use to be permitted.”  (McQuillin, p. 435, at footnote 8)

 

1.      Policy Issues. 

 

We believe that this Ordinance is an appropriate tool to maintain the appearance of the Town as well as address other concerns related to public safety and littering.  We further believe that the other opportunities for posting of signage on Town-provided kiosks and on bulletin boards inside private businesses with the owners’ permission, as well as the opportunity to distribute handbills, provide an adequate avenue for “grassroots marketing.” 

 

In addition, we believe that the Police Department’s policies regarding enforcement are appropriate.  Those policies include requesting the persons who are found posting signs to stop doing so and to remove those signs which they have posted.  Citations are generally issued, in the discretion of the individual officers, only when voluntary compliance is not achieved.  

 

We recommend that the Council take no action at this time in response to the petition. 

 

2.      Options.

 

Options the Council could consider include:   

 

  1. No change to the current Ordinance.  We believe that the Town’s current and long standing regulations, as well as the enforcement policy in place, have served the community well and, as part of the overall set of Town regulations on posting of signs and distribution of information, reflect a reasonable balance in the somewhat competing interests of aesthetics and freedom of expression.

 

  1. Maintain the prohibition on signs, but eliminate the penalty.  The Council could consider modifying section 16.3 to provide that the posting of signs on utility poles is not allowed and that any signs posted are subject to immediate removal by Town staff, but that no person could be cited for a violation of this Ordinance. 

 

In order to make this change, a new paragraph to section 16-3 could be added to read as follows:  “Signs posted in violation of this section are subject to immediate removal by Town staff but no person posting or otherwise responsible for the placement of such signs shall be subject to being cited for a violation of this section of the Town Code.” 

 

However, we believe that given the current reasonable enforcement policy, this change is not necessary and that this option could have staffing and cost implications that should be considered. 

 

  1. Allow the posting of signs on utility poles, subject to removal by the Town staff on a routine basis.  The Council could consider enacting an Ordinance which would allow the posting of signs on utility poles, subject to removal by Town staff on a regular basis, as work schedules and staffing permit.  The objective of this would be, in part, to prevent the accumulation of signage on poles.  If the Council wishes to consider this option, we would recommend an additional provision that allows immediate removal of signs that are damaged or loose in order to avoid litter problems.  We also believe there are staffing and cost implications from this Ordinance change that would need to be considered.

 

In order to make this change, Section 16-3 could be revised to read as follows:

 

“Signs and notices on telephone, telegraph or electric light poles on the streets and sidewalks are subject to removal on a routine basis by Town staff, not more often than once a week, provided that signs that are damaged or loose may be removed immediately.”  Depending on when the Town staff removes posters at any particular location, this alternative could result in posters being removed shortly after they are displayed.

 

  1. Repeal of  Section 16.3.  The Council could consider repealing the Ordinance prohibiting the posting of signs on utility poles. If the Council were to do so, the owners of the poles could still choose to monitor their property and remove any unwanted signage.  Please see the letter from the District Manager for Duke Power indicating support for the existing regulations (Attachment 4).

 

If the Ordinance is repealed, we believe the Council would need to establish by Ordinance some standard under which the Town staff could remove signs, based on the condition of the signs. (See paragraph d, below.) 

 

In addition, if the Council is interested in considering a repeal of Section 16.3 in order to eliminate Town regulation of signs on utility poles, we believe that some modification to Section 16.2 of the Town Code (Attachment 5) should be considered.  Specifically, we believe that in order to allow signs on utility poles, the words “other than signs posted on utility poles” should be inserted after the words “No signs” in the first line of Section 16.2. 

 

There may be other options the Council would wish to consider if it believes that the current regulations should be examined further for possible amendment.  If the Council wishes to consider such options, we would recommend that this matter be referred to the Manager and Attorney for preparation of draft Ordinances. 

 

Under any of these options, we would recommend retaining the prohibition on signs being posted on trees.  In addition, we recommend that any change to the current prohibition on signs not include different regulations on the basis of the content of the information on the signs being posted.  We do not believe that it would be wise to attempt to draft an Ordinance that regulates signage on utility poles on the basis of the content of the message of the sign. 

 

Although no public hearing is necessary for a change to this provision of the Town Code, given the community’s interest in this issue, the Council may wish provide public notice of the changes being considered before enacting any new Ordinance.

 

3.      Development Ordinance Implications.

 

Posting of signs on utility poles is also prohibited by the Chapel Hill Development Ordinance.  According to Section 14.13.6 of the Development Ordinance (2nd Paragraph):

 

“. . .nor shall any sign be attached, affixed, or painted on any utility pole, light standard, telephone or telegraph pole. . .”

 

Under Section 23.2 of the Development Ordinance:

 

  “any . . . other person who participates in . . .any situation that is contrary to the requirements of this chapter may be held responsible for the violation and be subject to the penalties and remedies provided herein.”

 

If changes to Section 16.3 of the Town Code are to be considered to allow posting of signs on utility poles, amendments to Section 14.13.6 of the Development Ordinance should also be considered.  Changes to the Development Ordinance require a recommendation from the Planning Board and a Public Hearing.

 

RECOMMENDATION

 

We recommend that the Council not consider any modification to Section 16-3 of the Town Code.

 

ATTACHMENTS

 

1.                  Copy of Petition (p. 5).

2.                  Section 16-3, Town Code (p. 6).

3.                  Excerpt from McQuillin, Municipal Corporations (p. 7).

4.                  Letter from Duke Power (p. 11).

5.                  Section 16-2, Town Code (p. 12).