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HomeMy WebLinkAbout2009 01 12 Regular 605 "Open House" Off-Premise Directional Sign IssueCOMMISSION AGENDA ITEM 605 January 12, 2009 Meeting REQUEST: Mgr. / Att. / Dept. The City Attorney requests that the City Commission discuss and provide direction on issues related to the City's temporary sign regulations including, but not limited to, the "open house" off=premise directional sign issue previously presented by the Local Realtors Association. The City Attorney presents several options for the Commission's consideration. PURPOSE: The purpose of this ltem is for the City Commission to evaluate the current temporary sign regulations which were comprehensively amended in 2006. Primarily, local Realtors have requested that the City Commission consider amending the current sign code provision which prohibits "Off Premises" signs. Secondarily in light of the realtor's request, the previous City Commission also discussed whether or not the current temporary sign regulations provide the local business community with sufficient avenues to communicate their products and services. APPLICABLE LAW AND PUBLIC POLICY: Florida Municipal Home Rule Powers Act. U.S. and Florida Constitutions, particularly the First Amendment and Equal Protection and Due Process Clauses. Consent Informational Public Hearing Regular x ~~,~ Page 1 of 6 Florida Growth Management Act relative to Land Development Regulations and Local Planning Agency Review requirements. 4. Numerous Federal and State sign code cases. Importantly, Solantic 1~. City of Neptune Beaclr, 410 F.3d 1250 (11'" Cir. 2005); Beaz~lieu v. City of Alabaster, 454 F. 3d 1219 (11 `" Cir. 2006). CONSIDERATIONS: In furtherance ofthe goverrunent interests stated in section 16-52 ofthe City Code, the current sign code prohibits "off premises signs," which are defined to mean a sign ider7tifyir7g aj~ activity tiVhich is not on the premises 11~here the sig» is located or products or services it~hich are »ot available ofa the pf•ernises where the sign is located. Billboards are also regulated under section 16-77 of the City Code. Last summer, local Realtors expressed concern that the offpremise sign prohibition is having an adverse impact on advertising "open houses" because they clam that small, temporary off site directional signs are needed to bring prospective buyers to open houses. One example discussed was related to weekend house hunters who purportedly drive around the community looking for houses for sale. It was alluded to that it is difficult for drivers to know there is an open house within a subdivision, unless they drive within the subdivision, because temporary off-premises signage is not allowed near the major roadways surrounding the subdivision. It was argued that if temporary off-premise signage was allowed, drivers could be directed to the open house within the subdivision through the use of temporary directional signs. On August 11, 2008, the City Commission formally deiced the Realtor's request to waive the City s sign code to allow real estate signs to be placed within the rights-of--way oroff-premise. During that meeting, the City Attorney expressed serious concern that the request, if approved, would be unconstitutional because it would discriminate against other kinds of speech and could jeopardize the substantial government interest foundation which constitutionally supports the sign code (e.g. traffic safety, reduce visual clutter; scenic beauty, etc. See e.g., Beatrlietr v. Ciry of Alabaster, 454 F. 3d 1219 (11`" Cir. 2006) (sign code unconstitutionally discriminated against political speech because less burdensome regulations applied to real estate signs than political signs): see also, section 16-52, Winter Springs Code. 4. The City Attorney was then directed to meet with the Realtor's representatives in order to aet a better understanding of thei• concerns and to evaluate whether constitutionally appropriate amendments to the sign code can be made that address the concerns and do not jeopardize the constitutionality of the Citys sign code. That meeting occurred several weeks thereafter and after significant legal analysis, the City Attorney is presenting a couple of options for the City Commission's consideration. Sign regulations raise numerous, complex constitutional issues including free speech, equal protection. and due process rights under the Florida and United States Constitutions. As the Page 2 of 6 City has experienced first hand, sign regulations are the subject of a tremendous amount of litigation. Some of the constitutional issues are very generally noted below. 6. While it may seem practical to regulate signs by distinct classes (e.g. political, real estate, garage sales, open for business, religious, etc.), any law regulating signs based on distinct classes runs the serious risk of being subject to heightened constitutional strict scrutiny by the courts because it is not content neutral, or it favors one type of speech over another. Under strict scrutiny analysis, a court will almost always declare the law unconstitutional because the government can not demonstrate a compelling government interest to support the law. Aesthetics. traffic safety, and economic growth are recognized sirbstaf~tial governmental interests, but have not been found to be a compelling interest when used to justify content based regulations. 7. In 2006 the City Commission, upon advice of the City Attorney, comprehensively updated and amended the City's sign code and eliminated numerous sign regulations which arguably were based on distinct classes. In order to constitutionally address this class issue, new regulations were adopted by the City Commission that regulate temporary signs regardless of the content/speech placed on the sign. 8. Furthermore, during the 2006 adoption process, the City Commission understood that the Constitution requu•es the City Commission to demonstrate a substantial government interest in support of adopting sign code regulations. That substantial government interest is expressed in section 12-52 of the City Code and is the underlying foundation of the City s sign code. Any sign regulation adopted by the City Commission must be tailored to accomplish the asserted interests in section 12-52. In addition, any law regulating signs or actions of the City that are unreasonably at cross purposes with the expressed substantial government interest runs the serious risk ofbeing declared unconstitutional. In other words, a particular sign regulation must be consistent with the legislative purpose/objective of the sign regulation. For example, if the objective ofthe sign code is to improve traffic safety and eliminate traffic hazards, the sign code should NOT allow persons to place an unlimited amount of private temporary signs within the rights-of--way and medians. 9. Some courts and planning experts have recognized that the proliferation ofoff-premise signs thwarts the effort of local businesses to identify their products and services because it contributes to visual clutter that drowns out, through visual competition, the message on any particular sign. 10. Unlike some communities. Winter Springs has adopted ors premise temporary sign regulations that are generally applicable to all temporary signs. The regulations vary for residential and nonresidential properties. See section 16-60, Winter Springs Code. 11. Lastly, the City Attorney notes that this matter was delayed several meetings due to the November election and the seating of two new Commissioners. Once the options were researched and formulated, time did not permit the previous City Commission to take final Page 3 of 6 action on this issue ifthe City Commission directed that amendments be made to the sign code. Sign code amendments require a public hearing and recommendation by the local planning agency prior to the City Commission taking final action by ordinance. As such, it made sense to allow the new Commission to set the final legislative direction on tlvs issue. STAFF RECOMMENDATION: Based upon the foregoing, the City Attorney presents the following options for the City Commission's consideration: 1. Do Nothing. The current sign code will remain the same and updates will be made based on new legal requirements or as directed by the City Commission in the future. 2. Condominium and Homeowner's Associations. Florida law recognizes that condominium association unit owners and homeowner's association lot owners ("Owners") have some legal right to use the common elements and common areas ("Common Area") within their respective associations. See gen'l, ch. 718 and ch. 720, Fla. Stat. In recognition of this right and subject to any existing Association guidelines, the City sign code can be amended to allow the Owners to erect temporary signs on Common Area property by redefining the term on-prerrtises sigr7 to recognize the Owner's legal right to use the Common Area under chapters 718 and 720, Florida Statutes. Tlus option has logical and reasonable appeal because condominium units and association lots are inextricably and fundamentally tied together with Common Areas by law. This option also does not interfere with an association's right to further regulate Common Areas. This option is also consistent with the current regulatory scheme of prohibiting all off-premises signs. From a practical standpoint, the City's sign code would allow the Owners to erect a temporary directional sign at the Common Area entrance of a subdivision directing people to an activity on their lot. 3. Allow Temporary Off-premises Signs Under Very Narrow and Limited Circumstances. The City Conunission could amend the sign code to allow a person or busuiess to erect a certain number ofoff-premise signs under very limited conditions. The conundrum with this option is two fold: (1) courts have already recognized a municipality's ability to impose a proper ban on all off-premises signs in furtherance ofthe municipal objective ofreducing visual clutter, improving traffic safety, and preserving aesthetic character of the community; and (2) opening the door for some off-premise signs will subject the sign code to greater constitutional scrutiny (risk) and create an opportunity to challenge the constitutionality ofthe sign code that does not currently exist. For example, one could argue that allowing such off-premise signs in some cases will undermine the City's stated objectives in section 12-52, Winter Springs Code. As previously noted, any law regulating signs or actions of the City that are unreasonably at cross purposes with the expressed substantial government interest/objective runs the serious risk of being declared unconstitutional. Notwithstanding, if the Commission wanted to go in this direction, temporary off-pre»rise sign regulations will need to be drafted that are narrowly tailored, from the standpoint of time, place, and Page 4 of 6 manner, so not to undermine the stated governmental interests that the sign code is designed to further pursuant to section 12-52. Given the concerns raised by the local Realtors, one possible approach to consider adopting is as follows: A. Continue the prohibition on all off-premise signs, but adopt a limited exception which allows temporary off-premise signs (with or without a permit) for an activity/event conducted on property elsewhere in the City. B. Limit the time such signs can be erected to certain days ofthe week (e.g. weekends/national holidays), between the hours of _ and _, and mandate prompt removal. C. Limit the number of such signs to _ per activity. D. Limit the location of such signs to distance from the activity or in certain zones. E. Lunit the location to private property with the consent of the property owner. F. Limit the size, height, and placement of such signs. G. If a permit is required, impose a permit fee because of the extra administrative overhead involved in permitting and policing this off-premise sign exception. H. Limit the number oftimes anapplicant/property owner can request a temporary off-premise sign permit to tunes in any calendar year. I. Other tune, place, and manner restrictions? Again, this approach opens the door to a legal challenge that currently does not exist given the current total ban on off-premise signs. However, if carefully crafted, a strong legal defense can be made. 4. Commercial Business District. The City Commission has adopted a comprehensive plan policy that created a commercial business district. The district boundaries are the same as the Town Center boundaries. Although the current sign code prohibits electronic signs and new/modified billboards, the Commission may want to consider allowing one or more decorative electronic billboards within the CBD. Because electronic billboards can change copy frequently, an electronic billboard would offer additional off- premise advertising opportunities for local businesses and city sponsored events which primarily occur in the CBD. Further, such signs will need to comply with the Town Center aesthetic requirements. If designed, constructed and located properly, it could also present an opportunity to provide an architectural enhancement in the CBD that furthers local economic development initiatives. However, there are numerous pros and cons associated with allowing this kind of Page 5 of 6 structure/device within the City. Like Winter Springs, some communities have banned them and such bans have been upheld by the courts. If the City Commission is interested in this option, the City Attorney recommends the City Commission convene a workshop or two to become familiar with the unique legal and planning issues created by these new 2151 century signs. ATTACHMENT: Relevant Excerpts of the City of Winter Springs Sign Code. COMMISSION ACTION: The prior City Commission directed that the City Attorney legally evaluate the aforementioned issues and report back when that evaluation was completed. RECOMMENDED MOTION: The City Commission should provide further direction on whether or not to amend the City's sign code. Page 6 of 6 RELEVANT EXCERPTS CITY OF WINTER SPRINGS SIGN CODE (AS OF 01/12/2009) Sec. 16-51. Definitions. [Selected Relevant Defr~ritions o~rlyJ The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Banner is any strip of cloth, plastic or other flexible material on which a sign is printed, painted, or otherwise displayed. On premises sign shall mean a sign (1) identifying an activity conducted or products or services available on the premises where the sign is located, or (2) displaying a noncommercial message or (3) any combination of the two. Off-premises sign shall mean a sign identifying an activity which is not on the premises where the sign is located or products or services which are not available on the premises where the sign is located. Signs shall mean any surface, fabric, device, or display, whether illuminated or non- illuminated, designed to identify, announce, direct or inform and can be seen off- site. Temporary sign: shall mean a sign displayed before, during or after an event or occurrence scheduled at a specific time and place, inclusive for example, for rent signs, for sale, construction signs, real estate signs, management signs. (Code 1974, § 5-112; Ord. No. 675, 12-8-97; Ord. No. 2001-50, § Z, 10-22-01; Ord. No. 2003-36, § 4, 10-13-03; Ord. No. 2006-18, § 2, 10-23-06) Sec. 16-52. Purpose and intent. (a) The purpose of this article is to regulate the number, size, type, use, design, construction and location of signs within the city. These regulations are established in order to promote the overall economic well-being of the city, while at the same time providing for the health, safety and welfare of the public by reducing the adverse effects of signs on safety, property values, traffic, and the enjoyment of the scenic beauty of the city. These regulations are intended to avoid excessive competition and clutter among sign displays in the demand for public attention, eliminate dangerous, dilapidated and unsightly signs and provide for adequate maintenance and inspection of signs within the corporate limits of the city, consistent with constitutional guarantees and while providing for adequate opportunities for effective means of communication. (b) For purposes of this article, any lawful sign may display a noncorrunercial message in addition to, or in lieu of, any other message. All noncommercial speech shall be deemed to be on-premises. Nothing in this article shall be construed to regulate the content of the message displayed on any sign. (Code 1974, § 5-111; Ord. No. 2006-18, § 2, 10-23-06) Sec. 16-60. Supplemental temporary sign requirements. In addition to any other applicable provision of this article and code, the following minimum standards shall apply to all temporary signs: (a) Temporary signs shall be removed within three (3) days after the date upon which the sign has fulfilled its purpose (e.g., the scheduled event or occun•ence has concluded). (b) On property zoned residential or used for residential purposes, no temporary sign shall exceed six (6) square feet and the total number of temporary signs on any one residential property shall not exceed four (4). (c) On property zoned other than residential or used for non-residential pwposes, no temporary sign shall exceed nine (9) square feet and the total number of temporary signs on anyone non-residential property shall not exceed thirty-six (36) square feet. (d) If the temporary sign is a ground sign, the maxunuin height of any such sign shall be four (4) feet on property zoned or used for residential purposes, or eight (8) feet on any non-residential property. (e) Such signs shall also meet the following minimum standards: (a) the sign must be at least five (5) feet from any right-of--way; (b) the sign must be at least ten (10) feet from side and rear property lines; (c) the sign shall not be illuminated. (f) Upon issuance of a building permit, areas under development pursuant to an existing development order approved by the city shall be permitted one (1) additional non-illuminated temporary sign not to exceed a sign area of sixteen (16) square feet and six (6) feet in height for a single family lot or thirty-two (32) square feet and ten (10) feet for multi-family, commercial, industrial, and institutional development projects. Signs permitted hereunder shall be permitted for one (1) year or until the building permits for the area under development have expired or been revoked. All signs shall be removed when the project has been completed, suspended, or abandoned for at least tlu•ee (3) months. (Ord. No. 2006-18, § 2, 10-23-06) Sec. 16-77. Outdoor display/billboards--Off-premises signs prohibited. (a) Other than as provided within this section, off-premises signs are strictly prohibited within the City of Winter Springs. (b) Notwithstanding anything in the City of Winter Springs Code of Ordinances to the contrary, from and after the effective date of Ord. No. 2001-50 [Oct. 22, 2001 ], the total number of outdoor off-premises signs located in the incorporated areas of the city shall be limited as hereafter specified. (c) The initial lunitation on outdoor off-premises signs are the five (5) outdoor off- premises sign structures (hereinafter refened to as "Existing Structure(s)") currently existing in the incorporated areas of the city (the "Existing Structures"). An inventory of these existing structures dated October 22, 2001, is filed in the community development department and is incorporated herein by this reference. (d) The limit stated in subsection (c) above may only be increased by the number of lawfully existing off-premise sign structures within unincorporated areas of Seminole County which are annexed by the City of Winter Springs. Contemporaneously with annexation the city shall conduct a survey of all existing ofF premise sign structures within the annexed portions of unincorporated Seminole County. The inventory of existing structures, on file with the community development department, shall be amended by resolution of the city commission to include the addition of legally existing off-premise sign structures. (e) The limit stated in subsection (c) above, as may be amended by subsection (d), shall be correspondingly reduced upon the occurrence of any of the following: (1) An existing structure is removed incident to a road widening or other public works project; and (2) An existing structure is removed incident to the development or redevelopment of the property upon which the existing structure is located; or (3) An existing structure is removed incident to the expiration of the lease or other agreement authorizing placement of the existing structure on the property. (4) An existing structure which is non-conforming due to zoning is removed due to destruction, damage or other casualty which results in destruction of fifty (50) percent or more of the support structure for or of fifty (50) percent or more of the face of the sign. (5) An existing structure is removed or dismantled by fifty (50) percent or more of the support structure or fifty (50) percent or more of the face of the sign. (6) By the terms and conditions of a development agreement with the city, except that any development agreement after the effective date of this section shall not allow the removal of an existing structure later than the time that would otherwise be provided by this section. Any existing structure subject to a development agreement with the city prior to the effective date to this section shall be exempt from the provisions of this subsection (e) and shall be removed in accordance with the teams of the development agreement. (f j At any point in time the then current limit on the number of outdoor off-premises signs located in the incorporated areas of the city shall be the initial limit specified in subsection (c) and as amended by subsection (d) above less the total number of existing structures which have been removed as specified in subsection (e) above. (g) In addition to the limitation specified above, there is hereby imposed a limitation upon the number, size and orientation of the sign faces located upon the existing structures. From and after the effective date of Ord. No. 2001-50 [Oct. 22, 2001 ], the number of sign faces on an existing structure may not be increased, either by adding an additional face oriented in a different direction or by changing the display mechanism to permit the display of multiple signs on a single sign face. From and after the effective date of this Ord. No. 2001-50, no sign face on an existing structure may be increased in size and the orientation of each sign face located upon an existing structure may not be changed. (h) Except for an existing structure which is non-conforming (which cannot be replaced), an existing structure damaged or destroyed by flood, fire, earthquake, war, riot, act of God or other similar casualty loss may be reconstructed in the same location with the same (or smaller or fewer, as the case may be) size and number of sign faces. An existing structure may not be relocated to another location. (i) Except as specifically authorized by permit issued by the State of Florida Department of Transportation or as required by specific state statute, no trees or vegetation shall be removed or trimmed from the property upon which an outdoor off-premises sign is located or fi•om property adjacent thereto in order to enhance the visibility of the outdoor off-premises sign. (j) In connection with any off-premise signs which are erected or constructed in violation of the provisions of this section, each day that said sign remains erected in violation of this section shall constitute a separate violation and each person responsible for erecting or constructing such off-premise sign, including but not limited to the real property owner, shall pay the city a penalty of five hundred dollars ($500.00) per day until the off-premise sign is removed. (Code 1974, ~ 5-113(b); Ord. No. 2001-50, § 2, 10-22-O1; Ord. No. 2006-18, § 2, 10-23-06) Sec. 16-87. Banners. A maximum of one (1) on-premises banner sign may be erected on commercial, industrial, or multi-family zoned property provided that the banner does not exceed sixty-four (64) square feet and is not erected for more than fourteen (14) calendar days during any one calendar year. A maximum of one (1) on-premises banner sign may erected on property zoned residential provided the banner does not exceed twenty-four (24) square feet and is not erected for more than three (3) calendar days during anyone calendar year. All banner signs shall be securely fastened to a structure in a manner to withstand weather elements coirunonly experienced by the city. (Code 1974, § 5-113(1); Ord. No. 2006-18, § 2, 10-23-06)