MAYOR AND BOARD OF A LDERMEN. Submitted By: Rachel S. Depo, Assistant City Attorney Date: 6/3/2016

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1 Item 2 EXECUTIVE SUMMARY MAYOR AND BOARD OF A LDERMEN Submitted By: Rachel S. Depo, Assistant City Attorney Date: 6/3/2016 Meeting Dates Workshop: 6/8/2016 Business Meeting: Public Meeting: Agenda Item: An Ordinance to Prohibit Temporary Signs in the Public Right-of-Way By Amending Section 864 of the Land Management Code Background Information: History The Board of Aldermen engaged in a general discussion of sign regulations at its April 13, 2016 workshop. Sign Regulations, Generally The City of Frederick (the City ), like most local governments, regulates signs. The City s sign regulations are located in the Land Management Code (LMC), 864. The stated purpose of that section is to permit the reasonable and consistent communication of messages, while providing regulations that prevent hazardous and unsightly clutter and confusion. LMC 864. The City generally regulates signs with respect to their location, dimensions, and duration. This is well in line with the sign regulations of local governments across the country. However, because signs are a form of communication, the authority to regulate them is limited by the free speech provisions of the Constitution. Specifically, the First Amendment prohibits governments from imposing restrictions on signs with certain messages, unreasonably restricting the time, place, or manner of posting signs, allowing regulators to exercise undue discretion, etc. Numerous federal cases have addressed the application of the First Amendment to sign regulations. Previously, most federal courts ruled that cities could enforce a limited number of content-based regulations on signs regulations relating to the actual content of a sign s message provided such standards were not intended to censor or restrict speech. Reed v. Gilbert A ruling last year by the U.S. Supreme Court dramatically changes the way all local governments must now regulate signs. In Reed v. Gilbert (135 S.Ct (2015)), the Court

2 ruled that if a sign has to be read in order to determine if a certain regulation applies, then that regulation is content-based and presumed to be unconstitutional. The case involved a sign ordinance from the Town of Gilbert, Arizona. The town s ordinance exempted several categories of signs from permitting requirements, including political signs, ideological signs, and temporary directional signs. The town did not prohibit any of these signs but it did enforce different regulations for each separate category. A local church did not have a permanent location and rented space for services in various community facilities such as schools. To inform people of their services and locations, the church placed temporary signs advertising religious services throughout the town for a period of approximately 24 hours before each service. The town cited the church for violations of their sign ordinance since the time period the church s signs were posted exceeded that allowed under their sign ordinance for temporary directional signs. The church eventually sued Gilbert claiming violations of the free speech and free exercise clauses of the First Amendment. The Supreme Court, in a unanimous decision, held that the Gilbert s sign ordinance was an impermissible content-based regulation of speech and did not survive strict scrutiny review. The Court said, Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. The sign ordinance at issue created distinctions among signs based almost entirely on the content of the signs, creating separate rules for different classes of content. Any restrictions on signs depended entirely on the communicative content of the signs themselves, a step the Court said went too far. It made no difference to the Court that the sign code itself did not discriminate among viewpoints or that there was no evidence of differential treatment between differing viewpoints or discriminatory application of the code. The sign code made content distinctions on its face, and was therefore a violation of the First Amendment. The Court s ruling in Reed means that any sign ordinance with different rules for different categories of signs is content based, as long as the categories are defined by the content, topic, or subject matter of the sign s message. For example, an ordinance that allows political signs to be twelve square feet, but limits temporary directional signs to six square feet is content-based. So is an ordinance that prohibits signs without a permit, but provides an exception to this permit requirement for historical markers, real estate signs, etc. Interim Ordinance The proposed ordinance (the Ordinance ) is intended as an interim measure to regulate temporary signs in a manner consistent with the Reed decision. Specifically, the Ordinance prohibits temporary signs in the public right-of-way and revises the definition of temporary sign. Under the new definition, temporary signs exclude both sandwich board signs in the DB district and government signs. Staff will work towards drafting permanent amendments as may be necessary or desirable to ensure continued compliance with the general guidelines provided in the Court's decision. In the meantime, however, there are immediate issues regarding the City's temporary sign regulations and we recommend the

3 adoption of the Ordinance, subject to the review and recommendation of the Planning Commission. Committee Recommendations: N/A Fiscal Impact: Recommendation: Supporting Documentation: N/A See above. Proposed Ordinance Director: Date: Concurrence Needed: Initials Date Finance/Budget: Purchasing: Public Works: Engineering: Legal: Police: Planning: Human Resources: Other:

4 --DRAFT-- THE CITY OF FREDERICK MAYOR AND BOARD OF ALDERMEN ORDINANCE NO: PLANNING COMMISSION PUBLIC HEARING: RESOLUTION SUBMITTED TO MAYOR & BOARD: MAYOR & BOARD OF ALDERMEN WORKSHOP: June 8, 2016 PUBLIC HEARING: LEGISLATIVE HISTORY AN ORDINANCE concerning temporary signs FOR the purpose of prohibiting temporary signs in the public right-of-way BY repealing and reenacting, with amendments, Section 864 Appendix A, Land Management Code The Code of the City of Frederick, 1966 (as amended) BY repealing and reenacting, with amendments, Section 1002 Appendix A, Land Management Code The Code of the City of Frederick, 1966 (as amended) WHEREAS, The City of Frederick is responsible for providing appropriate and necessary time, place, and manner restrictions on temporary signs within the City; and WHEREAS, the United States Supreme Court, in the case of Reed v. Town of Gilbert 135 S.Ct (2015), struck down several provisions of the Town of Gilbert's sign regulations that imposed different time, place, and manner restrictions on temporary signs that depended entirely on the communicative content of each sign; and 1

5 WHEREAS, it is apparent that amendments to the Land Management Code may be desirable to avoid any potential challenge in light of the Reed decision; and WHEREAS, many interests are invested in significant aspects of the City's sign regulations, including residents, realtors, downtown merchants, and other local businesses; and WHEREAS, this interim ordinance will provide a set of constitutional regulations that address certain problems associated with temporary signs, providing staff, the Planning Commission, and the Mayor and Board of Aldermen adequate time to review, consider, and adopt appropriate and necessary time, place, and manner restrictions for temporary signs in the City without enduring significant risk of legal challenge. SECTION I. NOW THEREFORE BE IT ENACTED AND ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF FREDERICK that Section 864 of the Land Management Code, Appendix A of The Code of the City of Frederick, 1966 (as amended), be repealed and reenacted with amendments, as follows: Sec. 864 SIGN REGULATIONS Purpose: This section permits the reasonable and consistent communication of messages, while providing regulations that prevent hazardous and unsightly clutter and confusion. (a) *** (b) *** (c) *** (d) *** (e) Location. (1) No sign other than an official traffic-related sign shall be located within or project into a public right-of-way, except as provided in subsections (h)(2), (i)(1), (i)(2), [(p)(4), and (q)(5).] and (p)(4). (2) No more than one free-standing sign, shall be permitted on a lot for each public street upon which the lot fronts, except for allowable off premise signs as regulated in Section 864(n). For the purpose of this subsection, a limited access highway is not considered a public street for purposes of computing the number of freestanding signs. (3) No freestanding signs are permitted on a limited access highway. (4) Notwithstanding any exemption or other provision in this section to the contrary, temporary signs may not be installed or maintained in the public right-of-way or on any public property, including without limitation trees, public utility poles, and street signs. This provision shall not be interpreted to prohibit an individual from carrying a temporary sign on public property. 2

6 (f) *** (g) *** (h) *** (i) *** (j) *** (k) *** (l) *** (m) *** (n) *** (o) *** (p) *** (q) Temporary Signs. (1) One temporary sign is permitted per property subject to the following: A. The sign shall not be dilapidated in any way; and B. A zoning certificate shall be obtained before erecting the sign; and C. Temporary signs shall not exceed two square feet in residential and downtown districts, and 24 square feet in all other districts. D. Temporary signs must be firmly attached on all four sides to the principal structure. E. Temporary signs may be removed from the property after 30 days. (2) The sign shall not obstruct the visibility of vehicles or pedestrians or create a safety hazard. (3) Any sign(s) which fails to meet these requirements can be removed, discarded by the City and shall subject the installer (owner, vendor, developer, builder or realtor) of the sign to further enforcement action. [(4) Temporary real estate directional sign per realtor, developer, builder, or residential development is permitted in the City right-of-way provided the following requirements are met:] [A. The signs are only placed from Friday at 7:00 p.m. to Sunday at 8:00 p.m.] 3

7 [B. [C. [D. [E. The signs do not exceed two square feet in size.] The sign does not exceed three feet in height as measured from the ground to the top of the sign.] The sign is supported on metal or wooden stakes supplied by the installer and shall not be attached to any tree, utility pole, traffic control signs, traffic signal poles, walls of buildings, fences or other structures.] Only one sign per realtor, developer, builder or residential community is permitted at any intersection.] [(5)] (4) Streamers, pennants, balloons, and inflatable signs utilized as temporary signage are permitted provided the following requirements are met: A. No individual streamers, or pennants may be placed any higher than the roofline of the building. B. Streamers or pennants that are placed on a line or tether may not extend higher than 25 feet and must not drift into roadways, utility wires, or create any safety hazards. C. All balloons and inflatable signs must be set back from the public rightof-way line(s) a distance equal to the height of the balloons or inflatable signs. [(6)] (5) Construction site signs shall not exceed a total of 100 square feet. Such signs shall be removed within one week following issuance of a zoning certificate. (r) *** (s) *** SECTION II. BE IT FURTHER ENACTED AND ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF FREDERICK that The Code of the City of Frederick, 1966 (as amended), Appendix A, "Land Management Code", Section 1002, Definitions, be repealed and and reenacted, with amendments, by deleting the definition of Sign, Temporary and replacing it with the following new definition: "Sign, Temporary" A sign intended to be displayed for a short period of time and constructed of plywood, wallboard, or similar light, rigid material which is not affixed in a permanent manner to the ground or to any structure, including but not limited to balloons, banners, pennants, and portable signs. The term temporary signs" does not include (1) sandwich board signs allowed in the DB district under Section 864(p) of this LMC; or (2) signs posted, erected, or installed by the City, Frederick County, the State of Maryland, or any other government agency or public utility in the exercise of its responsibilities or in furtherance of governmental speech. 4

8 SECTION III. BE IT FURTHER ENACTED AND ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF FREDERICK that in the event any provision, section, sentence, clause, or part of this ordinance shall be held to be invalid, such invalidity shall not affect or impair any remaining provision, section, sentence, clause, or part of this ordinance, it being the intent of the City that such remainder shall be and shall remain in full force and effect. SECTION IV. BE IT FURTHER ENACTED AND ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF FREDERICK that this Ordinance shall take effect on, and all other ordinances or parts of ordinances inconsistent with the provisions of this ordinance will as of that date be repealed to the extent of such inconsistency. NOTE: [Bold Brackets] indicate material deleted Underlining indicates material added *** indicates no change APPROVED: PASSED: Randy McClement, Mayor Randy McClement, President, Board of Aldermen Approved for Legal Sufficiency: City Attorney 5