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HomeMy WebLinkAboutOrdinance 4784 *AGENDA REQUEST FORM -y7 gy �,, d llal. ao2 �/ D.cslp✓► FOR: COUNCIL MEETING OF OCTOBER 18, 2005 r)/ a FROM: KIT WILLIAMS, City Attorney ORDINANCE OR RESOLUTION TITLE AND SUBJECT: An Ordinance To Amend §161.24 Design Overlay District, Subsection (D) (2) Signs APPROVED FOR AGENDA: 9 ��� '?- 7- 0.5 Kit Williams Date City Attorney 07. so -C-6 Je em P e Date Cent arming Gary Dumas Date Director of Operations / Dan Coody Date Mayor t :� FAYETTEVIELE THE CITY OF FAYEREVIIIE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: City Council FROM: Kit Williams, City Attorney DATE : September 7, 2005 RE : Signs in the I-540 Overlay District The provisions regarding signs in the I-540 Design Overlay District were primarily enacted to require only monument and indirectly lighted signs within the District for aesthetic reasons. The other provisions in § 161 .24 (D)(2) are duplicative or even contradictory to the general sign regulation of Chapter 174 Signs. The proposed change would leave only those two special requirements: monument rather than pole signs and indirect lighting in the Design Overlay District regulations. All other sign regulations would be uniform as prescribed in Chapter 174 Signs. This change is necessary to ensure our sign regulations remain constitutionally valid. Please see a copy of my July 15 , 2005 memo (attached) explaining why the City should not try to regulate the content of a sign. ORDINANCE NO, AN ORDINANCE TO AMEND § 161.24 DESIGN OVERLAY DISTRICT, SUBSECTION (D)(2) SIGNS WHEREAS, except for the prohibition of pole signs and internally illuminated signs, the Design Overlay District sign regulations are more properly handled by Chapter 174 Signs of the Unified Development Code. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section l : That the City Council of the City of Fayetteville, Arkansas hereby amends §161.24 (D)(2) Signs by repealing that subsection in its entirety and enacting a new subsection (D)(2) Signs as shown below: "(D) (2) Signs. "(a) The only permitted free standing signs shall be monument signs. Only indirect lighting may be used for illumination of all signs. (b) All signs shall otherwise comply with Chapter 174 Signs and any variance shall be considered pursuant to § 156.06 of the Unified Development Code." PASSED and APPROVED this 18�h day of October, 2005. APPROVED: By: D COODY, Mayor ATTEST: By: SONDRA SMITH, City Clerk TNF CITY OF fAYETTEVIIIL ANKAN5115 KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEG AL DEPARTMENT TO: Dan Coody, Mayor City Council FROM: Kit Williams, City Attorney DATE: July 15, 2005 RE : Restricting commercial sign content to name of business only I am concerned that the current content limitation requirement for signs in the overlay district to be for the name of the business only and not include any "advertising" might be an infringement of First Amendment protections. Commercial speech is not given as much protection as political or religious speech which strongly prohibits governmental interference on the basis of the content or viewpoint of the speaker. "Laws that regulate speech based on its content . . . . are subject to strict scrutiny. Such laws are presumptively invalid `and survive constitutional review only if they promote a `compelling interest' and employ `the least restrictive means to further the articulated interest. ' " Time Warner Entertainment Co. v. F.C .C., 93 F3rd 957, 966 (D.C. Cir. 1996) (citations omitted). (emphasis added) Commercial speech is also protected by the First Amendment. More than twenty years ago, our sign ordinance was appealed to the Arkansas Supreme Court concerning the eventual elimination of offsite billboards. `Billboards are non-communicative structures designed to stand out and apart from their surroundings, but also they are a medium of communication warranting 0 0 First Amendment protection. The government has a legitimate interest in controlling the non-communicative aspects of the medium but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects." Donrey Communications Company Inc. v. City of Fayetteville, 280 Ark. 408, 660 S .W. 2d 9009 902 ( 1983). In 2001 , the Arkansas Supreme Court again considered a challenged government regulation of commercial speech and enunciated the four part analysis explained by the United States Supreme Court. "In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Culpepper v. Ark. Board of Chiropractic, 343 Ark. 467, 36 S .W. 3`d 335, 339 (2001 ); quoting Central Hudson Gas & Electric v. Public Service Commission, 447 U. S . 557, 566 ( 1980). Applying that four part analysis, it may be constitutionally permissible to require that a portion of the sign (60-75%?) must be devoted solely to the name of the business. This could be justified not only for aesthetic traffic and tourism considerations, but also to serve the primary purpose signs are allowed in Fayetteville: to aid customers in locating a business. Allowing the remaining portion of the sign to be used solely at the discretion of the owner for information advertising the business at that location would hopefully comply with the four part analysis especially that our commercial sign regulation "is not more extensive than is necessary to serve that interest." This more balanced approach could also be uniformly applied to avoid another constitutional pitfall in First Amendment cases . . . allowing government administrators or boards (such as City Councils) to exercise unbridled discretion to grant variances (favors) to some applicants. 0 0 "Any such grant of unrestrained discretion to an official responsible for regulating First Amendment activities is facially unconstitutional . . . . Such criteria should be expressly included within the County' s Sign Ordinance, and should set forth specific content-neutral grounds under which a sign permit may be denied. Cafe Erotica of Florida. Inc. v. St. Johns County, 360 F.3d 1274 ( 11 `' Cir. 2004)(emphasis added). When it comes to First Amendment protections, neither the Planning Commission nor the City Council is allowed any greater discretion than a city official (sign administrator) in denying or approving sign permits. That discretion is what is specified within the sign variance requirements in the UDC. That is why I believe placing all sign decisions with the sign administrator to uniformly apply the requirements you have placed in the ordinance is the best constitutional solution. Allowing appeals to the City Council makes it difficult to eliminate the discretionary decisions based on considerations beyond the ordinance that the United States Supreme Court has determined to be unconstitutional. When it comes to signs, we are simply not allowed to grant preferential treatment to one applicant over another. A uniform, primarily noncontent based and nondiscretionary regulation of signs is what the Courts have required of cities to comply with the First Amendment Freedom of Speech provisions. Fayetteville Code of Ordinances 161 .24 Design Overlay District (1-540 (1) Greenspace. A minimum of 25 feet of Highway Corridor) landscaped greenspaoe exclusive of right-of- way shall be provided along the highway A) Purpose. The purpose of establishing a Design right-of-way and any public street to which ( P g the development has frontage. Parking lots Overlay District for the 1-540 Highway Corridor is shall not encroach Into the greenspace and as follows: shall be screened when abutting a required 1 To protect and enhance the distinctive greenspace area. Trees shall be planted at ( ) the Interval of one tree per 30 linear feet of scenic quality of the 1-540 Highway Corridor greenspace area when practicable. by providing for nonresidential developments which will maximize preservation and (2) Signage. enhancement of the natural, rural, and open character of the terrain and foliage. (a) Nonresidential freestanding signs. (2) To address the issues of traffic and safety. (i) Each separate nonresidential lot will 3 To address environmental concerns which m allowed a single ground- (3) ( ) � mounted {monument) sign located Include, but are not limited to, soil erosion, on the building site. In the case of vegetation preservation, drainage and heat lots with double frontage, two islands. ground-mounted (monument) signs (4) To preserve and enhance the economic shall be allowed. value and viability of property within and (11) The sign shall be a maximum of six near the Overlay District for the 1-540 feet high, 75 square feet in area, Highway Corridor. and setback a minimum of 10 feet from the property line + (B) Overlay District boundaries. The Overlay District ; u encompasses all lands lying within 660 feet of each side of the right-of-way of 1-540 from the =' _ intersection of 1-540 and State Highway 471 - (allure 71B) north to the city limits of Fayetteville, -75 §gvaieFmt': ` (a/k/a the 71 Bypass and/or John Paul Marimum Hammerschmidt Expressway), and also thatTi a portion known as State Highway 471S described more fully as that portion of State Highway 471 - which connects I-540 to State Highway 471 (alk/a North College) and all future extensions of 1-540 within the City of Fayetteville. Said boundaries i are set out on the official plat pages along with a legal description of such boundaries located in the Planning Division. " lv LL- '� 'r atrh 'Yra (C) Application or Overlay District: Regulations and µ e T standards. The regulations and standards I contained herein shall apply to all nonresidential properties, (including, but not limited to new n " VDo This t Do not do llHs development), located within the Overlay District f - boundaries. Such regulations and standards shall be in addition to and shall overlay all other ' , ,Ir * IINS I ordinance regulations and standards, including, M p*_ une but not limited to nonresidential zoning district i I" J �V j and signage regulations and standards. Shouldy r,r r the regulations and standards of the underlying ntURu m and Overlay District conflict, the Overlay Districts, regulations and standards shall control. ddG (D) Nonresidential site design and development ' !fir standards. - u. Minimum Sian Distance from �,�:: r IProoert%VU 5_:3 . . 4..: TITLE XV UNIFIED DEVELOPMENT CODE (b) Wall signs. One wall sign may be (6) Building material. Buildings shall be installed per business. Sign area shall constructed of wood, masonry, or natural not exceed 20% of that wall area or 200 looking materials. No structures shall be square feet, whichever is less. A allowed that have metal side walls UNLESS second sign may be allowed if it is such metal siding is similar In appearance to determined that the structure has more wood, masonry, or natural looking material. than one front facing a street or highway right-of-way. (7) Site coverage. Twenty-five percent (25%) of the site shall be left in open space. Eighty (c) illumination. Only indirect lighting may percent (80%) of the open space shall be be used for illumination of all signs. landscaped which may include ponds and fountains. (d) Multiple tenants. The owner of the building shall be responsible for the (8) Optional fencing. All fencing shall be provisions of one monument sign with constructed of wood, masonry, or natural sign area for multiple tenants. looking materials. No optional fencing shall be located within the greenspace required by (e) Sign content. Content of monument and Section (D)(1 ). No metal fencing shall be wall signs shall be limited to the name of allowed except in the following cases: the business. Advertising shall not be permitted on the structure, wall sign or (a) Wrought Iron fencing. monument. (b) If other types of metal fencing are (3) Curb cuts. One curb shall be allowed per necessary, for security purposes, they 200 feet of frontage. No curb cuts shall be may be used if the area is first fenced allowed within 250 feet of any intersection. off with a view obscuring natural or natural looking fencing material. The t �+ metal fencing shall be placed inside the 1r t x view obscuring fencing, and the view i7 4 ` - 1 , i p ' . obscuring fencing shall be at least the t alb ! § height of the metal fencing. — r Ill" Yi11h I � � 1 3 i Y_ rh;CUrb Cuts Must at.Least 250 Intersection _ . ! ♦ Seam? Fatra F -P q r VSlr°el (4) Lighting. Parking lot lighting all be - . designed and located in such a manner to preserve the scenic appearance of the (9) Outdoor storage of material and equipment corridor. Lighting shall be shielded and All outdoor storage of material and directed downward to the parking lot and equipment shall be screened with natural light spread shall not reflect into the adjacent vegetation. neighborhood. Lighting shall not exceed 35 feet in height and shall utilize sodium lighting (10) Access. fixtures. (a) Pedestrian. Pedestrian access shall be (5) Exterior appearance. All structures shall be provided from the street to the entrance architecturally designed to have front of the structure by way of a designated facades facing all street and highway right- trail or sidewalk. of-way. An elevation drawing shall be submitted for each side of the building that (b) Multi-modal. Multi-modal access may faces a street or highway. be required on nonresidential sites within the Design Overlay District. (For example: The provision of bus stops, bicycle racks, parking stalls for car pools, and bicycle and pedestrian walks and trails). CD161 :17 FAYETTEVIT LE THE CITY OF FAYETTEVIIIF, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Dan Coody, Mayor City Council FROM: Kit Williams, City Attorney DATE: September 29, 2005 RE: Sign Code Shakedown My recommendation to change the Design Overlay District (§ 161 .24 of the UDC) to remove any reference to "content" within the sign subsection was supported by a paper presented at the recent International Municipal Lawyers Association seminar I attended. I have attached the outline of this presentation for your information. The good news is that I believe Chapter 174 Signs complies with current United States Supreme Court rulings on sign issues so we should not be susceptible to "shakedown litigation" based upon Chapter 174 Signs. The bad news is that the small section on signs in the Design Overlay District regulations (§ 161 .24) escaped my revision of the Sign Ordinance and subjects the City to potential liability. Thus, I still recommend amending this section (§ 161 .24) as presented which would then place almost all sign regulation within Chapter 174 Signs where it belongs. t Small Cities ' Workshop Title : Sign Code Shakedown Litigation Attack on Small Communities Thomas T. Keating , Esquire Law Director, City of Sharonville, Ohio KEATING, RITCHIE & SWICK A Legal Professional Association 8050 Hosbrook Road , Suite 200 Cincinnati , Ohio 45236 (513) 891 -1530 Email : tkeating@krslawyers.com • Sign Code Shakedown Litigation Attack on Small Communities I . There is a real threat facing small communities near major highways. ' A. Local communities sued by billboard companies and adult entertainment companies. B. The typical procedure utilized by billboard plaintiffs . 1 . Acquire billboard sites. 2 . Apply for billboard permits. 3. Scrutinize entire sign code. 4. Sue for constitutional section 1983 violation . C . Expertise of Plaintiff's counsel. D. Goal of Quick Hearing on Restraining Order Motion, E. Offer by Plaintiff to settle. II . Legal challenges by Plaintiffs. A. Facial challenge and-As Applied challenge. B. Don 't need standing to challenge constitutionality. C . Unfettered discretion by city officials. D. Flaws in Sign Code and reactions by local community. 1 . Normal problems with free speech signs. 2. Billboard regulations: Off premises commercial signs . E. Equal Protection and Due Process. 1 . Lack of time deadline upon communityto issue permit. 2 . Prohibition against small group for unfavorable treatment. • " III . Defensive responses by communities . A. Attack standing of Plaintiffs. 1 . Legal status of Plaintiffs. 2 . Contract rights of Plaintiffs. 3. Technical portions of billboard construction . 4. No standing to attack per overbreadth . Granite State Outdoor Advertising v. City of Clearwater (2003), 351 Fad 112 (causal connection ). B. Severability of ordinance, whether stated or not. C. Political sign code amendment as needed — Notice to Court. 1 . " Political and election signs. " 2 . Non-commercial speech , " Protected First Amendment Speech . " D. Content Neutral — Onsite v. Offsite Distinction - Prime Media, Inc. v. City of Brentwood, Tennessee 398 F.3d 814, • 818 (6 th Cir. 2004), E . Police power authorizes city to regulate distinctive problems of billboards — Metromedia, Inc. v. City of San Diego, 453 U .S. 490, 513-15, 101 S.Ct, 28829 69 L. Ed.2d 800 ( 1981 ). City of Ladue v. Gilleo 512 US 439 114 S.Ct, 20389 129 L. Ed .2d 36 ( 1994). IV. Other issues with billboard litigation . A. Value of signs . B. Attorney fee issues. Section 1988. C. Conflicting Court decisions. D. Use of Expert Witnesses E . Dilemma of insurance companies providing Section 1983 • defense.