HomeMy WebLinkAboutORDINANCE 5901�s-sa•srf<
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113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Ordinance: 5901
File Number: 2016-0380
AMEND § 151.01 DEFINITIONS, § 174.03 EXEMPTIONS; § 174.04, § 174.10 ON-SITE
FREESTANDING SIGNS AND § 174.12 WALL SIGNS:
AN ORDINANCE TO AMEND § 151.01 DEFINITIONS, § 174.03 EXEMPTIONS; §
174.04, § 174.10 ON-SITE FREESTANDING SIGNS AND § 174.12 WALL SIGNS TO
MORE CLOSELY CONFORM TO THE LATEST UNITED STATES SUPREME COURT
DECISIONS ON SIGN ORDINANCES AND TO DECLARE AN EMERGENCY
WHEREAS, Chapter 174 Signs has long preserved the health, safety and welfare of
Fayetteville citizens and businesses while ensuring the free speech rights of all; and
WHEREAS, Chapter 174 Signs has been repeatedly upheld as legal and constitutional both by
the Arkansas Supreme Court and the Eighth Circuit Court of Appeals; and
WHEREAS, the latest plurality decision by the United States Supreme Court, Reed v. Town of
Gilbert, casts some doubt upon the descriptive use of religious or political signs such that these
terms should be removed from our Signs Chapter of the U.D.C. and replaced with the more
generic term "noncommercial" signs; and
WHEREAS, six Justices of the United States Supreme Court expressly or implicitly agreed
with Justice Alito's concurrence in Reed v. Town of Gilbert explaining and clarifying that cities
could constitutionally regulate "the size of signs," "the location in which signs may be placed,"
"distinguish between free-standing signs and those attached to buildings," "between lighted and
unlighted signs," "signs with fixed messages and electronic signs with messages that change,"
"distinguishing between the placement of signs on commercial and residential property,"
"distinguishing between on -premise and off -premise signs," "restricting the total number of
signs," and "time restrictions on signs advertising a one-time event;" and
WHEREAS, Justice Alito both in this Concurrence and his Opinion for the United States
Supreme Court in Pleasant Grove City v. Summun in 2009 reaffirmed a city's right to "speak for
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i
File Number 2016-0380
itself," "say what it wishes and select the views that it wants to express," because "the
Government's own speech ... is exempt from FirstAmendment scrutiny," and
WHEREAS, the City Council has determined that artistic murals hand painted on a building's
wall without advertising, commercial logos or depictions of commercial activities are not signs
for the purpose of the Chapter 174 Signs of the Unified Development Code; and
WHEREAS, governments are not allowed to favor commercial speech over religious, political
and other non-commercial speech so that non-commercial entities in P-1 Institutional zoning
districts should be treated similarly to Commercial businesses in commercially zoned districts
concerning the permitted size, number and location of signs; and
WHEREAS, the larger buildings "owned by larger public institutions and church related
organizations" in P-1, Institutional zoning districts should be allowed to have similar sized signs
as commercial and industrial districts rather than be limited to residential and office zoning
districts size limitations.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby amends § 151.01
Definitions of the Unified Development Code by repealing the definition of "Bulletin board"
and the definition of "Sign" and enacting a replacement definition of "Sign" as shown below:
"Sign. (Signs) Only those commercial and non-commercial signs that are in view of the general
public from a public right of way or public property shall be regulated pursuant to Chapter 174
Signs. Signs within buildings not generally visible outside the building are not regulated.
(1) Non -Commercial Sign. A device or display including flags and attraction devices commonly
referred to as a sign that does not advertise a product or service or relate to a business purpose,
does not propose a commercial transaction nor relate to economic interests including offices and
studios.
(2) Commercial Sign. A device or display including flags and attraction devices commonly
referred to as a sign that does not meet the definition of a non-commercial sign nor a
government sign.
(3) Government Sign. A device or display including flags commonly referred to as a sign that is
installed, owned, required or controlled by the City of Fayetteville, County of Washington, State
of Arkansas, the United States of America or any agencies or subdivisions of such governmental
bodies.
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File Number 2016-0380
(4) Artistic murals. Artistic murals hand painted on a building's wall without advertising,
commercial logos or depictions of commercial activities are not signs for the purposes of
Chapter 174 Signs."
Section 2. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03
(c) by changing its table to appear as follows:
"District Permitted Illumination Area (square footage)
RA Non -illuminated 32
P-1, C, 1, UT, DC, MSC, CPZD Illuminated 32
All other districts Non -illuminated 8"
Section 3. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03
(H)(1) by repealing that subsection's introductory language and all of (1) and enacts the
following replacement language:
"(H) Non -Commercial Signs. Non -Commercial signs are permitted to be placed on private
property by the land owner or lawful tenant in any zoned district subject to the following
conditions:
(1) In districts where most signs are not permitted (primarily residential districts), one
non-commercial sign may be erected subject to the limitations stated in § 174.03 (C) for real
estate signs."
Section 4. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03
(H)(3) by repealing it in its entirety and enacting a replacement (H)(3) as shown below:
"(H)(3) All districts. In addition to the non-commercial sign allowed above, sixty days prior to
any general, primary, runoff or special election, a property owner may display additional
non -illuminated, temporary non-commercial signs of the same size allowed for real estate signs
allowed in § 174.03 (C). All such signs (not authorized for further display by an upcoming
election such as a run-off) must be removed by the property owner within three days of the
election which authorized the signs' installation."
Section 5. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03
(J) Banners by repealing all the introductory language and all of subsection (J)(1) and by
enacting the following:
"(J) Banners. Public event, special sales event and non-commercial banners (not to exceed 3
feet by 30 feet) and large non-commercial signs (not to exceed 32 square feet) may be
temporarily installed under the following terms and conditions:
1. Non -Commercial banners and large signs.
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File Number.' 2016-0380
(a) Residential zones including Neighborhood Conservation, Residential Office, Residential
Agriculture and RPZD. In addition to the non-commercial sign allowed in subsection (H), the
owner of a residentially zoned parcel may install one large temporary non-commercial sign of
up to 32 square feet no more than sixty days prior to (and to be removed within three days
following) an election.
(b) All other zones. The owner of a parcel may install one large temporary non-commercial sign
of up to 32 square feet no more than sixty days prior to (and to be removed within three days
following) an election. If the parcel has more than 100 feet of frontage on a street, the owner
may install one large temporary non-commercial sign per hundred feet of frontage. No more
than once a year, an owner may substitute and install a non-commercial banner for an allowed
special sales event banner no more than two weeks prior to (and to be removed within three
days following) the election."
Section 6. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03
(L) Signs on windows by repealing it in its entirety and enacting a slightly modified replacement
as follows:
"(L) Signs on windows. Signs painted, affixed to or clearly visible through windows and doors
are exempt from the permit requirement. However, such signs are considered wall signs and
must conform to all requirements and limitations for wall signs pursuant to § 174.12 Wall
signs."
Section 7. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 174.03
(P) and enacts a replacement § 174.03 (P) as follows:
"§ 174.03 (P) Freestanding bulletin board. A church or other religious institution and a school
serving primary and/or secondary education Fayetteville students may install one free standing
bulletin board (not an electronic message board) on its campus to communicate non-commercial
information and events at such church or school. The bulletin board may be ten square feet and
must be set back a minimum of fifteen feet from the street right of way. The school or church
may enlarge the bulletin board up to maximum of twenty-four square feet by moving it back
from street right of way one additional foot for each two square feet of display surface area in
excess of the normal ten square feet allowed. This bulletin board sign shall be in addition to
any other signs authorized in this Chapter."
Section 8. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 174.04 in
its entirety and enacts a replacement § 174.04 as follows:
"§ 174.04 Number of signs.
For the purpose of determining the number of signs, a sign shall be considered to be a single
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File Number: 2016-0380
display surface or display device containing elements organized, related, and composed to form
a unit. Where matter is displayed in a random manner, without organized relationship to
elements, or where there is a reasonable doubt as to the relationship of elements, each element
shall be considered to be a single sign."
Section 9. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 174.07
Placing Signs On Public Property in its entirety and enacts a replacement § 174.07 as follows:
"§ 174.07 Only Governmental Entities May Place Signs On Public Property.
(A) No signs other than signs installed, placed, owned, required or controlled by the City of
Fayetteville, Washington County, the State of Arkansas and the United States of America or
their agencies or subdivisions shall be erected on any public property or right of way except
under circumstance set forth in (B) because the property owner has no available frontage
property where a freestanding sign could be installed.
(B) If a property owner's building abuts a sidewalk within city right of way or on city property
so that there is no space outside city right of way for the placement of a normal free standing
sign, then the property owner may place one freestanding `A' frame sandwich board on the
property as permitted in § 174.08 (C). A non-commercial sign of identical size, shape and
under the same limitations may be substituted for the `A' frame sign pursuant to § 173.03 (H)."
Section 10. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.10
On -Site Freestanding Signs by moving zoning district P-1, Institutional from (A)(3) to (A)(4),
from (13)(2)(d) to (13)(2)(f), and from (13)(1) to (13)(2).
Section 11. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.12
Wall Signs by moving zoning district P-1, Institutional from § 174.12 (C) to § 174.12 (D).
Section 12. Emergency Clause. In order to comply with the most recent United States
Supreme Court decision concerning non-commercial signs and their use in general elections,
and to protect the basic constitutional rights, health, safety and peace of Fayetteville citizens
during the campaign period prior to the general election, this ordinance needs to become
immediately effective. Therefore, the City Council declares an emergency exists and that to
protect the health, safety and peace of Fayetteville citizens, this ordinance shall take immediate
effect upon its passage and approval.
PASSED and APPROVED on 9/6/2016
Page 5 Printed on 9/9/16
File Number. 2016-0380
Attest;
Sondra E. Smith, City Clerk
Treasurer
tiilIIIre
• I7 •
FAYETTEVII l_'i ;
ci
Page 6 Printed on 9AI16
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-6323
Text File
-- File Number: 2016-0380
Agenda Date: 9/6/2016 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Ordinance
Agenda Number: D. 4
AMEND § 151.01 DEFINITIONS, § 174.03 EXEMPTIONS; § 174.04, § 174.10 ON-SITE
FREESTANDING SIGNS AND § 174.12 WALL SIGNS:
AN ORDINANCE TO AMEND § 151.01 DEFINITIONS, § 174.03 EXEMPTIONS; § 174.04, §
174.10 ON-SITE FREESTANDING SIGNS AND § 174.12 WALL SIGNS TO MORE CLOSELY
CONFORM TO THE LATEST UNITED STATES SUPREME COURT DECISIONS ON SIGN
ORDINANCES AND TO DECLARE AN EMERGENCY
WHEREAS, Chapter 174 Signs has long preserved the health, safety and welfare of Fayetteville
citizens and businesses while ensuring the free speech rights of all; and
WHEREAS, Chapter 174 Signs has been repeatedly upheld as legal and constitutional both by the
Arkansas Supreme Court and the Eighth Circuit Court of Appeals; and
WHEREAS, the latest plurality decision by the United States Supreme Court, Reed v. Town of Gilbert,
casts some doubt upon the descriptive use of religious or political signs such that these terms should be
removed from our Signs Chapter of the U.D.C. and replaced with the more generic term
"noncommercial" signs; and
WHEREAS, six Justices of the United States Supreme Court expressly or implicitly agreed with Justice
Alito's concurrence in Reed v. Town of Gilbert explaining and clarifying that cities could
constitutionally regulate "the size of signs," "the location in which signs may be placed," "distinguish
between free-standing signs and those attached to buildings," "between lighted and unlighted signs,"
"signs with fixed messages and electronic signs with messages that change," "distinguishing between
the placement of signs on commercial and residential property," "distinguishing between on -premise
and off -premise signs," "restricting the total number of signs," and "time restrictions on signs
advertising a one-time event;" and
WHEREAS, Justice Alito both in this Concurrence and his Opinion for the United States Supreme
Court in Pleasant Grove City v. Summun in 2009 reaffirmed a city's right to "speak for itself," "say
what it wishes and select the views that it wants to express," because "the Government's own
speech... is exempt from First Amendment scrutiny," and
WHEREAS, the City Council has determined that artistic murals hand painted on a building's wall
without advertising, commercial logos or depictions of commercial activities are not signs for the
purpose of the Chapter 174 Signs of the Unified Development Code; and
City of Fayetteville, Arkansas Page 1 Printed on 9/9/2016
File Number: 2016-0380
WHEREAS, governments are not allowed to favor commercial speech over religious, political and
other non-commercial speech so that non-commercial entities in P-1 Institutional zoning districts should
be treated similarly to Commercial businesses in commercially zoned districts concerning the permitted
size, number and location of signs; and
WHEREAS, the larger buildings "owned by larger public institutions and church related organizations"
in P-1, Institutional zoning districts should be allowed to have similar sized signs as commercial and
industrial districts rather than be limited to residential and office zoning districts size limitations.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby amends § 151.01
Definitions of the Unified Development Code by repealing the definition of "Bulletin board" and the
definition of "Sign" and enacting a replacement definition of "Sign" as shown below:
"Sign. (Signs) Only those commercial and non-commercial signs that are in view of the general public
from a public right of way or public property shall be regulated pursuant to Chapter 174 Signs. Signs
within buildings not generally visible outside the building are not regulated.
(1) Non -Commercial Sign. A device or display including flags and attraction devices commonly
referred to as a sign that does not advertise a product or service or relate to a business purpose, does not
propose a commercial transaction nor relate to economic interests including offices and studios.
(2) Commercial Sign. A device or display including flags and attraction devices commonly referred to
as a sign that does not meet the definition of a non-commercial sign nor a government sign.
(3) Government Sign. A device or display including flags commonly referred to as a sign that is
installed, owned, required or controlled by the City of Fayetteville, County of Washington, State of
Arkansas, the United States of America or any agencies or subdivisions of such governmental bodies.
(4) Artistic murals. Artistic murals hand painted on a building's wall without advertising, commercial
logos or depictions of commercial activities are not signs for the purposes of Chapter 174 Signs."
Section 2. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03 (c) by
changing its table to appear as follows:
"District
RA
P-1, C, I, UT, DC, MSC, CPZD
All other districts
Permitted Illumination
Non -illuminated
Illuminated
Non -illuminated
Area (square fnotaec}
"s2
32
81,
Section 3. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03 (H)(1) by
repealing that subsection's introductory language and all of (1) and enacts the following replacement
language:
"(H) Non -Commercial Signs. Non -Commercial signs are permitted to be placed on private property by
the land owner or lawful tenant in any zoned district subject to the following conditions:
City of Fayetteville, Arkansas Page 2 Printed on 9/9/2016
File Number: 2016-0380
(1) In districts where most signs are not permitted (primarily residential districts), one non-commercial
sign may be erected subject to the limitations stated in § 174.03 (C) for real estate signs,"
Section 4. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03 (H)(3)
by repealing it in its entirety and enacting a replacement (H)(3) as shown below:
"(H)(3) All districts. In addition to the non-commercial sign allowed above, sixty days prior to any
general, primary, runoff or special election, a property owner may display additional non -illuminated,
temporary non-commercial signs of the same size allowed for real estate signs allowed in § 174.03 (C).
All such signs (not authorized for further display by an upcoming election such as a run-off) must be
removed by the property owner within three days of the election which authorized the signs'
installation."
Section 5. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03 (J)
Banners by repealing all the introductory language and all of subsection (J)(1) and by enacting the
following:
"(J) Banners. Public event, special sales event and non-commercial banners (not to exceed 3 feet by 30
feet) and large non-commercial signs (not to exceed 32 square feet) may be temporarily installed under
the following terms and conditions:
1. Non -Commercial banners and large signs.
(a) Residential zones including Neighborhood Conservation, Residential Office, Residential Agriculture
and RPZD. In addition to the non-commercial sign allowed in subsection (H), the owner of a
residentially zoned parcel may install one large temporary non-commercial sign of up to 32 square feet
no more than sixty days prior to (and to be removed within three days following) an election.
(b) All other zones. The owner of a parcel may install one large temporary non-commercial sign of up to
32 square feet no more than sixty days prior to (and to be removed within three days following) an
election. If the parcel has more than 100 feet of frontage on a street, the owner may install one large
temporary non-commercial sign per hundred feet of frontage. No more than once a year, an owner may
substitute and install a non-commercial banner for an allowed special sales event banner no more than
two weeks prior to (and to be removed within three days following) the election."
Section 6. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03 (L) Signs
on windows by repealing it in its entirety and enacting a slightly modified replacement as follows:
"(L) Signs on windows. Signs painted, affixed to or clearly visible through windows and doors are
exempt from the permit requirement. However, such signs are considered wall signs and must conform
to all requirements and limitations for wall signs pursuant to § 174.12 Wall signs."
Section 7. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 174.03 (P) and
enacts a replacement § 174.03 (P) as follows:
"§ 174.03 (P) Freestanding bulletin board. A church or other religious institution and a school serving
City of Fayetteville, Arkansas Page 3 Printed on 9/9/2016
File Number 2016-0380
primary and/or secondary education Fayetteville students may install one free standing bulletin board
(not an electronic message board) on its campus to communicate non-commercial information and
events at such church or school. The bulletin board may be ten square feet and must be set back a
minimum of fifteen feet from the street right of way. The school or church may enlarge the bulletin
board up to maximum of twenty-four square feet by moving it back from street right of way one
additional foot for each two square feet of display surface area in excess of the normal ten square feet
allowed. This bulletin board sign shall be in addition to any other signs authorized in this Chapter."
Section 8. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 174.04 in its
entirety and enacts a replacement § 174.04 as follows:
"§ 174.04 Number of signs.
For the purpose of determining the number of signs, a sign shall be considered to be a single display
surface or display device containing elements organized, related, and composed to form a unit. Where
matter is displayed in a random manner, without organized relationship to elements, or where there is a
reasonable doubt as to the relationship of elements, each element shall be considered to be a single
sign.
Section 9. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 174.07 Placing
Signs On Public Property in its entirety and enacts a replacement § 174.07 as follows:
"§ 174.07 Only Governmental Entities May Place Signs On Public Property.
(A) No signs other than signs installed, placed, owned, required or controlled by the City of Fayetteville,
Washington County, the State of Arkansas and the United States of America or their agencies or
subdivisions shall be erected on any public property or right of way except under circumstance set forth
in (B) because the property owner has no available frontage property where a freestanding sign could be
installed.
(B) If a property owner's building abuts a sidewalk within city right of way or on city property so that
there is no space outside city right of way for the placement of a normal free standing sign, then the
property owner may place one freestanding `A' frame sandwich board on the property as permitted in §
174.08 (C). A non-commercial sign of identical size, shape and under the same limitations may be
substituted for the `A' frame sign pursuant to § 173.03 (H)."
Section 10. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.10
On -Site Freestanding Signs by moving zoning district P-1, Institutional from (A)(3) to (A)(4), from
(13)(2)(d) to (13)(2)(f), and from (D)(1) to (D)(2).
Section 11. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.12 Wall
Signs by moving zoning district P-1, Institutional from § 174.12 (C) to § 174.12 (D).
Section 12. Emergency Clause. In order to comply with the most recent United States Supreme Court
decision concerning non-commercial signs and their use in general elections, and to protect the basic
constitutional rights, health, safety and peace of Fayetteville citizens during the campaign period prior to
the general election, this ordinance needs to become immediately effective. Therefore, the City Council
City of Fayetteville, Arkansas Page 4 Printed on 9/9/2016
File Number: 2016-0380
declares an emergency exists and that to protect the health, safety and peace of Fayetteville citizens, this
ordinance shall take immediate effect upon its passage and approval.
City of Fayetteville, Arkansas Page 5 Printed on 919/2016
Legistar ID No.: 2016=0380
AGENDA REQUEST FORM
FOR: Council Meeting of September 6, 2016
FROM:
City Attorney Kit Williams
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
AN ORDINANCE TO AMEND § 151.01 DEFINITIONS, § 174.03 EXEMPTIONS;
§ 174.04, § 174.10 ON-SITE FREESTANDING SIGNS AND § 174.12 WALL
SIGNS TO MORE CLOSELY CONFORM TO THE LATEST UNITED STATES
SUPREME COURT DECISIONS ON SIGN ORDINANCES AND TO DECLARE
AN EMERGENCY
APPROVED FORAGENDA:
City Attorney Kit Williams Date
OFFICE OF THE,
CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Mayor Jordan
City Council
CC: Don Marr, Chief of Staff
Jeremy Pate, Development Services Director
FROM: Kit Williams, City Attorney�
DATE: August 11, 2016
RE: Necessary Revisions of the Sign Ordinance
Kit Williams
City Allorney
Blake Pennington
Assistant Cite Attorney
Patti Mulford
Paralegal
During the International Municipal Lawyers Mid -Year Seminar in April and
also the Arkansas City Attorneys Seminar in June, there were presentations and
discussions about the effect of the United States Supreme Court decision, Reed v.
Tozun of Gilbert, on municipal sign ordinances. Although I believed the absolutist
language of Justice Thomas would appear to make sign ordinances almost
unworkable, leading constitutional scholars and authorities have concluded that
Justice Alito's two page Concurring Opinion (joined by Justices necessary for the
majority opinion) clarifies and limits some of Justice Thomas' sweeping
declarations. The other three Justices concurred in the overruling of the Town of
Gilbert sign ordinance which they opined could not even pass a "laugh test". They
opined Justice Thomas' overbroad analysis and opinion was unnecessary for the
decision and simply dicta (the hallmark of judicial activism). Dicta is often not
given any precedential value in later Court decisions. Therefore, six of the nine
Justices agreeing that the Town of Gilbert sign ordinance was unconstitutional
would not agree to Justice Thomas' sweeping (and unnecessary to the decision)
language except as tempered and "clarified" by Justice Alito's concurrence.
(attached).
I believe we must make some amendments to our Sign Chapter while
preserving its most important protections for our citizens including Fayetteville's
unique aesthetic accomplishment of banning billboards and all other off-site signs.
Accordingly, I have been working on revisions of the sign ordinance which are
attached.
These revisions have been supplied to the Mayor, Chief of Staff, Jeremy Pate
and Planning staff (which administers the Signs Chapter of the Unified
Development Code) for their input and suggestions. Jeremy Pate and Planning
were kind enough to supply a ten page memo with exhibits with their suggested
revisions, most of which have been incorporated into the proposed ordinance. The
Mayor and Chief of Staff have also reviewed these proposals and concur in what
I believe are necessary changes to comply with the United States Supreme Court
decisions.
I should note that very little in the actual workings and application of Signs
Chapter will be changed if the City Council approves this ordinance. We can no
longer refer to "campaign' or "political" signs, but instead must refer to them as
"temporary non-commercial" signs. We had limited such small campaign signs
to one per every candidate or issue the property owner wished to support. We
can no longer do that because that would require the City to read the content of
the sign (which is now only permissible to differentiate between commercial and
non-commercial and on-site versus off-site).
Thus, there will now be no limit on the number of small (real estate size)
non-commercial signs a property owner may wish to place on his or her
property. These temporary signs are still limited to the period of 60 days bef ore
the election until 3 days after the election just as before the proposed
amendment. Large (up to 32 square feet) temporary non-commercial signs are
still authorized for the period of 60 days before until 3 days after the election and
limited to one for any building lot whether it be residential, commercial, or other.
Commercial lots with over 100 feet of street frontage may instill one large
temporary non-commercial sign per 100 feet of street frontage. This is identical to
the current law.
The Whereas Clauses of the ordinance describe the recent United States
Supreme Court decision, Reed v. Tozon of Gilbert, in which Justice Thomas writing
the majority opinion made such sweeping (and unnecessary for the decision)
statements that a reader might assume no city sign regulation could survive.
Fortunately, Justice Alito (who had joined Thomas' majority opinion) wrote a two
page Concurrence to provide "further explanation" of Thomas' decision. Alito
concluded: "Properly understood, today's decision will not prevent cities from
2
regulating signs in a way that fully protects public safety and serves legitimate
esthetic objectives."
Many of the most important changes are in the Definition of "Sign." It is
much shorter, but now divides signs into three categories: (1) Non -Commercial;
(2) Commercial and (3) Governmental and attempts to distinguish and remove
"artistic murals" from the definition of a sign.
Most authorities also agree that cities may not favor commercial speech (and
commercial signs) over non-commercial speech (and non-commercial signs).
Amending § 174.10 On -Site Freestanding Signs and § 174.12 Wall Signs to move
P-1 Institutional from its current grouping with residential (requiring very small
signs) to the commercial area. P-1 Institutional would include churches, hospitals,
government buildings whose speech and signs would likely not be treated as
commercial and therefore are entitled to the size allowance for commercial
districts and businesses rather than the much smaller size for residential districts.
Without this change, the City could be challenged as favoring commercial speech
with larger signs than non-commercial (school and religious) speech.
The United States Supreme Court has given great latitude to local
governments' use of signs (traffic, directional, way finding, banner on light poles,
informative, etc.). The Court has held that the First Amendment does not restrict
the local government's own speech or signs, it only restricts the local government's
regulation of private speech and signs. Therefore, we will place any necessary
current regulations concerning government signs within a City Policy rather than
leaving them in the Unified Development Code. This change will remove
potential ways to attack the City without changing our actual practices regarding
signs on City lamp poles, cross street banners, etc.
The Town of Gilbert's opponent cited its regulations and restrictions on
placing temporary signs in the public right of way. Therefore, I am concerned
about § 174.07 (B). I think it is better policy to let nonprofits who wish to direct
the public to their event know that any property owner can post a non-commercial
sign the same size as real estate sign on their property. This non-commercial sign
could be the directional sign needed for the event. This would keep the City out
of the regulation of these temporary directional signs and maintain a very clear
understanding that street right of ways are for government signs only. Thus, I
have removed all subsections within § 174.07. The replacement § 174.07 simply
prohibits non-governmental entities or persons from placing signs on public
property or street right of way.
3
CONCLUSION
I am supplying you the proposed Signs Chapter now because these changes
need to be passed during your September 6th City Council meeting to be effective
for the general election campaign. That is also why I have included an Emergency
Clause.
Temporary non-commercial signs (which include all election campaign
signs) will be authorized by this amendment to be installed by all property owners
60 days before the November 8th election day (which by my reckoning will be
September 9, 2016 as October has 31 days).
Planning may still suggest another minor change or two, but I think the
attached ordinance is pretty much in final form for your consideration.
Cite as: 576 U. S (2015)
ALITO, J., con curring
SUPREME COURT OF THE UNITED STATES
No. 1 3-5 02
CLYDE REED, ET AL., PETITIONERS v. TOWN OF
GILBERT, ARIZONA, ET Al..
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[.Tune 18, 2015)
JUSTICE ALITO, with whom JUSTICE KENNEDY and
JUSTICE SOTOMAYOR join, concurring.
I join the opinion of the Court but add a few words of
further explanation.
As the Court holds, what we have termed "content -
based" laws must satisfy strict scrutiny. Content -based
laws merit this protection because they present, albeit
sometimes in a subtler form, the same dangers as laws
that regulate speech based on viewpoint. Limiting speech
based on its "topic" or "subject" favors those who do not
want to disturb the status quo. Such regulations may
interfere with democratic self-government and the search
for truth. See Consolidated Edison Co. of N. Y. v. Public
Serv. Cotnm'n of N. Y., 447 U. S. 530, 537 (1980).
As the Court shows, the regulations at issue in this case
are replete with content -based distinctions, and as a result
they must satisfy strict scrutiny. This does not mean,
however, that municipalities are powerless to enact and
enforce reasonable sign regulations. 1 will not attempt to
provide anything like a comprehensive list, but here are
some rules that would not be content based:
Rules regulating the size of signs. These rules may
distinguish among signs based on any content -neutral
criteria, including any relevant criteria listed below.
Rules regulating the locations in which signs may be
7
REED TOWN OF GILBF.RT
ALITO,J,, concurring
placed. These rules may distinguish between free-
standing signs and those attached to buildings.
Rules distinguishing between lighted and unlighted
signs.
Rules distinguishing between signs with fixed messages
and electronic signs with messages that change.
Rules that distinguish between the placement of signs
on private and public property.
Rules distinguishing between the placement of signs on
commercial and residential property.
Rules distinguishing between on -premises and off -
premises signs.
Rules restricting the total number of signs allowed per
mile of roadway.
Rules imposing time restrictions on signs advertising a
one-time event. Rules of this nature do not discriminate
based on topic or subject and are akin to rules restricting
the times within which oral speech or music is allowed.*
In addition to regulating signs put up by private actors,
government entities may also erect their own signs con-
sistent with the principles that allow governmental
speech. See Pleasant Grove City v. Summum, 555 U. S.
460, 467-469 (2009). They may put up all manner of signs
to promote safety, as well as directional signs and signs
pointing out historic sites and scenic spots.
Properly understood, today's decision will not prevent
cities from regulating signs in a way that fully protects
public safety and serves legitimate esthetic objectives.
*Ofcourse, content -neutral restrictions on speech are not necessarily
consistent with the First Amendment. Timc, place, and manner
restrictions "muss be narrowly tailored to serve the government's
legitimate, content -neutral interests" Ward v flock Against Racism,
491 U. S, 781, 798 (1989). But they need not meet the high standard
imposed on viewpoint -and content -based restrictions
OFFICE OF THE
CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Mayor Jordan
City Council
CC: Don Marr, Chief of Staff
Jeremy Pate, Development Services Director
Andrew Garner, Planning Director
FROM: Kit Williams, City Attorney
DATE: September 7, 2016
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Patti Mulford
Paralegal
RE: Non-commercial signs allowed year round for residents in addition to real
estate signs
There is no need to further amend the Signs Chapter to permit home owners
(or legal tenants) to erect one non-commercial sign year round regardless whether
or not they have a real estate sign legally placed upon their property. The
amended language you enacted last night states:
"In districts where most signs are not permitted (primarily residential
districts), one non-commercial sign may be erected subject to the
limitations stated in § 174.03 (C) for real estate signs."
These limitations are: "one", "set back a minimum of ten feet from the
street," size and illumination restrictions. The display duration limitations for real
estate signs are clearly not applicable to non-commercial signs which may be
displayed 365 days a year.
Therefore, as the Sign Chapter now reads after last night's amendment,
home owners may display one real estate size non-commercial sign in their yard
year round. In addition, they may display a real estate sign in their yard pursuant
to the limitations and requirements of § 174.03 (C).
I did not propose a change to § 174.03 (H) (2) which states:
"(2) Districts when signs are permitted. In districts where signs are
otherwise permitted, non-commercial signs may be placed over or
substituted for the permitted commercial sign." (emphasis added).
As opposed to homeowners and tenants in residential districts, all
commercial, industrial and institutional districts which are authorized fairly large
signs are not authorized to have an additional year round non-commercial sign
(like homeowners), but may place over or substitute for their permitted
commercial sign a non-commercial sign of their choosing. So a business, industrial
or institutional property owner can display a free standing non-commercial sign
up to 75 square feet or even larger for a wall sign, but only as a substitute for its
authorized commercial or institutional sign, not in addition to such commercial
sign.
During the period of 60 days before an election to three days after the
election, a commercial, industrial or institutional property owner can, in addition
to their normal signs, display at least one large (32 square feet) non-commercial
sign.
These sign regulations appear fair, equitable, reasonable and balanced to
me. They provide ample opportunities for both homeowners and businesses to
express their cherished First Amendment speech rights.
NoRTHWESTARKANsAs
Democrat axett
= ti C)_' +e>_; � AYEl • E.V1 1 !._. AR, 72702 .� 4:'i 4,'i2 -17;7x? ^ F.AX:4 9-6�3�-1"li �
AFFIDAVIT OF PUBLICATION
L
I, Karen Caler, do solemnly swear that I am the Legal Clerk of the Northwest Arkansas Democrat -Gazette,
printed and published in Washington County and Benton County, Arkansas, and of bona fide circulation,
that from my own personal knowledge and reference to the files of said publication, the advertisement of:
,"CITY OF FAYETTEVILLE
'Ordinance: 5901
Was inserted in the Regular Edition on: "" SEE ATTACHED
,,September 15, 2016
Publication Charges: $ 873.60
Parenaler
Subscribed and sworn to before me
_ This j j day oA� . , 2016.
Public "—I
'.My Commission Expires: � Q to
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DAVFNA
c�';� NpTARY '•�''' s
i .9 �+��/yes 1012 .•' .a �
**NOTE** rs�syYNGTON GQ®e``�
Please do not pay from Afil'dfvvit.,
.. i'srvoice will be sent.
RECEIVED
SEP 21 2M
CITY OF FA`fETTEVILLE
CIT Y CLERKS OFFICE
Ordinance: 5901
File Number: 2016-038o
NO § 151.01 DEFINITIONS, § 174.03 EXEMPTIONS; 4174.04, § 174.10 ON-SITE FREESTANDING
IS AND § 174.12 WALL SIGNS:
ROMANCE TO AMEND § 151.01 DEFINITIONS, § 174.03 EXEMPTIONS; § 174.04, § 174.10 ON-SITE FREE.
IDING SIGNS AND § 174.12 WALL SIGNS TO MORE CLOSELY CONFORM TO THE LATEST UNITED STATES SU -
IE COURT DECISIONS ON SIGN ORDINANCES AND TO DECLARE AN EMERGENCY.
REAS, Chapter 174 Signs has long preserved the health, safety and welfare of Fayetteville citizens and
esses while ensuring the free speech rights of all; and
REAS, Chapter 174 Signs has been repeatedly upheld as legal and constitutional both by the Arkansas
me Court and the Eighth Circuit Court of Appeals; and
REAS, the latest plurality decision by the United States Supreme Court, Reed v. Town ofGilbert, casts some
: upon the descriptive use of religious or political signs such that these terms should be removed from our
i Chapter ofthe U.D.C. and replaced with the more generic term "noncommercial" signs; and
TEAS, six Justices of the United States Supreme Court expressly or implicitly agreed with Justice Alito's
rrence in Reed a Town ofGilbert explaining and clarifying that cities could constitutionally regulate "the
f signs 'the location in which signs maybe placed;"'distinguish between free-standing signs and those
ed to buildings""between lighted and unlighted signs;"'signs with fixed messages and electronic signs
nessagesthat change;" distinguishing between the placement of signs on commercial and residential
-ty,"'distinguishing between on -premise and off -premise signs;"'restricting the total number of signs"
me restrictions on signs advertising a one-time event "and
:EAS, Justice Alito both in this Concurrence and his Opinion forthe United States Supreme Court in Fleas-
7ve City v. Summon in 2009 reaffirmed a city's right to "speak for itself," "say what it wishes and select
ws that it wants to express"because"the Governments own speech ... is exempt from First Amendment
EAS, the City Council has determined that artistic murals hand painted on a building's wall without adver-
commercial logos or depictions of commercial activities are not signs for the purpose ofthe'Chapter 174
Dfthe Unified Development Code; and
EAS, governments are not allowed to favor commercial speech over religious, political and other non-
!rcial speech so that non-commercial entities in P-1 Institutional zoning districts should be treated
y to Commercial businesses in commercially zoned districts concerning the permitted size, number and
iofsigns;and
EAS, the larger buildings "owned by larger public institutions and church related organizations' in P-1,
ional zoning districts should be allowed to have similar sized signs as commercial and industrial districts
han be limited to residential and office zoning districts size limitations.
"HEREFORE, BE 1T ORDAINED BYTHE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS:
T. That the City Council of the City of Fayetteville, Arkansas hereby amends § 151.01 Definitions of
Pied Development Code by repealing the definition of "Bulletin board" and the definition of "Sign" and
g a replacement definition of "Sign' as shown below: 'Sign. (Signs) Only those commercial and non-
rcial signs that are in view of the general public from a public right of way or public property shall be
A pursuant to Chapter 774 Signs. Signs within buildings not generally visible outside the building are
dated.
Commercial Sign. A device or display including flags and attraction devices commonly referred to as a
[does not advertise a product or service or relate to a business purpose, does not propose a commercial
ion nor relate to economic interests including offices and studios.
nercial Sign. A device or display including flags and attraction devices commonly referred to as a sign that
:meet the definition ofa non-commercial sign nor government sign.
rnmentSign. A device or display including flags commonly referred to as a sign that is installed, owned,
or controlled by the City of Fayetteville, County of Washington, State of Arkansas, the United States of
of any agencies or subdivisions of such governmental bodies.
!icmurals. Artistic murals hand painted on a building's wall without advertising, commercial logos or
is of commercial activities are not signs for the purposes of Chapter 174 Signs."
2.That the City Council ofthe City of Fayetteville, Arkansas hereby amends § 174.03 (c) by changing its
appear as follows:
Permitted Illumination Area (square footage)
Non -illuminated . 32
UT, DC, MSC, CPZD Illuminated 92
districts Non -illuminated a
That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03 (1-1)(1) by repealing
!ction's introductory language and all of (1) and enacts the following replacement language:
Commercial Signs. Non -Commercial signs are permitted to be placed on private property by the land
awful tenant in any zoned district subject to the following conditions:
icts where most signs are not permitted (primarily residential districts), one non-commercial sign may
I subject to the limitations stated in § 174.03 (Q for real estate signs.,
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
Section 4. That the City Council ofthe City of Fayetteville, Arkansas hereby amends § 174.03 (H) (3) by repealin
it in its entirety and enacting a replacement (H)(3) as shown below:
"(H) (3) All districts. In addition to the non-commercial sign allowed above, sixty days prior to any general, pri
mary, runoff or special election, a property owner may display additional non -illuminated, temporary non-com
menial signs ofthe same size allowed for real estate signs allowed in § 174.03 (C). All such signs (not authorize,
for further display by an upcoming election such as a run-off) must be removed by the property owner withii
three days ofthe election which authorized the signs' installation"
Section 5. That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.03 (1) Banners b)
repealing all the introductory language and all of subsection 0)(1) and by enacting the following:
"(J) Banners. Public event, special sales event and non-commercial banners (not to exceed 3 feet by 30 feet) and
large non-commercial signs (not to exceed 32 square feet) may be temporarily installed under the following
terms and conditions:
for) to t he noes including Neigbbarl ood (onservation, Residential Office, Residential Agriculture and RRZD. In
tion to the non-commercial sign allowed in subsection (H), the owner of a residentially zoned parcel may
if one large temporary non-commercial sign of up to 32 square feet no more than sixty days prior to (and to
moved within three days following) an election.
Illotherzones. The owner of a parcel may install one large temporary non-commercial sign of up to 32 square
qo more than sixty days prior to (and to be removed within three days following) an election. If the parcel
note than 100 feet of frontage on street, the owner may install one large temporary non-commercial sign
undred feet of frontage. No more than once a year, an owner may substitute and install a non-commercial
er for an allowed special sales event banner no more than two weeks prior to (and to be removed within
days following) the election"
in Thatthe City Council ofthe City of Fayetteville, Arkansas hereby amends § 174.03 (L) Signs on windows
sealing it in its entirety and enacting a slightly modified replacement as follows: "(L) Signs on windows.
painted, affixed to or clearly visible through windows and doors are exempt from the permit requirement.
per, such signs are considered wall signs and must conform to all requirements and limitations for wall
)6rsuant to § 174.12 Wall signs."
1.7. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 174.03 (P) and enacts a
ement § 174.03 (P) as follows: 1174.03 (P) Freestanding bulletin board. A church orother religious institu-
d a school serving primary and/or secondary education Fayetteville students may install one free standing
i board (not an electronic message board) on its campus to communicate non-commercial information
his at such church orschool. The bulletin board may be ten square feet and must be set back a minimum
,n feet from the street right of way. The school or church may enlarge the bulletin board up to maximum
ity-four square feet by moving it back from street right of way one additional foot for each two square
tisplay surface area in excess of the normal ten square feetallowed. This bulletin board sign shall be in
I to any other signs authorized in this Chapter."
8. Thatthe City Council of the City of Fayetteville, Arkansas hereby repeals § 174.04 in its entirety and
, replacement § 174.04 as follows: "§ 174.04 Number of signs. For the purpose of determining the
of signs, a sign shall be considered to be a single display' surface or display device containing elements
d, related, and composed to form a unit. Where matter is displayed in a random manner, without or -
relationship to elements, or where there is a reasonable doubt as to the relationship of elements, each
shall be considered to be a single sign"
;That the City Council of the City of Fayetteville, Arkansas hereby repeals § 174.07 Placing Signs On
roperty in its entirety and enacts a replacement § 174.07 as follows: "§ 174.07 Only Governmental
May Place Signs On Public Property.
Ins other than signs installed, placed, owned, required or controlled by the City of Fayetteville, Wash-
unty, the State of Arkansas and the United States ofAmerica or their agencies or subdivisions shall be
n any public property or right of way except under circumstance set forth in (B) because the property
> no available frontage property where a freestanding sign could be installed.
)perty owner's building abuts a sidewalk within city right of way or on city property so that there is no
ide city right of way for the placement of a normal free standing sign, then the property owner may
fteestanding'Kframe sandwich board on the property as permitted in § 174.08 (Q. A non-commercial
ntical size, shape and under the same limitations may be substituted forthe'Kframe sign pursuant to
That the.City Council of the City of Fayetteville, Arkansas hereby amends § 174.10 On -Site Free.
Signs by moving zoning district P-1, Institutional from (A)(3) to (A)(4), from (B)(2)(d) to (B)(2)(f),
))(1) to (D)(2).
That the City Council of the City of Fayetteville, Arkansas hereby amends § 174.12 Wall Signs by
,ing district P-1, Institutional from § 774.12 (Q to § 174.12 (D).
Emergency Clause. In order to comply with the most recent United States Supreme Court deci-
iing non-commercial signs and their use in general elections, and to protect the basic constitutional
h, safety and peace of Fayetteville citizens during the campaign period prior to the general election,
to needs to become immediately effective. Therefore, the City Council declares an emergency exists _
protect the health, safety and peace of Fayetteville citizens, this ordinance shall take immediate
its passage and approval.
APPROVED on 9/6/2016
n, Mayor
City Clerk Treasurer