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HomeMy WebLinkAbout20071217 - VII-1Memo ~II.1 To: Mayor Hicks and City Council Members From: Karl Barker, Associate Planner Date: December 17, 2007 Subject: Public Hearing -City Code Amendment #2007-51 -Sign Code REQUEST The City Council is asked to hold a Public Hearing and consider adopting changes to City Code Chapter 155.08 pertaining to residential sign standards. PROPOSED CHANGES At its November 26, 2007, Planning Commission meeting, approved the City Code Amendment pertaining to signs with the following modifications: 1) The message on an electronic sign can be changed at a rate of no less than 12 seconds. 2) Possible modification or differentiation for off-site commercial signage in residential districts. 3) Signs cannot be placed in the right-of-way, or fifteen feet from the curb. 4) Signs six square feet or smaller shall be allowed without a permit. STAFF MODIFICATIONS The following changes were made after the November 26, 2007 Planning Commission meeting. The current ordinance reads that Electronic Graphic Display Signs cannot constitute more than 25 percent of the Monument Sign Face Size. However, many businesses prefer to use the existing monument sign to alleviate costs. Therefore, staff is requesting the following change: ~D) (1) (d) Electronic Graphic Display Signs, d. "If a sign is being refaced no more than the existing size of signage may be replaced with an electronic sign." Staff modified (C) Signs allowed without a Permit (4) to pertain to residential properties only, not commercial. Thus, the following substitution clause was needed. This clause ensures that the City does not treat some types of non-commercial speech differently than other types of speech. (H) Substitution Clause. The owner of anv sign which is otherwise allowed by this sign ordinance may substitute non-commercial copy in lieu of anv commercial or non- commercial copy. This substitution of copy may be made without anv additional ~proval or permitting. The purpose of this provision is to prevent any inadvertent favoring of commercial speech over non-commercial speech, or favoring of anv particular non-commercial message over any other non-commercial message. This provision prevails over any more specific provision to the contrary. RIGHT-OF-WAY MODIFICATIONS The Planning Commission recommended modifying the Ordinance to state that signs cannot be placed in the right-of--way or fifteen feet from the curb. Staff has reviewed this recommendation further and does not support this modification. In some areas of the City, signs may be in the right-of-way even though they are placed fifteen feet from the curb. Staff agrees that having a clearer standard would be beneficial to property owners; however permanent signs may be a liability to the city. ADDITIONAL INFORMATION Please see the attached e-mail from City Attorney Dan Fluegel regarding modification or differentiation for off-site commercial signage in residential districts. ATTACHMENTS • Sign Ordinance Amendment • E-mail correspondence from City Attorney Dan Fluegel • League of Minnesota Cities' letter regarding Sign Ordinances and the First Amendment ORDINANCE NO. ,SECOND SERIES AN ORDINANCE OF THE CITY OF HASTINGS, NIlNNESOTA AMENDING CHAPTER I O OF THE HASTINGS CITY CODE PERTAII~TING TO: SIGNS BE IT ORDAINED by the City Council of the City of Hastings as follows: Chapter 155 of the Hastings City Code is hereby amended as follows: 155.08 SIGNS. (A) General provisions. (1) Pu~ose. Find'n,~s, Purpose and Effect a. Findings. The city council hereby fmds as follows: i. Exterior signs have a substantial impact on the character and quality of the environment. ii. Signs provide an important medium through which individuals may convey a variety of messages. iii. Signs can create traffic hazards, aesthetic concerns and detriments to property values, thereby threatening the public health, safety and welfare. iv. The city's zoning_regulations have, historically included the regulation of signs in an effort to provide adequate means of expression and to promote the economic viability of the business community, while protecting the city and its citizens from a proliferation of signs of a type, size, location and character that would adverselypact upon the aesthetics of the community and threaten the health, safety and welfare of the community. The regulation of the physical characteristics of sins within the city has had a positive impact on traffic safety and the appearance of the community b. Purpose and intent. It is not the purpose or intent of this sign ordinance to regulate the message displayed on an~gn• nor is it th~urpose or intent of this article to regulate any building desi ng or an~isplay not defined as a sign or any sign which cannot be viewed from outside a building The purpose and intent of this article is to- i. Regulate the number, location, size, type illumination and other physical characteristics of signs within the city in order to promote the public health safety and welfare. ii. Maintain, enhance and improve the aesthetic environment of the city by preventing visual clutter that is harmful to the appearance of the community iii. Improve the visual appearance of the city while roviding for effective means of communication, consistent with constitutional guarantees and the citesgoals of public safety and aesthetics. iv. Provide for fair and consistent enforcement of the sign regulations set for herein under the zoning authority of the cites c. Effect. A sign maybe erected, mounted, displayed or maintained in the city if it is in conformance with the provisions of these regulations. The effect of this sign ordinance, as more specifically set forth herein is to: i. Allow a wide variet~of si ri types in commercial zones and a more limited variety of signs in other zones, subject to the standards set forth in this sign ordinance. ii. Allow certain small, unobtrusive signs incidental to the principal use of a site in all zones when in compliance with the requirements of this sigfi ordinance. iii. Prohibit signs whose location, size, type illumination or other physical characteristics ne atively affect the environment and where the communication can be accomplished by means having a lesser impact on the environment and the public health, safety and welfare. ordinance. iv. Provide for the enforcement of the provisions of this sign (2) Definitions. See § 155.02. (3) Generally. The following are minimum requirements. (a) All signs shall be erected or installed according to state building and electrical codes. Furthermore, all electrical signs shall require underground wiring. (b) All signs/sign structures shall be maintained in safe and orderly condition with the areas around them kept free from debris, bushes, high grass/weeds, or anything else that would be a nuisance. (c) Address signs that are clearly legible from the street which access is gained shall be required for each principal structure, except in non-sewered areas where addresses shall be affixed and visible from both sides of the mailbox and/or a separate structure visible from the access or street. (d) Illuminated signs shall be designed so as not to be obtrusive to adjacent property or to passing motorists on private or public rights-of--way. (e) Except as otherwise regulated herein, the minimum setback from property lines for all signs may be zero feet provided that no portion of the sign extends into public right-of--way. At no time shall a sign be permitted to extend into a Minnesota Department of Transportation right-of--way. Signs above 30 inches in height may not be placed within the vision triangle, which is measured by 25 feet in either direction of an intersection at the edge of the street, or within any easement. (f) To provide reasonable flexibility in respect to the sign regulations set forth in this section, the City Council may approve an application for a roof sign where an exception would be consistent with the intent of these regulations, in cases where the applicant demonstrates practical difficulties in using a wall sign or freestanding sign. However, no roof sign shall exceed in size the district requirements for freestanding signs. If the City Council approves a roof sign, the area of the roof sign may be subtracted from the allowable freestanding and/or wall signage allowed for the property and/or building. (g) Portable signs are allowed in all commercial districts, except within the Core District or East 2°d Street Historic District, in addition to permanent signs, only by temporary permit issued by the Planning Department according to provisions established under division (E) below_ Portable signs may not exceed 32 square feet in size or 6 feet in height. The length of permits for portable signs shall be either 15 or 30 days. Permits for portable signs may be obtained for no more than 60 days per legal parcel per year. Only 1 portable sign per legal parcel may be permitted at a time. Portable signs may not be situated within any public street right-of--way or easement. Portable sign permit fees shall be established by resolution of City Council. (B) Prohibited signs and sign structures. (1) No sign shall be located within or over a public right-of--way unless otherwise specifically permitted by this section or the City Council. (2) No illuminated flashing or revolving signs shall be permitted except movie theaters, time and temperature provided the signs are designed so as not to be obtrusive to adjacent property or to passing motorists on private or public rights-of--way. Furthermore, movie theaters with illuminated flashing or revolving signs shall use light bulbs that are 25 watts or less and shall not be operated between 12:00 a.m. and 6:00 a. m. (3) No sign shall be erected or maintained in a way that obstructs, obscures, or otherwise physically interferes with an official traffic sign, signal/device, or driver's view of approaching, merging, or intersecting traffic. (4) No sign shall be erected or maintained which imitates or resembles any official traffic sign, signal, or device. Furthermore, no sign shall contain the wording including, but not limited to, "stop," "warning, " or "caution" which may be confused with traffic signing or controls unless the signs are approved by the city. (5) No sign shall be painted or placed on a €ene~ utility pole, tree, or other like structure except those signs that provide public information concerning a school, city, county, state, or federal event. (6) No sign shall be made of any non-durable material and attached directly to a building. (7) No sign/structure shall be placed that will obstruct safe access to doors, windows, or fire escapes. (8) No sign shall be supported by guy wires. (9) No sign shall be placed on a rooftop or project above the roof line when attached to a structure except as may be permitted by the City Council under division (A) above. (10) Any sign not expressly permitted by the provisions of this section. (C) Signs permitted without a permit. (1) Traffic signs as approved by the Public Works Director; (2) Public signs as approved by the City of Hastings; (3) Notwithstanding any other provisions of this Sign Ordinance, all si ns of any size containing non-commercial speech may be posted from August 1 in any general election year until ten (10) days following the general election and thirteen (13) weeks prior to any special election until ten (10) days following the special election• (4) Signs 6 square feet or less in size per visible side on residentia~roperties provided that signs identifying home occupations must comply with the s~nage restrictions set forth in Hastings Code Section 155.07(D) ntileleg; abuts; (5) One temporary, ein-site construction sign for a residential development provided a final plat has been filed. The sign shall not exceed 100 square feet in size, 10 feet in height and must be located on a vacant lot or lot with a model home within the subdivision at least 10 feet from the nearest property line. Furthermore, the sign shall be removed when 90 % of single-family or 75 % ofmultiple-family lots are sold. Construction trailers may be placed in close proximity to support construction of the site. Placement and/or use of the trailers solely for advertising shall be prohibited; (6) One temporary, on-site construction sign-fer-a in a commercial, industrial, or public institution development, provided a building permit has been issued. The sign shall not exceed 100 square feet in size, 10 feet in height and shall be removed before any building in the project is occupied. Where a building permit or certificate of occupancy is not required for a construction project including, but not limited to, landscaping projects, one on-site sign not to exceed 25 square feet in size and 10 feet in height may be allowed up to 7 days. Construction trailers may be placed in close proximity to support construction of the site. Placement and/or use of the trailers solely for advertising shall be prohibited; ~~ (7) Temporary ribbons, banners, pennants, and similar devices are allowed in commercial, industrial, and public institution districts. The devices shall be removed if they become torn, discolored, or in any way damaged to modify their original appearance. Businesses and/or property owners utilizing these temporary devices that include advertising and/or a message shall be allowed only a total of 90 days during any 12-month period. Only 1 device shall be used at a time, and the maximum size of the device shall be equal to or less than the monument sign standards for the district in which the site is located, or in the case of the East 2nd Street Historic District or Downtown Core District, equal or less than the wall sign standards. €eet~-s~i-~d (D) Signs requiring a permit. ~~ ' (1) Permit Required. Except for signs specifically allowed by this Sign Ordinance without a permit, no signs shall be erected, altered reconstructed maintained or moved in the City without first securing a permit from the City. The content of the sign shall not be reviewed or considered in determining whether to approve or deny a sign permit. Sign applications are available from the Planning Department. The Applicant shall include sign dimensions height colors construction materials method of anchoring, and location A sketch or photograph of the proposed sign and a site plan that adequately illustrates the location of the sign is required In addition, the application shall include the location and size of all other signs at the subject property/development. Once a completed sign application is filed with the Planning Department, City Staff shall review the plans and specifications for the proposed sign(s). If the proposed sign meets Ordinance requirements the Building Code and all other laws and ordinances of the Ciry a signed permit will be approved The required fee as established by Resolution of the City Council shall be paid to the City before issuance of a signed permit. Unless otherwise noted the following regulations apply to all zoning districts. (a) One monument sign for each principal structure, unified development, or legal parcel, whichever is more restrictive. Lots adjacent to more than 1 street may have 1 sign per street frontage. In no case shall secondary signs exceed 50 square feet in size or 6 feet in height. (b) Wall canopy, projecting or marquee; except as otherwise noted, the amount of signage permitted is based on the wall to which the sign will be attached. Sign heights shall not exceed the top of the parapet wall or, if there is no parapet wall, sign height shall not exceed height of eaves. (c) To direct vehicular and pedestrian traffic in a safe and convenient manner, directional signs are permitted, provided the sign does not exceed the sizes indicated in the table in division (D)(1)(d) below. The number and location of directional signs will be determined through sign permit review. (d) Electronic Graphic Display Signs must meet the following requirements: a. Allowable zoning districts. Electronic graphic display signs may only be located in the C-l, C-2, C-3, C-4, P-I, and O-1 Zoning Districts. Electronic graphic display signs shall be prohibited in all other zoning districts and the East 2°d Street Historic District. b. Setback from residential. The leading edge of the sign must be a minimum distance of 60 feet from an abutting residential district. c. Dimmer control. Electronic graphic display signs must have an automatic dimmer control to produce a distinct illumination change from a higher illumination level to a lower level for the period between one half-hour before sunset and one half- hour after sunrise. d. Use. Electronic graphic display signs may only be used in combination with freestanding signage and may not constitute more than 25 percent of the Monument Sign Face Size as regulated in Figure 1. If a sign is being refaced no more than the existing size of signa e may be replaced with an electronic sign. e. Flashing. The messages on an electronic graphic display sign may change at a rate of no less than 12 seconds. No flashing shall be allowed. (e) The table below illustrates the allowed amounts of signage permitted in the various districts. Zoning Districts A, R, PI C-1, O-1 C-2 I-1, I-2 DC Monument Maximum 5 feet 6 feet 6 feet 6 feet N/A Height Sign Face 50 square 50 square 50 square 50 square N/A Size feet feet feet feet Cap Height 8 inches 8 inches 8 inches 8 inches NIA (max. ) Wall Maximum Greater of 40 square feet or 5 % of wall area See division Size (D)(g) below Projecting Clearance N/A 8 feet 8 feet N/A 8 feet Maximum N/A 4 feet 4 feet N/A 2.5 feet Distance from Building Directionals Maximum 4 feet 4 feet 4 feet 4 feet N/A Height Maximum - 2 square 2 square 2 square N/A Size feet feet feet Zoning Districts C-3 C-4 Single Multiple Single - Single - Multiple Occpant Occupants under over Occupant 100, 000 100, 000 Building square feet square feet Monument Maximum 6 feet 10 feet 6 feet 15 feet 20 feet Height Sign Face 50 square 100 square 50 square 75 square 100 square Size feet feet feet feet feet Cap Height 8 inches 12 inches 8 inches 18 inches 24 inches (max.) Wall Maximum Greater of 40 square feet or 5 % of wall area Size Projecting Clearance 8 feet 8 feet 8 feet 8 feet 8 feet Maximum 4 feet 4 feet 4 feet 4 feet 4 feet Distance from Building Directionals Maximum 4 feet 4 feet 4 feet 4 feet 4 feet Height Maximum 2 square 2 square 2 square 2 square 2 square Size feet feet feet feet feet (2) A, R, and PI Districts. (a) One monument identification sign not to exceed 50 square feet in size or 5 feet in height for residential developments with 6 or more single-family or multiple-family dwelling units. (b) One monument identification sign not to exceed 50 square feet in size or 5 feet in height for each church, public or parochial school, hospital and residential care facility. Such sign shall be solely for the purpose of displaying the name of the institution and its activities or services. (c) One monument identification sign not to exceed 50 square feet in size or 5 feet in height for any commercial or institutional use within the PI Zoning District. Lots adjacent to more than 1 street may have 1 sign per street frontage. (Am. Ord. 553, 2nd Series, passed 5-15-2006) (3) C-1 and O-1 Districts. (a) Signs as permitted per division (D)(1) above. (b) Lots adjacent to more than 1 street may have 1 sign per street frontage. In no case shall secondary signs exceed 50 square feet in size or 6 feet in height. (4) C-2 District. (a) Signs as permitted per division (D)(1) above. (b) Lots adjacent to more than 1 street may have 1 sign per street frontage. In no case shall secondary signs exceed 50 square feet in size or 6 feet in height. (c) Additional monument signs permitted for automobile dealerships: 1. One monument sign not to exceed 50 square feet or 6 feet in height for advertisement of sale of pre-owned automobiles; and 2. One monument sign not to exceed 50 square feet or 6 feet in height for each additional new automobile product line (automobile make) sold on the premises. (5) C-3 District. (a) Signs as permitted per division (D)(1) above. (b) Lots adjacent to more than 1 street may have 1 sign per street frontage. In no case shall secondary signs exceed 50 square feet in size or 6 feet in height. (c) Those properties located within the East 2nd Street Historic District are subject to the regulations of division (D)(8) below. (6) C-4 Districts. (a) Signs as permitted per division (D)(1) above. (b) Lots adjacent to more than 1 street may have 1 sign per street frontage. In no case shall secondary signs exceed 50 square feet in size or 6 feet in height. (c) For movie theatres, the primary wall sign may not exceed 10% of the building facade on which the sign is erected. Secondary signs on the other building facades may not exceed 5 % of the building facade on which the sign is erected, or 40 square feet, whichever is greater. (7) I-1 and I-2 Districts. Signs as permitted per division (D)(1) above. (8) DC Downtown Core and East 2nd Street Historic District. (a) Downtown Hastings is a remarkably intact and compact example of commercial architecture from the 1860's to the 1920's. This historic character is considered an important asset of Downtown and, therefore, it is the intent of the this section that this character be preserved. To accomplish this objective, all permanent signage within the East 2nd Street Historic District or on property zoned DC Downtown Core shall comply with the following requirements and guidelines. 1. Wall signs not to exceed 2 square feet per linear foot of building frontage. The size of a sign should be appropriate to the building. 2. Signs should not cover up the traditional design elements of a building as identified in the following sketch. When feasible, signage shall be at traditional locations, including: painted inside the windows, door pane or transom pane; flush on the storefront cornice or lintel; letters painted or attached directly on the cornice or lintel; mounted flush between the lintel and second floor windows. 3. The style, colors, lettering, and materials of the sign should reflect the age of the building. Examples may be found in old photographs and surviving signs. 4. Contrast between a dark background and light lettering, or vice versa, is more important than size. The lettering style should be chosen for its legibility. 5. Plastic, aluminum, and back lit signs are not usually appropriate on older buildings because of their materials, colors, size, and style of lettering. The content and logo of corporate and product signs can be transferred to more traditional materials and styles of sign. 6. Signage shall be permitted on canvas or treated cloth awnings where they are compatible with the age of the building and character of Downtown. 7. Projecting signs must conform to the following. a. Minimum height above grade is 8 feet. Maximum height above grade is 11 feet for the sign, and 12 feet for the bracket. of the building. permitted. b. Sign may not project more than 2 and 1/2 feet from the face c. Total sign face may not exceed 6 square feet. d. Materials must be wood and/or metal. Plastic signs are not e. Projecting signs may not be lit, internally or externally. f. Plans must be submitted to show how the sign will be anchored to the building and masonry. g. Only 1 projecting sign permitted per business. generic product. h. Signs must be advertising a specific business name, nova i. The sign area of the projecting sign comes off the total signage allowed for the building under these requirements. (b) Ail signs proposed to be constructed on properties that are designated as Heritage Preservation Sites or are in a Historic District are subject to approval by the Heritage Preservation Commission. (c) Freestanding signs are prohibited in the East 2nd Street Historic District or on properties zoned DC Downtown Core. (E) Permit requirements (1) Except as otherwise provided in this section, no sign or structure shall be erected, constructed, altered, rebuilt, or relocated until a permit has been issued by the city. (2) Sign applications are available from the Planning Department. The applicant shall include sign dimensions, height, colors, construction materials, and method of anchoring, ~ „~~~~, ~~a '~~~~~~-~ did a A site plan that adequately illustrates the location of the sign is required. In addition, the application shall include the location and size of all other signs at the subject property/development. (3) Once a completed sign application is filed with the Planning Department, staff shall review the plans and specifications for the proposed sign(s). If the proposed sign(s) meets ordinance requirements, the building code and all other laws and ordinances of the city, a sign permit will be approved. (4) The required fee as established by resolution of the City Council shall be paid to the city before issuance of a sign permit. . . (F) Repairs. Any sign located in the city which may now be or hereafter become out of order, rotten or unsafe, and every sign which shall hereafter be erected altered, resurfaced, reconstructed or moved contrary to the provisions of this section shall be removed or otherwise properly secured in accordance with the terms of this section by the owners thereof or by the owners of the grounds on which said si shall stand, upon receipt of proper notice so to do, given by the issuing authority. No rotten or other unsafe sign shall be repaired or rebuilt except in accordance with the provisions of this section and upon a :permit issued by the issuing authority (G) Removal. In the event of the failure of the owner or person company or corporation having control of any sign, or the owner of the ground on which the si is located, to remove or repair said sign within 60 days after the use is terminated a notice shall be given to the owner of the sign and the sig maybe removed by the cit ay t the expense of the owner or manager of the sign or the owner of the ground upon which the sign stands. (1) Any sign legally existing on the effective date of this section that does not conform to the requirements set forth in this section shall become a nonconforming use and/or structure. Except as otherwise provided in this section, nonconforming signs shall be allowed to continue, but shall not be rebuilt, relocated, replaced, or altered without being brought into compliance with all the requirements of this section. Furthermore, nonconforming signs are subject to the provisions contained at § 155.06. (2) Any sign that is in violation of this section shall be removed or altered to comply with this section. (3) Maintenance of.existing signs, including the replacement of faceplates of the same size, shall be permitted on nonconforming signs. (4) Temporary ribbons, banners, pennants, and similar devices that are in use as of the adoption of this section must comply with the provisions of division (C)(11) above. (Prior Code, § 10.08) (Am. Ord. 485, passed 2-3-2003; Am. Ord. 541, passed 10-17- 2005) Penalty, see § 10.99 (H) Substitution Clause. The owner of any sign which is otherwise allowed by this sign ordinance may substitute non-commercial copy in lieu of any commercial or non- commercial copy. This substitution of copy maybe made without any additional approval or permitting. The purpose of this provision is to prevent any inadvertent favoring of commercial speech over non-commercial speech, or favoring of any particular non-commercial message over any other non-commercial message. This provision prevails over any more specific provision to the contrary. Council member moved a second to this resolution, and upon being put to a vote it was unanimously adopted by all Council members present. Adopted by the Hastings City Council on December 17~', 2007 by the following vote: Ayes: Nays: Absent: ATTEST: Paul J. Hicks, Mayor Melanie Mesko Lee, City Clerk (City Seal) I HEREBY CERTIFY that the above is a true and correct copy of the resolution presented to and adopted by the City of Hastings, County of Dakota, Minnesota, on the 17th day of December, 2007, as disclosed by the records of the City of Hastings on file and of record in the office. Melanie Mesko Lee, City Clerk (SEAL) This instrument drafted by: City of Hastings (KSB) 109 4th St. East Hastings, MN 55033 Message Page 1 of 2 Karl Barker From: Daniel J. Fluegel [dan@fluegel.com] Sent: Tuesday, December 11, 2007 7:12 PM To: Kari Barker Subject: RE: Sign Ordinance Kari, Based on the Planning Commission's concerns that signs associated with home occupa#ions may tend to be common and possibly unsightly in residential districts and should not be allowed under the "general exception", one option is to add a qualification to the current proposed language so Section C(4) reads: "Signs XX square feet or less in size per visible side provided that signs identifying home occupations must comply with the signage restrictions set forth in Hastings Code Section 155.07(D)." Section 155.07(D)(k) limits home occupation signage to not more than 1 single faced, unlighted wall sign per home with a maximum area of 2 square feet. 1 believe this qualification is the best option if the Council determines home occupation signs need to be subject to additional restrictions. There will remain some potential for challenge because the ordinance would treat home occupation signs differently than other commercial signs allowed in the same locations. However, because the restriction applies to commercial signage, the level of court review would be lower than if the restriction was on non-commercial speech. This "intermediate scrutiny" would require that the restriction is narrowly tailored to accomplish a legitimate government purpose and is no more restrictive than necessary. By incorporating in the findings, purpose and effect section of the ordinance that the City has determined the restriction is necessary to prevent unwanted, negative effects on the residential character, health, safety or general welfare of the surrounding residential neighborhood where home occupations are clearly incidental and subordinate to the primary residential uses (this language is taken from the Home Occupation Ordinance Purpose Section 155.07(D)) the City may be able to overcome a challenge by demonstrating a legitimate governmental purpose for the restrictions. The second option we discussed is less appealing in my opinion. That would be to allow only non-commercial content in the signs allowed under the "general exception" in Section C(4) and to deal with specific allowed commercial signs {i.e. real estate sale signs, garage sale signs, etc.) in additional ordinance sections. Although this would "fix" the problem we recently encountered with political signs, it may continue some of the same problems we are trying to avoid: treating some signs differently than others based on the content. I believe #his approach should be avoided. Please let me-know if you would like additional information for the Council packets. You may also want to consider including the memorandum from the League on Sign Ordinances and the First Amendment which provided some nice background information on these issues. I am attaching that memorandum if you wish to include it. Thanks Daniel J. Fluegel FLUEGEL LAW FIRM P.A. 1303 South Frontage Road, Suite 5 Hastings, MN 55033 Phone: (651) 438-9777 Fax: (651) 438-9775 dant7a fluegel.com -----Original Message----- From: Karl Barker [mailto:kbarker@ci.hastings.mn.us] Sent: Monday, December 10, 2007 9:59 AM To: Daniel J. Fluegel Subject: Sign Ordinance A week or so ago we discussed the Planning Commissioner's desire to Possible modification or differentiation for off-site commercial signage in residential districts. believe you gave me two options, both of which would probably not withstand a legal challenge. 12/ 12/2007 league of Minnesota Cities Insurance Trust 145 University Avenue West, St Paul, MN 55103-2044 I,~y~ of M:,..,ee~ Crti¢e (651) 281-1200 • (800) 925-1122 C.6ee t~n9 ~~~~ Fax: (651) 281-1298 • TDD: (651) 281-1290 www_Imnc.org Sign Ordinances and The First Amendment Sign ordinances have received nationwide attention lately as several well- publicized cases raised successful challenges on First Amendment grounds. This memorandum discusses some of the basics of designing a sign ordinance that meets the requirements of the First Amendment. I. General First Amendment Principles The law regarding signs ordinances is different than most other land use provisions, because sign ordinances implicate the greater protections of the First Amendment of the United States Constitution. Most city decisions, if challenged in court, are subject only to rational-basis review. That means a city decision will generally be upheld if there is any rational basis to it at all. If the First Amendment is involved, the review is not so easy. The First Amendment protects signs as speech, and courts will look very closely at any attempts to limit non-commercial speech. This highest level of review is called strict scrutiny. Courts will look very closely on these limitations to make sure that the city is not giving disparate treatment based on the message content or the identity of the speaker. Restrictions on commercial speech (advertising) do not receive same level of scrutiny as those onnon-commercial speech. However, the First Amendment is still implicated so the level of scrutiny is still elevated, and is known as intermediate scrutiny. Under this standard, regulation will be upheld so long as it is narrowly tailored to accomplish a legitimate government purpose and is no more restrictive than necessary. Thus, even content neutral restrictions must be drafted carefully so as to be no more restrictive than necessary to accomplish a legitimate purpose. Intermediate scrutiny can present a number of challenges with the practical implementation of sign ordinances. Cities should be particularly careful with broadly sweeping regulations. For example, complete bans or moratoriums on all signs might be difficult to justify as narrowly tailored to accomplish a legitimate government purpose. Cities should also be careful about the practical effects of making fine distinctions or exemptions to otherwise valid rules. Consider a regulation that prohibits all moving or flashing signs for reasons of public safety, because they are distracting to drivers, but which exempts such signs for city and park facilities. It might be difficult to show that this regulation is narrowly tailored to accomplish a legitimate government purpose because allowing flashing signs in some situations takes away the credibility of the public safety concern. With this background in mind, there are several steps that cities can take when drafting ordinances. II. Provisions All Sign Ordinances Should Have All sign ordinances should be drafted to take into account the First Amendment principles discussed above. Therefore, it is recommended that every sign ordinance contain the following provisions. A. A Statement of Purpose. The statement of purpose is a guide to how the ordinance was drafted and should be applied. It should establish that the ordinance should not be read to include content- based restrictions. It should also include a statement of the government purposes and describe how the ordinance is narrowly tailored to meet those purposes. It may also help to draft findings of fact that discuss the governmental interests that the ordinance is addressing and how the ordinance addresses them. B. A Substitution Clause. The City must ensure that it does not treat some types ofnon-commercial speech differently than other types of speech. One way to ensure this is to include a clause that provides that for every type of sign that is allowed, any non-commercial message could be legally substituted. C. Severability Clause. Ordinance should specifically state that in the event that any provision of the ordinance is found to be invalid, the remainder of the ordinance is intended to stand on its own and still be valid. This may prevent a court from invalidating an entire ordinance because of a constitutional flaw in part of it. D. Acknowledgement of election season pre-emption as found in Minnesota Statute. Minnesota Statute provides: 211B.045 Noncommercial signs exemption. In any municipality, whether or not the municipality has an ordinance that regulates the size or number of noncommercial signs, ail noncommercial signs of any size maybe posted in any number from August 1 in a state general election year until ten days following the state general election. Sign ordinances must comply with this state law. However, it is also important not to apply the converse of this regulation by only allowing some types ofnon-commercial speech during this designated time. The most common example are ordinances prohibiting political yard signs except during election season. These ordinances are almost certainly unconstitutional content-based restrictions if other types of yard signs are allowed. Ordinances should make clear that providing non-commercial speech this extra latitude during election season does not impose any additional restrictions or prohibitions outside of that period. Otherwise-valid content-neutral restrictions on time, place, manner, or size may still apply the rest of the year. E. Content Neutral regulations based on time, place, and manner. As a general matter, sign ordinances should avoid regulating on the basis of content. Instead, regulations should be based on reasonable restrictions on time, place, and manner. Valid time, place, and manner restrictions are upheld be courts if they: (1) Are justified without reference to the content of the regulated speech; (2) Are narrowly tailored; (3) Serve a significant governmental interest; and (4) Leave open ample alternative channels of communication III. Provisions All Sign Ordinances Should Avoid A. Unfettered discretion. Approval or permitting of signs should never be conditioned upon a discretionary approval by the city. Having discretion at all, regardless of how it has been applied, creates the potential for favoring some messages or messengers over others. Any permit requirements should be transparent and objective. A very common provision in ordinances allows signs on public property only with approval by the City Council. This is very problematic and should be avoided. B. Exemptions or favoritism for certain groups or types of signs based on content. Another common provision in ordinances is to exempt certain groups or messages from permit requirements. For example, church signs and official flags are often exempted. This is content-based discrimination and should be avoided. Note that this is different from providing exemptions based on valid time, place, or manner restrictions. For example, it is common and acceptable to exempt all signs under a certain size from permitting requirements. C. Inadvertently treating non-commercial speech differently by defining "sign" as "advertising." Beware ofover-defining terms. This occasional problem area is the combination of a few steps: (1) Signs are defined narrowly as bearing advertising messages. (2) A provision is made allowing the enumerated signs to get permits. (3) All other signs without permits are prohibited. Courts have read these kinds of ordinances as impermissibly prohibiting all non- commercial speech. On the flip side, ordinances that discuss only advertising signs may inadvertently fail to include non-commercial speech in time, place, and manner restrictions. For example, it could result in a sign ordinance that had no limits on the size and number of non-commercial speech billboards. IV. Common Questions and Issues A. Off-premise advertising. Off-premise advertising consists of commercial signs that do not advertise for a business on the same premises as the sign. It is legal to forbid off-premise advertising, so long as the prohibition does not extend to noncommercial messages. B. Flags. Be cautious of regulations that might favor the some types of flag, particularly the United States Flag, over other flags. This is an example of a good place for the substitution clause; if one type of noncommercial flag would be acceptable, any noncommercial flag should be allowed. C. Yard Signs. A number of courts have held that yard signs are constitutionally protected and cannot be prohibited. Be especially cautious about provisions that favor some messages over others. The most common types that get special treatment are real estate or construction project signs. V. Summary First Amendment law can be very confusing even to experts. For purposes of drafting sign ordinances, cities should err on the side of caution or tread very carefully. Keep in the mind these basic rules of thumb: (1) Avoid regulations that depend on the content of the sign. (2} Do not favor commercial speech over noncommercial speech. (3) Provide clear procedures and follow them. (4) Explain the rationale and purpose of your ordinance. There are exceptions to these rules, but they should be approached very cautiously and with legal advice. This is by no means a comprehensive list of every argument that a plaintiff could make if bringing a lawsuit, but applying these principles will help in the majority of cases. For further assistance, feel free to contact LMCIT land use attorneys Paul Merwin at 651-281-1278 or Jed Burkett at 651-281-1247. Disclaimer: This memorandum is intended as general information only and should not be read as legal advice or as creating an attorney-client relationship. This memo addresses general concerns and has not been reviewed in the context of a specific client or situation. This memo was drafted as a loss control document and is intended to avoid conflicts rather than form an opinion as to the legality or defensibility of any action.