Table of Contents

Agenda 2Temporary Sign Discussion/Direction

Agenda Memo and Attachments 3Attachments 9

1

BOARD OF COMMISSIONERS/PLANNING BOARD WORKSHOP AGENDA

Town of Swansboro Monday, February 10, 2020

I. Call to Order Mayor John Davis Chair Ralph Kohlmann

II. Temporary Sign Discussion/Direction Jennifer Ansell, Planner Chris Seaberg, Manager

At its January 13, 2020 meeting the Board of Commissioners directed Staff to schedule a joint workshop with the Planning Board to further discuss allowances for Temporary Signs. Action Needed: Discussion and guidance to the Planning Board and Staff on refining the current ordinance allowances for temporary signs.

III. Public Comment

IV. Adjournment

2

Board of Commissioners Meeting Agenda Item Submittal

Reviewed By: Town Manager 2/4/2020 Finance Director Town Clerk 2/4/2020 Town Attorney Date Action Approved by Board: Action if different from Recommended:

__________________________________________________________ Item To Be Considered: Temporary Signs Joint Meeting Board Meeting Date: February 10, 2020 Prepared By: Jennifer Ansell, Planner Overview: At the January 13, 2020 meeting the Board directed Staff to schedule a joint workshop meeting with the Planning Board to further discuss allowances for Temporary Signs. History: On January 17, 2019, the Board of Commissioners and Planning Board held a joint workshop meeting to discuss Temporary Signs. Among the discussion at that meeting were concerns over feather flags, the allowance of 45 days for banners and other temporary signs, and real estate “open house” signage. The Planning Board continued their review of temporary signs at their February 4th regular meeting. At that meeting, the Board voted 3 to 1 to recommend the following proposed changes to the ordinance:

• To add definitions for “Sign, Appurtenant (non-residential)” and “Sign, Appurtenant (residential)”;

• To add a provision for temporary “open house” signage; • To add provisions for “Residential Appurtenant Signs”; • To delete the current provisions for “Business, banners, pennants, and flags”; • To delete the current provisions related to “Mobile Signs” and “Portable Signs”; and • To add provisions for “Appurtenant (Secondary) Signage.

When the recommendation went to the Board of Commissioners at their February 26th meeting, action was deferred until a later date, and the public hearing was not held. The Board cited their reasons for deferment being that the proposed amendment was too restrictive for businesses, it lacked clarity, and that the Planning Board had been asked to create regulations for separate zoning districts, which was not done. Focus Group Meetings: In August, Planner Andrea Correll met with business owners along Highway 24 and within the Historic District to discuss temporary sign provisions. However, the recommendations from those meetings seemed to address provisions that were already allowed by the existing ordinance. For example, one recommendation was to limit the size of temporary signs to 32 square feet, which is the current maximum size allowed, and another was to allow sandwich board signs, which are allowed under the provisions for portable signs. It also included the

3

recommendation to allow yard signs, which were specifically excluded from the ordinance when the Gateway Vision Report recommendations were codified in 2013/2014. Additionally, it appeared that some of the discussion on temporary signs stemmed from the Reed v. Town of Gilbert (2015) U.S. Supreme Court case, which ruled that sign regulations must be content-neutral, but regulations could address size, location, and type of construction (monument signs, wall signs, etc.). Action Needed: Provide guidance to Staff on refining the current ordinance allowances for temporary signs. Attachments Summary of UDO Sections Pertaining to Temporary Signage February 26, 2019 Board of Commissioners Agenda Item Signage Focus Group Staff Reports Dated August 16, 2019 UNC SOG Coates’ Canons Blog: Sign Litigation: A Brief Analysis of Reed v. Town of Gilbert

4

Current Ordinance Requirements Section 152.196, Notes to the Table of Area, Yard, and Height Requirements (G) Note 7. Use of parkway areas. Along that portion of North Carolina Highway 24 that lies within the corporate limits (and extraterritorial jurisdiction) of the Town of Swansboro, that portion of the highway right-of-way that extends from the back of the curb for a distance of 12 feet behind the curb and perpendicular to the roadway (on both sides of the highway) shall be designated as the “parkway”. If the right-of-way area behind the curb is less than 12 feet, the parkway area shall consist of the available right-of-way area. The parkway area shall be kept open and clear for the passage of pedestrians, for the installation of sidewalks, and for roadside landscaping by public entities. Within the parkway area, no person shall park vehicles, display merchandise, install or place signs or other structures (except those placed by state or local government), or otherwise obstruct the area in a manner that interferes with the public purposes of the parkway area. Section 152.268, Signs Requiring Neither Permit Nor Fee The following types of signs shall be permitted in all districts, without issuance of a permit and without payment of any fee.

(A) Real estate residential signs provided that all of the following conditions are met:

(1) The sign shall be located upon the property which is being advertised for sale, rent, or lease;

(2) The sign has no more than two sides; (3) The area of the sign is six square feet or less per side; (4) The sign is not illuminated; (5) An attachment with an area not exceeding two square feet may be added to such sign for

purpose of identifying the agent or agency listing the property for sale or lease; (6) Sign cannot be a banner , pennant, mobile, flag, or balloon signage; and (7) Any sign permitted by this subsection shall be removed within five days after the sale,

rental, or lease becomes final. (B) Festival area signs. Temporary advertising, directional, and public information signs and

banners placed on exhibit booths, buildings , and other structures or supports (except utility poles and traffic signs) within a town-approved festival area, provided that such signs and banners are allowed on the days of the festival only, that no unsafe conditions are created, and that the area of signs and banners for any individual booth, building , or structure do not exceed 32 square feet.

Section 152.269, Signs Requiring a Permit, But No Fee (A) Real estate commercial signs must be located on the property which is being advertised for

sale, rent, or lease, provided that all of the following conditions are met: (1) The sign has no more than two sides; (2) The area of sign is 32 square feet or less per side; (3) An attachment with an area not exceeding two square feet may be added to such sign for

purpose of identifying the agent or agency listing the property for sale or lease; (4) Any sign permitted by this subsection shall be removed within five days after the sale,

rental, or lease becomes final; (5) The sign shall not be attached to trees, utility poles, or their support lines; and (6) Sign cannot be a banner , pennant , mobile, flag, or balloon signage.

5

(F) Business banners , pennants, and flags which are used to advertise sales, announcements, or greetings provided they:

(1) Are located on property of the business that banner relates to; (2) Are not used more than 45 days in any one year period per business; (3) Shall not be larger than 32 square feet or 25% of allowed useable wall area,

whichever is less; and (4) No unsafe condition is created. (H) (1) Temporary banners and post-mounted signs for town-approved festivals and for events

sponsored by non-profit organizations such as civic groups, church organizations, schools, and government agencies, provided that they are located in business, office and institutional, or government zoning districts along NC 24 or major thoroughfares and the following conditions are met:

(a) Devices (signs and banners ) are not installed more than 14 days prior to event and are removed within two days of event’s end;

(b) No more than eight devices are allowed for the same event at one time; (c) Devices are not placed in rights-of-ways and are placed only with the permission of

the property owners ; (d) Unsafe conditions are not created, and devices are not placed in unsafe locations; (e) Signs and banners are not displayed above a highway without town and NCDOT approval in writing; (f) Signs and banners are not placed within Historic District unless along Highway 24, on

Town-owned property, or on private property within the B-2 HDO zoning district, provided that the sign or banner advertises a town sponsored/approved festival or event;

(g) The maximum size for each sign or banner is 32 square feet. The maximum height shall not exceed six feet; and

(h) Portable signs, including trailer or vehicle-mounted signs, are prohibited, except directional or public information signs placed by the town at the Town Manager’s discretion, or by the North Carolina Department of Transportation.

(2) Organization representatives may, after appropriate training and orientation by the Town staff regarding the ordinance requirements, be licensed to install the types of temporary signs and banners allowed in this subsection without obtaining individual permits. Such licenses may be withdrawn if signs or banners are installed in violation of the ordinance requirements by the licensee or the organization that they represent. Licensees may be required to include identification and contact information on signs or banners that they install. Section 152.270, Signs Requiring a Permit and Fee (K) Portable signs provided: (1) No part of a sign shall extend beyond the plane of the property line upon which the sign

is located or into any easement ; (2) No more than one portable sign per business or occupancy; (3) Total allowable sign area per lot shall be calculated as the remaining square footage for

total sign area per lot. For example, if the lot already has utilized 138 square feet of the total allowed sign area of 150 square feet, then 12 square feet may only be utilized for the portable sign;

(4) Display area shall not exceed 16 square feet. If copy is different on each side of sign, then both sides count towards total area;

(5) Sign height shall not exceed three feet measured vertically from ground level to top of sign; (6) Combination of allowed tenant signage square footage shall not be exceeded;

6

(7) Signs shall be displayed only during times when the business being advertised is open for business;

(8) Portable signs must be properly secured to prevent the sign from becoming windblown debris;

(9) Portable signs shall not be connected to or utilize an external power source, including (without limitation) by use of an electrical extension cord or cable;

(10) Portable Signs (prohibited), due to their poor aesthetic and detractive value (See Figures 152.270.3 and 152.270.4).

(11) If a portable sign is desired, the following portable signs are allowed (See Figures 152.270.5 and 152.270.6).

Appendix III, Historic District Design Guidelines, Section 18, Signage 18.1 Signage – Guidelines

1) Use a traditional palette of materials for new signs such as wood, metal, or stone. Signage on commercial canvas awnings and in storefront display windows is also appropriate. (Note: Internal glass-mounted signs are not subject to SHPC review. However, the SHPC shall review interior neon signs that are located within five feet of a window or glass door on an exterior wall and are so placed as to be seen from the outside).

2) Place signs so they do not visually overwhelm the building or streetscape or damage or obscure character-defining architectural details.

3) Locate wall signs on commercial buildings with storefronts in the signboard frieze located

7

above the display windows. In this location, the sign serves as a boundary between the lower and upper facade. See Historic Commercial Buildings guidelines for information on storefront design.

4) Use of neon or fluorescent colors on signs is appropriate. 5) Use simple geometric shapes for new signs instead of more complex shapes that compete with the building, site, or streetscape. 6) Use simple, clear graphics and lettering styles in sign design. 7) Use lettering that contrasts sharply with the background of the sign for easy reading. Lettering that is centered in the sign and contained within a border element is recommended. 8) Use of flashing signs (including illumination of vending machines) is prohibited. 9) Installation of billboards in the historic district is strictly prohibited. Refer to the Swansboro Unified Development Ordinance, § 152.016, for the definition of “sign, billboard.” 10) Use free-standing signs that are low mounted and do not obscure pedestrian views. No more than one free-standing sign shall be allowed per street frontage. Free- standing sign pole supports should be simple and unobtrusive in design. 11) Use contributing historic house plaques that conform to the established design used in the historic district. Consult with the SHPC regarding guidelines for the placement of these plaques. 12) Provide proper flashing for wall-mounted signs to prevent deterioration. Secure signs on masonry buildings in the mortar joint to prevent damage to the masonry surface. 13) Consolidate public signage on uniform poles to reduce visual clutter. 14) Avoid the placement of banners, pennants, and flags in areas that will obscure or damage the architectural features of buildings. The SHPC shall also evaluate the impact of such devices on the character of the streetscape. 15) Recognize that maximum signage allowances granted by the Swansboro Unified Development Ordinance, § 152.016, may be inappropriate in the context of the building or site under review. 16) Use of sandwich board signs in the historic district is permitted if: -- Size is no more than 2' x 3'. -- Location is not within a public walkway. -- Blocks no exit or exitway. -- Removed at end of business day.

8

Board of Commissioners Meeting Agenda Item Submittal

Reviewed By: Town Manager 2.19.2019 Finance Director Town Clerk 2.19.2019 Town Attorney Date Action Approved by Board: Action if different from Recommended:

Item To Be Considered: UDO Text Amendments Related to Signage Board Meeting Date: February 26, 2019 Prepared By: Andrea Correll, AICP, Planner Overview: Text amendments have been prepared as they relate to the signage recommended by the Planning Board following their joint meeting with the Board of Commissioners on January 17th.

The Planning Board also recommended an annual $50 permit fee The purpose of these text amendments is to revise the Town Code of Ordinances to be compliant with the United States Supreme Court case on temporary signs known as Reed vs Gilbert.

Background Attachment(s): Ordinance 2018-O9

Recommended Action:

1) Hold Public Hearing; and 2) Motion to adopt Ordinance 2019-03 effectively amending the Town Code of Ordinances

Chapter 152: Unified Development Ordinance (UDO) to enable the referenced section to be compliant with the United States Supreme Court case on temporary signage; and

3) Amend the fee schedule to include an annual fee of $50 for a non-residential appurtenant sign permit.

219

TOWN OF SWANSBORO ORDINANCE 2019-O4

AN ORDINANCE AMENDING THE TOWN CODE OF ORDINANCES CHAPTER 152:

UNIFIED DEVELOPMENT ORDINANCE (UDO)

NOW BE IT ORDAINED by the Board of Commissioners of the Town of Swansboro:

Section 1. The Code of Ordinances, The Town of Swansboro, North Carolina Section 152.016 Definition of Basic Terms is hereby amended by adding definitions as follows:

Sign, Appurtenant (non-residential). A sign incidental and as an accessory to a permitted use of the lot or building upon which the sign is located, relating only to the sale of goods or rendering of services upon the building site on which said sign is erected or maintained, the area of which is six square feet or less per side and otherwise in compliance with this Ordinance.

Sign, Appurtenant (residential). A sign incidental and as an accessory to a permitted residential use of the lot or building upon which the sign is located, utilizing a temporary sign, the area of which is six square feet or less per side, and said sign is erected and maintained in accordance with, and is otherwise in compliance with, this Ordinance.

Section 2. The Code of Ordinances, The Town of Swansboro, North Carolina Section 152.268 Signs

Requiring Neither Permit Nor Fee is hereby amended by adding (8) to subsection (A) and adding subsection (C) as follows:

The following types of sign shall be permitted in all districts, without issuance of a permit and without payment of any fee.

(A) Real estate residential signs provided that all of the following conditions are met: (8) One temporary "open house" sign shall be allowed on premise for open house events for up to seven days.

(C) Residential Appurtenant Signs provided the sign is a temporary sign, the area of which is six square feet or less per side, said sign is erected or maintained, and otherwise in compliance with, this Ordinance.

Section 3. The Code of Ordinances, The Town of Swansboro, North Carolina Section 152.269

Signs Requiring Permit But No Fee by adding (7) to subsection (A), deleting subsection (F) and renumbering (G) – (M) accordingly.

2210

The following types of sign shall be permitted in all districts, upon issuance of a permit approving the location of any such sign by the Administrator or his designee. No fee shall be charged for permits issued pursuant to this section.

(A) Real Estate Commercial Signs must be located on the property which is being advertised for sale, rent, or lease, provided that all of the following conditions are met:

(7) One temporary "open house" sign shall be allowed on premise for open house events for up to seven days.

(F) Business banners , pennants, and flags which are used to advertise sales, announcements, or greetings provided they:

(1) Are located on property of the business that banner relates to; (2) Are not used more than 45 days in any one year period per business; (3) Shall not be larger than 32 square feet or 25% of allowed useable wall area,

whichever is less; and (4) No unsafe condition is created.

Section 4. The Code of Ordinances, The Town of Swansboro, North Carolina Section 152.270 Signs Requiring a Permit and a Fee by deleting subsections (F) Mobile Signs, (K) Portable Signs, and (L) Roof Signs; adding Appurtenant Signage and then renumbering the entire subsection accordingly.

No sign can exceed the allowed square footage without a variance.

(F) Mobile signs: A special use permit is required from the Board of Commissioners.

Figure 152.270.2

(1) The following mobile sign types are allowed by special use permit (See figures 152.270.1 and 152.270.2)

(K) Portable signs provided:

(1) No part of a sign shall extend beyond the plane of the property line upon which the

sign is located or into any easement ;

(2) No more than one portable sign per business or occupancy;

(3) Total allowable sign area per lot shall be calculated as the remaining square footage for total sign area per lot. For example, if the lot already has utilized 138 square feet

Figure

Figure

Figure 152.270.1

2311

of the total allowed sign area of 150 square feet, then 12 square feet may only be utilized for the portable sign ; (4) Display area shall not exceed 16 square feet. If copy is different on each side of sign, then both sides count towards total area; (5) Sign height shall not exceed three feet measured vertically from ground level to top

of sign;

(6) Combination of allowed tenant signage square footage shall not be exceeded;

(7) Signs shall be displayed only during times when the business being advertised is open for business; (8) Portable signs must be properly secured to prevent the sign from becoming windblown debris; (9) Portable signs shall not be connected to or utilize an external power source, including (without limitation) by use of an electrical extension cord or cable; (10) Portable Signs (prohibited), due to their poor aesthetic and detractive value (See Figures 152.270.3 and 152.270.4).

Figure 152.270.3 Figure 152.270.4

(11) If a portable sign is desired, the following portable signs are allowed (See Figures 152.270.5 and 152.270.6).

Figure 152.270.5 Figure 152.270.6

2412

Appurtenant Signage. (1) Appurtenant Signage shall either be a Traditional Post Sign (See Figure 152.270.1), an A-Frame Sign (See Figure 152.270.2) which the area of the sign is six square feet or less per side, or a building banner (see Figure 152.270.3), and will be allowed, provided:

(A) Only one Appurtenant Sign per establishment. (B) No Appurtenant Signage will be located in any right of way or closer than 10 feet

from edge of pavement. Refer to Section 11-1 Note 7 Use of Parkway Area, requiring 12 feet from edge of pavement on NC Hwy 24.

(C) Only allowed when establishment is open and shall be stored during a declared storm event.

(D) Appurtenant Signs will be removed by the Town and the permit therefore revoked if found out of compliance with any of the standards of this section.

(E) Banners which are used to advertise sales, announcements, or greetings provided they: (1) Are located on the establishment that the banner relates to. (2) Shall not be larger than thirty-two (32) square feet or 25% of allowed

useable wall area, whichever is less.

(F) No unsafe condition is created.

(G) The following types of Appurtenant Signs are allowed (See Figures 152.270.1, 152.270.2 and 152.270.3:

Figure 152.270.1 Figure 152.270.2 Figure 152.270.3

(L) Roof signs shall require a special use permit from the Board of Commissioners (see Special Uses – Roof Signs). Amended 07/20/2010

Section 5. The Code of Ordinances, The Town of Swansboro, North Carolina Section 152.271 Additional Signs as Special Use by deleting subsection (A), amending subsection (C), then renumbering the subsection accordingly.

Section 152.271: Additional Signs as Special Use

2513

The following types of signs shall be a “special use” in all districts (refer to Section 152.210 through 152.211).

(A) Signs for churches, schools, or public buildings provided that the sign shall not have more than two sides and the area of each side shall not exceed thirty-two (32) square feet.

(C) Banners, special event signs, bazaar signs, temporary signs and on- premise Appurtenant Signs shall not require a special use permit. These signs will require a permit issued by the Zoning Administrator.

Section 6. The Town of Swansboro Code of Ordinances Section 152.273 Prohibited Signs by adding (N) Appurtenant Signs not in compliance with Section 152.270 as follows: The following types of signs are prohibited in all districts.

(N) Appurtenant Signs not in compliance with Section 152.270.

Section 7. The Code of Ordinances, The Town of Swansboro, North Carolina Section 152.277 Permitted Signs by deleting signs no longer allowed: Animated, Flashing, Mobile, Pennant, Portable, Roof, and adding Appurtenant as follows: Section 152.277: Permitted Signs

The Table of Permitted and Special Use Signs delineates the types of signs permitted within the various zoning districts in the Town of Swansboro (see §§ 152.170 through 152.180 for a complete description of the individual zoning districts).

Signs - Permitted/Special Use

Sign Type RA All Residential Districts

TNC PUD MHP MHS MHS-O B1 B2 B2 HDO

MI

CON O/I

Animated P P

Appurtenant P P P P P P Flashing P P

Mobile S S Pennant P P P P P Portable P

2614

Roof S S

Section 8. This ordinance shall be effective upon its adoption. Adopted by the Board of Commissioners in regular session, February 26, 2019.

Attest:

_______________________ __________________________

John Davis, Mayor Paula Webb, Town Clerk

2715

Item: Temporary Signage Focus Group report (Historic Downtown) Board Meeting Date: August 16, 2019 Prepared By: Andrea Correll, AICP, Planner Overview: I was asked to reach out to business owners and survey their thoughts on temporary signage. At an 8:30 am on Thursday August 15th I met with downtown businesses in the community room. The following people were invited by email to the meeting : Billy Hoit, Deb and Jack Harnatkiewicz, Ed Radley, Hal Silver, Joe Rhue, Leah and Darryl Marsh, Lori Sakiewicz, Marty and Harriet Proctor, Randy and Nancy Swanson. The people in attendance Thursday were Deb and Jack Harnatkiewicz owners of Bake, Bottle and Brew as well as Willy Nilly; Joe Rhue owner of the Poor Man’s Hole and Lori Sakiewicz the owner of Swansboro Food and Beverage as well as the Market had the following recommendations: Remove the temporary signage from the 200 square feet allowed on a parcel of land. Give temporary signage a ceiling 100 square foot ceiling in total and still keep the sign size limit to no more than 32 square feet at the most for one sign. They like banner signs in the yard or on the building. The like open flags and had vision of red, white and blue open flags down Front Street. Prefer not to have a permit but if permitted once a year they recommended no fee be charged. The following types of temporary signs were preferred: Yard Signs no taller than four feet.

16

Feather Flags up to 14’

24” X 36” message signs with 4 ‘ post on private property road frontage

17

Banners and Flags regulated by size

18

19

20

Item: Temporary Signage Focus Group report (Hwy 24) Board Meeting Date: August 16, 2019 Prepared By: Andrea Correll, AICP, Planner Overview: I was asked to reach out to business owners and survey their thoughts on temporary signage. At 8 am on Tuesday August 13th I met with highway 24 businesses in the community room. The following people were invited by email to the meeting : Aljeana Staples, Bradley Buckley, Carl Waters, Fred Smith, Gigi Robles, Jennifer Steele, Junior Freeman, Pat Provost and Tony Battle. The people in attendance Tuesday were Aljeana Staples, Walmart; Bradley Buckle, Papa John’s, Jennifer Steele, Michangelo’s and Pat Provost from Jersey Mike’s we had very productive meeting and the following recommendations were made: Remove the temporary signage from the 200 square feet allowed on a parcel of land. Give temporary signage a ceiling number and still keep the sign size limit to no more than 32 square feet at the most for one sign. They like banner signs in the yard or on the building. Prefer not to have a permit but if permitted once a year they recommended no fee be charged. The following types of temporary signs were preferred: Yard Signs no taller than four feet.

21

Feather Flags up to 14’

24” X 36” message signs with 4 ‘ post on private property road frontage

22

Banners and Flags regulated by size

23

24

25

Coates' Canons Blog: Sign Litigation: A Brief Analysis of Reed v. Town of Gilbert

By Adam Lovelady

Article: https://canons.sog.unc.edu/sign-litigation-a-brief-analysis-of-reed-v-town-of-gilbert/

This entry was posted on July 21, 2015 and is filed under Constitutional & Statutory Limitations, General Local Government (Miscellaneous), Land Use & Code Enforcement, Zoning

Temporary yard signs are springing up all around town. Town council wants to reduce the clutter, but also wants to respect the free speech rights of the community. Council is considering new rules that will allow campaign signs during election season, event signs within a day of the event, and ideological signs anytime. It seems like a reasonable balance—allowing the signs but limiting them to a relevant time-frame. Can the town’s regulations distinguish among signs this way?

A recent U.S. Supreme Court decision says no. Such distinctions are unconstitutional content-based regulation of speech.

To be clear, every sign ordinance distinguishes among signs. Ordinances commonly distinguish between locations (commercial property, residential property, public property, etc.), between types of signs (free-standing, wall signs, electronic signs, etc.), and between messages on the signs (commercial, safety, political, etc.). Reasonable distinctions concerning location and types of signs remain permissible.

The Reed decision, though, clearly invalidated some distinctions based on the message content of signs, and it will require adjustments to many local ordinances and some state statutes. The decision, with its four separate concurring opinions, also left open several legal questions.

This blog considers the decision of Reed v. Town of Gilbert, 576 U.S. __ (2015), and its impact on local sign ordinances.

Context of Free Speech Caselaw

In thinking about the Reed decision it is helpful to recall a few key points about Constitutional protections of free speech and local government sign regulation. This area of the law is complex—far beyond the scope and space of this blog—but some context is helpful in understanding the impact of the new decision.

Content-Neutral Sign Regulations. Some sign regulations concern the form and nature of the sign, not the content of the message. These regulations—called reasonable time, place, or manner restrictions—include regulation of sign size, number, materials, lighting, moving parts, and portability, among other things. These regulations are allowed, provided they are “[1] justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication of the information” (Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661 (1989)). Over the years the courts have allowed a variety of content-neutral sign regulations.

Content-Based Sign Regulations. Some sign regulations, however, restrict the content of the message. The Supreme Court requires that content-based regulation of noncommercial signs must meet strict scrutiny. As phrased in the Reedmajority opinion, a regulation is content-based if the rule “applies to a particular [sign] because of the topics discussed or the idea or message expressed” (slip op., at 6). The strict scrutiny standard demands that the local government must show that the regulation is (i) designed to serve a compelling governmental interest and (ii) narrowly tailored to achieve that interest. That is a steep hill to climb, and in practice few, if any, regulations survive strict scrutiny review.

It is worth noting that commercial speech is subject to yet another test—a version of intermediate scrutiny outlined in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1987). That test is described in David Owens’ blog on Offensive Signs, and as discussed below, the impact of the Reed decision on the Central Hudson

Page

Coates' CanonsNC Local Government Lawhttps://canons.sog.unc.edu

Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

Page

Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

26

test is unclear.

Case Summary

The Town of Gilbert, Arizona, had a sign code requiring permits for signs, but outlining a variety of exemptions. The Reeddecision focused on the exemptions for three types of signs: Political Signs, Temporary Directional Signs, and Ideological Signs. Under the local code, Political Signs were signs designed to influence the outcome of an election; they could be up to 32 square feet and displayed during political season. Temporary Directional Signs were defined to include signs that direct the public to a church or other qualifying event; they could be up to six square feet and could be displayed 12 hours before and 1 hour after the qualifying event. Ideological signs were defined to be signs that communicate a noncommercial message that didn’t fit into some other category; they could be up to 20 square feet.

A local church—after being cited for violation of the rules for Temporary Directional Signs—challenged the sign code as abridging their freedom of speech. The Town argued (and the lower courts found) that its regulations were content-neutral. The distinctions among types of signs, they said, were based on objective factors not the expressive content of the sign. The distinctions did not favor nor censor a particular viewpoint or philosophy. And, the justification for the regulation was unrelated to the content of the sign.

Justice Thomas, writing for the Court, disagreed. He found that the distinctions were plainly content-based and thus subject to strict scrutiny. The distinctions—between Political Signs, Temporary Directional Signs, and Ideological Signs—“depende[ed] entirely on the communicative content of the sign” (slip op., at 7). “Regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints with that subject matter” (12). And, “an innocuous justification cannot transform a facially content-based law into one that is content neutral” (9).

In its failed attempt to meet the strict scrutiny standard, the Town offered two governmental interests to support its distinctions: aesthetic appeal and traffic safety. Even if these were considered compelling governmental interests (which the Court assumed without ruling), the Town’s distinctions were not narrowly tailored. Justice Kagan noted in her own opinion (concurring in the judgment only) that the Town’s distinctions did “not pass strict scrutiny, or intermediate scrutiny, or even the laugh test” (slip op., at 6, Kagan, J., concurring in judgment).

Impact of Local Ordinances

So what does this decision mean for local ordinances? In the end, some distinctions among signs clearly are allowed and will withstand judicial review. Some code provisions, though, must be revised. And then, there are the open questions.

The Court was unanimous in judgment: The particular provisions of the Town of Gilbert’s sign code violate Constitutional protections for free speech. The Court was fractured, though, in the opinions, making it harder to discern the full scope of the decision. Justice Thomas offered the majority opinion of the court with five justices joining. Justice Alito offered a concurring opinion to further clarify the impact of Justice Thomas’ opinion. He was joined by Justices Kennedy and Sotomayor. Three justices concurred in judgment only, and they offered two separate opinions to outline their legal reasoning and their concerns with the majority’s reasoning.

So we have a split court. Three joined the majority only; three joined the majority, but also joined an explanatory concurrence; and three disagreed with the majority’s legal reasoning. This three-three-three split, unfortunately, causes even more head-scratching for an already complex topic.

Content-Based Distinctions. In thinking about your sign ordinance, ask this: Does this regulation apply to a particular sign because of the non-commercial content on the sign? If yes, the regulation must meet strict scrutiny under Reed. The government must show that the regulation is designed to serve a compelling governmental interest and narrowly tailoredto achieve that interest.

If your ordinance distinguishes among noncommercial sign types—political v. ideological v. religious—those distinctions are unconstitutional and must be changed.

Justice Thomas did offer some content-based regulations that may survive strict scrutiny if they are narrowly tailored to address public safety. These include warning signs for hazards on private property, signs directing traffic, or street

Page

Coates' CanonsNC Local Government Lawhttps://canons.sog.unc.edu

Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

Page

Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

27

numbers associated with private houses.

 Content-Neutral Distinctions.The several opinions of the court outline some valid distinctions for regulation. In his majority opinion, Justice Thomas noted that local governments still have “ample content-neutral options available to resolve problems with safety and aesthetics” (slip op., at 16). These include regulation of, among other things,

sizebuilding materialslightingmoving partsportability

Moreover, “on public property the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner” (slip op., at 16). A local ordinance or state statute can prohibit all signs in the public right-of-way. But, if signs are allowed, the regulations must not distinguish based on the content of the message. Regulations that allow some, but not all, noncommercial signs run afoul of the Reed decision.

For example, NCGS § 136-32 allows for “political signs” (as narrowly defined) in the public right-of-way of state highways during election season. That statute and similar ordinances will need to be revised to either, prohibit all signs in the right-of-way, or allow compliant signs with any noncommercial message in the right-of-way during election season.

Justice Alito, in his concurring opinion, provided further explanation (although not an exhaustive list) of what distinctions may be valid, content-neutral distinctions. He included:

Size (including different sizes for different types of signs)Location, including distinguishing between freestanding signs and attached signsDistinguishing between lighted and unlightedDistinguishing between fixed message and electronic signsDistinguishing between signs on public property and signs on private propertyDistinguishing between signs on commercial property and signs on residential propertyRestricting the total number of signs allowed per mile of roadwayDistinguishing between on-premises and off-premises signs*And time restrictions on signs advertising a one-time event*

* These last examples—distinguishing between on-premises/off-premises and restricting signs for one-time events—seem to conflict with the majority opinion in Reed. Here, we get back to the issue of the fractured court and multiple opinions (discussed below).

Open Questions

Content-ish Regulations

Justice Alito’s concurrence (discussed above) listed many regulatory distinctions that are clearly authorized. He listed two distinctions that do not clearly square with the reasoning of the majority opinion. But, if you consider the three justices concurring with Alito plus the three justices concurring in judgment only, there are six justices that took the question of content neutrality with more practical consideration than Justice Thomas’ hard line. Thus, Alito’s opinion may in fact hold the greatest weight of this case. Only time will tell—time and more litigation.

First, Justice Alito listed signs for one-time events. This seems to be precisely what the majority stuck down in this case. It is unclear how a local regulation could structure such regulation without relying on the content of the message itself. But the inclusion on Justice Alito’s list points to some room for defining signs based on function.

Page

Coates' CanonsNC Local Government Lawhttps://canons.sog.unc.edu

Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

Page

Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

28

And second, Justice Alito listed the distinction between on-premises and off-premises signs. The enforcement officer must read the sign in order to determine if a sign is off-premises or on-premises. As such, these would seem to be facially content-based and subject to strict scrutiny. But, prior Supreme Court caselaw has upheld the on-premise/off-premise distinction and that precedent is not overruled by the majority opinion.

Commercial and Noncommercial Speech.In past decisions the Supreme Court has treated commercial speech to slightly less protection than noncommercial speech. Commercial speech regulation needs to meet a version of intermediate scrutiny, not the strict scrutiny applied to regulation of non-commercial speech (See, generally, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1987)).

Arguably, the Reed decision opened the door to challenge a sign ordinance that distinguishes between commercial and noncommercial speech. Justice Alito’s concurring opinion noted that distinguishing based on the type of property—commercial or residential—would be valid. Regulating based on the content of the sign—commercial or noncommercial—arguably is undermined by the Reed decision.

Notably, though, the majority in Reed did not overrule its prior decisions. The Reed decision was focused on the Town code’s distinctions among types of noncommercial speech. Presumably the long-held standards for regulation of commercial speech still apply.

Conclusion

In the wake of Reed, some things are clear. Governments still have an array content-neutral regulations to apply to signs. But, content-based distinctions such as the ones in the Town of Gilbert’s code must survive strict scrutiny to stand. Because of mix of opinions from the Court, there are several open questions. We will not know the full scope and meaning of Reed v. Town of Gilbert until the federal courts begin to apply this decision to other sign litigation.

Links

www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdfcanons.sog.unc.edu/?p=5951

Page

Coates' CanonsNC Local Government Lawhttps://canons.sog.unc.edu

Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

Page

Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.This blog post is published and posted online by the School of Government to address issues of interest to government officials. This blog post is for educational and informational use and may be used for those purposes without permission by providing acknowledgment of its source. Use of this blog post for commercial purposes is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.

This blog post is published and posted online by the School of Government to address issues of interest to government officials. This blog post is for educational and informational use and may be used for those purposes without permission by providing acknowledgment of its source. Use of this blog post for commercial purposes is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707. 29