Loading...
HomeMy WebLinkAboutlegal memo on letterhead MT Greg Sullivan, City Attorney BOZEMAN Tim Cooper, Assistant City Attorney City Attorney's Office Karen Stambaugh, Assistant City Attorney eekki McLean, Chief Prosecutor Kyla Murray, Prosecutor Edward Hirsch, Prosecutor Samantha Niesen, Prosecutor The US Supreme Court's 2015 decision in Reed v. Town of Gilbert caused local governments around the country to analyze and revise their sign codes. Under Reed,sign codes that apply different restrictions based on a sign's message are presumptively unconstitutional. The Reed decision raised many questions about how far local governments had to go to ensure its sign regulations are content-neutral. In the almost four years since Reed, several lower courts have clarified the law, but there remains some ambiguity. The Town of Gilbert applied different restrictions related to size and length of time a temporary sign could be posted based on the sign's message. Gilbert placed stricter limits on temporary event signs but more freely allowed ideological and political signs, despite the fact that all three signs types have the same effect on traffic safety and community aesthetics. The Supreme Court held these regulations violate the First Amendment's protections against the government limiting speech based on its content. Governmental sign regulations that make distinctions based on reference to the sign's message are content-based and presumptively unconstitutional;to be upheld,the regulation must meet strict scrutiny. If strict scrutiny is applied, a sign regulation will be upheld only if the City could prove they were narrowly tailored to serve a "compelling state interest" (an almost impossible standard). On the other hand, content-neutral regulations are subject to intermediate scrutiny. Courts are likely to be uphold a government's reasonable, content-neutral time, place, or manner sign restrictions if adequate alternative means of conveying the message exist. Recent cases have clarified that commercial signs may be regulated more restrictively than non-commercial signs, in spite of the fact a sign must be read to identify whether it's commercial or not. It appears it is still legal to distinguish between signs based on the zoning district it is in, because this does not reference the content of the sign. Staff reviewed the sign code looking for content-based regulations, and distinctions in the regulations that apply differently based on any reference to the sign's message. The proposed edits attempt to limit the City's restrictions to content-neutral aspects such as physical characteristics of signs, location and total number of signs allowed. Staff also reviewed the code to make sure that commercial signs weren't inadvertently treated more favorably than noncommercial ones. Proposed text amendments Section 1 of Ordinance 2020: 38.560.010- Findings and purpose Proposed findings are added to 38.560.010 and the purpose statements were reorganized to put safety concerns at the top of the list. While courts will give deference to the legislative intent of elected officials in enacting local regulations, it's important to articulate the compelling governmental interests underlying the City's sign code regulations. If any provision of the sign code is challenged, the court will examine the City's findings and purpose in determining if the City's has met the intermediate or strict scrutiny standards. iO121 NorthRouse Avenue © Box 1230 Q •. 0• 406-582-2302 1 www.bozeman.net Bozeman, MT 59771-1230 TDD: 406-582-2301 THE MOST LIVABLE PLACE. Section 2 of Ordinance 2020: 38.560.030—Prohibited signs The amendments to this section reorganize the list of prohibited signs for clarity,and revise the prohibition against signs that imitate traffic control and hazard warning signs by referring to their physical characteristics rather than the words included on the signs. Section 3 of Ordinance 2020: 38560.040--Temporary signs Several amendments are suggested in this section. First, it's proposed that the term "special event sign" be eliminated, as it is a subtype of"temporary sign" and references the sign's content(the event). Sign descriptions such as"temporary signs that identify a new business" have also been eliminated. The restrictions on temporary signs at businesses have been consolidated and rewritten. Under the current regulations, a new business is allowed a sign identifying the new business for up to 60 days. Only one sign identifying a new business is allowed for the life of the business. The current code also allows temporary signs for"special commercial events" for a period not to exceed 15 consecutive days, and there must be a period of at least 7 days between each 15-day display period. Temporary signs may be displayed for no more than 30 cumulative days in a calendar year. The proposed revised code simplifies these regulations so that any property may(with a permit) have temporary sign(s) on display for up to 30 cumulative days per year; except that new businesses may display temporary sign(s)for up to 60 consecutive days. Note that this allowance for new businesses does not specify that the temporary sign must be related to the new business identification. Finally, a seasonal business (such as a nursery, boat showroom,etc.) may be granted a permit for up to 180 days. Again, note the content of the sign is not specified. Section 4 of Ordinance 2020: 38.560.050—Signs exempt from permit requirements The proposed edits to this section aim to create consistency between zoning districts and to maintain focus on the physical characteristics of exempt signs,such as size and location. In all zones, one additional temporary sign is allowed, subject to maximum dimensional standards, when a property is for sale, rent,or lease. Again, there is no requirement that this additional sign must pertain to the for-sale or—rent or—lease status of the property. Certain edits to this section are also intended to relax language that staff interprets as overly restrictive and aren't being followed in practice, increasing the risk for legal challenge of the regulation under Reed. For example,the current code allows businesses doing work on a residential lot to post identifying signage, not exceeding nine square feet; not more than one sign per street frontage per lot is allowed. 38.560.050.1.b. The proposed amendment is to allow display of commercial signage if the total sign area is not more than 32 square feet and each such sign is no more than nine square feet. Similarly,the current code requires businesses working on a construction site in commercial and manufacturing zones to aggregate all businesses' signage on a single sign. This requirement is proposed to be deleted and the language amended to allow each such sign up to 32 square feet. 38.560.050.2.d. Section 5 of Ordinance 2020: 38.560.060—Signs permitted upon issuance of a sign permit The proposed revisions to this section add B-2M to the column of sign standards currently applicable to the B-2 zoning district. Staff also proposes eliminating references to residential building identification signs as this regulation relates to the content of the sign, and deleting references to the Interchange Zone which no longer exists. Section 6 of Ordinance 2020: 38.560.160—Signs erected in conjunction with nonprofit activities on public property The proposed edits to this section clarify approval process and refocus the regulations on the physical characteristics of the signs addressed by this regulation. Section 7 of Ordinance 2020: 38.560.210—Substitution The proposed edits to this section simplifies existing language allowing a non-commercial message to be substituted for commercial or non-commercial signs allowed by the sign code so long as other requirements of division 38.560 are met. Section 8 of Ordinance 2020: 38.700.170—Special event sign definition Staff proposes eliminating this subcategory of temporary signs, as it adds confusion and increases the legal risk of including rules that distinguish between different types of temporary signs. In addition, the current definition specifically references the content of special event signs, which as discussed is problematic after Reed. Section 9 of Ordinance 2020: 38.700.180—Temporarysign definition The current code does not include a definition of"temporary sign." Staff proposes adding a definition. As discussed above,temporary signs were at issue in Reed.