HomeMy WebLinkAboutResponse to Commission Questions Regarding the Sign Code.pdf
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Chris Saunders, Interim Planning Director
Chris Kukulski, City Manager
SUBJECT: Response to Commission questions regarding the sign code, Chapter
18.52, BMC
MEETING DATE: February 22, 2010
AGENDA ITEM TYPE: Action.
RECOMMENDATION: Consider the presented information and decide whether and how to
proceed with ordinance revisions.
BACKGROUND: On December 28, 2009 the City Commission requested information on three
items relating to the City’s sign regulations. The City of Bozeman governs signs through its
Unified Development Ordinance (UDO). This is Title 18 of the Bozeman Municipal Code
(BMC). Chapter 18.52, BMC contains the majority of sign related regulations.
The three items were:
1) how are appeals made and handled,
2) when non-conforming signs are required to be removed, and
3) approaches to consider revisions to the City’s sign regulations.
1) Appeals. Administrative decisions interpreting the meaning of the regulations of the UDO or
decisions to apply the regulations, such as approval or denial of an application for development,
are subject to appeal. All appeals of administrative actions go to the City Commission. Appeals
from actions of the City Commission or Board of Adjustment go to the district court. There are
not distinct provisions for appeals which are related to signs. Chapter 18.66, BMC describes how
and when an appeal may be made from an administrative decision to the Commission. The
sections describe time limits for an appeal to be made, the timing of processing the appeal, the
materials to be provided with the appeal, the procedure for the City Commission to follow in
considering the appeal, and the available actions.
When the City Commission considers an appeal they are acting within the authority and
requirements of state law for a Board of Adjustment. See the attached Sections 76-2-321 through
76-3-326, Montana Code Annotated. The City Commission has specifically chosen to retain the
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authority to hear appeals of administrative actions rather than delegate it to the established Board
of Adjustment. Appeals are quasi-judicial actions, not legislative actions, and the Commission is
limited in their consideration to the text of the ordinance as it exists.
As noted in the state law sections, an appeal may be made by any aggrieved party. This can be
either a proponent or opponent. While an appeal is being heard, all other action on the project
must stop. Therefore, the City strives to process appeals in a timely way so that applicants and
other parties may not be unduly delayed. Appeals are required to be considered at a public
hearing, therefore full noticing requirements in content and timing are needed. Appeals from
administrative actions to the City Commission take 45-60 calendar days to process. The range is
largely due to the availability of an opening on the Commission agenda. There is a fee charged
for filing an appeal to cover the time and expenses to the City. The materials submitted with an
appeal vary depending on the nature of the project or interpretation of regulations which are the
basis of the appeal.
Information on appeals is made available to the public through several means. Staff informs
interested parties about the appeal process and requirements. We respond to inquiries as well as
offer information during the development review process. Such discussions are typically in
person or via telephone rather than through correspondence. The recommended conditions for
projects are typically established during the Development Review Committee or Administrative
Design Review Staff evaluation of a project. Applicants or the public may discuss those potential
conditions with the Staff prior to the preparation of the Staff report or recommendation to the
Planning Director. Public comment may be made and will be considered during the project
review process. The open development review process and public notice requirements help
ensure that all interested parties are informed early in the process which minimizes surprises and
allows concerns to be resolved before an action to approve or deny. When Staff is aware that
items are contentious Staff is available for discussion and identification of possible solutions
before conditions are finalized.
The City’s website has the application forms and summary brochures about appeals available at
the same location as other development process information, see
http://www.bozeman.net/bozeman/planning/brochures.aspx. The actual text of the regulations
governing appeals, Chapter 18.66, are also available through our website at
http://www.bozeman.net/bozeman/planning/UDO/Unified%20Development%20Ordinance.htm.
Both of these sites are within the Department of Planning and Community Development web
page.
2) Non-conforming signs. When the City adopts an ordinance the new standard(s) it contains
have been found to be necessary and beneficial for the well-being of the community. Therefore,
things which do not comply with the new standard are expected to be changed over time to
conform to the new standard to improve and protect the community. Sometimes the length of
time for a non-conforming item to be changed is very long. There are various ways to
accomplish this transition.
The City’s first sign regulations were adopted in 1883. The City adopted its present sign code in
1991 as part of a comprehensive update to the zoning regulations and followed a 14 month effort
by a 12 member Ad Hoc Committee to develop a comprehensive sign ordinance. All signs which
did not meet the new standards were required to be brought into compliance by a certain date
which varied by value of the sign. This date ranged from one to seven years after the date of
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ordinance adoption. These changes were required to occur whether or not any other changes had
been made to the site. This type of approach is called amortization.
As the final performance date for the amortization of higher dollar value non-compliant signs
approached in the mid- 1990’s there was significant concern from business owners about the
amortization requirement. The City Commission at that time made an ordinance amendment with
the support of the business community. The amendment replaced amortization with a
requirement for signs to be brought into conformance with current standards when improvements
were made to a site. Normal maintenance such as replacing a light bulb, correcting breakage, or
repainting does not require any zoning approval and does not trigger compliance with new
standards. The text of the requirement to bring signs into compliance is in Section 18.52.190,
BMC.
The following actions trigger signs on a property to be brought into compliance with the current
sign standards.
a. Application for a site plan, conditional use permit, planned unit development, or reuse
permit.
b. Application for a certificate of appropriateness (COA), exclusive of a COA solely for
adding solar panels or similar energy collection device.
c. Sign relocation, expansion, change in copy, or being structurally altered to extend its
useful life.
Each of these actions represents a voluntary investment in a property, and often a change in the
use or user of the property. So long as a business or property owner does not do one of these
specified things they may keep their non-conforming signs for as long as they choose. Therefore,
it is the property owner who chooses to initiate the actions which require changes to signs.
The requirement for signs to come into compliance is not an administrative decision or
requirement. It is an explicit requirement from the ordinance.
3) Code Revisions. The City regularly updates its land use regulations. Some changes are to
conform to changed state laws or judicial decisions. Changes are also made because the
Commission believes that the existing regulations are either insufficient to present needs or there
are new issues which need to be addressed. The intent of the City’s sign regulations is laid out in
Section 18.52.010, BMC.
There are three primary approaches to amending the land use regulations. The City has used all
three at different times. Sometimes these approaches have been combined as noted in item 2
above.
a. Direct the City Manager to assign appropriate staff resources to research and draft the
amendments.
b. Appoint a citizen committee or task force to examine the issue and make
recommendations.
c. Hire an outside consultant.
Sign regulations, more so than most other elements of land use regulations, are very complex and
subject to many legal requirements. Due to the relationship between the required protection of
speech guaranteed by the US and Montana constitutions and the regulatory structure apparently
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small intended changes can have significant consequences. See the attached memo from the City
Attorney, esp. section 2, and publication from the American Planning Association.
Sign regulations have a significant effect on the safety and appearance of a community. Those
concerns must be balanced with the need and ability for businesses to communicate with current
and potential customers. Effective signs are designed in a manner that is sensitive to their
location and the community around them.
Any amendment to the ordinance text must follow the normal zoning amendment process. This
includes review and recommendation by the Zoning Commission prior to public hearing by the
City Commission. Staff has begun research on the previous direction from the Commission and
has initiated a formal amendment process.
There is a wide range of potential changes to the sign regulations. These range from minor
adjustments on specific items to a comprehensive review. The Commission should give direction
to Staff on how broad of potential amendments, if any, they desire to see beyond what has
already been directed. If there are specific areas the Commission knows they want to see
addressed they can so direct at this time.
If the Commission desires to make substantial changes to the sign regulations, Staff recommends
the process to occur in the next fiscal year with budgeted funds to hire a qualified consultant to
assist the City. Staff believes a comprehensive amendment process would require a minimum of
six-nine calendar months from contract award until the City Commission would hold its public
hearing. This amount of time provides opportunity for both the technical review and drafting and
for public engagement.
FISCAL EFFECTS: Items 1 and 2 are informational only and have no fiscal effects.
Item 3, code revision, is not currently a defined specific work project under the FY10 budget.
Minor changes could be integrated into the regular work flow of Planning and Legal. If a
comprehensive review is desired and a consultant is used costs would be determined through an
RFP and negotiated costs process. This item would need to be included in the FY11 budget for
the Department of Planning and Community Development. A comprehensive review would also
be a significant time commitment for the City Attorney.
ALTERNATIVES: Items 1 and 2 consider provided information and seek clarification as
needed.
Item 3. Take no action, or direct initiation of ordinance changes, or direct
inclusion of budget item for future contract.
Other actions s as suggested by the City Commission.
Attachments: City Attorney memo of Dec. 12, 2009
Sections 76-2-321 through 76-2-327, Montana Code Annotated
Zoning Practice – Wise Sign Controls
Report compiled on: February 17, 2010
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76-2-321. Board of adjustment. (1) A city or town council or other legislative body may
provide for the appointment of a board of adjustment and in the regulations and restrictions
adopted pursuant to the authority of this part may provide that the board of adjustment may, in
appropriate cases and subject to appropriate conditions and safeguards, make special exceptions
to the terms of the ordinance in harmony with its general purposes and intent and in accordance
with the general or specific rules contained in the ordinance.
(2) An ordinance adopted pursuant to this section providing for a board of adjustment may
restrict the authority of the board and provide that the city or town council or other legislative
body reserves to itself the power to make certain exceptions to regulations, ordinances, or land
use plans adopted pursuant to this part.
(3) The board shall adopt rules in accordance with the provisions of any ordinance adopted
pursuant to this part. Meetings of the board must be held at the call of the presiding officer and at
other times that the board may determine. The presiding officer or in the presiding officer's
absence the acting presiding officer may administer oaths and compel the attendance of
witnesses.
76-2-322. Membership and term of board members -- vacancies. (1) The board of
adjustment shall consist of not less than five or more than seven members to be appointed for a
term to be specified by the city or town council or other legislative body or, if no term is
specified, then for a term of 3 years. A member is removable for cause by the appointing
authority upon written charges and after public hearing.
(2) Vacancies shall be filled for the unexpired term of any member whose term becomes
vacant.
76-2-323. Powers of board of adjustment. (1) The board of adjustment shall have the
following powers:
(a) to hear and decide appeals where it is alleged there is error in any order, requirement,
decision, or determination made by an administrative official in the enforcement of this part or of
any ordinance adopted pursuant thereto;
(b) to hear and decide special exceptions to the terms of the ordinance upon which such board
is required to pass under such ordinance;
(c) to authorize upon appeal in specific cases such variance from the terms of the ordinance as
will not be contrary to the public interest, where, owing to special conditions, a literal
enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the
spirit of the ordinance shall be observed and substantial justice done.
(2) In exercising the above-mentioned powers, such board may, in conformity with the
provisions of this part, reverse or affirm, wholly or partly, or modify the order, requirement,
decision, or determination appealed from and may make such order, requirement, decision, or
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determination as ought to be made and to that end shall have all the powers of the officer from
whom the appeal is taken.
76-2-324. Vote needed for board action. The concurring vote of four members of the board
shall be necessary to reverse any order, requirement, decision, or determination of any such
administrative official; to decide in favor of the applicant on any matter upon which it is required
to pass under any such ordinance; or to effect any variation in such ordinance.
76-2-325. Public access to board activities. (1) All meetings of the board shall be open to
the public.
(2) The board shall keep minutes of its proceedings, showing the vote of each member upon
each question or, if absent or failing to vote, indicating such fact, and shall keep records of its
examinations and other official actions, all of which shall be immediately filed in the office of
the board and shall be a public record.
76-2-326. Appeals to board of adjustment. (1) Appeals to the board of adjustment may be
taken by a person aggrieved or by an officer, department, board, or bureau of the municipality
affected by any decision of the administrative officer. An appeal must be taken within a
reasonable time, as provided by the rules of the board, by filing with the officer from whom the
appeal is taken and with the board of adjustment a notice of appeal specifying the grounds of the
appeal.
(2) The officer from whom the appeal is taken shall, in a timely manner, transmit to the board
all papers constituting the record upon which the action appealed was taken.
(3) An appeal stays all proceedings in furtherance of the action appealed from unless the
officer from whom the appeal is taken certifies to the board of adjustment after the notice of
appeal has been filed with the officer that by reason of facts stated in the certificate a stay would,
in the officer's opinion, cause imminent peril to life or property. In that case, proceedings may
not be stayed except by a restraining order, which may be granted by the board of adjustment or
by a court of record on application, on notice to the officer from whom the appeal is taken, and
on due cause shown.
(4) The board of adjustment shall fix a reasonable time for the hearing of the appeal, give
public notice of the hearing as well as due notice to the parties in interest, and decide the appeal
within a reasonable time.
(5) At the hearing, any party may appear in person or by the party's attorney.
76-2-327. Appeals from board to court of record. (1) Any person or persons, jointly or
severally, aggrieved by any decision of the board of adjustment or any taxpayer or any officer,
department, board, or bureau of the municipality may present to a court of record a petition, duly
verified, setting forth that the decision is illegal, in whole or in part, and specifying the grounds
of the illegality. The petition must be presented to the court within 30 days after the filing of the
decision in the office of the board.
(2) Upon the presentation of the petition, the court may allow a writ of certiorari directed to
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the board of adjustment to review the decision of the board of adjustment and shall prescribe in
the writ the time within which a return must be made and served upon the relator's attorney,
which may not be less than 10 days and may be extended by the court. The allowance of the writ
does not stay proceedings upon the decision appealed from, but the court may, on application, on
notice to the board, and on due cause shown, grant a restraining order. The board of adjustment
may not be required to return the original papers acted upon by it, but it is sufficient to return
certified or sworn copies of the original papers or of portions of the original papers that may be
called for by the writ. The return must concisely set forth other facts that may be pertinent and
material to show the grounds of the decision appealed from and must be verified.
(3) If, upon the hearing, it appears to the court that testimony is necessary for the proper
disposition of the matter, it may take evidence or appoint a referee to take evidence that it may
direct and report the evidence to the court with the referee's findings of fact and conclusions of
law, which constitute a part of the proceedings upon which the determination of the court must
be made.
(4) The court may reverse or affirm, wholly or partly, or may modify the decision brought up
for review.
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