Exh 8FAGENDA ITEM 8F
FEBRUARY 10, 2003
CITY OF ATLANTIC BEACH
CITY COMMISSION STAFF REPORT
AGENDA ITEM: Options to require compliance with amended Sign regulations
SUBMITTED BY: Sonya Doerr, AICP ,s,~
Community Development Director
DATE: January 31, 2003
BACKGROUND: There is a common rule-of-thumb, that it generally takes about ten years
for signs to come into full compliance with new sign laws. There are methods that can be
enacted to force compliance within a shorter period of time. Sign amortization, or the
requirement to make nonconforming signs come into compliance within a certain amount of
time, has been commonly used. Amortization does, however, carry some legal risks. The
courts have scrutinized local government's actions in this regard with varying decisions
depending upon the "reasonableness" of the amortization requirements. If it is the desire of the
Commission to re-establish an amortization period, the following amendment to Section 17-14
maybe considered to enact such a requirement.
(S) Notwithstanding the preceding provisions of paragraphs (1) through
(4) all Signs shall be made to conform with the provisions of this
Chapter within ten (10) years of the effective date of these
regulations as enacted by Ordinance Number
If the Commission will recall, the 1997 amendments to the sign regulations included such an
amortization p rovision. That p rovision r equired s igns t o c ome i nto c ompliance w ithin f our
years. The four-year date occurred in November of 2001, and certified 1 etters were mailed
notifying businesses that signs would need to be brought into compliance beginning in May of
2001. Seventy-three signs were found to be in violation.
Following many complaints from the business community, this four-year amortization
provision was repealed on December 10, 2001, and the currently effective nonconforming
provisions were adopted. Since May of 2001, six pole signs were removed completely, and
five pole signs were either replaced or relocated. Sixty-two signs were grandfathered by the
nonconforming provisions that went into effect in December of 2001. With the most recent
revisions to the Sign regulations, there are now 79 freestanding signs that exceed the new
eight-foot height limit.
Under the current nonconforming provisions of Chapter 17-14, existing lawful signs are
allowed to remain until any of the following changes are required.
• Any change to the structural supports or structural materials, including temporary
relocation associated with routine maintenance of a property.
• Any change which increases the illumination.
AGENDA ITEM 8F
FEBRUARY 10, 2003
• Any change which increases the height of a Sign.
• Any change, which alters the material used for the Display Area or Face Area by
more than twenty-five (25) percent.
• Any replacement required as the result of an accidental act or a weather related act.
• Any replacement of an Abandoned Sign.
• Any change necessary for compliance with Florida Building Code requirements.
When any of these types of changes are made, a Sign Permit will not be issued unless the
sign complies with the new regulations. These are fairly restrictive provisions, particularly
considering that the new Florida Building Code requires engineering review for all signs
within this City's wind zone category. It is staff's opinion that these provisions will result in
compliance with the recently adopted sign regulations within a shorter period of time than is
typical.
An alternative method to require earlier compliance is to establish a permitting threshold, at
which requirement to comply with current sign regulations would be mandatory. This
threshold could be established based upon the cost of repairs or changes to an existing sign,
but it could also be tied to the cost of improvements made for any type of building permit.
For example, if costs associated with - say a new roof -exceeded $10,000, signs on the
property would then have to be brought into compliance. The threshold value could be set at
any reasonable amount, and this would be a relatively simple process to implement. The cost
associated with all permits is information that is already required as part of the building
permit application, since permitting fees are based upon the cost of improvements or
construction.
At the direction of the Commission, staff will prepare an ordinance to re-establish an
amortization provision or other such amendments to the current sign regulations as requested.
BUDGET: No budget issues.
RECOMMENDATION: None; direction to staff.
ATTACHMENTS: Section 17-14 of the current sign regulations, and supplemental
information related to sign amortization.
REVIEWED BY CITY MANAGER:
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AGENDA ITEM 8F
FEBRUARY 10, 2003
ARTICLE V. NONCONFORMING SIGNS
AND WAIVER TO CERTAIN PROVISIONS
Sec. 17-14. Nonconforming Signs.
All Signs, which were lawfully in existence and constructed or installed with properly issued
Sign Permits as of the effective date of these amended regulations, and which are made nonconforming
by the provisions herein shall be allowed to remain in accordance with the following conditions:
(1) Freestanding Signs, permitted pursuant to Section 17-6, made nonconforming upon the
initial effective date of these amended regulations, which are not in compliance only
with respect to the minimum required distance of five (5) feet from any property lines
shall be allowed to remain in the existing location provided that no portion of the Sign is
located within any publicly owned right-of--way or utility easement and that no
interference with clear sight distance exists, and further provided that such Signs are
otherwise in compliance with the terms of this Chapter.
(2) Freestanding Signs, permitted pursuant to Section 17-6, made nonconforming upon the
initial effective date of these amended regulations, which are not in compliance with
respect only to maximum width, height or size shall be allowed to remain, provided that
such Signs are otherwise in compliance with the terms of this Chapter.
(3) Nonconforming Signs, including those as described in preceding paragraphs (1) and (2)
shall be made conforming with all provisions of this Chapter when any of the following
changes are made:
i. Any change to the structural supports or structural materials, including temporary
relocation associated with routine maintenance of a property.
ii. Any change which increases the illumination.
iii. Any change which increases the height of a Sign.
iv. Any change, which alters the material used for the Display Area or Face Area by
more than twenty-five (25) percent.
v. Any replacement required as the result of an accidental act or a weather related act.
vi. Any replacement of an Abandoned Sign.
vii. Any change necessary for compliance with Florida Building Code requirements.
(4) The provisions of this Section shall not be construed to apply to Signs that are
abandoned, deteriorated, dilapidated, or in a general state of disrepair, or which are
determined to create a hazard to public safety. Such Signs shall be subject to the
provisions of Section 17-10.
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AGENDA ITEM 8F
FEBRUARY 10, 2003
136 Context-Sensitroe Signage Design
Local governments have alternately
given real estate signs preferential
treatment by allowing them to be
posted indefirritely while imposing
strict time limits on noncommercial
signs, such as campaign signs. Other
local governments haoe tried to ban
real estate signs entirely. Courts have
i~roalidated total proh:3itions on real
estate signs and directed local
governments to permit small
temporary signs of aml type on private
properh~ in residential areas.
public right-of-way or attached to public property, such as street and traf-
fic lights, as part of a total prohibition on posting signs in these public
locations. A prohibition that applied only to the posting of real estate signs
in the public right-of--way would, however, be viewed as a content-based
restriction and be subject to strict scrutiny, with government facing the
difficult task of justifying such a partial ban. Finally, local government
may totally prohibit posting real estate Open House directional signs on
private property since such signs aze merely another form of commercial
aff-premise sign.
Where ordinances allow temporary real estate signs in residential areas,
while prohibiting political and other noncommercial temporary signs,
courts will declare the ordinance invalid, both because they restrict the
free speech rights of property owners without providing an alternative
channel of communication and grant more favorable treatment to rnm-
mercial than noncommercial messages 9
The upshot of these rulings is that temporary signs containing both
noncommercial and commercial on-premise messages must be allowed
in residential areas. The reasoning of these rulings would apply as well
to nonresidential areas. For example, in Gonzales v. Superior Court, 226
Cal. Rptr. 164 (Ca1.App. 1986), a state appellate court invalidated an
ordinance prohibiting the placement of temporary noncommercial
signs on vehicles while permitting vehicles to display temporary com-
mercial signs.
THE TAKINGS ISSUE: RE[1U1R1NG THE REMOVAL OR AMORTIZATION Of
ON-PREMISE COMMERCIAL SIGNS
The Fifth Amendment to the U.S. Constitution contains two separate
guarantees for property rights: the due process clause and the "takings"
clause. The due process clause-"No person shall ... be deprived of life,
liberty, or property, without due process of law"-safeguards citizens
from government action that arbitrarily deprives them of fundamental
rights and may be applied both to the substance and procedures of gov-
ernmental actions. The takings clause-"nor shall private property be
taken for public use, without just compensation" was "designed to bar
Govemment from forcing some people alone to beat public burdens
which, in all fairness and justice, should be borne by the public as a
whole."10In this century, the U.S. Supreme Court has interpreted the due
process clause of the Fourteenth Amendment as making these two provi-
sions of the Fifth Amendment, along with certavn other constitutional
guazantees, applicable to the actions of state and local government and
has developed a variety of takings bests to judge the constitutionality of
government regulations that affect property interests.ll
Takings claims may arise in the context of regulation of on-premise
signs whenever government requires the removal of a sign. Government
may lawfully require the removal of illegal or unsafe signs without rais-
ing significant takings issues because in such cases the sign's owner either
never acquired a property right in the first place (illegal signs) or has a
property right that may be terminated because it constitutes a nuisance
(unsafe signs). However, requiring the removal of a lawfully erected and
well-maintained sign that has simply become nonconforming as a result
of regulation enacted after the sign was erected can give rise t4 a takings
challenge because the sign owner's property rights. are being infringed
upon to some degree. Amortization, permitting a nonconforming sign to
remain in use for a period long enough to allow the owner to fully depre-
ciate his investment, is a technique often used by govemment to defeat
such takings claims.
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AGENDA ITEM 8F
FEBRUARY 10, 2003
Chapter 6. Legal Issues in the Regulation of Off-Premise ~zgns iii
Removal of Unsafe and lltegal Slgna
Local government may require the immediate removal of any sign that
poses a hazard to the safety of the public because no one has a right to
maintain a dangerous condition on their property. Similarly, since no one
has a right to maintain an illegal use on their property, cities may also
inquire the immediate removal of signs that are illegal, rather than meetly
nonconforming.l2
Removal of Nonconforming Signs
Although some state zoning enabling laws prohibit the forced termina-
tion of a lawful nonconforming use (e.g., Ohio and New Hampshire), a
local government may, as a general matter, require timely compliance
with all land development regulations, so long as this does not so dimin
ish the value of the property as to constitute a taking. Thus, sign ordi-
nances often contain provisions inquiring the removal of nonconforming
signs. In practice, this usually means that a sign that is smaller in area
and/or lower in height than the existing sign will replace the noncon-
forming sign. Cities that have adopted such provisions argue that non-
conforming signs, because they are larger or taller, have greater negative
aesthetic and traffic safety impacts. Cities also argue that, because non-
conforming signs are usually larger, a business with a smaller conforming
sign may be put at a competitive disadvantage compared to a business
with a larger nonconforming sign that has been "grandfathen:d."
Must a city compensate the sign owner for lawfully requiring the
removal of a nonconforming sign? The answer depends on whether there
is a state statutory requirement mandating compensation, or, in the
absence of such a requirement, whether the removal constitutes a com-
pensated taking under the federal or stare constitutions. Thus, for exam-
ple, several cases have held that a local government may require the
removal of a nonconforming sign that has been poorly maintained since
it has little monetary value.13 As a general matter, it has proved quite dif-
ficult for the owner of a nonconforming on-premise commercial sign to
prove that requiring removal of the sign constitutes a taking, particularly
where the ordinance provides for an amortization period. (See the section
on amortization of nonconforming signs below.)
Requiring Compliance With Current Zoning Standards
Courts have also generally agreed that local governments may require
owners of nonconforming structures and uses to bring them into com-
pliance upon the happening of prescribed events. For example, confor-
mity with the sign ordinance may be required as a precondition to
expanding the nonconforming sign, as a precondition to reconstruction
of the sign after its substantial destruction, before taking action that
would extend the life of the nonconforming sign, or after the sign has
been abandoned.14
This is an ama, however, where the Supreme Court's expanded protection
of commercial speech may be changumg the way lower federal and spate
marts view certain attempts to inquire conformance. For example, in Kevin
Gray-F.zrst Coast Auto Body v. Village of Nyack, 566 N.YS2d 795 (N.Y. App. Div
1941), a local business changed hands and the new owner wanted to reflect
this with a new name for flue business, A village ordinance allowed naarccaz-
fonningcommercial signs to remain in place so long as the copy on the signs
was not changed. The mart held that the ordinance failed Fust Amendment
scrutiny by prohibiting the owner firm changing the copy on the sign.
"Generally, absent a showing that the predominant purpose of an ordinance
is not to control the content of the message ..., such truthful commercial