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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 Following many complaints from the business community, this four-year amortization provision was repealed on December 10, 2001, and the currently effective nonconforming provisions were adopted.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: 2 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. 16 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. r 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