1/20/19: IN WARNING ABOUT YARD SIGNS IN NEWSLETTER, TOWN SHOWS BLATANT BIAS: Permitting Real-Estate Signs in Public Right of Way Is Unconstitutional, But Town Has Never Cared

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It is hardly a coincidence that less than one week after NO! MINI-HOTELS signs began appearing on property owners’ yards and vacant lots—at their request—that the Town of Southern Shores decided to warn people in its newsletter about posting signs in the public right-of-way (ROW).

The item about yard signs—which appears as the second-ranking item in the Jan. 18 newsletter—asks: “Did you know that signs posted in a street right-of-way may be subject to removal?” (See “Southern Shores News,” Jan. 18, 2019.) It then refers to the Town Code sign regulation, sec. 36-165, and quotes a prohibition against any signs being located within the public right-of-way.

The Beacon believes that this item not only reflects a shocking pettiness and bias by the Town–which The Beacon is hopeful the Mayor and Town Council do not share–it misinforms the public by misrepresenting the law.

Perhaps Town Manager Peter Rascoe can refer The Beacon to the Town Code section that gives the Town the right to remove a yard sign, without first issuing the requisite warning citation, simply because it is in the public right of way.

Even more egregious, the Town’s sign regulation has been unconstitutional, at least in part, for nearly four years. Ever since the U.S. Supreme Court decided Reed v. Town of Gilbert in 2015, a section of the Town’s regulation that permits real estate signs to be in the public right of way, but not other signs, has been clearly unconstitutional.

It’s a First Amendment issue: The Town cannot favor the speech–i.e., a sign’s message–of one speaker (a real-estate agent) over another, such as a NO! MINI-HOTELS proponent, unless it can meet a very high constitutional standard, and it cannot.

How much of sec. 36-165 is invalid because of the holding in Reed v. Town of Gilbert? It’s quite possible that a court would strike down sec. 36-165(7), which the newsletter cites as authority for removing yard signs.

According to the U.S. Supreme Court, a 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.” Evenhanded. Content-neutral. These are weighty words. The Supreme Court always chooses its words carefully.

It is not remotely evenhanded and content-neutral for the Town to prohibit all signs in the public ROW except those in the residential districts that have real-estate content on them. (See Town Code sec. 36-165(8)(c).) In fact, it’s blatantly unconstitutional, if the regulation does not serve a “compelling governmental interest” (the high standard I mentioned above), which an exemption of real-estate signage clearly does not.

Mr. Rascoe is an attorney, and the Town has its own attorney. Why hasn’t the sign regulation been “repaired” so that it’s constitutional? Surely, both are familiar with Reed v. Town of Gilbert.

Now that the Town has made a public show of cracking down on signs in the ROW, is it going to start removing “For Sale” and “For Rent” signs in front of houses that are closer than “8-12 feet from the edge of street pavement,” as the Jan. 18 newsletter item defines the ROW? Or is it just going to target NO! MINI-HOTELS signs, in a discriminatory fashion?

Judging by the Town’s history of non-enforcement, it was quite reasonable for property owners who posted NO! MINI-HOTELS signs to believe that the Town had ceded the public ROW to yard signs.

The Town didn’t warn Mayor Tom Bennett’s supporters to remove their signs from the public right of way during his 2017 reelection campaign. The Town has never taken any action against election signage, even though it’s prohibited by the same Town Code section that the newsletter item cites. (Reed v. Town of Gilbert prohibits election signage from being given special treatment.)

Any signs in the public ROW that protest oil drilling off of the North Carolina coast also violate the ordinance. Town Manager Rascoe did not authorize a newsletter item warning about placement of no-drilling signs in the ROW when those signs started appearing.

Actually, there’s a procedure outlined in the Town Code for the enforcement of zoning ordinances, and it begins with the Town issuing a warning citation to the alleged violator, not with confiscation of his/her private property.

According to Town Code sec. 1-6, a violation of the zoning chapter subjects the offender to a civil penalty “upon the issuance of a citation” for the violation. The Town must “cause a warning citation to be issued to the violator setting out the nature of the violation, the section violated, the date of violation, [and] an order to immediately cease the violation.” (Code sec. 1-6(m).)

Has anyone with a NO! MINI-HOTELS sign in his/her yard been served with such a citation? If you have, please contact The Beacon.

The Beacon has been advised by organizers of the NO! MINI-HOTELS campaign that they will begin moving any of their signs that are in the ROW back onto the private property of the land- or homeowner. They also will be watching to see if all real-estate companies who have posted “For Sale” or “For Rent” signs in the public right-of-way do the same.

The Town cannot constitutionally exempt real-estate signage from its ROW prohibition, nor can it enforce the ROW prohibition only against those citizens whose signs it doesn’t like. That the Town Manager and/or other Town staff decided to target yard signage at this time leaves The Beacon feeling that they are not serving many of the people they were hired to serve. In fact, they are biased.

Ann G. Sjoerdsma, 1/20/19

 

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