8/14/21: PLANNING BOARD TO REVIEW FIRST AMENDMENT- DRIVEN OVERHAUL OF TOWN SIGN ORDINANCES; Survey Shows Town’s Streets in Fair or Better Condition.

The Planning Board will consider Monday a substantial revision of the Town’s regulations on signs—of all types and in all zoning districts—that is designed to eliminate all content-based restrictions that presumably violate the First Amendment to the U.S. Constitution.

The substantial revision is Zoning Text Amendment (ZTA) 21-08, which proposes to strike most of the existing language of Town Code secs. 36-165 (“Regulations governing signs”) and 36-57, (definition of sign), in order to bring the ordinances into conformity with a 2015 U.S. Supreme Court case, Reed v. Town of Gilbert, 576 U.S. 155 (2015). 

You may access ZTA 21-08 here: https://www.southernshores-nc.gov/wp-content/uploads/2021/08/ZTA-21-08-Signage-1.pdf.

The Planning Board meeting will be held at 5:30 p.m. Monday in the Pitts Center. (See The Beacon, 8/11/21, for a preview of the agenda.) All attendees must wear face masks.

ZTA 21-08 was drafted by consultant Chad Meadows of CodeWright Planners, during his review/revision of the Town Code, and reviewed by Town Attorney Ben Gallop. The Town staff has recommended its approval.  

As Mr. Gallop makes clear in written comments that are included in the meeting’s materials, Reed v. Town of Gilbert is not as straightforward as it may appear to those unversed in First Amendment law. “A significant body of conflicting case law has developed since Reed was decided,” he writes.  

Indeed, the opinion itself, which was written by Justice Clarence Thomas, has three concurrences in which six of the justices make legal distinctions. So, although all nine justices agreed on the ultimate judgment in the case, they quibbled on the analysis.  

Fortunately, the Planning Board does not have to learn constitutional analysis. But it does have to be on the lookout for regulations that interfere too much with individual property owner’s rights.

It is generally well understood that while government cannot restrict speech—on signs or otherwise—because of its message, ideas, subject matter, or content, government can regulate signs for legitimate, content-neutral reasons such as to promote public safety (reduce traffic obstructions, for example) or to preserve “aesthetics.” 

Southern Shores’ current sign definitions in Town Code sec. 36-57 distinguish between commercial and noncommercial signs and address their use, purpose, and content. ZTA 21-08 deletes all of this language.

Current Code Sec. 36-165 carries over this commercial-noncommercial distinction, and it, too, is eliminated by ZTA 21-08. Other regulations within this Code section, however, govern the permissibility of signs according to the zoning district in which they appear—residential, commercial, or government and institutional—and it is this framework that forms the basis of the Town’s proposed new signage regulations.

What ZTA 21-08 leaves you with are four categories of signage:

  • Permanent signage in a residential district
  • Permanent signage in the commercial district
  • Permanent signage in the government/institutional district
  • Temporary signage, in 1) residential districts and 2) all other districts

ZTA 21-08 then proposes to regulate the signage within these four categories by:

  • Maximum number of signs per lot
  • Cumulative sign area of lot (square footage)
  • Maximum surface area for a single sign (square footage)
  • Maximum height of sign (in feet above grade)
  • The type of signs allowed
  • Other “additional standards”

EXCEPT, in the case of temporary signs, ZTA 21-08 limits the number of days per year that a property owner may display the sign. In the residential district, the “maximum duration per calendar year” is 30 days; in all other districts, the maximum duration is 90 days.

We ask: Is this 30 days per temporary sign per year? If so, then a person could have 12 signs expressing the same sentiment and display them one at a time, each for 30 days. Doing so would defeat what appears to be the aesthetics rationale behind the restriction.

We also note that state and county regulations governing the placement of temporary campaign signs allow for about 60 days.

Interestingly, the current Town sign ordinance states that temporary signs may be posted for up to 90 days, “at which time the sign shall be removed or replaced.” (Code sec. 36-165(12)) If you look around Southern Shores, you can appreciate that this ordinance is not enforced. 

We believe that this arbitrary time restriction could be perceived as a subtle form of viewpoint-repression that does not have a content-neutral justification to pass First Amendment muster.

The limit on the number of signs that a property owner may have on his/her lot at one time also raises our eyebrows. The number selected is three. Why not five or 10? If property owner A’s lot is twice as large as property owner B’s lot, shouldn’t A be allowed six temporary signs?

Here again, we ask, is the restriction a subtle form of viewpoint-repression or is it justified by a legitimate aesthetic objective that overrides First Amendment protection?  

Certainly, a yard filled with the signs of a certain political candidate makes a stronger and more emphatic statement than a yard with only one of the candidate’s signs, even if some people think it is unattractive.

Provided the signage does not “obstruct or impair access to a public sidewalk, public or private street or driveway, traffic control sign, bus stop, fire hydrant, or any other type of street furniture, or otherwise create a hazard”—this is language from current Code sec. 36-165(12)(b)—how much say should the Town have in regulating this speech?

In his concurrence to Reed, Justice Samuel Alito listed some “reasonable sign regulations” that municipalities can enact without running afoul of content-based distinctions. He was joined in his opinion by Justices Anthony Kennedy (ret.) and Sonia Sotomayor. Among the regulations he listed were:

  • Rules regulating the size of signs
  • Rules regulating the locations in which signs may be placed (e.g., free-standing signs versus those attached to buildings)
  • Rules distinguishing between lighted and unlighted signs
  • Rules distinguishing between signs with fixed messages and electronic signs with messages that change
  • Rules distinguishing between the placement of signs on commercial and residential property
  • Rules restricting the total number of signs allowed per mile of roadway (not per lot)

Although Justice Alito’s concurrence is not the majority opinion in Reed, nor is his list “comprehensive,” as he notes, it offers fairly reliable guidance to municipalities in formulating their sign ordinances. The Town of Southern Shores seems to have adhered to it in ZTA 21-08, in large part, except for the maximum-day and maximum-number regulations that we point out above.

Temporary yard signs have long been a medium of political expression for Southern Shores residents, so much so that one enterprising homeowner on South Dogwood Trail dubbed Southern Shores the “town of yard sign opinions” (above)—and announced this cleverness on a yard sign, of course.

According to ZTA 21-08, a property owner in a residential district may post a maximum of three signs on his/her lot, each of which may be no larger than six square feet, and, cumulatively, cover no more than 21 square feet.

A free-standing sign in the residential districts may be as high as five feet above grade; a wall sign must be “under roof,” ZTA 21-08 says.

Further, temporary signs “shall not be illuminated or painted with light-reflecting paint” and “shall be placed outside the right-of-way and at least five feet from all lot lines.” The lot owner also must give his/her permission before the temporary sign is located on the lot.

According to ZTA 21-08 and the current Town Code, a temporary sign is one that is “intended to display messages of a transitory or temporary nature.” Is a yard-sign statement in support of world peace transitory or temporary in nature?

Examples of temporary signs in the Town Code include “portable signs, or any sign not permanently embedded in the ground, or not permanently affixed to a building or sign structure that is permanently embedded in the ground.”

Such signs are “typically constructed from nondurable materials, including paper, cardboard, cloth, plastic, and/or wallboard,” the ordinance states.

We commend ZTA 21-08 to you for your consideration.  

TOWN PAVEMENT STUDY & CAPITAL IMPROVEMENT PLAN

As we reported 8/11/21, the results of the pavement condition study by SEPI Engineering and Construction Inc. are in and will be discussed by the Town Council at its Tuesday 9 a.m. workshop at the Pitts Center.

You may now access a draft the SEPI report, dated Aug. 17, 2021, here:

According to its report, SEPI conducted a visual pavement condition survey in March and April this year of a street network of about 38 miles, which it broke down into 163 segments.

SEPI states in its executive summary that it found 12 percent of the Town’s street network to be in excellent condition; 15 percent to be in good condition; and 73 percent to be in fair condition. It did not rate any road sections as poor or failed.

The street system, the consultant writes on p. 12 of the report, “is in fair but aging condition and is well suited for preservation and minor rehabilitation repair treatments.”

For those of you who are acquainted with pavement “distresses,” we note that the top three distresses identified by SEPI in Southern Shores are “fatigue cracking, surface distresses, and transverse cracking.” We will delve into these problems in a subsequent, more detailed blog on SEPI’s study.

SEPI concludes its report with two recommended options for 10-year Town capital improvement plans (CIP) to preserve and rehabilitate the roads. The first would cost Southern Shores annually about $675,000 to implement, while the second would cost upwards of $1 million per year.

Last week, upon our request, and before the report was online, Town Manager Cliff Ogburn gave us a statement about the scope, intent, and use of SEPI’s work product, as follows:

“The intent of initiating the study was to have an evaluation of the pavement condition for each mile of town streets and then [to put] those results . . . into a 10 year CIP so that we have a plan to perform the recommended maintenance work starting with the streets in the poorest condition.  It’s important to note that the study looked at pavement only and not things like road width or how we classify the street. 

“The scope of the work includes several things but it produces two key deliverables . . . One is a color-coded map that will indicate the condition of every street with its PCI score (pavement condition index) and the recommended maintenance treatment.  My goal would be to place this map on the Town’s website so that any property owner could click on their street and see when and what is planned or recommended for upcoming maintenance. The other is a technical report that lists:

  • “every street by segment from worst to best condition;
  • “the amount of distress present for each item analyzed to generate a PCI (how much fatigue cracking, transverse cracking, surface defects, rutting/roughness, block cracking)
  • “recommended maintenance and cost

“The CIP is how we rank/prioritize the work.”

Mr. Ogburn concluded by saying that “The Council likely will not make any decisions at the meeting Tuesday.”

Ann G. Sjoerdsma, ©8/14/21

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