The Town Council will hold a public hearing at its regular meeting Tuesday (Nov. 9) on a rewrite of the Town Code signage ordinance that the Town Planning Board scrutinized for months before it agreed upon language that it could recommend for enactment.
The Planning Board’s recommended revisions of the Town Code sections pertaining to signage—sections 36-57 (definitions) and 36-165 (regulations)—are encapsulated in Zoning Text Amendment 21-08, which you may access here:
The Town Council’s meeting will be held Tuesday at 5:30 p.m. in the Pitts Center. All meeting attendees must wear face masks. You may access the agenda here:
Also scheduled on the agenda, as The Beacon has previously reported, are an update by Town Manager Cliff Ogburn about the 5-G cell poles being installed in the Town’s residential areas and a “discussion” by the Town Council of the future of the citizens’ committee that has been exploring the potential for a Northern Dare branch library.
Ordinarily, we would provide a link to the meeting packet, which consists of background materials for the agenda, but Tuesday’s packet consists of 168 pages, of which 123 pages pertain to the Town’s Human Resources Policy and proposed amendments to it. We doubt many of you are interested in the Town’s personnel policies.
The meeting agenda and consent agenda take up another 18 pages, and materials about ZTA 21-08 consume another 23 pages (pp. 144-167).
We would hope that if the Town Council expects to have an extended discussion about revised personnel policies that it would change the order of the new business items so that the public hearing on ZTA 21-08 precedes that discussion.
As for ZTA 21-08, the impetus to revise the Town Code signage ordinance came from CodeWright Planners, the consultant hired by the Town in 2015 to update and improve the Town Code—a job it handled poorly, producing a largely unacceptable work product.
The Town Council previously decided to incorporate relatively few of CodeWright’s suggestions, in particular, rejecting its recommended reorganization and re-design.
In March, the Council asked Town staff to identify “valuable elements” within CodeWright’s final draft for the Planning Board to review and the Council to consider. Its signage rewrite was identified as such an element.
CodeWright cites a 2015 U.S. Supreme Court decision, Reed v. Town of Gilbert, Ariz., 576 U.S. 155, for its proposed sign revision, which is the foundation for ZTA 21-08.
Messages on signs are protected speech under the First Amendment of the U.S. Constitution. It is well-established law that a town cannot discriminate against political and ideological-message signs, like the one pictured above, in the guise of regulating aesthetics or the time, place, and manner of sign displays.
In 1972, the Supreme Court clearly stated that a municipality “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Any content-based laws are presumptively unconstitutional.
Municipal sign ordinances that impose “content-based” restrictions on speech are subject to a legal analysis known as strict scrutiny. (Anyone who has ever studied constitutional law knows about strict scrutiny.) Under this analysis, a restriction can survive only if a government can prove that it serves a “compelling interest” and is “narrowly tailored” to serve that interest.
IOHO, the town of Gilbert went out of its way to violate the First Amendment. Its Sign Code treats signs differently depending on their content.
The U.S. Supreme Court unanimously agreed to strike down Gilbert’s Sign Code, but the justices did not all agree on the legal reasoning for its decision.
As a result, Reed v. Gilbert is a somewhat messy opinion, except for its outcome, and lower courts have interpreted and applied it differently.
To read Reed v. Gilbert, see https://www.law.cornell.edu/supremecourt/text/13-502.
For Town Attorney Ben Gallop’s comments on Reed v. Gilbert, see:
In order to ensure “content neutrality” in Southern Shores’ sign regulations, the Town is proposing in ZTA 21-08 to address signage—categorized as either permanent or temporary—according to the applicable zoning district in which it appears and to distinguish within the residential areas by whether the signs are for the purpose of a residential or nonresidential use.
We have decided not to analyze ZTA 21-08 in detail and to say only that it over-complicates signage regulations and over-reaches in its scope.
In his agenda item summary on ZTA 21-08, Mr. Ogburn recognizes as much, writing:
“Town Staff feels that additional discussion and further revisions are needed, and Town Staff recommends that Council direct Town Staff to make further revisions to ZTA 21-08. Comments on the application from Council or anyone wishing to speak during the public hearing would be welcomed by Town staff.”
APPOINTMENT OF FIFTH COUNCIL MEMBER
As a result of Mayor Pro Tem Elizabeth Morey’s election on Nov. 2 to the Mayor’s seat, there will be a vacancy on the Town Council after she is sworn in on Dec. 7.
The appointment of a Town Council member to serve out the two remaining years of Ms. Morey’s unexpired term must occur in an open meeting.
The Beacon has previously addressed how this appointment may be made, according to N.C. state law. (See The Beacon, 10/8/21.)
In the Town’s Nov. 5 newsletter, Town Manager Ogburn announced:
“The new Town Council will determine the process they use to identify potential candidates to fill the vacancy and the procedure for choosing the right person to fill the vacancy. There are numerous ways they can go about doing this. Discussions and decisions on these matters by the Town Council will be made in open session . . . and the Council will discuss the process for selecting potential candidates as well as establish the rules of procedure to govern the appointment. There is no requirement for when this all has to take place, but it’s likely that this will be placed on the December 2021 regular meeting agenda . . . The Council could take action at that time, or [it] could give direction and instruction to staff on how they would like to proceed.”
We encourage you to attend the Dec. 7 regular meeting, of which the Town will give you notice through its website and newsletter, and to make your opinions known at the meeting and in advance about how you think that appointment should be handled.
You may email Ms. Morey at email@example.com; Councilman Matt Neal at firstname.lastname@example.org; Councilman Leo Holland at email@example.com; and Mr. Ogburn at firstname.lastname@example.org.
Remember: It may be the new Town Council’s decision to make, but the Council represents you, not the individual members of the board.
We believe that both Rod McCaughey and John Carter should be given consideration for this seat, if they are interested in serving. Both are successful, intelligent people who would bring a diversity of opinion to the Town Council that would only strengthen our government, and the election results show that they have sizeable constituencies.
Southern Shores residents deserve to be represented by Council members with diverse viewpoints. As long as elected officials respect compromise and majority rule, we believe diversity among them should be sought and welcomed, not shunned and marginalized.
SUSPENSION OF BEACON PUBLICATION
As some of you may recall, I tried to take time off in June, but then felt obligated to report on the cut-through traffic and never really did.
I then felt obligated to run for the Town Council when, as of the night before the last day of candidate filling, no one had filed for the seat that Paula Sherlock just won.
Ms. Sherlock, Mr. Carter, and I all filed on the morning of the last filing day. We all appeared at the Dare County Board of Elections office during the last two hours.
I then resolved to hang in with The Beacon through Election Day and decide my next move based on the election results.
While I would have been happy to provide a public service to the town as a Town Council member—and fix ZTA 21-08—the voters have liberated me to do what I would like to do. For now, that is work on other writing projects and take care of my family, in particular, my mother.
So, for the foreseeable future, I am suspending publication of The Beacon after this report. I will not be covering Town Council and Planning Board action for at least the next three to six months. I am uncertain of my time away and do not wish to make any predictions.
I would like to wish Mayor-Elect Morey well as she begins in January to put her imprint on our town government and to define her four-year term.
Thank you all for your readership. Have a safe and enjoyable holiday season. Until we meet again . . .
Warm wishes, Ann