10/2/22: TOWN COUNCIL TO HOLD PUBLIC HEARING TUESDAY ON PROPOSED NEW SIGN REGULATIONS; WE FIND FIRST AMENDMENT CONCERNS; Council Also Will Receive Auditor’s Report for FY 2021-22.

The Town Council will hold a public hearing on the much-discussed, much-analyzed, and much-revised rewrite of the Town’s regulations on signs of all types—known as Zoning Text Amendment (ZTA) 21-08—at its meeting Tuesday, which starts at 5:30 p.m. in the Pitts Center.

You may access the meeting agenda and materials here: https://mccmeetings.blob.core.usgovcloudapi.net/soshoresnc-pubu/MEET-Packet-1c431a287a554b44a46b5b80c993864c.pdf. The proposed new sign ordinance is on pages 24-39.

The hearing on ZTA 21-08 is one of three public hearings that the Town Council is scheduled to hold, but the other two are perfunctory and of little interest to the general public. One concerns a Council vote on a proposed final subdivision plat for 267 Hillcrest Drive, which has met with no opposition in its preliminary stage, and the other is a housekeeping measure to ensure that the method of calculating building height in the new mixed-use development district is the same method as employed in all other zoning districts. (ZTA 22-10)

Also on the Town Council’s agenda is a fiscal year 2021-22 audit presentation by accountant Teresa Osborne of Dowdy & Osborne, LLP, of Nags Head; consideration of two bid proposals by contractors on the Ginguite Trail Drainage Improvement Project; and discussion/approval of a Request for Qualifications from engineering/planning/design contractors for the Trinitie/Juniper Trail bridge replacement. (See The Beacon, 9/29/22, for background.)

The Ginguite Trail project is designed to “reduce the duration of time that stormwater is standing in the roadway after a rain event,” according to an agenda item summary by Town Manager Cliff Ogburn. The Town received two bids: $38,599.69 from Envirotech Unlimited Construction Services, and $101,800.00 from Fred Smith Co., the Town’s contractor for street pavement maintenance. There is already a budget amendment in the meeting package to authorize $42,000 in expenditures for the Ginguite project.

According to the meeting agenda, Mr. Ogburn will update the beach nourishment project and discuss uses of the Town-owned vacant lot on Skyline Road, next to the Pitts Center, in his administrative report.

BACKGROUND ON SIGN ORDINANCE REWRITE, FIRST AMENDMENT

The Town Planning Board unanimously recommended last month that ZTA 21-08 be approved and enacted by the Town Council. A year ago, it also unanimously recommended approval of an earlier version of ZTA 21-08, but the Town Council sent the measure back to the Planning Board and Town staff for further changes.

Some of the signage restrictions in ZTA 21-08 appear constitutionally suspect to us in that they infringe upon residents’ First Amendment rights of free speech or expression.

Although we believe that, we also empathize with Planning Board members. This is not an area of the law that laypeople can easily understand. Lawyers have a hard time, too.

The U.S. Supreme Court’s 2015 decision in Town of Gilbert v. Reed, which clarified when and how municipalities can legally restrict outdoor signs—the most sensitive being political signs—without violating individual free-speech rights, is the impetus for the Town’s overhaul of its sign regulations, which are in Town Code secs. 36-57 (definitions) and 36-165.

The bottom-line reading of the case is that municipal laws restricting signage must be “content-neutral” in order to survive a First Amendment challenge.

Chad Meadows of Codewright Planners, whom the Town hired to revise and update the Town Code—and most of whose work the Town did not use—provided a framework for the sign ordinance rewrite (sec. 36-165).  The ordinance is now largely graphic, as was Mr. Meadows’s penchant, with tables summarizing the restrictions on signage, according to whether the signage is permanent or temporary and whether it is found in the commercial district, the government/institutional district, or the residential district.

These new categories are an attempt to take the sign’s content–be it a “For Sale” sign or a political message sign or a sign of any other nature–out of the regulations.

We will focus here only on ZTA 21-08’s restrictions on temporary signage, especially those placed by residents in their yards to convey a message.

While the Reed decision highlights content neutrality, it does not stand for the proposition that sign ordinances that do not overtly discriminate on the basis of viewpoint or according to the type of communication on the sign always pass constitutional muster.

To survive a First Amendment challenge, regulations of temporary noncommercial signs on private property cannot be overly restrictive. They must further a substantial governmental interest, such as public safety or community aesthetics, and be no greater than is necessary to support that interest.  

“Message” signs, according to Reed, are “a venerable means of communication that is both unique and important.” The Court goes on to say:

“Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates, parties, or causes. . . . [R]esidential signs have long been an important and distinct medium of expression.”

We agree and believe that ZTA 21-08 goes too far in some of its restrictions in the interest of reducing what some members of the Planning Board have called visual “clutter” and “pollution.”

We also do not believe these restrictions, upon which we will elaborate, “promote traffic safety,” as the Town states in the ordinance that it proposes to do. The Town may legally protect its interest in public safety, but any claim that yard signs interfere with traffic safety is hardly realistic. Yard signs are not billboards that obscure motorists’ sight lines. They do not pose a physical danger to the public.

NUMBER AND DURATION OF TEMPORARY SIGNS; SIGNS IN THE RIGHT-OF-WAY

What is a “temporary” sign?

According to ZTA 21-08, it is a sign, typically constructed from nondurable materials, that is not permanently embedded in the ground or permanently affixed to a building or sign structure that is permanently embedded in the ground, that is “intended for a temporary period.”

And what is a “temporary period”?

According to ZTA 21-08, a temporary “freestanding sign” on private property in the residential district may be displayed for a maximum of 90 days. Temporary, therefore, equals an arbitrary 90 days, regardless of the reason for the sign being on display.

ZTA 21-08 also provides that no more than three of these signs may be displayed on one residential property at a time. The Planning Board apparently believes that if a temporary sign is displayed for more than 90 days or if more than three such signs appear on a property, an aesthetic eyesore will occur, and that the Town’s interest in aesthetics trumps residents’ interest in free speech—including their show of support for more than three candidates in an election.  

Signs have never been permitted in the Town’s rights-of-way, but ZTA 21-08, at the Town Council’s request, now permits temporary signs to be placed there “from 30 days before early voting begins and 10 days after an election.” Clearly this is a reference to political signs, even though the sign content is not specified. This duration restriction cannot be said to be content-neutral.  

ZTA 21-08 further requires that before a temporary election sign may be placed in the Town’s rights-of-way, the “adjacent property owner(s)” must consent to the placement.

The Town may legally regulate the size, shape, and location of yard signs, but when it imposes durational limits—especially for temporary signs tied to a specific election date—and establishes a maximum number of signs per residence, it runs afoul of the First Amendment, according to the overwhelming majority of lower courts, both federal and state, that have reviewed sign ordinances with such restrictions.

A municipality may enact so-called time, place, and manner restrictions on signage, but these restrictions, too, may be subject to constitutional challenge. Towns do not have free rein to decide how many signs they will tolerate and for how long they will tolerate them.

One First Amendment scholar whose work we read suggested that 10 signs on one property would be excessive, but short of 10, he wouldn’t speculate on a number.  

The Town modeled its restrictions on political signs in the municipal right-of-way on N.C. law, using the language from N.C. General Statutes 136-32, which regulates political signs in the rights-of-way of the State highway system. The N.C. statute is subject to constitutional challenge under the Reed decision, according to attorney Adam Lovelady of the UNC School of Government, but that challenge has not yet occurred.   

We believe that subjugating the free-speech rights of the person who would place a political sign in the right-of-way to the whims of an adjacent property owner, who simply might dislike the candidate being promoted and withhold consent for that reason, is simply wrong-headed.

We suggest that temporary signs be permissible in the public rights-of-way at all times and regardless of the adjacent property owners’ desires or opinions. The Town owns the rights-of-way. End of story.

At some point, the number of signs in a single yard or in a right-of-way might realistically impair the aesthetics of a neighborhood, but three is not the number.

Councilwoman Paula Sherlock has five political signs in the right-of-way in front of her residence now. (See photo above.) She is not the only one in town with so many candidate yard signs. But Ms. Sherlock lives on N.C. Hwy. 12 and is permitted to display five because N.C.G.S. 136-32 does not limit the number of political signs in a State road right-of-way.

How’s that for a logical conundrum?  

It is a shame that members of the Planning Board view the proliferation of candidate signs during election season as clutter and pollution, rather than as a statement of robust and vigorous civic engagement. To borrow the words of the Supreme Court, such signs “both reflect and animate” the life of a community, especially its public-spirited members. They also inform people.

We note that ZTA 21-08 does not limit the number of flags—considered temporary signage—a resident may fly on his/her property nor the duration of their display, but banners, which are also temporary and must be attached to “any structure, staff, pole, rope, wire or framing,” are limited to two per residence and to 90 days’ duration.

Why would flags be given preferential treatment over banners and signs, except for content-based reasons? Can the Town actually claim to be basing this restriction on aesthetics?

It is illogical that we can fly one flag—or five flags—on a pole or poles in our yard that say, “We Won’t Go Back,” which is Planned Parenthood’s rallying cry in the aftermath of the Supreme Court’s overruling of the abortion cases, for as long as we want, but we cannot do the same with signs or banners.

VEHICLE SIGNS

We could further parse provisions of ZTA 21-08 for First Amendment infringement, but will conclude with just one more suspect regulation: a prohibition of “vehicle signs,” which already exists in the Town Code and is perpetuated in the new Zoning Text Amendment.

The Code definition of “sign, vehicle” is an unwieldly run-on sentence of 115 words, which as best as we can discern differentiates between signs on parked vehicles whose purpose is to “attract the attention of the public rather than to serve the business of the owner thereof in the manner which is customary for said vehicle.” (sec. 36-57) Signs on parked vehicles that serve the business of the owner are permissible, but signs designed to attract the attention of the public, such as political vehicle signs, are not. This is another content-based discrimination.

Signage regulation is a murky area of the First Amendment, in part because the Reed case left many unanswered questions. It is easy to get swept away by the swift current in First Amendment waters if one is not an experienced swimmer, and experienced swimmers are few and far between. First Amendment experts tend to be found in academia.  

We believe the best way for the Town to keep its head above water is to think first of protecting citizens’ free-speech rights and secondly about preserving aesthetics. Regulate the size, shape, and location of signs, but tread very lightly on other time-place-manner restrictions.

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A REMINDER: The bulk-waste pickup day is this Friday. For more details about the approved items, see the message atop the home page of the Town website.

Ann G. Sjoerdsma, 10/2/22