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A-2: Sign Code Amendment (2016-17 Official Docket)

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Issue

Item A-2 on the “2016-17 OFFICIAL DOCKET OF PROPOSED DEVELOPMENT CODE AMENDMENTS” calls for amending all sign codes as a high priority based on the recent U.S. Supreme Court decision (Reed v. Town of Gilbert).
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An item was also included on the 2014-15 Preliminary Docket to address signs in the right-of-way due to a citizen request to ensure unauthorized signs be defined as litter.

The Supreme Court decision changes the method the county needs to use to govern signs. Sign regulations that include content based criteria must be amended to only reference the number of signs, size, location, and type of sign structure, and category of sign (temporary or permanent). Any regulation that requires a person to read or discern the content of the sign is no longer valid. These regulations are reviewed under the “heightened scrutiny” standard for first amendment cases. Attorney’s fees can be awarded for such cases. This amendment may also affect other sections of the county code such as Title 6 Business Licenses and Regulations. The citizen request was not included on the 2014-15 Official Docket, but remained on the Preliminary Docket to be considered for the next cycle.

Please note that the parameters of this amendment are strictly to address the issues of content and signs in the right-of-way as described in the 2016-2017 “Official Docket” as set by the Board of Thurston County Commissioners. Physical sign standards applicable in the rural county and in the Urban Growth Areas (UGAs) of the three cities are not at issue.

Background

On June 18, 2015, the Supreme Court of the United States (SCOTUS) handed down a decision in the case of Reed v. Town of Gilbert, AZ.
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The decision held that the City’s sign code provisions were unconstitutional. They were deemed content-based regulations of speech that do not survive ‘strict scrutiny’; because, the local government could not prove that the regulations were narrowly tailored to serve compelling state interests.

Previous to the Supreme Court decision, the federal appeals courts were split, and some had a more strict application of first amendment constitutional limitations on sign regulations. The Supreme Court decided to go with the stricter of the two when it came to first amendment constitutional limitations on sign regulations.

In Thurston County there are four separate sign regulations for the rural county and the three cities. They range in zoning distinctions, and differ with respect to varying degrees of definitions and content oriented regulations. Much of the codes for these areas were written around 1997, and need to be brought in conformance with the SCOTUS decision, and reasonably consistent with applicable adjacent jurisdictions. The City of Lacey updated their sign code in 2015, and the City of Tumwater amended their sign regulations in 2010.

Selected Court Decisions:

  • Reed v. Town of Gilbert, 576 U. S. ____ (2015) – The U.S. Supreme Court held that a town sign code that treats various categories of signs differently based on the information they convey violates the First Amendment. The sign code defined the categories of temporary, political, and ideological signs on the basis of their messages and then subjected each category to different restrictions such as on size, number of signs, and the permissible duration of display. The court held that the sign code's provision were content-based regulations of speech that do not survive strict judicial scrutiny because the town did not demonstrate that the code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.
  • City of Ladue v. Gilleo, 512 U.S. 43 (1994) – The U.S. Supreme Court struck down a Ladue, Missouri ordinance that prohibited all residential signs, except those falling within certain specific exemptions such as small "residential identification" signs and signs advertising the sale, lease, or exchange of property. The Court concluded that the ordinance violated the First Amendment's free speech protection by suppressing too much speech. Although the Court invalidated Ladue's restrictions, it did not provide any meaningful guidance as to what would be a permissible content-neutral regulation of signs on residential property.
  • McClanahan v. City of Tumwater, No. 11–cv–5623-RBL (W.D. WA, Mar. 6, 2012) (Order denying motion for preliminary injunction) – The city removed yard sign containing political speech that intruded into sidewalk. The court, denying the plaintiff’s motion, held that the city removed the sign not based on its content but because it was located in the right-of-way.
  • Kitsap County v. Mattress Outlet, 153 Wn.2d 506 (2005) – Held that Kitsap County's sign ordinance, which the county claimed prohibited Mattress Outlet's use of raincoat-clad workers as offset advertisements, is an unconstitutional restriction of commercial speech.
  • Collier v. Tacoma, 121 Wn.2d 737 (1993) – The state supreme court found unconstitutional a provision of Tacoma's sign code that prohibited the placement of political signs earlier than 60 days before the date of the election for which the signs were intended. Tacoma's requirement that political signs be removed within seven days after the election was not challenged.

Analysis

Strict Scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. With respect to sign regulations, the standards must be content neutral, and will not withstand ‘strict scrutiny’ if standards are applied based on:
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what is written or shown on a sign face; the purpose of the sign; or, who is responsible for putting the sign up in the first place. An example of narrowly tailored means protecting the safety of pedestrians, drivers, and passengers. Jurisdictions regulate signs in the public right of way that serve a public purpose such as ‘way-finding’; or, signs that may interfere with moving vehicles by being blown into traffic lanes, imitate official signs, or signs that obstruct ‘clear site triangles’ at intersections, and driveways.

The primary intent of the ruling is that regulating content is regulating speech. If a law applies to a particular speech because of the topic discussed, or the idea expressed on the sign then it is limiting the first amendment. Summed up, if a sign must be read to figure out the meaning of the message, then the content is “activated”, and just became a matter of protected speech.

It is common for jurisdictions to categorize signs as a matter of identifying the extent of limitation to be applied as they relate to a particular zoning district. Three categories of signs are particularly relevant to this argument and are distinguished from commercial signs by how favorably they are perceived as a constitutional right, they are:
  • ‘Ideological’ signs. Signs in this category include messages or ideas for noncom¬mercial purposes that are not another type of sign, like a: construction, directional, or temporary signs relating to a onetime event, political, or yard sale sign.
  • ‘Political signs’. This includes any temporary sign designed to influence the outcome of an election called by a public body. These signs may not be differentiated by other temporary signs.
  • ‘Temporary and directional signs’ relating to ‘qualifying event’. This includes any sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event’; and, a qualifying event being any occurrence promoted by a religious, charitable, community service, educational, or other non-profit entity.
In the wake of SCOTUS’s Reed ruling, the literature indicates that local jurisdictions have been advised to avoid any possible infringement on free speech by designing and implementing regulations that address the structure of the code and structure of signs, including materials, size & height, location, portability, number of signs, illumination, animation, and duration by zoning district. In regards to commercial signs, regulations may be based on characteristics of the district, and have been held to a ‘diminished level of scrutiny’ (still not defined by the courts), which basically differentiates itself from political/ideological signs by the fact that it is assumed to serve singular purpose benefitting individual interest and as such, may regulate content to a degree.

Within the context of a sign code, there are specific elements that are considered to be best practice and recommended they be incorporated in every code to address ambiguity and include statements of: Purpose, Applicability, Definitions, Prohibited Signs, Exempt Signs, General Standards, Substitution Clause, and Severability Clause.

Purpose Statements should be based on policy, stakeholder input, and some quantitative or qualitative evidence that shows necessity for traffic safety or aesthetic value. For instance, Lacey’s sign code takes into account the size of the sign in relation to the speed of the viewer. The faster the speed, the larger the sign must be to contain the same amount of information.

Purpose: (Example)
  1. Enhance and protect the physical appearance of the community.
  2. Protect property values.
  3. Promote and maintain visually attractive, high value residential, retail, commercial, and industrial areas.
  4. Promote the economic well-being of the community by creating a favorable physical image.
  5. Ensure the signs are located and designed to:
    • Provide a effective means of way finding in the community
    • Afford the community an equal and fair wat to advertise and promote its products and services.
    • Reduce sign clutter and the distractions and confusion that may be contributing factors in traffic congestion and accidents, and maintain a safe and orderly pedestrian and vehicular environment.
    • Minimize the disruption of the scenic views which when maintained protect important community values.
    • Afford businesses, individuals and institutions a reasonable opportunity to use signs as an effective means of communication.
  6. Provide review procedures that assure that signs are consistent with the rural community’s objectives and within the rural community’s capacity to efficiently administer the regulations.
  7. Provides fair and consistent permitting and enforcement.
Definitions are also important and should be complete with respect to the express purpose of the code. Municipal codes do not typically provide definitions at the beginning of every Chapter. However, it is standard practice to provide definitions at the front of the chapter on sign regulations to help eliminate ambiguity and erroneous interpretation. As an aside many of the categories are signs that have been newly defined as content sensitive are mixed with definitions for structural types and it can at times be difficult to keep consistently track of. For instance, many people consider portable signs to be temporary, but from a regulatory perspective portable is considered to be a type of sign construction rather than a category of sign.

Exceptions and exemptions are areas typical of sign codes. However, these elements are often problematic in relation to content as they may be deemed unfair for lack of uniformity when comparing the various sign limitations with respect to categorized type. In this instance the categories are given different allotments in terms of height, structure, and number of signs. Often, this is also an issue in ‘permitted’ and ‘prohibited’ code sections. It is easy to mix and match categories, types, and uses, and may be remedied by a clear and concise definition section supported by a strong purpose section.

On and off premise signs are also issues of content and substitution. As a matter of course when requiring permits, requesting copy of sign content at application implies that the content may be unfairly regulated. However, this may be allowed in order to determine that other aspects of civil rights are not infringed upon, or offensive language, or imagery is used. Also, where a district implies design standards lettering and symbols may be limited to preserve continuity. In addition, substitution allows a business to use allotted signage for a non-commercial purposes as a matter of free speech.

Temporary signs are often not identified as temporary unless the content is read. To avoid the issue specified in Reed v. Gilbert, temporary signs may be prohibited from the public right-of-way, required to obtain a permit, and the permit limited in duration, location (setback), size, and number. Furthermore, signs addressed in exempt section of codes are difficult to track and may be better served in a general standards sections equitably applied to all zones; or, identified separately in distinct zones with differing standards for each.

Consistency with County-wide Planning Policies:
The County, in association with its seven cities and towns, developed and adopted GMA-required County-Wide Planning Policies. These now provide the planning framework that allows community individuality while ensuring regional consistency on major policy issues. The GMA requires the Economic Development section of the Comprehensive Plan to be consistent with the County-Wide Planning Policies.

"City, town, and county governments in Thurston County encourage sustainable economic development and support job opportunities and economic diversification that provide

Consistency with the Comprehensive Plan:
CHAPTER EIGHT -- ECONOMIC DEVELOPMENT

OBJECTIVE F: Development Standards - Standards for industrial and commercial areas and activities should be provided to promote optimal working environments, worker health and safety, and compatibility with adjoining areas while ensuring sustainable and environmentally sound developments.

POLICIES:
1. The county should provide standards that should generally be performance-oriented and should address buffers, traffic access, noise, screening, landscaping, and signs.

Financial Impacts:
No financial impacts are anticipated by amending the four sign code standards.

May limit or eliminate financial exposure in legal actions related to free speech.

Summary:
Local jurisdictions may regulate way finding signs, and commercial interest based on aesthetics, but regulating signs based on categorizing subject matter has now been clarified as unconstitutional. The safest course of action is to regulate by zoning district in a content neutral manner providing sign limitations evenly within the manner characteristic of the zoning district and do not address the message, but do address size, building codes, lighting, distracting movement, and portability. Currently, all four sign codes in affect in Thurston County contain elements of protected speech and need to be removed.

SEPA

An environmental determination for the proposed code amendment to sections related to signage in unincorporated Thurston County is required pursuant to WAC 197-11-704; and, will be completed prior to a public hearing on the amendments before the Board of County Commissioners.

Public Comment:

As of the date of this submittal, Thurston County’s Resource Stewardship Department’s Long Range Planning Division has not received public comments by way of emails, and or other media.
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All comments received with respect to this action will be made part of the public record and presented to the Planning Commission for consideration prior to conducting a public hearing on this matter.

Public comment will also be accepted when SEPA is issued, and again when the matter is considered by the Thurston County Board of County Commissioners.

Sources:

The following organizations were sourced for this report:
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Thurston Long Range Planning (TLRP), Municipal Research Services Center (MRSC), Washington State Legislature (WSL) and Washington Secretary of State (WSOS), and other online resources directly related to the subject of regulating signage.

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