[Durham INC] Must-read: Planning director's memo on Durham's sign ordinance

[John Schelp]

folks,

Wow. In the end, 273 citizens sent messages asking officials not to tinker with the sign ordinance. Two people wrote for electronic billboards. 

Today, the message was heard. The Planning director was told not to make any changes to the sign ordinance. This means the Planning staff will evaluate the billboard industry's text amendment (already in the pipeline) under the current ordinance. 

The Planning director's memo to the Joint City-County Planning Committee (below) is a must-read. :)

Onward & upward,
John

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"Overall, the Planning Department believes that Durham’s current sign ordinance is a strong and effective ordinance that does not need major revision.  It appears that various community groups and many citizens support the City’s current approach to sign regulation.  The Planning staff and City Attorney’s office are not eager to make major changes in an ordinance that has worked well over the years, especially since making such changes in a manner that does not invite litigation will be extremely difficult."

MEMO

Date: March 3, 2010
To: Members of the Joint City-County Planning Committee 
From: Steven L. Medlin, AICP, City-County Planning Director
Subject: Sign Ordinance Policy

Summary.  This memorandum discusses the UDO sign ordinance and raises the question of whether Durham should consider revising it, taking into consideration the potential ramifications of doing so.

Recommendation.  That the Joint City-County Planning Committee (JCCPC) provide direction on whether revisions to the existing sign ordinance should be considered.

Background.  Durham’s sign ordinance was revised extensively in the mid-1980’s and early 1990’s to address both on-premise signs and off-premise signs (commonly known as “billboards”). On-premise sign code changes occurred after formation of a large stakeholder group, work with an outside consultant in signage and sign regulation, and extended consideration by the governing bodies.  The new ordinance required large signs to be replaced with smaller signs after a ten-year amortization period, and limited the types of signs and total signage that could be placed on a property.   

The off-premise sign code changes banned off-premise signs, requiring their removal after a six-year amortization period, except for signs protected under the federal Highway Beautification Act. The protected signs are considered legal nonconformities, which may be maintained but not improved.   The off-premise signs standards were challenged when adopted, and the City spent ten years and over $1 million dollars litigating in federal court until it ultimately prevailed.

Both on- and off-premise sign code changes were supported by the business community, which advocated for a more attractive community for the benefit of citizens and business, especially new business which is perceived as being influenced by a community’s attractiveness.  The consensus, after removal of over 60 billboard structures and replacement of hundreds of on-premise commercial signs, was that Durham was a more attractive city, and since then the city has received periodic positive feedback on its appearance.  
 
The original sign ordinance underwent only minor modifications since its original adoption, and the current ordinance reflects the continuing policy direction of the Durham City and County governing bodies for over 20 years.  

Various parties, including local businesses, sign manufacturing companies, and billboard companies, have recently expressed interest in revising the sign ordinance to loosen restrictions and allow more flexibility.  Desired changes include allowing the use of digital technology for on- and off-premise signs as well as portable signs.  Others desired changes include allowing larger signs, higher signs, more signs per site, and longer periods for temporary signs, in order to increase visibility generally in challenging economic times.     

Issues.  As indicated by UDO Sec. 11.1.1, Purpose, Durham’s sign ordinance rests squarely upon what are recognized by the courts as the twin pillars of sign regulation - public safety and aesthetics.  The UDO regulates various aspects of all signs, including illumination; design, construction and maintenance; placement; and changeable copy.  The UDO strictly regulates changeable copy, and, in addition, prohibits animated or motion signs except in the Downtown Tier subject to DDRT recommendation and Planning Director approval.  It also prohibits rotating signs; windblown or inflated signs; portable signs; off-premise signs aside from nonconforming signs; obsolete signs; dilapidated or damaged signs; signs constituting traffic hazards; most signs located in the right-of-way; and all other signs not otherwise listed in the ordinance.  It establishes which signs are allowed without a permit or allowed in the right-of-way, and imposes specific criteria
 they must meet.  It also establishes which signs are allowed with a permit.  Standards for freestanding signs and landmark signs are included and common signage plans are required for many commercial developments.

Not surprisingly, new digital technologies have created interest in revising Durham’s sign ordinance, as noted above.  The technologies allow for signage that is very different from what existed when Durham’s ordinance underwent comprehensive revision.  They can be used on any signs, including portable signs, and allow for constantly changing brightly lit copy.  They can include audio and stimuli such as smells, convey personal greetings or dial the cell phones of approaching viewers, and monitor car radio frequencies to create advertising appropriate to a particular demographic.  They also have other interactive potential.
 
Sign regulation is a legally challenging area and changes in sign ordinances often lead to litigation.  The law is clear that billboards can be regulated more strictly than other signs, and even banned entirely.  However sign ordinances are, overall, a legal mine field and Durham’s experience in spending large amounts of taxpayer dollars to defend its billboard ordinance was (and is) not unusual.  Many communities are currently involved in sign litigation.  Most litigation involves the new digital technologies, as some communities are trying to remove signs that were created under ordinances that did not clearly disallow them. Fortunately, Durham’s ordinance is clear in its restrictions in that regard.  

Changing sign ordinances requires careful consideration of  public safety and the community’s aesthetic values regarding community appearance,  economic development, and property values.  Unfortunately, public safety data lags a bit behind the new technology, although information can be extrapolated from safety studies regarding driver distraction generally.  

Studies specific to digital technology are currently being conducted by the Federal Highway Administration and others that may provide more targeted, credible data and result in the initiation of  federal standards.  Many communities, large and small, are therefore opting to impose moratoriums on digital signs, ban them altogether, or simply decline to revise their ordinances until the information is available.

With regard to aesthetics, communities overall have different aesthetic values and appearances, and citizens within those communities have differing perceptions of what is and is not attractive.  The Triangle communities – Raleigh, Cary, Chapel Hill, and Morrisville – have tight sign regulations whereas Burlington, Asheville, and Wilmington have more permissive sign regulations, and as a result, more signs, including digital signs.  In October 2009, Watauga County (Boone, Blowing Rock) prohibited all new billboards and conversion from standard to digital following citizen complaints about three recently-erected digital billboards.

Sign ordinances must certainly be revised from time to time, but any change that negates public safety as a primary regulatory rationale in one area or alters the community’s aesthetic standards opens the door for analogous changes in other areas.  Also, if the local government can no longer justify a sign standard on public safety or aesthetic grounds, it becomes subject to successful challenge.  Sign litigation nationwide bears this out: local standards that apply the public safety or aesthetics rationales equally and avoid exceptions without adequate justification are likely to be upheld.  Exceptions or changes in one area invalidate the provision or become a slippery slope leading to similar changes in other areas.  Any revisions must therefore be carefully tailored to create defensible standards and retain the local government’s authority to regulate in the interests of its citizens.
      
Overall, the Planning Department believes that Durham’s current sign ordinance is a strong and effective ordinance that does not need major revision.  It appears that various community groups and many citizens support the City’s current approach to sign regulation.  The Planning staff and City Attorney’s office are not eager to make major changes in an ordinance that has worked well over the years, especially since making such changes in a manner that does not invite litigation will be extremely difficult.  

In particular, staff is concerned about a) allowing digital billboards without allowing the same digital technology for on premise signs;  b) the difficulty of legally limiting the number of digital signs, whether on- or off- premise, without inviting litigation; c) the effect of digital signs on public safety;  d) the effect of digital signs on Durham’s appearance, because they are eye-catching and compete with the surrounding constructed and natural environment; and e) allowing signs which are currently nonconforming and might reasonably be expected to come down in the next ten to 20 years to be upgraded to stronger and more permanent construction.  

Staff would appreciate the JCCPC’s input regarding whether major changes to Durham’s sign ordinance should be considered.  This guidance might send a signal to parties interested in changes regarding whether they should be pursued, or dropped.  It could also save considerable staff time and public time that might be spent considering such requests.
Alternatives.  The JCCPC could determine that no direction is required at this time.

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