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Sign Code Case Study Location: Oregon Background Regarding Sign Owner and Application Procedure. In December 2001, a regional car dealer received permission from the Planning Department of a rapidly urbanizing community to develop a retail site along a busy highway corridor leading to the coast. Originally, this highway passed through the town’s central business district. Approximately 20 years ago, a new route was constructed that bypassed this district, requiring the creation of commercial districts along the course of the new road to attract new businesses and retain former “Main Street” businesses that would otherwise flee. The results of rezoning were quickly evident: commercial properties soon lined the corridor, in keeping with the zoning. The regional car dealer’s proposed development of a new and used car sales facility was also in keeping with the zoning and the neighboring commercial properties. The car dealer wished to place an electronic message center on the used car portion of the property, as part of an approximate 100 square foot freestanding pylon sign. Although the town’s code was mostly content-neutral and provided for placement of electronic message signs (defined as “animated signage”), the allowance imposed severe size limitations. In contrast to other commercial signs along the corridor that could equal 1.0 square foot per foot of street frontage, up to a maximum of 100 square feet, the electronic message sign could be no more 10 square feet, “except as permitted in a sign program.” The “sign program” functioned as a variance provision, subject to certain approval criterion, several of which patently called for subjective determinations:
The objective criteria concerned height—not to exceed 30 feet, and for “animated signs” a special size criterion—no more than 30 square feet. On December 5, 2001, the sign company owner, on behalf of his customer, submitted a sign application. The property’s frontage of 240 linear feet satisfied the request for an approximate 100 sq. ft. sign, and the proposed height of 30 feet was permitted under the sign program criteria. The proposed message center of approximately 30 sq.ft. in size was also permissible under the program. The applicant additionally pointed out that the speed of passing traffic (45-55 mph), number of lanes (2 each way) and setback (20 feet) dictated a need for a sign larger than 10 sq.ft. to assure safe detect, read and react distances. The proposed change of message interval was 4-5 seconds, and the message of 2-3 lines would be “on/off” as opposed to another message center two blocks away that scrolled a one-line message. On December 18, 2001, the application was denied by the Sign Committee—the authority designated by the city to make the first decision. A review of the minutes of the Committee’s discussion after the applicant had left the room discloses that the denial was based on stated perceptions that the “sign had no special value,” “there was nothing unique about the sign that would warrant approval,” and “the ability to flash messages was ripe for abuse.” One committee member opined that car dealers typically put up temporary banners, flags, and whatever they want to, and stated he was “heavily against recommending approval.” The applicant asked the Planning Commission to reconsider the Sign Committee’s denial. On January 10, 2002, the Planning Commission upheld the denial, based upon the applicant’s failure to meet the “theme and compatibility” elements of the sign program criteria. On January 14, 2002, the applicant appealed this decision to the City Council. Appended to the appeal was an analysis by a signage expert which discussed the Constitutional issues arising from the denial of the sign without stated reason or objective evidence. The city’s community development director submitted the appeal to City Council, with the following statement, “The sign code was developed to keep attractive, viable commercial areas. This sign is inconsistent with the applicable criteria and these goals.” The director did not explain how or why the sign was aesthetically deficient. On February 4, 2002, the City Council upheld the denial. The city appeal procedures require one more go around at City Council before a land use issue is ripe for appeal to the Oregon Land Use Board of Appeals (“LUBA”). The applicant at this point hired legal counsel, and the city was advised that the final administrative appeal would be filed. Upon learning that the sign company and car dealer were not going to go away, the city attorney suggested a meeting between city planning representatives and the sign company owner to see if a compromise could be worked out. This meeting occurred on February 24, 2002. The compromise offered by the city was that the sign should be (1) monument style, no taller than 8 feet with the message center to occupy the lower 5 feet, (2) constructed of brick or natural rock with natural finished metal or engraved lettering and wrought iron accents, and (3) surrounded by a 150 sq.ft. landscaped area containing historic period lights—2 or 3 at $7,000 a pop. The offer continued: The message intervals should be no more than once every two seconds, the applicant should enter into an agreement to this effect, and the applicant should agree to include in the agreement a penalty provision for violation of the two-second rule. The applicant refused this offer of compromise, and advised he would proceed with the final administrative appeal. The hearing was set for March 18, 2002. Prior to the hearing, the applicant’s attorney forwarded a letter to the City Council and City Attorney that reiterated the signage expert’s analysis that the code as applied to the applicant was unconstitutional under both the U.S. Constitution and the Oregon Constitution. Additionally, the letter alleged an unconstitutional system of prior restraint because the ordinance failed to contain narrow, objective, and definite standards to guide the permitting authorities. The bottom line, according to counsel, was that the ordinance could not withstand constitutional scrutiny, either on its face or as applied in the instant matter; therefore, the sign should be approved. On March 18, 2002, the City Attorney recommended that the City Council approve the sign application, based upon findings that 1) there was a consistent theme throughout the sign, 2) the animated portion of the sign did not exceed 30 feet in size, and 3) the sign was consistent with the dealership’s other sign on the “new car” sales lot. The City Attorney observed, “the denial of the application would not have much chance of being upheld in the face of a constitutional challenge [and] the City could be liable for damages plus attorney’s fees if the applicant is successful upon appeal.” Following the City Attorney’s findings and recommendation, the Council approved the sign. The story did not end however on that date. A disgruntled Planning Commission member filed an appeal of the decision to LUBA, further delaying the applicant’s ability to proceed with constructing and placing the sign. After several legal maneuvers, LUBA concurred that the ordinance invested too much discretion in the permitting authority, and that the City’s invalidation of the Planning Commission’s denial was legally correct. During the pendency of the LUBA appeal, the city amended its code to make it more definite and certain, and to bridle some of the Planning Commission’s formerly “unbridled” discretion. Subsequent to this amendment, but before the car dealer was able to obtain his sign (because the LUBA appeal required the parties to remain “status quo” until resolution), a national retailer moved to town, and obtained near immediate approval for placement of its standard electronic message center. The car dealer was unable to place his sign until March 3, 2003—15 months after submitting his application. The perseverance of the car dealer’s sign company paved the way for others to receive speedy approval of their variable message signs. |
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