Loading...
HomeMy WebLinkAbout1981-11-24; City Council; 6819; Sign RegulationI A- CIT. 3F CARLSBAD - AGENDA. AILL \B#Z I TITLE: I ATG. 11-24-81 IEPT. CA SIGN REGULATION DEPT. HD. CITY ATTYE!! CITY MOR.- RECOMMENDED ACTION: If the City Council concurs with the recommendations of the Planning Director and the City Attorney, your action is to refer the matter to the Planning Commission for public hearing. ITEM EXPLANATION: The City Attorney's memorandum dated October 22, 1981 outlines the new law regarding sign regulation. The attached ordinance will bring Carlsbad's sign ordinance into conformity with the most recent U. S. Supreme Court decision on the subject. In addition, the ordinance will permit the City to begin a program of enforcement against nonconforming signs erected prior to the adoption of the ordinance and will give the sign owner an opportunity to present evidence to Council that the sign has not been amortized and should be allowed to remain for a longer period of time. The Planning Director has determined that the time limits for removal of nonconforming signs under the original sign ordinance has run and recommends adoption of the proposed ordinance so that his efforts at enforcing the ordinance can proceed. FISCAL IMPACT: Removal of amortized signs will cause some financial burden on the sign owners. Enforcement of the ordinance will be handled out of the operating budgets of the Planning Department and City Attorney's Office and no specific impacts can be identified. The cost of removal of signs by city personnel will be recouped from the sign owner. EXHIBITS: "i Ordinance No. y&f . Memorandum from Planning Director, dated November 2, 1981. Memorandum from City Attorney, dated October 22, 1981. MEMORANDUM DATE : November 2, 1981 TO: City Attorney FROM : Planning Director >H SUBJECT: REVISIONS TO SIGN ORDINANCE AND NONCONFORMING SIGNS Attached is a list of the non-conforming signs in the city. The time limits for removal of all of these signs pursuant to Section 21.41.080 of the Municipal Code has elapsed. Section 21.40.080 was adopted and became effective in its present form (Ordinance 9348) on April 20, 1973, over 8 and 1/2 years ago. The Planning Department believes that the revisions to the Sign Ordinance as proposed by your office will help greatly in enforc- ing the removal of these non-conforming signs and in advancing the continued implementation of the Sign Ordinance. One of the purposes of the Sign Ordinance is to preserve the vis- ual quality and scenic nature of the city. Considerable planning has been done along the city's major arterials (i.e., Scenic Highways Element), in the industrial areas (i.e., the Planned Industrial (P-M zone) and in the Downtown Redevelopment Area (i.e., Village Design Manual) to preserve and enhance the aesthe- tic quality of the city. Staff believes that the non-conforming signs have a negative impact on the visual character of the city and its on-going planning efforts. All of the non-conforming signs are located near major streets with high traffic volumes (both vehicles and pedestrian). There- fore, removal of the signs is necessary to promote traffic safety and insure the safe use of city streets and sidewalks. Finally, one of the basic premises of the Sign Ordinance is to allow adequate identification to all business properties but not to allow undue advertising which tends to obliterate or be con- fused with neighboring signs or degrade adjoining property values. Presently, the businesses operating the non-conforming signs enjoy signing rights not allowed other businesses since all other businesses must comply with the Sign Ordinance. Removal of the non-conforming signs will result in equal treatment of all properties. For all of the above reasons, including visual quality, traffic safety, fair and reasonable business identification, the Planning Department requests and supports your efforts at enforcing the provisions of the Sign Ordinance. JCH: MJH:wl Attachment: List of Non-conforming Signs MEMORANDUM DATE : November 19, 1981 TO: Mi chae 1 Holzmill er FROM : Paul Klukas SUBJECT: NON-CONFORMING SIGNS IN CITY As well as I can determine, this list contains the non-conforming signs in Carlsbad. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Big Bear (Poinsettia Plaza) and Tony's No. 2 Restaurant (1025 Elm Avenue). Have two freestanding signs up to 71 feet high. May have only one, up to the maximum height of the build- ings. Bakers Tacos (2952 Harding Street). Freestanding sign may be no higher than height of the building. Shell Station (1145 Elm Avenue). Freestanding sign 60 feet high. May be no higher than 35 feet. Bus Stop Restaurant (3016 Carlsbad Boulevard). Roof sign not allowed. Must be below roof line. Ocean Manor Apartments (2950 Ocean Street). Roof sign not allowed. Texaco Station (945 Tamarack Avenue) . Freestanding sign 50 feet high. May be no higher than 35 feet. Henry's Restaurant (264 Elm Avenue). Roof sign not allowed. Wayside Inn (3050 Pi0 Pic0 Drive). Roof sign not allowed. Carlsbad Liquors (2998 State Street). Roof sign not allowed. 7-11 Food Store (201 Oak Avenue). Freestanding sign higher than roof line. Wueste Realty (3126 Carlsbad Blvd). Roof sign not allowed. O.J. Creel Realty (3055 Madison Street). Roof sign not allowed. 13. Carlsbad Car Wash (2608 State Street). Freestanding sign higher than roof line. 14. McDonald Pharmacy (2898 State Street). Identification sign higher than roof line. 15. Coin-op Laundry (2599 State Street). Identification sign higher than roof line. PJK:wl -2- MEMORANDUM DATE : October 22, 1981 TO : Mayor and City Council FROM : City Attorney SUBJECT: SIGN REGULATION In mid-1979, in response to the California Supreme Court decision in Metromedia, Inc. v. City of San Diego, our office prepared a memorandum outlining the City's options with regard to sign regulation. At that time the Council indicated a desire for strict enforcement of the sign ordinance. Pursuant to that direction our office prepared an ordinance which would bring the City of Carlsbad regulations into conformity with the then existing constitutional restrictions. That ordinance was never presented to the entire Council for consideration. As a result, removal of many nonconforming signs within the city has not taken place. Earlier this year the U. S. Supreme Court came down with their decision in the Metromedia, Inc. v. City of San Diego case. By a plurality decie's sign ordinance an First Amendment grounds. The courts analysis is complicated by the different approaches taken by the two opinions which conclude that the ordinance is invalid, and the three which conclude that it is valid. The five opinions total eighty-two pages. Somewhat sympathetic to the plight of city officials, Justice Rehnquist wrote in his opinion, "...it is a genuine misfortune to have the court's treatment of this subject be a virtual Tower of Babel, from which no definitive principles can be clearly drawn." The City Attorney of San Diego and his deputy who tried the case summarized the case as follows: "1. Justice White, joined by Justices Stewart, Marshall and Powell. a. Because this ordinance is not a total ban on outdoor advertising it is not necessary to decide if such a ban would violate the First Amendment 1 . -. Mayor and City Council -2- October 22, 1981 guarantee of free speech. [It is implied that such a ban may be unconstitutional.] b. As to restrictions on commercial speech which concerns lawful activity and is not misleading, the First Amendment is not violated if the restrictions: 1) seek to implement a substantial governmental interest; 2) directly advance that interest; and 3) reach no farther than necessary to accomplish the objective. c. San Diego's ordinance meets this test as to commercial speech--traffic safety and the appearance of the city are substantial governmental goals and the different treatment for some commercial signs, e.g. on-site, is reasonable where other interests outweigh the main goals. d. The First Amendment gives noncommercial speech a greater degree of protection than commercial speech. San Diego's ordinance gives greater protection to commercial than to noncommercial speech--there is a broad exception for on-site commercial signs but no similar exception for noncommercial speech. e. The ordinance allows some noncommercial signs while prohibiting others without regard to their effect on traffic safety or aesthetics. f. Because the ordinance reaches too far into the realm of protected speech, it is unconstitutional. 2. Justice Brennan, joined by Justice Blackmun, concurring. a. This ordinance presents the total ban question since its practical effect is to eliminate the billboard as an effective medium of communication. Mayor and City Council -3- October 22, 1981 b. A ban on billboards does not violate the First Amendment if a city can show that a sufficiently substantial governmental interest is directly furthered and any more narrowly drawn restriction would promote less well that goal. c. The City has not provided ade- quate justification here. The ordinance is not narrowly drawn to accomplish traffic safety and there is no showing that the interest in aesthetics is substantial in commercial and industrial areas. d. Disagrees with plurality's view that an ordinance totally banning commercial billboards but allowing noncommercial bill- boards would be constitutional. Such an ordin- ance would allow city officials to determine if a sign is commercial or noncommercial before approving a sign and the distinction is far from clear. 3. Justice Stevens, dissenting. a. Agrees with plurality that the ordinance is not unconstitutional due to its distinction between on-site and off-site commercial signs but disagrees with their conclusion that it is invalid due to its treatment of noncommercial signs. b. The question of whether a city may entirely ban a medium of communication is raised by this ordinance. The constitution- ality of such a ban involves two questions: 1) is the regulation biased in favor of one point of view or another or a means of controlling controversial subjects from public debate, or 2) is the market which remains open for commun- ication ample and not threatened with gradually increasing restraints? The ordinance and its exceptions do neither and are thus valid. Mayor and City Council -4- October 22, 1981 4. Chief Justice Burger, dissenting. a. The courts' disposition results in cities electing between two unsatisfactory options: a) allowing all noncommercial signs; or b) forbidding all signs. The opinions suggest that the second option may be withdrawn. b. The exceptions to the ordinance's prohibition are few, are narrowly tailored to peculiar public needs and do not remotely endanger freedom of speech. c. [Citing Justice Brennan's opinion]. The plurality's treatment may very well create the danger of discretion having the potential for becoming a means of suppressing a particular viewpoint by allowing municipal officials to determine what is and is not noncommercial speech. 5. Justice Rehnquist, dissenting. a. Aesthetic justification alone is sufficient to sustain a total prohibition of billboards within a community. b. The limited exceptions do not render the ordinance unconstitutional. c. A city should not be put to the task of convincing a local judge that the elimination of billboards would have more than a negligible impact on aesthetics as Justice Brennan opines. " Our own reading of the Metromedia decision leads us to believe there were sufficient votes on the Supreme Court to uphold stricter requirements within the City of Carlsbad than the Court would allow in the City of San Diego. The reason for this is Carlsbad's unique location, its consistent efforts to have attractive and aesthetically pleasing commercial and industrial zones and the fact that Carlsbad does not have an abundance of existing billboards. Therefore, despite the similarities between the Carlsbad ordinance and the San Diego ordinance, we believe that Carlsbad's ordinance, with some modifications, would be found to be constitutional. One of the revisions suggested is that the City allow noncommercial messages by the owner or occupant of the property. This modification will overcome the objection that the ordinance discriminates in favor of commercial speech over noncommercial speech. Mayor and City Council -5- October 22, 1981 ordinance accomplishes that revision. Findings are included in Section 1 of the attached ordinance to ensure a foundation for our sign regulations. Section 3 of the ordinance readopts the existing sign ordinance with certain amendments which are discussed in this memo. The proposed ordinance also adds amortization appeal provisions to the sign code. These provisions, contained in Section 4 of the ordinance, are substantially the same as those proposed in 1979. The amortization appeal provisions provide a hearing process to allow a sign owner to appeal the order to take down the sign. The amortization provisions will help ensure that the city does not have to pay for any signs ordered to be removed. In our opinion, there is sufficient evidence for the Council to find that all signs erected prior to the adoption of the existing sign ordinance have been fully amortized. The ordinance was originally adopted twelve years ago and the last amendment of the Section requiring removal of nonconforming signs was in 1974. Under the existing ordinance the person who had a sign up for less than one year before the adoption of the ordinance, had eight years, six months, to remove the sign or bring it into compliance with the code. It is clear that the time for compliance has long since passed. We have had numerous requests from the Planning Department over the past several years to enforce the sign ordinance against old nonconforming signs. Because the state of our ordinance and the uncertainty of the law in the area, we have been reluctant to enforce the ordinance and require removal of the old signs. The code is vigorously enforced against new signs whenever a request to do so is made by Planning. We are bringing this item before you at this time because we have had a recent request from the Planning Department for enforcement of the sign regulations against the Elm Street Auto Parts sign which is located on the pole holding up the Big Bear sign. Even though the sign does not comply with the orginance, it was our opinion that it would be improper to order Elm Street Auto Parts to remove its nonconforming sign, but let Big Bear and Poinsettia Plaza continue to maintain their nonconforming signs. At an office hearing we informed the sign owners that we intended to bring the matter before the City Council and to seek abatement of the entire sign. A first step in this process would be the adoption of the ordinance that is attached to this memorandum. Mayor and City Council -6- October 22, 1981 Once the ordinance is adopted our office will proceed with enforcement of the sign code against that sign and other nonconforming signs that are brought to our attention by the Planning Department. Removal of billboards erected prior to adoption of the original sign ordinance will have to wait until the ligislatively imposed statewide moratorium is either lifted or the issue of compensation for the billboards is resolved. --->, F. B'IONDO, JR., City Attorney +-. BY , ,/' DANTEL S. HENTSCHKE, 'Assistant City Attorney DSH/mla Attachment 1 2 3 4 5 6 7 8 9 10 11 19 20 21 22 23 24 25 26 27 28 .- ORDINANCE NO. 9608 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 21, CHAPTER 21.41, OF THE CARLSBAD MUNICIPAL CODE BY THE ADDITION OF SECTIONS 21.41.015, 21.41.081, 21.41.082, 21.41.083, 21.41.084, 21,41.085 21.41.086, AND 21.41.087 TO PROVIDE FOR A HEARING PROCESS FOR EXTENSION OF AMORTIZATION PERIODS FOR SIGNS AND BY THE AMENDMENT OF SECTION 21.41.050 TO ALLOW NON-COMMERCIAL ONSITE SIGNS. The City Council of the City of Carlsbad, California, does ordain as follows: SECTION 1: This ordinance is a continuation of the efforts of the City of Carlsbad to regulate and eliminate certain signs and structures in the City. This ordinance supplements the regulatory provisions of Chapter 21.41 of the Carlsbad Municipal Code. The Council recognizes that strict application of the provisions of Chapter 21.41 may create hardships for certain property regulated by those provisions. Council also recognizes that this hardship must be balanced against the detriment to the citizens of Carlsbad caused by noncompliance with Chapter 21.41. While existing provisions of the code provide adequate relief from the strict application of its regulatory provisions, the Council finds that it is desirable to establish a special hearing procedure for relief from the amortization provisions of Chapter 21.41. The City Council finds that continued strict enforcement of the existing sign ordinance is necessary to protect the aesthetic quality of the city and is part of the city's continued efforts to promote an attractive community, The City Council recognizes that the U.S. Supreme Court in the case of Metromedia 1 2 3 4 5 6 7 8 9 10 11 19 20 21 22 23 24 25 26 27 28 Inc. v. City of San Diego has established certain strict criteria to ensure that regulation of signs does not unreasonably restrict first amendment freedoms. The City Council finds that no areas of the city are compatible with billboard usage because of the scenic nature of the city and its major arterials including, but not limited to, Carlsbad Boulevard, El Camino Real, Interstate 5, and Palomar Airport Road and because Carlsbad's commercial and industrial areas have been planned in such a manner that visual aesthetics are a primary concern. particularly the downtown commercial and industrial areas, which at one time may have been suitable for billboard uses are no longer suitable for that use because of the change the area is undergoing and because of the continued efforts by the city to upgrade these areas. The Council finds that regulation of signs including on-site signs and billboards is necessary to ensure that the social and aesthetic qualities of the city are maintained, to promote local business including tourism, and to enchance property values throughout the city. The Council also finds that prohibitions against off-site signs are necessary to prevent sign proliferation in the city. The Council further finds that regulations of signs both on and off-site are necessary to ensure the safe use of city streets and sidewalks and promote traffic safety. Older areas of the city, SECTION 2: Based on evidence and testimony presented at the public hearing, the Council finds that all signs and structures which have become nonconforming because of expiration of the time periods established by Section 21.41.080 of the Carlsbad Municipal Code are fully amortized and that failure to 2. 1 2 3 4 5 6 7 8 9 10 11 12 9 18 I- u - 19 20 21 22 23 24 25 26 27 28 immediately remove such nonconforming signs or structures will be detrimental to the public health, safety and welfare and to the intent of the citizens of Carlsbad to enhance the aesthetic quality of their city in order to stimulate economic and social benefits including tourism. SECTION 3: Title 18, Chapter 18.20 and Title 21, Chapter 21,41 are hereby readopted in their entirety except as amended by this ordinance. SECTION 4: Title 21, Chapter 21,41 of the Carlsbad Municipal Code is amended by the addition of Sections 21.41.015, 21.41.081, 21.41.082, 21.41.083, 21.41.084, 21.41.085, 21.41.086 and 21.41.087 to read as follows: "21.4 1 . 0 15 Removal of nonconforming signs. Signs or parts thereof, including sign supports, not conforming to the requirements of this code shall be abated as prescribed by law. 21 -41.081 Removal of amortized signs. Signs made nonconforming by expiration of the time period established by Section 21.41.080 shall be immediately abated pursuant to the procedures established by Sections 21.41.082 through 21.41.087. 21.41.082 Declaration of amortization; Notice of Removal. (a) All signs and structures which have become nonconforming because of expiration of applicable time period established by Section 21.41.080, are hereby deemed to be fully amortized and a public nusiance, and may be removed by any city employee at the direction of the City Manager, or his designee, upon the expiration of thirty days after written notice of such nonconformance and order of removal has been made. The actual cost of such removal shall be charged to the display owner. manner: shall be posted on the structure for sign to be removed. mail to the last known address of the display owner. shall inform the recipient of the appeal process. (b) Written notice shall be given in the following 1. Notice of nonconformance and order for removal 2. A copy of said notice shall be mailed by certified (c) Said notice shall state the date for removal and 21.41.083 Removal of sign after notice. A nonconforming sign or structure shall be rernoved by the date established on the order for removal. /// 3. 1 2 3 4 5 6 7 B 9 10 11 12 9 19 20 21 22 23 24 25 26 27 28 21.41.084 Application for extension of time for . (a) An application for an extension of time may be the owner of the property affected or by an occupant or tenant doing business on the affected property at any time prior to the expiration of the period established by the notice. Filing an application for an extension of time shall stay the period for removal until final determination of the application. on forms provided by the City Clerk and shall be verified. information: conditions relied upon as grounds for the application. (b) The application shall be filed with the City Clerk (c) The application shall contain the following 1. A full statement of the circumstances and /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 3a. 1 2 3 4 5 6 7 a 9 10 11 12 9 19 20 21 22 23 24 25 26 27 28 2. A legal description of the property involved, 3, Photographs of the sign, or signs affected, 4. The date and cost of original construction. 5, The date and cost of applicant's purchase or other acquisition of the sign or structure. 6. The dates and costs of any repairs or maintenance to the sign or structure. 7. The average monthly gross income derived from proceeds generated from the sign or structure measured over the period of existence or ownership. 8, The current value of the sign or structure. 9, A statement of whether or not the sign has been completely depreciated for federal income tax purposes and if not, the amount remaining to be depreciated, (d) Upon receipt of an application the City Clerk shall forward the application to the City Manager, The City Manager, or his designee, may review the application, conduct an investigation if necessary and make a recommendation to the City Council regarding the information contained in the application. The City Manager, or his designee, may seek information from any source in conducting the investigation, hearing and give notice of the time, place an purpose of such hearing in accordance with the procedures established by law. name of the owner, or.owners, of the property upon which the sign is located. (e) The City Clerk shall set a date for a public 21.41.085 Council action. (a) After conducting a public hearing on an application for an extension of time, the City Council may by resolution deny said application or grant such an extension of time as it finds necessary to permit the applicant to recoup his investment in the particular sign involved. A grant of extension of time shall be based on findings supported by hearing testimony or other evidence that: 1. Strict application of the provisions of this code to a particular sign is unreasonable; 2. Strict application of the provisions of this code create a hardship upon the applicant which was not brought about by an act of the applicant; 3. The provisions of Section' 21.50.030 of the Carlsbad Municipal Code have been satisfied; and 4. The hardship resulting from strict application of this code outweighs any detriment to the public caused by granting an extension. extensions of time the City Council shall consider any evidence presented as to the following matters, but not limited thereto. sign. (b) In making a determination as to granting or denying 1, Age, condition and physical characteristics of 2. Location. 3. Remaining economic life. 4. Depreciation treatment for income tax 5. Investment in the sign. purposes. 4. 1 2 3 4 5 6 7 8 9 10 11 12 0 a 19 20 21 22 23 24 25 26 27 28 6. Monopoly or advantage resulting from the fact 7. Costs to remove the sign and salvage value. 8. Extent of nonconformity. 9, Repairs or maintenance made during the period that similar new signs are prohibited. established by Section 21.41.080 shall not be considered so as to extend the time for amortization. 21.41.086 Notice of decision. A copy of the resolution made pursuant to this section may be filed with the City Clerk and the County Recorder of the County of San Diego and a copy shall be mailed to the applicant, The resolution need not be filed with the County Recorder if the resolution is a denial of the extension of time. 21,41.087 Decision final. The decision of the City Council, pursuant to Section 27.41.085, shall be final, SECTION 4: That Title 21, Chapter 21.41 of the Carlsbad Municipal Code is amended by the amendment of Section 21.41.050 by the addition of subsection (3)(F) to read as follows: (F) Non-commercial messages by the owner or occupant of the property. EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be published at least once in the Carlsbad Journal within fifteen days after its adopt ion . INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council held on the day of , I981 and thereafter // // // // // // 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED AND ADOPTED at a regular meeting of said City Council held on the day of , 1981 by the following vote, to wit: AYES : NOES : ABSENT: ATTEST: RONALD C. PACKARD, Mayor ALETHA L. RAUTENKRANZ, City Clerk (SEAL) 6.