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HomeMy WebLinkAboutMinutes 2015-07-08TOWN OF ITHACA CODES AND ORDINANCES COMMITTEE Meeting of July 8, 2015 6:35 p.m. - 8:28 p.m. Minutes Present: Bill Goodman, Chair; Pat Leary, Yvonne Fogarty, Susan Ritter, Director of Planning; Chris Balestra, Planner; Mike Smith, Senior Planner; Bruce Bates, Director of Code Enforcement; Susan Brock, Attorney for the Town; Paulette Terwilliger, Town Clerk Absent: Bill King, Eric Levine, and Eva Hoffmann No Quorum 1. Member comments/concerns. Bill G. welcomed Yvonne Fogarty as an official member of the committee. 2. Approval of May 13, 2015 COC Minutes. Susan Brock and other committee members provided corrections, but committee could not vote without a quorum - consideration of approval moved to next COC meeting. 3. Discussion of U.S. Supreme Court Sign Case Decision - memo by Susan Brock, dated June 29, 2015 (attachment). Bill G. stated that his takeaway from the recent court decision is that we do not have to change our sign law because of the ruling. He turned to page 4 of Susan's memo, pertaining to one-time event signs. Susan suggests that we do not even look at singling them out. She added that the town should look at the ruling with two thoughts in mind: 1) did we go too far or regulate things that we shouldn't have been regulating? 2) was the case going to open up areas of regulation where we had stayed away from because of content -based concerns? Bill G. asked about Justice Alito's comments on off -premises signs and the ruling distinguishing between on and off -premises signs. Justice Alito stated that regulating off -premises signs would not be content -based. Yvonne asked if that meant, for example, that a barbeque business' sign placed half a mile away from their business, on another property, is an off -premise sign? Susan responded yes and Bill G. stated that those off -premise signs are the signs we prohibit and the type of sign that the agricultural businesses have wanted. Bill G. asked if this prohibition on off -premises signs would come into play with the wayfinding signs being promoted through the Tompkins County Wayfinding Program. Chris and Susan were not sure yet, as this was a new program. Susan went on to explain that the proposed wayfinding signs were all to be located within state or county rights -of -ways. The town doesn't currently regulate those; in fact, they may fall under the NYS State Sign Program restrictions. Chris contacted the NYS DOT a while ago for guidance on regulating signs within a state or county right-of-way and their response was confusing. We need to have them clarify some things. Apparently, the state set up their sign program through the Federal Highway Beautification Act, but that there is some language in their law that says that local ordinances are not usurped or abrogated. Susan hopes to talk to a state lawyer to figure it all out. Bill G. thought anything within the state or county rights -of -way were not under our control and Susan replied that that is precisely what is in question. Getting back to the Supreme Court case, Susan then talked about the Justices' reference to "governmental" signs which she has been reviewing. The case that was referenced had to do with a religious monument and the court ruled that the monument in the park amounted to government speech and that the government could say whatever they wanted. There was another case with words on a license plate and the same ruling was made; a specialty plate is government speech and you don't apply strict scrutiny. The question is: do we simply exempt all government signs? Sue responded that the town's previous sign law used to explicitly exempt government signs. Discussion followed to consider whether government signs are subject to our laws. Susan thought it was unclear and she would like to research it more. Susan said we can exempt directional signs and signs dealing with traffic safety. Discussion followed and Susan noted that if the town has never had the authority to regulate certain signs, then we don't have to address them at all in our sign law. If the applicant can show us that we do not have the authority and that they do not have to comply, then we don't have to address it in the law. She added that the same concept held true for the county wayfinding signs, noting that our law does say "any sign required by law is exempt". Bill G. stated that he still didn't understand why we can't allow off -premises signs in some zones and regulate size and time. Chris responded that this might be an enforcement nightmare for staff and that anyone, including a billboard company, could request an area variance from the size and time restrictions. Bill G. thought maybe the town could look at overlays within a zone that would allow certain signs and develop special regulations for those. Chris responded that one consequence of that idea is that anyone within an overlay zone - including a commercial entity - would be permitted to put up off -premise signs in that overlay zone, not just agricultural businesses (E & V propane, Ithaca Beer Company, Greentree Garden Center, International Climbing Machine, Rodeway Inn, any of the Maguire car dealerships, Wendy's, Arby's, etc.). Bill G. recapped some of the other factors the committee previously discussed, such as allowing larger signs for those with larger parcels of land allowed, noting that each time we have come back to a number of problems. Bill G. moved on to a review of the mural regulations, noting that the committee had determined that there would be a separate law to regulate murals, that Susan would work with the Portland law, and that there would be a reference in the sign law with the location of the mural law and a definition with a statement that a mural is not a sign. Bill G. wondered if we should have that in place concurrently with the sign law and Susan thought that could be done while the other boards review the draft sign law. Bill G. stated that for now the next step is moving the sign law forward to the Town Board, which will be done with a quorum next month. The Town Board can then refer the sign law to the Planning and Zoning Boards for comments. 4. Initial Discussion of Potential Revised Regulations Pertaining to Domestic Animals - memo and materials by Mike Smith, dated June 30, 2015. Mr. Smith was available to answer questions regarding the materials the committee received in their mail out and noted that he divided the issues into two separate items: regulating domestic animals and specifically regulating chickens. The memo he provided touches on both items and the attachments he included contained a lot of information on chickens and other municipal laws regulating them. He stated he wasn't sure what direction the committee wanted him to go with in regard to these potential regulations. 2 The committee members who were present suggested that the town look at regulating chickens separately from other domestic animals. One item that would need modification would be the definition of domestic animals. Bruce noted that the ZBA had to recently clarify through an interpretation whether guinea hens were considered chickens or "similar," in which case they would not be allowed. Bill G. stated that we could look at the definition of domestic animals and see if any change should be made and then separately work on a chicken ordinance. The committee members present agreed. Yvonne noted that properties in the Conservation Zone and non-agricultural use parcels in the Agricultural Zone cannot have domesticated animals as a permitted accessory use. She stated that that seemed odd, and that she herself lived on a non -farm parcel in the Agricultural Zone. The question turned to whether the town should create a separate law for chickens, or could we revise and integrate regulations regarding chickens into our existing Zoning Code? Susan explained that the Town of Lansing's recent law regarding chickens allows chickens by right in some zones but not in others. Mike noted that some municipalities tie the number of chickens allowed to the size of the parcel. Pat recommended that the town only allow chickens with a lot of restrictions. She was particularly concerned about the way chickens would be kept and wanted to explore ways to make sure they would be kept in a humane way. Discussion followed and the other committee members that were present were not in favor of that level of regulation. Pat also expressed concern about close residences in the medium density and high density zones and issues that could arise related to noise, smell etc. and other nuisances. One member of the committee noted that the noise and nuisance caused by dogs was much larger than that caused by chickens and dogs were not regulated at all. Chris stated that she only recently discovered that a neighbor of hers in the city, on a similarly -sized 6,000+ square foot lot with 5-10 feet separation from residences, started having chickens. She added that the property was so clean and animals so quiet that she never even noticed until she saw them walking around in the neighbor's yard. By contrast, Chris noted that her other next door neighbor had toys and junk all over their yard and a child that never stopped screaming. Bill G. recapped that the sense of the committee was to take "chickens" out of the domesticated animal definition, to then look at and revise the definition, and finally, create new regulations around keeping chickens. The committee was asked to save the materials that were mailed out for this topic and to come prepared to discuss the topic again at the August COC meeting. Susan and Sue stated that they would not be at the next COC meeting. Chris will send an email out to members to see if there will be a quorum for the meeting. 5. Other Business. Next meeting date tentatively scheduled for August 12, 2015. Potential agenda items: Referring sign law to the Town Board & continue discussion on regulating chickens and other domestic animals. K SUSAN H. BROCK Attorney at Law 12 Pheasant Way Ithaca, Ne" York 14850 Tdephone: 607-277-3995 E-mail: brock@c1arityconnect,com Facsnidc: 607-277-8042 TO: CODES AND ORDINANCES COMMITTE1 FROM: SUSAN BROCK SUPREME COURT SIGN CASE DATE: JUNE 29, 2015 The U.S. Supreme Court issued its decision in the Reed v. Gilbert sign lakv case on June 18, 2015 C� (attached). As explained more fully below, I do not believe this decision changes the case law C that New York and federal courts have been applying to New York municipalities. C In Reed v. Gilbert, a church that used temporary directional signs to guide people to its temporary locations challenged the Town of Gilbert, Arizona I s sign law, which imposed size a time limit requirements. The Court determined that the Town's law is unconstitutional because 1� it is content based and fails to meet the strict scrutiny test. Justice Thomas wrote the majority opon, which had six justices sigried onto it. There were also three concurring opinions, with three justices agreeing the taw is unconstitutional, but that is all they agreed on with the majorit There were no dissents. The Town of Gilbert's sign law prohibits the display of outdoor signs without a permit, unless the sign falls under one of 23 categories of signs exempted from that requirement. The cateaories include ideological signs, political signs and temporary directional signs. Ideological C 1' C C C sians a -re treated the most favorably of these three categories in terms of how long they could C C remain in place. Temporary directional signs were treated the least favorably in terms of size and time limits. The Court found that this regulation of suns based on their function or purpose is a content based regulation: C� -Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Some facial distinctions based on a messa-e are obvious, defining regulated speech by particular Subject Z11 Cl C matter, and others are more subtle, definina re-ulated speech by its function or purpose. Both Z� C are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny." (citations omitted) Content based regulations are subject to strict scrutiny, which is the hiahest level of scrutiny. C C Under strict scrutiny, a restriction is constitutional only if it fulfills a compelling governmental L- Memo to Codes and Ordinances Committee June 29, 2015 Page 2 interest and is narrowly tailored to achieve that interest. Courts rarely find that sign laws meet this test. The U.S. Supreme Court said the Town of Gilbert's law did not meet the strict scrutiny test, because even if the preservation of aesthetics and promotion of traffic safety are compelling interests, the law is "highly underincILISive." The Court said the Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town when other types of signs create the same problem. It also said the Town did not show that temporary directional signs pose a greater threat to public safety than ideological or political signs. The Court found C� y C) C� that the Town did not meet its burden to show its law is narrowly tailored to further a compelling government interest. .:1 The majority opinion contains language about types of sign regulations that are not content based and thus Would be permissible: "The Town has ample content -neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to C� 0 C) do with a si-n's message: size, building materials, lighting, moving parts, and portability. 0 CD C� lighting, ZD And on public property, the Town may tong go a way toward entirely forbidding the posting tn 0 of e, signs, so tonas it does so in an evenhanded, content -neutral manner." n C) The majority opinion also mentions some limited types of content based sign regulations that might survive strict scrutiny: "At the same time, the presence of certain signs may be essential, both for vehicles and C) pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and C5 passenge rs —such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses —well might survive strict scrutiny." The New York State courts and the federal Second Circuit Court of Appeals (and consequently the New York federal district courts) typically consider distinctions based on a sign's function to be content based distinctions, with limited exceptions for public safety signs. I believe a New York State court or the Second Circuit would have ruled the same way the U.S. Supreme Court did. So the U.S. Supreme Court's opinion does not change the way the COC has been 0 approaching the rewrite of the Town of Ithaca's sign law. (By contrast, the rules have just ID changed drastically for municipalities in those states where the federal circuit circuits had allowed regulations based on function or purpose and prohibited just viewpoint discrimination.) Justice Alito's concurring opinion (in which two other Justicesjoined) contains a list of sign regulations that these Justices say are not content based. (However, as diSCLISsed more fully below, Justice Kagan's separate concurring opinion calls into question the one-time event signs on the list.) Justice Alito's list was not included in the majority opinion, so it is not binding on lower courts. But except for the item called into question by Justice Kagan, I doubt any court Would find the remaining items to be content based. Here is Justice Alito's list: C, "Rules regulating the size of signs. These rules may distinguish among signs based on an Cn t� t� y content -neutral criteria, including any relevant criteria listed below. Memo to Codes and Ordinances Committee June 29, 2015 Page 3 111h 111dy fr"Ua"Lollyl. I IJQI�� V1'TC's­-11r&J_A1SL111*L1 between freestanding signs and those attached to buildings. Rules distinguishing between signs with fixed messages and electronic signs with messages that change. C, Rules that distinguish between the placement of signs on private and public property, Rules distinguishing between the placement of sions on commercial and residential property. C t Rules distinguishing between on -premises and off -premises signs, C Rules restricting the total number of signs allowed per mile of roadway. C� Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature C L, C� do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed,* In addition to regulating signs put up by private actors, government entities may also erect their own C� signs consistent with the principles that allow governmental speech. See Pleasant C Grove City v. Summunt, 555 U. S. 460, 467-469 (2009). They may put up all manner of signs to promote safety, as well as directional signs and signs pointing out historic sites and scenic spots. *Of course, content -neutral restrictions on speech are not necessarily consistent with the First Amendment. Time, place, and manner restrictions "must be narrowly tailored to serve the uovernment's legitimate, content -neutral interests." Ward v. Rock Against Racism, 491 US. Z� C 781, 798 (1989). But they need not meet the high standard imposed on viewpoint- and content -based restrictions." Justice Kaaan's concurring opinion (in which two other Justices joined) calls into question zr Justice Alito's inclusion of one-time event signs on e thlist of signs that are not content based: C� Cl "Even in trying (commendably) to limit today's decision, JUSTICE ALITO's concurrence hiahliahts its far-reachin- effects. o According to JUSTICE ALITO, the majrity does not C� Z7 C•C7 subject to strict scrutiny reRtlations of **signs advertising a one-time event," Ante, at 2 (ALITO, J., concurring ). But of course it does. On the majority's view, a law with an exception for Such signs "singles out specific subject matter for differential treatment" and "defin[es] regulated speech by particular subject matter." Ante, at 6, 12 (majority opinion). Indeed, the precise reason the majority applies strict scrutiny here is that "the Code singles out sians bearing a particular message: the time and location of a specific event." Ante, at 14." Memo to Codes and Ordinances Committee June 29, 2015 Page 4 I auree with Justice Kaaan's reasonin- and believe one-time event si-ns are content based 7 47 0 P1 the reasoning in the majority opinion. For this reason, I do not recommend that the Town 0 Ithaca single Out one-time event signs for special regulation. Justice Alito's concurring opinion is the only opon that mentions off -premise sign regulation and it includes them in the list of recrulations that are not content based. However, I believe of C� 11 premise sign regulations are content based per the majority opinion's approach. But past U.S. 0 Supreme Court opinions have nonetheless allowed municipalities to ban off -premise signs, so t zn Town of Ithaca is on safe ground (for now, at least) in continuing its ban. C) Justice Alito's list also says government entities may erect their own signs consistent with the principles that allow governmental speech. I will review my previous research on that issue and report later on whether the COC micrht want to add more exceptions for government signs. My memory is that some New York state and/or federal Courts have not looked favorably on exemptions for government speech. C� The latest draft Town of Ithaca sign regulations ("4-08-15 Working Copy" version) appears to pass Muster under the Reed v. Gilbert approach. The list of prohibited signs and displays in § 22 1-4 is content -neutral, as it does not prohibit signs based on their function or purpose. The public safety and public emergency signs exempted by § 221-5 should fall under the list of L� tn content based "essential" "might well" survive strictV signs that the majority opinion says "mig Scrutiny. We also have a good argument that the exemption for signs that are required by law is either content -neutral, or survives strict scrutiny because this exemption is narrowly tailored for "essential"' signs.