ZTA 2004-005 – Signs: Amend Section 4.15.2, Definitions, Section 4.15.6, Signs exempt from the sign permit requirement, Section 4.15.7, Prohibited signs and sign characteristics, Section 4.15.16, Regulations applicable to certain sign types, and Section 4.15.22, Sign maintenance, of Chapter 18, Zoning, of the Albemarle County Code. This ordinance would amend Section 4.15.2 by amending the definitions of “advertising vehicle,” “banner,” “farm sign,” “flag,” “pennant,” “portable sign,” “temporary sign,” and “window sign,” and would add definitions for “rare gas illumination” and “agricultural product signs”; amend Section 4.15.6 by exempting certain window signs, flags, advertising vehicles and agricultural product signs from the sign permit requirement; amend Section 4.15.7 by deleting the total prohibition of neon signs, and by prohibiting certain types of signs using rare gas illumination, certain window signs, animated and moving signs using rare gas illumination, and certain advertising vehicles, and by exempting authorized flags from the class of prohibited moving signs; amend Section 4.15.8 by imposing a brightness standard of 30 milliamps on signs using exposed rare gas illumination throughout the county, and on all signs using rare gas illumination covered by transparent material within the Entrance Corridor Overlay District; amend Section 4.15.22 to establish maintenance standards for lighting fixtures and the sources of illumination on illuminated signs; and other nonsubstantive changes in those sections. (Amelia McCulley)
Ms. McCulley stated that this zoning text amendment is the culmination of a lot of good hard work in two years times since the resolution of intent. This is an amendment to Section 4.15 of the Zoning Ordinance, which is the sign regulations for neon advertising vehicles, commercial flags, window advertisement and agricultural product signs. The staff report contains all of the background information in terms of work session dates and so forth in the process. In conclusion, the draft ordinance has been discussed and improved through the input of a Focused Sign Committee, a community roundtable as well as a total of five work sessions with the Architectural Review Board and the Planning Commission. The draft ordinance is Attachment C. The full ordinance showing the areas of amendment is Attachment D. In terms of public purpose, staff offers that the resolution of intent was adopted and the Sign Committee was chartered by the Board because the current sign regulations in terms of these four topic areas are problematic and do not adequately reflect the community’s interest. Staff and the Commission recommended an additional amendment to provide for “agricultural product signs.” While this was not one of the four focused sign topics, it has been incorporated into the draft ordinance and serves the Comprehensive Plan goal to facilitate viable agricultural uses. The new item is the “agricultural product sign”, which the Commission has not seen in draft text, which was discussed conceptually last time. The “agricultural product sign” is as staff has drafted it an allowance for one or two signs, a maximum of 32 square feet (if two signs it would be an aggregate) that is available without a sign permit. This would allow farmers to more easily advertise products for sale. In addition to this “agricultural product sign” a farm is also entitled to a farm name sign as a separate sign, which is an exempt sign.
Staff will address the three (3) criteria which the Board has previously asked staff to discuss with text amendments.
Administration/Review Process: Commercial flags, temporary window advertisement and agricultural product signs are all recommended as exempt from the requirement of a sign permit. The recommendation is based on an intent to reduce and simplify the administration of those regulations for both staff and the applicants. While the zoning regulation of temporary window advertisement is a new provision, it will provide consistency and close the gap where it has been regulated by the ARB in the Entrance Corridors, but has not been regulated in the Zoning Ordinance by any specific regulation. She pointed out that she meant permanent window advertisement by calling what is temporary interchangeable window advertisement as truly permanent advertisement. The new provision will cause staff to spend more time because it is a new regulation.
Housing Affordability: The proposed amendment would not affect housing affordability.
Implications to Staffing/Staffing Costs: The only regulation among these which will increase the administrative burden and will therefore have staffing implications is the enforcement of temporary window advertisement violations. While our zoning enforcement program is one which is responsive to complaint as opposed to a proactive program, it is difficult to estimate the implication to staffing and staffing costs from the new regulation of temporary window advertisement. However, it is a new regulation; it will increase zoning staff responsibilities.
In conclusion, staff recommends adoption of the draft ordinance found in Attachment C.
Mr. Edgerton asked for clarification on what a pennant actually is, particularly in staff’s additional wording that it was two or more sections.
Ms. McCulley stated that a pennant is what you see often in areas that are not as regulated in terms of signage. Pennants are the triangular, typically plastic, very colorful things in a line on a string that flap in the breeze and catch your attention, which are used very often in an outdoor display of items for sale.
Mr. Kamptner stated that a single pennant could be a flag, which was not objectionable. The definition was changed because the prior definition was very vague. He stated that they were trying to narrow the strings, which was the reason the definition changed. The prior definition had no distinction between flags and pennants.
Mr. Edgerton stated that language was just referring to some multiples of triangular segments.
Mr. Edgerton asked if there were any other questions for staff.
Mr. Rieley asked for clarification, which relates to a rather long conversation that they had a few weeks ago, about governmental flags. In Attachment A it talks about the maximum of three (3) flag poles with a maximum of three (3) flags of any type governmental, commercial or otherwise and then goes on to talk about the maximum flag size as determined by the height of the flag pole, which are roughly in compliance with the information that he handed out. From reading the ordinance language it does not seen to pertain to government flags, which are shown as the second bullet.
Ms. McCulley stated that was correct.
Mr. Rieley stated that the exclusion for that is a flag representing the official symbol of a national, state or local government, which is not a sign for purposes of Section 4.1.5. A commercial flag is a flag that contains commercial speech and so forth. He stated that if he opened up a Mexican restaurant and put up a 100 foot tall flag pole with a Mexican flag on it that reaches all the way to the ground so that when the wind was blowing it would blow out 100 feet by 60 feet that it would be a 6,000 square foot sign. He asked if that would not be regulated.
Ms. McCulley stated that she would say that if it was a Mexican store or a Mexican grocery store that flag would serve to advertise that business.
Mr. Rieley pointed out that was not what the ordinance says.
Ms. McCulley stated that it would be an interesting appeal.
Mr. Kamptner stated that he would disagree with Ms. McCulley on that. Staff did not focus on generically political flags, but he felt that they need to look at what they can do in regulating those types of flags and consider that in a separate ordinance.
Mr. Rieley stated that he felt that it was an enormously significant point. He felt that it pertains to our flag as well as other countries’ flags when they are demeaned as being used as a way to attract attention to a business and the flags are displayed improperly or the proportion if incorrect relative to the height of the flag pole. With the language as it is, he would find it very difficult to support this.
Ms. Higgins stated that on page 4 on renumbered items 12 and 13 there is a residence sign that does not exceed 4 square feet in sign area. She felt that was very clear. But, then there was a residential sign which was one or more residential signs that are not illuminated signs and do not exceed thirty-two (32) feet in cumulative sign area. She asked why there is a need for a residence sign definition under exempt signs. If they are exempting the one or more signs that do not exceed 32 square feet, then she did not know why there was a need to have a definition for a residence sign. She asked if staff could explain the difference between those two definitions.
Mr. Kamptner stated that the difference is in the definition of the two terms. A residence sign is a sign directed on a lot containing a private dwelling that identifies the name of the occupant and/or the street address of the residence. A residential sign is a sign directed on a lot containing a private dwelling whose copy is exclusively noncommercial speech. This is the sign that is erected by the person who is exercising their first amendment rights of free speech. An example of that would be “Stop the War” or things like that. He stated that they are completely two types of signs. The United States Supreme Court has said that this type of sign is entitled to the highest protection. The 32 square feet is the largest allowed sign in the zoning district. Therefore, that is why it is a 32 square foot sign.
Ms. Higgins suggested that it read like the farm sign that says aggregate rather than cumulative. The residence sign would have the number on it and the person’s last name, which is equivalent to a farm sign that does not include commercial identification and does not exceed 4 square feet in sign area. She pointed out that there was a lot of existing farm signs that exceed 4 square feet in area. She pointed out that 4 square feet was very small for a sign with the farm name on it. She asked if any one in the committees evaluated the farm sign area and if it was reasonable that they could be a little more flexible than just the 4 square feet.
Ms. McCulley stated that was not one of their four topics, and she had not before now heard that complaint about either the residence sign or the farm sign. She pointed out that four square feet is used repeatedly with different types of signs such as warning signs, temporary directional signs, etc. Therefore, it is a common size. She felt that it would take some further review and maybe a different zoning text amendment to review that.
Ms. Joseph stated that one could get a 24 square foot sign in the rural areas with a permit.
Ms. McCulley stated that was correct.
Ms. Joseph pointed out that what they were currently talking about was those signs which are exempt.
Mr. Rieley stated that another important distinction is that an agricultural product sign can be 32 square feet under the new regulation.
Mr. Craddock stated that when they previously discussed governmental flags and Mr. Rieley had some examples of display that he was thinking that the United States flag had to be the tallest and the only thing on that pole. He recognized that would not go under the commercial flags, but it says a maximum of three flag poles with a maximum of three flags of any type. He stated that was probably what got this started in the first place because of an American flag with something under it.
Ms. McCulley stated that what is seen in Attachment A is the focused sign committee’s recommendation. Staff did not incorporate the requirement that the commercial flag can’t be larger or higher than the governmental flag. That may be in the protocol, but staff did not incorporate that into the draft ordinance.
Mr. Craddock asked if that stands alone on itself and would supersede this.
Ms. McCulley stated that if it was not in the ordinance, then it was not something that staff would regulate.
Mr. Kamptner stated that the protocol of the United States Code was only a protocol, and they felt that for staff to be enforcing that as a zoning regulation would be stretching our authority and staffing levels.
Mr. Craddock asked if someone could have an X, Y, Z flag above the American flag.
Ms. McCulley stated that you could under the proposed language of the ordinance unless it was changed.
Mr. Edgerton stated that would not affect the protocol.
Ms. Higgins stated that it would just mean that the County would not be out there enforcing it if you did something that was not in conformance with the protocol.
Mr. Edgerton asked if there was any way to resolve his dilemma.
Mr. Rieley stated that he thought that Ms. McCulley and Mr. Kamptner were right that more work needs to be done in the area of the governmental flag. The last time that they met Ms. Joseph and Mr. Edgerton were not here and they had a rather extended conversation about it. He stated that he was encouraged to hear Mr. Kamptner say that there is a mechanism and a precedent in the state for that kind of regulation. He stated that it seemed to be a huge hole in this ordinance to allow that kind of abuse not only of our national flag, but of other national flags.
Mr. Edgerton asked if he was referring to the huge American flags seen at many gas stations.
Mr. Rieley agreed and pointed out that it would apply to any national or state flag. He stated that there were not very many abuses of this in our neighborhood, although they do have some. He stated that there were some around that were just egregious and that patriotic people calling up are not addressing the problem. He felt that it was a much more serious issue than how pennants can be strung up in a row. Therefore, he asked that the Commission move this ahead without the section on flags and then fix that separately or else fix it before they act on it.
Ms. Higgins asked if he meant that they now go back and include the protocol for the flags and that sort of thing that they at the previous meeting decided not to do.
Mr. Rieley stated that the people that were here decided that the majority of the people decided not to move it ahead. He stated that he was not sure, particularly in hearing what Mr. Craddock had to say, that was the current sediment. Certainly it was not something that he could support without the inclusion of regulating the flags in a reasonable way.
Mr. Thomas disagreed with regulating the American flag, but noted that he understood Mr. Rieley’s point.
Ms. Higgins agreed with Mr. Rieley’s point, but not the part where it goes beyond including it here. She disagreed that our zoning staff’s time should be spent dealing with it. She stated that it could potentially be a violation if they included it in the regulations. If someone contested it, then someone would try to say that Albemarle County is limiting the size of an American flag. She pointed out that there has been a flag issue before, which probably brought a lot of this up. She stated that she just did not see the resource of zoning being spent trying to do those limited cases because of a couple of cases. If it became prevalent and an issue that was beyond the protocol, then there would be other remedies for it. She stated that she could not see Albemarle County as being the enforcer.
Mr. Rieley stated that she had made the same point last time they discussed this, but that he still remained unconvinced simply because it seems perfectly silly saying that we don’t want zoning people going out and regulating the display of governmental flags because we want them to concentrate on little pennants and where you have three pennants strung in a row. That would be a violation of the ordinance, but, the improper display of the American flag would not. He stated that he also opposed utilizing any national flag as a cheap advertising gimmick. He felt that it was degrading and that it was perfectly legitimate and much more important than regulating the signs that go up in a grocery store window on a rotating basis.
Ms. Higgins stated that there was no other regulatory cover for those, but there is one for the protocol on flags. That is why those items are included in this ordinance.
Mr. Rieley stated that they were talking about Albemarle County where there is nothing in the ordinance about this, but that there are in other places and they enforce it because it has been upheld in the courts.
Ms. Joseph stated that staff had talked about the American flag or national flags as being something that they had been discussing that they know needs to be fixed. She asked if this was something that they are planning to do quite soon or is it something that is on the work plan that will get buried.
Ms. McCulley stated that they had not really talked about it. She asked to hear from Mr. Kamptner as to whether it is possible to insert language in that sentence that would otherwise exempt that type of flag that says that if it is used for commercial expression related to the product or service available on that property, and then it can be regulated as a sign. She stated that she did not know the legalities of that.
Mr. Thomas asked if she was requesting an opinion.
Ms. McCulley stated that she was talking about inserting some clarifying language that would say that it is not exempt in every case, but for example the Mexican flag at the Mexican restaurant is a commercial flag.
Mr. Rieley stated that he was not arguing that they should insert the national flag protocol into our ordinance and enforce the protocol as if it were something that it is not. But, he felt that there are accepted proportions for flag display that are easy to see that should be enforced. The County would only be alerted to them by egregious abuses. He pointed out that was what he would like to see inserted. He stated that he did not think that trying to ascertain the intention of whether a particular display of any national flag is for a commercial purpose or for patriotic purposes. He acknowledged that they could not figure that out. He felt that they could have a proportion between the size of the flag and the size of the flag pole that has been widely accepted for generations and use that as a basis for the scale of governmental flags and enforce it in the same way that they enforce everything else.
Ms. Joseph asked Mr. Kamptner if there was a problem with that.
Mr. Kamptner stated that there was probably not a problem with including size limitations based upon the protocol. He stated that he could look at that and come up with some language.
Ms. McCulley stated that it would be enforcement after the fact because those are flags which are exempt and require no permit. Therefore, it would be enforcement after the fact that is an additional enforcement responsibility after it is in violation.
Mr. Rieley asked how that would be different from someone putting up a string of pennants.
Ms. McCulley stated that luckily people don’t put up pennants very often in this area because they recognize that the County regulates that very closely; whereas, they would not know about governmental flags.
Ms. Higgins stated that no where in the ordinance do they give proportionality to a flag that is not exempt.
Ms. McCulley stated that was correct.
Ms. Higgins stated that they would have to incorporate that information into the ordinance as well. They have a definition of a flag and it mentions which ones are not flags for purposes of this ordinance, but then they don’t have a relationship between a pole and a flag that is covered under this or its size in relation to how it is supported.
Ms. McCulley stated that was correct.
Ms. Higgins stated that they would have to do that consistently.
Mr. Rieley stated that would probably be fine, but that commercial flags are regulated relative to total size. He stated that he was not suggesting that governmental flags be regulated relative to their total size, but to their proportion to the flag poles.
Ms. Joseph pointed out that they would not be regulating the height of the flag pole either.
Mr. Edgerton opened the public hearing and invited comment from other members of the public.
Neil Williamson, representative of the Free Enterprise Forum, stated that first and foremost that the discussion of flags has been illuminating. As one who was responsible for a business located directly on Route 29 with 8 flag poles on the south bound side of Route 29 that he would tell them that the American Legion and the Veterans of Foreign Wars will all send you copies of the Code for the flag if they have any inkling that there is any issue there. He stated that he liked the conversation that had been going on that they would not regulate that. That being said, the company that he worked for at the time was French owned and it was very important to their corporate culture that the French flag be flown at the proper dimension. That was not really a commercial flag because it was very important to the ownership of the company. That being said, he just wanted to make certain that they don’t try to determine the intent as Mr. Rieley mentioned of the flag that goes up. Finally, the dimensions of political flags he feels is a slippery slope. He stated that there are precedents, but that governmental and commercial flags do have a purpose and he encouraged the Commission to tread lightly.
Jeff Werner, representative for Piedmont Environmental Council, thanked the Commission for addressing the agricultural sign issue because they had made a commitment to their agricultural economy. He stated that it was nice to see that elevated to the same status as signage for residential developments in the rural areas, which they don’t want. He agreed with Mr. Williamson that the flag issue is an illuminating one. As an observation, when a flag is flown at night it must be illuminated. He stated that one night that he had seen a flag on Route 29 that was illuminated from the bottom while he was driving. He asked if there was anyway that flags could be illuminated down because it seems like a round about way to get around the lighting ordinance. He stated that they were really illuminating the dark sky. He asked if there was a way to limit the lighting on signs.
There being no further public comment, Mr. Edgerton closed the public hearing to bring the matter back before the Commission for discussion and an action.
Mr. Rieley commended staff, particularly Ms. McCulley, for taking what has been an extremely contentious issue over the years and boiling it down to the point in which the only comment is about governmental flags. He stated that it was an astounding accomplishment.
Ms. Higgins made a motion that ZTA-2004-005 be forwarded to the Board with a recommendation consistent with staff’s proposed revisions to the ordinance in Attachment C with a note that the Commission has had a significant conversation about the governmental flag issue. Then potentially if the Board wants to commit staff time to the enforcement of the governmental flag then they could consider it.
The motion died for the lack of a second.
Mr. Thomas moved for approval of ZTA-2004-005, as contained in Attachment C with no recommendation from the Commission to the Board regarding the American flag regulations.
Ms. Higgins seconded the motion.
Mr. Edgerton asked if there was any further discussion.
Ms. Joseph stated that she felt that it was worth it to represent what Mr. Rieley was talking about regarding the proportional aspects and would ask the Board to please look at that in their decision. She stated that she would rather that ZTA-2004-005 not go to the Board without the discussion about that concept.
Ms. Higgins pointed out that the Board would have the minutes of this meeting.
Ms. Joseph stated that it would just make it a little bit stronger if they send their recommendation to the Board with a statement about that concept. She pointed out that Mr. Kamptner had said that he had been thinking about that it was something that staff really needs to take a look at. She felt that it was valid if staff has determined that because they are the ones who work with it all of the time and know what may or may not happen as a result of this ordinance.
Mr. Rieley stated that his view was that staff has suggested that this needs work. Ms. McCulley thought that a 100 foot Mexican flag will come under the ordinance and Mr. Kamptner does not. Therefore, he thought that this section in particular needs some additional thought and work. He suggested that they give it a week or two to get staff’s best recommendation on how to address what everybody has acknowledged is a problem.
Mr. Craddock asked if that was a new motion.
Mr. Edgerton stated that there was a motion and a second on the floor.
Mr. Rieley stated that he was just explaining why he could not support the motion.
Ms. Higgins stated that the Commission had that discussion when this came back before them and the Commission identified the things for staff to work on. Staff has brought it back with those things. She stated that it was no reflection upon the flag, but just about the commitment for zoning inspectors to take on that kind of enforcement action. It really is about that and not about excluding the flag issue.
Mr. Edgerton asked Mr. Thomas if he would consider a friendly amendment to the motion that would reference the Board’s consideration of the minutes in the discussion that has taken place.
Mr. Thomas stated that he would agree to a friendly amendment to his motion as suggested.
Ms. Higgins accepted the friendly amendment to the motion.
Mr. Thomas stated that the recommendation was not coming from the Commission because they were just asking that the Board review the issue.
Mr. Rieley stated that he felt that was meaningless without making a recommendation about it.
The motion carried by a vote of (5:1). (Rieley – No) (Morris – Absent)
Mr. Edgerton stated that ZTA-2004-005, Signs would be heard by the Board on March 16.
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