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City's Sign Ordinance Inconsistent With Ruling – Brevard, NC

 

Last updated 11/18/2020 at 6:28pm



During its regular meeting Monday, the Brevard City Council discussed its sign ordinance as it relates to a 2015 U.S. Supreme Court ruling based on a sign’s content as a reflection of free speech.

The city’s current sign ordinance, Chapter 12 of the Unified Development Ordinance (UDO), has been in place since the adoption of the UDO in 2006, according to a staff report.

In the 10 years since adoption, Brevard’s sign regulations have seen numerous minor changes through text amendments.

“In June of 2015, the United States Supreme Court issued its decision in the case of Reed et al. v. Town of Gilbert, Arizona et al,” the report said. “This case was based on a municipality’s constitutional authority to regulate signs, and the court’s decision clearly invalidated some distinctions based on the message content of signs, which are common in sign ordinances across the country, including Brevard’s.”

The staff report said, because it is not content-neutral, the city’s current sign ordinance is inconsistent with the Reed ruling and, therefore, constitutes concerns for free speech violations.

Staff said updating the ordinance should happen soon, so that the city is in compliance with the Supreme Court’s ruling.

A public hearing is scheduled for December’s meeting.

“One of the aspects of this decision is that signage is speech,” said Aaron Bland, the city’s assistant planning director. “And so, if you restrict someone’s ability to display signage to zero, you are infringing on their ability to speak through signage. One of the things that the new ordinance would allow is that for every parcel to have one small real estate-sized sign that would be in their yard, with no end date. They would always have the ability to put that one message out. We can do things, like setbacks, such as it can’t be lit – it can’t be so high or so big. We can regulate all that, but we have to allow them that ability to speak through signage.”

Councilman Maurice Jones asked if an example is a “Slow Down; Children Playing” sign.

Councilman Geraldine Dinkins said it could also be a political sign.

“It could be,” Bland said. “We can’t make a determination based on what the sign says,” said Bland. “We can only say that you are allowed this size this location, the physical perimeters, but we can’t make distinctions based on what it says.”

He added there could only be one sign per parcel that could stay up yearlong.

Mayor Jimmy Harris said the city usually has a 10-day post-election expiration for political signs.

“That’s what we currently do,” Bland said, “but those are the sorts of things that have stayed the same. We’ve kept all of those standards, where we could we keep them.”

Jones asked if there would still be a fine for political signs for leaving them up too long.

“It would not be a fine for political signs specifically,” Bland said. “It would be for excess signage. That would have to change on the fee schedule because the fact that there is no longer a political sign fine, because we can’t make that distinction. But we still have the authority to fine violators of the sign ordinance.”

In other council actions, the council unanimously voted to deny a request for rezoning for three parcels currently zoned Downtown Mixed-Use (DMX) on West Morgan Street.

The request was to rezone the parcels to Residential Mixed-Use.

All parcels have frontage on West Morgan, and the westernmost parcel is a corner lot that also fronts Duckworth Avenue.

According to the staff report, the single-family dwelling on the easternmost parcel on 31 West Morgan Street was formerly a dentist’s office, though it is now used as storage and as a residence. The use is “currently nonconforming” because single-family dwellings are prohibited in DMX, which is the city’s downtown zoning district.

“If you will remember at your last meeting, there was a rezoning request on Morgan Street and council ultimately voted to rezone two of the two vacant parcels that were requested, and the resulting vote was three to two in favor,” Bland said. “Because that was not a supermajority, it could not pass on its first reading, so it is before you again for consideration on a second reading.”

Councilwoman Maureen Copelof said her vote to keep the area zoned as DMX had been influenced by a talk given by Dan Buettner, founder of the Blue Zone project that has been adopted in Brevard.

According to a press release on the Blue Zone project, its program uses more than 200 evidence-based methods to help people live longer by taking a systematic, environmental approach to wellbeing.

Copelof said the talk made her “think more about this particular rezoning and whether or not it really fit with where we were trying to go in terms of our future vision with land-use planning, and I’m glad that we had time to really think about this, and reconsider it, because I’m now of the opinion that as we look long term with the land-use plan, looking at the comments from the planning board, taking into account what Mr. Buettner said, during our kick off session, it makes the most sense really to continue to keep the parcels zoned the way they are.”

Councilman Gary Daniel said he also attended the Buettner meeting and was “was struck by his presentation.”

“This proposal is directly in opposition to his concept of good city planning,” Daniel said. “The arguments that I heard at our last meeting in favor of this were all about how things used to be, and I think as we look at our comprehensive land use plan, we need to look at how things should be, and how we hope they will be.”

Jones asked for key points in the presentation that supported not changing zoning.

“Some of the key points really were that you want to maximize the use of the land in your downtown district, and the way to really maximize that use is with the mixed-use of planning,” said Copelof. “You could have businesses on the bottom, and you might have apartments on the top. That type of mixture, instead of having just residential, or just a duplex on that, it’s not really an effective use as we try to make our downtown district vibrant and alive – encouraging businesses, but also making it at the same time an area where we do infill with housing…. it just struck me that we are going back to sort of the old cookie-cutter one house, one lot type of vision, and that’s just not the vision, as land becomes more scarce, especially in what we are trying to do with our downtown, bringing in the key businesses, making it walkable, making it safe, making it pleasant for people to live in that district, while at the same time encouraging businesses to thrive in that district.”

Jones asked Councilman Mac Morrow if he was sticking with his vote from the last meeting, which was for the parcels to be rezoned.

“These two parcels are unique in that they are only 60 feet wide,” Morrow said. “They are valued at $60,000 a piece. For me to try to think of how they would fit into some commercial venture in mixed-use, I have a problem doing that. It’s just not big enough, I don’t think. To me, it actually fits better because it’s short. The short side is on Morgan, and the long side is on Duckworth, and that’s one of the reasons I felt the rezoning got the nod from me, if that makes any sense, but I can see where I respect the decision of this council and Mr. Buettner.”

Morrow said though he thinks the rezoning is appropriate, he admits, “I’m the old guy who likes what we’ve been doing.”

Jones asked Bland to clarify what can be built on a lot zoned DMX and what can be built on a lot zoned RMX.

“RMX, as the name suggests, is a more residential focused district,” Bland said. “It does allow some limited commercial uses, but downtown mixed-use is going to be a lot more focused on commercial uses being permitted by right. Many of the commercial uses that are allowed in RMX you need a special-use permit for, so that’s an additional part of the process to open up that kind of use in that district. The main difference residentially speaking is that RMX is going to single-family duplex houses, which DMX will not allow at all.”

Bland added that DMX has no setbacks, meaning the construction can be built right up to the property line.

Dinkins said she would vote against the rezoning, as she did in the last meeting, because she trusted there was good rationale behind the 2002 Comprehensive Land Use Plan.

“I want to trust our planning board and our staff recommendation, and I do believe that the DMX zoning gives us the rationale for the proximity to downtown and to reserve the space for the natural progression of the commercial development over time,” Dinkins said.

Closing Remarks

In his closing remarks at the meeting, Harris said he plans to work with the Heart of Brevard on its virtual Twilight Tour.

“There is no Christmas parade this year, or a Twilight Tour, so they are making up for it by doing this, which I think is going to be really good anyway,” he said.

Copelof thanked the planning staff for organizing the evening community input sessions that took place recently for the 2030 Comprehensive Land Use Plan Update.

Input can still be provided at http://www.surveymonkey.com/r/buildingbrevard.

“I do want to encourage people that we still have our online survey out there,” Copelof said. “And we want to get to 800 inputs, and we’ve got about 290.”

She said the survey’s goal is to gather a comprehensive vision of what citizens want to see in the future of planning for Brevard.

“This is your time to make sure that our plans for the future are what you want, so that it’s not an after-the-fact,” she said.

Copelof also provided updates on the Downtown Masterplan Committee and the planter project in which 30 new planters, with flowers, will be installed downtown.

“We will be bricking over the tree wells, where there are no longer trees,” Copelof said. “That is a temporary solution, while we work on our new Downtown Masterplan, which is also being updated because we don’t want to go to all the expense and effort to plant trees, if, in fact, we are modifying our plans. Once we get our plants done, we can look at the larger vision of a new streetscape.”

She said the bricks can be removed and reused, and the planters will be flexible in where they are placed.

She said the committee is also continuing on its mural project.

“We are actually working on guidelines before we go out because we really want to start concentrating on more public art downtown,” she said.

In addition, there is a “decorative crosswalk” project that is looking at painting a creative crosswalk at the corner of Jordan and Broad streets.

Copelof requested that council consider waiting until its next meeting before taking a vote on information presented in a public hearing, which led to a vote do so.

She said council could make more informed decisions if there is time for deliberation.

“Voting the same evening on a public hearing item really doesn’t give us much time to digest and think about what is said in the public hearing, because we go right on to the next topic, so I would like this suggestion that in the future, that we change our scheduling,” she said.

Harris said it’s a good suggestion.

City Attorney Michael Pratt said council can entertain a motion at the public hearing to wait until the next meeting to vote, or council can plan a procedure.

“The procedure could be that you only act under consent agenda, following a public hearing on the night of the public hearing, or to take it off the consent agenda and table it to the next meeting if it’s not going to be a consent item,” Pratt said.

Morrow said that in the past there had been time sensitive applications that needed a prompt vote.

Pratt said that, if an application is time sensitive and requires a vote the night the public hearing, that the applicant could make that clear in the application.

 
 

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