TO:Andrew P. Powers, City Manager
FROM:Tracy M. Noonan, City Attorney
Kelvin Parker, Community Development Director
DATE:March 14, 2023
SUBJECT: Sign Regulations Update
RECOMMENDATION:
1. Receive report regarding the City’s current Municipal Code sign regulations and changes in State/Federal laws.
2. Provide comments and direction to staff regarding any desired revisions to the City’s Municipal Code related to sign regulations.
3. Find that this action is not a project as defined by the California Environmental Quality Act.
FINANCIAL IMPACT:
No Additional Funding Requested. Minimal staff time required to prepare the report is included in the Adopted FY 2022-23 General Fund Budget.
BACKGROUND:
The City of Thousand Oaks Municipal Code (TOMC) sets forth numerous regulations related to various types of signs in the City – temporary and permanent, commercial, and non-commercial (“Sign Regulations”). The City has approved specific amendments to these regulations from time to time based on changes in State or Federal law, and policy changes.
Under the United States Constitution, the First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws “abridging the freedom of speech.” Under that clause, a government, including a City, “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” It has been several years since the City Council evaluated the City’s sign regulations in their entirety and there have been significant changes in First Amendment law, particularly with respect to sign regulation, and in the City’s development standards that warrant a comprehensive
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3 review of the City’s Sign Regulations. During its Goals Setting Meeting on May 17, 2022, City Council asked that staff provide a report in 2023 that discusses the City’s Sign Regulations.
DISCUSSION/ANALYSIS:
Under the First Amendment, citizens are entitled to constitutional protections related to speech when the government acts either as a property owner or as a regulator of citizen conduct. Wording contained on signs is considered speech and, therefore, any regulation of signs is subject to First Amendment analysis.
As a property owner, the City is not required to freely grant access to all government property to anyone wishing to exercise their right to free speech. Courts have ruled that some types of government property, such as parks and government centers, are traditional “public forums”, upon which government is significantly restricted from limiting speech. Other types of government property, such as court rooms and city council chambers, are deemed “limited public forums” where government can impose more restrictions based on the nature of the property, the need to run the business of the government, or public safety. Finally, there are some types of government property, such as a public employee’s office or property not accessible to the public, that is not designated as a forum for free speech and governments can completely prohibit speech activities in such areas.
As a regulator, cities are permitted to distinguish commercial speech and non- commercial speech and regulate these types of speeches differently. Commercial speech is not entitled to the same level of First Amendment protection as non- commercial speech. It is the only type of legal content distinction acknowledged by the U.S. Supreme Court.
Commercial speech is speech or writing on behalf of a business with the intent of earning revenue or profit. It is economic in nature. Non-commercial speech or writing is any message that is not commercial speech. It includes messages concerning political, religious, social, ideological, public service, charitable, informational, and even whimsical topics. In other words, anything that is not commercial speech is deemed non-commercial speech. The following are examples of signs that would fall in the same category of non-commercial speech:
1. Political/elections sign
2. Address sign on a house
3. Garden flag in front yard of a house that says “Welcome”
4. Sign celebrating the birth of a baby or graduation of a student
5. Sign promoting a fundraiser event for a local nonprofit
6. Directional sign
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3 Any regulation of non-commercial speech is subject to the most exacting strict scrutiny. Any restriction imposed by a city must be a content-neutral time, place, and manner restriction. It must serve a compelling government interest and must not unreasonably limit alternative avenues of communication. In the past, cities routinely established different regulations for different subject categories of signs.
For example, a front yard sign that contained a political message would be subject to different rules than a similar front yard sign that celebrated a current holiday.
However, recent case law has clarified that regulations that distinguish between various subject types is a content-based restriction and presumed to violate the First Amendment. In Reed v. Town of Gilbert (2015) 576 US 155, the U.S.
Supreme Court held that any distinction between non-commercial signs based on their message is content-based restriction and subject to strict scrutiny. In that case, a church placed small temporary directional signs on sidewalks and other locations where election signs were also placed. The Town of Gilbert had different regulations for temporary signs, depending on the content. Political signs could be placed up to 60 days before and 15 days after an election, whereas the church’s directional signs were limited to 12 hours before and one hour after the event. The permitted size of these two types of signs differed as well. Political signs were allowed to be 32 square feet, while the church’s directional signs were allowed to be 6 square feet. The Court held that government regulation of speech is content- based if it applies to particular speech because of the topic discussed or the idea or message expressed. The Court also held that even a purely directional message, which merely gives the time and location of a specific event conveys an idea about a specific event. Finally, it concluded that if a sign regulation, on its face, is content based, its public purpose does not matter.
In response to the Reed case, the City amended the sign regulations to remove any municipal code section that permitted the placement of private signs in the City’s public-right-of-way to ensure the prohibition was applied uniformly. The City also adopted a Message Substitution Policy (Policy) in its Sign Regulations as a temporary measure until a comprehensive update of its Sign Regulations could be done. This Policy provides that a constitutionally protected non-commercial message of any category or content may be substituted, in whole or in part, for any allowed commercial message or any other protected non-commercial message. While this Policy is content neutral because it does not distinguish between any particular message, it can be confusing when a particular sign/message that is specifically identified in the Sign Regulations does not meet that specific regulation, but is still legally permitted because the City is required to substitute another regulation in the Sign Regulations under the Message Substitution Policy.
If a comprehensive update to the Sign Regulations is done, it should consider the following types of content-neutral time, place, and manner regulations to ensure Sign Regulations Update
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3 the regulations are constitutionally defensible:
1. Rules regulating the size of a sign based on content neutral criteria such as zoning.
2. Rules regulating the location in which signs may be placed.
3. Rules distinguishing between placement of signs on private property versus public property.
4. Rules distinguishing placement of signs on residential versus commercial property.
5. Rules distinguishing between temporary and permanent signs.
6. Rules distinguishing between commercial and non-commercial speech.
The majority of the City’s sign regulations are found in the City’s Zoning Code in Title 9, Article 23 of the Thousand Oaks Municipal Code. These regulations set forth criteria for signs throughout the City. For example, the regulations take into account the zoning designation for the proposed sign, the purpose of the sign, size limits, sign materials, and site locations. The following is a summary of the more substantive/informative regulations relating to the City’s existing Sign Regulations:
Section 9-4.2301(c) – Message Substitution Policy. Allows constitutionally protected non-commercial messages of any category or content to be substituted in whole or in part for any allowed commercial message or any other protected non-commercial message.
Section 9-4.2302 – Permit Required. Requires a permit for certain signs or advertising displays.
Section 9-4.2303 – Definitions. Provides various definitions relevant to the Sign Regulations including definitions for “Announcement Signs”, “Business Directory Signs”, “Construction Signs”, “Directional Signs”, “Monument Signs”, “Political Signs”, and “Wayfinder Signs.”
Section 9-4.2304(d) – Construction, Maintenance, and Removal. Permitted temporary signs such as political signs shall be displayed no sooner than 45 days before, and removed no later than 7 days after, the completion of an event or election.
Section 9-4.2305(a)(3) – Residential Zones. Temporary political signs are permitted, limited to 12 square feet in area and 6 feet in visible height. No more than one sign per candidate or position on a ballot issue can be displayed on any one side of a parcel of record which has frontage on a public street.
Section 9-4.2305(b)(3) – Residential Zones. In RPD Zones, after the issuance of a development permit, the Community Development Director may permit one Sign Regulations Update
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3 single-faced unlighted sign on a parcel of record to identify the project, contractor, and/or leasing agent. The sign is limited to 24 square feet in area and must be removed within 30 days after the issuance of a certificate of occupancy. Religious facility directional signs are permitted within a one-mile radius of the religious facility location and the size of the sign is limited to 4 square feet and cannot exceed 8 feet in height. These are limited to 2 signs per religious facility.
Section 9-4.2306 – Residential Zones: New Subdivisions. In the case of a new subdivision, the following signs are permitted: 2 advertising signs, 1 subdivision sign, and up to 2 additional signs after the final subdivision map is recorded. The total area cannot exceed 150 square feet and cannot exceed 18 feet in height. The signs may remain up to 18 months from the date the final map is recorded.
Section 9-4.2308 – Commercial and Industrial Zones. Allows on-site advertising signs affixed to a building up to 300 square feet or an additional 50 square feet where a shopping center contains a major tenant, subject to approval by the Planning Commission. In the C-O zone, total sign area permitted is limited to 100 square feet and may advertise only the business conducted. In the C-1 and C-2 zones, freestanding monument signs up to 32 square feet are permitted with a permit.
Section 9-4.2309 – Commercial and Industrial Zones – General Requirements. Banners, pennants, and captive balloons are deemed temporary advertising signs and limited to 4 special events per year up to 10 consecutive days. Auto Mall events are permitted an additional 2 special events. Grand opening events are allowed one time and limited to 30 consecutive days. Banners for these temporary events are limited to 60 square feet, except it may be up to 90 square feet in the Auto Mall.
Although the existing Sign Regulations set forth specific regulations for specific types of signs based on content, that is no longer permissible under case law. Therefore, the Message Substitution Policy authorizes any non-commercial speech, regardless of content, to be placed in accordance with any of the other commercial and non-commercial regulations.
In addition to case law changes regarding signs, the City’s upcoming Comprehensive General Plan will also impact the existing Sign Regulations. The General Plan will include new land use categories, goals, and policies that don’t exist in the current General Plan such as MixedUse Low and Commercial Town land use designations. These land use categories were endorsed by the City Council in 2020 when it endorsed the revised land use map.
Once the Comprehensive General Plan is adopted, the City’s Zoning/Development Code will need to be amended to reflect these new land use designations, goals, Sign Regulations Update
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3 and policies and ensure consistency with the General Plan. These amendments will include revisions to development type, design, uses, and other architectural/aesthetic design criteria. Given that signs are an integral component to development projects, sign regulations will have to be modified to ensure consistency with these new development standards.
Significant changes in First Amendment law impacts the ability of government to regulate signs. In addition, the City is finalizing its Comprehensive General Plan Update, which will set forth new land use categories and goals and policies. After the General Plan is adopted, staff will update its Zoning/Development Code to conform to the General Plan. It would be appropriate at that time to consider comprehensively updating the City’s Sign Regulations in order to ensure consistency. If City Council desires to comprehensively update the Sign Regulations to conform to case law and new development standards consistent with the new General Plan, staff recommends that the following are considerations for these revisions:
1. Ensure that commercial sign regulations are not more permissive than those for non-commercial signs.
2. Reduce the number of sign categories.
3. Draft regulations based on new land use/zoning categories.
4. Make clear distinctions between commercial and non-commercial signs without considering content.
5. Make clear distinctions between permanent and temporary signs without considering content.
6. Define the locations where signs may be placed.
COUNCIL GOAL COMPLIANCE:
Meets the following City Council goals:
A. Create a more equitable, accessible, safe, welcoming, and inclusive government and community regardless of race, color, ethnicity, religion, sex, physical or mental ability, sexual orientation, gender identity and expression, age, language, education, and/or socio-economic status.
B. Provide municipal government leadership which is open and responsive to residents, and is characterized by ethical behavior, stability, promoting public trust, transparency, confidence in the future, and cooperative interaction among civic leaders, residents, business representatives, and staff, while recognizing and respecting legitimate differences of opinion on critical issues facing the City.
Attachments:
Sign Regulations Update
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3 Attachment #1 – Sign Regulations (TOMC Title 9, article 23) CAO:650-90\tmn\Legal Files\Sign Regulations Revisions