Planning Board holds ‘tutorial’ and workshop on signage ordinance

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After the relative fireworks of the previous Planning Board meeting, with heated words and two measures failing on close votes, the session on Friday morning had no contentious votes, and little animated discussion.  

Meeting as always in City Council chambers, the board instead absorbed a lesson on the legal underpinnings of signage law, nearly three hours of going over the minutiae of sign ordinances past and future. In the weeks and months to come, however, this same signage issue is likely to come back with a vengeance, as the sign code affects signage for real estate firms, builders and commercial establishments.  

Opening the meeting, board members had some problems with the minutes of the previous meeting as presented, both words spoken by Vice Chair Ed Issler and the size of the event tent granted to the JW Marriott. Board Chair Eric Brechnitz directed city staffer Lisa Smith to “go to the video,” and check to ensure they were recorded correctly. 

“The sign ordinance is envisioned to take up quite a bit of time. I thought this discussion would take up the balance of our time,” Brechnitz said.

He was right. 

First, though, Erik Condee of Condee Cooling & Electric presented an update on a new building at the company complex. He was unhappy with a delay since January, on an agreement that has been pending City Council approval.  

The holdup, said planning board attorney Paul Gougelman, is the Condee building being right at the edge of a lot in the Marco Lake district, touching the adjacent building. No vote from the Planning Board was required. Condee again addressed the board several additional times under public comment. 

Kathy Mahaffey, attorney with Gougelman’s firm, Weiss, Serota, Helfman, Cole & Bierman, gave the equivalent of a civics class lesson on legal requirements for the city’s sign code, going back to the First Amendment to the U.S. Constitution.  

She laid out classes of speech with varying levels of protection, from “fighting words” and obscenity, which are not permissible, to hate speech and flag desecration, which are protected.  

“We have to be viewpoint neutral,” she said.

A city can regulate “time, place and manner” of signage, but may not attempt to regulate message content. 

“We have an issue called prior restraint…any government action that probibits speech before it takes place," Mehaffey said. "If you are required to get a permit before you put up a sign, that is a prior restraint. I can’t put up my sign – or speak – until I get a permit."

Municipalities are required to provide speedy timeframes so as not to unduly restrain potential speakers. Looking at sign codes, she told the board, “no one size fits all.”  

Mehaffey threw in a bit of legal history, sharing the case of Reed vs. the Town of Gilbert, Ariz., which went all the way to the U.S. Supreme Court and upended the way that signs are regulated in this country. The town’s ordinance, which granted various sizes to political candidates’ signs, “ideological” signs and event signs advertising a specific event, was found to be unconstitutional.  

Signage can be regulated based on where it stands, with different standards for public and private property, commercial vs. residential areas and on-premises as opposed to off-premises signs.  

“In your typical land use case, the city usually wins,” she said. “If it’s a tie, the government wins. That changes when we get into a sign case. Sign codes are being challenged left and right, and local governments are losing.” 

Discretion is limited, and using any discretion hurts the city’s chance of prevailing. Any content-based discrimination is extremely problematic. “After the fact” regulations will never be considered. Attorney fees, and money damages, are a real prospect for cities such as Marco Island, Mehaffey said.  

Going through the existing sign code line by line “will help me understand real life what you all want and what works for Marco Island," Mehaffey said. “We’re having to wrap our mind around a new way of regulating signage." 

Noncommercial signage is a new concept for the city’s municipal code, but will need to be considered, she said. Nonconforming signage is another point the city will have to consider. 

Board member David Vergo asked about how enforcement would take place, but Mehaffey and Brechnitz agreed that was a separate discussion, not really under the purview of the Planning Board.  

The board did consider specific classes of signs as included in the sign code, including real estate and political candidate signage. As part of public comment, Marv Needles spoke up to advocate for the maximum leeway for political signs, in aid of a more informed citizenry. 

Highlighting the importance stakeholders on the island attach to the signage regulations, City Council Chair Jared Grifoni and councilor Joe Batte sat in, along with Shirley English of the Marco Island Area Association of Realtors .  

The planning board is scheduled to meet again on Friday, Dec. 1, and will revisit the sign code at their meeting on Dec. 15. 

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