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HomeMy WebLinkAbout05252011HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL MINUTES REGULAR MEETING WEDNESDAY, MAY 25, 2011 - 6:30 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. Mayor Hill called the regular meeting to order at 6:30 p.m. 2. Rev. Todd Thomas from the Sebastian Christian Church gave the invocation. 3. Council Member Gillmor led the Pledge of Allegiance. 4. ROLL CALL City Council Present: Mayor Jim Hill Vice -Mayor Don Wright Council Member Andrea Coy Council Member Richard H. Gillmor Council Member Eugene Wolff Staff Present: City Manager, Al Minner City Attorney, Robert Ginsburg City Clerk, Sally Maio Deputy City Clerk, Jeanette Williams Airport Director, Joseph Griffin Administrative Services Director, Deb Krueger Finance Director, Ken Killgore Police Chief, Michelle Morris Police Captain, Bob Lockhart Parks Supervisor, Chris McCarthy MIS Systems Analyst, Rob Messersmith 5. AGENDA MODIFICATIONS Modifications and additions require unanimous vote of City Council members Mr. Wolff requested the removal and postponement of item 7B Interlocal Election Agreement until the next meeting for an opportunity to talk to the Supervisor of Elections about costs. There was no objection. Mr. Wright and Ms. Coy said they would like to pull 7E for discussion and Mayor Hill advised that item should be removed when they come to the consent agenda. Regular City Council Meeting May 25, 2011 Page Two 6. PROCLAMATIONS, AWARDS, BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. 11.020 A. Certificate of Appreciation to Former Chairman Larry Paul for Planning and Zoning Commission Service Mayor Hill read and presented the Certificate of Appreciation to Larry Paul and commended him for his many years of service to Sebastian. 11.075 B. Certificate of Appreciation to Adrina Davis for Budget Review Advisory Board Service Mr. Davis was not present. 11.081 C. Letter of Commendation from Park Place Community Watch Program Re: Police Department Citizens Academy Mayor Hill read the letter commending Officer Marcinik and the Police Department for its successful Citizens Academy. Brief Announcements Ms. Coy reported on her attendance at the event sponsored by Indian River Community Foundation at the Heritage Center with Chief Morris, which honors philanthropists in Indian River County. She said she had asked the City Manager to put a pro forma together, which she had submitted, seeking funding for a Community Center for Sebastian. She said she had not heard anything yet, but suggested maybe they could be invited for a meet and greet to tour Sebastian and perhaps Fellsmere. She thanked Alma Lee Loy and the other members. Mr. Wolff thanked the City Clerk's office staff for their participation in the successful Community Paper Shredding Day and asked the City Clerk to add comments. She said it was great; that residents were happy with the service provided by the City and wanted the City to have another shredding event. She thanked the four high school boys (Eric Williams, Eugene Wolff, Jr, Yong Ru and Chris Touros), who helped out throughout the event. 7 CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he /she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his/her hand to be recognized. A. Approval of Minutes — May 11, 2011 Regular Meeting 11.076 B. Approve Interlocal Agreement Between Indian River County Supervisor of Elections and City of Sebastian for Administration of City Elections (City Clerk Transmittal, Proposed Agreement) 2 Regular City Council Meeting May 25, 2011 Page Three 11.066 C. Approve Use of Council Chambers and MIS Services for Candidate Forums — SPOA 10/13/11 and Chamber of Commerce 10/19/11 — Both 7 pm to 9 pm (City Clerk Transmittal) 11.044 D. Award Construction Services Agreement to Santa Cruz Construction, Inc., in the Amount of $256,335 and Approve the Appropriation of $9,195 of Discretionary Sales Tax to Fund Shortage for Landscaping on CR512 (Administrative Services Transmittal, Bid Proposal, Letter, Bid Tab, Bid Addendum 1, Revised Pricing, FDOT Concurrence Letter, Agreement) 11.049 E. Award Bid to Advanced Recreational Concepts in the Amount of $26,600 for Installation of Pavilion in Riverview Park (Parks Transmittal, Bid Tab, Letter, References, Drawing) 11.077 F. Prior Travel Authorization for Council Members to 2011 FLC Annual Conference — Orlando, Florida, August 11 -13, 2011 (City Clerk Transmittal) 11.078 G. Approve Closing of Indian River Drive from Harrison Street North to Jackson Street on November 12, 2011 from 6:45 a.m. to 9:30 a.m. for the Sebastian River Middle School International Baccalaureate Program 5K Run Fundraiser (Parks Transmittal, Application, Letter) Ms. Coy removed item E, and Mr. Wolff removed item C at request of a citizen. MOTION by Mr. Gillmor and SECOND by Ms. Coy to approve consent agenda items A, D, F and G. Result of the roll call: AYES: All NAYS: None Passed 5 -0. Item C - Approve Use of Council Chambers and MIS Services for Candidate Forums — SPOA 10/13/11 and Chamber of Commerce 10/19/11 — Both 7 pm to 9 pm Mr. Wolff said Damien Gilliams had requested removal of this item for comment. Damien Gilliams, 1623 US 1, expressed concern that this item was on the consent agenda which prevented public discussion, said these two groups which represent specific groups, have had a monopoly and Council should not deprive the rights of other non - profits or the newspaper to conduct candidate debates. Mayor Hill advised him that this item is not a discussion of the policy recently adopted by Council, that these requests have typically been on the consent agenda for some time, and we are deciding if two groups should use the Chambers. Mr. Gilliams said he missed the item on policy and normally Council has two hearings to develop policy. Mayor Hill reminded him they were not talking about policy tonight. 3 Regular City Council Meeting May 25, 2011 Page Four Mr. Gilliams said he wanted an opportunity to discuss it and said when Council adopts a policy they should not include pre- conditions. Ms. Coy called a point of order and said we are not discussing policy. Mr. Gilliams again said they should not take rights from non - profits and the newspapers. MOTION by Mr. Gillmor and SECOND by Mr. Wright to approve item C passed on a voice of 5 -0. Item E - Award Bid to Advanced Recreational Concepts in the Amount of $26,600 for Installation of Pavilion in Riverview Park Ms. Coy said Parks and Recreation Committee had looked at the location and submitted locations A and B, and she agreed with location B which is in the northeast part of the site. Mr. Gillmor wholly concurred with her recommendation, stating the northeast location is a perfect place for the pavilion, and noted that to his knowledge this is the first bid award utilizing local preference as set out in the Code. Mr. Wright agreed with the northeast location, but asked if we are in effect modifying the bid by moving the location, and asked what the reason was for the committee choosing location A. Chris McCarthy said the southeast corner location was chosen because it would not block the view of the river. Mayor Hill said that was his only concern with location B in the northeast. A lengthy discussion followed on pros and cons of the two locations, whether location B would block view of fireworks, the fact that Parks and Recreation had given two alternatives, A in the southeast being their first choice and B in the northeast being their second choice, the fact that most weddings that take place on that site take place in the northeast, the fact that Parks and Recreation Committee's recommendation must have had a reason to recommend site A and for Council to adjust their recommendation is worrisome. Mr. McCarthy said the Parks and Recreation Committee had intended to look at the locations at its next regular meeting in June. Mayor Hill suggested approving the purchase and sending it back to Parks and Recreation for the final location. The City Manager confirmed this is not a definitive location. Mayor Hill said there must be a reason they chose location A and he would like to hear from them. The City Manager suggested Council tell the Committee the options they have approved, let them decide and then move on, but approve the contract tonight. MOTION by Mr. Wright and SECOND by Mr. Gilllmor to approve the bid contract in the northeast corner. Damien Gilliams said there were nine bids, Fort Myers was the low bid, and this sets a bad precedent if we want people to bid on City projects. Mayor Hill told him we have a local vendor preference policy in effect. Mr. Wright called a point of order and Mayor Hill reminded Mr. Gilliams we are not discussing bidding policy. Mr. Gilliams continued on the same issue and Mr. Gillmor called a point of order stating that the law of the land is local preference. 4 Regular City Council Meeting May 25, 2011 Page Five Mr. Gilliams said the local bid should be lower and Council was sending a bad message. Ben Hocker asked if there would be a conflict with the planned pump station project and the City Manager said there was no conflict. Jim Sunnycalb said Parks and Recreation meets once per month, they decided where to put the pavilion and Lisanne Robinson tore it apart, and she suggested not even putting it in, and if the committee had been more powerful they would have stuck with their recommendation. Barbara Salmon said she was there and thought Parks and Recreation was open and receptive to the idea, that this is the only open area we have, cited the Arlo Guthrie concert in 2003 and said if we put the pavilion in the southeast, they won't be able to put a stage there for their event, and the northeast will be better. Ms. Coy said the Arlo Guthrie event filled that field, noted some think there should be no pavilion, and that Parks and Recreation should consider a master plan and not clog up the area to prohibit big events. Mayor Hill said he would like to call for a vote. Mr. Gillmor asked Mr. Wright, who formerly chaired Parks and Recreation, whether he thought Council was disrespecting the committee and Mr. Wright said no, that Council simply prefers location B. Mr. Wolff asked if Ms. Robinson expressed her objection to Mr. Wright and he said she did. Result of the roll call: AYES: Coy, Gillmor, Hill, Wright NAYS: Wolff Passed 4 -1. 8. COMMITTEE REPORTS & APPOINTMENTS City committee reports and Council Member regional committee reports. No public input or action except for City committee member nominations and appointments under this heading. Ed Herlihy, Chairman of the Budget Review Advisory Board, reported the Board's favorable recommendation on the 2nd quarter budget amendment. Mr. Wolff excused himself from 7:15 pm to 7:18 pm. Mr. Herlihy said the City Manager had given an excellent presentation, difficult personnel decisions had to be made, and noted assessed valuation will be made available to the City on June 1St. He said the next meeting of the Budget Advisory Board will be June 9th. 9. PUBLIC HEARINGS - None 10. UNFINISHED BUSINESS - None 5 Regular City Council Meeting May 25, 2011 Page Six 11. PUBLIC INPUT Damien Gilliams provided mooring information that he had picked up during a trip to Catalina Island, CA, to the City Clerk; said Mayor Hill should be on time; thanked Mr. Wolff for his donation of a paycheck to Shredding Day; said recycling is important and Council should direct the City Manager to get it done; said there are grants for solar; thanked the City Manager for the lay -offs; said he was against four year terms noting it was turned down once before; said the Working Waterfront was all outside contractors; and said he was glad the Budget Board was moving along, fuel will be an issue and community leaders with fringe benefits should send half back. Ben Hocker said Council approved BSSC football field improvements, but at the Planning and Zoning meeting on the site plan, there was discussion of a 60 foot high screening to keep balls off of Barber Street and lack of definitive irrigation /drainage system. He asked why we are building a full scale field for pee wee football when schools provide regulation size fields. In regard to the pavilion issue, he suggested if the pavilion is in the south end it will take the burden off parking in the north end. Jim Sunnycalb said Parks and Recreation is an awesome committee, their meetings are open to the public where people can bring ideas and plant seeds, said there are over 30 parks in Sebastian which is what draws some people here. He said there is an opening coming up on the committee. Mayor Hill agreed they are a vital part of the City and Ms. Coy commended Mr. Sunnycalb for his participation and contributions to the City. Barbara Salmon thanked Council for the Working Waterfront, stating it is awesome, that she had visited it with the City Manager, it was the best decision to let Charlie Sembler and his guys do what they do best, stating it will be our crown jewel. 12. NEW BUSINESS 11.042 A. Resolution No. R -11 -13 Adopting the 2nd Quarter Amendment to the FY20/11 Budget (Administrative Services Transmittal, R- 11 -13, Comparison, Reports, Schedule, Accomplishments) A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, ADOPTING AN AMENDED BUDGET FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2010 AND ENDING SEPTEMBER 30, 2011 AS PROVIDED FOR IN EXHIBIT "A "; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Resolution No. R -11 -13 by title and the Finance Director gave a brief overview. MOTION by Mr. Gillmor and SECOND by Mr. Wolff to approve Resolution R- 11 -13. Damien Gilliams discussed the City's investments and commended the City garage for inventorying parts and auctioning off what it does not need. Result of the roll call: AYES: All NAYS: None Passed 5 -0. 6 Regular City Council Meeting May 25, 2011 Page Seven 11.054 B. First Reading of Ordinance No. 0 -11 -05 — Amending LDC Re: Political Signs Set Public Hearing for 6/22/11 (City Attorney Transmittal, 0- 11 -05) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, ENLARGING THE TIME DURING WHICH POLITICAL SIGNS MAY BE POSTED, AMENDING SUB - SECTION 54- 3-16.5(e)(4)d. OF THE LAND DEVELOPMENT CODE OF THE CITY OF SEBASTIAN, FLORIDA, REPEALING CONFLICTING PROVISIONS; PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0 -11 -05 by title. Mayor Hill said when he read the proposed 75 days he was horrified, noting that there will be signs allowed for 75 days both for primaries and general elections, said we have an ordinance in place, said when you cross over into Brevard County you get hammered with political signs, that some things are worth fighting for, Vero Beach allows 60 days prior, Fellsmere 30 days prior, Indian River Shores and Orchid do not allow signs at all, and Indian River County is 30 days. Mr. Gillmor asked to hear from the City Attorney. The City Attorney stated that part of his job is to advise Council of things it sometimes might not want to hear, that he had done legal research and on Monday found an article written by a law professor, which he provided to Council prior to the meeting, (see attached) with conclusions on pages eight and nine, and if this ordinance passes on first reading he would urge them to read it. He said he has a great respect for what the Mayor stated, that Sebastian is special and Council has taken the time to keep its small town feel, so this issue is not an easy one. He said a 60 day limit has been determined to be unconstitutional by three courts, they have thrown out 30 days and three weeks, and they say there is probably a time limit but they don't tell you what it is, though aesthetics are acknowledged as a valid concern as well as safety, issues he had emphasized in the whereas clauses of the ordinance. He said if this should go to public hearing they should get live testimony because the courts give credence to legislative facts. He said 75 days pegs to the qualifying period set out in the City Charter which is 60 to 75 days prior to the election and his theory is that the courts would respect the community's interest based on this. With the current 30 days you are saying even though absentee ballots are out you cannot identify yourself to the public, and the courts say that public officials as incumbents have an advantage with name recognition. He noted that alternative means of communication, such as new technologies are being used in the political arena. He stated 30 days seems to be indefensible, 60 days problematic and has been rejected by the courts, and that is the rationale for what see Council sees before it tonight, with the alternative being to repeal the language altogether. He concluded by saying first amendment litigation can be very expensive, if you lose you pay for the other side too, and first amendment lawyers are expensive; and another factor is dealing with personal liability, though the courts have not yet applied that to local government. He said Council did indicate it wanted to see something effective and one member said even with the waivers there were requests to respect Sebastian's small town feel which could still take place. He again urged them to read page nine of the handout and said the courts will accept an appropriate time limit. Ms. Coy asked how gated communities get away with banning signs, and the City Attorney responded they are not government. She asked if neighborhoods can say they don't want signs. Regular City Council Meeting May 25, 2011 Page Eight Mr. Wright asked to hear from the public. Ben Hocker said State, County and City law provides for no signs on right -of -way and on private property you need permission, said 75 days is an unfair advantage to someone who qualifies 60 days before, noted error in the ordinance showing Mayor Gillmor, and said this needs more thinking. Mayor Hill said Code Enforcement does a good job of removing the signs. Jim Sunnycalb said he has been involved in campaigning, and though you may not like something there are ways of beating the system. Mayor Hill said leaving things the way they are would be 30 days. Damien Gilliams said the City Attorney makes good points, incumbents have an advantage, people should be allowed to put up signs as soon as they qualify, said 75 days is not 1/3 of the year, First Amendment Foundation will be knocking on your door, and said the City is the biggest polluter with no recycling. Ms. Coy called a point of order to stay on the subject. Mr. Gilliams said he loses his train of thought when he is interrupted, people should have the right to put up political expression no matter the time, and said let the voters decide. Ms. Coy said the Mayor's preamble was impressive and this is worth fighting for. She said she doesn't usually stray from the Attorney's advice but sees problems in the court cases, noting Sebastian has some of the strictest sign rules, such as one garage sale sign, is currently considering new business sign rules, and it is safe to say we have been hardliners and we should have a right to do this as long as we are consistent across the board with all signs. She said she would support stricter rules for signs and abide by Sebastian's choice each and every time. Mr. Gillmor said Council has gotten clear direction from the City Attorney, and he is doing the best he can to protect the City and states the ordinance is non - defensible. The City Attorney said that is correct. He asked if we were to pick up those signs, what he was hearing was we would not be able to defend that in court. The City Attorney said 30 days, in his opinion, is unconstitutional and if a suit was filed, and then the Council decided to change it, they would still be responsible for attorney fees on the other side. MOTION by Mr. Gillmor and SECOND by Mr. Wolff to approve this ordinance because it gives the best protection for the City. Mr. Wolff said he agreed with Mayor Hill but when it comes to politics, all sense goes out the window, when there are people who have the ability to raise large amounts of money and some who don't, and for those who can afford it, it would not be unreasonable, if someone was slighted for our removal of a sign, to go after the City. He said he thought we had an agreement with the candidates, agreed you are bombarded in Brevard with signs, that on a higher level than Sebastian there are people with deep pockets and we don't have the money to defend ourselves. 8 Regular City Council Meeting May 25, 2011 Page Nine Mr. Wright said he did not necessarily see 75 days being any more defensible or had any less potential for a lawsuit than 30 days, so in trying to respond to the issue and though he understood the logic, he did not see that would prevent anyone from challenging us or suing us. He asked how long the ordinance has been in place, and were there any cases on the subject in Florida. He read from the report that there are land use law issues, such as Metro Media Inc., content neutral restriction issues, but nothing that pertains to a candidate or city so there are a lot of questions and to change a long standing law and pass something different is more dangerous than leaving it alone. He said we need further research to see whether these case laws apply to us and defining the issue of incumbents setting a date. He said it is interesting to note that we are not out of basic compliance with the rest of the County and existing communities. The City Clerk noted the 30 day time period appears to have been adopted in 1991, and the only change to date has been removal of a $25 bond previously imposed. Mayor Hill said the courts have not told us our rule is unreasonable, and it's upon us to decide what is reasonable, and to the question should this body change this and create a liberal sign use policy he would say no. Mr. Wolff asked for a rebuttal from the City Attorney. The City Attorney said these types of court cases are often heard in federal courts, and he would be happy to provide cases so they can see how it works. He said he had provided the handout because he came across it and it was written in a more cogent way. He said there is not a lot of direction in this area but they end up striking them down. It's relevant but not determinative; his hope was that we could put together a case with a number of factors including health and safety and police issues as well as aesthetics. He said he could provide additional material, thoughtful opinions of judges who are trying to work through this, but they ultimately override local government concerns, deciding first amendment prevails over issues like this. He said he was glad to see the article written plainly, noting the last portion is what we are talking about and it is possible to have a time frame and the courts would sustain it. He noted the conclusion on page nine starts with two interesting words "properly interpreted" and the judges who make the decisions look to the Supreme Court. Mr. Wolff asked him to expound on incumbents making decisions. The City Attorney said that was mentioned in the article but is not a determining factor, just a point in the discussion. Result of roll call: AYES: Gillmor NAYS: Wolff, Hill, Wright, Coy Failed 4 -1 to pass the ordinance on first reading Mayor Hill called for a recess at 8:23 pm and reconvened the meeting at 8:37 pm. All members were present. 9 Regular City Council Meeting May 25, 2011 Page Ten 11.079 C. First Reading Ordinance No. 0 -11 -06 - Repealing Code Chapter 2 — Article VI. Boards, Commissions, and Committee Section 2 -168 List of Volunteers and Set Public Hearing for 6/22/11 (City Clerk Transmittal, 0- 11 -06) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AMENDING CITY CODE OF ORDINANCES CHAPTER 2; ARTICLE VI, BY REPEALING SECTION 2 -168 WHICH PROVIDES FOR TWO ANNUAL ADVERTISEMENTS IN A NEWSPAPER LISTING ALL CITY BOARDS AND COMMITTEES AND QUALIFICATIONS THEREOF; PROVIDING FOR CONFLICTS, SEVERABILITY AND EFFECTIVE DATE. The City Attorney read Ordinance 0 -11 -06 by title. The City Clerk briefly explained she had provided this ordinance for consideration when during budget preparation, the bi- annual ad requirement was found to cost $450 per year, one - quarter of her legal advertising budget, it was written in 1997, when the City was just writing the first website, and now all Boards and Committees are listed on a full page of the website. MOTION by Ms. Coy and SECOND by Mr. Wright to pass 0 -11 -06 on first reading (set public hearing for 6/22/11). Mayor Hill said that term limits need to be looked at, in light of losing Mr. Paul as Chairman of Planning and Zoning after seven years of service and asked why terms were imposed. The City Clerk said it was done around 1996 by Council to eliminate "kingdoms" that were perceived to be in place on P & Z. She noted there are other procedural regulations in the ordinance for general board membership that should be in a resolution rather than the Code and would like to work with him. The City Attorney said he was not a fan of ordinances that restrict City Council and ties its hands and would conduct a review of this section. Result of roll call: AYES: All NAYS: None Passed 5 -0 11.041 D. Approve Allocation of $63,000 from Recreational Impact Fee Zones A, B, and D for New Sidewalk and Lighting at Easy Street Park (Public Works Transmittal, Cost estimate, Spread sheet) MOTION by Mr. Gillmor and SECOND by Ms. Coy to approve the allocation. Mr. Gillmor said he had done some research on solar lights and had found some on the internet, citing the high cost of electricity over future years. Mayor Hill agreed if it is found to be economically feasible and of good quality. The City Manager said this may be a reasonable solution, staff had looked at a lot of angles, including concern for lights not being obtrusive for surrounding homes and not be on throughout the night, said he could take it back to Parks and Recreation Committee to research solar. Ms. Coy asked about longevity of solar lights. 10 Regular City Council Meeting May 25, 2011 Page Eleven Mr. Wright suggested looking into use of LED lights, stating solar is a good idea if it lasts. Damien Gilliams thanked Mr. Gillmor for his idea, noting FPL hired 32 lobbyists and stopped an attempt for tax exemption by solar companies, suggested Council look at our franchise agreement with FPL and seek a fee for ROW use as was done in Cocoa Village. Mr. Wolff said the ideas presented were fantastic and said he noticed in the summary only one objection was received, and on a previous item we bent over backwards on one objection. Ms. Coy said she was glad contingencies were included, suggesting parking stops, for prevention of parking under two old oak trees, and adding additional parking with cement stops or maybe gentle roping to make vehicle access difficult. Result of roll call: AYES: All NAYS: Nay Passed 5 -0 Ms. Coy noted for the record, that other than her comments at these meetings, she was not involved in the project. 11.080 E. City Advertising Discussion — Requested by Council Member Gillmor (No Backup) Mr. Gillmor said last year we had agreed to put aside $10K to $15K for economic development, reminded Council of Mr. Wolff's presentation on use of Google keywords for attracting people to our websites, which had intrigued him. He said the Treasure Coast Regional League of Cities is currently looking into using the program to attract people to the TCRLC website to benefit the thirteen member cities. He said he thought this was something that Council should discuss as well to attract people to the City's sites. He said he had contacted Google and they will do the whole campaign and the City can decide what they want to spend. He said he was a fan of the billboards but its effect could not be gauged. Mr. Wolff said you can gauge Google's effect, because you only pay if someone clicks on the link. Mayor Hill said we can test the waters, noting internet advertising is the key. He said our billboard really stands out and he is not ashamed of the money we spent on it. Mr. Wright said we did authorize the airport to use a portion of the grant we provided to do this but it apparently has not been done. The Airport Director said there were no funds remaining after the aero -news project. There was consensus to move forward to try out Google words and Mayor Hill said staff has its direction. 11 Regular City Council Meeting May 25, 2011 Page Twelve 13. CITY ATTORNEY MATTERS - None The City Manager reported that the aired meetings of the last two weeks will be rebroadcast over the weekend of June 3 -5 due to a Friday furlough day. 14. CITY MANAGER MATTERS In response to Mr. Wolff, the City Manager explained concerns about the sixty foot fence and irrigation /drainage issues in regard to the Total Golf Construction contract for the Barber Street Sports Complex football field project. He said the netting was not included when approved due to staff concerns about costs and aesthetics, one member of P & Z was concerned, and we can always go back and revisit it. He said P & Z was unhappy that the detail for irrigation /drainage was missing from design specifications, so he explained to them that certain details were not included in the drawings to save costs on the project and were needed only to obtain a SJRWMD permit. 15. CITY CLERK MATTERS - None 16. CITY COUNCIL MATTERS A. Mayor Hill - None B. Vice Mayor Wright Mr. Wright requested the cost to broadcast Parks and Recreation Committee meetings. The City Clerk said when we moved into the new building all committees were broadcast but the budget was removed. Ms. Coy noted that Bob Barbour had provided the service, but Council had eliminated the position. She asked why just Parks and Recreation. Mr. Wright said he thought they were the next most important board. Mayor Hill said it would be fair to find out what it would cost and then Council can decide what it wants to air. Mr. Wright said he had been receiving feedback on decrease of property values from people who have foreclosed properties adjacent to them and had read an article that many cities impose restriction on banks when they start the foreclosure process to maintain the property, and wanted to revisit what other communities are doing to protect their residents. Mr. Wright said he was happy with Council's approval of the Charter Junior High School project in Chesser's Gap, he had been told no traffic study had been done, and after having gone through issues with Ocean Concrete, would like to look into whether there would be liabilities in considering a zoning change on the property across the street approved for high rise housing, which people had vigorously objected to when it was approved. He said he was concerned about an influx of traffic. He said he would follow up with the City Manager. Mayor Hill suggested that he meet with the City Attorney. 12 Regular City Council Meeting May 25, 2011 Page Thirteen C. Council Member Coy 11.075 i. Announce Replacement for Budget Review Advisory Committee Approv Ms. Coy said a gentleman she was considering for the position had changed his mind, and Mr. Alvarez, the Board alternate was not interested in being a regular member. She asked if anyone was interested in serving they could call her at 388- 0961. The City Clerk said they could run a free press release for her. D. Council Member Gillmor - None E. Council Member Wolff Mr. Wolff reported he had received his recent WIRED magazine and an article from the Harvard Business School about the smartest jobs in America and emerging epicenters for hi -tech job growth map included only Sebastian in the State of Florida. 17. Being no further business, Mayor Hill adjourned the regular meeting at 9:37 pm. at the June 8, 2011 Regular City Council meeting. Hill, Mayor ATT Sally A. Mai. MMC — City Clerk 13 Westlaw. 3 WAUJLP 379 Page 1 3 Wash. U. J.L. & Pol'y 379 c Washington University Journal of Law and Policy 2000 Evolving Voices in Land Use Law: A Festschrift in Honor of Daniel R. Mandelker Part III: Zoning Aesthetics Chapter 5: The Takings Clause and Signs *379 ELECTION SIGNS AND TIME LIMITS Jules B. Gerard [FNa1] Copyright (c) 2000 by Washington University; Jules B. Gerard Signs exist for the sole purpose of communicating messages. Hence, any regulation of signs is inevitably a regulation of speech protected by the First Amendment. The message, however, is only one aspect of a sign. A sign's other constituent element is the structure upon which the message is displayed. Many communities have wished to regulate those structures in the interests of aesthetics, or safety, or some combination of the two. The regulations have attempted to limit the location, the size, the number, or other features of the structures upon which the messages may be displayed. Because these regulations inevitably affect the communications that are intended to be displayed on the structures, they raise constitutional issues of free speech. [FN1] These issues become particularly difficult when the signs being regulated convey political messages. Relat- ively small, disposable signs are a traditional way of communicating political messages. They may be the least expensive way political speakers have of reaching large audiences. They therefore hold enormous appeal to those candidates for political office who are relatively unknown and lack so- called "name recognition." [FN2] Most importantly, political messages dealing with ballot issues are at the apex of the hierarchy of speech values protected by the First Amendment. [FN3] *380 On the other hand, because these signs are cheap they proliferate like weeds during election cycles. Few of them are items of beauty. This absence of visual appeal combined with their numbers make them real eyesores in otherwise attractive residential communities. Moreover, they are flimsy in construction, easily dam- aged or destroyed by rain, snow, wind or vandals. They are frequently blown or thrown into the street, creating driver safety and trash disposal problems. They therefore are a prime target of those who wish to eliminate visu- al clutter from their community's environment in the interests of beauty, and perhaps also of safety. This article tries to cast light into a small corner of this problem. It deals with a question the United States Supreme Court has never answered directly, namely, whether a community may impose time limits on the peri- ods during which signs carrying messages about election issues may be displayed. [FN4] The article begins with a brief survey of relevant Supreme Court decisions before coming to grips with that question. Two aspects of this discussion require emphasis. The first is that the subject is "election" (or "campaign ") signs, not "political" signs. The former are doubtless a subcategory of the latter. Yet, "political" signs include a © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 2 3 Wash. U. J.L. & Poly 379 great many messages, such as "Save the Whales," for example, that are not tied to a specific date or time period. Hence, imposing time limits on such signs would be difficult to justify in terms of regulating their structures. Second, billboards and other permanent structures are excluded from consideration. Imposing time limits on whatever election messages such structures might display contributes nothing to either aesthetics or safety. Political messages are no more or less objectionable on billboards than are any other constitutionally protected communications. [FN5] *381 I. SUPREME COURT DECISIONS A. Background Fundamental First Amendment doctrine provides the background against which to view relevant Supreme Court decisions. That doctrine divides regulations of speech into two classes. The first class consists of laws that regulate speech because of its content, such as bans on obscenity and perjury. Traditional doctrine refers to this class as "content based" regulations. Except for a few narrowly defined subcategories, content based regulations must pass strict scrutiny analysis to survive a constitutional challenge. That is, they must be necessary to further compelling governmental interests and must be the least restrictive alternative available to further those in- terests. The second class consists of regulations that purport to be unconcerned about message content but neverthe- less have the effect of limiting speech. The first Supreme Court decision on measures of this type approved an ordinance that imposed restrictions on parades. [FN6] The Court observed that governments might have legitim- ate interests in limiting the times or the places at which, or the manner in which, speech is delivered. [FN7] The Court referred to such limitations as "time, place and manner" restrictions, a term by which they are still known. [FN8] Regulations of this kind are held to a standard less rigorous than strict scrutiny. To be constitutional, they need only (a) be content neutral, (b) further significant or substantial (but not compelling) governmental in- terests, and (c) leave open adequate alternative channels of communication. The requirement that they be "no greater than necessary" to protect the governmental interests was added later. [FN9] The Court has made plain that the "no greater than necessary" requirement under this standard is significantly less stringent than the *382 "least restrictive alternative" requirement of strict scrutiny. [FN10] A word needs to be said about the concept of content neutrality. Early cases addressing this issue involved blatant discrimination against unpopular views. For example, Jehovah's Witnesses were denied the use of a pub- lic park that other religious groups were routinely granted permission to use. [FN 11 ] Cases such as these were the genesis of the Court's often repeated statement that discrimination based on content is virtually per se uncon- stitutional. That formulation is problematic because of the word "content." It clearly includes "viewpoints." That is, discrimination against an unpopular viewpoint is certainly discrimination based on content. The reasons gov- ernments should be denied the power to discriminate against viewpoints are virtually self - evident. They all cen- ter on the danger of giving government the power to censor speech. Content, however, also includes "subject matter." [FN 12] Why governments should absolutely and totally be denied the power to discriminate on the basis of subject matter is not clear. For example, suppose the city in the Jehovah's Witnesses case prohibited the use of its public park for religious purposes. That would constitute subject matter rather than viewpoint discrim- ination. There would be no danger of government censorship. The denial still might be unconstitutional, but the reasons offered for finding it so obviously would have to be (or should have to be, at any rate) different from those that were given to strike down the viewpoint discrimination. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 3 3 Wash. U. J.L. & Pol'y 379 Currently, the Supreme Court continues to articulate the standard as one of content neutrality. Sometimes it will accept viewpoint neutrality as fulfilling the requirement, [FN 13] however, and sometimes it *383 will not. [FN 14] And sometimes it insists that the standard requires both content and viewpoint neutrality. [FN 15] B. The Cases Metromedia, Inc. v. City of San Diego was the first Supreme Court decision to apply free speech principles to sign regulations. [FN 16] San Diego's ordinance generally banned "outdoor advertising display signs." The or- dinance exempted two categories of signs. The first category consisted of on -site signs that identified the premises or the items produced or sold there. The second category consisted of twelve specifically described dis- plays. A splintered Court held the ordinance unconstitutional. [FN 17] The nine justices divided into three groups with five opinions: a plurality of four, a concurrence of two, and three dissents. The gist of the concurring opin- ion was that the ordinance effectively banned all billboards and that such a total ban ought to be invalid. [FN 18] The plurality overturned the ordinance for completely different reasons. They focused on the two categories of exemptions. The category that exempted on -site signs was unconstitutional because it limited the content of such signs to commercial messages. [FN19] Political messages, for example, could not be displayed. It was imper- missible to prefer commercial to traditional speech in this manner (the "commercial speech preference" ra- tionale). [FN20] The other category exempted twelve specifically defined displays. Seven of them were defined by content, including governmental signs (street identifiers, traffic controls, and the like) and temporary political signs. The plurality refused to deal with these *384 content subcategories individually. Instead, they lumped them together and declared this entire category of exemptions invalid because of content discrimination (the "discrimination" rationale). [FN21] The dissents criticized this part of the plurality opinion harshly. First, they argued, the ordinance was viewpoint albeit not content neutral, and viewpoint neutrality ought to be enough. Second, some of the exemptions, like that for political signs, enhanced free speech values rather than detracted from them. Two difficulties stand in the way of accepting Metromedia's content discrimination rationale at face value, difficulties that remain unresolved to this day. One of the twelve specifically defined exemptions was of For Sale signs. The Supreme Court had held it unconstitutional to ban For Sale signs. [FN22] San Diego merely in- corporated the Court's mandate into its ordinance's provisions. Another exemption was for temporary political signs. San Diego's original ordinance did not contain this provision. It was added only after a local federal court had invalidated another city's ordinance for being too restrictive of political signs. [FN23] The upshot is that an ordinance that does not contain the exemptions is invalid because it fails to protect speech in accordance with ju- dicial decisions; but an ordinance that does contain them is invalid because of content discrimination. Surely the Court did not intend to place municipalities in this impossible Catch -22! The second difficulty has to do with the exemption for governmental signs. Whether it is possible to draft a definition of "sign" that does not include street identifiers, traffic controls, etc., without running afoul of the pro- hibition against content discrimination is debatable. [FN24] It is indisputable, however, that drafting such a definition would be extraordinarily difficult. Metromedia *385 offers no explanation why free speech values re- quire this onerous task to be undertaken. It goes without saying, of course, that these kinds of governmental signs are absolutely indispensable to all municipalities. Given the apparent absence of any First Amendment in- terests that need protection, it seems unlikely the Court meant to suggest that municipalities must forgo sign reg- ulation entirely if they choose to install such essential signs. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 4 3 Wash. U. J.L. & Pol'y 379 Members of the City Council of Los Angeles v. Taxpayers for Vincent was decided three years later. [FN25] At issue was a Los Angeles ordinance that prohibited attaching signs to many types of government property, in- cluding lamp posts. A candidate for public office, whose signs had been torn down by the city, challenged the ordinance. The Court upheld the ordinance by a vote of six to three. Justice Stephens, who dissented in Metro- media, wrote the majority opinion. He emphasized that the ordinance was viewpoint neutral, the same argument he had urged unsuccessfully in his Metromedia dissent. The ordinance, therefore, was entitled to be evaluated under standards for time, place, and manner regulations. Two issues were involved. The first was whether the city's interests in aesthetics were sufficient to justify this impairment of speech. The Court held that they were. Accumulations of signs on public property were a significant evil that could be prohibited. The weight of this in- terest was not reduced by the city's failure to outlaw signs on private property. Private owners were thereby em- powered to communicate by temporary signs, which enhanced speech. Moreover, the concerns of such owners for the beauty of their own property would tend to reduce undesirable visual clutter. The second issue was whether the ordinance's restrictions were no greater than necessary to protect the city's interests. Again, the Court gave an affirmative answer. The ordinance "did no more than eliminate the exact source of the evil it sought to remedy." [FN26] Two reasons support the argument that Vincent implicitly overruled the content discrimination rationale of Metromedia. The first is Vincent's repeated emphasis on the need for viewpoint rather *386 than content neutral- ity. [FN27] The second is that the Los Angeles ordinance in Vincent contained a host of specific exemptions that were similar or identical to those that had proved fatal to the San Diego ordinance in Metromedia. [FN28] The Vincent Court simply ignored them. Before returning to the subject of sign regulation, the Court rendered a decision that has major significance to this discussion. The zoning ordinance challenged in City of Renton v. Playtime Theatres, Inc. prohibited theat- ers that showed sexually explicit films from locating within one thousand feet of any residential zone, school, church, or park. [FN29] Since the ordinance's classification was based on the type of movies that were offered, the challengers claimed content discrimination. The ordinance, however, was upheld by a vote of seven to two. The Court began its analysis by observing that the usual rule required content neutrality. The Court went on to hold, however, that content neutrality is to be determined by looking at a regulation's purposes, not solely at its terms. If its purposes are unrelated to the suppression of speech and if it is viewpoint neutral, then it is entitled to be treated as a content neutral time, place, and manner regulation. The purpose of this viewpoint neutral or- dinance was to preserve the quality of urban life by confining the adverse secondary effects of constitutionally protected adult businesses to certain locales. Hence, it was entitled to be treated as content neutral despite its terms. Renton left two questions unanswered. First, how does one determine whether the purpose of a content based regulation is to control the secondary effects of speech rather than to suppress it? Second, was the Renton doc- trine limited to regulations of adult businesses or was it applicable to other regulations of speech as well? Boos v. Barry addressed both of these questions but resolved only the first. [FN30] The federal statute under review prohibited, within five hundred feet of a foreign embassy, the display of any sign that tended to bring that nation "into public odium." The government argued that *387 the law should be treated as content neutral because its purpose was to prevent the secondary effect of subjecting foreign diplomats to speech that offends their dignity, an objective this nation had an obligation to achieve under international law. The Court rejected the argument by a vote of five to three. "Regulations that focus on the direct impact of the speech on its audience," as here, are regulations of speech itself, not its secondary effects. [FN31] A secondary effect under Renton is one "that hap- pens to be associated with that type of speech," such as the deterioration of neighborhoods, but is not the direct © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 5 3 Wash. U. J.L. & Pol'y 379 result of the speech itself. [FN32] "If the ordinance [in Renton] ... was justified by the city's desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a con- tent -based statute would have been appropriate." [FN33] Only the five justices in the majority addressed the is- sue of confining Renton to restrictions on adult businesses and they divided three to two. Justice O'Connor, who wrote the majority opinion, joined by Justices Stevens and Scalia, appeared willing to use the Renton analysis to determine content neutrality in all cases, including those involving political speech, as was the subject here. Justices Brennan and Marshall objected to that. The three dissenters argued that international law made the gov- ernments interest in this case compelling and that the statute thus survived strict scrutiny review. Hence, they did not reach the content neutrality issue. That split in approach reappeared in Burson v. Freeman. [FN34] The ordinance at issue prohibited the dis- play of political campaign signs within one hundred feet of a polling place. Since only political messages were banned, the ordinance was clearly content - based; however, a splintered Court upheld it five to three. The five justices in the majority divided into three groups, so there was no controlling rationale. The plurality opinion for three of the five justices held that the ordinance survived strict scrutiny because it served the compelling govern- mental interest of protecting voters from fraud and intimidation. That justification seems fanciful at best, as the dissent *388 claimed, in view of the Court's rejection of that same defense in Boos v. Barry, where it made con- siderably more sense. Concurring, Justice Scalia voted to sustain the measure as a permissible viewpoint neutral regulation of the time, place, and manner of holding elections, an eminently more plausible rationale. City of Cincinnati v. Discovery Network, Inc., [FN35] brought to the Court an ordinance regulating the pres- ence of newsracks on public sidewalks. The city claimed the measure furthered its interests in safety (reducing obstacles that pedestrians might trip over) and in aesthetics (newsracks being eyesores). Newsracks dispensing regular newspapers, numbering about fifteen hundred, were permitted; those dispensing publications consisting entirely of advertisements, numbering sixty two, were not. The city justified this content discrimination on the grounds that the ordinance was viewpoint neutral and that commercial speech was entitled to less protection than traditional speech. The Court rejected that justification and struck down the ordinance. The distinction between publications devoted entirely to commercial speech and those that included traditional messages bore no rela- tionship whatsoever to the interests the city claimed to be protecting and thus failed the "no greater than neces- sary" prong of the time, place, and manner standard. All newsracks, irrespective of the content of the publica- tions they offered, contributed equally to the unsightliness of the environment and to the danger of tripping ped- estrians. Furthermore, it was doubtful that removing sixty two of more than fifteen hundred newsracks contrib- uted meaningfully to the city's beauty. The Courts most recent decision on sign controls is City of Ladue v. Gilleo. [FN36] A St. Louis suburb pro- hibited homeowners from displaying any signs except residential identification, safety hazard, and For Sale signs. Businesses, churches, schools, and a few other organizations, were allowed to display signs forbidden to homeowners. Ladue defended its ordinance primarily as a matter of aesthetics, of preventing the uncontrolled proliferation of signs. A unanimous Court declared the ordinance unconstitutional. The Court accepted the city's argument that since the ordinance was aimed at *389 controlling the secondary effects of signs rather than at suppressing speech, it was entitled to be treated as a content neutral time, place, and manner regulation. That ac- ceptance at least implies the Court's agreement that the Renton doctrine is applicable outside the area of adult business regulation, the issue Boos v. Barry left unresolved. The Court gave two sets of reasons for striking down the ordinance. One set was mentioned just briefly, al- most as an aside. Even if it were treated as a time, place, and manner regulation, the Court said, the ordinance's © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 6 3 Wash. U. J.L. & Pol'y 379 exemptions "diminish the credibility" of the city's aesthetics claim, and made it doubtful that the ordinance actu- ally furthered a significant governmental interest. [FN37] The Court thereby perpetuated the muddle that Metro- media created by refusing to acknowledge or discuss the fact that federal court decisions mandated some of the exemptions that condemned San Diego's measure as content discriminatory, such as the For Sale sign exemp- tion. [FN38] Most of the Court's opinion was devoted to the second set of reasons, an analysis of the "alternative channels of communication" prong of the time, place, and manner standard. Residential signs are a particularly important medium of communication for a number of reasons, the Court argued. A message displayed at a home has more impact than it would have if displayed elsewhere, in part because it identifies the speaker. Signs in front yards target neighbors, an audience that is difficult to reach by other means. Residential signs are cheap. They are also convenient. Even wealthy homeowners, who might otherwise not participate publicly in a political debate, might post one or more. They are especially important during political campaigns Finally, the opinion noted that many prior decisions had emphasized that the home is a place that deserves special protections. Hence, Ladue's ordin- ance failed even the more relaxed standard of scrutiny by not leaving open adequate alternative channels of communication. The Court concluded by saying that its decision "by no means leaves the City powerless to address the ills that may be associated with residential signs ... [M]ore temperate measures could ... *390 satisfy" its needs without harm to free speech interests. [FN39] That statement at least leaves open the possibility that reasonable time limits would be viewed as "more temperate," legitimate, restrictions. II. ELECTION SIGNS AND TIME LIMITS A. Identifying the Signs The reason election signs are chosen as the subject of time limit restrictions is that they pertain to events with definite dates. Their importance, therefore, is bounded by time. Given the position of speech about elec- tions at the very apex of the hierarchy of values protected by the First Amendment, however, it might be thought that any measure that selects political speech for disfavored treatment is ipso facto unconstitutional. [FN40] That would be wrong. The Supreme Court has on at least three occasions permitted just that. [FN41 ] One of those oc- casions was Burson v. Freeman, discussed earlier. Lehman v. City of Shaker Heights [FN42] approved a city's refusal to sell advertising space on its buses for any political advertising on behalf of candidates or public issues. Commercial ads were accepted; political ads were not. Greer v. Spock [FN43] upheld a regulation restricting political speeches and the distribution of political literature on military bases. These cases are, of course, distin- guishable. For one thing, the latter two involved governments acting as proprietors of property rather than as regulators of society. The important point, however, is that singling out political speech is not per se unconstitu- tional. Nevertheless, the teachings of Metromedia and Discovery Network must not be ignored. The reasons for wishing to impose time limits on election signs are equally applicable to signs pertaining to other time bound events, such as garage (or tag) sales, homes for sale, lost pets, neighborhood gatherings, and the like. The com- mercial *391 speech preference rationale of Metromedia has provided the authority for invalidating many ordin- ances that failed to impose time limits on signs advertising commercial events. [FN44] The Discovery Network rationale has provided similar authority for overturning ordinances that failed to include signs with other tradi- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 7 3 Wash. U. J.L. & Pol'y 379 tional messages, including political signs that did not pertain to election issues. [FN45] A few courts have rejected the claim that Gilleo sanctions the application of the Renton content neutral doc- trine, have characterized measures that impose time limits on election signs as content discriminatory subject to strict scrutiny, and have struck them down on that basis. [FN46] If these courts are correct, and I doubt that they are, [FN47] this outcome cannot be avoided. So long as political signs are included within the definition of the time bound signs subject to restriction, whether in terms or in effect, these courts will hold the measure to be content discriminatory. The resulting application of strict scrutiny is a certain death sentence for time limit measures under federal constitutional law. Aesthetic considerations (with apologies to ardent environmentalists) will never, ever, be held to be compelling governmental interests. Safety considerations might be —in the ab- stract. It is impossible, however, to conceive of a danger that could be created by temporary political signs that would rise to that level. One court justified the application of strict scrutiny by resort to its state's constitution, recognizing that Supreme Court decisions did *392 not require it. [FN48] That court left open the possibility, however, that longer limits and more vigorous efforts to improve the aesthetics of the environment might lead to a different result. [FN49] B. Defining the Places Election sign restrictions may intrude upon the constitutional rights of two quite distinct groups of people, the candidates (or those interested in ballot propositions) and the property owners. [FN50] Which group is af- fected depends, most of the time but not always, [FN51] on the locations where the signs must be found to be subject to the challenged regulation. Since the locations being regulated in Vincent were entirely public prop- erty, the ordinance that the Court upheld affected only candidates. It is important to emphasize, however, that the Vincent Court held the property at issue, such as lamp posts, to be a non - public forum. [FN52] The Court has held that governments need not abide by time, place, and manner standards in non - public fora. Therefore, it would be a mistake to believe that Vincent allows municipalities virtually free rein when they are regulating signs on public property. Most of the public property on which election signs are placed is in the public forum. In the public forum, municipalities are limited in the restrictions they may impose by time, place, and manner standards. The quintessential public fora are streets and parks. A "street" includes the entire right of way, not just the paved areas. Accordingly, an ordinance that imposed unreasonable restrictions on signs in areas "adjacent to highways " —in the public right of way —was overturned. [FN53] In residential areas the public right of way al- most *393 always includes an area next to the street that homeowners tend to think of incorrectly as their prop- erty. The ordinance in Collier v. City of Tacoma [FN54] permitted election signs in parking strips only with the permission of the owner of the property abutting the strip. Assuming, as I do, that the parking strips were in the street right of way, the question arises whether requiring candidates to procure permission from the abutting owners as a condition of allowing them to use the public forum would pass muster if challenged by a candidate. In this situation, the free speech interests of the candidates and of the property owners may conflict rather than coincide. Private property can be divided into residential and non - residential categories. Whether they must be treated alike for purposes of election sign regulation is uncertain. [FN55] Non - residential property may be divided between commercial/industrial and farm/undeveloped. The catalog of reasons as to why election signs are so im- portant when placed on front lawns that the Court offered in Gilleo [FN56] have little, if any, pertinence to signs © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 8 3 Wash. U. J.L. & Poly 379 in areas zoned commercial or industrial, although they may be relevant to regulations of farmland and open spaces. However, in the commercial speech preference rationale of Metromedia, the Court was particularly em- phatic in stressing that it was impermissible to restrict businesses to commercial messages, that they must be al- lowed to display signs with political messages. [FN57] Apparently, then, the issue would be whether a reason can be found that justifies imposing time limits on election signs in non - residential areas that are different from those imposed on the same signs in residential areas. One final problem is worth mentioning. Residential zones usually contain both occupied and unoccupied lots. Gilleo obviously controls the regulation of election signs on occupied lots. But Gilleo's rationale is only marginally persuasive, if that, when applied to *394 vacant lots. Here the issue of whose rights are being im- pinged comes to the fore. Are candidates constitutionally entitled to put their signs on vacant lots so long as the owner does not object? Or are the municipality's interests in aesthetics sufficient to allow it to ban all signs on vacant lots that are not placed there by the owners? C. Defining the Time Limit In the process of declaring election sign regulations unconstitutional for other reasons, many courts have stated in dictum that reasonable time limits would be allowed. [FN58] The catch, of course, is defining "reasonable." The regulation may limit how long before the election the sign may be displayed, or how long after the election it may be retained, or both. [FN59] The easier part is defming the period subsequent to the event because the message on the sign then has no utility. It has no utility, that is, when the covered event is the final election scheduled to resolve the subject. If the election is one of a sequence —if, for example, the covered event is a primary election leading up to a general election —the sign's utility is not ended. A number of ordin- ances have specifically allowed the signs of the winners of the primary election to remain on display throughout the period between the primary and the general election. [FN60] That detail aside, the only other consideration is giving the sign's owner a fair chance to remove it. Any plausibly reasonable period, such as one week, ought to be satisfactory. Two cases have approved limits of ten days following elections. [FN61 ] *395 Defining the starting point, the date before which signs may not be displayed, is a much more problem- atic venture. Any such limit must be viewed with skepticism because it will have been formulated by incum- bents, who are less likely than their potential opponents to need to establish name recognition. Obviously, the group whose interests are primarily at stake here are the candidates. Homeowners may also have an interest, but it cannot be as substantial as that of the candidates. Three cases have struck down sixty day limits as inadequate. [FN62] Another invalidated a forty-five day period, but mainly because the court read Gilleo as virtually outlaw- ing restrictions that apply to homeowners. [FN63] Twenty years ago, in a decision the Supreme Court summar- ily affirmed, a federal court of appeals declared in dictum that a three week limit was inadequate. [FN64] Nevertheless, common sense dictates that some outer limit should be permissible. Whether there should be one limit or many is debatable. Two cases have upheld general restrictions on the total time temporary signs may be displayed that made no specific reference to election dates. [FN65] Perhaps the limit should vary de- pending on the office or ballot issue (for example, statewide or local). That would complicate the task of draft- ing the regulation. I have no idea what impartial sources a court might consult in determining whether any given limit would adequately protect the rights of individuals while at the same time giving municipalities some dis- cretion in protecting environmental concerns. Absent a controlling decision from the Supreme Court, each case will establish its own starting point, depending on the expert testimony and other evidence offered in that case. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 9 3 Wash. U. J.L. & Pol'y 379 *396 III. CONCLUSION Properly interpreted, Supreme Court decisions permit local governments to impose reasonable time restric- tions on election signs. The restrictions must also cover signs bearing other time bound messages, commercial and traditional. Subject to that qualification the validity of such measures ought to be tested only under the less rigorous scrutiny applicable to other content neutral time, place, and manner regulations. Whether signs on non- residential property may be treated differently from those on residential property is unclear, but doing so raises difficult constitutional questions. Establishing a period after an election during which signs must be removed ap- pears to be relatively risk free. Establishing a period before an election during which signs cannot be displayed presents great constitutional difficulties. Fixing a uniform period may not be possible. [FNaI]. Professor of Law, Emeritus, Washington University School of Law. A.B. 1957, J.D. 1958, Washington University. I am honored to participate in this celebration of Daniel R. Mandelker, who very early on recognized the significance of applying the First Amendment to land use controls. He conceived the book FEDERAL LAND USE LAW, and asked me to join him as co- author. I am indebted to him for that opportunity and for his many other kindnesses over the years. [FN1] . See generally DANIEL R. MANDELKER ET AL., FEDERAL LAND USE LAW §§ 7.01 -7.12 (1999) [hereafter FEDERAL LAND USE LAW]. [FN2]. See, e.g., Rappa v. New Castle County, 18 F.3d 1043, 1076 (3d Cir. 1994); John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980), affd, 453 U.S. 916 (1981). The effectiveness of signs as a means of achieving name recognition was the subject of disputed expert testimony in Rappa. [FN3]. See, e.g., Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (The constitutional protection afforded political speech has its "fullest and most urgent application precisely to the conduct of campaigns for political office. "). [FN4]. For other efforts, see Stephanie L. Bunting, Unsightly Politics: Aesthetics, Sign Ordinances, and Homeowners' Speech in City of Ladue v. Gilleo, 20 HARV. ENVTL. L. REV. 473 (1996); Daniel N. McPher- son, Municipal Regulation of Political Signs: Balancing First Amendment Rights Against Aesthetic Concerns, 45 DRAKE L. REV. 767 (1997); Thomas Stephen Neuberger & Daniel T. Smith, The First Amendment Implica- tions of State Regulation of Candidate Political Speech Through Election Signs, 14 ST. L.U. PUB. L. REV. 571 (1995). [FN5]. See, e.g., Orazio v. Town of North Hempstead, 426 F. Supp. 1144 (E.D.N.Y. 1977). [FN6]. See Cox v. New Hampshire, 312 U.S. 569 (1941). [FN7]. Id. at 575 -76. [FN8]. Id. [FN9]. Support for the statements about constitutional standards in the last two paragraphs can be found in LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12 -2 (2d ed. 1988); ERWIN CHEMER- INSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 11.2.1 (1997); and RODNEY A. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 10 3 Wash. U. J.L. & Pol'y 379 SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT §§ 3.01 -3.04 (Student ed. 1994). [FN 101 See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 797 (1989) ( "[R]estrictions on the time, place, or manner of protected speech are not invalid `simply because there is some imaginable alternative that might be less burdensome on speech.' ... Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech ... need not be the least - restrictive or least - intrusive means .... "). [FNI1]. SeeNiemotko v. Maryland, 340 U.S. 268 (1951). [FN12]. See Geoffrey R. Stone, Content - Neutral Restrictions, 54 U. CHI. L. REV. 46 (1987); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189 (1983). [FN13]. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981). Hef- fron upheld a statute that required everyone who wished to do a number of things at the state fair, including soli- cit money, to do so from booths that were rented on a first come, first served, basis. Id. at 643 -44. Because the restricted speech- soliciting money -was identified by content, the statute clearly was content based. But since it was applicable to everyone, it was viewpoint neutral. The Court described it as content neutral. Id. at 648 -49. [FN 14]. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), discussed infra notes 16 -24 and accompanying text. [FN15]. See Consolidated Edison Co. of New York, Inc. v. Public Service Comm'n, 447 U.S. 530, 536 -37 (1980). [FN16]. Metromedia, 453 U.S. at 490. For a more detailed description and analysis, see FEDERAL LAND USE LAW, supra note 1, at § 7.02. [FN I7]. Id. at 521. [FN 18]. Id at 521 -40. [FN I9]. Id at 513. [FN20]. For criticism of this aspect of Metromedia, see FEDERAL LAND USE LAW, supra note 1, at § 7.02[3][b][i]. [FN21]. 453 U.S. at 515 -17. [FN22]. Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 91 -98 (1977). [FN23]. See Baldwin v. Redwood City, 540 F.2d 1360 (9th Cir. 1976). Moreover, on the same day it decided Metromedia, the Court summarily affirmed John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980), affd, 453 U.S. 916 (1981). That case struck down Maine's anti - billboard statute partly on the ground that it did not contain an exemption for political signs. [FN24]. For a heroic effort to create definitions that satisfy judicial requirements, see DANIEL R. MANDELK- ER & WILLIAM R. EWALD, STREET GRAPHICS AND THE LAW 83 -130 (rev. ed. 1988). © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 11 3 Wash. U. J.L. & Pol'y 379 [FN25]. Members of the City Council of Los Angeles v. Taxpayers, 466 U.S. 789 (1984). [FN26]. Id. at 808. [FN27]. See FEDERAL LAND USE LAW, supra note 1, at § 7.02[3][b][ii]. [FN28]. Id. [FN29]. City of Renton v. Playtime Theatres, 475 U.S. 41 (1986). For a more detailed description and analysis, see id. § 8.02. [FN30]. Boos v. Barry, 485 U.S. 312 (1988). [FN31]. Id. at 321. [FN32]. Id. [FN33]. Id. [FN34]. 504 U.S. 191 (1992). [FN35]. 507 U.S. 410 (1993). [FN36]. 512 U.S. 43 (1994). [FN37]. Id. at 52 -53. [FN38]. See supra notes 22 -23 and accompanying text. [FN39]. 512 U.S. at 58. [FN40]. For an extensive analysis of this subject, see Frederick Schauer & Richard H. Pildes, Electoral Excep- tionalism and the First Amendment, 77 TEX. L. REV. 1803 (1999). [FN41]. It can be argued that the Court's recent approval of campaign contribution limits is a fourth example. See Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897 (2000). [FN42]. 418 U.S. 298 (1974). [FN43]. 424 U.S. 828 (1976). [FN44]. See Whitton v. City of Gladstone, 54 F.3d 1400 (8th Cir. 1995); Dimas v. City of Warren, 939 F. Supp. 554 (E.D. Mich. 1996); McCormack v. Township of Clinton, 872 F. Supp. 1320 (D.N.J. 1994); Warms v. Springfield Township, No. 94 -6610, 1994 WL 613660 (E.D. Pa. 1994), No. 94 -6610, 1995 WL 318791 (E.D. Pa. 1995); Union City Board of Zoning Appeals v. Justice Outdoor Displays, Inc., 467 S.E.2d 875 (Ga. 1996); Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993) (en banc); Fisher v. City of Charleston, 425 S.E.2d 194 (W. Va. 1992); Richard Spence, Union City Board of Zoning Appeals v. Justice Outdoor Displays, 467 S.E.2d 875 (Ga. 1996), 26 STETSON L. REV. 1073, 1073 -74 (1997). [FN45]. See Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994); Dimas v. City of Warren, 939 F. Supp. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 3 WAUJLP 379 Page 12 3 Wash. U. J.L. & Pol'y 379 554 (E.D. Mich. 1996); McCormack v. Township of Clinton, 872 F. Supp. 1320 (D.N.J. 1994); City of Lake- wood v. Colfax Unlimited Assn., Inc., 634 P.2d 52 (Col. 1981) (en banc); Van v. Travel Information Council, 628 P.2d 1217 (Ore. App. 1981). [FN46]. See Whitton v. City of Gladstone, 54 F.3d 1400 (8th Cir. 1995); City of Euclid v. Mabel, 484 N.E.2d 249 (Ohio App. 1984), cert. denied, 474 U.S. 826 (1985); City of Antioch v. Candidates' Outdoor Graphic Ser- vice, 557 F. Supp. 52 (1982). [FN47]. See Whitton v. City of Gladstone, 54 F.3d 1400, 1411, for the compelling dissent of Judge Fagg. [FN48]. See Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993) (en banc). [FN49]. Id. at 1057. [FN50]. See Arlington County Republican Comm. v. Arlington County, 983 F.2d 587 (4th Cir. 1993). [FN51]. The regulation in Van v. Travel Information Council, 628 P.2d 1217 (Ore. App. 1981), was overturned in part because it permitted only candidates and their committees, but not private citizens, to display election signs. [FN52]. For a description and analysis of public forum doctrine, see JOHN E. NOWAK & RONALD D. RO- TUNDA, CONSTITUTIONAL LAW § 16.47 (5th ed. 1995); FEDERAL LAND USE LAW, supra note 1, § 6.03. [FN53]. See Van v. Travel Information Council, 628 P.2d 1217 (Ore. App. 1981). See also Arlington County Republican Comm. v. Arlington County, 983 F.2d 587 (4th Cir. 1993) (concerning a restriction on the numbers of signs rather than on time). [FN54]. 854 P.2d 1046 (Wash. 1993)(en banc). [FN55]. Orazio v. Town of North Hempstead, 426 F. Supp. 1144 (E.D.N.Y. 1977), restricted campaign signs in non - residential areas, but the restriction was of wall signs, not the temporary signs under discussion. [FN56]. See supra text accompanying notes 37 -39. [FN57]. Metromedia, 453 U.S. at 520 -21. [FN58]. See Verrilli v. City of Concord, 548 F.2d 262, 265 (9th Cir. 1977); Baldwin v. Redwood City, 540 F.2d 1360, 1370 (9th Cir. 1976), cert. denied sub nom., Leipzig v. Baldwin, 431 U.S. 913 (1977); McCormack v. Township of Clinton, 872 F. Supp. 1320, 1326 (D.N.J. 1994); City of Lakewood v. Colfax Unlimited Ass'n, 634 P.2d 52, 63 (Colo. 1981) (en banc); Town of Huntington v. Estate of Schwartz, 313 N.Y.S.2d 918 (Dist. Ct. 1970); Fisher v. City of Charleston, 425 S.E.2d 194, 201 (W. Va. 1992). [FN59]. Recall that the regulation will also have to cover other time bound events in order to satisfy Discovery Network. See supra note 35 and accompanying text. Because of that requirement, care must be taken in formu- lating the allowable time periods. It may be necessary to cover the different kinds of signs in different sections of the regulation. [FN60]. See, e.g., Curry v. Prince George's County, 33 F. Supp. 2d 447 (D. Md. 1999); Dimas v. City of Warren, © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 4 3 WAUJLP 379 Page 13 3 Wash. U. J.L. & Pol'y 379 939 F. Supp. 554 (E.D. Mich. 1996); Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993) (en banc). [FN61]. See Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992), cert. denied, 508 U.S. 830 (1993); Ross v. Goshi, 351 F. Supp. 949 (D. Haw. 1972). [FN62]. City of Antioch v. Candidates' Outdoor Graphic Service, 557 F. Supp. 52, 61 (N.D. Cal. 1982); Van v. Travel Information Council, 628 P.2d 1217, 1227 (Ore. Ct. App. 1981); Collier v. City of Tacoma, 854 P.2d 1046, 1058 (Wash. 1993) (en Banc). [FN63]. Curry v. Prince George's County, 33 F. Supp. 2d 447, 455 (D. Md. 1999). [FN64]. See John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980), affd, 545 U.S. 916 (1981). [FN65]. See City of Waterloo v. Markham, 600 N.E.2d 1320 (I11. App. Ct. 1992) (allowing ninety days total for all temporary signs); Brayton v. City of New Brighton, 519 N.W.2d 243 (Minn. Ct. App. 1994) (during appar- ently undefined "election season "). 3 Wash. U. J.L. & Pol'y 379 END OF DOCUMENT CO 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.