Reconciling Santa Monica’s Ban on Pole Signs

The contentious code — which eliminates all pole signs — takes effect

This article, written by Jennifer Flinchpaugh, originally appeared in the May 2000 issue of Signs of the Times magazine.

No projecting signs. No upper-level signs. No roof signs. And no off-premise signs. Certainly Santa Monica, CA’s sign code, adopted in 1985 and scheduled to be implemented on April 12, 2000, is restrictive by most signmakers’ standards.

Not only does the ordinance severely limit the types of signage allowed, it requires that all business owners pay for removal of their nonconforming signage at a cost of roughly $1,200 per sign. After the sign code takes effect, the city will reportedly remove any remaining, nonconforming signs and bill business owners for doing so.

When addressing the ordinance in his article, “Santa Monica Ordinance Takes its Pole” (ST, May 1999, page 60), Bob Wehenkel, salesman for Sign Methods (Signal Hill, CA), wrote that the ordinance violates Section 5491 of the California State Business and Professions Code. The California code states, “No on-premise advertising display… shall be compelled to be removed or abated., without the payment of fair and just compensation.”

In his article, Wehenkel then posed three issues he, his employer and California Electric Sign Association (CESA, now known as the California Sign Association) attorney Robert Aran, who authored a portion of the California State Business and Professions Code, wanted resolved. These issues and their resolution one year later, are chronicled here:

1. Will the city willfully thumb its nose at the Business and Professions Code?

Since California’s severe 1993 earthquake, towns have established “redevelopment areas” to overcome losses resulting from the natural disaster.

Santa Monica’s city council reportedly determined, although the sign ordinance was written for the entire Santa Monica region, nonconforming signs don’t have to be removed in parts of town that aren’t “redevelopment areas.” Were it enforced in non-redevelopment areas, the city would have to pay just compensation, and it doesn’t wish to do so.

However, city council reportedly will enforce the code within the Santa Monica redevelopment area, stating that just compensation doesn’t apply in that district.

The city does seem to be “thumbing its nose” at the Business and Professions Code. This is ironic because the ordinance’s introduction reads: “It is the intent of the City to regulate signs consistent with California Business and Professions Code Section 5490-5497 to the maximum extent permined by state law.”

Moreover, one could make a compelling argument that the city is violating the Fifth Amendment, which says, “. . . nor shall private property be taken for public use, without just compensation.”

2. What will be the city’s “criteria for exemption”? What are the definitions of “historical” and “unique”?

In February 1998, the Planning Commission expressed concern that the sign ordinance may cause the removal of nonconforming but “meritorious” signs worthy of preservation because of their historical, cultural or aesthetic merit.

To protect these signs, in March 1999, city council approved establishing a Meritorious Sign Task Force and directed staff to amend the sign ordinance, exempting meritorious signs from the ordinance’s Section 9.52.210(d). In July and August, the Task Force held four public meetings and determined, to be deemed meritorious, a sign must first be considered “historically significant” or “artistically significant.” These terms were defined by the Task Force as follows:

  • “A sign is historically significant if the sign was erected or created before 1970 and is either representative of significant signmaking techniques or styles of a historical era in Santa Monica’s history (Resort/Commuter Suburb Era, Early Motor Era and Post War Era) and represents entities or establishments that are an important part of Santa Monica’s history.”
  • “A sign is artistically significant if the sign was erected or created between 1970 and 1985 and is of contemporary design, uses innovative materials with technical excellence and represents entities or establishments that are an important part of Santa Monica’s history.”

The Task Force also said that if a sign meets one of these two findings, at least one of these requirements must also be met:

  • The sign possesses uniqueness and charm because it has visually aged.
  • The sign remains a classic example of craftsmanship or style of the period when it was constructed using materials in an exemplary way.
  • The sign is architecturally integrated into the structure.
  • The sign is an inventive representation of the use, name or logo of the building or business.
  • The sign is located on buildings or properties with buildings that have been designated as historic landmarks or have been listed in the city’s Historic Resources Directory.

Finally, the Task Force stated that “if the character-defining features of a meritorious sign are altered, the sign will be deleted from the meritorious list and required to be removed or, where applicable, modified to comply with the sign code.”

In September 1999, with the criteria for meritorious signage established, city council then modified its original sign ordinance, permitting such signs to remain after the April 2000 removal date. Council also established a Meritorious Sign Review Board  and a procedure for reviewing and designating meritorious signs. Interestingly, the Review Board included no sign-industry representation, but did include a member of each of the following:

  • the Architectural Review Board;
    the Landmarks Commission;
    the Planning Commission;
    the business community; and
    the community at-large.

3. What about enforcement? Santa Monica apparently dismisses grandfathering signs because Section 9.52.210 reads: “Signs that have been lawfully placed before the effective date of this Chapter and are not in conformance with the provisions of this Chapter shall be removed or where applicable, modified to conform to the requirements of this Chapter.”

The Meritorious Sign Review Board first met on December 8, 1999. At that meeting, staff approved 21 signs on a draft list of signs for meritorious consideration. After publicizing its upcoming January meeting, the board received additional requests for consideration.

On January 26, 2000, the board approved 83 signs (representing 66 businesses) on the final list of meritorious signs. At the board’s February meeting, 10 other signs were added.

Also in February, council mailed information packets to businesses that named the nonconforming signs and the owners of the properties on which those signs were located. According to council records, “The packets contained information about the meritorious sign designation process [including a list of those signs approved by the Meritorious Sign Review Board], the appeal process, a copy of ordinance 1956 containing the criteria for meritorious designation and a fact sheet regarding sign modification or replacement.”

At a special March 22 meeting, the Santa Monica City Council heard and considered 55 appeals by companies whose signs were not included among the list of 93. Of the 55 appeals, council upheld 21, adding them to the list for a grand total of 114 signs saved. At presstime, attorney Robert Aran was meeting with several clients whose signs were refused appeal and who are considering legal action against the city.

When asked why more companies weren’t following suit, Wehenkel said the cost of legal action was a deterrent for most of his sign clients. Few could afford an $80,000-$100,000 court battle. “And no one really took the initiative to put a class-action suit together,” he said. “So a lot of people are stuck taking down their signs. We’ve been to a lot of chamber of commerce meetings, acting as the liaison between the sign owners and the city. And I’ve written up many appeals for meritorious sign consideration.”

The Santa Monica sign ordinance, concludes Wehenkel, indicates “some of the amazing things cities do. Santa Monica is a unique town. It’s in the news once a week for something crazy the council is doing,” he says.

 

Photo Credit: web4camguy

Posted in 1st Ammendment / Freedom of Speech, Amoritzation, Associations, Blog: Rhetorical, Supreme Court.