After more than three years of study, drafting and review by the Historic District Commission and others, the Town Council has approved amendments to the ordinance regulating the size, placement and appearance of signs in the town, while not directly addressing concerns about the ordinance’s enforcement.
The vote at the Council’s sparsely-attended May 1 meeting was 4-0, with Councilor Martha Ball abstaining. Ball is also a member of the HDC, and she announced that she was abstaining because she had had “multiple conversations” there about the issues raised in the proposal.
Historic District Commission Chair Bill Penn presented the proposed amendments to Section 504 of the Zoning Ordinance, with two last-minute changes that the Planning Board had recommended in recent discussions. One allows roof-mounted signs, as on a porch roof; the other restricts “flags that spell ‘Open’” to one per business. The final approval included both changes.
The amendments made several significant changes to the ordinance. “Symbols” are no longer allowed as a type of permitted sign or as part of a sign consisting of individual letters attached to a surface. “Commercial flags or banners [and] umbrellas or tents displaying a word, symbol, or design or a combination of words, symbols or designs” are now prohibited. Lighting requirements now specify “warm-white” bulbs and low placement “to provide ambient lighting” for pedestrians; outlining building edges is not allowed. Two new subsections specifically allow types of signs not addressed in the existing ordinance: each restaurant may now have one internally-lit “restaurant menu board”, and “temporary banners promoting community events” are allowed within time limits.
Unchanged are the requirement and process for approving signs; limits on the number and size of each type of sign; specifications on materials, letter size and style, and confining registered trademarks and logos to 25 percent of a sign’s allowable area; and prohibitions on neon lighting, internally illuminated signs and awnings and electronic signs with changing messages, among others.
The final version of the amendments addressed several freedom of speech concerns raised by Town Solicitor Kathy Merolla with the Historic District Commission. She told the HDC in a June 2017 work session that the town’s existing sign ordinance and the draft amendments would likely be found unconstitutional if challenged in court, because they regulated the content of signs, not just their placement and physical characteristics.
Summarizing the advice she had received on the changing state of the law, Merolla said at the time: “Basically, what we’re being told as solicitors is that the law is evolving, continually changing. If your building official has to read the sign — read its content — to determine if the sign complies with the [local] ordinance, then the ordinance is unconstitutional.”
As a result, the amendments adopted by the Council prohibited all “words, symbols or designs” on flags, banners, umbrellas and tents, not just those featuring logos, trademarks, other symbols, or wording identifying brands and their products or services, or those of a business. Subsections exempting real estate signs and “for sale” signs for garden or craft products — problematic because they singled out types of signs based on their content — were removed.
The final version also included a severability clause, so that if one provision is held to be unconstitutional, the rest of the law doesn’t fail on constitutional grounds; and a paragraph stating the policy that the ordinance is intended to be neutral regarding the content of the sign — that is, not being applied because of the topic discussed or the message or idea expressed.
Merolla had no comment on the amendments at the Council meeting, nor did Town Manager Ed Roberge. Only Penn and Planning Board Chair Margie Comings spoke in favor of the amendments.
“What isn’t being enforced?”
Enforcement, not constitutionality, was on HDC Chair Penn’s mind at the hearing. He asserted that in past years Town Building Official Marc Tillson had not issued notices of violation of the sign ordinance’s requirements until August, as allegedly non-conforming businesses were preparing to close.
“We need to have proper enforcement,” Penn insisted. “We feel there hasn’t been enough support from the building official.”
“What isn’t being enforced?” asked Councilor Chris Willi.
Penn responded by describing a scenario he said is common: A business opens at the beginning of the summer season and puts up signs without applying to the HDC for approval of the design and without applying for a building permit for the sign itself. The building official serves a notice of violation in August. Whether or not the business owner responds to the notice or files an appeal, the business closes for the season without resolving the alleged violation, and puts up the same sign the next year. The scenario repeats.
“So, it’s businesses ignoring you altogether,” said Willi.
“Yes,” replied Penn. “We can’t enforce, we can only approve.” As examples of non-conforming signs, he cited a large plastic ice cream cone outside a Water Street sandwich shop, and bicycles mounted on the roof of a rental shop.
Councilor Sven Risom, who is also a member of the Planning Board, agreed with Penn. “The Planning Board has seen this over three-plus years. The lighting enforcement is also an issue. Enforcement has to be better.”
“Marc Tillson does a great job,” Risom continued, “but he has a lot of enforcement topics” to work on.
Tillson did not attend the Council meeting. Reached beforehand, he declined to comment to The Block Island Times on the proposed changes to the ordinance he is charged with enforcing.
“I haven’t reviewed it,” Tillson said. “If it gets passed, I will review it and enforce” the revised ordinance. His only comment on the substance of the proposal was that shortening the time period for removing a non-conforming sign after being cited from 30 days to 10 days was “reasonable.”
“Enforcement goes on all the time, Tillson said; “There’s a procedure in place that works very well.”
He explained that once a notice of violation is issued by the building official (for any alleged infraction, not just for signs), the property owner or business owner has the right to appeal the notice to the town’s Zoning Board of Review within 20 days.
If the Zoning Board upholds the notice of violation, the next step is to go to state court to have it overturned. “Everyone wants everything to happen quickly,” he added, but due process is required by state law.
Tillson emphasized that he is willing to work with the property owner before issuing the violation notice, explaining the sign ordinance and telling them to follow the process to get the sign approved.
As for the freedom of speech concerns, Tillson said, “If I’m ever in court, being questioned by a judge or attorney, I say, ‘My job is to enforce the local ordinance as it’s been given to me.’ I do not enforce [the state law or the U.S. Constitution]. Whatever the ordinance is, it’s the building official’s job to enforce that ordinance.”
“Enforcement is a big issue”
“I think it went very well,” Penn told The Times after the Council voted to adopt the recommended amendments. “It’s the culmination of over three years of work” by the HDC, the Planning Board and Town Solicitor Merolla, he said.
“The result is, now we have an ordinance we can administer with consistency. But again, enforcement is a big issue,” he added. “It’s the building owner’s responsibility to comply with Section 504, the sign ordinance.”
Penn returned to the examples he gave in the hearing. What’s the problem with three-dimensional ice cream cones displayed during a shop’s open hours? “It’s a symbol. The ordinance prohibits symbols,” he answered.
“If the community didn’t want us to prohibit symbols, they should have shown up” at public meetings while the amendments were being worked on, he added.
Penn returned to the enforcement issue later in the Council meeting, as the members discussed a suggestion by Risom to improve communications between the Town Council and other boards, commissions and community organizations.
He told the Council: “As Chairman of the Historic District Commission, we would relish the opportunity to talk about enforcement. That will be at the top of our priority list.”