Following a revamping of the original draft ordinance to amend the Code of Sussex County related to signs, a new series of public hearings is being held by the Sussex County Council. This week members of the public who spoke at the first hearing voiced opposition to the proposed ordinance as written.
Georgetown attorney David Hutt, of Morris James Wilson Halbrook & Bayard LLP, spoke on behalf of Clear Channel Outdoor, Geyer Signs, Hocker Signs, Jack Lingo Realtors, J.D. Sign Company, Ocean Atlantic, Phillips Signs Inc., Premier Outdoor Media LLC, Rogers Sign Co. Inc. and Timmons Outdoor Advertising.
Hutt, who volunteered his time to the working group convened last year when county officials and stakeholders reviewed the county code, presented a red-lined version of the proposed ordinance pinpointing six areas he said he believed needed to be addressed.
Hutt said lighting standards needed to be addressed, as the wording of the proposed ordinance could be interpreted as needing to meet both light standards — NITs and foot-candles.
The measurement was much debated over the last several months, which is why the County chose to include both measurements. Hutt recommended solely using foot-candles as its standard of measurement, as they are much easier to measure, and therefore enforce, he said.
The draft sections regarding setbacks and separation distances were also tweaked by Hutt.
In the current code, off-premises signage has to be at least 25 feet from the property line, whereas in the proposed ordinance, such a sign would have to be at least 40 feet from the property line.
“County code has a very orderly process on signs, with relation to setbacks and buildings,” said Hutt. “On-premises signs have a 5-foot frontward setback. Right behind those, you have off-premises signs, with a 25-foot front-yard setback.
“In a CR-1, where off-premises signs can be located, buildings can begin at 60 feet… What’s being done in the second ordinance is a squeezing of the area to the point where there’s really no place to put a sign on a commercial property. That’s why the suggestion is to go back and use the orderly process that has been the standard in Sussex County, which is a 25-foot front-yard setback for off-premises signs.”
Hutt’s red-lined version also requests the return to a 300-foot separation distance from a church, dwelling, school or public lands, as measured on a radius.
“The difficulty with that is, if you have a large property, the sign may have no impact on the structures on that property. Imagine a church that has a 4-acre parcel and this CR-1 ground was on the south end of it and the church is on the northern end of the property, 800 feet away. Yet, in what’s proposed, because that property is used as a church, there’s an additional 150 foot setback being imposed on that property owner.”
Hutt, who has represented property owners who wish to erect signs on their parcels, said his clients first get a site plan, which on the plan includes a 300-foot radius from each end of the sign, delineated by the surveyor.
Once a site plan is completed, Hutt or his client will meet with the neighboring property’s owners to discuss their desire to submit an application for a sign permit.
“Most often the response is favorable,” he said, adding that most public hearings related to sign applications lack opposition.
During the council’s discussion when they chose to change the separation distance, there was concern surveyors would be unable to get permission to access neighboring property.
“I can tell you I’ve never had one surveyor have any issue with measuring any distance from a building,” he stated. “In fact, most often those things are done electronically, with lasers and GPS. It doesn’t necessarily require the surveyor go on-site to measure.”
about variance issues
Hutt’s red-lined version also removes the prohibition against an off-premises sign being erected within 50 feet of an on-premises sign.
“There is already a really good envelope within the current code, as it exists, for the location and placement for an off-premises sign,” he said, noting that an on-premises sign is not singly a ground sign. “You’re going to have locations on buildings where you can’t have an on-premises sign because of an existing off-premises sign. You’re creating a conflict that doesn’t exist currently and is going to lead to further complications in the code and the need for variances… which the code seeks to eliminate.”
Giving the example of a business wanting to put up a wall sign, Hutt said, with the proposed ordinance as is, instead of going to the Planning & Zoning office to apply for a sign permit, one would have to apply for a variance.
“Another step, another additional cost to the business owner,” said Hutt. “Again, those are the unintended consequences of trying to over-restrict the location and placement of signs.”
Councilman Rob Arlett said off-premises signs are a business, as is a business with an on-premises sign.
“If there’s conflict there, that owner has to make a decision as to what’s a priority to them. I’m just throwing it out there…”
Councilman George Cole agreed, stating that business owners have to comply with other regulations, such as parking.
Hutt said the difficultly and the difference between parking, stormwater management, et cetera, and signage is that those are decisions a property owner is making about their own property.
“Signs is what’s on the next property. It’s not necessarily just your decision about what you’re going to do with your property… That’s why setbacks are so meaningful.”
He also called out the part of the Sussex County code that says a dwelling can be a property with a “for sale” sign.
“It doesn’t even have to have a billboard on it. It has a ‘for sale’ sign on it for residential purposes. That’s a ‘dwelling’ under the Sussex County Code. That means you have to be another 150 feet from a vacant property.
“I point that out because that’s not a decision that I, as the owner of property, trying to balance stormwater, parking and signs, has to worry about what to do with my own property. That’s my neighbor pounding a ‘for sale’ sign into the ground and changing my setback for me.”
In the new proposed sign ordinance, a variance process does not exist for off-premises signs and Electronic Message Centers (EMCs) as on-premises signs.
Hutt said the State of Delaware gave all of its counties the ability to enact zoning ordinances, through the State Code.
“Recognizing zoning codes, by their very nature and definition, are imprecise and imperfect, and require constant updating and changing, the State code also requires that a municipality or a county which has been given zoning authority have a process in which a property owner whose property is being impacted can appeal the impact of that zoning to a Board of Adjustment or, in certain circumstances, to the Planning & Zoning Commission.
“That’s simply a recognition of the fact that real property is something that is always unique. The look on Route 1 is not the look on Route 113 or the look on 13. Every one of those highways has a different set of facts and circumstances, and the properties are all configured differently.”
Hutt’s said by taking away the variance process, the County would be making signs the most regulated part of the code.
He noted there are a number of things a property owner can’t control when erecting a sign — whether or not the neighboring property has an EMC, where they may place an on- or off-premises sign. However, building a deck on one’s home, he said, is something that is completely controlled by the property owner, and a variance process exists for those who wish to do so.
Hutt said that if the County chooses to adopt the Delaware Department of Transportation’s (DelDOT) sign requirements (25 feet from a road, sign body cannot be greater than 25 feet in height, and must be at least 300 feet from another sign) they would no longer have variance requests.
Cole questioned whether DelDOT has a variance process. Hutt said they do have a variance process, which doesn’t apply to separation distances.
Additionally, in the proposed ordinance, a sign destroyed by nature that was non-conforming would not be permitted to be rebuilt. Nor would a sign with 50 percent or more of the supporting pikes or structures located above-ground or destruction of 75 percent or more of the facing be able to be repaired or reconstructed within 12 months of the damage.
The red-lined version provided by Hutt removes those restrictions, as the damage is beyond the control of the property owner, he argued.
It adds, however, that those signs being replaced must comply with height and size requirements.
He noted that a conforming sign could become non-conforming if, for instance, an off-premises sign is erected within the 50-foot required side-yard setback, or if neighboring property builds a home on their property.
“The sideboard setback is now 150 feet from that property line, so now my sign has become non-conforming on my property.”
He said then, if the property owner later wants to replace that sign, they would not be able to because it would then be, under the proposed ordinance, considered non-conforming. That property owner would have no recourse in that circumstance, as the County’s proposed ordinance seeks to remove the variance process for off-premises signs.
Animated signs ‘tacky,’ according to Cole
In the proposed ordinance, it also prohibits the conversion of non-conforming off-premises signs to EMCs. Hutt’s red-lined version removes that prohibition, too.
Hutt also addressed the prohibition of animated signs — noting that it would eliminate the ability of business owners to use individuals who hold signs on the side of the road or the inflatable moving advertisement known as an AirDancer, often seen at car dealerships.
“I don’t think that was the intended reach,” he said. “When you have a very broad term in a prohibited section, you take in probably more than you probably intended to take in.”
Hutt called up Ben Phillips of Phillips Signs Inc. to explain the difference between “live” and “animation.”
“Live means live,” said Phillips. “It’s an event that’s going on right now and somehow is being projected on that sign. It’s something that we do not agree with.”
Animation, he said, is any movement.
“If you want to get technical, a frame change is animation.”
Phillips recommended that the council prohibit live streaming, scrolling and flashing (along the lines of a flashing traffic light).
Phillips said he doesn’t understand the problem with animation on EMCs.
“What difference does it make? No one is giving me a legitimate reason not to allow it.”
“It’s tacky,” said Cole. “I think it’s tacky. I think it’s not appealing. I think we need to have some standards in this county. I don’t think we need Route 1 or Route 13 going through Seaford with all this going on.”
Cole said he’s been to other jurisdictions and hasn’t seen the prevalence of signs as that in Sussex County.
“Go to Salisbury,” said Phillips. “Your reason for not allowing it is because you don’t like it. To me that’s not a good enough reason. Show me that it’s causing public harm. Show me it’s causing accidents.”
Arlett asked for documentation showing that animation on EMCs either is or is not a public safety concern.
Hutt said numerous studies were shared with the County in the last proposed ordinance’s public hearing process, showing that animated signs did not have an impact on the safety of drivers.
Temporary real estate signs were also addressed by Hutt, who said the issues noted by Realtors could be addressed by eliminating the prohibition of back-to-back signs and changing the maximum area of signs to 32 square feet.
Hutt said the change would simply reflect the current practice.
Merritt Burke IV, CEO of the Sussex County Association of Realtors, spoke against the elimination of animation.
He said SCAOR supports 32 square feet per sign, or a total of 64 square feet for an A-frame sign.
Jason Dean of J.D. Sign Company also spoke during the hearing, stating he has yet to hear someone outside of council members complain about signs.
“What I keep hearing from people is, ‘Who cares?’” he said. “There’s no one here from the public to complain… I’ve listened to a lot of opinions, feelings… What I haven’t heard is facts, figures and data.”
Although it was requested that the public record be left open, as the Planning & Zoning Commission were expected to give their recommendation on Thursday, instead the County chose to leave the public record open for written comments related to the commission’s decision.
Written comments will be accepted by the County until Friday, Sept. 30, at 4:30 p.m.
A public hearing was previously held before the Planning & Zoning Commission on Sept. 8, at which no one spoke in favor of the proposed ordinance.
During that meeting, Planning & Zoning Director Lawrence Lank noted that the County had received 20 emails voicing their opposition to the proposed ordinance.
At that meeting, Hutt gave a similar presentation to the commission, presenting his red-lined version of the proposed ordinance.
“I think what Mr. Hutt has brought up again is starting to make sense,” said Commissioner I.G. Burton III, adding that points made by others who spoke in opposition related to provisions for real estate signs had made good points as well.
The Commission unanimously agreed to defer their recommendation to council until its next meeting, which was set for Thursday, Sept. 22, at 6 p.m.