Sign ordinance discussed before Sussex County Council

Signs were a main topic of discussion at this week’s Sussex County Council meeting, as the council held its first public hearing on a proposed ordinance to amend the Code of Sussex County related to signage, as part of what has been a year-long discussion of signage in the county.

While no one spoke in favor of the draft ordinance, many voiced their opposition, including those who served on the signage ordinance working group.

Georgetown attorney David Hutt of Morris James Wilson Halbrook & Bayard LLP spoke on behalf of Clear Channel Outdoor, Geyer Signs, Hocker Signs, Jack Longo Realtors, J.D. Sign Company, Ocean Atlantic, Phillips Signs Inc., Premier Outdoor Media LLC, Rogers Sign Co. Inc. and Timmons Outdoor Advertising.

Hutt — who has been vocal about the County’s sign moratorium, imposed after the issue was raised last year — said there is a disconnect from an April letter sent by the Sussex County Board of Adjustment, asking council to review the sign code “to determine if any changes are required,” and the moratorium on off-premises signs that followed.

“While I am rarely surprised when the actions of our federal government across the Bay Bridge are mysteriously disconnected, it is surprising when local government is this mysterious.”

Hutt said the County would later go against the recommendation of the Planning & Zoning Commission and place a moratorium on applications for off-premises signs.

According to Hutt, the number of applications for off-premises signs coming before the Board of Adjustment has been about nine each year for the last 10 years, with the number of on-premises sign applications being even lower.

However, a working group comprising County staff, commission and board members, along with sign company representatives, DelDOT officials, representatives of the Delaware Homebuilders Association and other stakeholders was formed.

Following a slew of meetings, a joint session of the County Council, the Board of Adjustment Commission and the Planning & Zoning Commission was held in February, at which the recommendations of the working group were “wholly disregarded and set aside,” Hutt said.

“The unfortunate course of this matter is that, every step of the way, what people had hoped would be a valuable tool and resource in the working group, which made numerous recommendations — that these would be followed or at least used as a part of a draft ordinance — when the draft ordinance was introduced a little over a month ago now, it looks nothing like the recommendations that came out of that working group,” he said.

Hutt presented the council with an alternate version of the proposed ordinance, as members of the sign industry had requested, “because of those stark differences between what the working group recommended and what was presented as part of that, and the ordinance that was introduced by council.”

As part of the alternate version, Hutt retained the type of signs “which have more than two faces” or multi-faced signs.

Definitions related to the type of sign include, “Sign copy: The physical sign message including any words, letters, numbers, pictures, logos and symbols,” and “sign face: the surface upon, against or through which the sign copy is displayed or illustrated, not including structural supports, architectural features of a building or sign structure, or decorative trim, or any areas that are separated from the background surface upon which the sign copy is displayed by a distinct delineation, such as a reveal or border.”

Hutt displayed pictures of signage at a number of businesses along Route 1, including the pylon-style Candy Kitchen sign, which has both the business’ logo and an electronic message center that displayed “open daily!” — both of which display on both sides. If the County’s proposed ordinance were to be adopted, that one structure would be considered to house four signs.

“Which would be prohibited, because Subsection N, which says signs that have more than two sign faces” are prohibited, said Hutt, noting that, while the sign as it stands is permitted under the County’s current code, without any variances granted, it would be non-conforming if the County’s draft ordinance were adopted.

Hutt also said that the proposed County ordinance would limit on-premises signs for businesses located between roadways or along two roadways.

“Historically, businesses have put signage on both of the roads on which they front,” said Hutt. However, the County’s proposed ordinance would only allow for one sign.

“The business owner would then have to choose which road frontage they want to advertise the location of their business on.”

In the County’s draft for M Districts, UB Districts, and B-1, C-1 and CR-1 zones, the draft code allows for one on-premises wall, illuminated awning, marquee or projecting sign not to exceed 150 square feet.

Hutt said wall signs have been an issue for the County in the past and showed the council a single side of the Rehoboth Beach Panera Bread building, noting that what is conforming there currently (logo, business name and “drive-thru” signs, and two decorated awnings) would be classified as three to five signs in the County’s proposed ordinance, and would become non-conforming.

Hutt’s alternate ordinance recommends to return to a simple limit of 150 square feet, or 15 percent of a total of the wall area on which the sign(s) is/are located.

As for off-premises signs, the working group recommended two different standards be used — for roads having two travel lanes and roads with more than two travel lanes.

Hutt also called attention to removal of the option to seek variances for off-premises signs and for electronic message centers.

“This is a unique provision. I think this is the first time in Sussex County zoning history that something is found in its zoning code for which a property owner cannot seek a variance. Variances exist for unique situations… It’s impossible for anyone to say today whether or not there is a unique situation that requires a variance for a sign,” he said, calling it a slippery slope for the County to go down.

In terms of electronic message centers, Hutt said it appears when reviewing the County’s proposed ordinance that a fear of those signs exists.

“There shouldn’t be a fear of electronic signs. They’ve existed for many, many years.”

Hutt said that there have been numerous safety studies done by independent organizations, such as the Federal Highway Administration, Virginia Tech and Texas A&M.

“There is not one study in which you will find that electronic message centers lead to accidents, that they are unsafe, or anything along those lines.”

The research, he said, shows there is no statistical difference between the time a person looks at a static sign versus a digital sign, adding that glances at digital signs are in the “safe range” according to the National Highway Traffic Safety Administration. The study showed that people look at digital billboards for less than one second, with a dangerous level being 2 seconds. Texting while driving averages 4.6 seconds.

“The present data suggests that drivers in this study directed the majority of their visual attention to the areas of the roadway that were relevant to the task at hand (i.e., the driving task),” stated a December 2013 study done by the Federal Highway Administration on the safety of electronic message centers.

Hutt also said the County should consider adopting footcandles, over NITS, in terms of a lighting measurement standard, as it is easier to check and measure illuminance, and accounts for ambient light, among other pros.

In terms of replacement signs, Hutt also called out the County’s proposed ordinance for removing the ability to replace non-conforming signs that are destroyed by nature.

“That was also not a recommendation of the working group,” he said. “If you had a non-conforming house right now, and Mother Nature saw fit to destroy that house, you would have every opportunity to rebuild that house within 12 months.”

Terry Strine of Investors Realty said that, while he applauds and appreciates the difficult task faced by council, he urged them to adopt the alternate ordinance presented by Hutt, as a property owner who was faced with getting an off-premises sign for his business due to an exceptional practical difficulty.

“There are hardships. There are things that happen,” he said. “We regulate to a fault. It has destroyed businesses; it has driven away growth.”

Ben Phillips of Phillips Sign Co., who served on the working group, said he found the County’s proposed ordinance “very disrespectful” to all those who served in the group.

As for electronic message centers, Phillips said he, like Hutt, didn’t understand the apparent fear of electronic message centers.

“Where is this coming from?” he asked. “I think it comes down to what you personally like and dislike.”

He also made mention of a regulation within the County’s proposed sign ordinance that would prohibit electronic message centers from changing after sunset.

“What about the restaurants, nightclubs?”

“I don’t think anyone here is trying to put anyone out of business,” said Councilman George Cole. “I think there has been some abuses done, with the electronics.”

Cole said most of the complaints he hears regarding the electronic signs is “how ugly” they are.

“That’s their personal opinion,” responded Phillips, adding, “I don’t think this is in the general interest of the public.”

Jason Dean, owner of J.D. Sign Company, who also spoke in favor of the alternate ordinance, said that, in the County’s current code, it prohibits flashing on electronic message boards, as well as playing videos. He said the council may be confused as to the difference between flashing and a transition, which is the seamless movement from one screen to another.

He also said that the biggest sign-related issue within the county is not the code itself, but rather enforcement.

Nancy Chernoff of Clear Channel spoke to the pros of having electronic message centers, some of which included that it’s more eco-friendly and less expensive for the advertiser, and the message can easily be changed.

As for the removal of the provision that would allow a property owner to replace their non-conforming sign in the event of damage due to a natural disaster, Chernoff said that, with the right storm, a great many signs could be destroyed.

“That is pretty much targeted at doing away with billboards over time,” she said, supporting the alternate ordinance.

“It’s hard to believe a bunch of Republicans want more regulations,” said Lynn Rogers of Rogers Sign Co., who also served on the working group and previously on the council itself. He stated his support for the alternate sign ordinance.

Gerry Hocker of Hocker Signs also spoke in favor of the alternate ordinance.

Hocker, who is a business owner, has billboards — both digital and static, old-fashioned reader boards — and on- and off-premises signs.

“We depend very much on the on-premises signage,” he said.

Having recently installed electronic message centers last year, Hocker said they have not once received a complaint about the brightness of the displays.

“They do not flash. That’s not even one of the criteria we can choose,” he said.

While Hocker said his businesses advertise on radio and television, in print and online, “the most important thing we do to get people into our store — you hope you catch them as they’re passing by your business, and you hope to do it in a tasteful manner.”

Hocker added that he personally believed that taking away the possibility of requesting a variance was “property infringement.”

“Being in business, we’re faced with so many obstacles and worry about what our federal government might do to us next. We don’t want to worry about what Sussex County, Del., is doing to us.”

Along with those who spoke in favor of it in person, the County also received three letters in support of the alternate ordinance presented by Hutt.

The County left the record open to allow time for the Council to gather more information. The Planning & Zoning Commission, which held its public hearing for the proposed ordinance earlier in the month, was expected to announce their recommendation to the council on Thursday, May 25, after Coastal Point’s press deadline.

The proposed sign ordinance is expected to return to the county council’s agenda on Tuesday, June 7. The moratorium on off-premises sign application, which was extended in March, is set to expire June 15.