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DIR2001-00002 DATE: 7/31/2001 CODE SECTIONS: 18.780 r.. 1 TOPIC:I CDC Sign Restrictions & Banners as Signs `This is an interpretation by the City Attorney's Office INTERPRETATION: CDC Sign Restrictions We recently were asked to provide advice regarding a code enforcement issue in which a property manager claimed that banners attached to a sign were "national flags" and therefore exempt from the prohibitions of CDC 18.780.070. That situation raised some questions about the sign provisions in the code. First, it is our understanding that City staff may have considered that CDC 18780.070.A applies to an individual banner, pennant or flag. As that provision is written, it does not apply to individual pennants, banners, flags, etc. If the City wants a broader prohibition, it should amend this section. Furthermore, the "carnival character" language makes CDC 18.780.070.A more vague and subjective than it needs to be. The City may want to clarify that winter holiday season displays are not prohibited. Also, the juxtaposition of the prohibition on certain types of signs with an exception for signs that have received permits is unusual. Two of the exceptions to CDC 18.780.070.A essentially state that the signs are prohibited unless a permit is issued. All signs are prohibited unless permitted. The City may want to reconsider how it approaches this prohibition. One option is to change it from a prohibition to a "special condition" provision. The definition of "temporary sign" is awkwardly constructed. The City appears to have intended something along these lines: "Temporary sign" means any sign which is not permanently erected or permanently affixed to any sign structure, sign tower, the ground or a building. All banners, " "A" board signs, lawn signs, and balloons are temporary signs. However, that is not what the code provides. As written, a banner could be a permanent sign if it is permanently affixed. The definitions of balloon, banner, and lawn sign should be moved to their own separate sections - the current arrangement is confusing. Also, the definition of lawn sign arguably includes banners and flags if they are attached to a pole in the ground. The City should at some point decide whether certain categories of signs (flags, banners, A board signs) can be displayed for more than 90 days per year. Banners as Signs BACKGROUND The Firgrove Village apartments has displayed two red, white an blue banners. The banners were visible from the right -of -way. The banners have three more or less horizontal stripes, one blue, one white and one red. Firgrove Village did not obtain a permit to display these banners. ISSUE Was the display of the banners consistent with the sign provisions of the City's Community Development Code? ANSWER No. The banners are within the definition of "sign" under the City's sign code. A permit is required for all signs unless a specific exemption applies. No exemption applies to banners. It may be possible to obtain permits for the signs. The applicant would have to demonstrate that applicable criteria are met before a permit could be issued. However, as we interpret the code, only temporary permits could be issued. ANALYSIS 1. A sign permit is required for the banners. The CDC defines "sign" as "materials placed or constructed primarily to convey a message or other display and which can be viewed from a right -of -way, another property, or from the air." (Emphasis added.) CDC 18.780.015.48. The banners in this case are intended to draw attention to the sign they are attached to or to the property. They therefore constitute a display. They are viewable (and intended to be viewed) from the right -of -way and are made of material. Therefore, they are within the definition of "sign." CDC 18.780.020.A prohibits signs without a sign permit issued by the City. CDC 18.780.060.A provides a list of signs that are exempt from the permit requirement. The sign banners are not within the list of exceptions in CDC 18.780.060.A. A permit is therefore required for the banners. The City has two separate - processes for issuing permits. CDC 18.780.030 provides the process for approving permanent signs; CDC 18.780.100 provides the procedure for temporary signs. The code defines "banner" as "a sign made of fabric or other nonrigid material with no enclosing framework." CDC 18.780.015.52.b. The banners in this case fit the code definition of "banners" They are made of nonrigid material and are not enclosed within a framework. A banner is one of several different types of signs that are classified as temporary signs if they are "not permanently erected or permanently affixed to any sign structure, sign tower, the ground or a building." Neither "permanently erected" nor "permanently affixed" are defined. However, "permanently" is the adverb of "permanent," which is defined as: "Continuing or enduring in the same state, status, place, or the like, without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; lasting, abiding, stable; not temporary or transient." Black's Law Dictionary (5th ed. 1979, 1025). A banner is not permanent. Banners are easily changed and usually subject to wear (fading, fraying, tearing, etc.) so that they are periodically replaced. The better interpretation of this provision is that a banner is not "permanently erected" or "permanently affixed" and therefore is by definition a "temporary sign." Temporary signs are limited to a maximum of 90 days per calendar year. CDC 18.780.100. Although it may be possible to obtain a permit for the banners as temporary signs, the permits would be limited to 90 days per calendar year (an initial 30 day period plus renewals or new permits). Even if a banner could be considered a permanent sign for which a permanent permit could be issued, the sign would have to meet all standards for permanent signs. See CDC 18.780.130 for a partial list of applicable standards. No permit was obtained for the banners. The banners therefore violated CDC 18.780.020. 2. The banners are not prohibited by CDC 18.780.070.A The City has apparently issued a notice to the property owner or manager stating that the two banners are prohibited by CDD 18.780.070.A. CDC 18.780.070.A provides: It is a violation of this chapter to erect or maintain strings of pennants, banners or streamers, festoons of lights, clusters of flags, strings of twirlers or propellers, flashing or blinking lights, flares, balloons and similar devices of carnival character. The apartment manager's response is that the clear intent of the code provision is to prohibit displays of a carnival character and that the two banners are not of a carnival character. An argument can be made that "carnival character" as used in CDC 18.780.070.A applies only to "similar devices." With this interpretation of the statute, "strings of pennants, banners or streamers, festoons of lights, clusters of flags" and the other listed items are prohibited, whether or not they are of carnival character. However, Mr. Henniger's characterization of the provision is also plausible. Normally, it would be the City Council's role to interpret the Code. However, no interpretation is necessary in this situation because the issue can be resolved without the interpretation. The signs in question are either pennants or flags (or possibly both). The grammatical structure of the code provision clearly makes the words "strings of " applicable to "banners." Two banners on separate poles clearly do not constitute a "string of banners." The term "cluster of flags" is less than clear. Cluster is not defined in the CDC, and the dictionary definition is: "a number of similar things...or persons collected or grouped closely together." Webster's Ninth New Collegiate Dictionary (1979) 211. The arrangement of only two flags, one at each end of a sign, does not seem to fit the dictionary definition or the commonly- understood meaning of "cluster." Since the signs in this case are not a "string of banners" or a "cluster of flags" and are not within any of the other listed types of display, they are not within the category of banners prohibited by CDC 18.780.070. It is therefore possible to obtain a permit for these types of signs. 3. The purpose provision of the Code is not an applicable standard or criterion. Mr. Henniger argues that the signs are consistent with the stated purpose of the code, which is to promote the neat, clean, orderly and attractive appearance of the community. However, the purpose statement is not an applicable standard or criterion. The requirement to obtain a permit is an applicable standard. A sign is not exempt from the permit requirement because it is attractive - the permit requirement is in place to ensure that the purpose is carried out. While the City appreciates efforts that improve the community, the codes must be followed and appropriate permits obtained. A person cannot avoid the need to obtain a demolition permit where one is required just because a building is an eyesore. Similarly, no one is exempt from the sign permit requirement just because a sign may be attractive. 4. The banners are not flags. Mr. Henniger also argued that the banner is within the category of "national, state and institutional flags" because it is a "representation of the American flag. While this issue does not need to be resolved because the banners are not prohibited by CDC 18.780.020, a discussion of this issue may assist the City in future situations. Mr. Henniger is correct when he says that "flags" and "national, state and institutional flags" are not defined by the Code. However, in the absence of a code definition, the words have their everyday meaning. The goal in interpreting the code is to determine the intent of the City Council in adopting this exception. The intent of the Council is to be determined first from the text and context of the provision. The phrase in question is "national, state and institutional flag" and the issue is whether the banner in question qualifies as the national flag of the United States. The City Council's intent is totally clear. The only reasonable interpretation of "national flag" when the flag in question is the U.S. national flag means the official flag of the United States. The official flag of the United States is described as follows: The flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty -eight stars, white in a blue field. On the admission of a new State into the Union, one star shall be added to the union of the flag; and such additional shall take effect on the fourth day of July next succeeding such admission. 4 USC paragraphs 1,2. The banners do not have the right number or color of stripes, do not have stars, and do not have a "union." They are not the "national flag" of the United States. 5. There is No First Amendment right to place signs in violation of the City's sign code. As Mr. Henniger points out, the First Amendment does protect the right of expression. However, sign codes have routinely been upheld as legitimate time, place and manner restrictions on expression. (See e.g. Media Art Co. v. City of Gates, 158 Or App 336, 974 P2d 249 (1999)). 41.E %.[\L-UJ �ui\i\IUM4 .IVJ L4J Zy44 iut Ji qui 1J JJ IVO .uuJ r . uz RAMIS CH13M CORRICT N & BACY-IRACHLT.) Practicing as Hibbard Caldwell Schulze Ramis&Crew MEMORANDUM in Oregon city A17ORNEYS AT LAW 1727 N.W.Huyt street PurdmyvJ, Oregon 97200 (303)222-4402 Fax: (503)243-2944 TO: Christine Darncll, Code)Enforcement Officer, City of Tigard FROM: Timothy V. Ramis, Gary Firestone, City Attorney's Ofpce KATE: July 31, 2001 RR- Banners as Signs BACKGROUND The Firgrovc Village apartments has displayed two red, white and blue banners. The banners were visible from the right of way. The banners have three more or Less horizontal stripes,one blue,one white and one red. Firgrove Village did not obtain a permit to display these banners. ISSUE Was the display of the banners consistent with the sign provisions of the City's Community Development Code? ANSWER No. The banners are within the definition of"sign" under the City's sign code. A permit is required for all signs unless a specific exemption applies. No exemption applies to banners. It may be possible to obtain permits for the signs. The applicant would have to demonstrate that applicable criteria arc met before a permit could be issued. However, as we interpret the code, only temporary permits could be issued. K`115 UKEW CUKK1GRN 503 243 2944 Jul 31 ,01 15 :33 No .005 P .03 -----5 Memorandum re: Banners as Signs July 31,2001 Page 2 ANALYSTS 1. "in perm' is required for the banners. The CDC:defines"sign"as"materials placed or constructed primarily to convey a message or other display and which can be viewed from a right of way, another property, or from the air." (l,ml)hasis added.) CDC 18.780.015.48. The banners in this case are intended to draw attention to the sign they arc attached to or to the property. They therefore constitute a display. They are viewable(and intended to be viewed)from the right of way and arc made of material. Therefore,they are within the definition of"sign." CDC: 18.780.020A prohibits signs without a sign permit issued by the City. CDC 18.780.050A provides a list of signs that arc exempt from the permit requirement. The sign banners are not within the list of exceptions in CDC 18.780,060A. A permit is therefore required for the banners. The City has two separate processes for issuing permits. CDC 18,780.030 provides the process for approving permanent signs; CDC 18.780,100 provides the procedure for temporary signs. The code def incs"banner"as"a sign made of fabric or other nonrigid material with no enclosing framework." CDC 18.780,015.52.b. The banners in this case fit the code definition of"banners." They are made of a nonrigid material and are not enclosed within a framework. A banner is one of several different types of sign that are classified as temporary signs if they arc "not permanently erected or permanently affixed to any sign structure,sign tower,the ground or a building." Neither"permanently erected"nor"permanently affixed"are defined. However,"permanently"is the adverb of"permanent," which is defined as: "Continuing or enduring in the same state, status, place, or the like, without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; Tasting, abiding, stable; not temporary or transient." Black's Taw Dictionary (5e1 ed. 1979, 1025). A banner is not permanent, Banners are easily changed and usually subject to wear(fading,fraying,tearing, etc)so that they are periodically replaced. The better interpretation of this provision is that a banner is not"permanently erected"or""permanently affixed"and therefore is by definition a"temporary sign," Temporary signs are limited to a maximum of 90 days per calendar year. COC 18.780.100, Although it may be possible to obtain a permit for the;banners as temporary signs,the permits would be limited to 90 days per calendar year (an initial 30 day period plus renewals or new permits). i\r(I«I i J I r\r-W I.UKK 1 UHN �)u6 246 2944 Jul 31 , 01 15 : 34 N0 .005 P . 04 Memorandum re: Banners as Signs July 31,2001 Page 3 Even if a banner could be considered a permanent sign for which a permanent permit could be issued,the sign would have to meet all standards for permanent signs. See CDC 18.780.130 for a partial list of applicable standards. No permit was obtained for the banners. The banners therefore violated CDC 18.780.020. 2. The banners are not prohibited by CIBC 18,780,070A The City has apparently issued a notice to the property owner or manager stating that the two banners are prohibited by CDC 18.780.070A, CDC 18.780,070A provides: It is a violation of this chapter to erect or maintain strings of pennants, banners or streamers,festoons of lights,clusters of flags,strings of twirlers or propellers,flashing or blinking lights, flares, balloons and similar devices of carnival character. ']'he apartment manager's response is that the clear intent of the code provision is to prohibit displays of a carnival character and that the two banners are not of a carnival character. An argument can be made that "carnival character" as used in CDC 18.870.070A applies only to "similar devices." With this interpretation of the statute, "strings of pennants, banners or streamers, festoons of lights, clusters of flag, and the other listed items are prohibited,whether or not they are of carnival character. However, Mr. Ilenniger's characterization of the provision is also plausible. Normally, it would he the City Council's role to interpret the Code, However, no interpretation is necessary in this situation because the issue can be resolved without the interpretation. The signs in questions are either pennants or flags(or possibly both). The grammatical structure of the code provision clearly makes the words "strings of applicable to "banners." Two banners on separate poles clearly do not constitute a "string of banners." The term 'cluster of flags is less than clear. Cluster is not defined in the CDC,and the dictionary definition is: "a number of similar things . . or persona collected or grouped closely together." Webster's Ninth New Collegiate Dictionary(1979) 211. The arrangement of only two flags, one at each end of a sign, docs not seem to fit the dictionary definition or the commonly-understood meaning of"cluster," Since the signs in this case are not a"string of banners"or a"cluster of flags"and arc not within any of the other listed types of display,they are not within the category of banners prohibited by CDC 18.780.070. It is therefore possible to obtain a permit for these types of signs. Khil°IlJ k.Ktw LUKK16HN 5U6 243 2944 Jul 31 ,01 15 . 35 No .005 P . 05 i Memorandum re: Banners as Signs July 31,2001 Page 4 3, The 2rno4c nrnvlSion ofthr, Code is not an aanlicahlc s ndard or criterion. erion, Mr, Flenniger argues that the signs are consistent with the stated purpose of the code,which is to promote the neat,clean,orderly and attractive appearance of the community, However,the purpose statement is not an applicable standard or criterion. The requirement to obtain a permit is an applicable standard. A sign is not exempt from the permit requirement because it is attractive — the permit requirement is in place to ensure that the purpose is carried out. While the City appreciates efforts that improve the community,the codes must be followed and appropriate permits obtained, A person cannot avoid the need to obtain a demolition permit where one is required just because a building is an eyesore, Similarly,no one is exempt from the sign permit requirement just because a sign may be attractive, 4. The hanners are not flags. Mr.l lenniger also argued that the banner is within the category of"national,state and institutional flags"because it is a"representation of the American flag." While this issue does not need to be resolved because the barnncrs are not prohibited by CDC 18,780,020,a discussion of this issue may assist the City in future situations. Mr, llenniger is correct when he says that "flags" and "national, state and institutional flags"are not defined by the Code,However,in the absence of a code definition,the words have their everyday meaning. The goal in interpreting the code is to determine the intent of the City Council in adopting this exception, The intent of the Council is to be determined first from the text and context of the provision, The phrase in question is"national,state and institutional (lag"and the issue is whether the banner in question quali(fes as the national flag of the United States, The City Council's intent is totally clear. The only reasonable interpretation of"national flag"when the flag in question is the U.S, national flag means the official flag of the United States,The official flag of the:United States is described as follows: The flag of the United States shall be thirteen horiiontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars,white in a blue field. On the admission of new State into the Union, one star shall be added to the union of the flag; and such additional shall take effect on the fourth day of July next succeeding such admission. 4 USC; §§ 1,2. The banners do not have the right number or color of stripes,do not have stars, and do not have a "union." They are not the"national flag" of the United States. (-KV-W I.UKKItjHI'4 246 2344 Jul 31 .01 15 :35 X10 ,005 P . 06 Memorandum rc: Ranncra as Signs July 31,2041 Page 5 4. ;Jhe-Ea is Ng Firscnd ent right to 21aa sians 'n� viola ion oft a City's sign co r. As Mr.Henniger points out,the first Amendment does protect the right of expression. However, sign codes have routinely been upheld as legitimate time,place and manner restrictions on expression, See e,gr Media Art Co. v. City of cams, 158 Or App 336, 974 Ptd 249 (1999) d.lmunglTlpnfEbi�n072G01.wpd i i I j I i I i RRKIS CREW CORRIGAN 503 243 2944 Jul 31 , 01 15 : 32 No . 005 P . 01 RIMS FACSIMILE TRANSMISSION COVER SHEET RF,W _ CORRIG.AN & BACHRACH, m Practicing as I libbard Caldwell Schult• Ramis do Crow in Oregon City THIS COMMUNICATION MAY CONSIST OF ATTORNEY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED BELOW, A7"1'ORNEYS A'1'LA IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT,OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY 1727 N.W. Wayl Slreul NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATION Pohland,Orogmi 97209 IS STRICTLY PROHIBITED, IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR,PLEASE (503)222.4402 Nix: (503)243.2944 DATI July 31, 2001 CLIENT NO.: 90024 - 4 TO: Christine 11arnell, Code I?nforcement Officer, City of Tigard. FAX NO.: (503) 654-7297 ' 1'LL,RPHONE NCIMPIRR.: FROM: '1'inu0thy V. Remis, Gary Firestone- City Attorney's Office D1 SCRIIn ION OF DOC,UMLENT TRANSMI'TTRD: Mcmorandurn COMMENT'S: Legal issues regarding banners as signs. 5 PACII,(S) TO FOLLOW, EXCLUDING COVRR SHLET, ]F YUtI I)O NC)'I'RLC.FIVF ALL OF THE PAC31S,PLEASE CALL 1'tIL UNDERSIGNED AT(503) 222-4402 IMMEDIATELY. THANK YOU. SIC3NFI): Travis Hatton, Municipal Legal Assistant ] AN ORI0INAL IS BEING MAILED [XX] AN ORIGINAL IS AVAILABLE UPON RF,QULST , RPMIS *CREW CORRIGRN 503 24 2944 Jul 31 ,01 15 .00 No .004 P .01/03 RAMI S CREW FACSIMILE TRANSMISSION COVER SHEET CORIZICA.N & I3ACY7RACI I 1 I' THIS COMMUNICATION MAY CONSIST OF ATTORNEY PRIVILEGED AND CONI•IDENTIAL I'r;t� icing�q INPORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED I lihharcl Caldwell Schultv BELOW. IF THE REAMER OF THIS MESSAGE 16 NOT THE INTENDED RECIPIENT,OR THE Ramis& Crew EMPLOYEE OR AGENT RESPONSIBLE T'0 DELIVER IT TO THE INTENDED RECIPIENT,YOU in Oregon City ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND ATTORNEYS AI'LAW RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U,S.POSTAL SERVICE. THANK YOU. 1727 N.W. Hoyt Streut Pordatnd, Oregon 97209 (503)222-4402 Fnx: (503)243.2944 DA'I'I?: July 31, 2001 CLIENT NO.: 90024 - 4 TO: Jim Flclld1'yx, Community Development Director, Dick Bcwcrsdorff, Senior Planner, Christine Darnell, Code Enforcement Officer City of Tigard FAX NO,: (503) 684-7297 TELEPHONE NUMBER.: FWM: Timothy Ramis, Clary Firestone- City Attorney's Office I)I X"RIT"I'l ON Ol' DOCUMENT TRANSMITTED: Memorandum ('.nMMI,NTS: Regarding� g p ossib a I changes gas to CDC sign restrictions 2 I'AG (S)7'0 FOLLOW, EXCLUDING COVER SHEET. I i' YOU DO NOT RECEIVE ALT,OF THE PAOFS,PLEASE CAI,L THE UNDFRSIGNE1)AT(503)222.4402 IMMF;I)IATEI.Y. THANK YOU, SIGNI,I): 'Travis Hatton, Legal Assistant - Municipal Department ( ] AN ORIGINAL IS RRING MAIL UI) [X j AN ORIGINAL IS AVAILABLE UPON REQUEST RRMI.S- CREW CORRIGAN 503 243 2944 Jul 31 ,01 15 : 01 No .004 P .02/03 RAM.Y S CRY,N CORRIGAN & BACHRACH Practicing as 1-li6bard Caldwell Schulu, Ramis &Crew MEMORANDUM in Oregon City ATTORNEYS AT LAW 1727 NN.. Hoyt Street Kurtland, Oregm 97209 (503)222-4402 Fax; (503)243.2944 TO: Jim Z lendryx, Community Development Dircetor Dick Bewersdorff, Senior Planner Christine Darnell, Codc Enforcement Officer City of Tigard FROM: Timothy V. Ramis, Gary Firestone, City Attorney's Office DATE: July 31, 2001 RT?: CI)C Sign Restrictions We recently were asked to provide advice regarding a code.enforcement issues in which a properly manager claimed that banners attached to a sign were "national flogs" and therefore exempt from the prohibitions of CDC 18.780.070, That situation raised some questions about the sign provisions in the code. First, it is cur understanding that City staff may have considered that CDC 18.780,070A applies to an individual banner, pennant or flag, As that provision is written, it does not apply to individual pennants, bannem, flag., etc. If the City wants a broader prohibition, it should amend this section. furthermore, the "carnival character" language makes CDC 18.780.070A more vague and subjective than it needs to be. The City may want to clarify that winter holiday season displays are not prohibited. Also,the juxtaposition of the prohibition on certain types ofsigns witJ1 an exception for signs that have received p01-1111tS ill U1111511a), Two of the exceptions to CDC 18.780.070A essentially state that the signs are prohibited unless a pernih Issued. All signs are prohibited unless permitted, The City may want to reconsider how it approaches this prohibition. One option is to change it from a prohibition to a "special condition" provision. The definition of"temporary sign"is awkwardly constructed, The City appears to have intended something along these lines: "TCf11p0r41-y aityrt" 11160119 any ttign which fa not permnnently crcctcd or permanently RWII.SyCRE�,11 CORRIGAN 503 243 2944 Jul 31 ,01 15 : 01 No .004 P . 03/03 Memorandum re; CDC Sign Restrictions July 31, 2001 Pagc 2 affixed to any sign structure,sign tower,the ground or a building. All banners,"A"board signs, lawn signs, And balloons are temporary signs. However, that is not what the code provides. As written, a banner could be a permanent sign if it is permanently Affixed. The definitions of balloon,banner, and lawn sign should be moved to their own separate sections — the current arrangement is confusing. Also, the definition of lawn sign arguably includes banners and flags if they are attached to a pole in the ground, The City should at some point decide whether certain categories of signs(flags,banners,A board signs)can be displayed for more than 90 days per year.