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7.1 Ordinance No. 22-11135 Text Amendment Temporary SignsCITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 10/10/2022 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: 7 Community and Development Services BY: ITEM Planning Division FINAL APPROVAL - NO: 1 C Page 1 BY: Dean Andrew DA BY: �/ � ITEM: Ordinance No. 22-11135 t v Consider approval of a clarifying amendment to the text of Section 42-508(d) governing the placement of temporary signs during election season by more explicitly prohibiting the placement of temporary signs in medians separating lanes of traffic in public roadways and other grassy islands that are bordered by streets on both sides. BACKGROUND: In 2015, the Kansas Legislature adopted K.S.A. 25-2711, which preempts local laws relating to the regulation of political signs during the 45 -day period prior to an election and two-day period following the election. The statute provides: "No city or county shall regulate or prohibit the placement of or the number of political signs on private property or the unpaved right-of-way for city streets or county roads on private property during the 45 - day period prior to any election and the two-day period following any such election. Cities and counties may regulate the size and a set -back distance for the placement of signs so as not to impede sight lines or sight distance for safety reasons." The statute was signed into law on June 5, 2015 and was effective upon publication (July 1, 2015). The United State Supreme Court's decision in Reed vs. Town of Gilbert was decided June 18, 2015. In Reed, the United States Supreme Court held that, absent a compelling governing interest, cities may not impose different regulations on opinion signs based on the ideas or messages that are expressed. The statute prompted considerable discussion related to the constitutionality of its content - specific provisions in light of Reed vs Town of Gilbert. However, on November 28, 2018, the Kansas Attorney General issued an opinion, which concluded that the statute does not violate the First Amendment of the United States Constitution. In reaching this conclusion, the Attorney General recognized that: [T]he manner in which local jurisdictions elect to comply with the requirements of [the statute] could present First Amendment concerns similar to those addressed in Reed but it also certainly is possible for local jurisdictions to comply with both state statute and the First Amendment. For example, a local jurisdiction could elect to enforce no local sign regulations at all or could enforce regulations that do not regulate or prohibit the placement or the number of any signs, regardless of content, in the designated locations during the 45 -day period prior to any election and the two-day period following the election. Prior to 2019, Salina Code Section 42-508: (1) imposed a numerical limit on the number of temporary signs that an owner may display on their property; and (2) prohibited the placement of signs in the public right-of-way. These rules are inconsistent with the preemption language in K.S.A. 25-2711. Accordingly, it became necessary for the City to amend Section 42-508 to comply with the state statute. As recognized by the Kansas Attorney General, the manner in which cities elect to comply with the requirements of K.S.A. 25-2711 may present First Amendment concerns. The First Amendment AGENDA SECTION NO: ITEM NO: Page 2 CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME TOM 0/2022 4:00 P.M. ORIGINATING DEPARTMENT: Community and Development Services Planning Division BY: Dean Andrew FISCAL APPROVAL: BY: FINAL APPROVAL: AN concerns would arise if the City makes special accommodations for signs displaying political messages, but not other signs displaying other types of non-commercial messages. Accordingly, to comply with K.S.A. 25-2711 while ensuring that the City's sign code is content -neutral as required under the Reed decision, the City's legal counsel recommended creating new rules applicable to all noncommercial temporary yard signs, so that all noncommercial temporary yard signs are subject to the same rules. The new subsection (d) of Section 42-508 allows an unlimited number of temporary yard signs during the 45 -day period prior to an election and the two-day period following an election. (A copy of that code language is attached.) The City of Salina comprehensively amended its temporary sign regulations in 2016 in response to Reed vs. Town of Gilbert and then amended them again in 2019 in response to the Kansas Attorney General's opinion. Prior to 2019, Section 42-508 authorized property owners to place temporary yard signs on their private property— everything from political signs to personal opinion signs and for sale signs but placed a cap on the number of yard signs a property owner could place in their yard and limited the size of those signs. It also included a provision to allow property owners to display four (4) additional signs during an election season. However, the Kansas Legislature enacted a statute prohibiting cities and counties from regulating the number of political signs and from prohibiting political signs in the right- of-way in the 45 -day period leading up to an election. Summary of 2019 Amendments The 2019 changes to Section 42-508 brought Salina's Sign Regulations into conformance with K.S.A. 25-2711, by allowing an unlimited number of temporary signs to be placed and displayed on private property or the unpaved public right-of-way for a period up to forty-five (45) days prior to an election involving candidates for a federal, state or local election that represent the district in which the property or public right-of-way is located or involving an issue on the ballot of an election within the district where the property or public right-of-way is located. The text amendment allowed an abutting property owner to place a sign or to give their permission for a tenant to place a sign in the right-of-way abutting their property. It did not authorize the placement of temporary signs in the medians of streets like South gth Street or Belmont Boulevard. Although staff's reports to the Planning Commission and City Commission indicated that the intent was to not allow temporary signs in the medians of public streets, there is no language in the ordinance that expressly prohibits it. Temporary signs placed in the right-of-way are limited to 8 square feet in size and cannot be placed where they would obstruct visibility at any street or driveway intersection. Since 2019, placement of campaign signs within street medians has created considerable confusion and consternation in general and it also calls into question whether an adjoining property owner has sufficient authority to grant permission for placement of signs within medians. As written, the state legislation created a situation where in years a primary election is held there would be a gap period between the August primary election date and the fall election season where AGENDA SECTION NO: ITEM NO: Page 3 CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION ORIGINATING DEPARTMENT: DATE TIME 10/10/2022 4:00 P.M. FISCAL APPROVAL: Community and Development Services Planning Division BY: Dean Andrew BY: FINAL cities could prohibit the placement of signs in the public right-of-way. To avoid this situation, the City's legal counsel drafted optional language that would allow temporary signs to be placed and remain in the right-of-way from the primary election season through the November general election date. The Planning Commission endorsed this no gap approach and included it in their recommendation to the City Commission. The City Commission concurred with this recommendation and signs can remain in place between the August primary election date and the November general election date. Proposed Amendments On August 16, 2022, the Planning Commission authorized staff to initiate a clarifying text amendment to Section 42-508(d) of the temporary sign regulations that would more clearly prohibit the placement of temporary signs in locations where that are medians separating lanes of traffic on public streets and other grassy islands that are bordered by street right-of-way on both sides during election season. The placement of temporary signs in these right-of-way areas is already prohibited outside of election season. The Planning Commission set October 4, 2022 as the public hearing date to review and discuss the proposed amendment. The intent of the State legislature was to allow abutting property owners to express their political opinions by placing signs in the right-of-way abutting their property during election season. This right was conferred to property owners and not to political candidates generally. The City of Salina's local ordinance is consistent with this approach. Under the proposed amendment, new subsection (i) is intended to address situations such as South Ohio Street south of Cloud Street, South 91h Street between gth Street and gth Street Place and South Broadway Boulevard where Windsor Drive abuts Broadway Boulevard on the east where a frontage road physically separates the Ohio Street, 9th Street and Broadway Boulevard right-of-way from adjoining private property. New subsection (ii) is intended to prohibit the placement of temporary signs in the medians of divided streets like Belmont Boulevard and North and South 9th Streets. New subsection (iii) is intended to make clear that the placement of temporary signs is prohibited within interstate interchange rights-of-way such as Schilling Road and 1-135. Planning Commission Recommendation At their August 16, 2022 meeting, the Planning Commission, by motion, authorized staff to initiate a clarifying text amendment to Section 42-508 that would explicitly prohibit the placement of temporary signs in medians located between travel lanes and other grassy islands that are bordered by streets on both sides. This proposed text amendment was advertised for an October 4, 2022 public hearing before the Planning Commission. At the October 4, 2022 public hearing, following presentation of the staff report and comments and questions from Commission members, the Planning Commission voted AGENDA SECTION NO: ITEM NO: Page 4 CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 10/10/2022 4:00 P.M. ORIGINATING DEPARTMENT: Community and Development Services Planning Division BY: Dean Andrew FISCAL APPROVAL: BY FINAL APPROVAL: M 7-1 (Ivey dissenting) to recommend approval of the draft text amendment as drafted and presented with the language "or other public use" being deleted from subsection (2)(i). The concern of the Planning Commission was that the term 'intervening public use" was not precise enough and could be interpreted to include hike -bike paths and sidewalks separating the adjacent property line from the curb line of the street. If that were the case, signs could not be placed between the intervening hike - bike path/ sidewalk and the street. The Planning Commission chose to address it by deleting the language from the amendment. Staff would note that following the Planning Commission meeting the City Attorney prepared some qualifying language that clarifies that the term "public use" does not include hike -bike paths or sidewalks for the City Commissions consideration. FISCAL NOTE: There will be no fiscal impact on the City if the City Commission approves this text amendment in code enforcement on the placement of temporary signs. COMMISSION ACTION: Staff has identified the following alternatives for the Commission's consideration. If the City Commission concurs with the recommendation of the Planning Commission, the Commission could approve Ordinance No. 22-11135 amending Section 42-508 of the City's Sign Regulations. (This action would require three (3) affirmative votes) 2. The City Commission could approve Ordinance No. 22-11135 with minor revisions, additions or deletions to the text of the ordinance. (This could be done with three (3) affirmative votes if the amendments are consistent with the recommedation of the Planning Commission) Based on the discussions that occurred at the October 4th Planning Commission hearing, staff believes that the alternative language put forward by the City Attorney is consistent with the concerns expressed by the Planning Commission and could be adopted with three (3) votes. If the City Commission were to to make major revisions, those could be approved at the October 10 meeting but would require four (4) affirmative votes to pass. The City Commission could postpone consideration of this proposed text amendment and further continue this item to a future meeting date if it believes additional information is needed from staff. 4. The City Commission could overturn the recommendation of the Planning Commission and vote to deny the proposed text amendment if the Commission finds it is not in the public interest to make any changes to the temporary sign regulations. (This would require four (4) affirmative votes) CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 10/10/2022 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: Community and Development Services BY: ITEM Planning Division FINAL APPROVAL: NO: Page 5 BY: Dean Andrew BY: Because of the upcoming general election on Tuesday, November 8'h, staff would recommend that this ordinance be approved on first and second reading on the same day. If the City Commission is supportive of this recommendation the following procedure should be followed: 1. A motion should be made to approve Ordinance No. 22-11135 on first reading (Vote). 2. A motion should be made to find that a compelling public interest exists to allow first and second reading of the ordinance on the same day (Vote). 3. A motion should be made to approve Ordinance No. 22-11135 on second reading (Vote and Roll Call). Enclosures: Application Ordinance No.22-11135 City Attorney's alternate language Planning & Community Develoument Publication Date September 13, 2022 Application No. Z 22-9 Hearing Date October 4, 2022 Date Filed August 26, 2022 Filing Fee NSA Receipt No. APPLICATION FOR AMENDMENT TO THE ZONING TEXT SALINA CITY PLANNING COMMISSION The undersigned, being residents of the City of Salina, Kansas, do hereby apply to the Salina City Planning Commission for: a clarifying amendment to the text of Section 42-508(d) governing the placement of temporary signs during election season by more explicitly prohibiting the placement of temporary signs in boulevard medians and other grassy islands that are bordered by streets on both sides. Applicant's Name (print) Salina City Planning Commission Applicant(s) Signature ��s..-tom! n� r�.s+.� Date 8/26/22 Attach additional signature sheets if necessary. Be sure to include name, address, phone and signature of each applicant on the additional sheets. If the applicant is to be represented by legal counsel or an authorized agent, please complete the following in order that correspondence and communications pertaining to this application may be forwarded to the authorized individual. Name of representative Mailing Address, City, State, Zip Telephone (Business) and E -Mail PLF — 053, Application Zoning Text Amendment, Rev. 6-2008 Public Hearing Draft Application #Z22-9 Proposed Amendment of Section 42-508(d) October 4, 2022 (d) Notwithstanding any other provision in this article: (1) An unlimited number of temporary signs may be placed and displayed on private property either by or with the permission of the owner ortenant of such private property in any zoning district for a period of up to forty-five days prior to an election involving candidates for a federal, state or local election that represent the district in which the private property is located or involving an issue on the ballot of an election within the district in which the private property is located. In years during which a primary election is held, any signs authorized under this subsection with respect to the primary election may continue to be placed and displayed during the period between the primary election and immediately following the general election, except to the extent that displaying a sign is in violation of applicable electioneering laws. (2) To comply with K.S.A. 25-2711 (even though the unpaved area of platted right-of-way for city streets is city property and not private property), an unlimited number of temporary signs may also be placed and displayed in the unpaved public right-of-way immediately abutting private property either by or with the permission of the owner or tenant of such private property during the same periods of time described in subsection (1) above. The area referred to as "the unpaved public right-of-way immediately abutting private property" shall not include (i) any unpaved public right-of-way physically separated from such private property by an intervening public street, alleyway, drive, or other public use, (ii) any median separating lanes of traffic in public roadways or (iii) any interstate interchange. (3) Temporary signs placed and displayed pursuant to this subsection shall comply with the following requirements: (i) Temporary signs must be removed within two (2) days following the election except in years during with a primary election is held, in which case the signs shall be removed within two (2) days following the general election. (ii) No temporary sign shall exceed six (6) feet in height or eight (8) square feet of sign area. (iii) In all areas on private or public property at any corner formed by intersecting public streets or public streets intersecting private driveways, all temporary signs shall comply with setback requirements contained in section 35-51, so as not to impede sight lines or sight distance for safety reasons. (Summary published in The Salina Journal on October _, 2022) (Published on the City of Salina's website for a minimum of one week from October to , 2022) ORDINANCE NUMBER 22-11135 AN ORDINANCE AMENDING SECTION 42-508 OF THE SALINA CODE PERTAINING TO THE REGULATION OF TEMPORARY SIGNS WITHIN THE CITY OF SALINA, KANSAS, AND REPEALING THE EXISTING SECTION. BE IT ORDAINED by the Governing Body of the City of Salina, Kansas: Section 1. Amendment. Section 42-508 of the Salina Code is amended to read as follows: Sec. 42-508. Temporary signs, banner signs, and mobile signs. (a) The following temporary signs shall be exempt from the zoning certificate (sign permit) requirements of section 42-502, and shall be allowed to display any commercial or noncommercial message on a property with the owner's consent in addition to any other signs allowed under this article and the applicable district regulations: (1) Two (2) yard signs may be placed and displayed on an individual residential lot in any RS, R, R-1, R-2, R-2.5, R-3 or MH residential zoning district. (2) Two (2) freestanding temporary signs of any type except feather flags, inflatable signs or banners may be placed and displayed on property located in any A-1, U, H -M, P, C-1, C-2, C-3, C-4, C-5, C-6, C-7, I-1, 1-2 or I-3 zoning district and on property occupied by multi -family apartments, assisted living facilities and nursing homes. (b) On property located in any A4, U, H -M, P, C-1, C-2, C-3, C-4, C-5, C-6, C-7, I- 1, I-2 or I-3 zoning district, or on property occupied by multi -family apartments, assisted living facilities and nursing homes, temporary signs allowed under subsection (a) shall not exceed six (6) feet in height or thirty-two (32) square feet of sign area. (c) On property located in any RS, R, R-1, R-2, R-2.5, R-3 or MH residential zoning district, other than property occupied by multi -family apartments, assisted living facilities and nursing homes, temporary signs allowed under subsection (a) shall not exceed six (6) feet in height or eight (8) square feet of sign area. (d) Notwithstanding any other provision in this article: (1) An unlimited number of temporary signs may be placed and displayed on private property either by or with the permission of the owner or tenant of such private property in any zoning district for a period of up to forty-five days prior to an election involving candidates for a federal, state or local election that represent the district in which the private property is located or involving an issue on the ballot of an election within the district in which the private property is located. In years during which a primary election is held, any signs authorized under this subsection with respect to the primary election may continue to be placed and displayed during the period between the primary election and immediately following the general election, except to the extent that displaying a sign is in violation of applicable electioneering laws. (2) To comply with K.S.A. 25-2711 (even though the unpaved area of platted right-of-way for city streets is city property and not private property), an unlimited number of temporary signs may also be placed and displayed in the unpaved public right-of-way immediately abutting private property either by or with the permission of the owner or tenant of such private property during the same periods of time described in subsection (1) above. The area referred to as "the unpaved public right-of-way immediately abutting private property" shall not include (i) any unpaved public right-of-way physically separated from such private property by an intervening public street, alleyway, or drive, (ii) any median separating lanes of traffic in public roadways or (iii) any interstate interchange. (3) Temporary signs placed and displayed pursuant to this subsection shall comply with the following requirements: a. Temporary signs must be removed within two (2) days following the election except in years during with a primary election is held, in which case the signs shall be removed within two (2) days following the general election. b. No temporary sign shall exceed six (6) feet in height or eight (8) square feet of sign area. c. In all areas on private or public property at any comer formed by intersecting public streets or public streets intersecting private driveways, all temporary signs shall comply with setback requirements contained in section 35-51, so as not to impede sight lines or sight distance for safety reasons. (e) In addition to the temporary signs allowed under subsection (a): (1) Feather flags may be placed and displayed on property located in any A-1, U, H -M, P, C-1, C-2, C-3, C-4, C-5, C-6, C-7, I-1, I-2 or I-3 zoning district and on property occupied by multi -family apartments, assisted living facilities or nursing homes. Two (2) feather flags for every fifty (50) feet of street frontage, not exceeding a total of six (6) flags per street frontage, may be displayed on a property for a period not exceeding thirty (30) consecutive days for up to six (6) events in a calendar year. Feather flags shall not exceed thirteen (13) feet in height, shall be set back from any adjoining street a distance equal to its height, shall be securely anchored to the ground, and must be removed by the owner if the flag becomes tattered, torn or damaged. (2) One (1) inflatable sign may be placed and displayed on property located in any A-1, U, H -M, P, C-1, C-2, C-3, C-4, C-5, C-6, C-7,14, I-2 or I-3 zoning district and on property occupied by multi -family apartments, assisted living facilities or nursing homes. An inflatable sign may be displayed for a period not exceeding fourteen (14) consecutive days for up to four (4) events in a calendar year. An inflatable sign shall not exceed twenty (20) feet in height, shall be securely anchored to the ground, shall be set back from any adjoining street a distance equal to its height, and must be removed by the owner if the inflatable device becomes tattered, torn or damaged. (f) Banners placed over an existing sign face, placed at least eight (8) feet above ground level on existing poles or other supports which serve another primary purpose or placed on an existing building, canopy, solid fence, or other structure located behind the front yard setback line shall be exempt from the zoning certificate (sign permit) requirements of section 42-502, but shall comply with all of the requirements of this article and the applicable district regulations. (g) Mobile signs may be permitted upon issuance of a zoning certificate (sign permit) and when in compliance with all of the other requirements of this article, the applicable district regulations, and the following provisions: (1) Only one (1) mobile sign shall be allowed on a zoning lot. (2) Mobile signs shall not exceed thirty-two (32) square feet in area. (3) Mobile signs shall not be placed within twenty-five (25) feet of an existing pole sign or ground sign, within fifty (50) feet of another mobile sign or within the clear vision triangle of any street or driveway. (4) Mobile signs shall not be placed on the premises of an establishment which has an existing pole sign or ground sign located in the front yard. (5) Mobile sign permits shall be valid for not more than thirty (30) days. Each establishment may be issued not more than four (4) permits during a calendar year for a combined total of sixty (60) days. (6) Mobile signs shall be of rigid construction and anchored or weighted to prevent movement or overturning by wind. (7) Electrical lines shall not lie on the ground where vehicular or pedestrian traffic is permitted. Use of aboveground extension cords is prohibited. All wiring shall comply with the electrical code of the city. (8) Use of red, yellow, or green external lighting shall be prohibited. Any light shall be constant in intensity or color at all times. (h) Except for temporary signs allowed pursuant to subsection (d), no sign authorized under this section 42-508 shall be placed or displayed within the public right-of- way. Section 2. Repealer. Existing Salina Code Section 42-508 is repealed. Section 3. Effective. This ordinance shall be in full force and effect from and after its adoption and publication once in the official city newspaper by the following summary: Ordinance No. 22-11135 Summary On October 10, 2022 the City Commission passed Ordinance No. 22-11135. The Ordinance amends Section 42-508 (d) of the Salina Code pertaining to the regulation of temporary signs within the City of Salina, Kansas and repeals the existing section. A complete copy of the ordinance can be found at www.salina- kLggv or in the office of the City Clerk, 300 W Ash Street, free of charge. This summary is certified by the City's legal counsel. Introduced: October 10, 2022 Passed: October 10, 2022 Trent W. Davis, M.D., Mayor [SEAL] ATTEST: JoVonna A. Rutherford, City Clerk The publication summary set forth above is certified this _ October, 2022. Greg Bengtson, Legal Counsel City Attorney's Alternative Language for Subsection (2)(i) (2) To comply with K.S.A. 25-2711 (even though the unpaved area of platted right-of-way for city streets is city property and not private property), an unlimited number of temporary signs may also be placed and displayed in the unpaved public right-of-way immediately abutting private property either by or with the permission of the owner or tenant of such private property during the same periods of time described in subsection (1) above. The area referred to as "the unpaved public right-of-way immediately abutting private property' shall include any unpaved public right-of-way physically separated from such private property by an intervening pedestrian sidewalk or hike -bike path but shall not include (i) any unpaved public right-of-way physically separated from such private property by an intervening public street, alleyway, drive, or other public use (other than a pedestrian sidewalk or hike -bike path), (ii) any median separating lanes of traffic in public roadways or (iii) any interstate interchange.