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Home My WebLink About04012004 BSC Agenda Item 8 • 0 illit\i 0, ,,,,,di,404,4_„.„,:,:r77:7 t,"-4,t, r2111 /17,--,- .P,!,-4 i.',. ,,l',.,,,, tri,k-A.j!::,4.--z.;.*.:;.,: Iti.:?':1:::.',•: 't Ilk F Vs \_ „.,,......... . ... .: _., arc kr, .�` ,:IVA'' ' 1‘. ,,.5V-g.t.'.... ; F Ysy,. ��.v'z lP gym Efz �rzv�j,z�z:. �'.. 4401•11111011111111r,„(r�c �n h � t ' ';fi. z v_ 4,-Sit,,PAIIVOr5' BSC April 1st 2004 Sign Ordinance Agenda Item #8 • Attached are proposed amendments to address the new state laws affecting signs. The first one just incorporates the state law on removal of signs and sets 13-month and 25- month deadlines for removal. The second one sets up a broad administrative procedure to handle claims that a state or federal law preempts the Code of Ordinances. It is similar to the existing Section 8-112 of the Zoning Ordinance. It could be used by someone claiming that the new state law on political signs preempts Chapter 3. It could also be used by someone claiming that the ADA requires the City to make an accommodation. Generally, I think it is good to set up administrative procedures of this kind, because they allow the City the opportunity to address preemption claims without litigation. How do these sections look? For convenient reference, copies of the two new state laws are pasted below. /s/ Jim James L. Dougherty, Jr. Attorney at Law 5120 Bayard Houston, Texas 77006 Phone: 713-880-3800 Fax: 713-880-1417 E-Mail: jim(a�jdlaw.prserv.net Amendment to require removal of signs after a business stops operations 1-5-04 Add a new Section 3.211 to the Code of Ordinances, as follows: Sec.3.211. Removal of certain signs. (a) Removal required. Each on-premise sign or sign structure is required to be removed within 13 months following the date the business, person, or activity that the sign or sign structure identifies or advertises ceases to operate on the premises on which the sign or sign structure is located. If the premises containing a sign or sign structure are leased, each on- premise sign or sign structure a shall be removed within 25 months after the date the most recent tenant ceases to operate on the premises. (b) State law provisions. The removal of a sign or sign structure as described by this section does not require the appointment of a board or payment of compensation, as provided in Subchapter A of Chapter 216 of the Texas Local Government Code. The City hereby exercises its authority under that Subchapter A. [Note: The somewhat-awkward wording in (a) tracks the state law very closely.] • • Amendment to establish an administrative procedure to handle claims that a state or federal law preempts the Code of Ordinances 1-5-04 Add a new Subchapter C to Chapter 1 of the Code of Ordinances (and re-letter existing sections as Subchapters A and B): Subchapter C. Effect of Other Laws (Administrative Procedure) Sec. 1.301. Purposes. The purposes of this subchapter are: (i)to recognize that a federal or state law(including a constitution)can preempt or take precedence over this Code; (ii) to establish a speedy administrative procedure to respond to claims that such a law has amended or taken precedence over this Code; (iii)to allow claimants to get an official ruling on such claims; and (iv)to encourage interpretations and rulings that would harmonize this Code with other law, whenever practicable. Examples: This subchapter applies to the following types of claims, among others: (1) claims that this Code may not lawfully prohibit an object or structure from being placed or constructed,require a permit or approval, or impose a fee; (2) claims that this Code may not lawfully restrict the size of an object or structure; (4) claims that a fee or charge imposed by this Code exceeds a lawful limit; (5) claims that a law requires the City to make an accommodation or other exception. Sec. 1.302. Notice to administrative official. A person desiring to make a claim as described above may notify either the City Manager or the specific City official who is charged with administering the affected provision of this Code ("administrative official"). Example: The building official is the administrative official for Chapter 6 and certain other chapters of this Code. To be effective, a notice must: (i)identify both the law upon which the claim is based and the affected provisions of this Code, (ii) describe the specific premises and activities proposed, (iii) identify the persons who would carry on the activities, if identity is relevant under the law upon which the claim is based, and(iv)be signed, verified by affidavit and delivered to the administrative official. The administrative official may promulgate a standard form and may require supplemental information. Sec. 1.303. Handling of notices. When an effective notice is delivered, the administrative official shall examine it and attempt to confirm the information provided. The administrative official may request the assistance of other City officials and, if appropriate, law enforcement agencies. If the administrative official determines: (i) that a notice is true and complete, (ii) that the law mentioned in the notice clearly supports the claim made, and (iii) that there is no discretion about the application of the law and its effect on this Code, the administrative official shall endorse the notice to indicate the extent that this Code has been • • i affected, for the specific premises and activities mentioned in the notice. In order to make such determinations, the administrative official may impose reasonable conditions or explanations of the endorsement. Sec. 1.304. Appeal. (a) Time to file. A claimant who does not receive a full, unconditional endorsement within 22 days following delivery of the notice to the administrative official may request an appeal board to issue the endorsement. If an appeal is filed later than the 180th day following the date the notice was originally delivered, the appeal board may require the claimant to show: (i) there is good cause for the delay, and(ii)the circumstances have not materially changed. (b) Appeal board. The appeal board is the BSC or other administrative board charged with the responsibility for issuing interpretations or variances for the Code provision claimed to be affected. If there is no such board, the City Council shall act as the appeal board. (c) Action by appeal board. The appeal board shall act on an appeal or before the 31st day following the date an appeal is filed,unless an extension of time is agreed upon or otherwise ordered by the board. If the appeal board determines: (i) that a notice is true and complete, (ii) that the law mentioned in the notice clearly supports the claim made, and(iii)that there is no discretion about the application of the law and its effect on this Code, the appeal board shall endorse the notice to indicate the extent this Code has been affected, for the specific premises and activities mentioned in the notice. In order to make such determinations,the appeal board may impose reasonable conditions or explanations of the endorsement. Unless a greater vote is required by state law, a simple majority of the appeal board is sufficient. If there is discretion about the application of the law or the effect on this Code, no endorsement may be issued, but the appeal board may issue an interpretation,variance or special exception as provided below. (d) No fees. There is no fee for requesting the appeal board to issue and endorsement. A fee may apply to other requests. Sec. 1.305. Interpretation, variance or special exception. In addition to an appeal, or in lieu of an appeal, the claimant may request an interpretation, variance or special exception. The appeal board is authorized and encouraged to issue an interpretation to harmonize the law relied upon by the claimant and the Code provisions claimed to be affected. The appeal board may issue a special exception to authorize the premises and activities claimed, if the appeal board determines that: (i)the notice filed with the administrative official was true and complete and(ii) the law relied upon clearly or probably supports the claim. In order to make such determinations, the appeal board may impose reasonable conditions or explanations of the special exception. The appeal board may issue a variance in the circumstances mentioned in Chapter 6 (which shall be applied under this subchapter in the same manner as it applies to similar, building-related matters). Sec. 1.306. Confidentiality. A claimant may request that information provided to the City under this subchapter be held confidentially by taking these steps: (i) marking the information clearly and providing a second copy of each affected document from which the marked infoiuiation has been obliterated, and (ii)providing an explanation of why the information should be kept confidential. The City shall not release any information claimed to be confidential unless required to do so by Chapter 552, Texas Government Code or other controlling law. • • Sec. 1.307. Effect on enforcement. In any proceeding to enforce this Code, it is an affirmative defense that: (1) the alleged violation falls within the scope of the premises and activities (and the specific provision of this Code)mentioned in a notice filed under this section, (ii)the alleged violation is carried on by the persons identified in the notice, if identity is relevant, (iii) the notice was endorsed as contemplated by this subchapter, and (iv) any conditions imposed by the endorsement were fully complied with; or (2) an interpretation, special exception or variance issued under this subchapter authorized the conduct in question. Sec. 1.308. Amendments to this Code. Either the administrative official or the appeal board may refer a claim to the City Council or other appropriate City board or commission, if it appears that a response to a claim could involve an amendment to this Code.