PURPOSE

The purpose of this report is to provide information to the City Council in response to a request from the Burbank Association of Realtors to consider the adoption of an ordinance which would allow realtors the exclusive right to place directional and informational signage (specifically �Open House� signs) on public right-of-way for the purpose of selling Burbank real estate.

BACKGROUND

Sections 20-207 and 20-402 of the Burbank Municipal Code (BMC), attached as Exhibit A, prohibits objects, including real estate signage, from encroaching upon public right-of-way.[1]  License and Code Services staff enforces these code sections by removing real estate signs from the public right-of-way as allowed by code.

The Burbank Association of Realtors, previously known as the Burbank Board of Realtors, has requested that the Burbank City Council amend the BMC to make an exception to exclusively allow real estate signage, specifically �Open House� directional and informational signage, to encroach upon public right-of-way.   A letter to this effect was sent to City staff on September 17, 2003 (Exhibit B).

ANALYSIS

In a recent meeting with representatives of the Burbank Association of Realtors and Council Member Todd Campbell, staff gathered six reasons from the group in support of the Association�s request to allow �Open House� signage to encroach on public right-of way.  Many of these reasons were articulated in the September 17, 2003 letter as well.  They include the following:

        1.            Greater ability to market a property.  Real estate signage will improve the overall ability to market and sell homes in Burbank.   Burbank property owners (taxpayers) expect real estate �Open House� signs to be used to market the sale of their home and to be allowed to encroach upon public right-of-way to do so.

          2.            Traditional and affordable.   Such signage is viewed by the real estate community and their clientele as traditional and affordable.

         3.            Sales disadvantages.   Burbank realtors have a sales disadvantage in that other cities allow, either by code or lack of enforcement, �Open House� signs to be allowed to encroach on public right-of-way. 

         4.            Helps to maintain high Burbank property values.  According to the Association of Realtors, allowing directional and informational �Open House� on public right-of-way promotes a shorter sales timeframe and will help to maintain high property values in Burbank.

         5.            Property promotion.   The sale of a client�s property is the primary focus of these signs and is not intended to sell or market individual realtors, their companies, or their company�s office locations.  The Association believes that real estate signs which encroach on public right-of-way are far more effective than signs currently being placed on private property.

         6.            Real estate signs are unique.   The Association of Realtors has expressed that real estate signs are unique to other types of signage.  While realtors and homeowners are obeying the existing law, they are also being penalized by it. 

The reasons to grant the Association of Realtor�s request to allow for directional and informational signage on public right-of-way are compelling, there are 4 main areas of concern for staff.  They are listed below:

1. Legal Issues:

   1. First Amendment.  The public-right-of way is a traditional public forum, and as such cities are limited to enforce regulations affecting expression in the public forum relative to time, place, and manner regulations which are content-neutral, and are narrowly tailored to serve significant government interest, while leaving open ample alternative channels of communication.  Content-based regulation of constitutionally protected speech in a traditional public forum must use the least restrictive means to further articulate interest.  An ordinance such as the one proposed by the Burbank Association of Realtors, which would ban all signs on all public property, but create exemptions for real estate signs, is a content-based restriction on speech, since the enforcement officer will have to read a sign�s message to determine which signs are exempted from the ordinance.  This type of regulation, which allows some, but not all commercial signs in the right-of-way, would be a content-based regulation which cities cannot enact unless the law advances a compelling state interest.                                                                                                                                        

This issue (First Amendment), above all others, is by far the most risky relative to the City defending itself against legal challenges.  Attached as Exhibit D, is a September 15, 2003 memo from the Burbank City Attorney�s Office which details the difficulty of making the required findings for a �compelling state interest� which would support the Association of Realtors� request.  If the City of Burbank were to adopt an ordinance which focused on content-based materials, such as real estate �Open House� signs, the City must have a compelling governmental interest or reason for doing so. 

                        b. Equal Protection.  In addition to First Amendment issues, the Burbank Association of Realtors� proposal would be exclusive to the real estate community only, thereby allowing one type of business to possess a greater ability to express themselves than other businesses, organizations, or persons wanting the ability to legally place signage upon public right-of-way.  If the City Council considers the signage exception, staff feels that in order to provide equal protection, any property seller, and possibly renters, should be allowed to participate in the signage exception.

        2.  Liability and Safety Issues.  When objects encroach upon public right-of-way, with or without an Encroachment Permit, Street Use Permit, or any other permit, they can present an unexpected hazard to others thereby presenting potential liability and safety issues for the City.  The City�s concerns are essentially from a liability �deep pockets� perspective which can likely be mitigated through the indemnification and insurance protections provided by the Encroachment Permit or Street Use Permit process.

3.  Aesthetics.  The Council previously found that it has a substantial interest in protecting the aesthetic appearance of the community by avoiding visual �clutter�.  The allowance of real estate signs on public right-of-way may be seen as �clutter�.

        4.  Enforcement Issues.  Currently, real estate signage encroaching on public property is illegal and enforcement is, therefore, relatively simple.  Current enforcement does not include verifying the size, message, location, timing, or quantity of signs.  The Association�s proposal, as outlined in Exhibit B, suggests that a new sign ordinance set requirements in these areas. Staff is concerned that this will require more staff time to ensure that they are met.  Furthermore, signs found to be in violation of the BMC will still have to be impounded, as current policies dictate, and occasionally prosecution may be implemented should the severity of a violation warrant such a reaction.

RECOMMENDATION

Staff recommends the City Council not amend the Burbank Municipal Code to allow real estate �Open House� signage exclusive encroachment rights onto public right-of-way.  The primary reason for this recommendation is due to the First Amendment considerations whereby there must be a compelling reason (serving a significant government interest) to allow such an exception to the general prohibition on signs in the public right-of-way.  Staff does not feel that allowing real estate signs as opposed to other private signage in the public right-of-way constitutes a significant government interest.

However, if Council chooses to proceed with an ordinance as proposed by the Burbank Association of Realtors, staff recommends that in drafting such an ordinance, Council consider incorporating certain elements into this ordinance including:

• Requiring a permit with fees sufficient to cover the costs of enforcement;

• Allowing other property owners, and possible renters, to use public right-of-way to advertise the sale/lease of their property;

• Requiring insurance and indemnification protections sufficient to guard the City from liability and safety issues;

• Allowing staff to abate and/or impound illegal signs;

• Establishing days, times, and duration periods that signs would be allowed;

• Establishing the size, shape, quality, quantity, and location of signs; and

• Determining violation penalties to enforce size, quantity, location, and content requirements.

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