Ordinance Review - September 8th 2015
ORDINANCE REVIEW COMMITTEE
Sept 8, 2015
The Ordinance Review Committee met in regular session on Tues, Sept 8, 2015 at 5:00 p.m. at the Mayfield Village Civic Center Conference Room. Chairman Bill Marquardt presided.
Present: Mr. Bill Marquardt (Chairman), Mr. Jerry Catalano, Mrs. Mary Ann Wervey, Mr. Jim Farmer, and Mr. John Marrelli
Absent: Mr. Tom Cappello (Village Engineer) and Dr. Stephan Parker (Council Alternate)
Also Present: Mr. Joseph Diemert (Law Director), Ms. Deborah Garbo (Secretary), and Rich Edelman, Chief of Police
CONSIDERATION OF MEETING MINUTES: Aug 11, 2015
Mr. Catalano, seconded by Mr. Marrelli made a motion to approve the minutes of Aug 11, 2015.
Motion Carried. Minutes Approved As Written.
- Chapter 505; Animals and Fowl
Section 505.15; Keeping Animals near Dwellings
- Chapter 1185 Signs
Section 1185.14 Signs Permitted in any District
(d) Poltical Signs
Chapter 505; Animals and Fowl
Section 505.15; Keeping Animals near Dwellings
Chairman Marquardt called the meeting to order beginning with proposal #1.
Mr. Diemert explains proposed language. We decided to put the word “chickens” in there as a non-domestic animal to make the language more clear. As far as the enclosure location, we drafted language as follows;
“In regard to chickens, such corral or enclosure shall be centrally located in the open space to the rear of the main residence, as far off as possible from the property lines of neighboring residential property, as determined by the Animal Warden”.
Mr. Marrelli said, I played with the two acre size limit on our zoning map, and 90% of the town doesn’t have two acres. I know when this was originally written it was for horses, cows, etc. I’m afraid we’re going to be revisiting this time and time again if we don’t lower the size so there’s more qualified properties. I was thinking more in the range of 25,000 or 30,000 square feet.
Mr. Diemert asked, who was the complainant that instigated this, and how large is the lot of concern?
Mr. Marrelli replied, a resident has concerns with his neighbor’s coop two doors down on Wilson Mills. Those lots are probably 100 x 150 sq. ft. Our minimum lot size today to build, which was revised some years ago is 20,000 sq. ft. If we even had 20,000 sq. ft., you’d have whole developments like the Kenwood Estates, Aintree North & Worton Pk areas that nobody could have a chicken coop at all. I think the two acre minimum was more for horses and cattle. If you have two acres, you probably live in Hanover.
Chairman Marquardt asked, what’s the downside?
Mr. Marrelli replied, if they say we precluded them from having a chicken coop, I guess the remedy would be to have them go to the Zoning Board for a variance from the two acres and make a case for a hardship. I don’t know how they’d prove a hardship.
Mr. Diemert said it would go to the Common Pleas Court and they’d argue that it’s not a proper health, safety & welfare concern in the community to regulate chickens. Then we have to justify that this restriction does benefit the health, safety & general welfare of the community. Justification of that is they make noise, stink, I don’t know. Why can’t we use the enforcement tool of the noise nuisance?
Mr. Marrelli said, because we don’t really have a decibel level for noise nuisance. How do you enforce that?
Mr. Diemert said there’s disorderly conduct when you interfere with the neighbor’s peace. When you go to house parties, that decibel may not be that high, but they’re making noise and playing radios loud, disturbing the peace and good nature of the neighborhood. We have some enforcement there.
Mr. Marrelli states, I don’t have a problem with the proximity of the enclosure to houses. I don’t care if you have 5 acres, but if your chicken coop is 20 feet from my house, I do care. I’m thinking we should be headed down that road more, in keeping the coops distant from the house and not rely so much on the lot size. For example, if you have a 150 ft. lot and your house is set back 50 feet, you have 100 feet left. Suppose your neighbor has 40 or 50 feet to the back of their house. You might not be able to get the 100 feet between the two. So now you can’t have them because you don’t have the depth you need. If that’s a determining factor, then it could be a health, safety & welfare issue to keep these birds at least 100 feet from any dwelling in case there’s smells, germs, etc. In other words, if it’s a really congested area where the houses are close together, you won’t be able to do it versus having this acreage size.
Mr. Diemert said we could leave (b) the way it was and create a new subsection (c) to say as to chickens or bird coops of any kind to keep at least 100’ from any neighboring resident.
Mr. Marrelli thinks that’s workable depending how big the coop is and if they can position it in a way to get 100’ between everybody. I think 100’ is sufficient for noise, smells and any other kind of issue that might affect someone else. We’re still going to preclude some people from doing it, but two acres will take 90% of the town off the map.
Mr. Farmer states, I don’t see what’s wrong with that exactly.
Mr. Marrelli said by doing that, you’re going to have somebody come back and say you guys basically zoned this out of existence.
Mr. Farmer said there are reasons for it, go ahead and let them challenge it.
Mr. Marrelli said that’s another approach. You could do that. That depends how this Board feels about it.
Chairman Marquardt asked, which is worse? Make it strict and then try to defend it or fight the battle if it comes up?
Mr. Farmer asked, how many people are we talking about with coops?
Mr. Marrelli replied, right now we have two chicken coops in the Village and they won’t be affected because they’re grandfathered in.
Mr. Diemert states, because of the popularity of it, we should have something in our books to regulate it. Who referred this to Ordinance Review, the Council or the Mayor?
Mr. Marrelli replied, it was a complaint from a Doctor who said he was subjected to his neighbor’s chickens and he had an immune system issue. He wanted to know what our laws were.
Mr. Diemert said, many communities have these ordinances.
Mr. Farmer said, this is definitely an up and coming thing. I don’t know how long it’ll last.
Chairman Marquardt asked, what’s the legal advice here?
Mr. Diemert replied, we’d like to create something where we don’t get challenged of course. If John thinks it’s going to sell easier at 100’, will that satisfy the Doctor with the immune system problem? Would his neighbor move his chicken coop to 100’? Yes, he’s grandfathered, but maybe as a nice gesture?
Mr. Marrelli replied, possibly. I’m not sure he could on that lot. We could ask if he would shift it away from the other guy’s house.
Mr. Marrelli asked Chief Edelman, how does the Animal Warden feel about any of this?
Chief Edelman replied, he said he’ll do whatever you guys tell him to do.
Mr. Diemert recommendations. I like John’s idea of a minimum of 100’ from any other residence adjoining the property. We’ll create a new subsection (c) and leave (b) the way it was with horses, mules and cattle.
Mr. Marrelli said, we have to watch the language in (b) so that the two acres doesn’t come into play.
Mrs. Wervey asked, how will that affect (c) as is?
Mr. Diemert replied, I may leave (c) as is and create a (d).
Law Department to draft revised language.
Chapter 1185 Signs
Section 1185.14 Signs Permitted in any District
(d) Political Signs
Mr. Marrelli said we revised our sign code in 2013. One of the requirements was the 20’ setback off the right-of-way line. Apparently that’s a problem for 2 of the 3 candidates.
Recent Supreme Court Decisions
by Joseph Diemert, Law Director
Mr. Diemert states, I’ve pulled up my file on Mayfield Village’s sign ordinances since I’ve been here 25 years. It’s changed probably a dozen times in that time. Each time there’s a court decision we try to accommodate what the court has ruled. The most recent version of our code was taken from one of the court cases from the United States Court of Appeals that governs us, the second highest court. Since that time, that same case has been appealed to the Supreme Court; Wagner v Garfield Heights. The Supreme Court held if for a while then they granted certiorari and they’ve had it there for over a year. Then the Supreme Court decided that in light of their most recent decision in July that they are going to send this case back to the U.S. Court of Appeals in Cincinnati to revisit their decision that they made in 2013/14.
This new decision is called Reed v town of Gilbert, Arizona. It’s hot off the presses, just came out this summer. It had a five court majority but then there were three different concurring opinions so it fractionized Supreme Court four different fractions, but they all came to the same conclusion that Gilbert Arizona’s ordinance was not acceptable. It didn’t meet the standard of time, place and manner restrictions that must be narrowly tailored by any municipality to serve the legitimate content neutral interest. That’s been the hallmark of First Amendment cases, that you can’t really regulate something based on content. You can’t say signs for real estate have to be located 20’ back, but political signs, ideological signs, or directional signs can be located 5’ back. Because you’re now saying based on content, you’re changing the rules. They don’t want you to change rules based on the content of language. A lot of these cases have had to do with adult type stores and the signs they had and their locations, things like that.
The Supreme Court has been very defensive of the First Amendment right of free speech. This is considered a free speech issue as two of the three candidates pointed out to John today. The idea of why it’s free speech is that if you tell people with political signs they have to be 20’ behind the right-of-way, is that preventing a property owner from expressing their favoritism or view towards a candidate in a legitimate way that can be seen by people if you don’t let them put is closer to the right-of-way than the 20’ back.
We’ve analyzed that issue back when the Wagner decision was made in 2011. The amendments that our Council adopted were in compliance. Since this decision was made this summer, I’m not sure that we would be although they never spoke to the 20’ versus no feet setback. We have a number of restrictions on political signs.
Section 1185.14 (d) Political Signs;
- Such signs shall be located not less than twenty feet from the right-of-way line.
- No sign shall exceed nine square feet in area.
- Such signs shall not be illuminated in any manner.
- Such sign shall be located as close to the center of the property as possible as measured by the front footage.
- No political sign shall be erected and posted more than sixty (60) days before an election. Each such sign shall bear the name of the campaign chairperson or treasurer, and the address of each person, who, together with the candidate(s) shall be responsible for compliance with these regulations, and for the payment of any fines. Each sign shall be removed within forty-eight (48) hours after the Election Day. Any sign not so removed may be thereafter removed by the authority of the Building Commissioner, and the responsible party shall pay a ten dollar ($10.00) charge for each sign remaining after the deadline.
- Such signs shall not present a vision problem to vehicular traffic as determined by the Chief of Police.
- Such signs shall be either parallel or perpendicular to the frontage street of such property.
- There shall only be one sign per candidate or issue per permanent parcel number.
- Political signs shall be displayed in front yards only, and if a vacant lot, shall be displayed in the front half of the yard.
- Signs shall be securely fastened to the support stakes or posts, and inserted or anchored to the ground in such a fashion that weather conditions will not cause them to fall, bend, lean or twist.
- Any damage to property caused by the signs shall be repaired upon removal.
- Only the signs which are of candidates or issues which are on the ballot for electors in the Municipality shall be permitted to be located within the Municipality.
- Candidates are personally responsible to keep a constant watch on their signs and to maintain such signs in good condition, and to insure their continual compliance with this Code. In the event signs are no longer in good condition and are found to be deteriorating, candidates are personally responsible to replace or remove such sign immediately.
- Any violation of this section shall cause notice from the Building Commissioner's office to the candidate, who shall correct the violation immediately, but not more than seventy-two hours from the time of the notification. Thereafter, the Building Commissioner shall have the authority to remove such signs and place them in the Service Garage.
Mr. Diemert concludes. In the Ken Lanci election for County Executive against Budish, during that campaign their lawyers came out and swore to attack that provision because I told John to pick up some signs and put them in the Service Garage and his lawyers went berzerk. We didn’t want to get into a legal fight with them over this issue so we said forget the fine, take your signs and I told John let’s stop enforcing that section for this election and the next election until Ordinance Review gets it straightened away.
Mr. Marrelli said, my recommendation on the enforcement section (14) is instead of removing the sign from the property and denying the owner and the candidate, my thought was if it’s in the tree lawn, I can move it back. If it’s blocking vision, we’d try to move it into the yard or turn it sideways. We’d assist in some way keeping the sign on the lot without removing it. Here again, anybody that’s put out their money and bought signs and all of a sudden they’re disappearing out of the yards, we don’t want that, we want a location in compliance with the ordinance.
Mr. Diemert said, the main issues I see in light of the Supreme Court decision that just recently came down, we’re not really clear. That case in the Supreme Court had to do with temporary directional signs of the Church who had no set Service place. They would post campaign signs at various locations throughout the community with the permission of property owners, saying that Sunday Services will be held at “x” place, the address and the time. The city of Gilbert said that violates their code, there’s too many of them, they’re all over the place. They cited them and the District Court held in their favor, in favor of the property owner. The Court of Appeals for the Ninth District out of California, they reversed the lower court and said no, you can’t do that, this is the First Amendment, this is an unconstitutional infringement on the Church’s rights to give directions and it is not content neutral. By restricting their ability to communicate that, it’s an unconstitutional infringement on the First Amendment. A real stretch based on other decisions, but the majority of the United States Supreme Court ruled that. Unfortunately it’s the law of the land and we have to deal with it.
Based upon that decision which really has nothing to do with political signs, it had to do with temporary location signs, we still have to look at it and ask; is there any words they used in this decision that might apply to Mayfield Village. The only one I really see a problem with is the 20 feet. We don’t require real estate signs or welcome home Sammy signs to be 20’ back. So, could we be regulating content by saying political signs have to be 20’ back? With that in mind, maybe we should not be enforcing the 20 foot back from the right-of-way line.
Law Dept Recommendations
Mr. Diemert said, how to amend the code, I’d need more time to analyze this recent decision. It’s only one month old. For this campaign season, I think John’s recommendations are the same as ours. Let’s not enforce the 20’ right-of-way. If you recommend that for a change in the ordinance, we’ll do that later on. “Front yards only” could be an issue.
Mr. Marrelli said, they can’t be in the right-of-way. That’s not on private property.
Mr. Diemert said, that could be justified because you’ve got visibility with people backing out of their driveways.
Mr. Diemert said, the other issue as to what to do with the signs, confiscating the signs and putting them in the Service Garage, I think if we just let John call the candidate or just move it.
Mr. Marrelli replied, I would just move it. In the case where there’s no place on the lot where it could go, I’d have to notify the candidate. This is going to be an everyday thing now.
Mr. Diemert commented, almost every Election this becomes an issue when there’s a contested election.
Parallel or Pependicular to the street
Mr. Marrelli said, signs being either parallel or perpendicular to the street (#7) actually helps me. If it’s a vision issue, we can turn it sideways.
Mr. Diemert said, I’m thinking about the corner lots where you’re telling people they can have only one sign but they have two frontages. I think for this election you probably should allow any property that has two frontages to have two signs. John agrees.
Mr. Diemert said, I think the nine square feet is very enforceable even in light of this new decision.
Mr. Diemert not sure about this.
Mr. Marrelli states, we don’t allow anybody to have their signs lit after 11:00 p.m. in the whole town except the Gas Station. That’s in our sign code.
Mr. Diemert in summary recommends the Ordinance Review Committee pass on this for now but leave on their agenda for after the Election. I’ll make some recommendations with John for changes.
Allen Meyers, Mayoral Candidate asked, whose idea was it to change the ordinance?
Mr. Diemert replied, the Supreme Court of the United States.
Allen Meyers asked, whose idea was it to change it here for this election only?
Mr. Diemert replied, if we don’t think it could be enforced. We didn’t enforce it in the County Executive’s campaign.
Allen Meyers said they haven’t enforced the change yet. You have to give me 72 hrs.
Mr. Diemert said, we sent out a 72 hour notice on it.
Allen Meyers said, every single sign I put up is in the 20’ setback. How can you make a law and break it for one of the candidates? How do you do that? To me, that looks pretty bad.
Mr. Diemert states, a law is a law and we’re sworn to uphold them and John is sworn to uphold them and he should. However, when there’s a Supreme Court decision that comes in between the time this law was adopted and now, as a municipality you’re sworn to follow the highest law.
Allen Meyers said, that law doesn’t say anything about a 20’ setback.
Mr. Diemert states, they said you cannot require a difference between setbacks for one content versus another content, so that probably would apply.
Mr. Marrelli said, my enforcement provision is to go remove any sign that’s not 20’ back from the right-of-way. That means I would be denying those candidates their free speech if I confiscate the sign.
Allen Meyers said not removing them, putting them where they’re supposed to be, that was the whole question.
Mr. Diemert said you’re on other people’s property. It’s not the candidate we’re talking about, it’s joe shmoe’s residence. I don’t think I’d want him coming on my property moving signs.
Allen Meyers said you have to ask the people just like we did. All of us candidates have to ask the people, you don’t just put it in someone’s yard.
Mr. Diemert said, the idea is to have a level playing field for all the candidates. John should get together with all three. John, I’ll give you an opinion.
Mr. Marrelli said I did that with them in the beginning. I said, here is the ordinances, stay within them so we don’t have any finger pointing. A lot of the yards, if you put the sign 20’ back, it’s behind trees, bushes or garages.
Allen Meyers said if you read the ordinance, it says if this is going to be blocked by something, you should choose not to put one. If you can’t understand that part of it….
Mr. Marrelli replied, understood. Then the question becomes, so & so want to support me but there’s not 20’ visible from the street. You’re telling that supporter that they can’t put a sign in their yard and now you’re denying their right to free speech.
Allen Meyers said I understand that, but not every single sign.
Chairman Marquardt states, I don’t think we can enforce something we haven’t created yet.
Allen Meyers said if we go back to the beginning before this ever started, after I got my petition signed, you sent us the ordinance. We got all the laws answered. Remember my Wife clarified, it says right in the political signs 25’ and you said no, it was amended and changed to 20’.
Mr. Marrelli said understood. Let me ask you this, does it matter to you if it’s closer?
Allen Meyers replied, I don’t care. I’m not going to go against the rule. I follow the laws. That’s the way I was brought up. Rules are rules, I’ll do what you tell me.
Mr. Marrelli said the freedom of speech issue comes into play when your lot won’t support a sign at 20’ back.
Chairman Marquardt asked, what are we going to do here?
Mr. Diemert said Ordinance Review’s purpose as you know is to recommend any changes to the ordinances. I don’t see that being something you can recommend at this point until we get the Supreme Court’s final version interpreted and the case they sent back to the Sixth Circuit for them to examine political signs. I just pulled this off before coming down here. This is dated July 31st. This is the Supreme Court of the United States in Wagner v Garfield; “This case has been accepted by the Supreme Court to decide. However, in consideration, it’s ordered that this Court’s petition accepting certiorari is reversed and is vacated and the case is remanded to the Sixth Circuit for further consideration in light of Read v Gilbert”.
Chairman Marquardt states, from the standpoint of Ordinance Review, there’s nothing we’re going to do between now and the Election. My opinion has to be between you and John putting together some interpretation of how you’re going to enforce this and get together with the candidates and say this is what we think has to happen and why, so please comply. Get everybody on board.
Mr. Marrelli said, I need a direction on the enforcement part so that I’m not accused of denying somebody their freedom of speech.
Mr. Diemert said I’ll put something together for you John that you accept and find reasonable and then you send it to the three candidates. Then the three candidates can voice their opinion. You and I will weigh that information and send them the final decision. All we can try and do is make it fair and a level playing field for everybody in the meantime. Then we’ll get this back on your agenda in December or January.
Chairman Marquardt said we still have our ordinance that we’re supposed to be enforcing. It’s not changing.
Mr. Marrelli corrected, except for the part where I’m supposed to confiscate signs off the property. If I take somebody’s sign off of a property, I’m denying them free speech and then we’re going to be in a jackpot.
Mr. Catalano, seconded by Mrs. Wervey made a motion for adjournment.
Motion Carried. Meeting Adjourned at 5:45 p.m.