NO ELECTONIC SIGNS IN CITY? MAYBE….OR MAYBE NOT

Last Tuesday, Council heard a 3^rd reading, and then approved/enacted, Ordinance 7-2014, which defines “Digital Signs” and states:

“Digital Signs are prohibited in all zoning districts within the city.”

That sounds pretty definitive.

Indeed Council President Cathy Murphy declared:

“Any future applications (to erect digital signs) will be declined at the Building Commissioner’s desk.”

Murphy chose her words carefully.

The new digital/electronic sign ban doesn’t apply to the Bishop Road self-storage facility, whose owners submitted an electronic sign application to the city last December.

It was that application that kicked off the whole discussion of digita/electronic signs to begin with.

Originally the city’s position was that silence constituted a ban.
Basically they argued that because the city’s sign ordinance didn’t mention them, electronic (digital) signs were (impliedly) prohibited.

This view was reflected in comments made by Building Commissioner Dale Grabfelder at a March 25^th Legislative & Finance Committee meeting:

“The only thing we allow is signs with 3 colors.
We don’t allow any flashing signs.
The sign ordinance is silent.
It doesn’t say (digital sign applicants) have to meet any requirements.
They are not allowed right now.”

I question, however, whether that stance is legally supportable.
The Ohio Supreme Court has declared:

"Because zoning ordinances deprive property owners of certain uses of their property...they will not be extended to include limitations by implication."
Henley v. City of Youngstown Board of Zoning Appeals, 90 Ohio St. 3d 142, 152.

As a state appellate court has explained:

"..where there is ambiguity, courts must strictly construe restrictions on the use of real property in favor of the property owner. This is because such restrictions are in derogation of the common law and deprive a property owner of certain uses of his land to which he would otherwise be lawfully entitled."Padrutt v. Village of Peninsula, 2009-Ohio-843, 2009 Ohio App. LEXIS 786

Bottom line:

Claiming that a “lack of regulation means a lack of permission” turns the whole field of zoning law on its head.

Zoning laws limit what is otherwise permitted in a city.

Generally what isn’t explicitly limited or restricted is allowed…. not banned.

It’s not clear whether city leaders had second thoughts about their “Silence equals Ban” stance.
The enactment of Ordinance 7-2014, however, certainly clarifies the matter… at least going forward.

The grandfathering of the self-storage electronic sign application leaves open the possibility that despite the city's new ban on digital/electronic signs, an electronic sign may, nevertheless, still be erected in the city.

After the vote, Councilman Bob Mastrangelo---who serves as Council rep to the Planning & Zoning Commission (P&Z)----attempted to share his concerns and discuss Council's expectations about what would happen next, when the applicants appear before P&Z.

Council President Cathy Murphy did her best to tamp down any specific public discussion of that issue.
Hence this exchange:

“Murphy: I would think P&Z will act appropriately, as guided by law as to any pending application.”

“Mastrangelo: There are no guidelines, that’s the problem.”

“Murphy: You have standards about when to grant a variance. Mr. Paluf will be there when this is discussed.”

“Mastrangelo: But if they keep the sign the same size, there are no variances involved.”

Mastrangelo’s point was that since the newly enacted ban doesn’t apply, and the city’s prior sign ordinance didn’t explicitly address or limit digital/electronic signs, the self-storage company won't necessarily need a variance----as long as it isn’t seeking to increase the size of its current monument sign, it sticks to the 3 color limit (not including white and black) and it complies with other zoning-specific sign rules.
If a variance isn't needed, there won't be any basis for P&Z  (or the city for that matter) to become involved.

Councilwoman Ann D’Amico asked about the possibility of limiting the hours of operation of the potential electronic sign.

Once again, the sign ordinance is silent on that issue.

According to Mastrangelo, the city has achieved such restrictions in the past---but only through negotiation, not as a matter of right.
The lesson here is that, bottom line:

When it comes to zoning laws, Silence is definitely not Golden

ADDITIONAL READING

More information is coming out related to the Mayfield Heights Service Department (MHSD).

One interesting item: a Sun Messenger Letter to the Editor titled:

Willoughby resident accuses Mayfield Heights service department workers of doing private business on city time.

http://www.cleveland.com/hillcrest/index.ssf/2014/05/willoughby_resident_accuses_ma.html#incart_river

There is also a followup story detailing the 2013 MHSD payroll, which shows employees received anywhere from $387.60 to $ 129,015.87 last year.
As he did in the OT ranks, Councilman Chuck Brunello ranked 7th overall.
He received $99,500.95 in pay last year.
The story also provides additional information on newly-promoted Service Director's Joseph Fornaro's OT work.
Payroll records apparently show that he received OT pay 51 out of 52 weeks last year, and that he received those payments while "working for another company on the side, according to the mayor (DiCicco)."

 http://www.cleveland.com/hillcrest/index.ssf/2014/05/six_mayfield_heights_service_d.html

And a very interesting item related to the town next door.
A front of the section, full-page Plain Dealer editorial stated:

“Richmond Heights Mayor Miesha Headen must resign”

http://www.cleveland.com/opinion/index.ssf/2014/05/richmond_heights_mayor_miesha_1.html#incart_river