WORK SESSION AGENDA REQUEST

Sponsor:

 Board of Supervisors Meeting Date:

 

William G. Downey, Scott District Supervisor

 

May 12, 2005

Staff Lead:

Department:

 

W. Todd Benson, Assistant Zoning Administrator

 

Community Development

Topic:

 

Enforcement Options for Signs Posted in the Right-of-Way

 

Topic Description:

 

A discussion of enforcement options to deal with signs illegally posted in the public right-of-way.

 

Requested Action of the Board of Supervisors:

 

Hold a work session on enforcement options to deal with signs illegally posted in the public right-of-way.

Financial Impact Analysis:

No financial impact analysis has been conducted.

 

Summary Staff Report:

 

Apparently, real estate signs in the public right-of-way proliferate on Friday evenings, some disappearing on Sunday at dusk, others becoming roadside rubbish.  The Board of Supervisors has asked about the legal status of such signs and enforcement options.

 

Real estate signs in the right-of-way are prohibited by Fauquier County Code § 8-1000.2.  Except for the two directional signs authorized by Fauquier County Code § 8-1401 to be posted on private property, they also constitute illegal billboards under Fauquier County Code § 8-1000.5.

 

County Enforcement

 

An administrative remedy is to hire weekend sign officials to police the County and remove illegal signs.

 

This action would entail a change in County enforcement philosophy.  Like most jurisdictions, the Zoning Administrator’s Office responds to complaints; it does not maintain zoning police who actively seek out violations.  However, some jurisdictions make sign removal an exception to the rule and allocate resources to this task.  An e-mail inquiry was made to other jurisdictions about how they handle this problem.  In short, responding jurisdictions pull the signs (Botetourt, Buenavista, Danville, Front Royal, Lynchburg, and Manassas).

 

There is dual jurisdiction over the right-of-ways. David Cubbage with the Virginia Department of Transportation (VDOT) has informally advised that an arrangement can be reached for the County to remove signs in the right-of-way. VDOT will provide safety training and also identify the edge of the right-of-way along problem streets and intersections.  In addition, State law allows the County to act as agent for VDOT, remove signs posted in the right-of-way that violate State law, and keep half of the fines allowed under State law.

 

Some jurisdictions hold the signs for a prescribed period and inform the putative owners that the jurisdiction has them and they can reclaim them.  Such a practice is courteous, minimizing the likelihood of repercussions of an erroneous removal.  It also allows the County to establish that certain companies and company employees take responsibility for certain signs, a useful fact in subsequent litigation.

 

However, if bad behavior (illegal posting) is not punished, this manner of enforcement may degrade into a war of resources with realtors and builders continually reposting after an intersection or street is cleared. A response to the aforementioned e-mail inquiry is illustrative:

 

“I was pulling them up every Friday at 5:30 (they usually appeared right after 5:00). Being a small town we only had about 20 signs each time. I had verbally let each project manager know that they were not allowed. We had a problem with the managers changing on a regular basis. After about six weeks of collections I couldn't take it any more so I sent a letter threatening to charge them with a misdemeanor for each sign. They came back asking how much that would cost, because they "needed" the signs. They no longer put them up in Town, but they do have them placed on the County line.”

 

Another option is to seek an injunction against flagrant violators.  Success should result in a court order prohibiting future violations.  Subsequent violations would be subject to penalties for contempt of court.  A war of resources would not materialize. The discovery process would also identify the corporate individual responsible for the posting of signs.

 

Fauquier County Code § 13-602 makes illegal posting a misdemeanor punishable by a fine up to $ 1,000.  This tool is difficult to use because the person posting is rarely observed and discovery tools in a criminal proceeding are limited. Presumably, a real estate sign is posted by the company advertised, but that cannot be determined with certainty. Misdemeanor prosecutions are probably more effective after a civil case, having established who is responsible and having established that the signs were posted by the company.  We could then pursue the company and the responsible individuals.  Even in this booming market, thousand dollar fines against the individual builders and realtors add up.

 

An escalating enforcement regime would be to write to offenders reminding them that they may not post in the right-of-way.  Next, the County would conduct a public hearing asking for citizen input about problem streets and intersections.  Based upon this process, the County would work with VDOT and start pulling signs. 

 

 If the illegal posting of signs continues for three weeks, the County Attorney would file for an injunction.  As part of discovery, the County would discern the corporate officials responsible for authorizing sign posting.  If posting continues after an injunction is entered, we seek contempt of court fines against the corporation and the responsible corporate entity and/or misdemeanor charges against the corporation and the corporate official. However, it needs to be noted that prior to the County Attorney's Office filing for an injunction, a Zoning Administrator final determination letter must be sent.  The company’s officials then have 30 days to appeal to the Board of Zoning Appeals (BZA) and, if filed, the process could take a considerable amount of time before the signs go away.  Even if an appeal isn't filed, a zoning enforcement injunction may take several months to obtain.  It is typical to expect at least a year between the Zoning Administrator determination letter and any type of Show Cause proceeding. 

 

Such a process gives reasonable notice of the violations and change in enforcement policy.  It starts with a mild enforcement action – removal of signs that may be reclaimed.  Only after several weeks do penalties increase. For the process to be successful, the Board of Supervisors must commit funds and resources (trucks and storage) for weekend duty.

 

Public Enforcement

 

Adopt a highway groups have authority to remove signs as VDOT agents.  VDOT trains these groups in public safety and also identifies the edge of the public right of way.

 

An alternative enforcement mechanism is to solicit groups along to adopt problematic roads.

 

Identify any other Departments, Organizations or Individuals that would be affected by this request:

 

Department of Community Development

Development Community

Virginia Department of Transportation

The public