SUBJECT: Proposed Ordinance Amending Chapter 23.04 of Title 23 of the Municipal Code to Allow for Billboard Removal Agreements

RECOMMENDATION

It is recommended that the City Council approve a proposed ordinance to amend Chapter 23.04 of Title 23 of the Municipal Code to allow agreements for the removal of billboards.

BACKGROUND

Recently, a billboard company has indicated to the City a willingness and desire to enter into an agreement with the City under which the billboard company would agree to remove approximately 5 to 7 billboards located in the City in exchange for being allowed to raise the height of 2 existing billboards. The City was unable to entertain such a request in an expedited manner due to the existing process for the relocation of billboards set forth in Title 23 of the Municipal Code.

As a result of this dilemma, this Office was asked to examine possible revisions to the Municipal Code to allow for alterations in the heights of existing billboards when the end result would be a net reduction in the number of billboards in the City. The proposed ordinance was developed in response to this request.

ANALYSIS

A. Existing Municipal Code Provisions

Currently, Title 23 of the Municipal Code (also referred to as the City’s Sign Ordinance) requires a planned development rezoning for any billboard relocation. A PD rezoning goes before the Planning Commission for recommendation and ultimately before the City Council for approval or denial. Any movement of a billboard – either to a new location on a different parcel, elsewhere on the same parcel, or to another location on the same structure – constitutes a relocation that would trigger the PD rezoning requirement.

In addition to the PD rezoning requirement, the current Sign Code provisions set forth guidelines and criteria for considering what billboards and what sites should be eligible for billboard relocation. This process includes a provision that requires the Director of the City department processing the billboard relocation request to select 3 billboards owned by the applicant billboard company as eligible for relocation, although the ultimate choice of which of those 3 billboards to relocate remains with the applicant. The current process also sets forth specific standards that all relocated billboards must meet, such as height requirements, size requirements and location requirements.

It has been argued that this existing process is so time consuming and onerous that it has resulted in no applications for billboard relocations, and the number of billboards located in the City has not been reduced through this existing process. The current billboard relocation provisions do not provide for any other method of obtaining a billboard relocation.

B. Proposed Ordinance

The proposed Ordinance would leave the existing billboard relocation provisions in place, in case a billboard company should ever desire to avail itself of this existing process. The proposed ordinance would allow another method of obtaining a billboard relocation: through a contractual arrangement and sign adjustment permit from the City.

The proposed Ordinance would allow the City Council to approve a contract with a billboard owner and affected real property owner under which the heights of existing, legal nonconforming billboards could be altered if all of the following conditions are met:

v No new billboards would be erected;

v The contract would result in a net reduction the number of billboards in the City (i.e., the billboard owner would agree to remove some billboards in exchange for being able to alter the height of an existing billboard);

v Billboards could not be raised to over 50 feet in height;

v The billboard or real property owner agree to obtain insurance and release the City from liability and damages related to the work performed;

v The proposal is consistent with the General Plan and Sign Code; and

v The contract would result in an overall reduction in visual clutter and visual blight in the City.

The provisions of this new process would be administered by the Director of Planning, Building and Code Enforcement. These conditions and the alteration in the height of the remaining billboard would be processed through a sign adjustment permit, which permit would be issued by the Director. Before issuing any permit, the Director would need to find that the permit application is consistent with the contract approved by Council.

CONCLUSION

It is anticipated that the proposed Ordinance will provide a more streamlined process for billboard relocations and that this new process also will benefit the City by resulting in a net reduction in the number of billboards located in the City, thereby further reducing visual clutter and visual blight in the City. Therefore, it is recommended that the City Council approve the proposed Ordinance. A copy of the proposed Ordinance is attached to this memorandum for your convenient reference.

PUBLIC OUTREACH

Not applicable.

CEQA: Exempt (CEQA Guidelines, Section 15308)

RICHARD DOYLE

City Attorney

By RENEE A. GURZA

Sr. Deputy City Attorney

ORDINANCE NO. ____________

AN ORDINANCE OF THE CITY OF SAN JOSÉ AMENDING PART 5 OF CHAPTER 23.04 OF TITLE 23 OF THE SAN JOSE MUNICIPAL CODE BY ADDING A NEW SECTION 23.04.495 TO ALLOW AGREEMENTS FOR THE REMOVAL OF BILLBOARDS

WHEREAS, this project was found to be categorically exempt from the California Environmental Quality Act of 1970, as amended (“CEQA”), pursuant to the provisions of Section 15308 of the State Guidelines for the Implementation of CEQA, under File No. PP 01-05-099.

NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF SAN JOSE:

Part 5 of Chapter 23.04 of Title 23 of the San Jose Municipal Code is hereby amended by adding a new Section to be numbered and entitled and to read as follows:

23.04.495 Billboard Height Alteration Agreements

A. Notwithstanding the foregoing provisions of this Part, nothing in this Part shall prohibit the City, a billboard owner, and the owner of the real property upon which the billboard is located from all entering into a contractual arrangement to allow for an alteration in the height of an existing, legal nonconforming billboard in exchange for the removal of other legal nonconforming billboards in the City when the contract meets all of the following minimum criteria:

1. The contract does not permit nor allow for the erection, defined in Section 23.02.160, of any new billboard nor increase the number of billboard panels located in the City; and

2. Fulfillment of the contractual obligations shall result in a net reduction of the number of billboards located in the City that are not otherwise already scheduled for removal by the real property owner or billboard owner or through final order of condemnation other order of a court of competent jurisdiction; and

3. The contract provides for the removal of any and all billboards to be removed under the contract prior to or concurrently with effecting any change in the height of the existing legal nonconforming billboard; and

4. The contract does not allow the height of any billboard, or any of its appendages, to exceed fifty (50) feet, measured from the natural grade of the site; and

5. The contract contains language satisfactory to the City Attorney under which the billboard owner and/or real property owner agree to release and indemnify the City from any and all potential liability and damages resulting from work performed and services rendered under the contract and language satisfactory to the Risk Manager under which the billboard owner and/or real property owner agree to acquire and maintain appropriate insurance policies related to the work to be performed and services provided under the contract.

B. The City Council shall not approve a proposed contract unless the City Council makes all of the following findings regarding the contract:

1. The proposed contract meets all of the criteria set forth in Subsection 23.04.495.A; and

2. The contractual provisions are consistent with the City’s General Plan and the purposes of this Part and this Title; and

3. Fulfillment of the provisions of the contract would result in an overall reduction of visual clutter and visual blight in the City; and

4. Fulfillment of the provisions of the contract will preserve or further the public health, safety or welfare.

C. Any alteration to the height of an existing billboard shall be processed and permitted only through a sign adjustment permit issued in accordance with the provisions of this Title, including without limitation the provisions regarding the alteration of a legal nonconforming sign set forth in Part 3 and Part 4 of Chapter 23.02; provided, however, that the Director may issue a sign adjustment permit only after making the findings required by Section 23.02.1340 and also finding that the sign adjustment permit application is consistent with the applicable billboard height alteration contract approved by the City Council.

D. The resulting billboard shall remain a legal nonconforming billboard for so long as the erection and maintenance of the resulting billboard is in full compliance with the terms and conditions of the contract and sign adjustment permit issued therefor.

E. The City Council may approve such a contract and the Director may issue the required permit(s), all in accordance with its normal and existing practices, policies and procedures. Under no circumstance shall any person have the right to have a contract executed to allow for an alteration in the height of an existing legal nonconforming billboard in exchange for the removal of other billboards in the City under the provisions of this Section. Nothing contained in this Section shall, in any event or under any circumstances, be deemed or construed to confer upon any person the right to have such a contract executed by the City.

F. Notwithstanding the provisions of Section 23.02.870, the Director of Planning, Building and Code Enforcement, or other person designated by the City Manager, shall administer the provisions of this Section and, for each proposed contract, provide a report to the City Council on the criteria set forth in Subsection 23.04.495.A above and on the facts and analyses pertaining to the findings required under Section 23.04.495.B above, as well as a recommendation to the City Council on each proposed contract.

PASSED FOR PUBLICATION OF TITLE this _____ day of ___________, 2001, by the following vote:

AYES:

NOES:

ABSENT:

DISQUALIFIED:

DRAFT

RON GONZALES

MAYOR

ATTEST:

DRAFT

PATRICIA L. O’HEARN

CITY CLERK