HomeMy WebLinkAboutMINUTES - 08142001 - C.121 I/
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TO: BOARD OF SUPERVISORS '?�: - Contra
FROM: INTERNAL OPERATIONS COMMITTEE ,
o . :s Costa
DATE. AUGUST 14, 2001
SUBJECT: FLOATING BILLBOARDS County
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
1. ACCEPT draft ordinance to restrict the use and placement of floating billboards on
County-controlled waterways.
2. REFER draft ordinance to the Planning Commission for public hearing and
recommendation to the Board of Supervisors.
3. DIRECT the County Counsel to forward a copy of the draft ordinance to the State
Department of Boating and Waterways for its review and comment, and to forward those
comments to the Internal Operations Committee.
BACKGROUND:
As a way to break through the traditional advertising clutter, some businesses are
experimenting with a relatively new form of advertising, "floating billboards". For example,
Dirtpile.com calls its 24' by 72' yellow and red floating sign, which can be illuminated, "ad-
barge-tising". Closer to home, San Francisco-based Adauction.com began renting out barge-
borne billboards at $35,000 for two weeks in San Francisco Bay along a busy stretch of
Highway 101. That has annoyed some Bay Area residents who consider this alternate media
form to be an eyesore.
Some governmental agencies, including New York City and the City of Brisbane, have taken
steps to ban or restrict floating billboards. Last February, the Board requested the Internal
Operations Committee to study this issue and return to the Board with recommendations on
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
"acSIGNATURE(S):
JOHN GIOIA MARK DeSALILNIE
ACTION OF BOARD ON O APPROVE AS RECOMMENDED Q+MM '
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
UNANIMOUS(ABSENT ) AND ENTERED ON THE MINUTES OF THE
BOARD OF SUPERVISORS ON THE DATE
AYES: NOES: SHOWN.
ABSENT: ABSTAIN:
L
ATTESTED
CONTACT: SUPERVISOR JOHN GIOIA (510)3743231 JOHN SWEqVN,CLERK OF THE
BOARD OF 9UPERVISORS AND
COUNTY ADMINISTRATOR
CC: COUNTY ADMINISTRATOR
COMMUNITY DEVELOPMENT DIRECTOR
COUNTY COUNSEL
JULIE ENEA,STAFF TO 10 COMMITTEE
i
BY EPUTY
Floating Billboard Ordinance August 14, 2001
Internal Operations Committee Page 2
the possible enactment of a local ordinance to restrict the use and placement of floating
billboards on County waterways. On May 7, the Internal Operations Committee reviewed a
copy of the City and County of San Francisco's ordinance and a color map illustrating the
waterways within the boundaries of the County unincorporated areas and the cities. The
Committee requested County Counsel to model an ordinance for Contra Costa County after
similar ordinances of other agencies for the Committee's consideration.
On August 6, the Committee reviewed a draft ordinance prepared by the County Counsel and
was advised of a legal requirement to forward a draft of the ordinance to the State
Department of Boating and Waterways for its review and comment prior to recommending it
for adoption by the Board of Supervisors. The Community Development Director also
advised that since the proposed floating billboard ordinance is a zoning ordinance, the
Planning Commission must conduct a public hearing during which it considers the matter.
The Internal Operations Committee, therefore, recommends that the Board of Supervisors
accept the proposed ordinance, refer it to the Planning Commission for consideration and
public hearing, and direct the County Counsel to forward a copy to the State Department of
Boating and Waterways for its review and comment, and to report back to the Committee with
the results of these actions.
Office of the County Counsel Contra Costa County
651 Pine Street, 9th Floor Phone: (925)335-1800
Martinez, CA 94553 Fax: (925)646-1078
Date: August 1, 2001
To: Internal Operations Committee
From: Silvano B. Marchesi, County Counsel /
By: Thomas L. Geiger, Deputy County Counsel V �'
Re: "FLOATING BILLBOARD" ORDINANCE—INTERNAL OPERATIONS
COMMITTEE MEETING OF AUGUST 6,2001
SUMMARY
Harbors and Navigation Code section 660 provides that a county may adopt an ordinance
relating to vessels as long as the ordinance pertains only to time-of-day restrictions, speed zones,
special-use areas, or sanitation and pollution control. It is not clear whether this proposed ordinance
goes beyond creating a special-use area. If the Internal Operations Committee wishes to proceed with
the proposed floating billboard ordinance,the Committee should forward a draft of the ordinance to the
state Department of Boating and Waterways for its review and comment prior to adoption.
BACKGROUND
The attached ordinance, drafted pursuant to the Committee's request, would add Chapter
88-18 to the Contra Costa County Ordinance Code. It would be known as the Offsite Vessel
Advertising Ordinance. The ordinance is modeled after similar ordinances in the cities of San Francisco
and Brisbane.
The draft ordinance prohibits billboards and other offsite commercial signs on vessels
traveling on waters within the jurisdiction of the County. The ordinance defines an"offsite sign"as a
sign which identifies or advertises a business, good or other activity which is sold or conducted off of
the vessel. The definition is meant to include"floating billboards"—that is, large billboards that are
displayed on barges and float down rivers or through bays.
The ordinance would apply to waters within the jurisdiction of the County. These waters
include a very small portion of San Francisco Bay west of San Pablo, a portion of the Carquinez Straits
between Crockett and Port Costa including the water underneath Interstate 80, a portion of Suisun Bay
between Martinez and Pittsburg, and a portion of the San Joaquin River east of Antioch. It would not
include the waters within the jurisdiction of incorporated cities within the County. These waters include
a majority of the portions of San Francisco Bay and San Pablo Bay between El Cerrito and Crockett,
the portion of the Carquinez Straits underneath Interstate 680, or Suisun Bay near Pittsburg and
Antioch.
Internal Operations Committee
August 1, 2001
Page 2
The ordinance includes two exemptions. First, the ordinance would allow vessels to
display onsite signs. The ordinance defines"onsite sign"as a sign which identifies or advertises a
business, good or other activity which is sold or conducted on the vessel. It also defines"onsite sign"
as a sign which identifies or advertises a good or commodity that is being transported on the vessel. It
further defines"onsite sign"as a sign which identifies or advertises a container in which a good or
commodity is being transported on the vessel, if the sign is displayed on the container. Second, the
ordinance would allow sailboats to display signs on their hulls or sails, as long as the sails are used to
propel the sailboat.
DISCUSSION
1. Regulation of Commercial Speech
The government has legitimate interests in controlling the noncommunicative aspects of
billboards. (Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490, 500-03.) The United
States Supreme Court has adopted a four-part test for determining the validity of government
restrictions on commercial speech as distinguished from more fully protected speech. (Id. at 507, citing
Central Hudson Gas &Electric Corp. v. Public Service Comm'n (1980)447 U.S. 557.) A
restriction on otherwise protected commercial speech is valid only if it seeks to implement a substantial
government interest, directly advances that interest, and reaches no further than necessary to
accomplish the given objective. (Metromedia,supra,453 U.S. at 507.)
Applying the four-part test to the proposed ordinance, the ordinance would appear to be a
legitimate regulation of commercial speech. The stated purpose of the ordinance is to protect and
enhance the aesthetic value, natural beauty and scenery of waters within the jurisdiction of the County,
reduce visual blight,reduce safety hazards to pedestrians and motorists,protect and enhance the value
of waters within the jurisdiction of the County as a public. attraction, and promote recreational uses of
waters within the jurisdiction of the County. These would appear to be appropriate governmental
goals. Because the floating billboard ordinance regulates offsite advertising,but not onsite advertising,
the ordinance reaches no further than necessary to accomplish the County's goals.
The ordinance also would appear to be a legitimate regulation of commercial speech under
the County's police power. (Cal. Const.,Art. 11, § 7.) A police power regulation will be considered
reasonable so long as there is a real or substantial relationship between the regulation and the protection
of the public health, safety, morals, or general welfare. (Amusing Sandwich, Inc. v. City of Palm
Springs(1985) 165 Cal.App.3d 1116, 1126). The stated goals of this ordinance are to protect and
enhance the aesthetic value, natural beauty and scenery of waters within the jurisdiction of the County,
reduce visual blight, reduce safety hazards to pedestrians and motorists,protect and enhance the value
of waters within the jurisdiction of the County as a public attraction, and promote recreational uses of
waters within the jurisdiction of the County.
Internal Operations Committee
August 1, 2001
Page 3
2. Requirements of Harbors and Navigation Code Section 660
The Harbors and Navigation Code specifies certain requirements for ordinances relating to
vessels. Section 660 provides, in relevant part:
"(a)Any ordinance, law, regulation, or rule relating to vessels, which is
adopted pursuant to provisions of law other than this chapter by any entity
other than the [D]epartment [of Boating and Waterways] including but not
limited to any county, city,port authority, district, or any state agency other
than the department shall, notwithstanding any other provision of law,pertain
only to time-of-day restrictions, speed zones, special-use areas, and
sanitation and pollution control, and the measure shall not conflict with this
chapter or the regulations adopted•by the department. Except [in the case of
an emergency ordinance], any measure relating to boats or vessels adopted
by any government entity other than the department shall be submitted to the
department prior to adoption and at least 30 days prior to the effective date
thereof."
The proposed ordinance is an ordinance that relates to vessels. It is not a tune-of-day
restriction, does not establish a speed zone, and does not provide for sanitation and pollution control.
Therefore, to regulate in this area, the proposed ordinance must pertain to a special use area. Harbors
and Navigation Code section 651(v) defines"special use area" as"all or a portion of a waterway that is
set aside for specified uses or activities to the exclusion of other incompatible uses or activities."
We cannot predict with certainty whether a court would decide that the proposed
ordinance creates a"special use area." The courts and the Attorney General have analyzed the
meaning of a"special use area"and concluded that it means an area in which certain types of vessels
are allowed. (See People ex rel. Younger v. County of El Dorado (1979) 96 Cal.App.3d 403; 74
Ops.Cal.Atty.Gen. 174 (1991).) In this situation, it could certainly be argued that the ordinance
regulates a certain type of vessel—vessels with offsite advertising—and thus is allowed under Section
660.
The cities of San Francisco and Brisbane have both adopted a floating billboard
ordinance. We were advised by the Port of San Francisco's General Counsel that Harbors and
Navigation Code section 660 was not considered because the Burton Act(Chapter 1333 of the
California Statutes of 1968) gives San Francisco broad authority to regulate and control the Port area
of San Francisco. We were also informed by the Brisbane City Attorney that Brisbane did not address
this issue.
Section 660 directs counties to submit ordinances relating to vessels to the state
Department of Boating and Waterways prior to their adoption. If the Internal Operations Committee
Internal Operations Committee
August 1, 2001
Page 4
wishes to proceed with the proposed floating billboard ordinance, we recommend that the Committee
forward the ordinance to the state Department of Boating and Waterways for its review and comment
in compliance with the statute. This office is available to assist in submitting a draft ordinance upon the
Committee's direction.
HACode Hnkrwraffknfing bilftu Fdm wpd
ORDINANCE NO. 2001 DRAFT
-
OFFSITE VESSEL ADVERTISING
The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical
footnotes from the official text of the enacted or amended provisions of the County Ordinance
Code): [Gov. Code § 25120]
SECTION I. SUMMARY. This ordinance adds Chapter 88.18 to the Contra Costa County
Ordinance Code to prohibit billboards and other offsite commercial signs on vessels on waters
within the jurisdiction of the County. [Gov. Code § 25129]
SECTION II. Chapter 88-18 is added to the County Ordinance Code to read:
CHAPTER 88-18
OFFSITE VESSEL ADVERTISING'
Article 88-18.2
General Provisions
88-18.202 Title. This chapter shall be known as the Offsite Vessel Advertising Ordinance of
Contra Costa County. (Ord. 2001-_§2.)
88-18.204 Findings. The Board of Supervisors finds as follows:
(a) Billboards and other offsite commercial signs on vessels on waters within the jurisdiction
of the county cause visual blight, are distracting, create significant safety hazards to pedestrians
and motorists, and reduce the value of waters within the jurisdiction of the county as a public
attaction,because billboards and other offsite commercial signs tend to be frequently changed,
are specifically and primarily intended to attract the public's attention, and do not enhance the
natural beauty or scenery of waters within the jurisdiction of the county.
(b) Onsite commercial signs on vessels on waters within the jurisdiction of the county,
including signs identifying commercial shipping, industrial harbor watercraft, and tourist,
passenger, and fishing vessels, or their services, goods,or commodities, are much less
distracting, cause much less visual blight, and create significantly fewer safety hazards to.
pedestrians, motorists and boaters than do billboards and other offsite commercial signs,because
onsite commercial signs are not changed frequently and often are used primarily for
identification rather than to attract the public's attention.
(c) Recreational and competitive sailing on sailboats on waters with the jurisdiction of the
county enhance the public's recreational use and enjoyment of waters within the jurisdiction of
'For additional sign provisions, see Chapters 88-6, 88-8, and 88-9, this code. For
additional vessel provisions, see Division 410, this code.
ORDINANCE 2001-
1
the county, and promote the economic vitality of the county. Offsite commercial signs displayed
on the hulls or sails of sailboats on waters within the jurisdiction of the county, including signs
relating to commercial sponsorship, do not cause visual blight or create significant safety
hazards to pedestrians and motorists, because sailboats that display offsite commercial signs on
their hulls or sails tend to do so only incidentally, remain aesthetically pleasing and thus enhance-
the
nhancethe natural beauty and scenery of waters within the jurisdiction of the county and promote
recreational uses of those waters.
(d) By adopting this ordinance, the Board of Supervisors does not intend to and is not
regulating shipping or other activities on waters within the jurisdiction of the county to the extent
that state or federal laws or regulations, including the Shipping Act of 1984(46 U.S.C. § 1701 et
seq.),preempt such regulation. (Ord. 2001-_§2.)
88-18.206 Purpose. The purpose of this chapter is to regulate the display of billboards and
other offsite commercial signs on vessels on waters within the jurisdiction of the county in order
to protect and enhance the aesthetic value, natural beauty and scenery of waters within the
jurisdiction of the county, reduce visual blight, reduce safety hazards to pedestrians, motorists
and boaters,protect and enhance the value of waters within the jurisdiction of the county as a
public attraction, and promote recreational uses of waters within the jurisdiction of the county.
[Harbors and Navigation Code section 660.] (Ord. 2001-_§2.)
Article 88-18.4
Definitions
88-18.402 Onsite Sign. For purposes of this chapter, 'onsite sign" means (1) a sign which
identifies or advertises a business, good, commodity, service, industry,or other activity which is
sold, offered, or conducted, other than incidentally, on the vessel upon which the sign is
displayed; or(2) a sign which identifies or advertises a good or commodity that is being
transported on the vessel or identifies or advertises a container in which a good or commodity is
being transported on the vessel, where the sign is displayed on the good, commodity or
container. (Ord. 2001-_§2.)
88-18.404 Offsite Sign. For purposes of this chapter, 'offsite sign" means a sign which
identifies or advertises a business, good,commodity, service, industry, or other activity which is
sold, offered, or conducted off the vessel upon which the sign is displayed, or which is sold,
offered, or conducted on such vessel incidentally, if at all. (Ord. 2001-_§2.)
88-18.406 Sailboat. For purposes of this chapter, "sailboat" means any watercraft designed to
be and capable of being propelled solely by wind power. (Ord. 2001-_§2.)
88-18.408 Sign. For purposes of this chapter, "sign" means any structure or surface or a device
or arrangement attached to or painted or represented upon a structure or surface which is
displayed on any vessel and which attracts or is intended to attract attention to an object,
product,place, activity,person, institution, organization or business, or which displays or
includes a letter,work,model, figure,banner, flag,pennant, insignia, device or representation
used as, or which is in the nature of an announcement, direction, advertisement, declaration or
illustration. (Ord. 2001-_§2.)
ORDINANCE 2001-
2
` 88-18.410 Vessel. For purposes of this chapter, "vessel" means every description of watercraft
used or.capable of being used as a means of transportation on water, including, but not limited
to, motorized, towed, or sailing watercraft such as ships, boats, tugboats, barges, and sailboats,
but not including aircraft. (Ord. 2001-_§2:)
Article 88-18.6
Prohibition and Exemptions
88-18.602 Prohibition. No offsite sign may be displayed on the outside of any vessel on any
waters within the jurisdiction of the County. (Ord. 2001-_§2.)
88-18.604 Exemptions. The prohibition in this chapter shall not apply to:
(a) Any onsite sign displayed on a vessel; or
(b) Any sign displayed on the hull or sails of a sailboat, provided that the sails are designed,
and are being used,primarily for the propulsion of the sailboat. (Ord. 2001-_§2.)
SECTION III. EFFECTIVE DATE. This ordinance becomes effective thirty(30)days after
passage, and within fifteen(15) days after passage shall be published once with the names of
supervisors voting for and against it in the Contra Costa Times, a newspaper published.in this
County. [Gov. Code §§ 25123 &24124]
PASSED on , by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: JOHN SWEETEN,
Clerk of the Board and County Administrator
By:
Deputy Board Chair
HACode Enforcemeri loating Billboards Ordinancempd
ORDINANCE 2001-
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