I. INTRODUCTION
Real estate signs are an integral
component of the REALTORS®’ business arsenal. They allow the
agent to effectively market a property, and they serve as an
important directional aide when conducting an open house. With
the advent of technology, real estate signs now function in
conjunction with many other marketing tools available to the
REALTOR®. However, they retain their status as one of the most
important methods of marketing a home. Unfortunately, real
estate signs can become the source of controversy in a
community. If residents perceive a preponderance of real estate
signs, they will put pressure on local government officials to
restrict the display of the signs. Fortunately, state laws
exist to protect the rights of real estate practitioners and
home owners to market properties via real estate signs. The
laws balance these rights with the community’s need to control
visual clutter and safety. This paper provides a synopsis of
the issues surrounding real estate signs, the laws that govern
them, and the various ways in which REALTORS® in California
have respondedto this issue.
II. LEGAL AND LEGISLATIVE
HISTORY
A. Significant Court
Rulings The courts have ruled that the
First Amendment of the U.S. Constitution guarantees the right
to free speech through sign usage. On the other hand, the
courts also have ruled that local governments possess the
authority to regulate the placement of signs. These rulings
declared that aesthetics is embodied in the concept of public
welfare, and therefore, the use of signs may be regulated for
aesthetic purposes. Furthermore, the courts have ruled that
local governments may regulate sign placementin order to
protect the public from bodily injury due to ill-placed signs.
For example, many sign ordinances prohibit the posting of signs
in street medians. REALTORS® who willfully ignore such a
prohibition may be liable for any injuries that result from
obstructed views of passing motorists caused by their signs.
The first significant development to occur in the legal arena
pertaining to the display of real estate signs took place in
1976 when the U.S. Supreme Court ruled in the case of Virginia
Pharmacy Board v. Virginia Consumer Council. In its ruling, the
court declared that local government sign regulation must be
content-neutral. In other words, local governments may place
regulations on the time, place and manner in which signs are
displayed butnot on what they say. In 1977, the U.S. Supreme
Court extended this opinion specifically to real estate signs.
In the case of Linmark Associates, Inc. v. Township of
Willingboro, the court struck down an ordinance adopted by the
New Jersey township of Willingboro, which banned all "FOR SALE"
signs from residential property. The court ruled that
regardless of the town’s good intentions, it had no authority
to single out and prohibit one type of lawn sign. Once again,
the court declared that sign restrictions must be content
neutral. B. Legislative Protections Concurrently with these
legal developments, C.A.R. has worked diligently in the
legislative arena in the last 25 years to ensure that REALTORS®
and property owners retain the right to display real estate
signs in California. In 1974, C.A.R. sponsored legislation that
was designed to overturn an earlier California Appellate Court
ruling which had upheld the validity of a city ordinance that
prohibited all "FOR SALE" signs containing real estate
agents’names and addresses in residential zones. The
legislation, AB 604 (Bannai), implemented California Civil Code
Section 713, which states that a property owner has the right
to display a sign on his or her property indicating that the
property is "FOR SALE", lease, or exchange, and including the
real estate agent’s name, address and telephone number. After
this legislation passed, property owners and REALTORS® had
protection in California statutes to display real estate signs
on the premises of a property.However, the question of
displaying open house directional signs off of the premises of
the property remained a source of controversy. Many localities
of the opinion that such signs create a visual nuisance had
adopted ordinances forbidding their placement. Once again,
C.A.R. sponsored legislation to address the controversy. In
1990, AB 2949 (Harris) was passed, amending Civil Code 713 to
give property owners the right to place real estate signs on
the premises of another property with the owner’s consent.
However, localities retain the right to regulate the manner in
which such signs are displayed or to prohibit their placement
on public property. C. Homeowners’ Associations The preceding
legal and legislative developments reconciled the controversies
that had developed between property owners and their agents’
rights to display real estate signs, on the one hand, and the
rights of localities to control for visual aesthetics and
public safety, on the other hand. However, they did not speak
to the authority of homeowners’ associations to impose sign
regulations. Some homeowners’ associations had adopted rules
governing the design of signs that proved particularly onerous
to REALTORS®. For example, an association in Orange County
required REALTORS® to usespecial sand blown signs which cost
$300 each. In response, the California Civil Code Section 712
was amended in 1983 by AB 464 (Chacon) to address the authority
of homeowners’ associations to regulate the placement of real
estate signs. Specifically, the legislation precludes
homeowners’ associations from adopting sign ordinances more
stringent than those of their respective cities. However, if a
city or county’s ordinance is silent on a particular issue of
sign placement, a homeowners’ association mayenact its own
regulations on the issue. D. Mobilehome Parks California Civil
Code §798.70 grants the right to the owner of a mobilehome in a
mobilehome park to display a sign advertising the sale or
exchange of the mobilehome. It states also that a sign
advertising the mobilehome for rent is permitted, if the
mobilehome park management permits renting in the park.
Furthermore, the mobilehome owner may display an open house
sign, unless the mobilehome park management prohibits open
houses. Any of these signs may be displayed in the window of
the mobilehome, on the side of the mobilehome facing the street
or in front of the mobilehome facing the street. They may be at
least 24" wide and 36" high and may state the name, address and
telephone number of the mobilehome owner or his/her agent. The
placement of a brochure folder also is permitted. E. Local
Association and MLS Jurisdiction The National Association of
REALTORS® covers sign ordinances in the Fourteen Points of the
Multiple Listing Policy. Specifically, points five and twelve
prohibit any local association or MLS from making any rule
relating to the posting or use of signs, including "SOLD"
signs. These points were adopted to stress the proper role of
Associations with regard to sign ordinances. Theyprohibit
Associations from attempting to enforce local signs ordinances.
The N.A.R. Handbook on Multiple Listing Policy states that a
regulation of signs "is a matter for the owner of the property,
his authorized agent, and the public authority." Instead, the
points direct Associations to educate their members about the
necessity of compliance with local ordinances. In an effort to
do this, many Associations maintain a database of all the local
sign ordinances for the municipalities in their jurisdictionand
communicate ths information to their members. For example, the
Southern Alameda County and Marin County Associations maintain
such data bases. They make this information available to their
members, inform members of important changes, and publishingthe
information periodically in their monthly newsletter.
III. COMPONENTS OF REAL ESTATE
SIGN ORDINANCES
Most localities in California have a sign ordinance or sign
code. The ordinance, which also regulates real estate signs, is
usually found as part of the zoning code or municipal code.
Most of the ordinances provide specific regulations on the
allowable number and size of real estate signs, as well as
various other restrictions. To illustrate these types of
restrictions, an appendix is attached
to the body of this paper which outlines the major provisions
of various sign ordinances, specifically pertaining to
single-family residential areas. The ordinances included in the
appendix are provided as a sampling of the different sign
ordinances in California and are not all-inclusive. If you are
faced with a real estate sign issue in your community, please
refer to this table to get anidea of the kinds of sign
ordinances that have been adopted in other California cities.
(You may also want to do your own survey of other cities that
are neighbors to your own, to get an idea the kinds of sign
ordinances that have been adopted in your ownarea.) This
section will discuss certain provisions of sign ordinances and
will refer to the appendix for examples. A. Number of Real
Estate Signs Permitted Usually, a city allows one "FOR SALE" or
for lease sign per property. However, this is not alwaysthe
case. Frequently, sign ordinances allow one sign per street
frontage, which effectively allows the placement of two signs
on corner lots. Additionally, large residential parcels may be
permitted to use either a larger sign or to post additional
signs. Lastly, so-called hidden units may be permitted to use
more than one sign. These are typically condominiums or
townhouses that are nestled in the middle of a development
which need more than one sign to be seen from a main road. This
is also the case insome communities, like Carmel, where homes
are tucked away behind trees, bushes and hills off of the main
road. Usually, the number of allowable "SOLD" signs is the same
as the allowable number of "FOR SALE" signs. B. Size
Restrictions Virtually all localities restrict the size of
signs. From the ordinances included in the appendix, the sizes
range from a low of 24 inches by 18 inches per sign to a high
of six square feet per sign. Some ordinances allow for a
maximum of square footage of signage per property (12 square
feet in Los Angeles). Additionally, some ordinances place
restrictions on the size of lettering in the sign (three inches
in Carmel). C. Open House Signs Sign ordinance provisions for
open house signs--i.e., offsite directional signs-- vary widely
from community to community. Generally, these restrictions
prohibit the placement of offsite signs in the public
right-of-way (i.e., median strips) and can only be posted on
weekends between certain hours. However, some cities do permit
the placement of these signs in the public right-of-way, with
certain restrictions to avoid visual obstructions for motorists
and pedestrians. For example, the cities of Bakersfield and
Carmel allow open-house signs to be displayed on public
right-of-ways with city approval. The cities of Fremont, Los
Angeles and San Jose allow signs to be posted in the planter or
parkway strips with the permission of the adjacent property
owner.
lV. EVENTS AT THE LOCAL
LEVEL
Controversies surrounding local sign ordinances will come and
go depending on various local circumstances. Pressure from
residents on government officials to adopt a more restrictive
sign ordinance, or more aggressively enforce an existing one,
may arise in areas where residents see an increase in real
estate signs due to an active real estate market. On the other
hand, if the market is quiet in the community, residents won’t
see as many signs and probably won’t feel as compelled to
pressurefor restrictions on their display. In some localities
facing revenue shortfalls, government officials may instigate
the enforcement of an existing sign ordinance, including the
collection of a signage fee and the aggressive confiscation of
illegally placed signs along with the collection of a fine. In
these instances, government officials are using their powers to
regulate the display of signs as a means to increase the
visibility and usefulness of a particular municipal department
that may feel threatened by budget cuts and/or as a means to
increase revenue for the city. The methods for REALTORS® to use
in these circumstances are the same as for all other situations
when a city pursues certain areas of its municipal regulatory
authority (such as rental property inspections or point-of-sale
requirements) to enhance the usefulness of a particular
department or to increase revenue; that is, to separate the
issues. In the case of real estate signs, it is encumbant upon
REALTORS® to point out to local officials that the placement of
real estate signs is really not an issue in the community (if
that is indeed the case), or that the regulations are being
enforced overzealously and unreasonably, in which case a more
reasonable approach to enforcement should be devised. REALTORS®
should be prepared to offer their own suggestions and
alternatives for an acceptable approach. If a sign ordinance is
being used as an indirect means of collecting revenue for the
city, REALTORS® should attempt to distinguish the city’srevenue
issues from the issues pertaining to the placement of signs.
There are many things REALTORS® can do to assist local
government with budget problems. (See C.A.R.’s manual READING
BETWEEN THE LINES; A REALTOR’S® Guide to Local Government
Budgeting.)In circumstances where the controversy of sign
display is a product of a bustling real estate market, the
ultimate solution is the art of compromise. REALTORS® should
work with city officials to craft a solution that is consistent
with the spirit of thelegal and legislative rulings outlined
above--balancing the rights and needs of REALTORS® and property
owners to display real estate signs with the rights and needs
of the local community to control for visual clutter and public
safety. In short, if a proposal allows REALTORS® a reasonable
amount of sign display, they should support it. If a proposal
denies them their rights (as outlined above) or places
unreasonable restrictions and/or costs on REALTORS® and
property owners, REALTORS® should express their displeasure
with the provisions of the proposal and work to craft a more
reasonable alternative. Here are some exmaples: In 1986, while
revising the city’s sign ordinance, the Ventura City Council
proposed to completely eliminate the provision in its ordinance
allowing seven offsite open house signs. Instead, only onsite
signs would be allowed. On the night the council was to vote on
the proposal, over 150 REALTORS® packed the council chambers.
Representatives from the local Board, as part of their
testimony, used an overhead projection of the city’s street map
and asked each council member to locate his/her home on the
map. The REALTORS® then showed the council members the minimum
number of open house signs that would be needed if each council
member decided to sell his/her house. When they demonstrated
that the mayor’s house would require at least seven open house
signs to be seen from a main road, the council withdrew its
proposal. As a compromise, the revised ordinance permits a
maximum of six offiste signs for each open house. REALTORS®
also are encouraged, whenever possible, to work with their
local officials over the long term of the ordinance drafting
process to ensure that their interests are incorporated in a
reasonable fashion into the provisions of the ordinance. In
Bakersfield, for example, a REALTOR® was appointed to the city
planning commission’s sign committee. The committee convenes
whenever issues of sign regulation arise. This appointment
assures that the local REALTOR® community willalways have a
reliable means to monitor and comment on any sign issues that
arise. In San Jose, REALTORS® siezed the opportunity to address
community concerns when the city chose to revise its existing
sign ordinance (as it does every for or five years).Their
involvement ensured the best possible outcome of these
discussions and reassured local residents who had concerns
about real estate signs that the local Association was willing
to work with them on these issues. Their involvement paid off
in the form of provisions which allow the display of signs in
the park strip (the grass strip between the curb and sidewalk)
and up to four signs at any four-corner intersection. The
success of this ordinance also served as a model for similar
ordinances that wereadopted in four other cities in the county
and in the county itself. When local homeowners’ associations
in Santa Clarita faced with complaints about the placement of
real estate signs began to adopt and enforce their own
regulations, the local Association of REALTORS® immediately
lobbied the city council to adopt a sign ordinance that was
workable and acceptable to REALTORS®, and which, according to
state law (see above), would preempt any regulations that the
homeowners associations would attempt to enforce. After over a
year of persistent lobbying and negotiating with city
officials, the REALTORS® and the city signed a written
agreement which governed the placement of signs and included
such necessary provisions as the placement of signs in
(specified) parkways and the display of banners where they are
the only available means of sign display. This agreement
remains in force today, after several years of successful
implementation. Please see the attached
matrix of local sign ordinances for more information.
V. CONCLUSION
Protections exist in court precedent and California statutes
that protect the rights of REALTORS® and propertyowners to
market property through the display of signs on the property
and off-site. On the other hand, local governments retain the
right to regulate the time, place and manner in which such
signs are displayed, and they may prohibit signs on public
property. This is an equitable balance that preserves the
property owner’s need to inform the community of the
availability "FOR SALE" or lease of his/her property along with
the community’s need to protect against eyesores and prevent
safety hazards. REALTORS® have multiple opportunities to work
with local officials on the provisions of a sign ordinance to
ensure that the above concerns are indeed kept in balance. They
can do this through advocacy methods and through negotiation
and discussion with city officials. In any event, REALTORS®
should take it upon themselves to be knowledgeable of local
sign restrictions and to follow them closely, so as to avoid
any controversy, which could hurt their credibility in future
discussions of these issues.
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