To Whom It May Concern,
As an attorney, I need to take issue with a recently published assertion that campaign signs are prohibited from State rights of ways under I.C. 9-21-4-6. That statute only prohibits advertising signs. “Advertising is defined as the activity or profession of producing advertisements for commercial products or services.” Since freedom of speech arguments can be made constitutional under the First Amendment, political signs are more the nature of free speech rather than advertising signs.
Certainly, common sense would dictate that politicians not place their signs in intersections or interchanges.
Additionally, I take issue with your assertion that where the right of way is not clearly marked, boundaries may be estimated as the fence line, the back of the ditch or behind utility poles. On all the old Hamilton County roads, the boundary is the edge of the asphalt. On more modern roads, like 146th Street, the fence line may well be the right of way. Thus, the type of road may dictate where the right of way is.
A recent complaint about a sign for the Washington Township Trustee, apparently, wrongly asserted the location of the sign and wrongly asserted that it was in the public right of way. Roadway right of ways are not always where they “appear” to be. Caution needs to be exercised about where to place the signs.
At least one candidate has brought up the issue in Hamilton County Superior Court and there may be a clarifying ruling about the “boundaries” of where signs may be placed.
Cordially,
Raymond M. Adler
Noblesville
INDIANA STATE STATUTE LIMITS THE ABILITY TO REGULATE
POLITICAL SIGNS DURING AN ELECTION YEAR.
Indiana Code 36-1-3-11 provides:
- (a) As used in this section, “election” refers to an election described in IC 3-5-1-2.
- (b) As used in this section, “sign” refers to a sign, the surface area of which is not greater than thirty-two (32) square feet. For purposes of determining the surface area of a sign under this section, if a sign consists of two (2) faces, only the surface area of one (1) of the faces is considered if both of the following apply:
- (1) The faces are mounted back to back.
- (2) The measure of the angle between the faces is not more than fifteen (15) degrees.
- (c) Subject to subsection (d), an ordinance or a regulation of a political subdivision relating to the number or size of signs is unenforceable during the following period:
- (1) Beginning sixty (60) days before an election.
- (2) Ending at the beginning of the sixth day after the election.
- (d) This section does not prohibit a political subdivision from enforcing an ordinance or regulation relating to the number or size of signs at any time if necessary to ensure public safety.
THE NEW HAMILTON COUNTY ORDINANCE READS AS FOLLOWS
AMENDED ORDINANCE NO. 02-26-18-B AN ORDINANCE AMENDING ORDINANCE NO. 02-12-18-B CONCERNING PLACEMENT OF SIGNS IN PUBLIC RIGHT OF WAY WHEREAS, the Board of Commissioners of Hamilton County, as the legislative body of Hamilton County, Indiana, has the authority to regulate the use of public rights of way within the Hamilton County; and, WHEREAS, the placements of signs near public streets often impairs the visibility of drivers of the vehicles on public streets; and, WHEREAS, the placement of signs near public streets, increases visual clutter within the public right of way, making it more difficult for motorists to recognize regulatory signs which are necessary for safe travel along the public street; and, WHEREAS, Hamilton County has legitimate public interest in enhancing the safety of persons who travel the public streets which are under the jurisdiction of the Board of Commissioners of Hamilton County; and, WHEREAS, it is in the best interest of the health, safety, and welfare of the citizens of Hamilton County that the Board of Commissioners of Hamilton County pass an Ordinance which prohibits the placement of all private commercial signs within public rights of way in the unincorporated area of Hamilton County and other roads and bridges maintained by Hamilton County. IT IS THEREBY ORDAINED by the Board of Commissioners of Hamilton County as follows: SECTION 1. DEFINITIONS. For purposes of this Amended Ordinance, the following terms shall have the following definition: a. “Commercial Signs” shall mean any sign which advertises products, goods, businesses or services or identifies a business located onsite or offsite from the location of the sign. All Commercial Signs placed outside of Hamilton County Right of Way shall be regulated by the terms and conditions of the Hamilton County Zoning Ordinance or the zoning ordinances of the appropriate city and town within their jurisdiction. b. “Hamilton County Streets” includes: 1. All public streets within the unincorporated area of Hamilton County. 2. 146th Street east from the Boone County line to Marilyn Road. 3. Campus Parkway east from Marilyn Road to the I-69 bridge. 4. Olio Road from 96th Street north to, and including, the round-a-bout at Campus Parkway. 5. Any bridge of over twenty (20) feet in length located within Hamilton County other than bridges over I-69, US 31, and Keystone Parkway. c. Non-Commercial Signs” shall mean signs which are not Commercial Signs and express an opinion, point of view, or statement such as political, religious, or ideological sentiment, or support or opposition to a candidate or proposition for public election. d. “Hamilton County Right of Way” shall mean the land contiguous to a Hamilton County Street, including sidewalks, multi-use paths; land conspicuously used for the placement of public utilities; or directional signs. In the event there is no obvious designation of the right of way, the term “Hamilton County Right of Way” shall include the area between the edge of pavement of a Hamilton County Street to the farthest of the following distances: 1. The area between Hamilton County Street and public trail or sidewalk, plus an additional three (3) feet beyond the edge of the public trail or sidewalk. 2. The farthest edge from the Hamilton County Street of above ground utility poles or other utility structures, which are installed parallel to the Hamilton County Street. 3. In the event neither of the above exists, right of way shall be considered the area ten (10) feet beyond the edge of pavement of a Hamilton County Street. SECTION 2. PROHIBITION. a. No sign shall be placed within the Hamilton County Right of Way described in Section 1d above, other than traffic and designation signs approved by the Board of Commissioners or the Hamilton County Highway Department. b. Commercial Signs within the unincorporated part of Hamilton County are regulated by the terms and conditions of the Hamilton County Zoning Ordinance. c. Nothing herein shall be deemed to prohibit the placement of Non-Commercial Signs outside of Hamilton County Right of Way of Hamilton County Streets, as long as said signs are placed on the property with the consent of the owner or occupant of the property. SECTION 3. JURISDICTION. This Amended Ordinance shall only be applicable within Hamilton County Right of Way described in Section 1d above. SECTION 4. ENFORCEMENT AND PENALTIES. a. Any person, business, or entity who owns, places, maintains, or authorizes the placement or maintenance of any sign within any Hamilton County Right of Way as described by this Amended Ordinance commits a Class C Infraction. b. Any person, business, or other entity identified on a sign located in violation of this Amended Ordinance shall be presumed to either own, authorize the placement, or maintain the sign in violation of this Amended Ordinance. c. Any person authorized by the owner of a sign in writing may retrieve signs collected by the County under this Amended Ordinance. Prior to the release of the sign(s), the owner of the sign or their designee, shall pay a fee to the County to partially pay the cost of collecting the signs, which fees for collection shall be: 1. Ten Dollars ($10) for each sign of six (6) square feet or less; and, 2. Fifty Dollars ($50) for each sign larger than six (6) square feet. Said payment and release of the signs shall occur at the Hamilton County Highway Department during regular business hours, Monday-Friday from 8:00 am until 4:00 pm. All payments shall be paid by cash, credit cards, or debit card. d. In the event the owner of the sign or their designee do not collect their signs from the Hamilton County Highway Department within sixty (60) days of the collection of the signs, the signs may be destroyed without liability to the owner. e. Any person, business, or entity who violates the terms of this Amended Ordinance may be subject to a judgment up to Five Hundred Dollars ($500) for each sign placed within the Hamilton County Right of Way, plus Court costs. f. All fines and reimbursement fees collected under this Amended Ordinance shall be placed in a segregated fund and shall be used solely for the reimbursement of the costs of designated employees of Hamilton County to be compensated for additional work time and/or comp time as required by law. g. Any City Court within the County or a Hamilton County Court of general jurisdiction shall have jurisdiction to enforce the terms of this Amended Ordinance. SECTION 5. REMOVAL OF SIGNS UPON VIOLATION. a. The Director of Planning, his designee, and any person designated by the Board of Commissioners in writing, may remove any sign placed or maintained in violation of this Amended Ordinance. Any person designated above may remove a sign located within Hamilton County Right of Way immediately and without notice. b. All signs unlawfully placed within Hamilton County Right of Way may be removed, collected, and held at the Hamilton County Highway Department. Neither Hamilton County, nor a person designated by Hamilton County shall be liable to the owner of the sign for the removal of the sign. c. Any landowner within the unincorporated part of Hamilton County, may, without notice, or liability to the owner of the sign, remove and dispose of any sign placed upon the landowner’s land without permission. d. Designated representative(s) of Hamilton County may, without notice, or liability to the owner of the sign, remove and collect any sign placed on any land owned by Hamilton County whether the land is outside or within the unincorporated areas of a city or town within Hamilton County. e. This Amended Ordinance shall not be construed to limit the placement of NonCommercial Signs on private property with the permission of landowner or tenant of the land. SECTION 6. SIZE OF NON-COMMERCIAL SIGN. The Non-Commercial Signs placed on private property shall be limited to four (4) square feet other than signs expressly authorized by Indiana Code 36-1-3-11. SECTION 7. EFFECTIVE DATE. This Amended Ordinance shall be in full force and effect on the earliest date allowed by law. The Auditor of Hamilton County shall cause notice of adoption of this Amended Ordinance to be published pursuant to Indiana law. ALL OF WHICH IS ORDAINED by the Board of Commissioners of Hamilton County on the 26th day of February, 2018. BOARD OF COMMISSIONERS OF HAMILTON COUNTY Mark E. Heirbrandt Christine Altman ATTEST: Robin M. Mills, Auditor Date Approved: 2/26/18