Our Community in Fairfax County, Virginia
Presented by:
David B. Conway
Mason District Representative
Fairfax County Sign Task Force
| David B. Conway Mason District | Brice Eldridge Dranesville District | Andrew L. Hamm Hunter Mill District | Carole L. Herrick At Large | Jean Hoshall Providence District |
| Robert W. Kuletz Mt. Vernon District | Scott S. MacDonald Sully District | Dennis Joseph Pfennig Lee District | Thomas C. Tarantino Braddock District |
In August 2000, the Board of Supervisors initiated the formation of a Countywide Task Force to examine current practices and enforcement procedures regarding signs within and along the roadways; investigate other jurisdictions' best practice methods in dealing with illegal signs, and return with any recommendations or suggestions the Task Force may have to seek legislation or amendments to the County's sign ordinance. The Task Force began meeting in January of this year, following appointment of members by the Board of Supervisors, and agreed that its initial focus would be on the issue of illegal signs in the Virginia Department of Transportation (VDOT) rights-of-way. As the Task Force is recommending amendments to The Code of Virginia and in recognition of the deadline for submission of suggestions for inclusion in the Board of Supervisors' legislative package for the 2002 General Assembly Session, the Task Force is providing in this report its recommendations on the issue of illegal signs in the rights-of-way. It is anticipated that there will be a subsequent report by the Task Force with regard to the issue of illegal signs on private property and any proposed amendments to the Zoning Ordinance or changes in the procedures for enforcement of those sign violations.
The Task Force met several times to discuss the issues concerning signs in the right-of-way. The Task Force reviewed the recommendations of the Environmental Quality Council (EQAC) as set forth in the Annual Report on the Environment for 2000. Rosemary Byrne, Executive Director of the Clean Fairfax Council, attended a Task Force meeting and provided information on that organization and its efforts to address litter, to include signs in the right-of-way. Staff from Prince William County attended a Task Force meeting to explain the steps taken by that County to address the issue, including an agreement with the Virginia Department of Transportation (VDOT), which allows the County to act on VDOT's behalf in enforcing the provisions of § 33.1-373 of the Code of Virginia, and the provision litter crews responsible for removal of litter and illegal signs along the rights-of-way. Another meeting was attended by a representative of VDOT to discuss VDOT's perspective on the issue of illegal signs in the right-of-way. Following these meetings, the Task Force commenced identifying possible recommendations to address the problem, which are presented and discussed below.
Illegal signs in the public right-of-way probably have been around for as long as there have been public rights-of-way, but the number of signs has spiraled out of control in recent years. Between fields of popsicle-stick signs for homebuilders and politicians, and signs for weight loss, work-at-home businesses, hauling, and other signs plastered on every available traffic sign and utility pole, everyone in Fairfax County has something to hate about illegal signs. The problem is that there is no one agency or department devoted to removing these signs or prosecuting persons who erect the signs in violation of the law.
Signs within the right-of-way are subject to the provisions of Chapter 7 of Title 33.1 of The Code of Virginia. Va. Code § 33.1-373, precludes the painting, printing, placing, putting or affixing any advertisement upon or to any rock, stone, tree, fence, stump, pole, mile-board, milestone, danger-sign, guide-sign, guidepost, highway sign, historical marker, building or other object lawfully within the limits of any highway. Under Va. Code § 33.1-351, an "advertisement" is defined as:
It is also noted that there appears to be some confusion as to whether political campaign signs are subject to the limitations of Va. Code § 33.1-373. It is the County Attorney's opinion, based on a review of the legislative history of amendments to Chapter 7, that political campaign signs are not advertisements and, therefore, are not subject to the restrictions of § 33.1-373. However, there is an opinion from the State Attorney General's office that states political campaign signs are not allowed within the right-of-way and can be removed pursuant to § 33.1-373, and VDOT has adopted this interpretation. In either event, the Task Force also agreed that the use of political campaign signs has become excessive, with too many signs being erected, some in concentrated areas, for too long a time period prior to an election or referendum.
The Commonwealth Transportation Commissioner ("the Commissioner") or his representatives are authorized under Va. Code § 33.1-373 to remove illegal advertisements from the right-of-way without notice, and may seek a civil penalty of $100 against the owner of the sign and/or the person who erected the advertisement for each occurrence. If no one is observed erecting the sign, the person, firm, or corporation being advertised is presumed to have erected the advertisement and may be prosecuted; however, this presumption is rebuttable. The Commissioner may also seek injunctive relief to enjoin any recurring violator. The Commissioner may collect the cost of the removal and/or abatement of such signs. However, as a practical matter, current enforcement efforts and capabilities are essentially non-existent. This lack of enforcement also leads to more and more persons and companies assuming that the erection or posting of signs in the right-of-way is permitted, thus resulting in more and more signs being placed in the right-of-way.
Current clean-up efforts are also woefully inadequate. VDOT does not have the staff to regularly remove illegal signs and litter from the roadways. If local residents call about specific illegal signs, regional VDOT workers often will come out and remove the signs. Although contractors who mow grass within the rights-of-way for VDOT are authorized to remove illegal signs from the rights-of-way, they often mow around them instead. These mowers are being paid to cut the grass, not to remove signs. It appears that VDOT generally delays mowing areas that are covered with popsicle-stick political campaign signs, preferring to wait until after the election and the candidates have removed the signs themselves.
The County does not have any crews who regularly remove litter and/or signs from the right-of-way. It is the Task Force's understanding that in the late 1980's, the County had a permanent Roadside Litter Collection program, consisting of six employees and equipment. In FY 1993, the Board eliminated this program with the anticipation that the responsibility for litter collection along roads would be assumed by VDOT; but this does not appear to be occurring on any regular basis.
Other possible sources of personnel for sign removal include the County Sheriff's Department Community Labor Force, which consists of several programs that provide offender labor teams to support community improvement projects. Such projects have included litter removal and could include removal of illegal signs in the right-of-way. However, it is noted that this Office has limited personnel available to oversee such efforts and does not have sufficient vehicles for transporting signs/litter for disposal.
Fairfax County Zoning Inspectors of the Zoning Enforcement Branch of the Department of Planning and Zoning are authorized by VDOT to remove illegal signs from the rights-of way, but they are fully employed performing their other official duties. In addition, when Zoning Inspectors have removed illegal signs along certain segments of roads in response to specific requests by Board members, the results have been short-lived. In many instances, roadways cleared of signs on a Friday night are reposted with signs by the following Saturday.
By contrast, zoning and public works employees in Arlington County and Fairfax City perform this function as part of their normal job duties. Prince William County has three litter control crews (six employees with three trucks), who regularly pick up litter and remove signs within the right-of-way during the week. On two weekends a month, two litter crew members accompany a zoning inspector to enforce the state Code provisions by documenting the illegal sign and then removing it. During the next week, the zoning inspector follows up by identifying the violator, issuing a written warning, and proceeding with enforcement actions.
The use of citizen volunteers to remove signs was also the subject of much discussion. VDOT has an Adopt-A-Highway program whereby organizations/citizens adopt a two-mile section of roadway and are responsible for litter removal within this area, a minimum of two times a year. Such litter includes illegal signs; however, many of these signs are attached too high to reach without a ladder. The question of whether citizens not participating in the program could remove signs was also discussed. It is obvious that there is considerable confusion in the community as to whether any one can remove these illegal signs. This confusion is evidenced by an article in The Washington Post's Dr. Gridlock column of June 12, 2001, in which it is stated that anyone may remove illegal signs.
The Task Force has been advised by the County Attorney's Office that The Code of Virginia currently does not allow citizens to remove signs from the public rights-of-way without authorization from the Commissioner. Fairfax County attorneys have explained to Clean Fairfax, other civic groups, and private citizens that they may be subject to prosecution for larceny if they remove such signs because they are not authorized agents of the Commissioner. This issue has not been totally resolved in the courts, however, Charges were brought against a Fairfax County resident for removing political popsicle-stick signs, but the charges were dropped. Recently, a person who is a sign contractor who erects temporary real estate signs on weekends filed grand larceny charges against an individual for removing these signs, contending that the signs were not in the right-of-way. The trial was held in early August. It was unclear from the evidence and testimony whether the signs were in the right-of-way; however, the defendant's attorney contended that the signs were litter and the defendant had the right to clean up litter. The Judge disagreed, citing a lack of authority for an individual to remove the signs even if they were illegal. The felony charges were dismissed, after the defendant and plaintiff agreed to a settlement of $2500. This certainly emphasizes the need for clarity regarding a private individual's rights to remove what they may believe to be illegal signs in the right-of-way.
Va. Code § 33.1-375.1 gives certain counties, such as Fairfax County, the ability to enter into an agreement with the Commissioner to enforce § 33.1-373. (A copy of this section is provided in Attachment 1). Such an agreement may provide for the sharing of the civil penalties collected after the county's costs have been recovered. It is almost certain that the income from civil penalties will fall short of the cost of enforcement. When there are recurring violations, an injunction may be requested in the circuit court as an alternative to civil penalties. Prince William County entered into such an agreement with VDOT and spent almost a year advertising its new sign enforcement program. It recently issued summonses for sign violations under this new program, with the majority of the violators paying the civil penalty.
The Task Force believes that the County should pursue entering into such an agreement with VDOT. The Zoning Enforcement Branch of the Department of Planning and Zoning would be the appropriate agency responsible for enforcing Va. Code § 33.1-373 if the County enters into an agreement to act as the Commissioner's representative under Va. Code § 33.1-375.1. A zoning inspector would have to:
It must be recognized that even if the County enters into such an agreement with VDOT, this enforcement capability may not be able to address all signs in the right-of-way. Research shows that there may only be four categories of signs where it will be easy to identify and prosecute the owner:
A significant and growing percentage of illegal signs in the right-of-way will be difficult to prosecute-those with 800 numbers or internet addresses. It is also difficult to determine the owners of signs with Virginia phone numbers but no business names, just descriptions of services, (such as hauling, gutter cleaning, weight loss, and work-at-home businesses). Many of these phone numbers are unlisted and Zoning Enforcement staff will be unable to obtain the name of a person advertised on the sign or responsible for the sign violation. If staff is unable to obtain this information, enforcement can not occur because they will not be able to have a notice or warning served on the violator, much less any subsequent lawsuit. Therefore, the most effective way to discourage the posting of these signs is to remove them quickly, preferably within two weeks of their posting. Illegal sign posters will go elsewhere if they know their signs will be quickly removed. An open question is how much effort and resources the County is willing to expend in sign removal when prosecution of the violator is impractical or impossible.
It is also noted that prosecution efforts in other areas, such as in Montgomery County a few years ago, have resulted in some companies viewing the civil penalties as the cost of doing business and the imposition of fines has not had the deterrent effect that was hoped. For recurring violators, the state code does provide for the use of injunctive relief, which may be a more effective means of achieving compliance. Although the Task Force is not aware of the civil penalty fine of $100 currently provided for in § 33.1-373 ever being imposed, the Task Force believes that the fine should be increased to a higher monetary fine.
Task Force members believe that a multifaceted approach is needed to remove illegal signs from public rights-of-way when the sign owners or individuals erecting such signs cannot be identified and prosecuted. Other jurisdictions, such as Prince William County, as discussed above, Fairfax City, and Herndon have crews to regularly remove litter and signs from along the roadways. The Task Force thinks that Fairfax County should allocate resources to this effort. However, it is recognized that the County can not allocate the total resources necessary to tackle this problem without drawing resources from other needed programs. Therefore, the Task Force believes that the use of citizen volunteers should also be pursued and that official authorization from the Commissioner is essential in order to allow volunteer resources to assist with this problem.
The following are the recommendations of the Task Force, which consist of suggestions that can be taken at little to no cost to new County initiatives, which do have budgetary implications. In addition, the Task Force is recommending seeking additional enabling authority from the General Assembly that will allow the use of citizens to remove illegal signs from the right-of-way.