Rights-Of-Way Ban on Realtor or Any Signs Will Remain as Palm Coast Moves to Adopt New Ordinance

Nine years after its attorney said it would have to change its sign ordinance to comply with a new Supreme Court ruling, the Palm Coast City Council appears ready to adopt those new rules and maintain a long-standing ban on Realtor or other signs in rights-of-way, except for government signs.

For the most part, the code isn’t changing so substantially that most people will notice. “Generally the signs that are currently permitted will remain permitted and the signs that are currently prohibited will remain prohibited,” said Estelle Lens, a city planner. “The code is being amended now to comply with changes in the law and address changes and make the code more business and community friendly.”




The Flagler County Association of Realtors fought hard to have some aspects of the ban removed, but was not successful in the face of strong public opposition, and in the end agreed to lend its support for the new ordinance.

The new ordinance was necessary because of a seminal 2015 Supreme Court decision that ruled in sum that governments may not regulate the content of signs, and may regulate only the size, location and timing of public signs regardless of content, as long as all signs within any given category were treated similarly. So if any one kind of sign were allowed in rights of way–political, religious, commercial–all signs would have to be allowed, including absurd, rude or racist signs. If an allowance were made for Realtors’ weekend signs, such as signs advertising open houses, as could have been done, then all other signs would have had to be allowed.

Banning all signs from rights-of-way does not violate the court’s ruling on First Amendment grounds because the ban applies universally. The same logic applies to size or location regulations. Palm Coast has always had that right-of-way ban, and is opting to keep it as a matter of law, aesthetics and convenience, or practicality: had the ban been removed on weekends, it would have required city staffers to police it for violators outside of those windows. City staff is stretched as it is and didn’t need that additional burden: imagine the tasks Monday morning during election season, when campaign volunteers may not know, or care, that the signs must be removed.




The city will loosen the rules somewhat regarding for-sale or open-house signs on individual properties, allowing more signs than before, and allowing residential homes to have two instead of one flagpole for properties with 100 feet or less of road frontage, and three flagpoles for properties with more than 100 feet of frontage, whether commercial or residential. (Palm Coast residents have generally ignored that restriction and commonly erected three poles.) But residential poles top out at 25 feet, while commercial poles may rise to 30, and all must be set back at a minimum of 5 feet from the property line.

The sign restrictions don’t apply to government signs, whether directional, emergency or otherwise. So those ghastly electronic billboards you see blaring signs for events here and there will continue. Curiously, Palm Coast used one of those signs on Belle Terre Parkway to advertise the Strawberry Festival last weekend, even though city officials had stressed that the event is private, not sponsored by the city. City Hall will have to explain and resolve that loophole, as it lends itself to favoritism: the same week, the Read Across Flagler Literacy event in Town Center–which was a government event–did not have the same benefit.

The new ordinance went before the Planning and Land Development Board and the Beautification and Environmental Advisory Committee, both of which recommended approval in unanimous votes. It was discussed in “stakeholder” meetings with the Flagler County Association of Realtors (two of whose members, David Alfin and Cathy Heighter, are on the council), a group called Flagler County Association of Responsible Developers (actually, the Volusia County Association for Responsible Development, which has a Flagler chapter; VCARD’s immediate past chair is Michael Chiumento III, the land use attorney in Palm Coast who represents developers with some of the more sizeable ongoing projects in town), the local chamber of commerce (which Chiumento vice chairs), plus, Lens said, local attorneys and local developers.




City Council member Ed Danko had hoped to delay approval of the ordinance until the city’s new law firm is in place. (The city’s current law firm has been representing the city since 2007, but is ending that contract. The city is negotiating with St. Augustine’s Douglas Law Firm as a replacement.) “All attorneys don’t always agree on things. So I would kind of like to give our new firm a chance,” Danko said.

Other council members did not think a delay necessary. Council member Theresa Pontieri, an attorney, said the case law was clear, removing the need for delay. She cited the support from various groups, including the business-friendly chamber. “When I look at it, there’s no difference in opinion between circuits or anything of that matter,” she said, “So I don’t think that a different attorney could reasonably come to a different opinion as to what the binding case law is.”

Heighter agreed and underscored her opposition to signs in the right-of-way. “As a Realtor myself, I’m in agreement with that,” she said. (Danko wasn’t wedded to the proposal to delay, and soon pulled it back.)

“Our political signs also are not allowed just in the right of way,” Council member Nick Klufas said. “A lot of people will say politicians scatter their signs everywhere. That’s untrue. And if you’re doing that you’re breaking the rules. And I’m thankful that our staff was able to put together something that normalizes some of the size requirements and got us all on the same page.”




Eddie Marcal, president of the Flagler County Association of Realtors, sought clarify his association’s position: “I take offense to people taking what was said by FCAR as opposing this. FCAR does not oppose this proposal.” Yet his very next sentence suggested it does, or did: “The issue that we have that we can’t support is the limitations,” he said. The association’s own list of recommendations to the city had requested that signs be allowed in rights of way as long as, if the right of way abutted a property owner, the owner’s permission was secured. The association had also asked that if its members violate the sign ordinance, that FCAR itself should discipline them, not the city. But that would be against the law.

“And also we can’t support the violation of current law. Current law states that there should be no signs in the right away,” Marcal said. “That’s it. It’s that simple. If you guys can’t make any exceptions, we totally understand that.” Actually, it’s not that the city cannot make exceptions. It is choosing not to. It did consider making exceptions for certain roadways, or on weekends, and it would have been legal, but opted against going that route.

“For us to say it’s okay on the weekends doesn’t make any sense for us,” the association president continued. “It causes the other problem for our association and that is that it could be perceived by legal to be a trade restriction on our members. It could be received or perceived as an anti-trust type of item that the association is supporting. So that is why we’re opposed to the Saturday Sunday exemption to this rule. We are perfectly fine with the amendment as it is with a sign ordinance with the right of way being restricted to no signs.”

The Realtors association submitted 11 recommendations, four of them pertaining to content that the city does not regulate, the rest referencing matters of size and height of signs, and allowing signs in the right of way. The sign ordinance was penned in 2008 and amended in 2009 and 2012, three years before the 2015 Supreme Court decision. The council is expected to approve the new version next Tuesday, on first reading, with a final reading two weeks hence.