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It’s not the message, it’s the size

By Fritz Mayer
April 5, 2011

Members of the appeals board repeated several times that it was not the content that was being objected to, but rather the size of the sign, which clearly is larger than the four square feet allowed by town code.

The house and garage on Erie Avenue to which the sign is attached, is located next to The River Reporter. According to Tony Ritter, chairman of the Tusten Zoning Board of Appeals (ZBA), the building that houses the newspaper is in a downtown business district, while the house next door is in a general residence district, which has a limit for political or advocacy signs of four square feet.

At the ZBA meeting on April 4, Ritter read correspondence from two attorneys saying the sign, which reads “Let’s get fracking, pass the gas,” is in violation of the code.
Attorney Jeffrey Clemente, who used to represent the owner of the building, Ned Lang, wrote, “The sign violates our sign ordinance; Ned is wrong. Town law is clear and it should be enforced.”

Attorney John Kelly agreed that the sign is in violation of the code. He added a word of caution, however, and said that Lang owns a number of buildings in both residential and commercial districts in the town, and if Lang “becomes sufficiently motivated, he could place similar signs in multiple high-visibility locations and effectively accomplish his goals while marring the scenic beauty of the Town of Tusten, yet remaining in compliance with the town’s current zoning laws.”

Lang, who is also a member of the ZBA, did not attend the meeting. The general consensus of the board was that it was their duty to enforce the zoning code as it exists.

The town code enforcement office, Igor Smetaniuk, said at the town meeting on March 14 that ordering Lang to take the sign down might be an infringement of his right to free speech. Smetaniuk did not attend the meeting, although he was advised that the matter would be addressed.

A couple of board members addressed that issue. Liza Phillips said, “We have a job to enforce the zoning as we interpret it, and clearly the sign is a violation, but if he doesn’t want to do his job and wants to claim that, then he has to go to court.”

Kevin McDonough said zoning in the United States has been around since the 1920s and earlier. To challenge the sign law on free speech issues would not be a matter for a local court but would instead be a matter for the Supreme Court of the United States.