GUILDERLAND — Until now, the zoning board here hasn’t allowed flashing signs for businesses although public libraries, schools, and fire companies in town have worked around the municipal code with their electronic signs — a subject on which state law is silent.

Guilderland’s zoning code defines a flashing sign this way: “An illuminated sign on or in which the artificial lighting is not maintained stationary or constant in intensity and color at all times while in use.”

On Feb. 6, two men from Infamous Graphics of Albany joined Bill Lia, owner of Hamilton Square, to present their arguments to replace the top portion of the plaza’s current directory sign, which reads “Hamilton Square,” with a full-color electronic panel that would show different messages for six to eight seconds each, with a half-second of darkness in between.

The proposed panel would show both commercial and non-commercial messages, including Amber Alerts, for missing children, the application said.

The zoning board members at first appeared to be confident that this sign request would be denied, the same way that two others in the recent past had been.

Guilderland’s code doesn’t specifically address electronic signs, said Zoning Board Chairman Thomas Remmert this week. When the code was adopted many years ago, no one was thinking about electronic signs, he said. The code prohibits flashing signs, he said.

This week, a spokesperson from the New York State Department of State, Lee Park, wrote in an email to The Enterprise, “The Uniform Code (Building Code), which is overseen by the Department of State, is silent with regard to signs. Normally signs are regulated by local zoning laws and ordinances.”

“This isn’t my first rodeo”

Presenter Berry Cooke of Infamous Graphics of Central Avenue in Albany asked why a commercial entity would be denied when these signs are used by fire departments, the school, and the library.

Cooke did not respond to telephone messages or an email from The Enterprise asking for comment.

Remmert told the applicant that the library is part of the school district, and that the school district “is not subject to the town code, the building code, any of that stuff. They go to the State Education Department. So we have no authority over the library and the building code.”

Actually, while termed a “school district public library,” the Guilderland Public Library is not part of the school district; it follows school-district boundaries, but is a separate entity with its own elected board of trustees and the ability to levy taxes.

About fire departments, Remmert said most of the signs erected by fire departments “replaced prior changeable signs.” He added, “The fire departments and the couple of churches that have them are not-for-profit entities; they are not commercial businesses.”

There is a provision in Guilderland’s law for “public signs,” Remmert said, “for signs put up by public officials such as a fire chief or a board of fire commissioners. So this board has allowed these types of entities to use message boards.”

The courts have consistently said, Cooke asserted, that school districts and fire departments are not exempt from the zoning statutes.

Remmert said then that he had not said they were exempt. He had said, he reiterated, that they were subject to different parts of the code.

Cooke continued, “The Supreme Court has said in the most recent Reed v. the Town of Gilbert decision that one cannot consider a sign of a government entity any different than a sign of a commercial nature.” And it isn’t just Reed v. the Town of Gilbert, he said; there have been many related decisions.

The 2015 U.S. Supreme Court decision was based on a suit brought by a church in Gilbert, Arizona that challenged a local ordinance imposing stricter limitations on signs advertising religious services than signs displaying “ideological” or “political” messages. The church argued that the ordinance violated its First Amendment right to free speech. The Supreme Court found that it was unconstitutional to limit the size and placement of religious signs more than other signs.

Justice Samuel Alito wrote to emphasize that the Supreme Court’s opinion would not “prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives.”

“It’s not fair to say that they can have it, but one can’t,” Cooke continued. “The 14th Amendment grants that protection, whether it’s commercial, or public, or private.

“This isn’t my first rodeo,” Cooke told the board. “I’ve been doing this 23 years and I’ve had this approved in a lot of towns.”

Remmert asked him to supply the board with copies of those legal precedents, and Cooke said he would.

Remmert said that this question will be one of the first legal issues to be considered by the new assistant town attorney, Patricia Wilson, who was appointed last week, mainly to look into legal issues that arise in relation to applications to the zoning board of appeals.

Sign history and future In Guilderland

The “message center,” as its promoters termed it, would be 64 square feet in size where 50 square feet is allowed. Hamilton Square, formerly known as Twenty Mall, is at 2080 Western Ave., at the corner of Western Avenue and Route 155. The sign would be four feet by eight feet on each side, according to the application materials on file with the town.

Electronic signs are programmable digital boards that show one static message for a certain interval and then switch to another static message; these signs can be controlled remotely or automatically.

In 2011, Stuyvesant Plaza requested an interpretation of the zoning code, after its proposal for an electronic sign that would change every 13 seconds was denied. The board, which was headed at the time by Peter Barber, who is the current town supervisor, wrote in its interpretation that the proposed sign fell within the definition of a flashing sign.

In 2012, a request by Northeastern Fine Jewelry at 1575 Route 20 for an electronic sign was also turned down. The representative of the sign company making the proposal, AJ Signs, argued at the time that the sign was necessary to advertise Northeastern Fine Jewelry’s business and specials and to compete against the internet.

Cooke told the board that Wikipedia defines a flashing sign as one in which the period of illumination and the period of darkness are of equal length.The proposed sign, he said, would be lit up for six seconds and then would go dark for half of a second before lighting up again with a different message so it does not meet the Wikipedia definition of a flashing sign, he said.

Wikipedia, an online encyclopedia with content contributed by its users, has a warning on the top of the page defining flashing signs, which says, “This article does not cite any sources. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed.”

Guilderland’s zoning code states, “Illuminated signs or lighting devices may be permitted, provided that such signs employ only lights emitting a constant intensity, and no sign shall be illuminated by, or contain, a flashing or moving light, lights, or letters.”

The code further states, “Except as may be permitted by this chapter, the use of pennants, banners, spinners, streamers, moving signs or flashing, glittering or reflective, animated or rotating signs or similar eye-catching devices are prohibited” and, “No flashing signs shall be permitted.”

Remmert said that the zoning board is appellate rather than legislative, and has “precedents we have to follow.” He suggested this would be “more of an issue for the town board, to come up with regulations to allow electronic signs.”

Remmert also told the applicants that a variance is “not the right way to enact a sign law.” He said he is “in favor of doing it right the first time, because this will set the precedent.”

When the zoning code was modified a few years ago, Remmert said at the meeting, no one came forward to demand that electronic signs be allowed. “There was no demand for it, and electronic signs were not part of the changes,” he said.

Remmert said that a neighboring town had legislated on the subject by creating “an outright ban.” Remmert referenced Bethlehem, although New Scotland last year had put a definition in its code to prohibit rolling and flashing signs.

A member of the zoning board asked if the signs weren’t a traffic hazard, and Cooke cited studies that he said had found that drivers glance at electronic message centers for less than one second. “If they were unsafe, the town would be allowing a hazard by allowing the fire department to have them,” he said.

A 2001 report on electronic signs by the United States Small Business Administration said that these centers typically increase business by 15 to 150 percent and that they are safe provided that they are well designed, with a “brief, easy-to-read message, in lettering large enough to be easily seen and read by a driver.”

A public-affairs specialist from the SBA’s regional office in Syracuse and an ombudsman from the Washington office both said they were unable to find any further information on where the figures 15- to 150-percent came from although the number is widely repeated.

The application says, “These signs are a benefit to the community as a whole. A community must have a mix of both commercial and residential. Without commercial you have no sales tax revenue which means your residential taxes skyrocket. Studies have shown that these signs when installed have increased revenue by 15 to 150% as reported by the Small Business Administration. This means more revenue for the town and community.”

Remmert, a longtime firefighter with the Westmere Fire Department, which has an electronic sign, said he used to be responsible for changing the letters, back when the firehouse had a signboard with plastic letters that needed to be placed by hand. He had to do that job in every kind of weather, he said.

The firehouse has since gotten a changeable electronic sign, he said, noting that he believed that the messages on it change only three or times a day, “not every six seconds.”

This week, Remmert said that fire departments are subject to regulation by fire districts, but that the Westmere Fire Department had gone before the zoning board in Guilderland to get approval for its sign. The department had been asked, he said, to keep its messages to one color and not to change them very often.

Chief Building and Zoning Inspector Jacqueline M. Coons said this week that the reason this request came before the zoning board in the form of a public hearing was that the applicant made a request for an area variance because of the sign’s size.

If the sign had been within 50 square feet, it still would have come before the board, she said, along with other signs that are considered at the end of each zoning-board meeting. Signs considered in that format are usually approved, she said, “as long as no one finds the sign offensive.”

Coons said that fire departments, the library, and the high school are in compliance with the code because the code allows greater leeway to “temporary signs” put up by charitable and civic organizations.

Board member Jacob Crawford noted that the board had allowed Hamilton Square tenant Market 32 to put up, on the facade of its store, electronic signs reading, for instance, “Produce” or “Vegetables,” because those signs were static and did not change. And, Crawford said, “They weren’t going to be putting up, ‘Twelve packs of cola for $3.99.”

Resident Tom Mortati of Vanderlyn Lane said he was an attorney and asked if the town attorney’s report would be public and available for residents to read, “to see if it is accurate,” before the next meeting.

Remmert answered that he was not an attorney and did not know where an attorney’s report would be public.

Barber, who is an attorney, said this week that he was not sure if the report would be public, and that it would depend on whether the lawyer’s report was considered legal advice to a client.

Mortati asked rhetorically where this proposal would lead. “I suspect we’ll have every business on the Route 20 corridor advocating for their own electronic sign,” he said.

Lia said that an electronic message center costs more than $50,000. “So,” he said, “you’re not going to see all these businesses doing this.”

Lia told the board that the directory within the existing sign has only eight slots, and features only that number of the plaza’s 20 tenants. The electronic sign would mainly be used to give greater visibility to tenants, including the smaller ones, with stores that cannot be seen from the road, Lia said.

He said that he has seen, in other towns, merchants advertise “date-sensitive specials” on these signs. But Hamilton Square tries to maintain the plaza so it “doesn’t turn into a Turkish bazaar, in terms of signage,” Lia said.

Stuyvesant Plaza

The zoning board’s interpretation in the case of Stuyvesant Plaza noted, “Our Town Code is a fairly conservative Code; you look at other Towns in the area you will find that sign proliferation is much more prevalent. It also is a balance between the interest of the business community and residential properties and there is always going to be an argument on one side that signs will benefit tenants and at the same time those same signs may be detrimental to residential properties nearby.”

The interpretation said that the proposed sign at Stuyvesant Plaza fell within the definition of a flashing sign, that it would “negatively impact the enjoyment” of nearby residents and detract from people’s enjoyment of the “recently constructed town park” immediately adjacent to the plaza.

Stuyvesant Plaza was also, according to the application, requesting a 346-square-foot sign where 50 square feet was allowed.

Northeastern Fine Jewelry

A public hearing was held in March 2017, to consider a request by AJ Signs for a variance for a sign that would have been larger and closer to the road than the zoning code allowed, for Northeastern Fine Jewelry at 1575 Western Ave.

This sign would have included a digital portion, to change every six seconds.

AJ Signs argued that Northeastern Fine Jewelry needed the sign to compete more effectively in a changing market and against the internet.

No residents made any comments at that public hearing.

In that case, too, Remmert said the town had recently reviewed and updated its zoning code, and that the code had never allowed for changeable signs.

Remmert said that the board is not a legislative body, and it would be setting a precedent by allowing the sign. He concluded that the zoning board does not have authority to grant that type of variance. He also mentioned the earlier application by Stuyvesant Plaza that was turned down.

Library

Library Director Timothy Wiles told The Enterprise this week the library installed an electronic sign board in front of the building, near Route 20, three years ago, to publicize upcoming events.

The Guilderland Public Library is a school-district public library and must get approval from the State Education Department, rather than the municipality, for anything it wants to build or erect on its grounds, Wiles said.

But before installing the sign, Wiles went before the town board to try to clarify that, and make sure that the library did not need to request approval from the town. The town board said it would review the question with its attorney, and did respond a few weeks later, saying that Wiles was correct, and the library land is not subject to municipal regulations on that particular issue.

Wiles said that the town board did let him know that, even though the town didn’t have jurisdiction, it would prefer that the library not use flashing or scrolling text, streaming video, or flashing color effects, to prevent distractions to passing drivers.

“We try to be as conservative as possible,” Wiles said.

“We have never done anything in motion on the sign,” he added. He explained that the shortest interval that a message appears on the library sign is 15 minutes. At other times, he said, messages stay up for about an hour. The idea, he said, is that people are able to see it as they drive past and then see a different message on their return home.

Wiles said he thought the sign’s technology would be capable of, for instance, live-streaming the Super Bowl. “But we’ve agreed not to do anything like that,” he said. “Because you don’t want to drive down Western Avenue and watch TV,” he said.

“All we do is tell you about the blood drive, and the stop-smoking program,” he said. “We’re very happy with it.”

Wiles has been the library director for five years, he said. Over the three years since the sign has been up, he added, he has never actually seen the board change from one message to another.

Firehouses and school

Remmert said this week that fire departments are subject to regulation by fire districts, but that the Westmere Fire Department had gone before the zoning board in Guilderland to get approval for its sign. The department had been asked, he said, to keep their messages to one color and not to change them very often.

What if a fire department wanted to change its message every six seconds?

“Not going to happen,” Remmert said, adding, “I don’t think they have enough messages.” He said the fire department puts up public-service messages such as “Change your smoke alarms.”

Guilderland HIgh School has a two-sided, full-color electronic sign in front of the school, which Assistant Principal Ann Marie Springsteen said is used to publicize items on the district calendar having to do with the high school, such as school board meetings, school votes, and the school musical.

New assistant town attorney

Barber said this week that the new assistant town attorney, Wilson, was formerly with the federal public defenders’ office and now works for the Albany County Public Defenders’ Office.

He said that the Guilderland position is “mostly evening” and that Wilson will do it in addition to her work with Albany County.

Wilson will make $5,516 this year, said town Clerk Jean Cataldo. Town Attorney James Melita will make $44,726 in 2019, Cataldo said.

Wilson did not return calls from The Enterprise.