HomeMy WebLinkAboutPW Street Smarts Program DisplaysStreet Smarts Marin
Local Program Approval and Certification
This document authorizes the Transportation Authority of Marin (TAM) to provide Street
Smarts banners and signs. Exact locations and quantities will be listed in the Message
Placement Plan to be developed at a later date. Vertical banners will be installed by TAM in
accordance with the Message Placement Plan.
The County of Marin has raised concerns regarding the legality of certain portions of the
program. Issues have been raised about the signs being interpreted as traffic control signs.
Traffic control signs are required to be placed in accordance with the Manual of Uniform Traffic
Control Devices (MUTCD) as amended by the State of California.
A legal opinion from Nossaman LLP has been sent with this approval document that argues that
the program is in compliance with exceptions listed in the MUTCD and other applicable state
and federal programs. You may wish to consult with your own legal staff to verify the
appropriateness of the program for use within the City of San Rafael. Artwork on the banners
and signs that includes regulatory and advisory signs (i.e., stop sign and crosswalk sign photos)
has been removed from newer available sign choices.
The TAM Board of Commissioners has determined that this document must be signed by the
City Manager or other City staff designated to do so before release of funds to purchase media
material. After receipt of the signed document, TAM will place the Street Smarts Marin
banner/sign order in compliance with the approved Message Placement Plan. The order will
include any signs to be placed at schools or private property. Signs will be delivered to City
representatives only. Administration of the allotment of signs to schools or private citizens will
be performed by City of San Rafael employees and in accordance with San Rafael internal
processes for managing the distribution of Street Smarts materials.
Signed by Date—// -,C f r
Name Jim Schutz
(please print)
Title City Manager, City of San Rafael
' -3 - qq9
Attachment 1
NOSSAMAN UP Memorandum
TO: Ms. Dianne Steinhauser
Executive Director,
Transportation Authority of Marin
FROM: Nossaman LLP
DATE: July 23, 2009
RE: Street Smarts Program Displays - California and Federal Compliance
000010-0105
Issue:
You have asked us to review the "Street Smarts" Program to determine whether the program,
as implemented, violates current Federal or California laws or regulations related to the control
of signs on or adjacent to streets in Marin County.
Conclusion:
The signs used by the Street Smarts Program are explicitly allowed under the Manual on
Uniform Traffic Control Devices (MUTCD), Section 1A.08, and in situations where they might be
subject to the Highway Beautification Act, they fall within the exemption provided by 23 U.S.C.
131(c) for official signs. Further, Federal Highway Administration (FHWA) has issued a policy
statement supporting the display of safety messages associated with a safety campaign. The
signs in the Street Smarts Program are also consistent with the California MUTCD and the
California Outdoor Advertising Control Act.
Street Smarts Program
Street Smarts is a traffic calming program designed by the City of San Jose Department of
Transportation to reduce the number of traffic -related accidents, injuries and deaths by
educating drivers, cyclists and pedestrians and raising awareness through community events,
neighborhood initiatives, corporate sponsorships, school presentations, banners, neighborhood
signs and more. The City has registered the messages and licenses them to users. Users
purchase and install the signs and banners. As part of this program, sponsor agencies post
signs and banners on buildings, light poles, and in some cases over streets, with messages
emphasizing the importance of safety.
Street Smarts Signs consist of two fields — a large blue sky background the covers most of the
sign, and features safety/traffic calming messages and graphics, and a black horizon/foreground
featuring the Street Smarts logo, web address. A TAM logo fills the bottom of the sign. They
range in size and shape from 3x3' signs to be attached to existing official signs, to large vertical
or horizontal banners to be displayed on light posts or hung across streets. These signs do not
follow any of the models included in the MUTCD for official signs, and are not intended to
function as traffic control devices. Rather, they display safety messages associated with a
public safety campaign. FHWA has issued a policy statement explicitly endorsing the display of
safety signs (though that statement dealt with a federal program). We conclude that the Street
Memorandum
July 23, 2009
Page 2
Smarts Signs are not traffic control devices within the meaning of the MUTCD and related
regulations; the guidance from FHWA acknowledges that safety messages are not explicitly
dealt with in the MUTCD. The "Click -it or Ticket" signs covered by FHWA's policy statement
were even more problematic than the signs envisioned here. As we note below, the signs here
are permitted under broader provisions than those cited in the FHWA memorandum. The
memorandum illustrates FHWA flexibility, particularly when it relates to transmitting safety
related messages.
Applicable Laws and Regulations
An initial search of California and federal law related to the legality of the Street Smarts
Program's planned displays found that these signs are potentially subject to the Federal and
California MUTCDs, the Federal Highway Beautification Act, and the analogous California
Outdoor Advertising Act. We will cover each of these authorities below but we believe that
there are exceptions in each that will allow for the implementation of the Street Smarts Program,
subject to certain conditions.
The Manual on Uniform Traffic Control Devices — Background:
The MUTCD regulates official guide and regulatory signs located within the highway right-of-
way. The MUTCD applies to all roads and streets open to the public. See 23 U.S.C. §§109(d)
and 402(a). See also, the regulations implementing this provision, 23 C.F.R. §655.601. Section
655.603(a) states that: "The MUTCD approved by [FHWA] is the national standard for all traffic
control devices installed on any street, highway, or bicycle trail open to public travel in
accordance with 23 U.S.C. 109(d) and 402(a)." The MUTCD contains extensive guidance on
the appearance and location of signs, which assures that official signs and markings are
essentially the same throughout the United States. The MUTCD addresses the purposes,
shape, size, color, reflectivity, lighting, lettering style, location of, and other specific attributes of
such signs.
Street Smarts Signs Are Not Traffic Control Devices
FHWA's regulations at 23 C.F.R. §655.602 incorporate by reference the definitions contained in
the MUTCD and 23 U.S.C. §101(a). The MUTCD defines traffic control devices as "all signs,
signals, markings, and other devices used to regulate, warn, or guide traffic, placed on, over, or
adjacent to a street, highway, pedestrian facility, or bikeway by authority of a public agency
having jurisdiction." For the purpose of the MUTCD, whether a display qualifies as a "sign"
depends on the function of the display. MUTCD 2A.05 describes several classes of signs:
Signs shall be defined by their function as follows:
A. Regulatory signs give notice of traffic laws or regulations.
B. Warning signs give notice of a situation that might not be readily apparent.
C. Guide signs show route designations, destinations, directions, distances,
services, points of interest, and other geographical, recreational, or cultural
information.
The Street Smarts signs do not fit within any of these categories. MUTCD Section 2A.01 further
limits the scope of the manual to signs within the right of way, and again refers to the scope of
Memorandum
July 23, 2009
Page 3
functions of covered signs, saying that "signs are not typically used to confirm rules of the road."
Street Smarts signs (which are targeted at confirming rules of the road in an effort to increase
safety) are not within the contemplated definition of traffic control devices, and are not required
to comply with the design criteria included in the MUTCD. Instead, the MUTCD makes a special
exception for announcements, advertisements and other signs/messages posted by public
agencies in Section 1A.08:
Traffic control devices, advertisements, announcements, and other signs or
messages within the highway right-of-way shall be placed only as authorized by
a public authority or the official having jurisdiction, for the purpose of regulating,
warning, or guiding traffic.
This provision describes broader categories of signs than those detailed in Sections permitted
under Section 2A.01: "Advertisements, announcements, and other signs or messages" all
encompass broad classes of messages and signs. The Street Smarts messages at issue would
constitute either "announcements" or "other signs and messages, "as contemplated by Section
1A.08. This is the only place in the MUTCD where it refers to announcements, and it seems to
offer broad exceptions for displays posted by public authorities. The scope of this provision is
evidenced by the banners and posters that towns typically post announcing fairs, local civic
events and the like, all of which are very similar in appearance to what is contemplated here.
This provision of the MUTCD extends to signs placed within the right-of-way of roads open to
the public. For those signs posted outside the right-of-way, the restrictions of the MUTCD do
not apply. However, in cases where these signs would be placed adjacent to the right-of-way of
an Interstate or federal -aid Primary highway, the provisions of the Highway Beautification Act
would apply.
Highway Beautification Act
The Highway Beautification Act' (HBA) governs the erection and maintenance of outdoor
advertising signs, displays, and devices in areas adjacent to (outside the right-of-way of) the
Interstate System and the Primary system', and is codified at 23 U.S.C. 131. The HBA places
strict limits on the types of signs that can be placed within 660 feet of the system to be viewed
from the traveled way. However, §131(c)(1) allows for certain signs to be displayed within this
zone:
(c) Effective control means that such signs, displays, or devices after January 1,
1968, if located within six hundred and sixty feet of the right-of-way and, on or
after July 1, 1975, or after the expiration of the next regular session of the State
legislature, whichever is later, if located beyond six hundred and sixty feet of the
Pub. L. 89-285, Oct. 22, 1965, 79 Stat. 1028, as amended.
' We understand that the signs and banners contemplated by Marin County will not be placed on
Interstate Highways. The Primary System, which included major regional connector roads, was not
composed only of limited access highways. The Primary System was eliminated by the Intermodal
Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, Dec. 18, 1991, but was continued for
purposes of the Highway Beautification Act only. Since 1991, this system has grown only by adding the
sections of the National Highway System that may not have been previously designated as part of the
Primary System.
Memorandum
July 23, 2009
Page 4
right-of-way located outside of urban areas, visible from the main traveled way of
the system, and erected with the purpose of their message being read from such
main traveled way, shall, pursuant to this section, be limited to
(1) directional and official signs and notices, which signs and notices shall
include, but not be limited to, signs and notices pertaining to natural wonders,
scenic and historical attractions, which are required or authorized by law, which
shall conform to national standards hereby authorized to be promulgated by the
Secretary hereunder, which standards shall contain provisions concerning
lighting, size, number, and spacing of signs, and such other requirements as may
be appropriate to implement this section...
Street Smarts Signs Are Official Signs and Notices Under the HBA
As the Street Smarts signs will be erected by the public agencies sponsoring the effort as part of
a safety improvement program, they fall within the scope of the §131(c)(1) exemption for
directional and official signs and notices. The Secretary issued national standards for these
signs at 23 C.F.R. part 750, subpart B. While these standards contain specific requirements for
directional signs, there are no restrictions of official signs other than those found in the definition
set forth at 23 C.F.R. §750.153(n):
(n) Official signs and notices means signs and notices erected and maintained by
public officers or public agencies within their territorial or zoning jurisdiction and
pursuant to and in accordance with direction or authorization contained in
Federal, State, or local law for the purposes of carrying out an official duty or
responsibility... .
The Street Smarts signs will be erected and maintained by local agencies in accordance with
local law, to carry out the implementation of a new safety campaign. Thus, to the extent that
they may be located outside of the right-of-way, they are within the exception provided in the
HBA. There are no restrictions in Federal law on signs located outside of the right-of-way of
roads other than those for the areas adjacent to Interstate or Primary highways.
CaIMUTCD
California has adopted its own version of the MUTCD.3 The California MUTCD (CaIMUTCD)
supplements the Federal MUTCD, which applies to all "traffic control devices" installed on any
street, highway or bicycle trail. (Sec. 1A.07) California has made a specific finding that the
CaIMUTCD is not in conflict with the Federal MUTCD. (Id.) Thus, by its own terms, the
CaIMUTCD follows the lead of the Federal MUTCD, and so the banners and signs here would
also comply with California requirements.
California has adopted Section 1A.08 of the Federal MUTCD in toto. The language of this
provision is identical in the Federal MUTCD and the CaIMUTCD. The additional commentary
Available through the Caltrans website at:
www.dot.ca.gov/hq/traffops/signtech/mutcdsupp/ca mutcd.htm
Memorandum
July 23, 2009
Page 5
provided in the CaIMUTCD only references traffic control devices, not "advertisements,
announcements, and other signs or messages," and therefore does not change the fact that no
guidance is provided regarding anything other than traffic control devices.
Additionally, California has a prohibition on installing signs on private property that are "intended
to regulate, warn or guide traffic" unless the signs meet MUTCD standards. (Id. )4 The definition
of "traffic control device" is any sign or similar item that regulates, warns or guides traffic. (Sec.
1A.13.87.) The "Street Smarts" program is not intended to and does not regulate, warn or guide
traffic, so its displays are not required to meet the CaIMUTCD requirements.
The CaIMUTCD provides the same definition for signs found in the Federal MUTCD and
describes the same classes of signs as MUTCD 2A.05. The Streets Smarts displays do not fit
into the descriptions above, and do not follow the designs illustrated in the MUTCD. Section
2A.01 of the CaIMUTCD echoes the Federal MUTCD's directive that MUTCD signs are not used
to confirm rules of the road.
California Outdoor Advertising Act
The California Outdoor Advertising Act (OAA) regulates the placement of advertising along
Interstate and Primary highways and is codified in the Business & Professions Code (B&P).5
Like the Federal HBA, the OAA applies outside of the highway right-of-way. The OAA only
regulates advertising signage and structures. The statute does not provide a detailed definition
of what constitutes "advertising," although it states that it does not include either (i) notices
posted by a public officer in performance of a public duty6 or (ii) directional, warning or
information structures. (Cal. B & P Code Sec. 5203(b), (c)) Additionally, the OAA applies only
to Interstate and Primary highways. (the definition of Primary Highways follows the definition in
the Federal law). (Cal. B & P Code Sec. 5220) Thus, just as is the case with the HBA, if the
Street Smarts banners and signs are not being placed adjacent to Primary highways, or if the
signage does not constitute "advertising," it would not be subject to the OAA.
It seems unlikely that the signs would constitute advertising. The banners and signs are clearly
being erected by "a public officer in performance of a public duty;" there is no commercial
message of any kind being conveyed through the signage.
evak/ash1
4 CaIMUTCD Section 1A.07: Subject to the requirements in California Vehicle Code Sections
21100, 21100.1, 21107, 21107.5, 21107.6, and 21107.7, no person shall install or maintain in any area of
private property used by the public any sign, signal, or marking or other device intended to regulate, warn,
or guide traffic unless it conforms to Department of Transportation standards and specifications.
5 A copy of the statute and regulations is also available on the Caltrans website at:
www.dot.ca.gov/oda/download/ODA—Act—&—Requlations.pdf.
6 This provision of the California mirrors the provisions of the HBA related to official signs and
notices.
CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: Public Works
Project Manager: Bill Guerin Extension: 3110
Contractor Name: Transportation Authority of Marin
Contractor's Contact: Dan Cherrier Contact's Email: dcherrier@tam.ca.gov
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESPONSIBLE
DESCRIPTION
COMPLETED
REVIEWER
DEPARTMENT
DATE
Check/Initial
1
Project Manager
a. Email PINS Introductory Notice to Contractor
Click here to
N
enter a date.
BG
b. Email contract (in Word) and attachments to City
10/31/2019
Attorney c/o Laraine.Gittens@cityofsanrafael.org
NIK
2
City Attorney
a. Review, revise, and comment on draft agreement
10/31/2019
N LG
and return to Project Manager
10/31/2019
N LG
b. Confirm insurance requirements, create Job on
Department Director
PINS, send PINS insurance notice to contractor
N BG
3
Approval of final agreement form to send to
10/31/2019
contractor
4
Project Manager
Forward three (3) originals of final agreement to
Click here to
❑
contractor for their signature
When necessary, contractor -signed agreement
enter a date.
N N/A
5
Project Manager
agendized for City Council approval *
*City Council approval required for Professional Services
❑
Agreements and purchases of goods and services that exceed
Or
$75,000; and for Public Works Contracts that exceed $175,000
Click here to
PRINT
Project Manager
Date of City Council approval
enter a date.
CONTINUE ROUTING PROCESS WITH HARD COPY
6
Forward signed original agreements to City
City Attorney
Attorney with printed copy of this routing form
7
Review and approve hard copy of signed
agreement
8
City Attorney
Review and approve insurance in PINS, and bonds
(for Public Works Contracts)
9
City Manager/ Mayor
Agreement executed by City Council authorized
f
official
10
City Clerk
Attest signatures, retains original agreement and
1 �'�
CJ
forwards copies to Project Manager
i