Council turns down T-shirt talk

Is a T-shirt a sign and should the display of outside merchandise be regulated? 

This was discussed at the Sept. 9 Hill City Common Council meeting when the planning and zoning commission (PZC) resubmitted an ordinance amendment to prohibit the display of merchandise on exterior walls of the buildings, awnings or posts in the Central Business District (CBD). 

Developmental services coordinator Dani Schade said, “For at least the last four years, city hall and the chamber of commerce have received numerous negative comments from visitors and town citizens alike regarding the look and messaging of the display of merchandise on building walls, awnings and posits in our CBD. As our municipal code currently is, merchandise displayed on exterior walls of buildings is not regulated. The city does regulate signage that is placed on the exterior walls of buildings.” 

In 2023 the council stated addressing outside merchandise displays in the CBD was a priority among other projects so the PZC developed an ordinance revision. The amendment was presented to the council at the Jan. 22 meeting. During the meeting, three business owners expressed their opposition to the ordinance, and the council discussed concerns with language and the owners’ right to sell merchandise. 

Ultimately, the amendment failed by a unanimous motion, and alderwoman Lori Miner asked if the Downtown Merchant Group (DTMG) could help ensure offensive items were not displayed. 

On Sept. 9 the proposed amendment to the description of the CBD in the Hill City Municipal Code (HCMC) was, “No merchandise is allowed to be displayed on any exterior walls of the building or awnings or posts. Any outside merchandise display must be on mobile racks or mannequins only, be entirely on private property, must not obstruct or impede ingress or egress from the building; and shall be taken indoors at the end of each business day.” 

An additional amendment regarding penalties for violations was also presented. 

Reading from the PZC report, Schade addressed previous objections raised to this ordinance. To the argument that the ordinance should apply to all businesses rather than just those in the CBD, Schade said, “CBDs are special and usually the most expensive areas of a city due to their prime location, desirability and are frequently known as the identity of the city. CBDs often are areas of densely concentrated commercial activity with their own unique zoning regulations.” 

Regarding the freedom of speech objection, Schade said the city would not regulate what the merchandise said, only where it could be displayed which is within South Dakota codified law.

The third objection was that the ordinance gives businesses outside the CBD an unfair advantage. To this, Schade said, “How is this the city’s fault that the property owner purchased that particular property? Staff doesn’t believe it should be a consideration.” 

As to the attempt of the DTMG to convince fellow merchants to not display clothing items on the exterior of their buildings, Schade said, “this attempt, if made, has not produced any visible results.” 

To the concern of impeding the right to sell merchandise, Schade said the ordinance would not regulate what was being sold, only how it is displayed on the exterior of the property. 

Finally, to the objection about unintended consequences, Schade cited three exemptions in the HCMC that would allow for flowers, holiday decorations, fine art displays and other such things. 

City staff then took pictures of every business frontage in the CBD to review with the PZC. Schade said only businesses currently hanging merchandise on the exterior of their buildings would be affected. 

With the thought that the regulation might be best done through the existing sign ordinance, city attorney Katelyn Cook was asked to review the proposed ordinance amendment. 

“Certainly, I think you could make the argument that the T-shirts with the slogans all over them could be construed to be a ‘sign,’ but I think I prefer the proposed amendment to the ordinance because it talks about all merchandise and doesn’t address ‘messages’ like the sign ordinance does,” Cook said. “Also, the way the amendment is drafted leads to a decent argument that having merchandise outside of the shops interferes with the right-of-way on the sidewalk and is potentially a safety hazard.” 

The City of Custer recently passed an ordinance to prohibit merchandise hung on the outside of buildings under its sign ordinance.

Schade said the proposed amendment supported the Hill City Comprehensive Plan by elevating Hill City’s image, preserving the visual aesthetics that contribute positively to Hill City’s look and feel and making Hill City visually inviting so it does not look like a tourist town. 

At the Sept. 3 PZC meeting, the commissioners unanimously agreed to resend the ordinance amendment to the council for reconsideration. 

Mayor Tana Nichols said she got numerous phone calls about this ordinance amendment. To her understanding, there are ordinances on the books that cover this, but the code enforcement officer has been ignored. Hill City Main Street is also a state highway regulated by the South Dakota Department of Transportation (DOT). 

“We have ordinances on the books for a reason, and if you’re encroaching on that sidewalk, you’re breaking our ordinances. It’s as simple as that,” said Nichols. 

During public comment, Jessica Jacobs, owner of the Tin City Saloon, said a PZC member referred to the concerns raised about the expansion of the CBD and the potential impact on other businesses as “hysterics.” However, Jacobs said expanding the CBD has been discussed, which justifies the “hysterics.”

“Some of this enforcement attempt has already been ignored so what’s going to change with a new ordinance? Are we going to invest more time and money enforcing?” asked Jacobs. “And is any consideration being given for grandfathering the businesses that are here and already doing this because these are people that have already invested their time and their money?

“We all know that most of our money comes from tourism, so what’s wrong with having a few things in town that make it look like a tourist town?” 

PZC president Stacy Bintliff said the council originally asked the commission to take on this ordinance amendment. 

“It is a protection of the architectural standards that we put in place,” said Bintliff. “Also, it is protection of safety. When you’ve got fabric just hanging around on a building, what’s to stop a loose cigarette spark and fabric that’s been sitting out in the sun for two years from starting on fire? It’s just a safety standard.” 

Along with the architectural and safety standards, Bintliff said the commission is trying to make Hill City stand out more. 

“People come and they think, ‘OK, this is a quaint, cute little town.’ Well, we want to keep it a quaint, cute little town. You can still be touristy. You can still see through the windows. We don’t need to be like every other town just because we are a tourist town,” said Bintliff. 

As to the possibility of expanding the CBD, Bintliff said if the commission was to ever look at an expansion, it would be south toward Oak Street. 

Lori Nonnast, owner of the Jon Crane Gallery & Custom Framing, said she was for an amendment that gives downtown a cleaner look. Nonnast currently has merchandise on the exterior of her building and said she was willing to take it down to coincide with a nicer look. 

“I understand why people do it. However, I do have clients who come in quite regularly saying our town is looking more and more like Keystone or more of that tourist look,” said Nonnast.

The only thing Nonnast requested is that the council reword the amendment to allow for outdoor merchandise displays on private property that cannot be taken indoors at the end of the day. As an example, Nonnast said at one time she had a life-size bronze sculpture for sale on her property that she never could have brought inside. 

“I hope it works that we can do this for the whole town,” said Nonnast. 

Alderman Ethan Walker asked Schade to explain the current sign ordinance. Schade said it was $50 per sign, it goes through PZC and is measured so a certain square foot percentage of the building stayed natural.

“We do not have anything on the books currently that prohibits T-shirts on faces of buildings, walls of buildings or on exteriors. We have nothing in our code that prevents that because technically it’s not a sign. It’s a T-shirt or it’s a piece of merchandise that they have for sale. So there is no code currently to enforce this,” said Schade. 

“If it’s about maintaining the architectural standards and seeing the architectural design of these buildings and making sure things look good, it just seems like some of these buildings don’t look that good, to be frank,” said Walker. 

Walker said some signs were ripped, faded or absent.  If the goal was to make things look better, Walker did not know how removing merchandise from the buildings would look. 

Schade said the sign had to be 50 percent deteriorated, and the merchant is notified if their sign is overdue for replacement. Businesses are not required to have signage. 

“My opinion was, if they want to hang it and it’s got a message on it, that’s a sign. So let’s charge them $50 a T-shirt. Put it in a frame, put that T-shirt on your wall and you can only have a certain percentage because we still want to see the type of building you have and the architectural features of it,” said Schade.

Custer’s attorney said a signage ordinance was the way to go, and Hill City’s attorney said the amendment was the way to go. 

“I agree with Ethan. Frankly, most of the buildings downtown I don’t think have any architectural pleasantness or eagerness to see,” said Miner. 

Miner said the city already has ordinance Chapter 7.31 Encroachment on the Highway Right-of-Way in place which prohibits encroachments on the public right of way, whether there are fines in place. 

“We’re a government. We don’t get to pick and choose, ‘Oh, we’ve got this, but we’re not going to enforce it. We’re going to write a new one.’ That’s really not what government is supposed to do. If we have an ordinance, then we need to enforce it. If we’re not enforcing this, then we need to take it off the books. Or if what it requires is fines, then we need to figure that out. We don’t need to add another ordinance just so we get to pick and choose which one we’re working from,” said Miner. 

As for the CBD, Miner said she heard the previous mayor say it would be expanded both north and south “so to say that it’s never going to happen is unrealistic.” 

Continuing the right-of-way discussion, Miner said, “State right-of-way comes up to within about yea-far of most businesses on Main Street. So if they have overhanging T-shirts like All Aboard, those should not be there according to this ordinance. The gorillas, the mannequins, the benches, the sandwich boards—all the things that have created more clutter this year and more of an impediment of getting down the street are all covered in this ordinance.” 

Alderman Dennis Siebert asked if the encroachment ordinance would stop T-shirts from being hung on buildings. This was a twofold answer. City administrator Brett McMacken said some of the buildings have a thin section of private property where T-shirts are pinned to the wall, which is permissible, but the ones sticking out in the right-of-way would be in violation. 

“This is a nonstop fight with these companies that put their mannequins out and statues of things. They pull them all in one day, and then they’re out the next day,” said McMacken. 

Nichols said the DOT did OK the benches, flags and flower pots along the sidewalk. From her conversations with Schade, Nichols said businesses have been ticketed but ignored the fine. She said, “I think there’s already ordinances in place that just need to be enforced and figure out how to do that.” 

“Maybe the sign route is potentially a better way to go, but again, it’s all about enforcing and changing behavior,” said Walker. He added that it might prevent more T-shirt shops from coming to town and doing the same thing. 

Victor Alexander asked if the council was trying to get rid of T-shirts or merchandise in the public right-of-way, saying, “You got to kind of focus on what you’re trying to accomplish.” 

Miner said part of what she disagreed with is the architecture in parts of town needs help. Alderman Justin Thiry said in certain cases it would look worse without the T-shirts. 

“Those locations that you’re talking about are a type of architectural building. Whether they’re in good shape or not, that’s not the debate here tonight,” McMacken said. “People may not like that style and people may not maintenance it, but it is an architecture that’s part of our history, part of who we are.” 

Georgina Neff asked if the council could regulate merchandise the same way as signage. That way only a percentage of the building would be covered in a safe way. 

Thiry agreed something needed to be done and said, “It seems to me like it’s got to be more and more every year. Every summer there’s more stuff out front, more mannequins, more statues, and if we don’t either enforce what we currently have or implement something new, at what point can someone not walk down the sidewalk at all because it’s over-cluttered?”

Walker asked if the city could limit merchandise attached to exterior walls similar to signage regulation. Thiry and Bintliff said the process would have to start all over, and Schade said that was exactly what Custer did. Walker thought the council should look at how signs are calculated to eliminate some of the clutter without penalizing merchants.

Nichols said unless the council wanted to go with what was on the agenda, they could not do anything else at the time. 

After additional discussion, a motion was made, and the council unanimously opposed the amendment. 

The next meeting of the Hill City Common Council is Monday, Sept. 23 at 5:30 p.m. at city hall.