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HomeMy WebLinkAbout2004-10-04 MinutesMINUTES OF A MEETING OF THE BOARD OF SIGN APPEALS A regular meeting of the Board of Sign Appeals was held Monday, October 4, 2004 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. Items Discussed Action Taken BSA 04-1138 (NWA MALL PARKING LOTS, 134) Approved Page 2 Members Present Members Absent Michael Green Michael Andrews Robert Kohler Joanne Olszewski James Kunzelmann Bob Nickle Sherree Alt Staff Present Staff Absent Dawn Warrick Renee Thomas Suzanne Morgan David Whitaker Board of Sign Appeals October 4, 2004 Page 2 Green: Approval of the minutes on this will also be postponed until such time as those are circulated? Warrick: Yes sir, we expect to have them for you before your next meeting. BSA 04-1242 (NWA MALL SIGNS, 134): Submitted by JEFF BISHOP for property located at 4201 N SHILOH DRIVE, THE NWA MALL PARKING LOTS. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 100.00 acres. The request is to approve the placement of 30 freestanding signs identifying parking areas. Green: I will convene the Board of Sign Appeals. Approval of the minutes on this will also be postponed until such time as those are circulated. Warrick: Yes Sir, we expect to have those for you at your next meeting. Green: Under new business, we have an appeal submitted by the Northwest Arkansas Mall and the request is for 30 freestanding signs identifying parking areas in the mall. Suzanne, are you taking that one? Morgan: Yes Sir. The subject property is, as evident, located north of Joyce Boulevard and west of College Avenue and developed as the Northwest Arkansas Mall. The applicant proposes to display 30 freestanding signs at specific locations as identified in the attachment in the staff report within the different parking fields on this property. The item was heard at the August 2, 2004 meeting of the Board of Sign Appeals, at which time the Board voted 7-0 to table this item, it was heard again at the September 7 Board of Sign Appeals meeting. At that time the applicant provided new additional information regarding sponsorship for the proposed 60 signs. The Board of Sign Appeals voted 5-1 to deny the request for the 60 freestanding signs. After which, the applicant did submit a signed permit application for 30 freestanding signs at this location. Staff did deny this sign permit and the applicant did request an appeal to be heard. Staff finds that the proposed signs would be in addition to the existing signs currently located at this site. There are five freestanding signs, monument signs, at this location, one being permitted. The applicant did receive permission from the board for the additional signs. Staff finds that all property within the C-2 zoning districts are permitted one freestanding sign, that the property developed as the Northwest Arkansas Mall with a large expansive parking is not unique within the City of Fayetteville where many commercial properties have large parking areas. Approval of 30 additional freestanding signs is therefore, not in keeping with the spirit intent of the sign regulation. Staff finds that strict enforcement of the sign regulations would not permit the proposed freestanding signs and that the enforcement of Chapter 174 prohibiting the additional 30 signs would not cause practical difficulties or undo hardship to circumstances unique to the Board of Sign Appeals October 4, 2004 Page 3 individual site. Staff feels that it is unreasonable to assume that the only means of informing patrons in which parking lot their vehicle is located is to erect the requested 30 22 sq.ft. freestanding signs within the parking area. Therefore, staff does recommend denial of the request. Green: Okay. Would the applicant like to address the board? Bishop: Yes, I'm Jeff Bishop. I guess what I'd like to clarify, on Friday we received our package from the City staff probably along with ya'11 and included in that was departmental correspondents from the Assistant City Attorney stating that perhaps there's some confusion on my part about what we were actually doing, whether we were requesting a variance or whether we were appealing the denial for a permit. I have to admit; at this point there might be some confusion because we basically have followed the same format that we have in the past using documents sent to us by city staff. And when I look at that particular document, it's assigned variance, within that variance form, if you will, it lists several items that need to be included in the variance request. Four of those are to be typed letters sent to the chair of the Board of Sign Appeal; I guess I'm not really clear exactly what defines the difference between appeals and request for a variance. Whitaker: Specifically, it's a procedural matter. The denial of a permit allows the right to appeal if the applicant feels that a decision or interpretation of the language of the ordinance was misinterpreted by the Zoning and Development Administrator and that you have a difference of opinion as to what the law says. A request for a variance is usually brought as an original action where one comes in and says, "I would like a variance for this," and then sets forth step by step under the variance portion of our code those factors you feel demonstrate your entitlement to a variance under the provisions of the code. In this situation, on each occasion, a permit application was submitted and denied. A letter of denial was sent to you and outlined your ability to file an appeal on page 1.12 of your packet, there is a Planning Division correspondence informing the applicant that the permit had been denied, and I'll direct your attention to the second paragraph. An appeal maybe filed with the Board of Sign Appeal if you're aggrieved by an interpretation or decision regarding this matter. So procedurally, you're before the board appealing the interpretation of the decision. That does not preclude you from filing a variance request. They are simply two different animals. Bishop: I guess then we would ask which two, it sounds as if we should be pursuing an appeal. Again, I go back to the fact that we have been before this board in the past, and each and every time we have filed for a sign permit and been denied, we have filed for a variance following the same guidelines that we followed in this particular case. This has never been an Board of Sign Appeals October 4, 2004 Page 4 issue to this point. So we are confused about why it was procedurally correct in the past and now it is not. Whitaker: Up until this point, I had never been asked specifically for a clarification of the process, and I thought it was because the repeated series of not just you, but others, who have been confused by this concept, I felt it necessary to clarify it. I don't think, it's not what we would call outcome determinative for you. I don't think it destroys your right to request a variance. It's simply, you came before us on an appeal. I provided this board with what legal advice I could as far as the appeal process is concerned. I then went on, because of the confusion that seems to revolve around this committee's duties to clarify what advice they would need if they were to consider it as a variance request. Green: Now let me make sure I understand this. Last time they were before us requesting 60 of these signs before. It was understood by me at least, and I think everyone else, that we had to treat that as an appeal and either confirm or deny the appeal, and not try to put our special conditions as if we were a Board of Adjustment of signs and that's the way I understood that at that time. Kohler: And then we tabled it, didn't we table it? Green: No, we actually denied it so that they had to go back through the process and change it, and see if they wanted to. And as I understand that, they have done that. Whitaker: They submitted a new application for a sign permit which was denied. Kohler: That's why the variances are allowed, because it's a new condition. Nickle: They didn't apply for a variance, they just applied for a permit, which was denied. Whitaker: Yes, exactly. And my interpretation is that they are, procedurally, two different things. I was just trying to point that out. Green: So we have before us an appeal to the rejection of their permit. Is that correct? Whitaker: Procedurally, that is what is before you. Green: Okay, so it looks to me like we have the obligation now to either affirm or deny their appeal? Is that correct? Without necessarily trying to redesign it for them and putting the special conditions on it. Board of Sign Appeals October 4, 2004 Page 5 Whitaker: Exactly. I will, however, say, though, that because of the history of confusion that has surrounded this, I'm not the one that's going to determine whether you feel a good faith variance request is before you. Because the Unified Development Code does provide some instances where variances may be granted. It is extremely limited. Mostly notable by the section that I quoted in my memo which doesn't allow variances at all for prohibited signs, which would only become an issue if a determination is made that these also constituted offsite signs. Because off sites and there's a whole list in the code, a menu if you would, of specific signs that are just prohibited, and then the provision of the code that says you may not grant a variance for any prohibited sign. Green: So now then, I hate to keep beating this to death, but it seems like it's kind of a critical issue for us to understand exactly what we're trying to do here. Now the staff has recommended denial of this request but also there was a little caveat there that should the Board of Sign Appeals approve the request, then there are three conditions of approval, which to me looks like a variance, it looks like the staff is treating that as a variance. Warrick: If I might. We did treat that more as a variance because that was the nature at which it was really discussed at the last meeting. And it seems as though that's really the intent of the request of the applicants. And certainly Mr. Bishop can speak for himself but I believe that they understand what the ordinance requirements are and that really the basic question here is whether or not your amenable to, as a Board, granting more than the number of freestanding signs that are prohibited and the nature of that type of request really is a variance. Procedurally, we've gotten kind of mixed up as to getting this item before you and back before you, and I think that really it might be appropriate for Mr. Bishop to state whether or not he wishes this item to be heard as an appeal of the denial of the permit or as a variance of the ordinance requirements, and then that would give you the ability to proceed in whichever one of those manners is chosen. Green: Would you happen to have a preference of opinion there? Bishop: Confusion reigns. We have submitted the variance request, I think we have satisfied the requirements of that request. Again, in the departmental correspondence there was some mention that perhaps we hadn't satisfied that requirement, which if you go by the bullet points if you will on the variance request form, I think we've covered that to the best of our ability. Now as to which one is more advantageous for us here today, to clear through the situation we find ourselves in, I honestly don't know. Perhaps someone else here does know which one would be the best route. Kohler: Can this Board act in either situation? Equivalently? Board of Sign Appeals October 4, 2004 Page 6 Whitaker: I'm not certain there's a question. Kohler: If it is either an appeal or a variance request, are we able to confirm or approve or deny either one? Whitaker: In an appeal, you would have a much narrower set of facts to look at because you're basically looking at this staff report that Planning has put together, and you would be examining their findings and if you felt they supported denial of the permit, you would then deny the appeal. If you felt they fell short of it, in that there was something being interpreted in the sign ordinance improperly, you could grant the appeal. So an appeal would have a very narrow focus. If you were to take it as a variance request, then you get into the many factors that variances require. And variance is probably a very poor choice of words that the drafters of the code used when dealing with the sign ordinance because in as much as you're also the Board of Adjustments, it brings up certain automatic assumptions in your mind. It's simply not the same sort of thing that you would find in a bulk and area variance. I have very little doubt that you could probably have a scheme where the duties of this board on a limited basis could have been transferred to the Board of Adjustments for the idea of sign variances which had to do with "if I obey the setbacks am I going to be able to see my sign?" "There's a sloped hill there, I can't come back that far, and if it's only x number of feet tall, what's the point of even having it?" That's the sort of variance that I think would be a true variance. Unfortunately, here, you're basically looking at something where they're asking for various portions of the law to be almost waived. We know that's what the law says. And I have real difficulties with that. Olszewski: Didn't we, we granted a variance before? Isn't that what we did before? The specific law says one freestanding sign, and we looked at that and said that was a good idea, but in this situation, the way the Mall has grown, and the area around it, we should entertain around it, that we should entertain a motion that would give them five freestanding signs. The one big one and then four monument signs. At that point in time, I remember to be specifically asking, is there anything else you want for the directional, because you should ask for everything. And so we gave a variance at that time based on it being so large and so unique that we would give five signs instead of one. That was a variance. Whitaker: If I remember correctly, too, you almost made a finding that these were more in the nature of directional signs than advertisements. Nickle: We did, we said directional and safety were the things being considered. Kohler: We actually added to their request. Board of Sign Appeals October 4, 2004 Page 7 Olszewski: They came back and they brought more in. I'm just trying to sort this out in my mind. That was where we were able to say something that was similar to the Board of Adjustments that the sign ordinance didn't address that specific need, and therefore we granted them a variance. But the appeal thing's different, I get that now. Church: My name is Alice Church and I guess I just had a comment. I know we talked about this at the last meeting. The main reason for coming back, I mean this again is all about our customer. We have had numerous requests from people who can't find their cars in the parking lots. And I mean, businesses, their needs change all the time. So I think it's unfair to say, and you know I said, this is what we need right now, but we have had our business needs change. One comment I did want to make too, this addresses the three conditions that are in there. These are not offsite signs, the reason being all of these people that we are using on the signs are tenants of Northwest Arkansas Mall. Arkansas Democrat Gazette pays us monthly rent. We're all about leasing space, and the Democrat Gazette is a tenant. Clear Channel pays us rent, the Race for the Cure, I think we charge them a dollar a year. They maintain an office at the mall because they do the Race for the Cure. They are tenants, so these are not offsite signs. I have the leases here if anyone doesn't believe me, but that does away with the condition that addresses offsite signs because they are our tenants, and yes, it's due to our business needs changing, wanting to identify our parking fields. Olszewski: So that would mean that it's an onsite sign? Church: Yes. Olszewski: Which means that the code says we can only allow them one. So we'd have to have a variance over that. Whitaker: And the standard for that sort of variance is that, "Strict enforcement of the sign regulations would cause practical difficulties due to circumstances unique to the individual sign under consideration." And that is at § 156.05. Kohler: I think I have a comment about that specifically. These are considered by the Planning staff as freestanding signs is their definition. But really, in reality, they're going on existing light poles. So as a practical matter, they're not additional objects in the parking lot, over and above what's already there. They're just attached to existing light poles. So in that sense to me, even though you have to define it as a freestanding sign, it doesn't have the same impact as an additional object in the parking lot. And so I would, it's much more favorable to me, particularly because there's only 30 of them instead of 60, that we would consider that. Now Board of Sign Appeals October 4, 2004 Page 8 the other question I have is, are they going to have, they have your tenant's names on them, but do they have Parking Row names on them. We are talking about people parking, having problems identifying where they park. These aren't going to address that are they? Church: It will just show what lot they're parking in. At least they'll get to the same lot. Kohler: So it's like, I parked near the Spencer's Gifts sign, or I mean is that how that works? Church: If you think we should designate the rows, I mean it's hard to do unless you have one on every row. Bishop: It's also not laid out in a symmetrical fashion. Kohler: Yeah, I remember when you had 60, it was more every row might have some rowing indicator on it, since you cut that back, now that it's just strictly, it's not for, it's not necessarily specifically for marking the rows, as much as it is for advertising your clients. Bishop: Well, it was always to mark the parking field itself. Nickle: Can you not make these a different color? Like, I don't know if I can read Democrat Gazette or any of those other things, but I can say, "I'm on the red lot," or "I'm on the green lot," or something like that. Church: Yeah, that's a great idea. Nickle: Or put a number on them. You're in Lot 1, or Lot 3, something like that where you just look up and see something real quickly and it's a one or a color. A number or color to me is much easier for the average person. I don't go out there very often. If you depended on me, you'd be out of luck. That mall wouldn't exist. That said, I don't think we should get into Chapter 174, that's just going to be for staff to interpret that, I would say. Olszewski: But they're still advertising signs. I mean, to me, that is different. If they were different colors and said Lot this or Lot that, that's still when you're thinking variance, that's different. These are advertising. Nickle: Well, I'm just saying, we can't, you know, Chapter 174 says we can't grant a variance for that. So I think that's up to staff to interpret. Whitaker: If it were determined to be an offsite sign, that was among the list of prohibited signs. Board of Sign Appeals October 4, 2004 Page 9 Olszewski: What exactly is an offsite sign? Whitaker: A sign which directs its attention to -it's in section 151 "Definitions." Actually it's 151.01. Olszewski: Because I was getting very confused. Green: It's 1.8 in your packet. Whitaker: Section 151 describes an offsite sign as, "A sign which directs attention to a business, commodity, service, entertainment, or attraction, sold, offered, or existing elsewhere than upon the same lot where such sign is displayed. The term offsite sign shall include an outdoor advertising sign (billboard) on which space is leased or rented by the owner thereof for the purpose of conveying a commercial or a non-commercial message." Church: I just want to state too, for the record, that our purpose is only to cover the cost of the signs. We're not trying to make money off of it. When we got a bid for the sponsors for the 60 signs, it was going to be $30,000, and those signs have to be changed out every two years in order to look good, so we are just trying to cover our costs and have a program that helps us maintain the signs where they look good on the property. So we are not, you know, granted they're going to get press, it's like we mentioned before, it's just like on the signs on Dickson Street, which I realize that is public and not private property, I noticed that we recently passed an ordinance to allow that, but I think that we're just trying to cover our costs, is the only purpose for that. Kohler: So the benefit there is strictly just advertising for your tenants. Church: It's for our customers to know, the benefit is for them to know where their cars are parked. We have people that turn in police reports because they think their cars have been stolen. And they haven't, they've just lost them in our large parking field. Kohler: But that's not a part of your request then, right? Is to identify certain parking areas? Nickle: I thought that was the whole part. Kohler: It is. I mean they're not talking about color or numbers, or letters or anything, you're just talking about... Church: We don't have any colors on the banners whatsoever, it's... Board of Sign Appeals October 4, 2004 Page 10 Kohler: So the only way that someone is going to identify where their parked car was parked is by identifying the tenant that's on the sign. Church: We are identifying five lots, and each lot would have a different name. Green: What they are doing is that they are saying, okay the Democrat Gazette lot is one lot, and the Race for the Cure area is another parking area. I, for one, feel like this particular request is based on enough uniqueness of this property. I mean it's very difficult to find cars out there just because of its unique size. There's nothing else that's close to the scale of this, and if this is one way that they chose from a business standpoint to do that, I don't see that it's any worse than putting a color, for someone that may be color blind, I don't know if you'd be able to handle all those other things in any other situations. Olszewski: Well you could do a blue one that said Lot Blue. Green: I'm sure you could. But, listen, we've made these people come back here three times now for the same issue. Now how many times are we going to keep running them around? Olszewski: I disagree with you. Green: Last time we told them, basically we said 60 signs are too much, but we think 30 would be okay. I mean that's what they got from this committee last time. And so now then, I think there's got to be some reasonableness brought into this thing as to what we're trying to do. I mean I think we've beat the horse enough, I think we ought to either let it out of the barn or take a different path, but to me I think this is a very valid request at this point, and I know that everything else they've done out there is done in good taste. It's going to be, the intent of what our sign ordinance is about is going to be in good taste, and it's going to look attractive and it'll be something that I think we'll all be proud of. Those are my thoughts on this thing, I'll be certainly willing to hear other viewpoints too. Olszewski: I have to disagree with that. This applicant has been here three times. The first time the applicant came, they were looking to see what could happen, they did not have a specific thing. We asked specific questions, and they were just starting to go through that process. I would agree that it's been very confusing for all of us regarding the difference between the appeal and the variance and I will take ownership of that. But I think that this has been something that has not just been us pushing the applicant around. The applicant was unsure at the beginning, and as you mentioned in that first time, it's an expensive process, so there was probably a justification to that. But that, I don't believe we are the only part here that's caused this to be drawn out. Board of Sign Appeals October 4, 2004 Page 11 Green: I didn't intend to reprimand the Committee members or anything like that as far as my comments were concerned. I didn't want to construe that as us being the only problem. It's just that there's got to be a course of action that we need to take that's reasonable and fair too. Olszewski: And I agree with that, but I also know that after going to that meeting that we went to that economics is not supposed to be the deciding factor, and so it does look to me like advertising, and not just for the intent of finding the parking lot, which I think is the first question here. There might be other ways to do that. So that makes me somewhat uncomfortable. Kunzelmann: Mr. Chair, I keep coming back to page 1.4, on the unique circumstances, the staff's finding, "It is unreasonable to assume that the only means of informing patrons on which parking lot their vehicle is located is to erect 30 22 sq.ft. freestanding signs within the parking area. From the beginning I've advocated another solution. One idea that was thrown out by Mr. Andrews was painting something on the ground, changing the color of stripes, having a number, something on the ground so that visually the building and the areas are colored. Church: We have struggled with this for a long, long time. Our company owns about 60 malls in the U.S. and all of you have traveled around and seen different ways of marking a lot. We haven't done it just because we wanted to do it in a way that was very attractive. I mean, we didn't want to just throw something out there and make our property unattractive. That's why we've come up with this. Unless we can get sponsors, we probably won't be able to do it because it is so costly. So that is our reason for doing that. But the hardship really is that we feel like we need to do this for our customers. We've continued to try to make our property better just in light of what's going on north of us. We're trying to continually be the best we can be so that we keep shoppers coming to our mall and that benefits Fayetteville. Believe me, we've struggled with it for a long time. I understand where you're coming from that there may be other ways, but we feel like this is the best way to do it. Green: Any other comments? Kohler: Can I make a motion? I move that we approve the appeal for staffs denial. Whitaker: Okay, what is it you want to do? Kohler: I want to, is this a sign appeal or is this a variance? I'm assuming it's an appeal. Board of Sign Appeals October 4, 2004 Page 12 Whitaker: Well, procedurally that's the way I would have seen it too. But in light of the fact that Planning staff has also given conditions of approval as if it were a variance, then I think this board is at liberty to handle it as they would. So your motion can be protected. Kohler: I'm not sure I shouldn't change that now. I mean, if it's written in the format of a variance, maybe we should for continuity's sake, consider it a variance. So if that's the case, then I would move to accept the applicant's request of their sign variance, not with these requirements because the staff denied them. Nickle: Well, but that's, I think, if I interpreted you correctly, that's the reason... Whitaker: I guess this is a bedrock thing. Green: If we consider it an appeal there would be a motion to grant the appeal. Nickle: With these conditions. Olszewski: No, without conditions. Green: If it's for a variance, your motion would be to approve the variance with certain requirements. Nickle: I think we said we could consider it, because of the conditions. Whitaker: I feel like it's within your discretion to determine how this has come to you. If you feel that justice is better served by treating it as a variance request, you are free to do that as well. Olszewski: If you did do it as a variance, then you would do it with staff's recommendations that staff put in here, even though they denied it. And one of those is that staff would then determine whether the proposed... So it's still going to be up to staff to decide that? Warrick: That is more of a caveat. That's a note to indicate that it is staff's responsibility to determine what constitutes an onsite or offsite sign. Kohler: Clearly these are onsite signs. Warrick: The information that Ms. Church provided this evening is new information to us. That's why, because we did not understand that, we did not know whether or not we would be able to consider these onsite signs. Nickle: So if you consider this, and then there is a disagreement and they deny it based on some interpretation, that's when they'd come back and say Board of Sign Appeals October 4, 2004 Page 13 "Alright we want to have an appeal." If we consider this as a variance request now. Whitaker: And you made that a condition. If there's a staff determination that they don't agree with, then they can appeal that staff determination. Olszewski: Which means that they could then come back again and continue this. And then I would have to be agreeing with Mike. Olszewski: Because we have now, which is exactly what my concern is. We have two things, we have an appeal which is now being treated somewhat like a variance, so we get to decide what it is. That is confusing, I apologize for that. MOTION: So I move that the Board of Sign Appeal approve the applicant's request with the listed staff recommendation in the process of the staff reviewing the sign permit application, that they determine that it is an onsite sign as opposed to offsite sign. Nickle: Well if you just say, with these recommendations, we let them interpret that. Kohler: Well I don't want to see them come back because they're determined to be an offsite sign. Nickle: Welt, if they determine that. Kohler: The information that we have is that they're onsite. Green: If they're onsite, then it should be very easy to determine that. I don't think that's a very gray area. That should be very easy to handle administratively. Whitaker: As an aside, I assure you all that there are very serious efforts ongoing to resolve these procedural problems with how this board works. One of the things that has happened is that over the years, various Boards of Directors/City Councils over time have sort of patch worked and piece- mealed and there is confusion because specifically if you look at Board of Sign Appeal, one would think, naturally, that it is a place that you would go to appeal. As a matter of fact, the ordinance even says, "If the Zoning and Development Administrator denies your permit, you can appeal." But then you jump back over to Chapter 156, and there's this whole long thing about how to request a variance from the Sign Ordinance. Hence, the confusion, and I assure you there is a consorted effort, ongoing, by staff to Board of Sign Appeals October 4, 2004 Page 14 resolve these problems. Not only for your edification, but so that applicants don't end up on this tread mill. Green: Is there a second? Nickle: Second. Green: Okay now, let me make sure I understand your motion by trying to repeat it. It has been moved and seconded that we grant the variance request by the applicant based on the three conditions of staff. Is that the way everyone understands that. Is there any further discussion? Shall the request pass? Roll Call: Upon the completion of roll call, the motion to approve the variance request was approved by a vote of 4-2-0 with Mr. Kunzelmann and Ms. Olszewski voting no. Green: Okay, the variance/sign variance request passed. Is there any other new business that should come before this Board of Sign Appeals and Variances? Is there any further business? We're adjourned.