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Zoning Board of Adjustments Minutes - 10/21/2009MINUTES BOARD OF ADJUSTMENT October 21, 2009 PRESENT: Les Seipel, Chairman 0 Members Michael Latham 0 Jose Garcia 0 David Lane 0 Dave Lilley 0 Steve Wood 0 Dustin Nimz 0 Alternate #1 Elvin Dudley 0 Alternate #2 Chad Hughes 0 Alternate #3 Kinley Hegglund, Asst. City Attorney 0 Legal Dept. Bobby Teague, Building and Code Administrator 0 Inspections David A. Clark, Director of Community Development 0 city Staff Marty Odom, Planner 11 0 Leo Bethge, Planner 11 0 Diane Parker 0 I. CALL TO ORDER Chairman Seipel called the meeting to order at 1:30 p.m. Mr. Lilley was present; however he was seated in the audience and did not vote. II. MINUTES Mr. Hughes made a motion to approve the minutes of the July 15, 2009 Board of Adjustment meeting. Mr. Dudley seconded. Th were--ap`prGV8d-wit-li--a--, V unanimous vote in favor. A` 0 < III. REGULAR AGENDA BV -Q,\ I Case V 09-08 Variance to allow a Class I Off-premise sign to remain on a roof atop a BOARD OF ADJUSTMENT • PAGE 1 residential structure and from various setback requirements. 1625 Pearl Avenue Mr. Clark read the following commentary to the members: At the beginning of July, 2009, the applicant, Harris Pink, had a sign painted on a roof of a residential structure located at 1625 Pearl Avenue. The content of the sign advertises "Pink's Surplus — Buy *Sell *Trade *Anything — Auto & Trailer Repair *Welding Shop — 1702 E. Scott — 940 - 264- 7465." The Zoning Ordinance defines Off - Premise Advertising Sign as: "A sign which directs attention to a business product, activity or service which is not conducted, sold, offered, or located on the premise where the sign is located ". Since the sign in question advertises activity which is not conducted on the premise where the sign is located, the sign meets the definition of off - premise advertising and the sign is considered to be a billboard or a Class I Off - Premise Sign as defined by the Zoning Ordinance. Shortly after painting the sign a complaint was received by the Code Enforcement Division about the sign. Subsequently, a ten day notice was sent to the property owner asking for the sign to be removed. After receiving the letter, Mr. Pink came to City Hall complaining that he felt that he was given permission to paint the sign by members of both the Building and Code Administration and the Planning Divisions of the Department of Community Development. Marty Odom and Bobby Teague have both testified via attached Affidavits that they did not give Mr. Pink permission to paint the sign. Staff decided to halt any action pending an investigation into Mr. Pink's allegation and possible remedies from a zoning standpoint. After an evaluation, it was the opinion of Staff that Mr. Pink's claim of a verbal approval had no merit. Regardless, even if Mr. Pink's allegation were shown to be true, this would not relieve Mr. Pink of his obligation to obey the laws of the City. Staff could find no workable accommodation that would allow Mr. Pink to keep his sign. Subsequently, a second ten -day notice was sent to the property owner by Code Enforcement Officer Jason McGuire. Mr. Pink responded to Mr. McGuire's notice with a letter claiming that he was in disagreement with the notice because he felt he had the City's blessing to paint the roof. Mr. Pink also carbon copied the letter to various staff members and various members of the City Council. On September 11, 2009, Mr. Pink met with City staff members Planner Marty Odom, Senior Assistant City Attorney Kinley Hegglund, and Code Enforcement Officer Jason McGuire. At the meeting, it was determined that Mr. Pink's only possible avenue was to pursue multiple variances, and Mr. Pink was warned that the City Attorney's office and City Staff would be strongly opposed to such action. The applicant is seeking a variance from various sections of the Zoning Ordinance. The sign is in violation in the following respects: 1. Class I Off - Premise sign located in a Limited Commercial zoning district (Section 6740 & Table 6741). 2. Class I Off - Premise sign located within a radial distance of 500 feet of another Class I Off - Premise sign (Table 6741 Note 2 (Al)). 3. Class I Off - Premise sign within 1,500 feet of another Class I Off - Premise sign (Table 6741 Note 2 (A2)). BOARD OF ADJUSTMENT • PAGE 2 4. Class I Off - Premise sign within 200 feet of a residential use and residential zoning boundary (Table 6741 Note 2 (B)). 5. Class I Off - Premise Sign within 25 feet of right -of -way (Table 6741 Note 2 (C))• Mr. Clark provided the members with the original affidavits from Marty Odom and Bobby Teague. Copies of these affidavits are attached to these minutes. QUALIFYING CRITERIA a. That special conditions or circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or building in the same district. Applicant's statement: "There should not be any special circumstances due to the fact I OK'd this with the City before painting sign." Staff response: Rather than focusing on the legal qualifying criteria, Mr. Pink disregards the question entirely. He cites no special conditions or circumstances peculiar to the land, structure, or building. Instead of addressing this issue, Mr. Pink's basic claim is that he feels that he was told by the City that he could paint the sign and not be in violation of any City codes. Whether this is true or not, this issue does not meet the qualifying criteria in that it is not a condition or circumstance peculiar to the land, structure, or building. Although Mr. Pink seems sincere in his claim, it is Staff's position that Mr. Pink was vague and generic when asking about placing his sign. Building and Code Administrator Bobby Teague testifies that he had a brief conversation with Mr. Pink and that the question was: "is a permit required to put a sign on a building ?" Mr. Teague's answer to the question was "no, as long as the sign does not protrude beyond the face of the wall more than 12 inches." Mr. Teague gave the correct answer to a general question. Mr. Teague did not tell Mr. Pink that a painted sign would comply with City code. A painted sign on a wall is considered to be a wall sign. Wall signs, along with various other types of signs, do not require permitting. However, all signs must meet setback, area, and height restrictions. Staff feels it important to point out some inconsistencies in Mr. Pink's communication with City staff. In the letter to Jason McGuire Mr. Pink stated: "In June, 1 came to the inspection department to discuss painting a roof on this property. At this time 1 was told I needed no permit and nothing in code if /just painted the roof. After meeting with them I went and met with Marty in P &Z. 1 received the same response from him." Mr. Pink does not specify who he spoke with in Inspections. He also implies that after meeting with the Inspections Department, he alone went to Planning to speak with Marty Odom. However, in the meeting on September 11, 2009, with Mr. Odom, Mr. Hegglund, and Mr. McGuire, Mr. Pink stated that he along with Mr. Teague went to Mr. Odom's office and all reviewed an artist's rendering of his proposal. Both Mr. Odom and Mr. Teague deny that such a meeting took place. They also contend that the first time ever having seen such a rendering was when Mr. Pink submitted one BOARD OF ADJUSTMENT • PAGE 3 along with his variance application. On Mr. Pink's variance application under Evaluating Criteria (b), he wrote: "Sign was installed per the ok of Marty Odom." Here Mr. Pink leaves out significant information from previous claims to Staff. b. That the special conditions and circumstances do not result from the actions of the applicant. Applicant's statement: "Sign was installed per the ok of Marty Odom." Staff response: Mr. Pink did not answer the previous qualifying criteria question and did not identify a special condition and circumstance particular to the land, structure, or building. As such, he is unable to address this second qualifying criteria. Regardless, Staff does not verbally approve off - premise signs. A permit application must first be submitted along with a site plan review and there must be a subsequent site check. Off - premise signs along State rights -of -way must also be approved by the State. Mr. Odom has consistently denied any conversation with Mr. Pink concerning an off - premise sign ever took place. Mr. Odom also contends that due to a historical event concerning Mr. Pink, any conversation concerning a sign would have raised a flag in his mind to obtain specific details. Several years ago when Mr. Pink worked for Marant Roofing, Mr. Pink was involved in the placement of large letters spelling the words Warant Roofing" on a wooden fence at this same location. Mr. Pink was notified that the sign was a violation and the sign was subsequently removed. This event appears to contradict a statement made by Mr. Pink in his letter to Jason McGuire. Mr. Pink wrote: "If you check my previous history I have never started a project without a permit or received permission to do a project. 1 have never performed any work without discussing the issue with the city first." C. That literal interpretation of the provisions of this Ordinance would deprive the applicant of a right commonly enjoyed by other properties in the same district under the terms of this Ordinance. Applicant's statement: "There are numerous buildings and fences painted throughout the city. " Staff Response: To be a significant statement, the applicant must show the painted buildings and fences are illegal off - premise signs. No such evidence has been presented to the Board of Adjustments that verifies Mr. Pink's statement. He has failed to identify any such properties that enjoy similar rights nor has he provided photographs of such painted fences and buildings. d. That the granting of the variance would otherwise be in harmony with the objectives of this Ordinance and would not confer upon the applicant any special privilege that is denied by this Ordinance to other lands, structures, or buildings in the same district. Applicant's statement: "This property will be used for a second location; therefore the [requirements for] off - premise [signs] would not apply." BOARD OF ADJUSTMENT • PAGE 4 Staff response: Staff cannot make enforcement decisions based on what events may happen in the future to possibly remedy a violation. Retail sales within a Limited Commercial zone require approval of the Planning and Zoning Commission. The Commission has not been presented with any such application and the Commission has not voted on such an issue in the past. There is no guarantee that such a use will be approved or that such a proposal will meet site plan requirements. It is apparent based on the above statement by Mr. Pink that he feels the off - premise sign regulations should not apply in this case. If this is his current mindset, then there is reason to believe that this was his mindset when he first communicated to Staff, thus giving credence to the theory that Mr. Pink did not make it clear to Staff that his proposed sign was going to be off - premise. Conclusion: Historically, Texas courts have upheld Board of Adjustment decisions granting variances, when the hardship claims were due to erroneous permits issued by cities, when certain criteria were met. First, it must be shown that the City issued an erroneous permit that caused a hardship. Second, it must be shown that the granting of the variance would not be contrary to the public interest. Staff feels that this request does not meet either of these criteria. Mr. Pink did not apply for and was not issued a permit for an off - premise sign. The granting of a variance for the sign would most certainly be contrary to the public interest by adding to the visual clutter that the off - premise sign regulations were created to prevent. It is Staff's opinion that the applicant's request does not qualify for a variance. Moreover, the applicants have received benefit from the length of time that the sign has been placed and a claim of financial loss from having to remove the sign is not justified. Additionally, this violation is easily remedied. All the applicant must do to come into compliance with the law is to paint his roof. EVALUATION CRITERIA In evaluating a variance request once it has been determined by the Board that the request qualifies to be heard by the board, Section 7340 of the Zoning Ordinance requires that the below criteria be used. Each criteria is immediately followed by staffs evaluation. (The following evaluation criteria is evaluated by staff) a. The granting of the variance will not be contrary to the public interest. The granting of the variance would be contrary to the public interest. b. Special conditions exist, other than financial hardship alone, whereby a literal enforcement of the terms of the Ordinance will result in unnecessary hardship to the owner of the land. No special condition exists. The only hardship that exists is financial in nature (Mr. Pink must pay to paint over the roof sign). BOARD OF ADJUSTMENT • PAGE 5 C. The variance will not permit an activity upon the land, which is not allowed by the terms of the Zoning Ordinance. The granting of the variance would permit an activity that is not allowed within the zoning district. Off - premise signs are prohibited within the Limited Commercial zoning district d. The granting of the variance: Is consistent with the intent of this Ordinance; The granting of a variance in this case would not be consistent with the intent of the Ordinance. Is in harmony therewith; The granting of the requested variance would not be in harmony with the Ordinance. Will not be injurious to the neighborhood; This proposal would be injurious to the neighborhood. Or detrimental to the public welfare. The granting of a variance would be detrimental to the public welfare. Chairman Seipel asked if this sign was in violation with any State codes. Mr. Clark responded that State approval is required. Chairman Seipel stated that every applicant that has previously approached this Board has presented their need for a variance quite clearly. He further commented that in this case the qualifying questions were not answered. Chairman Seipel made a motion that the applicant's request does not meet the Qualifying Criteria and the Board cannot approve this variance based on the lack of hardship provided. Mr. Lane seconded. The vote was seven (8) in favor and none (0) opposed. The variance request is denied based on lack of information provided by the applicant. IV. Adjourn The meeting adjourned at 1:45 p.m. e-4 Les 8eipel, rMirman BOARD OF ADJUSTMENT • PAGE 6 / / -/ 8- a9 Date AFFIDAVIT OF MARTY ODOM STATE OF TEXAS § COUNTY OF WICHITA § BEFORE ME, the undersigned authority, personally appeared Marty Odom, who being by me duly sworn, deposed as follows: My name is Marty Odom. I am over the age of eighteen years, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are true, and based on my personal knowledge. I have worked for the City of Wichita Falls since 1981, and have been a City Planner since 1993. 1 have held my current position as Planner If for approximately six years. I have worked with the City's sign ordinance for over 10 years, and I am very familiar with City sign regulations. I first became aware of the sign painted on a roof at 1625 Pearl Avenue on July 10, 2009. Code Enforcement Officer Jason McGuire emailed me two photographs of an off - premise sign painted on a roof at 1625 Pearl Avenue. It was instantly apparent to me that the sign was in violation of numerous City ordinances. Jason asked me if I thought the sign was illegal. My response to Jason via email was: "Off- premise advertising in LC is prohibited. 1! is also within 200' of a residential use. [There] may be other violations as well and probably violates TxDOT rules for off - premise ,signs on State roads." Officer McGuire sent an abatement letter telling the property owner to remove the roof sign. Mr. Harris Pink, the lessee of 1625 Pearl Avenue, painted a sign on the roof of the building at that location. Mr. Pink alleged that prior to placing the sign, he talked to Bobby Teague about the sign. He further alleges that he and Mr. Teague then walked to my ofirice, where discussion of the sign continued. Although Mr. Teague did speak with Mr. Pink about this issue, they did not walk to my office, and we did not discuss the roof sign prior to the placement of the sign. I maintain that I did not have such discussions with Mr. Pink, and should he have presented this project to me, it would have been clearly evident to me the sign was an illegal off - premise sign. I never would have given permission for Mr. Pink to proceed with the placement of the sign in its current location and configuration. Marty Odom SWORN TO AND SUBSCRIBED BEFORE ME on this day of October, 2009. RAMONA COIN `ionry Public, State of Tess : My Csmm sssoc Expires ,' vovernbet 12, 2011 Notar, ublic, State of Texas AFFIDAVIT OF BOBBY TEAGUE STATE OF TEXAS § COUNTY OF WICHITA § BEFORE ME, the undersigned authority, personally appeared Bobby Teague, who being by me duly sworn, deposed as follows: My name is Bobby Teague. I am over the age of eighteen years, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are true, and based on my personal knowledge. I am the Building and Code Administrator for the City of Wichita Falls. I have held that position for 7 years. Several months ago, Mr. Harris Pink was in our office talking with some of our inspectors. At some point during this conversation, Mr. Pink stuck his head in my office and asked if a permit would be required to put a sign on a building. I told him that no permit was required as long as the sign did not stick out from the building more that 12 inches. I do not recall seeing or hearing anything dealing with a painted sign or the location of the sign. [ do not recall walking Mr. Pink to Mr. Odom's office. We did not discuss the sign issue further with Mr. Odom.. I did not tell Mr. Pink that a painted sign would comply with City Code. Bobby Teague SWORN TO AND SUBSCRIBED BEFORE ME on this — 7 day of October, 2009. 8 �A- &J�t Notary ublic, State of Texas