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HomeMy WebLinkAbout10/11/2018 - Zoning Board Of Appeals - Summary Agenda - Regular MeetingHeidi Shuff, Chair Ralph Shields, Vice Chair Daphne Bear Bob Long Cody Snowdon Butch Stockover Karen Szelei-Jackson Council Liaison: Ken Summers Staff Liaison: Noah Beals LOCATION: City Council Chambers 300 LaPorte Avenue Fort Collins, CO 80521 The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224-6001) for assistance. REGULAR MEETING OCTOBER 11, 2018 8:30 AM • CALL TO ORDER and ROLL CALL • APPROVAL OF MINUTES FROM PREVIOUS MEETING • CITIZEN PARTICIPATION (Items Not on the Agenda) • APPEALS FOR VARIANCE TO THE LAND USE CODE 1. APPEAL ZBA180035 Address: 505 S. Taft Hill Road Owner: Hi-Vue LLC Petitioner: Jim Moran Zoning District: L-M-N Code Section: 3.8.7.1(G)(1) Project Description: This variance request is for a proposed ground sign with a height of 13.5 feet. The maximum sign height allowed is 8.5 feet. 2. APPEAL ZBA180036 Address: 1843 Michael Lane Owner/Petitioner: Michael Millsapps Zoning District: U-E Code Section: 4.2(D)(2)(d) Project Description: This variance request is for a proposed attached garage that would encroach 3 feet into the 20 feet required side-yard setback. ZONING BOARD OF APPEALS AGENDA Zoning Board of Appeals Page 2 October 12, 2018 3. APPEAL ZBA180037 Address: 1205 W. Mountain Avenue Owner/Petitioner: Edward and Michele Smithwick Zoning District: N-C-L Code Section: 4.7(E)(3) Project Description: This variance request is for a proposed detached garage to encroach 10 feet into the required 15 feet rear-yard setback. 4. APPEAL ZBA180038 Address: 305 N. Shields Street Owner/Petitioner: Mark Neubauer Zoning District: N-C-M Code Section: 4.8(D)(2)(a)2., 4.8(E)(4), 4.8(F)(2)(a)1., 4.8(F)(5), 3.8.19(A)(6) Project Description: The variance request is for a 2-story addition that will connect the primary building to the existing garage. The request requires the following four variances (1) The allowable floor area for the property is 3,575 sf; the proposed addition exceeds the allowable floor area by 468.17 sf. (2) The allowed height of the building is 25.33 feet; the proposed addition exceeds the allowed height by 1.82 feet (3) Any new off-street parking shall take access from an alley; the proposed addition includes a new garage accessing from the street (4) The required side-yard setback is 5 feet; the proposed addition encroaches 1.5 feet, matching the setback of the existing building on the lower portion and the upper portion is setback 6ft and is 19.5 feet tall, the required a maximum height is 18 feet with a 9 feet setback. Additionally, the eaves encroach further than permitted. 5. APPEAL ZBA180039 Address: 320 Willow Street Owner/Petitioner: Lance Debar Zoning District: R-D-R Code Section: 3.5.2.E(3) Project Description: An existing accessory building is being torn down in order to construct a new building on the adjoining property. The variance request is to rebuild the accessory building in its current location encroaching 4 feet into the required 5 feet side-yard setback and 7 feet into the required 8 feet rear-yard setback. • OTHER BUSINESS • ADJOURNMENT Heidi Shuff, Chair Ralph Shields, Vice Chair Daphne Bear Bob Long Cody Snowdon Butch Stockover Karen Szelei-Jackson Council Liaison: Ken Summers Staff Liaison: Noah Beals LOCATION: City Council Chambers 300 LaPorte Avenue Fort Collins, CO 80521 The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224-6001) for assistance. REGULAR MEETING SEPTEMBER 13, 2018 8:30 AM • CALL TO ORDER and ROLL CALL • APPROVAL OF MINUTES FROM PREVIOUS MEETING • CITIZEN PARTICIPATION (Items Not on the Agenda) • APPEALS FOR VARIANCE TO THE LAND USE CODE 1. APPEAL ZBA180021 Address: 216 N. College Avenue Owner: 216 N. College LLC Petitioners: Gast Johnson & Muffly, Brownstein Hyatt Farber Schreck, Brinkman Construction & Lamar Advertising Zoning District: D Code Section: 3.8.7.1(D)(3) Project Description: This is a notice for rehearing pursuant to City Code Section 2-51(2). This request is to not have existing off-premise signage be included in the total of allowable signage for the property, leaving the available sign allowance for new tenants of the building. The maximum sign allowance for the property is 636 square feet. Existing off premise signage includes 1,200 square feet. The request would result in 1,836 square feet of possible signage on the property. *** Note: See Verbatim Minutes for Presentations and Discussions *** 2. APPEAL ZBA180031 – Approved Address: 4424 Denrose Ct Owner: Archland Property LLC Petitioner: James Borgel, Holland and Hart Zoning District: C-G Code Section: 3.8.7.1(A)(3)(c) ZONING BOARD OF APPEALS MEETING MINUTES Zoning Board of Appeals Page 2 September 13, 2018 Project Description: This request is to extend the seven-year period of time in which a nonconforming sign on a property that has been annexed into the City limits has to comply with the City's regulations. Specifically, the McDonalds' freestanding sign was required to be brought into compliance by December 20, 2012 (seven years from the date of annexation). A previous variance was granted in May of 2012 extending the compliance date by an additional 3 years to December 20, 2015. Then again in 2015 a variance was granted to extend the compliance date to December 20, 2018. This request is to extend the compliance date an additional three years to December 20, 2021. Staff Presentation: Beals showed slides and photos relevant to appeal. This freestanding sign was in compliance while in the county, but when the property was annexed into the city they had 7 years to come into compliance. The sign is out of compliance on both height and square footage. After 7 years the applicant applied for a variance, stating no redevelopment in the area, and surrounding businesses were also non- compliant. That 2012 variance was granted. In 2015 the applicant applied for another variance, stating there was still not much change in area and the sign was not causing unfairness to those around them, as other properties in the area were not annexed into city. The second variance was also granted. Total time lapse of 7 years for initial compliance, plus 3 years variance granted, plus 3 years variance granted again, for a total of 13 years to come into compliance. Now the applicant is asking for another 3 years. There have been changes to the surrounding area since the last time this variance request was heard. The property on the corner has redeveloped into a gas station and developed within city standards and is in compliance. The I-25 corridor is now annexed into city, and most of the surrounding area has been annexed as well. There is also an enclave strip of land from Mulberry going north to another part of city that has been annexed. This enclave creates an island within the city that is still in the county. They will have 3 years in the county before City Council can choose to annex that land into the city. After they are annexed, they will have 7 years to come into compliance. The sign that was permitted in the county currently stands 60 feet tall, with 176 square feet per side. Our code for a free-standing sign states the max height is 18 feet if the sign is at least 30 feet set back from all property lines and can have 80 square feet of sign allowance per side. There was a discussion on how the I-25 annexation would affect this property. This development gives the potential for other properties in the area to also be annexed. Any new developments in the northeast corner would have to meet city requirements. Applicant Presentation: Mr. Jim Borgel, Holland & Hart, representing Archland Property 1, address 550 17th Street in Denver; Ms. Kim Cavlin with McDonalds, they are an affiliate of Archland Property, they own this property; and Mr. Bob Luther franchisee at this site and most other sites within Fort Collins. Mr. Borgel presented pictures of the tall freestanding sign originally permitted in county when it was built. In 2001 this property was annexed into the city. Mr. Borgel believes granting this extension is appropriate because while the annexations have changed in this area, the physical characteristics of the neighborhood have not changed. The only exception is the Maverick gas station that opened in April of 2018. Maverick was required to comply with city regulations and they do have an 18-foot sign. Maverik is in support of this variance as it increases their traffic, and they supplied a letter of support. The tall hotel sign in the pictures is in the property immediately next to them in an enclave, and their sign is legal according to county. After annexation occurs, the hotel will still have 7 years to comply with sign regulations. Mulberry still has multiple tall free-standing signs that will have to be changed when annexed. They support the city’s long-term goals of annexation, but that is simply not the case today. In terms of criteria for code, this is nominal and inconsequential. Making them change sign puts the McDonalds into hardship, as well as Maverick, since traffic would be reduced by adhering to standards. The current signage benefits the public in serving people and benefits the city as the business can continue to pay sales tax. Granting this variance would qualify as equal to or better than, but mainly as nominal and inconsequential in the context of the neighborhood. Mr. Luther has 5 restaurants in Fort Collins and has upgraded 3 of these in the last 6 months, with plans to update the last 2 restaurants, spending 4 million dollars. Highway 14 construction caused a 20% drop of business last year. Highway 85 construction has also affected their business, and this Zoning Board of Appeals Page 3 September 13, 2018 summer Mulberry construction caused business to be down 15%. This sign does bring in interstate business and aids in getting traffic to the area, helping them to recoup their losses. There was a discussion between boardmembers and applicants regarding the current signage on the highway for McDonalds. Heading south on I-25 there is one trailblazer sign for McDonalds that Mr. Luther pays for. Heading north there are no highway signs for their restaurant. Mr. Luther has contacted the highway department regarding their north bound signage and due to the limited amount of shoulder space they will not be adding more signage at this time. The freestanding sign does increase their I-25 northbound business as a large amount of business for fast food restaurants is impulse purchasing. Audience Participation: None. Board Discussion: Stockover noted that you can see the freestanding McDonalds sign at the Prospect exit and he believes compliance at this point would be a hindrance. Jackson commented this is a local owner who is investing in the community and she is in favor of variance. Multiple board members agreed there are no immediate changes in the neighborhood, and probably won’t be for several years. Shuff sees the three-year extension as nominal and inconsequential. Bear made a motion, seconded by Shuff, to approve appeal ZBA180031, for the following reasons, the request is not detrimental to the public good and is nominal and inconsequential in the fact that the neighborhood is not a typically platted neighborhood that is common within the city, and the neighborhood from a visual perspective encompasses an area in which this type of signage is not uncommon. And therefore, I find it to be nominal and inconsequential within the visible view of the context of this neighborhood and would continue to support the purpose of the Land Use Code contained in Section 1.2.2. Vote: Yeas: Stockover, Bear, Shields, Shuff, Long, Jackson, Snowden Nays: None The Motion Carried 3. APPEAL ZBA180032 – Approved Address: 825 Laporte Ave Owner/Petitioner: William Ward Zoning District: N-C-L Code Section: 4.7(D)(3) Project Description: This request is for an addition to the primary house. The allowable floor area on the rear-half of the lot is 837.5 square feet. The existing alley house exceeds the allowable floor area on the rear-half of the lot by an additional 1330.5 square feet. The request will exceed the existing square footage by 13 square feet, for a total of 2,181 square feet in the rear-half of the lot. Staff Presentation: Beals showed slides, pictures, site plans relevant to appeal. The primary house is on the rear half of the lot, towards the alley. The applicant is remodeling the house. Since the house is already on the rear half of the lot, it does already exceed the rear half allowance of floor area on that part of the property. However, it is not exceeding what’s allowed for the overall lot. Although the remodel is a 200 square foot addition, the request is only for 13 additional square feet. They are reducing the amount of floor area in the garage and will be creating an open wrapped porch on the east side of property. The addition will meet the 5 feet setback. House and garage are both on rear half of the lot, with neighboring houses closer to street. Applicant Presentation: Ms. Avis Ward, 825 Laporte Ave is presenting this addition requested because they are an alley house and the front door and kitchen face the alley. This house was originally built in 1935. In 1988, the 2-story rectangular addition was added on. The new plan is to move the kitchen to middle of the Zoning Board of Appeals Page 4 September 13, 2018 open floor plan moving living room to the front. They will create a master bedroom where kitchen is now. The laundry/mechanical room will turn into walk in closet for the master and convert the only main floor bathroom into a master private bath. Since they took the laundry/mechanical and only bathroom from the main floor, they need the extra 200 square feet to add those features back in. Currently the curb appeal from Laporte is minimal, so they will be adding more grass and outdoor entertaining space. Audience Participation: None. Board Discussion: Long points out the current layout has functional issues and agrees this is a decent plan to solve some of the issues. Jackson states the hardship is obvious, and 13 square feet is nominal and inconsequential as the applicant is not going over total square footage of the lot. Shields agreed and states engaging the front of the yard closer to Laporte is commendable. The applicant’s willingness to open up the garage to create front space is also helpful, and a good creative use of difficult space. Bear made a motion, seconded by Snowden, to approve appeal ZBA180032 for the following reasons: the request is not detrimental to the public good, the variance request does not exceed the allowance of floor area for the overall lot, the original placement of the primary structure places most of the floor area on the rear half of the lot, therefore location of the existing structure created an exceptional situation unique to the property and the strict application of the standards result in a hardship that is not caused by an act or omission of the applicant. Vote: Yeas: Stockover, Bear, Shields, Shuff, Long, Jackson, Snowden Nays: None The Motion Carried 4. APPEAL ZBA180033 – Approved Address: 620 Locust St Owner/Petitioner: Cynthia Reffler Zoning District: N-C-M Code Section: 4.8(F)(2)(b)2. Project Description: This request is for a new accessory building. The proposed accessory building has a varying eave height from 10 feet to 17.92 feet along the side property line; the maximum allowable eave height is 10 feet. Staff Presentation: Beals showed slides and photos relevant to the appeal. This is a north to south orientation of the property with a back structure. This variance is a request for increased eave height along the side property line. The Land Use Code requires a 10-foot eave height when there is no habitable space and no water/sewer in the building. When there is habitable space, then the eave height is allowed to go up to 13 feet. This is to avoid massing of structures on the back half of any given property and looming onto neighboring properties. The gabled roof puts gables towards the alley or house. The applicant is seeking more access for solar power, so they oriented the roof the other way. They already had a building permit in compliance with the standards and then changed the plans in field. The applicant then submitted plans for those revisions, and during the review process staff noticed it was no longer in compliance. Land Use Code for floor variances describes solar access as something this board can grant a variance for and use in the staff recommendation. Setback is within compliance from the east side, but on the west side the eave was supposed to be 10 feet tall. The neighbor’s driveway is directly next to the west side of this structure. Applicant Presentation: Ms. Cynthia Reffler, 620 Locust St., admits immediately that she made a mistake. Originally, she applied for a garage with the same footprint, but the roof was oriented differently. She is a Zoning Board of Appeals Page 5 September 13, 2018 Sustainable Builder and has been building in town since 2002 after completing her master’s program at CSU. She did not know about this code and neither did the engineer. She changed the design and submitted it, but the roof was already on by the time she heard from Beals regarding the 10-foot eave. The reason for the change in field is because they were doing renovations to the existing house, which was built in the 1920’s. To keep as much out of the landfill as possible, they removed the existing roof, placed the roof in the front yard, made structural changes to the building, added a second story, then put the roof back on. They kept 12,000 pounds of debris out of the landfill, but this roof does not allow for an efficient installation of solar panels. They want this garage to be capable of solar panels and easily expandable for future owners. Also, the neighbors that are most impacted are in support, but did not write letters. Audience Participation: None. Board Discussion: Boardmembers discussed future additions to the garage and that they would still have to adhere to setbacks. They agree to focus on the current variance for the west property line. Shuff agrees this structure supports the use of solar which they are not able to do in the primary residence. The roof is 17 feet, the maximum allowance is 24 feet, so they are still in compliance and she feels it’s nominal and inconsequential. Bear mentions that the code allows them to issue an allowance based on solar and inquired if it matters that the solar is not currently installed. Beals replies the applicant does not have to have solar already installed, it’s just to give access to solar based on the orientation. Shuff notes in most cases the building they are discussing is not built yet, and they rely on the fact that the applicant’s intention is to install solar. Shuff made a motion, seconded by Snowden, to approve appeal ZBA180033 and find that the request is not detrimental to the public good, the orientation of the lot has the side lot lines running north and south, the proposed accessory structure footprint is 340 feet, the eave runs 20 feet along the 190 feet side property line, therefore the lot orientation hinders the ability to install an efficient solar energy system on a gabled roof and the strict application of this standard results in a practical difficulty not caused by the act or omission of the applicant. Vote: Yeas: Stockover, Bear, Shields, Shuff, Long, Jackson, Snowden Nays: None The Motion Carried 5. APPEAL ZBA180034 – Denied Address: 1925 Constitution Avenue Owner/Petitioner: Kingsley and Jean Meldrum Zoning District: R-L Code Section: 4.4(D)(2)(d), 3.8.19(A)(6) Project Description: This request is for an addition to the existing attached garage. The proposed addition encroaches 4.5 feet into the required 5 feet side-yard setback, and the eave of the addition further extends to the property line past the allowable 2.5 feet. Staff Presentation: Beals showed slides and pictures of the property. This property is in the RL district, and most houses in this area are in compliance with the 5-foot setbacks. This is a single-story house, with 2 car garage and fence along the side. Currently at this location there is a 12-foot setback on the north property line. The proposed site plan would extend the current 2 car garage by adding one more car width, bringing the setback to within 6 inches of the wall, and with the eave extending all the way to the property line. The addition adds a one car garage to the right side where there is currently a carport and this addition will not align exactly with the front of the house. Zoning Board of Appeals Page 6 September 13, 2018 Shields asked if the driveway cement is poured all the way to the property line. Beals confirmed it is. She asked if the current carport structure is permitted. Beals was not sure, but thinks it is probably not permitted. A permit is required if the structure is over 8 feet tall and is over 120 square feet. Applicant Presentation: Mr. Kingsley Meldrum, 1925 Constitution Ave, addressed the Board. In comparison to the current use, this will actually improve curb appeal. Mr. Meldrum states the hardship argument is applicable because Kinsley and his wife plan to retire in this house and they lack space for yard maintenance equipment. They also have a third car, and regularly have visitors, and it would be nice to not have extra cars on the street or driveway. Mr. Meldrum also refers to the nominal and inconsequential argument as it is not detrimental to the neighborhood or the public good. He has spoken with surrounding neighbors and has 14 signed letters of approval stating they would not have a problem with the garage addition. The proposed garage would sit next to the neighbor’s 6-foot easement and the neighbor’s garage. Mr. Meldrum understands that specific setbacks are required for access to utilities. On the south side of the property there is a 10-foot easement to get to the backyard. The utility company came out, and the only utility going underneath that driveway is the electrical. Mr. Meldrum would be paying the cost to move it east along the same wall. Bears asked the applicant if any alternatives were considered that wouldn’t require such an encroachment into the setback. Mr. Meldrum replied that they had considered a shed in the back yard, but that would be more impactful to neighbors because he would want to build it to the maximum size allowed. Snowdon pointed out that the existing 9-foot easement is tapered and is 12 feet at the widest point. He inquired if the applicant considered using this space but keeping the 5-foot easement. Mr. Meldrum explained they did consider this option, but that would only allow a 5-foot door, and they could not use it for a car, only for storage. The cost is comparable whether he respects the 5-foot easement or goes all the way to the edge of the property. Bear asked if there is space to park a car at a smaller size. Mr. Meldrum replied if you consider that a car is 6 feet wide plus space to open the car door inside, then a smaller size is not his preference. Audience Participation: Ms. Diane Spear, 1942 Constitution, lives across street and 2 doors down from Mr. Meldrum. Ms. Spear has lived there for 33 years. She walks the neighborhood often and is aware of what goes on. Ten to twelve years ago a former owner put more concrete on the driveway. Mr. Meldrum works on cars in his driveway during the day and puts everything away at night. He is a good neighbor and takes good care of the property. Also, many of the homes in their neighborhood have turned into student rentals and she is supportive of the presence of any families. Ms. Spear says the garage would be a big improvement over the car port and this type of improvement should be encouraged throughout the city. Board Discussion: The Board discussed the RL zoning and extending this structure all the way to the property line is not within the character of that neighborhood. If all the houses in that neighborhood go to the property line, it’s not going to feel like a low-density neighborhood. Additional storage may be considered that does not extend this far into the setback. They acknowledged that the applicant is staying in context with the one-story ranch and the extension would face the neighbor’s garage for the least amount of impact. Snowdon brought up the drainage issues dumping onto the lot line, and possibly into the neighbor’s property. Beals replied that the city addresses drainage issues during the permitting process. Snowdon asked Beals about the carport meeting the setback even if it’s a temporary structure. Beals replied that any columns also need to meet the setback criteria. There is no such thing as a temporary structure. Structures either require a permit if they are over a certain size, or they do not. Snowdon is more concerned with setting a precedence for the neighborhood and cannot find true hardship. ZONING BOARD OF APPEALS CITY OF FORT COLLINS Held SEPTEMBER 13, 2018 City Council Chambers 300 North Laporte Avenue Fort Collins, Colorado In the Matter of: 216 N. College Avenue, Appeal ZBA180021 Meeting Time: 8:30 AM, September 13, 2018 Board Members Present: Staff Members Present: Heidi Shuff, Chair Noah Beals Ralph Shields, Vice Chair Christopher Van Hall Butch Stockover Marcha Hill Karen Szelei-Jackson Daphne Bear Cody Snowdon Bob Long (**Secretary's Note: Shuff, Snowdon, and Stockover recused themselves from this item due to conflicts of interest.) 2 1 VICE CHAIR RALPH SHIELDS: Alright, Marcha, can we hear the first appeal please? 2 MS. MARCHA HILL: Appeal ZBA180021, address 216 North College Avenue, owner 3 216 North College LLC, petitioners Gast Johnson and Muffly, Brownstein Hyatt Farber Schreck, 4 Brinkman Construction and Lamar Advertising, zoning district D, Code Section 3.8.7.1(D)(3), 5 project description is, this is a notice for a re-hearing pursuant to City Code Section 2-51(2). The 6 request is to not have existing off-premise signage to be included in the total of allowable 7 signage for the property, leaving the available sign allowance or new tenants of the building. 8 The maximum sign allowance for the property is 636 square feet. Existing off-premise signage 9 includes 1,200 square feet. The request would result in 1,836 square feet of possible signage on 10 the property. 11 MR. NOAH BEALS: Okay, so this property is located on North College. It fronts on 12 both North College and Pine Street. This property was recently redeveloped as a project called 13 The Exchange, and that was in 2017. This is the site plan of that redevelopment, and 14 specifically, we are looking at this building here. 15 During the redevelopment process, it was noted that there was two double-sided 16 billboards on top of the roof and they were noted to be removed during the development review 17 process. And then later, at the time of building permit, they were also shown as being 18 demoed…during the building permit. The proposal here today is to have the ability to retain 19 those billboards on the property, on the rooftop. The way the Sign Code is written, a property is 20 given a certain amount of square footage of sign allowance based on its frontage to public right- 21 of-way. And then the property owners or tenants can decide how to split that sign allowance 22 among their different tenants and different type of signs that the Code does allow. The existing 23 billboards are about 1,200 square feet of signage on the property, and that already exceeds the 24 allowance that the property is allowed, which is 636 square feet. 25 So, the request is to…to be able to retain the billboards and also have in addition what the 26 property is allowed, that 636 square feet, so a grand total of 1,836 square feet. Currently, we had 27 issued sign permits based on the condition that a variance or removal of the billboards would be 28 required. And we've issued 84 square feet of sign…square footage of signage already on that 29 property. 30 So, here are the pictures of the billboards as they exist. So, this is taken from North 31 College looking south at the billboards. Again, from the west side of North College looking east, 32 from North College looking north now, and then on the corner of Pine and Walnut looking 33 north…northwest. 34 We did also provide a copy of the lease…you should have the copy of that on your desk 35 in front of you…with redactions I would state. So, the staff recommendation at this point is that 36 a variance be granted for a period of five years, and that coincides with the lease agreement…it 37 is up until five years. And so, allows that non-conformity to be in place and allows for other 38 signage to be placed on the building for that five years, but after the five years, then the 39 requirement would be that the billboards be removed, or another variance or some other 40 stipulation. And that's the end of the staff report at this time. 3 1 VICE CHAIR SHIELDS: Thank you Noah. Are there any questions for staff? 2 BOARD MEMBER DAPHNE BEAR: I have a question. In the lease amendment that 3 you provided, are the redactions limited to financial information? Or are the terms of the 4 contract redacted, or just the financial terms? 5 MR. BEALS: We're going to let the applicant answer that question when it comes up. 6 ASSISTANT CITY ATTORNEY CHRISTOPHER VAN HALL: It was information that 7 Lamar requested that we redact, so we did, and they would probably be the best person to assert 8 why they felt that was appropriate. 9 BOARD MEMBER BEAR: Alright, thank you. 10 VICE CHAIR SHIELDS: Any other questions? 11 BOARD MEMBER BEAR: Yeah, can I just clarify your point about…when the 12 developer applied for the building permit in 2017, the builder reported the demolition? I just 13 want to confirm that when the developer is the one that applied for the building permit in 2017, 14 and in that building permit application reports the demolition, is that correct? 15 MR. BEALS: It's correct that the building permit was reporting a demo of the billboards. 16 I'm not sure if it was exactly the developer who pulled the building permit, or his subcontractor, 17 RTC…their general contractor did, representing the developer. 18 BOARD MEMBER BEAR: Representing the developer? 19 MR. BEALS: Right. 20 BOARD MEMBER BEAR: Okay, thank you. 21 VICE CHAIR SHIELDS: Okay, is the applicant in the audience here and would like to 22 present? Please state your name and address for the record and sign in. 23 MR. BEN KRAMER: I'm Ben Kramer; I'm here for 200 North College LLC, who's the 24 owner of the property. 25 MS. SARAH MERCER: Good morning, Sarah Mercer for Lamar Advertising. 26 MR. KRAMER: So, to start off with, I want to address Ms. Bear's question. In the 27 review process, the permit did have the demolition of the billboards up there…the original 28 submittal to the City included the billboards as part of the redevelopment, but they were removed 29 due to the requirements of the City through the development review process prior to the permit 30 actually being applied for. 31 BOARD MEMBER BEAR: Can you say that one more time? 4 1 MR. KRAMER: So, prior to the permit being applied for through the development 2 review process with the City, the initial submittal by the owner and its general contractor did 3 have the billboards on the roof; they remained as part of the redevelopment. They were removed 4 as a part of that process due to the City's requirements. 5 BOARD MEMBER BEAR: Okay. 6 BOARD MEMBER KAREN SZELEI-JACKSON: So, can I follow-up with that real 7 quick? On the permit drawings themselves, the billboards were removed, or were called to be 8 demolished? 9 MR. KRAMER: Yes. 10 BOARD MEMBER JACKSON: Okay. 11 MS. MERCER: And, if I may, before we begin, I'd also like to address the other question 12 by Ms. Bear on the redactions. Yes, the provisions that were redacted are concerning the 13 financial information, the amount of payments…that's right. And then there also is a redaction 14 of a clause regarding…of the termination clause, because that's an issue of the…that could be in 15 litigation between the parties. A private…you know…their sort of private agreement about 16 when the lease could be terminated. 17 BOARD MEMBER BEAR: Thank you. 18 MR. KRAMER: Now I'll jump into our slide show presentation. So, as we all know, 19 we're here for a property located at 216 North College. And, the redevelopment of what became 20 three lots consisting of two multi-tenant buildings on either side of a plaza that contains shipping 21 containers and an ice cream stand, as well as some public areas and gathering spaces. The 22 variance that we're requesting today is related to the billboards located on top of 216 North 23 College, or the off-premises signage. The two billboards have space on either side for 24 advertising, for a total of four signs. The billboards have existed in their current location prior to 25 redevelopment of the buildings and the redevelopment didn't alter the core and shell of the 26 buildings; it was façade redevelopment and didn't alter the location of the billboards…they 27 weren't removed at any time. So, those billboards have co-existed with other signage identifying 28 tenants and owners for over 70 years. 29 I think it's important to note, as we've partially discussed, that the billboards are permitted 30 under a lease that was executed by a previous owner of 200 North College, and Lamar's 31 predecessor in interest. So, the current owner inherited that lease. At the last hearing…and 32 we're here doing a re-hearing to recreate the record…at the last hearing, there was some 33 questions regarding the amendment to the lease that's in your packet. That amendment did not 34 alter the terms of the lease. There were some gaps in the lease terms regarding the previous 35 owner and the previous tenant and who the current owners were. So the only thing the least 36 agreement, or the lease amendment, did was clean that up. When the owner acquired the 37 property, they had no ability, no right or opportunity to terminate the lease or alter its terms. It 38 was really just the parties agreeing that the paperwork needed to be cleaned up. 5 1 So, as noted in the materials, the original lease term terminates September 1, 2023. But, 2 under the terms of the lease, it automatically renews for annual periods thereafter unless 3 terminated by either the owner or Lamar, the tenant. 4 The allotted signage for 216 North College is 636 square feet under the Code. The Code 5 is silent…the Land Use Code is silent regarding off-premises signage and its impact on 6 allowable on-premises signage. The City staff has taken the position that we don't agree 7 with…but that's not part of this hearing…that the off-premises signage, or the billboards, counts 8 against the 636 square feet of signage that's allowed for the building. The billboards have 9 approximately 1,200 square feet of off-premises signage, and so the interpretation effectively 10 prohibits any additional signage identifying tenants or occupants of the building. 11 The variance…the specific variance being requested is to allow the 636 square feet of on- 12 premises signage notwithstanding the existence of the billboards. Specifically, the request is for 13 the initial term of the lease along with any extensions or renewals of that term. 14 The Board is well aware of the standards imposed by the Land Use Code to grant a 15 variance, so I won't go over each in detail, but I will discuss each element as it applies to this 16 specific case. And, as a threshold matter, a variance can't be granted unless it's shown that it's 17 not detrimental to the public good. Here, I think it's pretty clear that allowing the billboards to 18 exist is not detrimental to the public good. The billboards have existed in their current location 19 for over 70 years, and it's difficult to imagine that their continued existence somehow impacts 20 the public good. 21 And as I alluded to earlier, The Exchange is really a first of its kind development in Fort 22 Collins that provides a road map for incorporating mixed-use development with public spaces. 23 It's located in a targeted activity center identified by the City of Fort Collins City Plan. You can 24 see some of the criteria in the City Plan on the slide in front of you, but the Plan identifies those 25 targeted activity centers as priority areas for redevelopment and infill. So, the pre-existence of 26 the billboards doesn't alter these City priorities, and in this case, I think failing to grant the 27 variance really would have a chilling effect on redevelopment of other areas identified by the 28 City for redevelopment and infill. Redevelopment of existing buildings and infill almost always 29 entails tailoring the development to existing site conditions, and so failing to grant this variance, 30 I think, would indicate an unwillingness on the City's part to work with builders, developers, 31 land owners, to facilitate those types of site-specific constraints. 32 I do want to take a brief moment to acknowledge two letters that were received in 33 opposition at the previous hearing back in July. And I believe they're still part of the record. 34 There's a letter from Mr. Gadd that doesn't address the variance and is directed at his concerns 35 regarding the street address numbering, so I don't think that's relevant to what's in front of us. 36 And then there's a letter from Mr. Shultz which focuses primarily on what he believes would be 37 preferential treatment granted to the developer. And in this case, the owner and Lamar are not 38 seeking any type of preferential treatment; we're going through the variance request process just 39 like any other land owner in the city. 6 1 So, if the variance isn't detrimental to the public good, we next look at whether one of the 2 three criteria identified in the Land Use Code is satisfied for granting a variance. The first 3 criteria is whether there is an extraordinary and exceptional situation which would cause strict 4 application of the standards to result in unusual and exceptional practical difficulties or undue 5 hardship for the occupant. And there is a caveat that that undue hardship cannot be caused by 6 the occupant or the applicant. So, with respect to the first prong, we are in a fairly extraordinary 7 and exceptional situation. These types of billboard leases are not common in Fort Collins, and 8 the application of the Code as interpreted by the City would result in requiring the owner to 9 chose between either breaching its lease with Lamar and taking down the billboards in order to 10 allow its tenants to identify themselves with normal signage, or leave the billboards in place and 11 not permit any tenants to identify their businesses, which could very well be a breach of those 12 lease agreements with the tenants. In either case, I think the parties would be looking at 13 substantial damages. At this point, I'm going to hand things of to Sarah here for just a few 14 minutes. 15 MS. MERCER: Thanks Ben. I just want to address a couple of these concerns and 16 criteria from the standpoint of Lamar, and also just to discuss and run through a little bit of the 17 chronology from Lamar's perspective and standpoint. As Ben mentioned, there was a preexisting 18 lease when the owners…when the owners took ownership of this property. And, at that time, 19 there was not an opportunity for the owners to renegotiate any of those terms or to terminate the 20 lease. The lease has a very specific termination provision, the conditions of which must be met 21 in order for the lease to be broken without having a breach of the lease. And so, there wasn't an 22 opportunity at that point in time when the owners inherited this lease to alter or change any of 23 those terms. 24 When the owner submitted its initial development plans, as Ben indicated, those plans 25 were for this particular redevelopment project which did not alter or touch or change the 26 billboards in any way. And those initial plans and drawings included images of the billboards on 27 them. The City in response indicated those billboards would need to be removed because it was 28 a redevelopment. Lamar's position is that the City does not have authority anywhere in its Code, 29 and also under state and federal law, to require removal of the billboards because of 30 redevelopment of a particular property. 31 So, when Lamar learned about this issue…Lamar was not part of those initial 32 negotiations…Lamar intervened and spoke with the City on its own behalf then also spoke with 33 the owner of the property to indicate this issue. As you can imagine, the owners of the property 34 wanting to get their redevelopment project moving forward and going, redrew the plans without 35 the billboards. The termination provision, which is redacted in the version that you have, but 36 which we've talked with City staff…if you want to look at that specific provision as a member of 37 this Board, you can of course. We've redacted that so that in case there's any open records 38 requests that that information not be released to the public. But, if you want to look at that 39 specific provision, you're more than welcome to. I'll represent that that provision indicates that 40 the lease cannot be terminated or broken unless redevelopment impacts the billboards, which this 41 does not. So, the conditions of this particular redevelopment…the circumstances of this 7 1 particular redevelopment would not have allowed the owner of the property to break the lease in 2 any event. However, when the City indicated that those boards would need to be removed, the 3 owners, again, wanting to comply and get the project moving, removed the billboards from the 4 drawings and applied for a permit without the billboards. 5 Lamar was then obviously part of the conversation, and we worked out an agreement by 6 which we could, in order to resolve this matter efficiently and without any need for any litigation 7 or any other type of action, come before you all, come before the Planning and Zoning Board, 8 and then possibly before you all, to seek…I'm sorry, come before you all to seek a variance in 9 order to resolve this matter this way. So, we do believe that the…and we agree with staff…that 10 this Board has the authority to thread the needle on this without having to make any kind of legal 11 interpretation, or having to sort of overstep the scope of this Board's authority, to grant a 12 variance for the term of the lease. As you know, staff has recommended approving the variance 13 for the rest of the initial term of the lease. Because the lease includes a provision whereby the 14 lease extends automatically year-by-year after the initial term of the lease, it's Lamar's position 15 that their property right in this lease is for the full term of the lease, not just the initial term. And 16 so that's why we are asking you…we appreciate staff's recommendation for a variance for the 17 initial term of the lease, but we're asking you to grant the variance for not just the initial term of 18 the lease, but for the full term of the lease. Again, this is not a request for a variance that would 19 run with the land, this is a request for a variance that would run with the lease. And after the 20 initial term, by the terms of the agreement, the parties are free, are no longer subject to that…the 21 conditions of that termination provision and can terminate at any time subject to some 22 notification provisions. So, I just wanted to provide a little bit of that background, and also to 23 indicate, I think relevant to the criteria that you need to evaluate in front of you, that there 24 is…the hardship that's been put on the applicants' here is not due to anything that was within 25 their control, but in fact was triggered by the City's determination that these billboards needed to 26 be removed because of the redevelopment, and then also its determination that the off-premise 27 signage would count against the on-premise signage that's allowable. 28 There is one other point that I just want to emphasize: the unique circumstances of this 29 particular case. These are the only rooftop billboards in the city, so we're unlikely to encounter a 30 circumstance that mirrors this circumstance. So, I think you can take comfort in knowing that if 31 you grant a variance as we've requested for the full term of the lease, or if you decide to go with 32 staff's recommendation of granting a variance for the initial term of the lease, you're not setting a 33 precedent that's going to be where you're going to have this issue pop up before you over and 34 over again. As you know, billboards are grandfathered signs in the City of Fort Collins, so there 35 aren't…there's not a possibility that new rooftop billboards will be popping up either. So, this 36 really is a unique and singular circumstance. 37 MR. KRAMER: So the…jumping back into the three criteria for granting a variance. 38 We've got the second criteria as to whether the proposal as submitted will promote the general 39 purposes of the standard equally well or better than a proposal that conforms to the standard, or 40 staff's interpretation of the City Code. Here we're simply requesting to maintain the status quo 41 with the normal amount of on-premises signage. Those billboards have coexisted with other 8 1 signs on the buildings for over 70 years, and we're not aware of any issues before the case that 2 we're discussing today. So, regarding some of the more in-depth legal issues, I'm going to hand 3 things off to Sarah again. 4 MS. MERCER: So, with respect to these underlying legal issues that I have described and 5 summarized for you, really, I indicated that staff has made a determination that the off-premise 6 signs count towards the on-premise sign allowance. And I think it's important here to note that 7 the owners of the property are not seeking an on-premise sign allowance that exceeds what's 8 allowable; they want their normal on-premise sign allowance. It's simply because of the City's 9 interpretation that the off-premise signs count against the on-premise sign allowance that we 10 would need this variance. 11 Because Section 3.8.7.1(D)(3) does not make any reference to off-premise signs or on- 12 premise signs, it's our position that it strains logic to include both of those in the sign allowance 13 first of all. Second of all, the off-premise signs…there is a distinction in the current Land Use 14 Code between off-premise signs and on-premise signs, and Section 3.8.7.1(A)(3) deals with non- 15 conforming signs. So…and it deals with those non-conforming signs in terms of on-premise 16 non-conforming signs and on-premise non-conforming signs. On-premise non-conforming 17 signs…there is a provision in the current Code whereby staff can require on-premise signs to 18 come into conformance if they're non-conforming. That does not apply to off-premise signs. In 19 fact, in that same section of the Code, it says this subsection shall not apply to off-premise signs 20 which are within the ambit of the just compensation provisions of the Federal Highway 21 Beautification Act and the Colorado Outdoor Advertising Act. That provision applies here 22 because the signs are located along College Avenue, which is part of the federal highway system, 23 and thus is superseded or preempted by that federal and state case law as indicated in the Code. 24 So, again, there is…we believe and it's our position that there's not legal justification for 25 staff's position. All of that said, you do not, in terms of deciding on this variance, need to delve 26 into any of those legal issues. This is really just provided by way of background for you more 27 than anything. All that you need to determine is to look at the criteria that's before you, your 28 normal, regular variance criteria, and to determine if we've met those standards for a variance. 29 Because, granting of a variance in this circumstance that would run for the full term of the lease, 30 would resolve this issue in its entirety without needing to even go into all of those legal issues. 31 MR. KRAMER: So, the last criteria that I want to talk about is that the proposal as 32 submitted will diverge from the Land Use Code except in a nominal or inconsequential way 33 when considered in the context of the neighborhood and advances the purposes of the Land Use 34 Code. Here I think it's pretty clear that it's nominal and inconsequential. As I mentioned earlier, 35 it's a commercial area, the signs have existed for over 70 years, and the billboards are similar to 36 two other off-premises billboards, one located about a mile to the southeast near Mulberry and 37 Riverside, and one about a block and a half to the north. 38 The variance also advances the purposes of the Land Use Code. As noted, The Exchange 39 is part of a targeted activity center from the City of Fort Collins, and granting the variance will 40 ensure the financial viability of The Exchange, which advances the goals of the City. The 9 1 development improves the design and the quality of the neighborhood; it takes what was two 2 kind of disjointed buildings with a run-down parking lot in the middle, and brings it all together 3 in a cohesive, attractive development that provides for additional public spaces and work within 4 walking distance to downtown living. There's no new signage being added, and the variance also 5 recognizes…would recognize, as Sarah mentioned, that the signs are subject to the Highway 6 Beautification Act and the Colorado Outdoor Advertising Act. 7 I do want to address the staff recommendation just briefly. We support Lamar's position 8 and are requesting a variance for the full term of the lease. We, however, don't oppose the staff 9 recommendation. The owner doesn't oppose the staff recommendation of a variance for the 10 initial term of the lease, which would expire October 1, 2023. The…I think it's important to note 11 that this variance is not in perpetuity. Sarah mentioned it's tied directly to the lease. I think 12 it…to be clear, there are disadvantages of granting a variance only for the initial term. I think it 13 will likely result in an appeal, which is one of the reasons we're here today, and possible 14 litigation between the parties. So, we can avoid all of those issues by granting a variance for the 15 full term of the lease. We're done. 16 VICE CHAIR SHIELDS: Thank you both. Do we have any questions for the applicant? 17 BOARD MEMBER BEAR: I do, but I have to compose my thoughts. Is it possible to 18 ask staff a question first before I ask…? 19 VICE CHAIR SHIELDS: Yeah, I think so. 20 BOARD MEMBER BEAR: I just would like to have a clear understanding of the 21 distinction between an off-premise sign and an on-premise sign. 22 MR. BEALS: So, an off-premise sign is a sign which is…displays or advertises for 23 products or services that are not located on the property which the sign is located. Traditionally, 24 this has been known as a billboard or…a billboard. And then we call it off-premise. An on- 25 premise sign would be a sign that is on the property and displays a message or content, services, 26 for that which is on the property the sign is located. 27 BOARD MEMBER BEAR: Great, thank you. 28 BOARD MEMBER JACKSON: I have a question for staff as well. Sarah had talked 29 about billboards being grandfathered in, is that true? 30 MR. BEALS: So, the Code does not permit any new off-premise signage. And so, all the 31 ones that were permitted at a time that the City did allow that and are existing, are in place 32 legally. And we would not allow any new ones. 33 BOARD MEMBER JACKSON: Okay, thank you. 34 BOARD MEMBER BEAR: Was the…do you know if the owner had knowledge that by 35 purchasing the property, they were purchasing an obligation they couldn't terminate that violated 36 the City Code? 10 1 MR. KRAMER: So, when the owner purchased the property, it did know about the 2 billboard lease. 3 BOARD MEMBER BEAR: So, did they know about the billboard lease in the fact that 4 there was no opportunity to terminate that obligation? 5 MR. KRAMER: At the time, and as Sarah had mentioned in the redacted portion of the 6 lease, there is a termination provision. At the time, with the development plans at that point 7 unknown, the developer was under what resulted…ended up being a mistaken belief that it could 8 terminate the lease. It was a mistake on the developer's part. The basis of that termination 9 provision is that the redevelopment essentially has to occupy the physical location of the signs. 10 In an effort to maintain the existing buildings, you know, and redevelop in an environmentally- 11 friendly way, the buildings were remained…the corn shell remained. The billboards were not 12 altered, the roof was not altered, and it was façade and interior redevelopment. So, that wasn't 13 triggered. However, at the time, the developer did…or the owner did believe that they could 14 terminate the lease. 15 MS. MERCER: If I could add, the owner had no reason to think that it would need to 16 terminate the lease in order to accommodate its redevelopment plans because its redevelopment 17 plans did not physically occupy the location where the billboards were. It was only when staff 18 said, in order for us to grant this permit…in order for the City to grant your permit on this 19 development project, you will need to remove the billboards. It was only at that point in time 20 that the owner was confronted for the first time with the question of whether or not they were 21 going to have to try to break their lease with Lamar or not. 22 BOARD MEMBER BOB LONG: But you don't actually represent the owner? You 23 represent…well you represent the owner. 24 MR. KRAMER: I represent the owner. 25 BOARD MEMBER LONG: I was just clarifying…she was telling us what the owner 26 knew… 27 BOARD MEMBER BEAR: Was that information publicly available at the time that the 28 owner purchased the property? 29 MR. KRAMER: What information are you…? 30 BOARD MEMBER BEAR: That there was a…that the City would not allow that. 31 MR. KRAMER: No, and I think that gets to what…the interpretation of the Code. 32 Because, as Sarah mentioned, the Code is silent on what happens to off-premises signage; there's 33 no provision for it whatsoever. And so there's no way that the developer, at that point, would 34 have been on any notice as to the City's requirements through the development review process. 35 BOARD MEMBER BEAR: Okay, thank you. 11 1 MS. MERCER: And staff…so, from Lamar's perspective who owns most of the 2 billboards, staff has never interpreted the Code in this way before. So, this was a novel, new 3 issue. 4 BOARD MEMBER BEAR: Thank you. 5 BOARD MEMBER JACKSON: And I believe Sarah said that when that issue did come 6 up, that Lamar approached the City and tried to work through something. Did the developer or 7 owner also engage the City…solutions? 8 MR. KRAMER: Yes, we did. And that's part of the reason why we're all here today. 9 And this was the process that was agreed to by all three parties to try and resolve the issue. 10 BOARD MEMBER LONG: But that's a good question. Why are we here? I mean, if 11 this all came up before…this was all known before you signed and started the permit process, so 12 it sounds…it's a little convoluted to come all the way to the end and then go, we're all shocked. 13 You shouldn't have been shocked. 14 MR. KRAMER: Well, and that gets back to what I mentioned earlier. When the 15 developer…the developer was under the mistaken believe that it could terminate the lease. And 16 it's admittedly a mistake, which is why the development progressed and we're here today. 17 BOARD MEMBER LONG: But, I mean that all could have been resolved…I mean if 18 he's a very experienced developer, if he's sitting there looking at a lease and the City says it has 19 to get terminated, you're saying he didn't consult an attorney, he didn't think…he's got extensive 20 lease experience, and he just kind of winged it and we ended up here? 21 MR. MERCER: I'm saying that nobody is immune from mistakes, and it was a mistake. I 22 can't… 23 BOARD MEMBER LONG: But doesn't that get to…the hardship is really this didn't get 24 dealt with before the permit was pulled. This could have all been dealt with before the permit 25 was pulled. 26 MR. MERCER: I think the hardship is the staff's interpretation of the Code, in saying that 27 you can't redevelop this property no matter what unless these billboards come down, regardless 28 of… 29 BOARD MEMBER LONG: But I mean, you would expect an experienced developer 30 would know, most people in the city do know that billboards haven't been allowed for years, and 31 so it's not out of the realm of reasonable to maybe have a concern that you're going to have to get 32 rid of that billboard and be able to. 33 MR. KRAMER: The billboards are grandfathered in, so while you're correct that 34 billboards are frowned upon and have generally been declining, these billboards have been 35 around for 70 years, and the redevelopment didn't impact them. So, I think it's perfectly 36 reasonable to assume that they could stay. 12 1 BOARD MEMBER LONG: But I guess what I'm getting at is, you tell me there was a 2 termination…there is a termination clause? 3 MR. KRAMER: Yes. 4 BOARD MEMBER LONG: So, he bought it, he saw them on the roof, he looked at his 5 lease, there's a termination clause which is blacked out, which is fine. So, there are resolutions. 6 Execute the termination clause; it's a problem between the developer and Lamar, and we don't 7 have to be here. Because you have a termination clause, you should execute it, and we can all be 8 done. 9 MR. KRAMER: But the termination clause, the criteria for exercising it, wasn't met. 10 That's…it's a breach of the lease to terminate it. And the developer's plans didn't physically 11 occupy the space to… 12 BOARD MEMBER LONG: I appreciate it, and I appreciate why you're here, and it 13 makes sense, but, really it's a problem between you two that you want to be our problem. 14 Because he purchased it, he knew it would happen, there's a termination clause, you two don't 15 agree on the terms, I mean we're literally here…the citizens of Fort Collins under threat of being 16 sued, are being asked to violate our Land Use Code because you guys can't get along on your 17 lease. 18 MR. KRAMER: We're not asking you to violate the Land Use Code because it permits 19 for variances, what we're asking…whenever the City…this was a private lease regarding real 20 estate between two private parties. And whenever the City's Code or actions of the City impacts 21 the relationship, or the ability of the signs to exist on the real estate…whenever the City takes 22 those types of steps, it necessarily involves the City's power of eminent domain, their 23 condemnation authority. And we don't want to sue the City; it's… 24 BOARD MEMBER LONG: But, you said something, and she said…I'm a land guy. So, 25 you're saying it's real property, and you said it's not real property. Which is it? 26 MS. MERCER: A lease includes real property…is a real property interest. 27 BOARD MEMBER LONG: Is the sign on the roof personal property? 28 MS. MERCER: No, it's real property. 29 BOARD MEMBER LONG: Okay, just asking. 30 BOARD MEMBER JACKSON: That's a question that I had, does Lamar just lease the 31 billboard signs, or do they also lease the building that it sits on? 32 MS. MERCER: The lease is simply to put the billboards on the building, no lease of the 33 building. 34 BOARD MEMBER JACKSON: Okay. 35 VICE CHAIR SHIELDS: Okay, do we have any more questions for the applicant here? 13 1 BOARD MEMBER JACKSON: Just a couple. Was the permit that was issued for the 2 whole development or just for that one building that the signs sit on? 3 MR. KRAMER: They were individual permits…excuse me. 4 BOARD MEMBER JACKSON: They were individual. Okay, so what part of the 5 building that the sign sits on were redeveloped? 6 MR. KRAMER: What, I'm sorry. 7 BOARD MEMBER JACKSON: What part of the building that the sign sits on was 8 redeveloped? 9 MR. KRAMER: So all of 216 North College. It's one building on that lot. 10 BOARD MEMBER JACKSON: Okay. 11 MR. KRAMER: And that whole building was redeveloped in the sense that the interior 12 was gutted and redone and the exterior façade was redone. 13 BOARD MEMBER JACKSON: Okay, was there a new roof put on? 14 MR. KRAMER: No. 15 BOARD MEMBER JACKSON: Okay. So the signs weren't actually touched in the 16 redevelopment? 17 MR. KRAMER: No, the signs were never touched, never moved… 18 BOARD MEMBER LONG: So, real quick…when you keep saying to full term, you 19 really mean in perpetuity? This lease extends in perpetuity. Unless, I get it that either side could 20 choose not to keep making their money on the sign, but in reality, this lease is in perpetuity. So 21 if we grant what you want, we're granting a billboard for infinity. 22 MS. MERCER: I don't agree with that interpretation. There are many circumstances 23 under which…extensions of lease terms are terminated for a variety of reasons. 24 BOARD MEMBER LONG: But it's an automatic extension every year? 25 MS. MERCER: That's right, it's a year-by-year lease, correct. 26 BOARD MEMBER LONG: So, that's in perpetuity…that's commonly known as in 27 perpetuity. 28 MR. KRAMER: Nothing is forever; I mean, at some point, the building is going to be 29 razed, a rooftop patio might be put in… 30 BOARD MEMBER LONG: The sign may actually fall over one day, I agree. 31 MR. KRAMER: Right…I think that it could…a two-story building could go in there at 32 some point in the future, yes, it's not a set date, but at some point in the future, yes. 14 1 BOARD MEMBER LONG: And you guys rejected the City's proposal and the Board's 2 approval for five years under threat of suing the citizens of Fort Collins? 3 MS. MERCER: The owner of the property has indicated that they do not oppose staff's 4 recommendation. Lamar needs to protect its… 5 BOARD MEMBER LONG: Then we don't need to be here. 6 MS. MERCER: Well, Lamar disagrees and needs to protect its full property interest. 7 BOARD MEMBER LONG: Okay, I knew somebody disagreed or we wouldn't be here. I 8 think that's good for me. 9 VICE CHAIR SHIELDS: Alright, we're going to move into audience participation. Is 10 there anyone in the audience for or against this appeal? Okay, seeing none, we'll move into 11 Board discussion. 12 BOARD MEMBER LONG: I'll just say what I said last time, and it's…I was okay with 13 what we said last time, the five year was, you know, but…they're not going to accept that. 14 They're going to go to City Council and then they're going to sue us if we agree with the staff 15 anyway. So, I never did…I still say that it's not minimal and inconsequential; it's 290% larger. I 16 don't completely buy that we…you know we don't get all the information. We get their input…I 17 don't want to…and if I ask Noah if there's ever been another off-site sign that was included in the 18 square…then he'll have to go through and…but I believe there has been. Because we've had 19 other cases here where we've had off-premise signage. Is that true Noah? 20 MR. BEALS: So, we indicated in the packet, there was a memo back from 2014 that kind 21 of outlined staff's position, or City's interpretation of the Code. And it does talk about properties 22 that…there was about ten properties at that time that would have to remove billboards at the time 23 they were redeveloped. And so this has been the interpretation of the City at this point. When 24 billboard existed on a property, and they wanted to redevelop and have their off-premise…or 25 their on-premise signage, that they would have to remove their off-premise signage to 26 accommodate the on-premise signage. 27 BOARD MEMBER LONG: So, it's been established in Code. I don't think it's minimal 28 or inconsequential. And I particularly don't agree that we would specifically allow a sign to 29 violate in perpetuity, or until one of the other sides decides they don't want to make that money 30 no more, or it falls over I guess, by erosion…sign erosion. So, I…you know, I don't see…again, 31 I think that let City Council deal with it, and we just reject it in whole and let them deal with it 32 and figure out what they think. I mean, if…that's where it's going anyway, and if they want to 33 rethink how we interpret the Land Use Code, it's way better to have City Council do it than us. I 34 don't think we should be rethinking Land Use Code. So, that's my take. 35 BOARD MEMBER BEAR: So, I have some thoughts. So, the request in the staff report 36 is to not have existing off-premise signage be included in the total allowable signage for the 37 property. And I support that. I think it serves the citizens of Fort Collins to have signage on 15 1 buildings where they are trying to do business. So, I think that I support that. I support the fact 2 that we should allow the 636 square feet of on-premise signage. 3 As far as the…finding one of the reasons to grant the variance, I don't think it's nominal 4 and inconsequential in the fact that, even though it's been there for 70 years, it isn't nominal and 5 inconsequential in the fact that it's unique in the area, so…and it's obviously large. So, I can't 6 call it nominal and inconsequential, can't call it equal to or better than, but I can appreciate the 7 hardship criteria in the fact that the owner purchased the property, didn't have…was very limited 8 in the ability to terminate the lease agreement, had a misunderstanding. I think it's reasonable 9 to…for us, as a Board, to say there could have been a reasonable lack of clarity that may have 10 resulted in this mistake, perhaps…like, I think that's reasonable. And, that has resulted in a 11 hardship in the fact that termination of the lease would create a significant financial hardship and 12 could impact the businesses and the success of that area of Old Town, depending on the impact 13 of that financial hardship on the owner. 14 And so, I could support it in that way, not that I, you know, appreciate the lack of due 15 diligence that occurred at the time of the transfer of the deed, but again, I think that what I'm 16 looking at is the result of that lack of due diligence and how that has actually created a hardship 17 that extends potentially beyond the owner. So, I do not believe that the public good would be 18 served by allowing the lease to continue after 2023, and although you then asserted that it would 19 be in the public good, I think that public good can often be best served by applying policy 20 consistently. And I would find that that would be in the public good in this case. And so, I could support the staff recommendation that we approve this with the variance expiring on October 1 st 21 22 of 2023. 23 VICE CHAIR SHIELDS: Yeah, I'd agree with that. You know, I think I said this last 24 time, but from an owner's perspective, it may have been an oversight in looking at what was 25 going to happen with that billboard on top of the roof. Yeah, they're redeveloping a property, 26 also they didn't touch the billboard or signage, so it's a weird kind of grey area in my mind. But 27 those tenants in those spaces…that are leasing those spaces need signage. I mean, they have to 28 have their sign. So, I would support staff's recommendation as well on this one. 29 BOARD MEMBER JACKSON: I would agree with everything you've said Daphne. The 30 only thing that kind of rattles in my head is that, if we give them the five years, that's great, but 31 they have a contract that is, as you said, in perpetuity, so it keeps going. So, at the end of five 32 years, what happens with that contract? Is it null and void? I mean, maybe that shouldn't matter 33 to us as a Zoning Board for signage code. 34 BOARD MEMBER LONG: Hopefully we won't be on the Board. 35 BOARD MEMBER BEAR: Most likely the Board will be back here in 2023. 36 BOARD MEMBER LONG: Hopefully we won't be here. 37 BOARD MEMBER JACKSON: I mean, I'm not a lawyer and I don't understand how 38 contracts work, and maybe that's something they need to work out between themselves, but I 16 1 would agree the only reason I could see to extend it for five years is for hardship of the 2 misunderstandings that went on early on. 3 BOARD MEMBER BEAR: Okay, so I move to approve Appeal ZBA180021 with the following condition: that the variance will expire on October 1 st 4 , 2023, and I make this 5 recommendation because granting of this variance for five years is not detrimental to the public 6 good, the current owner was assigned a lease agreement at the time of purchase and so did not 7 cause the hardship imposed by the lease to the extent that he didn't fully understand the 8 requirements in the lease agreement, the lease agreement is set to expire in September of 2023, 9 the off-premise sign has existed over 70 years and became a non-conformity when the applicable 10 regulations were created, if the variance is not approved, the new tenants of the building do not 11 have sign allowance to advertise their business, and once the lease expires in September 2023, 12 the hardship no longer exists and the applicant can choose whether to keep the billboards or the 13 tenant signs in order to comply with the allotted square footage of signage for the property; 14 therefore, during the remaining five years of the lease agreement, strict application of the sign 15 standards of the Land Use Code result in exceptional practical difficulty upon the tenants, an 16 applicant that was not caused by the act or omission of themselves intentionally. I would like to 17 add intentionally. The approval with the condition would not be a strict application that causes 18 an exceptional practical difficulty, and any renewal of a lease after the current term has expired 19 would no longer be a hardship because it would be a direct result of the applicant's actions. 20 VICE CHAIR SHIELDS: Second. Marcha, may we have roll call please? 21 MS. HILL: Bear? 22 BOARD MEMBER BEAR: Yes. 23 MS. HILL: Shields? 24 VICE CHAIR SHIELDS: Yes. 25 MS. HILL: Long? 26 BOARD MEMBER LONG: No. 27 MS. HILL: Jackson? 28 BOARD MEMBER JACKSON: Yes. 29 VICE CHAIR SHIELDS: Alright, Appeal number ZBA180021 has been approved with 30 conditions. Thank you. 17 1 Agenda Item 1 Item # 1 - Page 1 STAFF REPORT OCTOBER 11, 2018 STAFF Noah Beals, Senior City Planner/Zoning PROJECT ZBA180035 PROJECT DESCRIPTION Address: 505 S. Taft Hill Road Owner: Hi-Vue LLC Petitioner: Jim Moran Zoning District: L-M-N Code Section: 3.8.7.1(G)(1) Project Description: This variance request is for a proposed ground sign with a height of 13.5 feet. The maximum sign height allowed is 8.5 feet. COMMENTS: 1. Background: The property was developed in the county in 1960 as a carwash. It was annexed into the City in 1967 as part of the West Fort Collins Annexation. It is located along an arterial street and is located in the residential sign district. The property is allowed one ground along an arterial street. The height of the sign is dependent on the square footage of the sign and the setback from the public right of way. In this case the sign structure is setback 6.5 feet from the right of way and is approximately 28 square feet. This allows the sign to be 8.5 feet in height. Additionally, the sign code requires an abandoned sign to be removed after 60 days. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), staff recommends denial and finds that: • Within the residential sign district, which is across from residential uses, an additional 5 feet in height is not nominal and inconsequential. • Insufficient evidence has been provided in establishing a unique hardship to the property. • Insufficient evidence has been provided in showing how the proposal supports the standards in way equally well or better than a proposal that complies with the standards. 4. Recommendation: Staff recommends denial of APPEAL ZBA180035. Agenda Item 2 Item # 2 - Page 1 STAFF REPORT OCTOBER 11, 2018 STAFF Noah Beals, Senior City Planner/Zoning PROJECT ZBA180036 PROJECT DESCRIPTION Address: 1843 Michael Lane Owner/Petitioner: Michael Millsapps Zoning District: U-E Code Section: 4.2(D)(2)(d) Project Description: This variance request is for a proposed attached garage that would encroach 3 feet into the 20 feet required side-yard setback. COMMENTS: 1. Background: The property was developed in 1960 when it was in the County’s jurisdiction. It later annexed into the City in 1970. It is now zoned Urban Estate (U-E). The U-E zone district requires a 20ft side-yard setback from interior lot lines. The existing structure encroaches into a side setback. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), staff recommends approval and finds that: • The variance is not detrimental to the public good. • The proposed encroachment is less than the existing encroachment. • The portion of the proposed addition is less than 60 square feet. Therefore, the variance request will not diverge from the standard but in a nominal, inconsequential way, when considered in the context of the neighborhood, and will continue to advance the purpose of the Land Use Code contained in Section 1.2.2 4. Recommendation: Staff recommends approval of APPEAL ZBA180036. Agenda Item 3 Item # 3 - Page 1 STAFF REPORT OCTOBER 11, 2018 STAFF Noah Beals, Senior City Planner/Zoning PROJECT ZBA180037 PROJECT DESCRIPTION Address: 1205 W. Mountain Avenue Owner/Petitioner: Edward and Michele Smithwick Zoning District: N-C-L Code Section: 4.7(E)(3) Project Description: This variance request is for a proposed detached garage to encroach 10 feet into the required 15 feet rear-yard setback. COMMENTS: 1. Background: The property was annexed into the City in 1907. The primary structure was later built approximately in 1923. The property includes the north portions of 2 of the original platted lots. The south portions of these lots are a different parcel in which contains a primary building that was built in approximately 1949. The resulting divide of the property creates more of a square shaped parcel, that in turn causes a greater portion the primary building to sit in the rear half of the parcel. Additionally, the abutting south parcel fronts onto the Scott Ave. creating a side setback of 5 feet along the shared property line. Additionally, an existing accessory structure that would be demolished with the construction of the proposed garage, currently is setback 5 feet from the rear property line. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), staff recommends approval and finds that: • The variance is not detrimental to the public good. • An existing accessory building currently is setback 5 feet from the rear property line. • The abutting south parcel is required a 5 feet setback from the shared property line. Therefore, the variance request will not diverge from the standard but in a nominal, inconsequential way, when considered in the context of the neighborhood, and will continue to advance the purpose of the Land Use Code contained in Section 1.2.2 4. Recommendation: Staff recommends approval of APPEAL ZBA180037. Agenda Item 4 Item # 4 - Page 1 STAFF REPORT OCTOBER 11, 2018 STAFF Noah Beals, Senior City Planner/Zoning PROJECT ZBA180038 PROJECT DESCRIPTION Address: 305 N. Shields Street Owner/Petitioner: Mark Neubauer Zoning District: N-C-M Code Section: 4.8(D)(2)(a)2., 4.8(E)(4), 4.8(F)(2)(a)1., 4.8(F)(5), 3.8.19(A)(6) Project Description: The variance request is for a 2-story addition that will connect the primary building to the existing garage. The request requires the following four variances (1) The allowable floor area for the property is 3,575 sf; the proposed addition exceeds the allowable floor area by 468.17 sf. (2) The allowed height of the building is 25.33 feet; the proposed addition exceeds the allowed height by 1.82 feet (3) Any new off-street parking shall take access from an alley; the proposed addition includes a new garage accessing from the street (4) The required side-yard setback is 5 feet; the proposed addition encroaches 1.5 feet, matching the setback of the existing building on the lower portion and the upper portion is setback 6ft and is 19.5ft tall, the required a maximum height is 18ft with a 9ft setback. Additionally, the eaves encroach further than permitted. COMMENTS: 1. Background: The property was annexed into the City in 1954 as part of the Northwest consolidated annexation. Prior to annexation, the property was platted in 1922 in the Mountain View Addition subdivision. A building was construction approximately in 1940. It is unknown the number of changes that occurred from the initial construction. In the N-C-M the allowable height of a building is 2 stories. The measurement of a residential story is 12’ 8”, making the maximum height of single-family house 25’ 4”. In 2013 the Land Use Code was updated. This update did include an additional solar setback along north property lines. This setback states at 5 feet setback; the maximum wall height is 14 feet, and for every additional foot or fraction thereof of height the wall shall be setback an additional 1 foot. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), staff recommends denial and finds that: • These variance requests will diverge from the standards in a consequential way when considered in the context of the neighborhood. • Insufficient evidence has been provided in establishing a unique hardship to the property. • Insufficient evidence has been provided in showing how the proposal supports the standards in way equally well or better than a proposal that complies with the standards. 4. Recommendation: Staff recommends denial of APPEAL ZBA180038. Agenda Item 5 Item # 5 - Page 1 STAFF REPORT OCTOBER 11, 2018 STAFF Noah Beals, Senior City Planner/Zoning PROJECT ZBA180039 PROJECT DESCRIPTION Address: 320 Willow Street Owner/Petitioner: Lance Debar Zoning District: R-D-R Code Section: 3.5.2.E(3) Project Description: An existing accessory building is being torn down to construct a new building on the adjoining property. The variance request is to rebuild the accessory building in its current location encroaching 4 feet into the required 5 feet side-yard setback and 7 feet into the required 8 feet rear-yard setback. COMMENTS: 1. Background: The property’s primary building was built approximately in 1899. It is uncertain when the accessory building was built. Recently, a development project was approved on the abutting property to the North. This project is for a 5- story mixed use building. The project results with a 21ft tall wall setback 0ft from the property line that abuts 320 Willow Street rear yard, and a 37ft tall wall setback 0ft that abuts the side-yard. 320 Willow Street is a single family detached dwelling. This use requires an 8ft setback from the rear property and 5ft setback from the side property line. In this care, the rear and side property are shared by the approved development project that has a 0ft setback. The existing shed that is setback 1ft from both property lines and will be demolished to construct the abutting development project. Once a nonconforming structure is self-demolished. It can only be rebuilt in compliance with current standards. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), staff recommends approval and finds that: • The variance is not detrimental to the public good. • The existing shed has enjoyed the same 4ft encroachment. • The 21ft tall wall and 37ft tall wall of the new development will not be impacted by the 11ft tall shed. Therefore, the variance request will not diverge from the standard but in a nominal, inconsequential way, when considered in the context of the neighborhood, and will continue to advance the purpose of the Land Use Code contained in Section 1.2.2 4. Recommendation: Staff recommends approval of APPEAL ZBA180039.