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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/30/2012 - CONSIDERATION OF THE APPEAL OF THE AUGUST 9, 2012DATE: October 30, 2012 STAFF: Peter Barnes AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 3 SUBJECT Consideration of the Appeal of the August 9, 2012 Zoning Board of Appeals Decision to Approve a Variance to Allow the Existing Off-premise Sign (Billboard) Located in the BNSF Railroad Right of Way at 190 West Prospect Road to Be Removed and Reinstalled at a New Location Within the Same Railroad Right of Way at 190 West Prospect Road. EXECUTIVE SUMMARY On August 9, 2012, the Zoning Board of Appeals (ZBA) considered Appeal #2714, submitted by the City of Fort Collins Engineering Department. This Appeal was for a variance to Section 3.8.7(P) of the City of Fort Collins Land Use Code (LUC), which prohibits the construction of new off-premise signs. The variance was requested in order to allow the existing off-premise sign in the BNSF Railroad right of way on the north side of Prospect Road to be relocated within the railroad right of way 70 feet west of its current location. The sign’s current location is in direct conflict with the guideway alignment for the MAX BRT (Bus Rapid Transit) project. The ZBA unanimously approved the variance request as authorized by Section 2.10.1 of the LUC. On August 23, 2012, Richard L. Anderson (the Appellant) filed a Notice of Appeal with the City Clerk. The Appellant alleges that the ZBA: A. Failed to conduct a fair hearing in that: 1. The Board considered evidence relevant to its findings which was grossly misleading; 2. The Board substantially ignored its previously established rules of procedure; 3. The Board exceeded its authority and jurisdiction. B. The Board failed to properly interpret and apply relevant provisions of the Land Use Code. BACKGROUND / DISCUSSION The Sign Code was amended in 1994 to prohibit the construction of new off-premise signs (aka billboards) anywhere in the city. Existing off-premise signs were grandfathered in due to protection afforded them by the Federal Highway Beautification Act. The sign that is the subject of this appeal was constructed pursuant to a sign permit issued prior to 1994 and falls within the scope of the Federal Highway Beautification Act. The City of Fort Collins has purchased an easement within the BNSF Railroad right of way on the east side of the tracks for the proposed MAX BRT guideway alignment. At the current location, the existing off-premise sign is in direct conflict with the proposed guideway alignment. Removing the sign without relocating it will require monetary compensation, as required by the Federal Highway Beautification Act. The City of Fort Collins Engineering Department submitted an application to the Zoning Board of Appeals, requesting a variance to relocate the existing sign within the railroad right of way, 70 feet west of its current location. Removing an existing off-premise sign and reconstructing it in a different location is equivalent to the construction of a new off- premise sign; therefore, a variance is needed, even though the new location is on the same property. The setback distance from Prospect Road at the new location will remain unchanged from the Prospect Road setback at the sign’s current location. The appellant, Richard Anderson, owns the two commercial properties at 200 and 220 West Prospect Road, directly west of the Railroad right of way. Mr. Anderson testified at the August 9, 2012 ZBA meeting that he had concerns with billboards in general and with the effect that the relocation of the subject sign might have on the value of his property. In particular, he was concerned about the impact to his two properties if his tenant at 200 West Prospect decided to advertise on the billboard, thereby increasing his business and creating a parking problem for the tenants of his other October 30, 2012 -2- ITEM 3 building (lines 19 – 39, page 5 and lines 1 – 2, page 6 of the verbatim transcript, Attachment 5). Mr. Anderson is appealing the decision of the ZBA. ACTION OF THE ZBA ZBA Appeal #2714 originally appeared on the July 12, 2012 ZBA agenda, but was postponed to the August 9, 2012 hearing. After testimony from the staff, the applicant, and the public, the ZBA unanimously approved the variance request on August 9, 2012 to allow the sign to be moved 70 feet west of its current location. THE QUESTIONS COUNCIL NEEDS TO ANSWER 1. Did the ZBA fail to conduct a fair hearing? 2. Did the ZBA fail to properly interpret and apply relevant provisions of the Land Use Code? ALLEGATIONS ON APPEAL On August 23, 2012, Richard L. Anderson filed a Notice of Appeal with the City Clerk. The appeal alleges that the Board failed to conduct a fair hearing and failed to properly interpret and apply relevant provisions of the Land Use Code, specifically Section 2.10.2(H). A. Failure to Conduct a Fair Hearing Allegation: The ZBA considered evidence relevant to its findings which was grossly misleading. Mr. Anderson states in the Notice of Appeal, “The ZBA further considered the facts that were misleading in that information presented reflected that the signage was to be continued in substantially the same form as it currently or has historically existed. The current sign has only one used/usable sign face (viewable by eastbound traffic). It is understood that there is intent to significantly increase the impact of the sign by allowing signage on both sides of the pole (viewable from both east and west). The proposed signage would have a substantially greater impact than the existing signage.” Staff Response The staff report provided to the ZBA and the verbatim transcript of the hearing contain no mention of the existing sign having only one used or usable face or that the relocated sign might have two. However, the slides contained in the staff’s Powerpoint presentation for the ZBA meeting show that the existing sign has only one face and that a mock-up of the relocated sign at the new location shows sign faces on both sides of the sign (see slides 3, 16, and 17 on Attachment 3). The motion-maker moved to approve the variance based on the nominal, inconsequential standard of the LUC, noting that “It’s on the same property, it’s the same sign, it’s moving west.” (Lines 14 - 17, page 12, and lines 11 - 23, page 13 of the verbatim transcript, Attachment 5). Since there was no discussion during the hearing about the number of faces of the existing sign or of the proposed, relocated sign, it’s difficult to determine that the board members considered evidence which was grossly misleading or that they “understood that there is an intent to significantly increase the impact of the sign…” as stated by Mr. Anderson. Allegation: The ZBA substantially ignored its previously established rules of procedure. Another fair hearing argument raised by Mr. Anderson is that the ZBA ignored previously established rules of procedure. However, the Appeal does not contain any specific assertions as to how the ZBA ignored its established rules of procedure. Staff Response There are no specific assertions to respond to. October 30, 2012 -3- ITEM 3 Allegation: The ZBA exceeded its authority and jurisdiction. The Appellant argues that the Board exceeded its authority and jurisdiction in granting the variance but presents no specific argument in support of that assertion, other than referencing Section 2.10.2 – Step 8 of the Land Use Code, which reads as follows: Section 2.10.2 Variance Review Procedures (H) Step 8 (Standards): Applicable, and the Zoning Board of Appeals may grant a variance from the standards of Articles 3 and 4 only if it finds that the granting of the variance would neither be detrimental to the public good nor authorize any change in use other than to a use that is allowed subject to basic development review; and that: (1) by reason of exceptional physical conditions or other extraordinary and exceptional situations unique to such property, including, but not limited to, physical conditions such as exceptional narrowness, shallowness or topography, or physical conditions which hinder the owner's ability to install a solar energy system, the strict application of the standard sought to be varied would result in unusual and exceptional practical difficulties, or exceptional or undue hardship upon the occupant of such property, or upon the applicant, provided that such difficulties or hardship are not caused by the act or omission of the occupant or applicant; (2) the proposal as submitted will promote the general purpose of the standard for which the variance is requested equally well or better than would a proposal which complies with the standard for which the variance is requested; or (3) the proposal as submitted will not diverge from the standards of the Land Use Code that are authorized by this Division to be varied except in a nominal, inconsequential way when considered in the context of the neighborhood, and will continue to advance the purposes of the Land Use Code as contained in Section 1.2.2. Any finding made under subparagraph (1), (2) or (3) above shall be supported by specific findings showing how the proposal, as submitted, meets the requirements and criteria of said subparagraph (1), (2) or (3). Staff Response It is possible that the Appellant is arguing that a “new sign” could not be authorized by variance because the granting of such a variance would be a “use variance” or a “change in use” which would conflict with the standards in the aforementioned Section 2.10.2(H). However, that Section and other Sections of 2.10 only prohibit the Board from authorizing certain types of “changes in use” and there’s no mention at all of a prohibition against “use variances”. ZBA Appeal #2714 was presented before the Board as a request for a variance from the requirement of Land Use Code Section 3.8.7(P), which prohibits the construction of any new off-premise sign. Since all of the permitted and prohibited uses in the Land Use Code are contained in the Article 4 zone district standards, and not in Article 3, the variance request was not for a variance to any of the use standards in Article 4, but was rather a request only for relief from Section 3.8.7(P) of the Land Use Code. Section 3.8.7(A)(1) of the Land Use Code states that “Signs shall be permitted in the various zone districts as accessory uses in accordance with the regulations contained in this Section.” Additionally, Section 3.8.1, “Accessory Buildings, Structures and Uses”, lists signs as an accessory use. All zone districts in Article 4 authorize “accessory uses”. The property in question is located in the CC – Community Commercial zone district wherein “accessory uses” are listed as a permitted use (Section 4.18(B)(1)(a)2.). Staff believes that the construction of this billboard on the other side of the railroad track does not constitute a “use variance” since the sign is classified as an accessory use, which is a permitted use. Similarly, it is not a change in use since the current use is an accessory use sign and the proposed use is an accessory use sign. City Council must determine whether or not the ZBA exceeded its authority or jurisdiction by granting the variance on the basis of any violation of Section 2.10.2(H) regarding uses. October 30, 2012 -4- ITEM 3 B. Failure to Properly Interpret and Apply Relevant Provisions of the City Code, the Land Use Code and Charter, Specifically Land Use Code Section 2.10.2(H). Allegation: The ZBA based its granting of the variance on the desire to save the City money. The appellant argues that “The purpose for the ZBA’s granting of the subject variance can be explained in no other way than a desire to save the City money. While it is certainly laudable that the that City staff and the ZBA focused on preserving taxpayer dollars, Section 2.10.2 does not allow the ZBA to grant a variance on the basis that there will be a positive impact on the public coffers.” Staff response On the question of the proper interpretation of the Land Use Code, Section 2.10.2(H) of the Land Use Code is the section that is referenced in the Notice of Appeal. This section sets forth the standards by which the ZBA is to make a determination as to whether or not a variance application can be approved, approved with conditions, or denied. In order to approve a variance, the Board must find that the application satisfies one or more of the following criteria: 2.10.2(H)(1) by reason of exceptional physical conditions or other extraordinary and exceptional situations unique to such property, including, but not limited to, physical conditions such as exceptional narrowness, shallowness or topography, or physical conditions which hinder the owner's ability to install a solar energy system, the strict application of the standard sought to be varied would result in unusual and exceptional practical difficulties, or exceptional or undue hardship upon the occupant of such property, or upon the applicant, provided that such difficulties or hardship are not caused by the act or omission of the occupant or applicant; 2.10.2(H)(2) the proposal as submitted will promote the general purpose of the standard for which the variance is requested equally well or better than would a proposal which complies with the standard for which the variance is requested; or 2.10.2(H)(3) the proposal as submitted will not diverge from the standards of the Land Use Code that are authorized by this Division to be varied except in a nominal, inconsequential way when considered in the context of the neighborhood, and will continue to advance the purposes of the Land Use Code as contained in Section 1.2.2. The record reflects that the Board granted the variance after finding that it would not be detrimental to the public good to grant the variance and that the proposal as submitted will not diverge from the standards of the Land Use Code except in a nominal and inconsequential way when considered in the context of the neighborhood, and will continue to advance the purposes of the Land Use Code as contained in Section 1.2.2. (Beginning on line 14, page 12 of the verbatim transcript and continuing to the end, Attachment 5). The Appellant argues that the Board based its granting of the variance solely on the desire to save money for the City (first paragraph on Page 1 of the Appellant’s attachment to the Notice of Appeal). The record shows that there was discussion at the ZBA hearing regarding the requirement to compensate the sign owner in the event the sign is required to be removed and not allowed to be relocated. The staff report and the City Engineering Department’s justification statement that were presented to the board also contained references to monetary compensation. However, the record shows that no further discussion regarding such compensation occurred just prior to the motion to approve the variance or during discussion on the motion and the actual vote. The Board granted the variance upon the finding that it would not be detrimental to the public good to do so, and that the granting of the variance fit the nominal and inconsequential requirement of Land Use Code Section 2.10.2(H)(3). The Council should examine the findings and motion of the Board in granting of the variance to determine if the decision to approve the variance was on the basis of saving money or on the finding that it would not be detrimental to the public good and that it satisfied the nominal and inconsequential standard in Sec. 2.10.2(H)(3) of the LUC. SUMMARY The appellant alleges that the Zoning Board of Appeals failed to conduct a fair hearing and failed to properly interpret and apply relevant provisions of the Fort Collins Land Use Code. October 30, 2012 -5- ITEM 3 The Staff Report presented to the Board concluded that the variance request satisfied one or more of the standards necessary for the granting of a variance as required in Section 2.10.2(H) of the Land Use Code. The ZBA unanimously approved ZBA Appeal #2714 after finding that the variance request satisfied the nominal, inconsequential standard in Section 2.10.2(H)(3) of the Land Use Code. Council should review the record to determine whether or not the Board held a fair hearing and whether or not the Board properly interpreted and applied the relevant provisions of the Land Use Code in approving the variance to allow the existing off-premise sign at 190 West Prospect Road to be relocated 70 feet to the west. ATTACHMENTS 1. City Clerk’s Public Notice of Hearing and Notice of Site Visit. 2. Notice of Appeal, Richard L. Anderson, filed August 23, 2012. 3. Staff Report, with attachments, provided to the Zoning Board of Appeals for the Hearing held August 9, 2012. 4. Materials Submitted by City of Fort Collins Engineering Department, Applicant, to the Zoning Board of Appeals. 5. Verbatim Transcript of the Zoning Board of Appeals August 9, 2012 Hearing of ZBA Appeal #2714. 6. Site Visit Summary, October 1, 2012. 7. Staff PowerPoint presentation to Council ATTACHMENT 1 City Clerk’s Public Hearing Notice and Notice of Site Visit NOTICE OF SITE INSPECTION An appeal of the Zoning Board of Appeals decision of August 9, 2012, regarding the Approval of a Zoning Variance for 190 West Prospect will be heard by the Fort Collins City Council on October 16, 2012. Pursuant to Section 2-55 of the City Code, members of the City Council will be inspecting the site of the proposed project on October 1, 2012 at 3:30 p.m.. Notice is hereby given that this site inspection constitutes a meeting of the City Council that is open to the public, including the appellants and all parties-in-interest. The site is located at 190 West Prospect, Fort Collins, Colorado. A ny Councilmember who inspects the site, whether at the date and time above, or independently shall, at the hearing on the appeal, state on the record any observations they made or conversations they had at the site which they believe may be relevant to their determination of the appeal. If you have any questions or require further information, please feel free to contact the City Clerk’s Office at (970) 221-6515. _________________________________ Wanda Nelson, City Clerk Notice Mailed: September 21, 2012 cc: City Attorney Community Development & Neighborhood Services Zoning Board of Appeals Chair Appellant/Applicant The purpose of the site inspection is for the City Council to view the site and to ask related questions of City staff to assist Council in ascertaining site conditions. There will be no opportunity during the site inspection for the applicant, appellants, or members of the public to speak, ask questions, respond to questions, or otherwise provide input or information, either orally or in writing. Other than a brief staff overview and staff responses to questions, all discussion and follow up questions or comments will be deferred to the hearing on the subject appeals to be held on October 16, 2012. NOTE: See other side for Public Hearing Notice ATTACHMENT 2 Notice of Appeal - Notice of Appeal, filed August 23, 2012 Attachment 3 STAFF REPORT PROJECT: Appeal #2714 – 190 W. Prospect Road Zoning Board of Appeals Variance, August 9, 2012 ZBA Hearing (Continued from July 12, 2012 Hearing) APPLICANT: City of Fort Collins Engineering Department OWNER: BNSF Railroad ZONE DISTRICT: CG PROJECT DESCRIPTION: Request for Variance to Section 3.8.7(P) - Off-premise sign. Section 3.8.7(P) - The sign code prohibits the construction of new off-premise signs. Moving an existing off-premise sign and reconstructing it in a different location is equivalent to the construction of a new off-premise sign. The variance requested will allow the existing off-premise sign in the railroad right of way on the north side of Prospect Road to be relocated within the railroad right of way 70 feet west of its current location. The setback distance from Prospect Road at the new location will remain unchanged from the Prospect Road setback at the sign’s current location. The existing billboard location is in conflict with the proposed guideway alignment for the MAX BRT project (Aka Mason Corridor Project). The relocation is necessary in order to construct the project. RECOMMENDATION: Approval. COMMENTS: 1. Background: The sign code was amended in 1994 to prohibit the construction of new off- premise signs (aka billboards). Existing off-premise signs were grandfathered in due to protection afforded them by the Federal Highway Beautification Act. The Zoning Variance – Appeal #2714 August 9, 2012 Zoning Board of Appeals Public Hearing Page 2 sign that is the subject of this appeal was constructed pursuant to a sign permit issued prior to 1994. The City of Fort Collins has purchased an easement within the BNSF right of way on the east side of the tracks for the proposed MAX BRT guideway alignment. At the current location, the existing off-premise sign is in direct conflict with the proposed guideway alignment. Removing the sign without relocating it will require monetary compensation as required by the Federal Highway Beautification Act. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), Staff recommends approval of the variance and finds that:  The granting of the variance will not be detrimental to the public good.  The guideway location within the railroad right of way must be within the guideway easement and the right of way must accommodate the safe movement of both the trains and the MAX busses. Retrofitting the right of way to accommodate both transportation modes is an exceptional situation unique to this property and results in an involuntary ‘taking’ of the sign. While economic reasons are usually not considered as satisfying the hardship criteria, the cost to taxpayers to purchase the sign if a variance isn’t approved would be very substantial. In this instance, staff believes that the combination of the exceptional situation unique to the property and the monetary cost if a variance is not approved results in unusual and exceptional practical difficulties upon the applicant and therefore satisfies the criteria for a hardship variance.  The proposed location of the sign results in a setback from Prospect Road that is the same setback as at its current location. Since there is already an off-premise sign within the railroad right of way, and since the reconstructed sign will be the same structure as the existing one and will not be located closer to the street, staff finds that the variance will not diverge from the standards of the code except in a nominal and inconsequential way when considered in the context of the neighborhood. The sign is simply being moved from one location to another on the same property. Zoning Variance – Appeal #2714 August 9, 2012 Zoning Board of Appeals Public Hearing Page 3 RECOMMENDATION: Staff recommends approval of the variance to Section 3.8.7(P) in order to allow the existing off-premise sign to be removed and to be relocated to the location shown on the site plan submitted with this variance application. ATTACHMENT 3 Staff Report Provided to the Zoning Board of Appeals Hearing held August 9, 2012 Attachment 3 STAFF REPORT PROJECT: Appeal #2714 – 190 W. Prospect Road Zoning Board of Appeals Variance, August 9, 2012 ZBA Hearing (Continued from July 12, 2012 Hearing) APPLICANT: City of Fort Collins Engineering Department OWNER: BNSF Railroad ZONE DISTRICT: CG PROJECT DESCRIPTION: Request for Variance to Section 3.8.7(P) - Off-premise sign. Section 3.8.7(P) - The sign code prohibits the construction of new off-premise signs. Moving an existing off-premise sign and reconstructing it in a different location is equivalent to the construction of a new off-premise sign. The variance requested will allow the existing off-premise sign in the railroad right of way on the north side of Prospect Road to be relocated within the railroad right of way 70 feet west of its current location. The setback distance from Prospect Road at the new location will remain unchanged from the Prospect Road setback at the sign’s current location. The existing billboard location is in conflict with the proposed guideway alignment for the MAX BRT project (Aka Mason Corridor Project). The relocation is necessary in order to construct the project. RECOMMENDATION: Approval. COMMENTS: 1. Background: The sign code was amended in 1994 to prohibit the construction of new off- premise signs (aka billboards). Existing off-premise signs were grandfathered in due to protection afforded them by the Federal Highway Beautification Act. The Zoning Variance – Appeal #2714 August 9, 2012 Zoning Board of Appeals Public Hearing Page 2 sign that is the subject of this appeal was constructed pursuant to a sign permit issued prior to 1994. The City of Fort Collins has purchased an easement within the BNSF right of way on the east side of the tracks for the proposed MAX BRT guideway alignment. At the current location, the existing off-premise sign is in direct conflict with the proposed guideway alignment. Removing the sign without relocating it will require monetary compensation as required by the Federal Highway Beautification Act. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), Staff recommends approval of the variance and finds that:  The granting of the variance will not be detrimental to the public good.  The guideway location within the railroad right of way must be within the guideway easement and the right of way must accommodate the safe movement of both the trains and the MAX busses. Retrofitting the right of way to accommodate both transportation modes is an exceptional situation unique to this property and results in an involuntary ‘taking’ of the sign. While economic reasons are usually not considered as satisfying the hardship criteria, the cost to taxpayers to purchase the sign if a variance isn’t approved would be very substantial. In this instance, staff believes that the combination of the exceptional situation unique to the property and the monetary cost if a variance is not approved results in unusual and exceptional practical difficulties upon the applicant and therefore satisfies the criteria for a hardship variance.  The proposed location of the sign results in a setback from Prospect Road that is the same setback as at its current location. Since there is already an off-premise sign within the railroad right of way, and since the reconstructed sign will be the same structure as the existing one and will not be located closer to the street, staff finds that the variance will not diverge from the standards of the code except in a nominal and inconsequential way when considered in the context of the neighborhood. The sign is simply being moved from one location to another on the same property. Zoning Variance – Appeal #2714 August 9, 2012 Zoning Board of Appeals Public Hearing Page 3 RECOMMENDATION: Staff recommends approval of the variance to Section 3.8.7(P) in order to allow the existing off-premise sign to be removed and to be relocated to the location shown on the site plan submitted with this variance application. ATTACHMENT 3 1 1 2 ATTACHMENT 3 2 3 4 ATTACHMENT 3 3 5 6 ATTACHMENT 3 4 7 8 ATTACHMENT 3 5 9 10 ATTACHMENT 3 6 11 11 MAX – Bus Rapid Transit  5 Mile Corridor Guideway (Exclusive and Mixed Traffic) 13 Station Locations Bike Trail Overpass Underpass New South Transit Center Park and Ride Maintenance Facility Expansion 12 12 Prospect Station ATTACHMENT 3 7 13 14 ATTACHMENT 3 8 15 16 ATTACHMENT 3 9 17 ATTACHMENT 4 Materials submitted by the City of Fort Collins Engineering Department, Applicant, to the Zoning Board of Appeals 1 Attachment 4 Petitioner’s Justification Statement City of Fort Collins Engineering Department ZBA Appeal #2714 – 190 W. Prospect Road MAX BRT Billboard Code Variance Request - Project Narrative Variance Requested A variance from the sign code standard for billboard relocation is being requested due to the MAX BRT project for two (2) billboard signs located at 290 West Horsetooth Road and 190 West Prospect Road leased by CBS Outdoor, owned by Nextmedia. Background The MAX Bus Rapid Transit (BRT) project is a proposed north-south BRT system in the central core of the City of Fort Collins, Colorado. The MAX BRT is located just west of and parallel to College Avenue (US 287), one of the busiest arterials within the City and the entire North Front Range region. The project corridor extends from Cherry Street on the north, to approximately ¼ mile south of Harmony Road, with a total length of five miles. The BRT System is proposed within an exclusive guideway for 2.8 miles, with the remaining 2.2 miles intermixed with street traffic on portions of McClelland Drive and Mason Street. Along the entire length of the corridor, the MAX BRT runs parallel to and on the east side of the existing Burlington Northern and Santa Fe (BNSF) Railway tracks. Along the project corridor, the City of Fort Collins purchased an easement within the BNSF right of way on the east side of the tracks for the proposed MAX BRT guideway alignment. At the location of Horsetooth and McClelland, there is an existing billboard that is in direct conflict with the proposed guideway alignment. Due to existing field conditions, the project team is requesting a variance in order to relocate an existing billboard sign located in the City of Fort Collins purchased easement. The project team believes that a variance request to the standard is reasonable and warranted. The project is requesting two (2) variances for two (2) signs with similar conditions. Each sign variance request is being presented independently for consideration by The Board. City Staff will be representing the business owners, with their written consent, to convey the overall project needs and answer detailed questions about the alternatives and analysis that went into this variance request. Exceptional Physical Conditions The existing billboards are located on the east side of the tracks within a one (1) square foot envelope in the purchased City of Fort Collins easement and is in direct conflict with the guideway alignment, guardrail and Bus Operations, and will need to be relocated to the west side of the BNSF right of way to eliminate the conflict with the guideway. CBS Outdoor is the lease holder of the one (1) square foot envelope with BNSF, and NextMedia is the owner of the sign. Negotiations with BNSF, CBS Outdoor and NextMedia concluded with agreed upon locations of 2 the billboard signs that was amicable to all parties. The new proposed approximate location for the 190 West Prospect Road billboard will be 70 feet west, and will not move north/south from its current location (i.e. sign will move due west) within the BNSF right of way. The new proposed approximate location for the billboard located at 290 West Horsetooth Road will be 123 feet west, and will not move north/south from the current location (i.e. sign will move due west) within the BNSF right of way. The proposed location will have no significant impacts on surrounding properties in that it will slightly vary from its current location. The existing sign code states billboards are no longer allowed in the City of Fort Collins. However, the need for the sign relocation is due to the City’s MAX BRT project, and not by the owner’s request. CBS Outdoor has expressed that if the billboard is forced to meet current code and be removed, they will seek legal action and monetary damages. With the approval of this variance, the project team would like to minimize cost to the project and to the City. There are no alternative locations on the property to relocate this sign that will meet all party’s criteria with the intent of the advertising on the billboard. Due to the above mentioned exceptional physical constraints, a variance is requested to allow for the existing billboard sign to be relocated 70 feet west of its current location within the BNSF right of way for190 West Prospect Road billboard and 123 feet west of its current location within the BNSF right of way for 290 West Horsetooth Road. ATTACHMENT 5 Verbatim Transcript of the Zoning Board of Appeals Hearing August 9, 2012 HEARING OF THE ZONING BOARD OF APPEALS CITY OF FORT COLLINS Held Thursday, August 9, 2012 City Council Chambers 200 West Laporte Street Fort Collins, Colorado In the Matter of: Appeal #2714 – 190 W. Prospect Road Zoning Board of Appeals Variance Meeting time: 8:30 a.m., August 9, 2012 BOARD MEMBERS PRESENT: STAFF MEMBERS PRESENT: Michael Bello, Chair Paul Eckman, Deputy City Attorney Peter Bohling Peter Barnes, Zoning Administrator Bob Long Marcha Hill, Staff Support Dana McBride John McCoy 2 1 CHAIRMAN MICHAEL BELLO: Could we have the next appeal please? 2 MS. MARCHA HILL: Appeal 2714, address, 190 West Prospect Road, petitioner, City 3 of Fort Collins, zoning district CG, Section 3.87(P), description, this appeal was postponed from 4 the July 12, 2012 ZBA meeting, the variance will allow the existing billboard that is located in 5 the railroad right-of-way on the north side of Prospect Road to be relocated seventy feet 6 of…seventy feet west of its current location. The setback distance from Prospect Road at the 7 new location will remain unchanged from the Prospect Road setback at the sign’s current 8 location. The existing billboard location is in conflict with the proposed guideway alignment for 9 the MAX BRT project, also known as the Mason Corridor project. The relocation is necessary in 10 order to construct the project. For justification, see the petitioner’s letter in the staff packet. 11 MR. PETER BARNES: Okay, this is the same variance that the Board just considered 12 and approved, just in a different location. This one is on West Prospect, west of College 13 Avenue. As you can see, the train was kind enough to be crossing the street when we took this 14 aerial…and that clearly illustrates the railroad right-of-way, which is right here. The existing 15 sign that, again, is in the way of the guideway, is located here, on the north side of Prospect. 16 Again, there is an off-premise sign, similar to this one, on the south side of Prospect. The 17 proposal is to move this sign from its current location to a location over here to the west, and 18 again it would be at the same setback distance from Prospect. This is the existing sign. I should 19 point out this building you see in the background will be removed as part of the Mason Corridor 20 project; it’s also in the way. This is the…again, the building I was just referencing. Here you 21 see the off-premise sign that’s on the south side of Prospect street. This is a mock-up of the 22 proposed sign location. I do want to clarify that the frame you see here, out of PVC, is five by 23 ten; the sign is actually six by twelve. But, this is where it would be located on this particular 24 relocated site. This is looking to the east, its current location, and then its new location. This is 25 the one on the south side. I don’t have any other comments at this time. 26 CHAIRMAN BELLO: Okay, is there any questions of staff, or the applicant in this case? 27 Okay, seeing none. Anybody in the audience would like to addres…? 28 MS. CAROLYNNE WHITE: Mister Chairman, members of the Board, Carolynne White 29 again, 410 17th Street in Denver. Just reiterate our previous comments, it’s the same situation. 30 Thank you. 31 CHAIRMAN BELLO: Thank you. Anybody else like to address the Board? Okay, 32 seeing none. Board discussion? Oh, I’m sorry, I’m sorry. 33 MR. RICHARD ANDERSON: I’m not sure I can talk and listen at the same time, but I’m 34 going to try it. My name is Richard Anderson, you need my address, is that right? 35 CHAIRMAN BELLO: Please. Yes. 3 1 MR. ANDERSON: What information? 2 CHAIRMAN BELLO: Your address please. Your address. 3 MR. ANDERSON: I live at 1229 Harris Drive, which is outside the City limits off of 4 Shields Street, just along the river. And what else? 5 CHAIRMAN BELLO: That’s all, thank you. 6 MR. ANDERSON: I find myself very conflicted this morning because I’ve been waffling 7 back between not saying anything and saying too much. And that’s because information is…I 8 became aware that there was going to be this hearing about a month ago, or a little better, and 9 was here last month when it was postponed. And I…what the background for this need in 10 piecemeal and as I made evaluations for myself about which way I would go, I learned quite a 11 bit. But, a lot of times, what I learned one day, and when I investigated further, what I learned 12 the next day made me want to shift. And, I want to tell you that I’m sure that there are people 13 here who will feel that I’m talking out of both sides of my mouth, and I am, but it’s not 14 because…I don’t…I had a strong opinion about this from the beginning, and my opinion was 15 negative. The reason for that was there was a slight error in what the first letter said that kind of 16 set me off. I got the letter that there was going to be this meeting coming up, and what it was. I 17 got it late on a Saturday night, and I just didn’t read it, didn’t open it. On Sunday morning, I 18 opened it up and I glanced at it and I thought, this is pretty strange because I could just visualize, 19 if you follow those directions, where this pole is supposed to go, and it goes in the middle of my 20 parking lot. Not quite in the middle. And that’s…that made me get up and go over and see if I 21 could step that off. And, I could step it off, and that’s about where it would have been. Now, I 22 don’t have any grudges about that at all, I understand mistakes can occasionally be made, but it 23 did kind of jar me a little bit, that I was going to be giving up my rights if I don’t do something. 24 So, I pointed that out, and those corrections were made, and what you hear here is a corrected 25 version. 26 I want to tell you a little bit about myself. I think that I would like to share with you 27 something about my history in Fort Collins as a reason for my fluctuation a little bit here, and 28 would be a reason of where…for where I come down today, which is in the negative side. I 29 came to Fort Collins in 1957 with my wife and two children, one of whom is here today. She’s 30 the in between child, and then our son was born here in Fort Collins the next year. My daughter, 31 Gail, is the only one that lives in Fort Collins today. My wife is now deceased. We own the 32 property as trusts, through trusts. I’m trustee for both of us. I came to teach at the high school, 33 there was only one high school in 1957, the one that now belongs to the University, where they 34 do all of the arts and…there’s another word for something there and I forget. 35 (**Unintelligible remarks from Mr. Anderson and another audience member.) 4 1 MR. ANDERSON: I’m being advised. She says I’m not speaking to the issue. I’m 2 giving you background to let you know how I’m going to speak to the issue. The house that we 3 bought was, two years before we bought it, was outside the City limits. And that was on 4 Prospect, it was east Prospect. I experienced, by owning the house, what happened as a result, 5 the fact that it was making a shift from being in the County to being in the City, and we got 6 sidewalks and changes made. And, the City of Fort Collins, I began to have great respect for in 7 that they planned ahead…how things were to look. And, as…eventually, I began to feel that the 8 City is the place that you look to the future. It’s how these things are going to…what Fort 9 Collins is going to look like in the years to come. And, that’s, I think, where the billboards were 10 a factor, eventually. The City decided that there should be no more billboards in the city, except 11 those…only those that were already in place. And, I think that that’s reasonable. At one 12 point…we purchased the property which is where…SoWan here is the owner of the sushi 13 restaurant on the property that we’re addressing. I call that property kind of an island, because it 14 was…you’re talking about changes in the…what Fort Collins looks like, an island was built 15 there. There was fill brought in because normally that was…originally, by nature, that was a 16 wash…that’s where the overflow of high water came down and joined Spring Creek. The 17 property is essentially a hundred and fifty square…a hundred and fifty feet in each direction, it’s 18 a square. It’s not very bit, and at one time…when we purchased it, there were two building 19 there, one…there were two different, actually two different parcels of ground involved, but I 20 don’t think that makes much difference to you. But, they can’t be…they can’t function as two 21 separate units. They have to be together because it’s so small, they share parking and so on. The 22 principal building there that you’re looking at…this is the bigger…the biggest one and the 23 newest one, is formerly a 7-11 store. It was built after we came to Fort Collins. When we came 24 to Fort Collins, this…that side of College Avenue on Prospect, I’m not even sure it was asphalt. 25 It was in a development stage, and, in a way, the gentleman that developed that, was not…he 26 didn’t have a long-term idea about how things should look, or what they should look like in the 27 future. It needed to be just what he was thinking about doing at the moment. And, he built one 28 building in two stages and then he built the 7-11 in one stage. 29 And, when we had the big…the flood of Spring Creek, the one that washed through 30 campus and came down, one of the people that got washed out was a lady that owned a pizza 31 place, and she came to me, and she knew that I had a rather transitory tenant in that building, and 32 she asked if I would rent it to her so she could continue her business because the other building 33 was to be torn down. So, we took her on, and that caused a need for a…it’s a change of use 34 because it went into being a restaurant instead of what it had been previously. And, in that 35 change of use, I was closely guided by a…by the City, in doing a lot of adjusting, a lot of 36 changing, and brought around to fit into the image, the forward looking image, look into the 37 future with the City, of what things would look like. And I got to be the starting movement in 38 that area for that. I’ve put in…well, the City had it put in, but I paid for it, the first stretch of 39 sidewalk that existed on…well, the whole mile of east of…or west of College Avenue. And, 40 while I balked at that a little at the time, it didn’t seem…I learned a lot. And, the landscaping 5 1 that you see there…there’s cars at the end, landscaping back this way, the sidewalk that’s there, 2 the grass with the trees in it…all those were prescribed by the City and I respect them for that, 3 although I felt pretty irritated at the time. I have a different perspective. 4 So, I’m going to tell you a little bit about how I feel about SoWan’s operation there. 5 SoWan is from Korea. His wife just got home yesterday with two children, from Korea. SoWan 6 is…he’s the finest tenant I have ever had in that building, and I’ve had quite a few. And, he fits 7 in with the new look of the…the hedge, the grass. He put a wrought iron face on the building, 8 and people can eat outside, and they can dream that they’re in France. It feels different than it 9 ever did before. I don’t know if it feels like they’re in Korea or not, but…when they get their 10 food it does, because it’s very good. He took the lights…he wanted to change the lights a while 11 ago in the, inside the restaurant. We had fans, big fans, we had three of them in a row. And he 12 asked if it was alright if he took those out and put in different ones. And, we did. And when he 13 got done, I went back in there one day, and I said, SoWan, I like the new ambiance. And, we’ve 14 had difficulty, sometimes, understanding each other’s language. And, so he asked me what 15 ambiance meant, and I told him. The next time I went in, he said, how do you like the ambiance 16 today? But, it fits in, what he’s done there, inside and out. And, the outside, he’s got those 17 flowers and everything, it’s beautiful. Gail, no more. Am I offending you? Or am I going…am 18 I over the hill here on this? 19 Okay, what I want to tell you is that I think that the reasons that the City had for drawing 20 a line on billboards several years ago, I think, I think that’s proper, and I don’t think that meshes 21 in at all with the ambience that’s there. It interferes with it, as a matter of fact. Advertising is 22 based upon the ability to get attention, and people driving down Prospect right now, they don’t 23 see anything except…you have to take out the figures that are there, the people that are there. 24 You don’t see anything else, except the pretty part. You know, this is a nice place. Now we’re 25 going to have a sign there that is good for the business that exists…one of their locations, right 26 now, it’s Jax, the sign is for Jax. It’s pretty far away from the premises, and that’s a kind of an 27 encroachment, not on the ground, but it’s an encroachment on the air because it’s up so much 28 higher. And, I think it has significant…it suggests a significant problem for me in trying to 29 evaluate what that’s going to do to the value of the property, in a way. It makes it nice. SoWan 30 will get more business if he gets his…if he should decide to have his sign up there. But, actually, 31 we don’t have any parking place for the business that we have now, altogether. Yesterday, for 32 example, there were three or four…there were three of us there, and then SoWan, when he 33 dropped his family off, came over, and he had to…I don’t know if he parked across the street 34 finally. There was no place else to park. So, having that sign there is only going to do two 35 things, it’s going to probably increase his business somewhat, but it is also going to raise the 36 temperature of my other tenants in the other building, and they could be moving out 37 because…there was already some problems with parking because it’s so tight. It’s only a 38 hundred and fifty square. And, it also, I think, would have consequences on if I was…if I was 39 prepared to sell the property, or my heirs, I think it would have a considerable impact 6 1 upon…once it became a problem with me, I can’t pass it on to somebody else without their being 2 aware of that. I think that’s probably too much, my daughter is right. 3 CHAIRMAN BELLO: Okay, thank you, appreciate that. Thank you. Would anybody 4 else like to address the Board? Okay, Board discussion. 5 BOARDMEMBER DANA MCBRIDE: This is a lot more complicated than it first 6 appeared. So, it states in the Petitioner’s letter that CBS Outdoor, the leaseholder, and 7 NextMedia, the owner of the sign, were in agreement about the location, but it doesn’t say 8 anything about the property owner. So, that’s really curious that everybody…the City’s good 9 with it, BNSF is good with it, NextMedia is good with it, CBS is good with it, with no mention 10 of the property owner. 11 MR. BARNES: The property owner is BNSF. 12 CHAIRMAN BELLO: Yeah, it’s in the right-of-way. 13 BOARDMEMBER MCBRIDE: Of where the sign is going to go? 14 MR. BARNES: Yes, where that sign is proposed, see here, that is on the BNSF Railroad 15 property. 16 BOARDMEMBER MCBRIDE: It is. 17 UNIDENTIFIED BOARDMEMBER: Within the five foot setback. 18 BOARDMEMBER MCBRIDE: Okay, alright, I guess I was confused as to whose 19 property the sign was actually on. 20 CHAIRMAN BELLO: So, Peter, let me ask a question. If the sign wasn’t replaced, 21 would it then…would the City…I guess, what obligations does the City have to relocate the sign, 22 and if they didn’t, would there be any remuneration to the sign company? 23 MR. BARNES: This sign is…falls under the ambit of the Federal Highway 24 Beautification Act, which means that if the City requires a sign to come down, without allowing 25 it to be replaced, then the City would have to pay compensation. What that amount would be, 26 we don’t know, don’t have a hard number on it. It would be very substantial, and that would be 27 a cost to the taxpayers, because it would come out of the project funds, it would be an additional 28 cost. So, that’s the option. It gets removed and there’s…I don’t know all the negotiations that 29 would go into coming up with an amount for that, whether it’s eminent domain or whatever it is, 30 but there would be some value assigned to that, to the cost of removal of the sign, without 31 replacing it. 32 CHAIRMAN BELLO: Is there anybody here that could give us a ballpark of what that 33 would…what that value is? 7 1 BOARDMEMBER BOB LONG: The way they do it…I’m an appraiser, and I can’t value 2 that sign…what they do is they take the income for a period of time and then capitalize that. So, 3 if you take the income, you know, and come up with an overall rate, they could define it. But, as 4 Peter said, it’s generally a pretty big number. 5 CHAIRMAN BELLO: So do we, Carolynne would you? 6 MS. WHITE: Mister Chairman, we haven’t done a precise valuation of this sign, but I 7 can tell you it would be exactly as Commissioner Long said, it’s in the neighborhood of a couple 8 hundred thousand dollars. 9 CHAIRMAN BELLO: Couple hundred thousand, okay. 10 MS. WHITE: It’d be a pretty significant number. 11 CHAIRMAN BELLO: Thank you, that helps, thank you. 12 BOARDMEMBER LONG: I guess, you know, I’m very sympathetic of Mr. Anderson’s 13 concerns, you know…I’m not a big proponent of billboards throughout the city, but, you know, 14 my issue is, they’ve kept it on their property, and they have an existing right, and it becomes 15 grey when we ask them to move it. But, I don’t believe, you know, I don’t believe…I think 16 moving it from here to here does meet the standards of minimal and inconsequential. The 17 adjacent property owner is obviously the most affected, but it doesn’t really…it’s not 18 significantly harming to the public good, so. It’s there and it has to move. 19 CHAIRMAN BELLO: Typically, of other variance requests we’ve had, we’ve always 20 asked, you know, what relationship…what discussions have been with the neighbor. Has the 21 City talked to Mr. Richardson with regard to this location? 22 MR. TERRY TYRELL: We’ve had quite a few conversations, both NextMedia and the 23 City, with Mr. Anderson. Met with him on site several times. He’s met with Peter a few times, 24 so we…and some of that was due to the erroneous nature of the first submittal, so trying to 25 explain that and remedy some of his concerns. 26 CHAIRMAN BELLO: And there was consideration for moving it further to the north, 27 potentially, or…? 28 MR. TYRELL: Based on recommendations from Peter on meeting the criteria set forth 29 by the City Codes, it was our understanding that this was the best location. 30 MR. BARNES: I think Mr. Bello was asking about, if there were considerations moving 31 it north, not closer to the street, moving it further away. 8 1 MR. TYRELL: So, we vetted quite a few locations for this particular sign, to remedy…as 2 you can understand, there’s quite a few stakeholders involved here, and unfortunately, this was 3 the best location that fit the parameters most efficiently. 4 CHAIRMAN BELLO: Thank you. 5 BOARDMEMBER JOHN MCCOY: Peter, the sign complies with all current Codes? 6 MR. BARNES: That’s correct, the permit was issued for this sign in 1985 and, like I say, 7 they’re exempt from…we have regulations in the Code that deal with what happens with respect 8 to non-conforming signs that are on-premise, but those triggers that trigger removal or whatever 9 don’t apply to this particular sign. But, as far as its location from College…from Prospect, it’s 10 okay. 11 BOARDMEMBER MCCOY: So, the new location…it doesn’t require a variance either? 12 MR. BARNES: Right, the existing sign complied, the new sign complies. We haven’t 13 changed any of those regulations since the…those particular regulations, since 1985. 14 BOARDMEMBER MCCOY: Okay, thanks Peter. 15 CHAIRMAN BELLO: Carolynne, can I ask you one more question? Was there any 16 consideration for maybe making the sign a little smaller? Or is that not something that would 17 meet your criteria or needs? 18 MS. WHITE: You know, I might have to ask my client to come up and answer that with 19 more particularity, but generally, in the sign business, there are certain standard sizes, and the 20 paper or vinyl that’s posted comes in a standard size. It costs a lot more to make it a non- 21 standard size. 22 CHAIRMAN BELLO: Okay, that helps. Thank you very much. Well, what do you guys 23 think? 24 (**UNINTELLIGIBLE BOARD DISCUSSION.) 25 BOARDMEMBER MCBRIDE: I mean, there’s impacts all around here to the neighbor. 26 So, the sign meets the Code, but the fact that it’s…it wouldn’t meet the Code if it were a new 27 sign, obviously, is that correct? 28 MR. BARNES: Well, we don’t allow new off-premise signs. When we banned off- 29 premise signs in ’94, the intent was that we didn’t want any additional ones. We didn’t want 30 them to continue to proliferate like they were in the late ‘80’s and early ‘90’s. 31 BOARDMEMBER MCBRIDE: So, calling this an existing sign that’s moved as opposed 32 to a new sign is sort of the essence of what makes this allowable in the eyes of the City. 9 1 MR. BARNES: That’s correct. 2 BOARDMEMBER MCBRIDE: Okay, and so, to me that’s a little bit of a stretch to say 3 that this isn’t a new sign. It certainly is for the people that own the property on the other side of 4 the tracks. So, I have a little problem with the City calling this something different than what it 5 appears to be. 6 MR. BARNES: Well, we are calling it a new sign, that’s why the variance is required. 7 BOARDMEMBER MCBRIDE: Oh, okay, so it is a new sign. So, if it’s a new 8 sign…okay, then it requires a variance, okay. 9 CHAIRMAN BELLO: But the tricky part is the Federal…is it Federal Highway Act, you 10 said? 11 MR. BARNES: Federal Highway Beautification Act. 12 CHAIRMAN BELLO: That says there’s compensation if we remove it, because… 13 UNIDENTIFIED BOARDMEMBER: They’re due compensation, and I can understand 14 that too. 15 MR. BARNES: Right, and we were involved in a lengthy lawsuit in the ‘80’s regarding 16 that Federal Highway Beautification Act. We argued, unsuccessfully, that an amortization 17 period, or a compliance period, satisfied the just compensation requirements. That went all the 18 way to the Colorado Supreme Court, and we ultimately lost, and said no, it’s a monetary value 19 regardless of what length of amortization you might give the sign. So, as a result of that, there 20 would have to be some sort of amount agreed on. 21 CHAIRMAN BELLO: So, it seems to me, our decision has to be based on whether we 22 feel compensation for this sign is in the public’s good, or in the citizens’ of Fort Collins’ good, 23 because they’re going to end up paying for it, basically. So, that’s where...I think that’s the basis 24 of our decision. 25 UNIDENTIFIED BOARDMEMBER: Well, the whole thing is…push came to shove 26 apparently, when NextMedia indicated that they would sue the City if, you know, their sign was 27 removed. And, apparently, because of the Beautification Act, they’re within their rights. 28 DEPUTY CITY ATTORNEY PAUL ECKMAN: Maybe I can add a little bit to that. 29 There’s been talk about how much money this will cost. Generally, we don’t care too much 30 about that when we grant variances. And, you have analyzed the prior variance on a different 31 basis, that it was not detrimental to the public good, and that it was nominal and inconsequential. 32 I don’t know if this one is or not; if it isn’t, you can use the hardship standard to see if you 33 think…as is in your staff report, no one argued equal to or better than that I can recall in the staff 34 report or anywhere. A little advice on detrimental to the public good, I think that when 10 1 something is detrimental to the public good, that’s a threshold decision for you. If you think it’s 2 detrimental to the public good, then you don’t even need to go to the next analysis, you just can’t 3 grant a variance that’s detrimental to the public good. It doesn’t matter whether it’s one person 4 or ten people that come and speak to you, I don’t think, when you decide if it’s detrimental to the 5 public good. It’s not so much the number of people that come before you explaining how it’s 6 detrimental, it’s the message. One person can carry a message just as well as a number of 7 people. So, the message is, this sign is detrimental, as I heard it at least, to Mr. Anderson’s 8 business. And then I got a little confused…it might be detrimental because it causes the business 9 to be too successful and they overflow the parking lot. There was also, I think, a comment made 10 about how signs are just…shouldn’t be part of the City’s thought process. Signs are ugly, or 11 something to that effect…you heard the entire testimony. 12 On the other side of it is the BRT system. I don’t think the BRT is going to stop because 13 you don’t grant a variance. If you don’t grant the variance, the BRT will still happen and the 14 billboard will not be there. It might have to be purchased, but it won’t be there. So, in your 15 analysis of what’s detrimental to the public good, or what’s beneficial to the public good, you 16 need to take all of that into account to decide that question. And, I’m glad it’s your question and 17 not mine to decide. Then you can go on to the question of whether it’s nominal in the context of 18 the neighborhood, or whether you think there’s a hardship. 19 CHAIRMAN BELLO: Well, okay, I hear what you’re saying, and I guess the question in 20 my mind is, when we consider detrimental to the public good, why shouldn’t we consider the 21 compensation associated with this to the citizens of the community, which is the public, in this 22 case. 23 DEPUTY CITY ATTORNEY ECKMAN: So, that’s the flip side, I guess, of detrimental 24 to the public good. The granting of the variance would be beneficial to the public good, the 25 City’s public good, because it wouldn’t have to buy the sign. 26 CHAIRMAN BELLO: Right, exactly. 27 DEPUTY CITY ATTORNEY ECKMAN: But that’s not the question you have to 28 answer. You don’t have to approve a variance if you find it’s beneficial to the public good. 29 You have to deny a variance if you find it’s detrimental to the public good, that’s the only thing 30 the Code requires. 31 CHAIRMAN BELLO: Right, but there’s two public goods here, there’s the individual lot 32 owner, and there’s the citizens of Fort Collins. So, one way is beneficial to one, and the other 33 way is…is detrimental to one, and the other way is detrimental to the other. 34 DEPUTY CITY ATTORNEY ECKMAN: And that’s the point I was trying to make, if 35 it’s beneficial to a number…if it’s beneficial to the public good, and not detrimental to the public 36 good…there might be different publics, public goods. We don’t care if it’s beneficial in that one 11 1 finding, we care that it not be detrimental. Now, the question about the public good, in my 2 thinking, is, is one person’s business the public, or is that a private good? If it’s affecting a 3 neighborhood, a lot of area, and maybe in some of the testimony you heard, you might say, well, 4 the sign would be better gone, just from a general standpoint. But, if it pertains just to one 5 business, you have to decide if that’s public good or private good, or if it spreads beyond, 6 because, like I say, one person can carry a message for a neighborhood. That help or did that just 7 confuse? 8 CHAIRMAN BELLO: I think it helps. It helps. 9 BOARDMEMBER MCBRIDE: So, I still have a question about whether the 10 discussions…there were discussions, is it Mr. Richardson? 11 MR. TYRELL: Anderson, Richard Anderson. 12 BOARDMEMBER MCBRIDE: Was there discussions between the City and Mr. 13 Anderson about alternative locations for the sign? I’m not sure who answered that question. 14 MR. TYRELL: Yes, yes, we had many meetings with Mr. Anderson, and we looked at 15 alternative locations, and we felt that the current location was, once again, agreeable to all parties 16 to the best interest that we could make it. So, we looked at quite a few different opportunities, 17 locations, and situations. And, Mr. Anderson, please, if you don’t feel that that’s accurate, please 18 elaborate. 19 BOARDMEMBER MCBRIDE: I guess the question is, is there an alternative location 20 that would be acceptable to Mr. Anderson as well as NextMedia? 21 MR. BARNES: Well, you’ve got multiple parties, you’ve got Burlington Northern who 22 has a say in it, you’ve got CBS Signs, who own the easement for the sign, and NextMedia, and 23 the City. 24 CHAIRMAN BELLO: Help me understand the relationship between the…CBS you said, 25 and NextMedia? 26 MR. BARNES: Well, correct me if I’m wrong, I think CBS owns the easement where the 27 sign is actually located within the railroad right-of-way. 28 UNIDENTIFIED BOARDMEMBER: So you really have two property owners, I mean, 29 an easement is a property right, so you have multiple property owners. 30 MS. WHITE: That’s correct, BNSF retains CBS to manage many of its easements and 31 leases for billboards, and then NextMedia owns the sign. The added point I was just going to 32 make is that BNSF is not represented here today, but as the property owner, their wishes and 33 desires about where they were willing to relocate the sign played a significant role in the 12 1 discussions of possible alternative locations. And, it’s my understanding that this location that is 2 the one before you today is the location that BNSF was the most comfortable with. 3 BOARDMEMBER MCBRIDE: I guess my question is, if we deny this, is it 4 automatically…what would happen if we did deny this? Is there any way of knowing what 5 would happen? 6 UNIDENTIFIED BOARDMEMBER: Can you ever know? 7 DEPUTY CITY ATTORNEY ECKMAN: If you deny it, it might be appealed to the City 8 Council. 9 UNIDENTIFIED BOARDMEMBER: Let them deal with it. 10 CHAIRMAN BELLO: But, the appeal would have to be the City. The applicant would 11 have to be the City. 12 MR. BARNES: That’s right. 13 CHAIRMAN BELLO: That’d be interesting. 14 BOARDMEMBER MCCOY: I’ll go ahead and make a motion, because I do feel that, for 15 the motion, and I’m going to need some help…but, in my opinion, that it’s not detrimental to the 16 public good, and it’s nominal and inconsequential. It’s on the same property, it’s the same sign, 17 it’s moving west. 18 CHAIRMAN BELLO: Okay, can I…I just want to clarify one thing, though. 19 I’m…forget your name, I’m sorry…Paul, I’m sorry, Paul, thanks. Paul’s comment about the 20 public can be one person is throwing me for a loop here I guess, to a certain degree. And 21 because I…I mean, I look at the public as more of a general, not as an individual. And, I guess 22 the definition is…is this a private owner or is this the pubic? And I’m having a conflict with 23 that. 24 DEPUTY CITY ATTORNEY ECKMAN: Let me correct that then, I think one person 25 can carry a message to you that something’s detrimental to the public interest. 26 CHAIRMAN BELLO: Oh, okay, okay, that… 27 DEPUTY CITY ATTORNEY ECKMAN: Or, I think ten people can come to you and 28 explain how something is detrimental to a private interest, and that’s not public. That’s not a 29 public question. So, you get to decide if it’s detrimental to the public interest. 30 CHAIRMAN BELLO: Public…or not, okay, that helps. Thank you very much. That 31 makes a difference. 32 BOARDMEMBER MCBRIDE: I’ll second the motion. 13 1 UNIDENTIFIED BOARDMEMBER: Are we okay with that motion, the way it was 2 stated? 3 DEPUTY CITY ATTORNEY ECKMAN: You included in your motion it’s not 4 detrimental to the public good and it’s nominal and inconsequential when considered in the 5 context of the neighborhood, and then there was… 6 BOARDMEMBER MCCOY: I might have left those last few words off, but…the intent 7 is there. 8 DEPUTY CITY ATTORNEY ECKMAN: I think it wouldn’t hurt for you…we have a 9 form, just make sure we include all the necessary language that’s in the Land Use Code about the 10 nominal and inconsequential part of that motion, the last part of the motion. 11 BOARDMEMBER MCCOY: Yeah, so I’m looking at paragraph four, the proposal as 12 submitted will not diverge from the standards of the Land Use Code except in a nominal and 13 inconsequential way when considered in the context of the neighborhood, and will continue to 14 advance the purposes of the Land Use Code as contained in Section 1.2.2. 15 DEPUTY CITY ATTORNEY ECKMAN: That covers it, thank you. 16 BOARDMEMBER MCCOY: Thanks. 17 MR. BARNES: I think it would help, though, you did mention earlier, John, about 18 because it’s going to be located on the same property, it’s the same sign, and it’s not going any 19 further south. 20 BOARDMEMBER MCCOY: Yeah, it’s just moving west. 21 MR. BARNES: Okay, so can those comments be incorporated? 22 BOARDMEMBER MCCOY: Yeah, I would like that included, that’s my thinking in 23 terms of why it’s nominal and inconsequential. 24 CHAIRMAN BELLO: Okay, second? 25 BOARDMEMBER MCBRIDE: Second. 26 CHAIRMAN BELLO: Okay, roll call please. 27 MS. HILL: McCoy? 28 BOARDMEMBER MCCOY: Yes. 29 MS. HILL: McBride? 30 BOARDMEMBER MCBRIDE: Yes. 14 1 MS. HILL: Bello? 2 CHAIRMAN BELLO: Yes. 3 MS. HILL: Long? 4 BOARDMEMBER LONG: Yes. 5 MS. HILL: Bohling? 6 BOARDMEMBER PETER BOHLING: Yes. 7 CHAIRMAN BELLO: Okay, Appeal number 2714 has been approved. Thank you. 8 ATTACHMENT 6 Site Visit Summary October 1, 2012 ATTACHMENT 6 190 West Prospect Road City Council Site Inspection Appeal of Zoning Board of Appeals Decision October 1, 2012 Members of City Council were invited to inspect the site at 190 West Prospect Road in conjunction with the appeal of the Zoning Board of Appeals decision to approve the relocation of an off-premise sign. City Council is scheduled to consider the appeal at their October 16, 2012 meeting. City Councilmembers Present: Mayor Pro Tem Kelly Ohlson Councilmember Wade Troxell City Staff Present: Laurie Kadrich, CDNS Director Peter Barnes, Zoning Supervisor Noah Beal, Zoning Inspector Paul Eckman, Deputy City Attorney Terry Tyrrell, MAX Project Consultant for City of Fort Collins Engineering Department Others Present: Sandy Helzar, Representing the Office of Brad March, Attorney for Richard Anderson, the Appellant The site inspection began at 3:40 p.m. in the parking lot of 200 West Prospect Road. The parking lot is directly west of the BNSF Railroad right of way located at 190 West Prospect Road which is the subject property of the appeal to City Council. Staff pointed out the existing billboard which is located in the BNSF railroad right of way and explained that the variance request submitted to the Zoning Board of Appeals (ZBA) was to allow the billboard to be relocated seventy feet west of its current location. The proposed location of the BRT guideway was also explained, illustrating why the subject sign needs to be removed from its current location. A Councilmember asked if it’s appropriate for the City to be the applicant to the ZBA or to represent itself at the Council appeal hearing and the answer was yes. The site inspection attendees then walked to 190 W. Prospect to better view the billboard and the railroad right of way. 2 A Councilmember stated that it appears that a lot of trees will be removed in order to accommodate the guideway. This was confirmed by staff. A Councilmember asked what allows the sign to be moved. Staff answered with an overview of the ordinance prohibiting new off-premise signs, explaining that removing the sign and reconstructing it in another location was equivalent to constructing a new sign, which is something that can only be done if a variance is granted by the ZBA. In response to a Councilmember question about the results of the ZBA hearing, staff explained that the variance was approved. A Councilmember asked why the ZBA didn’t put a condition on the variance approval that the relocated sign be lower than it currently is? Staff replied that the ZBA can place conditions on variances but chose not to add any for this one. A Councilmember asked if the City Council could put conditions on it and the answer was yes. A Councilmember asked if the relocated sign will be an electronic digital sign and the answer was no. There were questions about the existing building directly east of the railroad right of way and it was explained that the building will be demolished as part of the Mason Corridor project. There were additional observations regarding the loss of trees that will occur in the Corridor, and it was clarified that the shrubs and trees on the west side of the railroad property where the sign is proposed to be relocated to are on Mr. Anderson’s property and would not be removed to accommodate the project or the sign. A Councilmember asked who is responsible to take the sign down and it was explained that it would be done by the City and its project contractors. A Councilmember asked if the relocated sign would be taller than it currently is? Staff replied that it is proposed to be the same height above the street as it currently is and will be setback the same distance from the street as it currently is. A Councilmember asked why the City staff and ZBA didn’t just say ‘no’ with regard to granting a variance. Staff explained that the merits of a variance application need to be examined for compliance with the criteria in the Land Use Code for granting of a variance. If it’s found that the request complies with the criteria, then the variance may be approved. In this specific case, the staff and the ZBA concluded that the request to relocate the sign complied with one or more of the code requirements. It was explained that staff recommended approval to the ZBA based on the ‘nominal and inconsequential’ standard and also on the ‘hardship’ standard, but that the ZBA’s motion to approve the variance was based solely on the ‘nominal and inconsequential’ standard as reflected in the verbatim transcript. A Councilmember asked what the financial impact would be if the sign can’t be relocated. Staff replied that the record reflects that there was discussion at the ZBA hearing regarding the issue of monetary compensation and that a representative of 3 NextMedia told the ZBA that it would be in the neighborhood of a couple hundred thousand dollars. It was further explained that Brad March stated the cost to be in excess of one hundred thousand dollars in his Notice of Appeal. A Councilmember asked if there will be sign faces on both sides of the billboard. Staff replied that there’s no mention of that in the verbatim transcript, but pointed out that the existing sign structure was constructed in a manner to accommodate a sign on the east side of the sign, and that NextMedia’s plans would include that possibility based on a NextMedia slide which was included in the powerpoint presentation presented to the ZBA and which is also included in the City Council packet. A Councilmember asked if there has been any compensation offered to adjacent property owners. Staff replied that the transcript might contain a reference to meetings between the various parties and it would be a question to be asked at the Council hearing when other parties would be present to respond. The site inspection concluded at about 4:00 p.m. ATTACHMENT 7 Staff Powerpoint presentation to Council ATTACHMENT 7 1 1 City Council Meeting October 30, 2012 Appeal of the Zoning Board of Appeal’s August 9, 2012 decision to approve Appeal #2714 for the relocation of an off-premise sign at 190 West Prospect Road. 2 Background Information • Existing off-premise sign is in the BNSF railroad ROW • Sign location is in conflict with the guideway alignment for the MAX BRT project • Sign is proposed to be relocated 70 feet west • Sign code was amended in 1994 to prohibit new off- premise signs • Relocating the sign requires a variance to Section 3.8.7(P) of the Land Use Code • City Engineering Department filed variance application to Zoning Board of Appeals (ZBA) • ZBA granted variance on August 9, 2012 ATTACHMENT 7 2 3 4 ATTACHMENT 7 3 5 6 ATTACHMENT 7 4 7 The Board Failed to Conduct a Fair Hearing by Considering Evidence Relevant to its Finding Which Was Substantially False or Misleading: •“The ZBA further considered the facts that were misleading in that the information presented reflected that the signage was to be continued in substantially the same form as it currently or has historically existed. The current sign has only one used/usable sign face (viewable by eastbound traffic). It is understood that there is intent to significantly increase the impact of the sign by allowing signage on both sides of the pole (viewable from both east and west). The proposed signage would have a substantially greater impact than the existing signage.” 8 The Board Failed to Conduct a Fair Hearing by Considering Evidence Relevant to its Finding Which Was Substantially False or Misleading (continued): • The verbatim transcript contains no mention or discussion of the existing sign having only one used or usable face or that the relocated sign might have two. Slides presented to the ZBA show the existing single-face sign and a mock-up in the new location with two faces. ATTACHMENT 7 5 9 The Board Failed to Conduct a Fair Hearing by Ignoring Its Previously Established Rules of Procedure • The Notice of Appeal does not contain any specific assertions as to how the ZBA ignored its established rules of procedure. 10 The Board Failed to Conduct a Fair Hearing by Exceeding Its Authority and Jurisdiction – Section 2.10.2(H) Section 2.10.2(H) reads as follows: (H) Step 8 (Standards): Applicable, and the Zoning Board of Appeals may grant a variance from the standards of Articles 3 and 4 only if it finds that the granting of the variance would neither be detrimental to the public good nor authorize any change in use other than to a use that is allowed subject to basic development review; and that: ATTACHMENT 7 6 11 Section 2.10.2(H) - continued (1) by reason of exceptional physical conditions or other extraordinary and exceptional situations unique to such property, including, but not limited to, physical conditions such as exceptional narrowness, shallowness or topography, or physical conditions which hinder the owner's ability to install a solar energy system, the strict application of the standard sought to be varied would result in unusual and exceptional practical difficulties, or exceptional or undue hardship upon the occupant of such property, or upon the applicant, provided that such difficulties or hardship are not caused by the act or omission of the occupant or applicant; 12 Section 2.10.2(H) - continued (2) the proposal as submitted will promote the general purpose of the standard for which the variance is requested equally well or better than would a proposal which complies with the standard for which the variance is requested; or ATTACHMENT 7 7 13 Section 2.10.2(H) - continued (3) the proposal as submitted will not diverge from the standards of the Land Use Code that are authorized by this Division to be varied except in a nominal, inconsequential way when considered in the context of the neighborhood, and will continue to advance the purposes of the Land Use Code as contained in Section 1.2.2. Any finding made under subparagraph (1), (2) or (3) above shall be supported by specific findings showing how the proposal, as submitted, meets the requirements and criteria of said subparagraph (1), (2) or (3). 14 The Board Failed to Conduct a Fair Hearing by Exceeding its Authority and Jurisdiction – Sec. 2.10.2(H) - continued • The Board granted a variance from an Article 3 standard and found that it would not be detrimental to the public good. • The Board found that the proposal satisfied the ‘nominal, inconsequential standard’ • There was no discussion as to whether or not the granting of the variance would result in a change of use. ATTACHMENT 7 8 15 The Board Failed to Properly Interpret and Apply Relevant Provisions of the Land Use Code – Section 2.10.2(H) • “The purpose for the ZBA’s granting of the subject variance can be explained in no other way than a desire to save the City money. While it is certainly laudable that the City staff and the ZBA focused on preserving tax payer dollars, Sec. 2.10.2 does not allow the ZBA to grant a variance on the basis that there will be a positive impact on the public coffers.” 16 The Board Failed to Properly Interpret and Apply Relevant Provisions of the Land Use Code – Section 2.10.2(H) - continued • The Board granted the variance after finding that it would not be detrimental to the public good and that it satisfied the ‘nominal, inconsequential standard in Section 2.10.2(H)(3) of the LUC. ATTACHMENT 7 9 17 Questions Council Needs to Address 1. Did the Zoning Board of Appeals fail to conduct a fair hearing in that: - The board considered evidence relevant to its findings which was grossly misleading; - The board substantially ignored its previously established rules of procedure; - The board exceeded its authority and jurisdiction? 2. Did the Zoning Board of Appeals fail to properly interpret and apply relevant provisions of the Land Use Code - Section 2.10.2(H)?