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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 11/27/2018 - CONSIDERATION OF AN APPEAL OF THE ZONING BOARD OFAgenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY November 27, 2018 City Council STAFF Noah Beals, Senior City Planner/Zoning Tom Leeson, Director, Comm Dev & Neighborhood Svrs Chris Van Hall, Legal SUBJECT Consideration of an Appeal of the Zoning Board of Appeals Decision Regarding the Off-Premise Signs at 216 North College Avenue Variance Request to Not be Included in the Maximum Allowable Sign Square Footage. EXECUTIVE SUMMARY The purpose of this item is to consider an appeal of the Zoning Board of Appeals (the “Board”) decision on September 13, 2018 approving a variance to increase the sign allowance at 216 North College Avenue from 636 square feet to 1,836 square feet until October 1st, 2023. The property is located at the corner of North College Avenue and Walnut Street. The appeal was filed on September 27, 2018. The appeal alleges the following: • The Board failed to properly interpret and apply Land Use Code (“Code”) Section 3.8.7.1(D)(3) • The Board failed to properly interpret and apply Code Section 3.8.7.1(A)(3) • The Board’s decision conflicts with the Federal Highway Beautification Act BACKGROUND / DISCUSSION On September 13, 2018 the Zoning Board of Appeals (ZBA) considered the variance request to increase the sign allowance at 216 N. College Avenue (the Property) from 636 square feet to 1,836 square feet in order to accommodate 4 rooftop off-premise signs (billboards) that have existed on the Property for over 50 years in addition to on-premise signage for business tenants of the Property. The ZBA approved the variance with the condition that the variance expires in October of 2023, which is after the current billboard lease between the Owner of the Property and the appellant expires, by a 3 to 1 vote (Jackson, Shields and Bear in favor and Long opposed, Board members Shuff, Snowdow and Stockover recused themselves because of a conflict of interest) based on the following findings of fact: • Granting the variance for 5-years, the remaining time on the current lease, would not be detrimental to the public good. • The current owner was assigned the lease agreement at the time of purchase and so did not cause the hardship imposed by the lease. • The lease is set to set in September of 2023. • The off-premise signs have existed over 50 years and became a nonconformity when the applicable regulations were created. • If the variance is not approved, then new tenants of the building do not have sign allowance to advertise their businesses. • Once the lease expires in September 2023, the hardship no longer exists, and the property owner can choose whether to keep either the billboards or the tenant signs in order to comply with the allotted square footage of signage for the property. Agenda Item 1 Item # 1 Page 2 This issue was first heard on July 12, 2018. The appellant did appeal the decision of this hearing, however, due to clerical error a verbatim transcript could not be produced. Therefore, pursuant to City Code 2-51, the variance was reheard by the Zoning Board of Appeals on September 13 and the findings and decision were substantially the same as the previous hearing. The appellant appealed the decision of the September 13 rehearing on September 27, 2018. The questions for City Council regarding the appeal are: Whether the ZBA properly interpreted and applied LUC §3.8.7.1(D)(3) The first allegation references the type of signs and the overall allotment granted to a property in the Land Use Code. The appellant claims this section does not apply to off-premise signs. Section 3.8.7.1(D)(3) of the Code reads (bold and underline for emphasis), (3) flush wall signs, projecting wall signs, window signs, freestanding signs and ground signs, provided that the placement and use of all such signs shall be governed by and shall be within the following limitations: This section goes on to provide how to calculate the total square footage allowed for the property based on the building frontage to the public right-of-way. The list of signs found in this section does not specifically state roof-top signs or off-premise signs because both types of signs are prohibited by other sections of the Code, however the definition of sign in Code Section 5.1.2 includes both on-premise and off-premise signs. Because Section 3.8.7.1(D)(3) uses the term sign, and the general definition of signs includes both on-premise and off- premise signs, the existing billboards were included when comparing the total signage to the allowable signage for the property. Relevant portions of the verbatim transcript dealing with the interpretation of this section: • Page 5 line 4-10 • Page 6 - 9 line15 • Page 9 line 28 - Page11 • Page 10 - 12 line 23 • Page 14 line 12-26 • Page 14 line 35-37, Page 15 line 1-2 • Page 15 line 23-28 Whether the ZBA properly interpreted and applied LUC §3.8.7.1(A)(3) The second allegation references the regulations for nonconforming signs. The appellant appears to claim that Section 3.8.7.1(A)(3) specifically excludes nonconforming, off-premise signs from other regulations under the Code and allows the signs to not be counted towards the sign allowance. Section 3.8.7.1(A)(3)(c) of the Code reads (bold and underline for emphasis), Except as provided in subsection (d) below, all existing nonconforming signs located on property annexed to the City shall be removed or made to conform to the provisions of this Article no later than seven (7) years after the effective date of such annexation; provided, however, that during said seven-year period, such signs shall be maintained in good condition and shall be subject to the same limitations contained in subparagraphs (b)(1) through (b)(6) above. This subsection shall not apply to off- premises signs which are within the ambit of the just compensation provisions of the Federal Highway Beautification Act and the Colorado Outdoor Advertising Act. This section requires that nonconforming signs to be brought into compliance within a period of time after annexation. However, if the sign is covered by the Federal Highway Beautification Act and the Colorado Agenda Item 1 Item # 1 Page 3 Outdoor Advertising Act then it is exempt from being required to be brought into compliance by a certain date and can remain until the property owner chooses to remove them. The appellant argues that applying the existing off-premise signage to the sign allowance for the property does not give the property owner a choice but forces the property owner to remove the nonconforming signs to provide signage for new tenants. Therefore, the appellant claims the City required the signs to be removed because of the redevelopment of the property. This section states it applies to annexation, not to voluntary redevelopment, and so this section was not applied to the property. Instead, as discussed above, Section 3.8.7.1(D)(3) was applied to determine the allowable sign allowance, including both on-premise and off-premise signage. Relevant portions of the verbatim transcript dealing with required removal of nonconforming signs: • Page 6 line 7-14 • Page 6 line 24-30 • Page 7 line 28-36 • Page 8 line 4-30 • Page 9 line 28-32 • Page 12 line 12-23 • Page 14 line 18-26 Whether the ZBA’s interpretation of either LUC §3.8.7.1(D)(3) or 3.8.7.1(A)(3) conflicts with the Federal Highway Beautification Act? The third allegation is that the Board’s decision conflicts with the Federal Highway Beautification Act (HBA). The Board’s decision does not conflict with the HBA because it is not causing the removal of the billboards on the Property. The owner can choose how to allocate its sign allowance after the variance expires. ATTACHMENTS 1. City Clerk Notice of Hearing (PDF) 2. Notice of Appeal, filed September 27, 2018 (PDF) 3. Staff Report to Zoning Board of Appeals, with attachments (PDF) 4. Applicant Presentation to Zoning Board of Appeals (PDF) 5. Other Applicant Information Provided to ZBA (PDF) 6. Verbatim Transcript of Zoning Board of Appeals Hearing September 13, 2018 (PDF) 7. Powerpoint Presentation (PDF) ATTACHMENT 1 City Clerk’s Public Hearing Notice ATTACHMENT 2 Notice of Appeal - Notice of Appeal filed by Brownstein Hyatt Farber Schreck for Lamar (appellant), September 27, 2018 ATTACHMENT 3 Staff Report (with attachments) Provided to the Zoning Board of Appeals, Hearing held September 13, 2018 01 Staff Report to Board Agenda Item 1 Item # 1 - Page 1 STAFF REPORT SEPTEMBER 13, 2018 STAFF Noah Beals, Senior City Planner/Zoning PROJECT APPEAL ZBA180021 PROJECT DESCRIPTION Address: 216 N. College Avenue Petitioners: Gast Johnson & Muffly, Brownstein Hyatt Farber Schreck, Brinkman & Lamar Owners: 200 N. College, LLC Zoning District: Downtown (D) Code Section: 3.8.7.1(D)(3) Project Description: Pursuant to City Code Section 2-51(2) this variance request is to be reheard by the Zoning Board of Appeals. 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. COMMENTS: 1. Background: This property was approved for redevelopment in 2017. Originally this was 1 lot with a couple commercial buildings which has now been subdivided into 3 lots with 6 commercial buildings. Two of the new buildings were existing but have received additions and façade changes as part of the redevelopment. The 216 N College property is one of the existing buildings that received such changes. One of the existing elements of this building is 4 rooftop off-premise signs (billboards) that are sized 12’x 25’ (300sf) each, which have been on the rooftop for over 50 years. In general, signs are regulated by the Land Use Code (LUC) to prevent the proliferation of signs and to maintain a high-quality aesthetic environment. Some of the current standards in place include a limitation of square footage of signage per property, a prohibition on rooftop signs, and a prohibition on new off-premise signs. The subject property’s current allotment of sign square footage is 636 sf. This allowance can be divided among the multi-tenants of the building and through the different sign types permitted by the sign section of LUC. The issue in this case is the 4 existing off-premise signs that are on the roof already constitute a total of 1,200 sf. of sign area, which, in itself, exceeds the overall allowance leaving no square footage for any new tenants. This overage of sign allowance and location of the signs on the roof, are both nonconformities with the current sign standards, however, the billboards themselves are not a nonconforming use on the property. As mentioned in the applicants’ submittal, the Federal Highway Beautification Act prevents any new off- premise signage to be located within a certain distance of a scenic byway. This portion of N. College Ave is within the scenic byway and would not allow for new off-premise signage, which aligns with the LUC prohibition of new off-premise signage. These standards would prevent a new, smaller size off-premise sign. It has been a goal of the City to reduce the number of off-premise signs. As property is developed or redeveloped they are reviewed for compliance with current standards of the City including but not limited to 01 Staff Report to Board Agenda Item 1 Item # 1 - Page 2 the LUC. When this property was being reviewed for redevelopment, staff applied this historical interpretation, and it was acknowledged by the property owner and City that these signs were nonconforming because of their size and location. The approved redevelopment plans indicated the elimination of these nonconformities by removing the off-premise signs. The subsequent building permit for 216 N College Ave also illustrated demo of the off-premise signs. This change demonstrated compliance with the Land Use Code. At the time of purchase of the property the current building owner (Brinkman) was assigned a lease agreement with Lamar (the owner of the off-premise signs) and the two amended the original lease agreement to reflect Brinkman as the landlord under the original lease. The current term of the original lease that commenced in 2008 is 15 years. This lease should expire in September of 2023. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), staff recommends approval to allow the existing off-premise signage to remain and the allowable square footage of signage to be increased to 1,836sf for the period of 5 years and finds that: • Granting the variance for 5-years, the remaining time on the current lease, the request is not detrimental to the public good. • The current owner was assigned a lease agreement at the time of purchase and so did not cause the hardship imposed by the lease. • The lease is set to expire in September 2023. • The off-premise sign has existed over 50 years and became a nonconformity when the applicable regulations were created. • If the variance is not approved, then new tenants of the building do not have sign allowance to advertise their business. • Once the lease expires in September 2023, the hardship no longer exists and the Applicant can choose whether to keep either the billboards or the tenant signs in order to comply with the allotted square footage of signage for the property. Therefore, during the remaining 5 years of the lease agreement, strict application of the sign standards of the Land Use Code result an exceptional practical difficulty upon the tenants and applicant that was not caused by the act or omission of themselves. The approval with a condition would not be a strict application that causes an exceptional practical difficulty and any renewal of a lease after the current term is expired would no longer be a hardship because it would be caused by the applicant. 4. Recommendation: Staff recommends approval of APPEAL # ZBA180021, with the following condition: • This variance will expire on October 1st, 2023. Attachments: MEMO: Billboard Reduction Options ZBA Minutes of the July 2018 Meeting ATTACHMENT 1 to Staff Report ATTACHMENT 1 to Staff Report ATTACHMENT 1 to Staff Report ATTACHMENT 1 to Staff Report ATTACHMENT 1 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report ATTACHMENT 2 to Staff Report 1 Zoning Board of Appeals Staff Liaison: Noah Beals, Senior City Planner-Zoning Staff presentation to ZBA, September 13, 2018 Zoning Board of Appeals Appeal #ZBA180021 3 Address: 216 N College Ave Applicant: Ben Kramer Counsel for Brinkman Sarah Mercer Counsel for Lamar City Staff: Noah Beals Senior City Planner-Zoning Staff presentation to ZBA, September 13, 2018 216 N College Ave 4 Staff presentation to ZBA, September 13, 2018 216 N College Ave 5 Staff presentation to ZBA, September 13, 2018 216 N College Ave 6 Staff presentation to ZBA, September 13, 2018 216 N College Ave 7 Staff presentation to ZBA, September 13, 2018 216 N College Ave 8 Signagefor216NCollegeAve TotalSignAllowance 636sf. Billboard 1,200sf. CurrentOtherTenantSignage 84.46sf. Staff presentation to ZBA, September 13, 2018 216 N College Ave 9 Staff presentation to ZBA, September 13, 2018 216 N College Ave 10 Staff presentation to ZBA, September 13, 2018 216 N College Ave 11 Staff presentation to ZBA, September 13, 2018 ATTACHMENT 4 Applicant Presentation to the Zoning Board of Appeals Fort Collins Zoning Board of Appeals July 12, 2018 The Exchange Signage Variance Request The Exchange Collectively, the property at 244, 234, 216 N. College Ave. Site Plan Billboard Location Land Use Code Sec. 3.8.7.1(D)(3)  (a) For the first two hundred (200) feet in building frontage length, the maximum sign area permitted shall be equal to two (2) square feet of sign area for each linear foot of building frontage length.  (b) For that portion of a building frontage which exceeds two hundred (200) feet in length, the maximum sign area permitted shall be equal to one (1) square foot of sign area for each linear foot of building frontage length over such two hundred (200) feet. The sign area permitted hereunder shall be in addition to the sign area permitted under (3)(a) above.  Under this formula, the Land Use Code allows 636 square feet of on-premise signage for The Exchange Land Use Code Sec. 3.8.7.1(D)(3)  Staff has taken the position that the off-premise signage on the property – approximately 1,200 square feet – counts against the permitted 636 square feet of on-premise signage  Staff’s interpretation prohibits any on-premise signs because of the pre-existence of the off-premise signs  Nowhere does the Land Use Code state that off-premise signage counts in the calculation for on-premise signage  Respectfully, the applicants request a variance allowing 636 square feet of on-premise signage for the full term of the lease, including any extensions or renewals Land Use Code Sec. 2.10.2(H)  The Zoning Board of Appeals may grant a variance from the standards of Article 3 and 4 only if it finds that 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: Land Use Code Sec. 2.10.2(H)  Variance not detrimental to the public good  The Exchange is a unique development  Provides a roadmap and example for incorporating mixed use development with public spaces  Redevelopment of this “Targeted Activity Center” serves the public good  Continued existence of billboards does not alter City priorities Land Use Code Sec. 2.10.2(H)  The Exchange  Targeted Activity Center before and after redevelopment  Revitalizes existing, underutilized commercial space  Increases density of mixed-use development for more activity  Improves access to jobs and services with fewer car trips  Promotes reinvestments in areas with existing infrastructure  Increases economic activities and stimulates redevelopment nearby Land Use Code Sec. 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 . . . 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; Land Use Code Sec. 2.10.2(H)  Extraordinary and exceptional situation  Occupants inability to identify their businesses with customary on-premise signage that previously coexisted with pre-existing off-premise signage  Requiring Owner to choose between: (1) breaking lease with Lamar and removing off-premise signs, or (2) leaving off- premise signs and not having any signage for Occupants  Removing income stream from both Owner and Lamar through imposition of government regulation even though Land Use Code does not require such a result Land Use Code Sec. 2.10.2(H)  Difficulties and hardship not the fault of Owner, Lamar or Occupants  Lamar’s off-premise signs are grandfathered billboards that date back to 1948  Owner’s predecessor entered into lease with Lamar  Redevelopment of The Exchange does not impact or alter the location of the off-premise signs  No provision in the Land Use Code requires off-premise signage to count against allowable on-premise signage Land Use Code Sec. 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; Land Use Code Sec. 2.10.2(H)  Variance promotes the purpose of the Land Use Code equally well or better than Staff’s interpretation  Applicants are asking for the allowable amount of on-premise signage – not more  Would adhere to Land Use Code – Section 3.8.7.1(A)(3) – which governs the maintenance, existence and removal of “Nonconforming Signs” and which provides: “This subsection shall not apply to off-premises signs which are within the ambit of the just compensation provisions of the Federal Highway Beautification Act and the Colorado Outdoor Advertising Act.”  Strains logic to construe the on-premise signage allowance in Section 3.8.7.1(D)(3) to include off-premise signage Land Use Code Sec. 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. Land Use Code Sec. 2.10.2(H)  Variance is nominal and inconsequential when considered in the context of the neighborhood  Off-premise signs and on-premise signs have always co-existed at The Exchange  Other off-premise signs similar to those on roof of The Exchange are located nearby Land Use Code Sec. 2.10.2(H)  Variance advances the purposes of the Land Use Code as contained in Section 1.2.2  Will ensure the financial viability of The Exchange and its Occupants  Will encourage redevelopment of similar properties  Will avoid unnecessary litigation regarding off-premises signs  Does not diverge from status quo  Maintains and improves character of existing neighborhood  Improves the design, quality, and character of The Exchange  The Exchange converts what was once an unsightly group of buildings with a run-down parking lot into an attractive gathering place with a public plaza  Does not add new signage Staff Conclusion and Findings  Staff supports variance through October 1, 2023 when initial lease term expires  Lamar opposes Staff recommendation and requests variance for full term of lease, including any extensions or renewals  Owner supports requested variance for full term of lease but does not oppose Staff recommendation of variance for initial term  Continues to allow Owner to redevelop property for highest and best use as identified in City Plan  There are disadvantages of Staff recommendation that variance as requested by Lamar would alleviate Disadvantages of Staff Recommendation  Lamar would appeal decision to City Council  Lamar may file suit regarding:  Just compensation pursuant to applicable law  Staff interpretation of sign code  Creates exceptional practical difficulties and undue hardship not caused by applicants  Exceptional situation – uncommon redevelopment issue  Likely litigation involving City, Owner, and Lamar with associated expense  Staff position rests on first of three grounds for granting variance and does not address second or third grounds Fort Collins Zoning Board of Appeals July 12, 2018 The Exchange Signage Variance Request $77$&+0(17      2WKHU$SSOLFDQW,QIRUPDWLRQ 3URYLGHGWRWKH=RQLQJ%RDUG RI$SSHDOV N N N N N Other Applicant Information ϭϴϬϬϮϭ Other Applicant Information Other Applicant Information Other Applicant Information Other Applicant Information Other Applicant Information Other Applicant Information Other Applicant Information Other Applicant Information Other Applicant Information Other Applicant Information 216 N. College - South Across Parking Lot - Pre Redevelopment Other Applicant Information 216 N. College - South Building View- Post Redevelopment Other Applicant Information 216 N. College - South Plaza View with Containers- Post Redevelopment Other Applicant Information 216 N. College - Southwest Across Plaza- Post Redevelopment Other Applicant Information 216 N. College - Southeast Across College - Pre Redevelopment Other Applicant Information 216 N. College - Southeast Across College - Post Redevelopment Other Applicant Information 216 N. College - East Across College - Pre Redevelopment Other Applicant Information 216 N. College - East Across College- Post Redevelopment Other Applicant Information 216 N. College - East Across College - Post Redevelopment Other Applicant Information 216 N. College - Northeast Building View - Pre Redevelopment Other Applicant Information 216 N. College - Northeast Building View - Post Redevelopment Other Applicant Information 216 N. College - Northeast Across College - Post Redevelopment Other Applicant Information 216 N. College - North Across Jefferson - Post Redevelopment Other Applicant Information North Plaza View - Post Redevelopment Other Applicant Information West Plaza View - Post Redevelopment Other Applicant Information Billboard One and a Half Other Blocks Applicant North of Information 216 N. College Billboards Southeast of 216 N. College Located at Riverside and Mulberry Other Applicant Information Other Applicant Information Other Applicant Information Other Applicant Information Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA Materials provided by Applicant to ZBA ATTACHMENT 6 Verbatim Transcript of the Zoning Board of Appeals Hearing September 13, 2018 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 ATTACHMENT 7 Staff Powerpoint presentation to Council November 27, 2018 11/27/2018 Lamar Sign Appeal Tom Leeson, CDNS Director Variance Overview Zoning Board of Appeals • Approved a variance request to allow existing off-premise signage to remain and allow for additional signage for new tenants of the building to be permitted with the condition that the variance is only granted for 5 years by a 3-1 vote. 2 Overview of Appeals • Failure to properly interpret and apply Land Use Code • Section 3.8.7.1 (D)(3) – Signs that are permitted under the allowable square footage. • Section 3.8.7.1 (A)(3)(c) – Nonconforming signs that are called out by the Federal Beautification Act and the Colorado Outdoor Advertising Act are exempt from coming into compliance within a certain date. 3 Appellant’s claim #1 • Failure to properly interpret and apply Land Use Code Section 3.8.7.1(D)(3) • Appellant claims this section does not include Off-premise signs and Rooftop signs as being included as types of signs that are limited by square footage. • Appellant claims these signs should not count towards the property’s sign square footage allotment. 4 Staff Interpretation of 3.8.7.1 • Staff’s response to claims of failure to properly interpret and apply Land Use Code Section 3.8.7.1(D)(3) • Off-premise signs and Rooftop signs are prohibited in the sign code. Therefore, they are not expressly included in list of allowed signs in 3.8.7.1(D)(3). However, the definition of sign in 5.1.2. includes both on and off premise signs. • Freestanding and ground signs are included in 3.8.7.1(D)(3). These type of signs could also be off-premise signs. Therefore, not including off-premise or rooftop signs in the list does not mean they are not to be counted. • This led to staff’s conclusion that all signage on the property be included in the allotment, whether on or off premise. 5 Appellant’s Claim #2 • Failure to properly interpret and apply Land Use Code Section 3.8.7.1(A)(3)(c) • Appellant claims signs called out by the Highway Beautification Act and Colorado Outdoor Advertising Act can not be required to be removed by a certain date. • Appellant claims, by the City including the off-premise signage towards the total allotment for the property, it forces the property owner to choose to remove the signs to provide signage for new tenants. Therefore, claiming the City required the signs to be removed. 6 Staff’s Interpretation of 3.8.7.1(A)(3)(c) • Staff’s response to claims of failure to properly interpret and apply Land Use Code Section 3.8.7.1(A)(3)(c) • Section 3.8.7.1(A)(3)(c) does not apply to voluntary redevelopment and was not analyzed in this case. • Redevelopment of the property triggered 3.8.7.1(D)(3) and including the existing off-premise signs in overall allotment for the property would require a variance for new tenant signage. • By granting the variance with the condition the ZBA allowed the property owner to delay the decision to remove the off-premise signs with the initial term of the lease until a time where compliance with 3.8.7.1(D)(3) would not result in a breach of the lease. 7