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HomeMy WebLinkAboutMINUTES-11/27/2018-AdjournedNovember27, 2018 COUNCIL OF THE CITY OF FORT COLLINS, COLORADO Council -Manager Form of Government Adjourned Meeting — 6:00 PM ® ROLL CALL PRESENT: Martinez, Stephens, Troxell, Cunniff, Horak ABSENT: Summers, Overbeck Staff Present: Atteberry, Daggett, Coldiron 2. Consideration of .an ADoeal of .the. Zonina Board 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 comer of North College Avenue and Walnut Street. The appeal was filed on September 27, 2018. The appeal alleges the following: • The Board failed to property interpret and apply Land Use Code ("Code) Section 3.8.7.1(D)(3) • The Board failed to property interpret and apply Code Section 3.8.7.1(A)(3) • The Board's decision conflicts with the Federal Highway Beautification Act City Attorney Daggett outlined the appeal process. Mayor Troxell asked parties -in -interest to identify themselves. Sarah Mercer, attorney with Brownstein, Hyatt, Farber, Shrek, identified herself as the representative for Lamar Advertising. Ben Cramer stated he represents 200 North College, LLC, the property owner. Tom Leeson, Community Development and Neighborhood Services Director, stated this appeal is related to the Zoning Board of Appeals approval, with a condition that the variance is only granted for 5 years, of a request to increase the sign allowance at 216 North College from 636 square feet to 1,836 square feet. The notice of appeal by Lamar Advertising states that the Zoning Board of Appeals failed to properly interpret and apply two Land Use Code sections relating to the total sign allotment within non-residential zone districts and the timing of non -conforming signs annexed into the City becoming compliant. The appellant claims the first section does not specifically reference off -premise, or rooftop signs, as being included as types of signs that are limited by square footage; therefore, they should not count toward the property's overall sign square footage allotment:. Staffs response to this claim is that off -premise and rooftop signs are specifically prohibited in the Sign Code and are therefore not expressly included in the list of allowed signs in that section. Leeson noted the definition of `.`sign" does include both on -premise -and off -premise signs. City of rort Collins Page 431 November 27, 2018 Leeson stated the appellant's second claim is that signs called out by the Federal Highway Beautification Act and the Colorado Outdoor Advertising Act cannot be required to be removed by a certain date. Mayor Troxell noted none of the Councilmembers present attended a site visit and determined there were no procedural issues to be discussed. Ms. Mercer stated the Lamar billboard has existed on the roof of the building at 216 North College for over 60 years and is comprised of four 12x25 grandfathered off -premise signs. She discussed the lease arrangement for the sign which includes an automatic year-to-year renewal unless one of the parties provides notice of termination. Ms. Mercer stated the redevelopment plans submitted in 2017 depicted the billboard structure and did not impact or affect the billboard structure. Staff rejected those plans stating the billboard signs would use up all the tenant signage allotment for the property. At that point, the property owner submitted new plans without the billboards, which Lamar discovered in March 2018. Lamar then called City staff to inform them of Lamar's position that this would constitute an exercise of the City's power of eminent domain. As a result of discussions, the City, Lamar, and the land owner came to an agreement for the City to issue temporary on -premise sign permits for the tenants, allow for a variance process, and the ability to come before Council to get full resolution on the matter. Ms. Mercer stated the variance for the full term of the lease was requested by Lamar and the land owner in June of 2018. The five-year variance that was granted takes the variance through to the expiration of the initial term of the lease. The full lease would include any renewals or extensions. Ms. Mercer requested Council either modify the Zoning Board of Appeals decision to grant the variance for the full term of the lease or make a determination that a variance is unnecessary because the provision of the Code that governs sign allotment is intended to apply only to on - premise signs. She stated the Zoning Board of Appeals variance is insufficient with the condition because Lamar's property right is vested in the full term of the existing lease with the land owner. The remainder of Lamar's property interest beyond the initial term of the lease is not accounted for in the granted variance. Ms. Mercer stated this is an exceptional case as this is the only rooftop billboard in the city; therefore, Lamar does not believe that granting the variance for the full term of the lease sets any type of precedent. She stated a variance for the full term of the lease will promote the purpose of the Land Use Code equally well or better than staffs interpretation because it will allow the provisions of the Code to be harmonized in a way that makes sense. Additionally, she stated the granting of the variance for the full term of the lease is nominal and inconsequential when considered in the context of the neighborhood and in the historical context. Ms. Mercer stated it has been Lamar's experience with the City that there has never been an interpretation of the Code involving off -premise signage counting toward a tenant's on -premise sign allowance. She discussed the City's goal to eliminate billboard signage and stated a 2014 memo outlines billboard reduction options: purchasing them either by eminent domain where appropriate or by monetary means, natural attrition, or the voluntary removal of signs through redevelopment, and incentivized removal. She stated requiring the land owner to remove the City of Fort Collins Page 432 November 27, 2018 billboard structure as a condition for City approval of the redevelopment plan and the reissuance of the on -premise signs was an exercise of the City's power of eminent domain. Councilmember Cunniffasked if staff feels the general definition of sign includes both on -premise and off -premise signs. Noah Beals, Senior City Planner, replied in the affirmative and stated.staf 's interpretation is that the off:premise signage does count toward the property's sign allowance. He stated properties are required to comply with Land Use Code standards, including the Sign Code, as they redevelop. Mayor Troxell asked about the definition of the full lease term. Leeson replied the lease runs through 2023; however, it includes a clause that it can be continued for an unspecified amount of years beyond that based on an agreement between Lamar and the property owner. Mayor Troxell asked why the billboard has not applied for historic designation. Ms. Mercer replied Lamar has not considered that option. Councilmember Martinez asked about the staff interpretation that off -premise signage counts toward the sign allowance. Leeson replied it is an interpretation that the definition of "sign" includes both on -premise and off -premise signage. Councilmember Martinez asked how that interpretation couples with the Federal Highway Beautification Act. Leeson replied the definition of'sign' is not in conflict; the Act governs what a municipality can do with signs. Ms. Mercer stated Colorado case law has indicated what a municipality can and cannot do with respect to billboards located along state highways. Councilmember Martinez stated it seems this may be identified as a taking, or eminent domain. City Attorney Daggett stated this variance does not require the billboard to be removed, but rather that the property owner decide whether to retain the billboards, which far exceed the sign allowance, or retain the other signage on the site at the expiration of the variance. Councilmember Martinez questioned the reason for the 5-year number. Leeson replied the Zoning Board of Appeals added that condition because it felt the property owner had an existing lease with Lamar that remained for 5 more years, thereby giving the property owner the option to not breach its contract with Lamar. Ms. Mercer stated, after 5 years, the land owner will be forced to decide between giving up the ability to have tenant signage or to continue the lease with Lamar, which is a property right the land owner and Lamar both have. She stated the property right is vested for the full term of the lease, not just the initial tern. Councilmember Cunniff asked if either party could terminate the lease, with a 90-day notice, after the initial term. Ms. Mercer replied in the affirmative. Mayor Pro Tern Horak asked if there is compensation provided to either party if the lease is terminated with that notice. Ms. Mercer replied in the negative. Councilmember Cunniff made a motion, seconded by Mayor Pro Tern Horak, that Council finds that the Zoning Board of Appeals properly interpreted and applied the relevant Land Use Code City of Fort Collins Page 433 November 27, 2018 standards in approving, with one condition, the sign variance at 216 North College Avenue (The Exchange), ZBA 180021, and application of the relevant Land Use Code sections does not conflict with the Highway Beautification Act or the Colorado Outdoor Advertising Act and that the decision is hereby upheld by Council, and further, that based on the evidence in the record and presented at this hearing, the appeal is hereby found to be without merit and is denied. Councilmember Cunniff stated the definition of.'sign' does cover both on -premise and off -premise signs and noted the lease is voluntarily severable at the end of 5 years; therefore, the property owner has options and is not being forced into any decision. Councilmember Martinez disagreed and stated loosely defining the Code by interpretation forces the property owners to decide whether there should be subsequent litigation. He stated evidence shows there could be a violation of the Highway Beautification Act or the Colorado Outdoor Advertising Act. Mayor Pro Tern Horak stated the land owner should have known about the billboard lease and granting the variance is detrimental to the public good. He stated this issue is not the City's problem. Mayor Troxell stated the Zoning Board of Appeals acted appropriately with granting the variance through the end of the initial lease. He agreed this is not a City issue nor is it related to eminent domain. RESULT:- ADOPTED [4 T0:1] AYES: Stephens, Troxell, Cunniff, Horak,, NAYS`.: Martinez ABSENT: Summers; Overbeck 0 OTHER BUSINESS Mayor Pro Tern Horak supported City Attorney Daggett and her staff contacting ACLU attorneys in the Mennonite locker issue to determine if there is some type of resolution. He stated an executive session is not necessary at this point. Councilmember Cunniff agreed with Mayor Pro Tem Horak. City Attorney Daggett stated that direction is helpful and may eliminate the need for any further discussion of the matter this evening. All Councilmembers agreed. City of Fort Collins Page 434 November 27, 2018 e ADJOURNMENT The meeting adjourned at 7:00 PM: Arm e 11 WGRA _tea �O_ ATTEST: 0* City Cler SEAL City of Fort Collins Page 435