4.1 BASR 08-13-2013 E � Re quest for Action
River
To Item Number
Board of Adjustment 4.1
Agenda Section Meeting Date Prepared by
Board of Adjustment August 13,2013 Chris Leeseberg,Park Planner-Planner
Item Description Reviewed by
Consider Appeal Request by Decklan Jeremy Barnhart,Deputy Director, CODD
Group/Granite Shores regarding the interpretation Reviewed by
of sign regulations for free-standing sign in DD
district (633 Main St), Case No. V 13-04
Action Requested
Staff recommends denial of the appeal that would allow a new freestanding sign in the Downtown
District (DD) based on Sections 30-872 and 30-860, for the following reasons:
1. Freestanding and monument signs are not listed as allowed signs in the Downtown
District Section 30-872.
2. Section 30-872 is the more specific ordinance and,pursuant to Section 30-860(e),prevails
over the general regulations in Section 30-866.
3. There are no performance standards in Section 30-872 for free-standing or monument
signs.
Background/Discussion
Planning Commission (7-9-2013)
Per the Board of Adjustments (BOA) request to clarify what the ordinance says, staff had a phone
conversation with the city attorney regarding the applicant's interpretation of the ordinance. The city
attorney then drafted a memo, regarding his position on the applicant's interpretation,which states that
freestanding and monument signs are not allowed in the downtown district. The memo also provided a
recommendation to the City Council,which is, "...if the Council believes that the proposed sign type
should be allowed,the appropriate approach would be to amend Section 30-872 of the Zoning Ordinance
to specifically allow free-standing and/or monument signs and to establish performance standards for
such signs."
Staff contacted the applicant on July 31,2013 to inform them city staff had contacted the city attorney, as
desired by the BOA, and that city staff had received a memo on the attorney's position. City staff asked
the applicant if they wanted to meet and provided them a copy of the memo. Their response is attached.
Public Hearing
There was a great deal of information and reasoning the applicant provided the BOA to support why
they believe staff is in err with their determination. The following is a review of that information and
reasoning.
The applicant indicated that six different types of freestanding signs are identified as allowed in Sec. 30-
866 for the Downtown District (DD) and that this is an overarching set of sign ordinances that applies to
P O • E A E D NY
NATURE
all districts, therefore, there proposed sign is permitted. Of the six signs that are listed, five are specific
sign types,with two of those having time limits to be erected. None of the six just list a freestanding sign
as a sign type. The city attorney does not agree, as indicated is his memo dated July 30,2013. In
summary,it states Section 30-872 is the more specific ordinance and,pursuant to Section 30-860(e),
prevails over the general regulations in Section 30-866 and there are no performance standards in
Section 30-872 for free-standing or monument signs.
The applicant raised a point to staff's second reason for denial, that there are no regulations for the size,
height, and setbacks in the DD (Sec. 30-872). The applicant cited Sec. 30-867 as clearly defining the
setbacks (which it does) and that the size and height would be regulated by a Conditional Use Permit
(CUP) at the City Council level. The Council may only review a CUP for uses allowed as conditional
uses per city ordinance. The only reason the proposed sign would be considered for a CUP is that the
changeable copy exceeds 30 square feet. There are no performance standards for free-standing or
monument signs in Sec. 30-872 to regulate that sign type.
The applicant cited a portion of Section 30-852 (a)...to recognize the commercial communication requirements of all
sectors of the business community, to encourage the innovative use of design, to promote both renovation and proper
maintenance, to allow for special circumstances and to guarantee equal treatment under the law...and stated city staff is
accomplishing zero of those things with denial.
The applicant stated the sign utilizes emerging and innovative technology. The applicant did not indicate
what those technologies were,but staff guessed they were referring to the use of LED lighting that is
commonplace in signs now. Regardless,that text is not to be applied that a new technology is exempt
from written city code,it merely establishes the purpose of the ordinance in general terms,which the
more define criteria are derived.
Referencing the special circumstances, the applicant declared we can all agree that Granite Shores is a
special circumstance. Staff does not agree that a mixed use building in a downtown district is a special
circumstance,in fact, that it is common building type in an urban fabric. If there are special
circumstances on or with any property, the variance process is intended to address those circumstances.
The applicant discussed that the proposed sign is designed the same as the Rivers Edge Commons Park
and related this to the guarantee equal treatment under the law. Staff believes they were trying to compare
what the city did with its kiosk in Rivers Edge Commons Park and what they are proposing for signage.
The applicant maintains the park kiosk has zero effect on anyone's job and zero effect on anybody's
income and the city does not have to follow the same rules as the businesses downtown,which they felt
is kind of"shoddy". The park kiosk advertises civic events that bring people downtown the same as the
proposed sign would advertise (10% of the time) civic events that bring people downtown. Per City
Attorney Beck, the Rivers Edge Commons Park sign/kiosk is an official government sign which is
exempt from this subdivision. Staff did not base its denial on Section 30-852 (a).
The applicant said that there are 15 freestanding signs in downtown and the majority were up prior to the
2002 adoption of the DT ordinance. Staff only identified nine freestanding signs in the downtown
district,with three of those on one property. The applicant also noted there are two "freestanding signs"
at a downtown business. As a follow up to this point raised by the applicant, staff verified the type,
location and approval of those two signs. As no permits were issued, these signs are thought to be
portable "A-frame" signs. Although the DD zoning allows portable "A-frame" signs, these signs do not
meet the ordinance requirements. They are too large and they can only have one. Staff did contact the
N:\Departments\Community Development\Planning\Case Files\V\V 13-04 Granite Shores\V 13-04_staff report granite shore decklan group 8-13-
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business in question to let them know they need to remove one of the signs and make the other smaller.
Staff did also review all of the businesses in the DD area and notified six other businesses in the district
that they have sign violations based on the complaint.
The applicant has stated that the sign has nearly unanimous support from the business community which
it directly impacts. It appears to have great support,which is admirable,but the sign cannot advertise any
off site businesses, so it is not clear how it will directly impact the downtown businesses. The applicant
also states that essentially what they are looking for is a modified sign under 30-866 (9);One on premises,
permanent identification sign per apartment or condominium complex. Their building permit application for the
sign does not indicate this,it references both freestanding and monument. They claim the proposed sign
is an allowed freestanding sign which is just going outside of the parameters of the16 square foot area
and above the height of 8 foot limit. They believe what they are proposing is an allowed use,it is just
bigger than what is stated,which is what triggers the CUP, so they are looking to modify that with a CUP
at the Council level. Again, the only reason the proposed sign would be considered for a CUP is that the
changeable copy exceeds 30 square feet. If they want to exceed performance standards, they would have
to apply for a variance,not a CUP. If the sign is being proposed as a permanent identification sign per
apartment or condominium complex, then it cannot advertise any of the retail/commercial businesses on
site, as they are proposing.
The BOA asked for clarification on flashing elements,which is prohibited by Sec. 30-872(b)(1). The
applicant indicated the sign will not have flashing elements,but will have scrolling messages and it will be
no different than the LED billboards you see on the highway. It is important to note that the
appropriateness of this type of signage in rural highway settings is still being debated. Any type of
internally lit or changeable copy signage outside the window of residential properties is expected to create
adverse living conditions.
Because it was asked if freestanding signs were overlooked or missed in the past, staff provided
information on the history of the definitions. When the DD was created in 2003,monument,
freestanding, and pylon were blanket terms at the time which covered all freestanding signs types and
were used interchangeably. The applicants sign permit uses both terms to describe the project. In 2010
the city separately defined freestanding and monument signs to promote the use of monument signs by
the business community. In doing so, freestanding signs were overlooked in the DD. The applicant said
if the city is going to come back and say we meant to say this,we meant to say that, that leaves them
(applicant) on"a little unfair ground". Staff clarified that the info was provided because there was
confusion if freestanding signs were overlooked in the past.
The applicant claims there are two properties where the proposed sign could be built in DD. Exhibit B
shows the numerous locations that freestanding signs,if allowed, could be located in the DD. This
exhibit,with the exception of one area, does not include any parking lot areas which easily could be used
for freestanding signage,increasing the area freestanding signs could be located.
The BOA asked staff why not pursue an ordinance amendment? Staff suggested it,but the applicant
decided to go with the appeal. The applicant stated the reason they went with the route of an appeal is
they felt it was not truly addressed, they felt working with staff on design cues maybe staff could amend
the ordinance later on.
One commissioner stated he was in favor of the sign,as it is a good idea because it promotes the
businesses. Again,if the sign is to be a freestanding sign,it cannot advertise anything off premise. If the
N:\Departments\Community Development\Planning\Case Files\V\V 13-04 Granite Shores\V 13-04_staff report granite shore decklan group 8-13-
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sign is to be an identification sign for the apartment or condominium complex, as the applicant indicated
at the meeting that is what they are asking for, then it cannot advertise anything off premise nor can it
advertise any of the retail/commercial businesses on site. Further,it is not a question if a sign is a good
idea, the question is did staff incorrectly apply the ordinance to a building permit application. If a sign is
simply a `good idea', then the Commission should deny the appeal and recommend the Council adopt an
ordinance amendment to allow signs in the downtown district,with appropriate standards and criteria.
Two other people spoke in favor of the sign in downtown.
There was discussion by the Commission if they should move the request on to the Council with a denial
or to postpone it to receive more information. The applicant stated they would rather have it postponed
a month for the BOA to make the right decision versus sending it to the city council with a denial.
The BOA postponed their action until the August BOA meeting.
At the time this memo and attachments was processed for the BOA, the applicant indicated there was
not anything they need added to the packet for the BOA to review.
Financial Impact
None
Attachments
• City Attorney Memo dated July 30,2013
• 2013 Email from the applicant dated July 31,2013
• 2013 Email from the applicant dated August 7,2013
• Freestanding sign locations in DT exhibit
• Possible freestanding sign locations in DT exhibit
N:\Departments\Community Development\Planning\Case Files\V\V 13-04 Granite Shores\V 13-04_staff report granite shore decklan group 8-13-
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MEMORANDUM
To: Jeremy Barnhart
From: Peter K. Beck
Date: July 30, 2013
Re: Granite Shores Sign Appeal
This Memorandum is to follow up on our recent conversations regarding the appeal filed
by the owner of Granite Shores from the Planning Staff interpretation that free-standing signs are
not allowed in the Downtown Development District.
It is my understanding that the property owner's position is that, because free-standing
signs are not expressly prohibited by Section 30-872 of the Zoning Ordinance,they are permitted
by Section 30-866. I do not agree.
Section 30-860(e) of the Zoning Ordinance provides, in part, that "In all applications,
where a matter of interpretation arises, the more specific definition or higher standard shall
prevail." Section 30-866 sets forth sign regulations applicable in all zoning districts.
Section 30-872 sets forth sign regulations for the Downtown Development District.
Section 30-872 is the more specific ordinance and, pursuant to Section 30-860(e), prevails over
the general regulations in Section 30-866.
Furthermore, Section 30-872, although it does not use the term "free-standing" sign,
clearly intends to prohibit such signs. Section 30-872(b)(12) states that "monument" signs shall
not be allowed. It is my understanding this language was adopted before the Zoning Ordinance
included a definition of "free-standing" sign. Furthermore, Section 30-872 includes specific
performance standards for all allowable signs in the Downtown Development District. There are
no such standards in Section 30-872 for free-standing or monument signs. The clear intent of
Section 30-872 is to prohibit what are now defined by the Zoning Ordinance as free-standing
signs.
This analysis is not intended to take a position one way or the other on whether the sign
proposed for the Granite Shores property is appropriate. My conclusion is simply that it is not
allowed under the current Zoning Ordinance. If the City Council believes the proposed sign
should be allowed, the appropriate approach would be to amend Section 30-872 of the Zoning
Ordinance to specifically allow free-standing and/or monument signs and to establish performance
standards for such signs.
Please let me know if you have any questions.
cc: Chris Leeseberg
686417.DOCX
Leeseberg, Chris
From: Tim Dolan <tim @decklangroup.com>
Sent: Wednesday,July 31, 2013 11:35 AM
To: Leeseberg, Chris
Cc: Annie Deckert; Carlton,Zachary
Subject: Re:7-25-13 letter re: BOA Granite Shores sign
Chris,
Thank you for forwarding us the City Attorney's memo. At this time, Decklan Group and our client do not feel
that there is anything to be gained by meeting, unless City Staff has decided to support this project. Please let
us know if Staff has any new and supporting ideas it would like to meet about. If there are none,we look
forward to addressing your attorney's memo and the continued fallibility of City Staffs interpretation and
position in a public forum at the August 13th Board of Adjustments meeting.
We appreciate your cooperation in providing the requested documents. Feel free to contact us with any
questions or concerns. Have a great day!
Tim Doian - Evecutht. 'p
www.decklangroup.com
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On Wed, Jul 31, 2013 at 11:13 AM, Leeseberg, Chris<CLeeseberg@elkrivermn.gov>wrote:
Your welcome. Let me know if you want to meet.
Chris Leeseberg I Park Planner-Planner
763.635.1033 w 1 763.635.1090 f
13065 Orono Parkway I Elk River I MN 1 55330
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From: Annie Deckert[mailto:annieCadecklangrouD.com]
Sent: Wednesday,July 31, 2013 10:09 AM
1
To: Leeseberg, Chris
Cc: Tim Dolan; Carlton, Zachary
Subject: Re: 7-25-13 letter re: BOA Granite Shores sign
Thank you
On Wed, Jul 31, 2013 at 9:50 AM,Leeseberg, Chris <CLeeseberg(delkrivermn.gov>wrote:
Annie,
Certainly, here it is.
Thank you.
Chris Leeseberg I Park Planner-Planner
763.635.1033 w 1 763.635.1090 f
13065 Orono Parkway I Elk River I MN I 55330
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From: Annie Deckert [mailto:annieC@decklangrouD.com]
Sent: Wednesday,July 31, 2013 9:42 AM
To: Leeseberg, Chris
Cc:Tim Dolan; Carlton, Zachary
Subject: Re: 7-25-13 letter re: BOA Granite Shores sign
Hi Chris,
Please send me the draft first and I will let you know if we want to meet to discuss after we review his position.
2
Thank you
On Wed, Jul 31, 2013 at 9:34 AM, Leeseberg, Chris <CLeesebergna.elkrivermn.gov>wrote:
Annie,
Good morning. We spoke with our attorney via phone and he has since send us a draft memo regarding his
position.
Would you want to meet to discuss his position? I am available both Thursday and Friday mornings this week.
Please let me know if you want to meet and if either of those times works for you or other times that would.
Thank You.
Chris Leeseberg J Park Planner-Planner
763.635 1033 w I 763.635.1090 f _
13065 Orono Parkway I Elk River I MN 1 55330
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Leeseberg, Chris
From: Tim Dolan <tim @decklangroup.com>
Sent: Wednesday,August 07, 2013 10:15 AM
To: Leeseberg, Chris
Subject: Re: Board of Adjustment Packet
Chris,
I don't believe there is anything we need added to the packet. Will Peter Beck be at the meeting?
Respectfully,
On Wed,Aug 7, 2013 at 10:06 AM, Leeseberg, Chris<CLeeseberg@elkrivermn.gov>wrote:
Annie or Tim,
Do you want anything included in the packet for the Board of Adjustment to have to review prior to the
meeting on August 13?
If so,please provide me anything you want included by 12:00 pm tomorrow(8/8).
Thank You.
Chris Leeseberg I Park Planner-Planner
763.635 1033 w I 763.635.1090 f
13065 Orono Parkway I Elk River I MN 1 55330
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