Loading...
HomeMy WebLinkAbout04/25/1996 W H E A T R I D G E B O A R D O F A D J U S T M E N T MINUTES OF MEETING • 1. CALL THE MEETING TO ORDER: The meeting was called to order by Chairman WALKER at 7:41 P.M. on April 25, 1996, in the Council Chambers of the Municipal Building, 7500 West 29th Avenue, Wheat Ridge, Colorado. 2. ROLL CALL: MEMBERS PRESENT: Bill Echelmeyer Robert Howard Tom Abbott Paul Hovland Robert Walker MEMBERS ABSENT: STAFF PRESENT: Susan Junker Glen Gidley, Director of Planning and Development Sean McCartney, Planner Mary Lou Chapla, Secretary PUBLIC HEARING The following is the official set of•Board of Adjustment minutes for the Public Hearing of April 25, 1996. A set of these minutes is retained both in the office of the City Clerk and in the Department of Planning and Development of the City of Wheat Ridge. • WHEAT RIDGE BOARD OF ADJIISTMENT • MINffTES OF MEETING: April 25, 1996 Page 2 2. APPROVE T$8 ORDER OF THE AGENDA Motion was made Board Member HOVLAND, seconded by Board Member HOWARD, to approve the agenda as amended and continue Case No. WA-96-10 until the May 23, 1996 meeting. Motion carried. 3. PUBLIC FORIIM (This is the time for anyone to speak on any subject not appearing on the agenda.) No one came forward to speak. 3. PIIBLIC HEARING A. base No. TUP-9C,-2: An application by Hans Pedersen for approval of a Temporary Use Permit to allow the parking of a semi and tractor-trailer on property zoned Agricultural-One and located at 4859 Miller Street. Sean McCartney presented the staff report. All pertinent documents were entered into record, which Chairman WALKER accepted. • No questions were asked of staff. The applicant; Hans Pedersen, 4859 Miller Street, was sworn in. Mr. Pedersen said the tractor-trailer belongs to his son-in-law who hauls sand and gravel for Western Mobile. The tractor-trailer is parked there during the night and is never there during the daytime. The son-in-law lives on the property and this would be a convenience to him. The neighborhood is use to a lot of semis and this one would just be coming in at night and pulling out early in the morning. Board Member ABBOTT asked if the son-in-law was to move, the tractor-trailer would no longer be needed, and Mr. Pedersen agreed. Board Member ECHELMEYER wanted to know what form of merchandise would be in the trailer and would it be anything hazardous, and Mr. Pedersen said it is empty at night and then during the day only sand and gravel are hauled. Board Member ECHELMEYER said he was sure he saw three semis parked there the other day, and Mr. Pedersen said he was not aware of anything like that; his son-in-law is the only one that has been parked on his property. Perhaps the trucks • were parked on the property behind his. WHEAT RIDGE BOARD OF ADJUSTMENT • Mla~tiinS OF MEETING: April 25, 1996 Page 3 Chairman WALKER wanted to know if there would be any loading or unloading on the property, and Mr. Pedersen said no. No further questions were asked. Motion was made by Board Member ABBOTT, that Case No. TUP- 96-2, an application by Hans Pedersen, be APPROVED for the following reasons: 1. The tractor-trailer is currently parked on the property and staff has not received any complaints. The adjacent property occasionally has tractor-trailers parked on it for various reasons. Staff believes that persons working in the area are accustomed to this type of vehicle. 2. This is a very large piece of property and a semi should not effect the light and air or cause significant air, water or noise pollution nor cause drainage problems in the area. The property is surrounded by commercial and industrial uses. There is currently significant amounts of traffic that is commercial and is industrial in character. The tractor-trailer will be parked on • private property at all times and not allowed to be parked within City right-of-way. 3. The vehicle is being parked 225 feet from the nearest public right-of-way. WITH THE FOLLOWING CONDITIONS: 1. The parking will be primarily overnight and at the location described in the packet presented to the board. 2. There shall be no loading or unloading of the semi tractor-trailer. 3. This Temporary Use Permit shall be for one year or until the current driver no longer occupies the dwelling; whichever occurs sooner. Motion seconded by Board Member ECHELMEYER. Motion for approval carried 6-0. Resolution attached. B. Case No. WA-96-11: An application by C and E Communications for approval of a 5' front yard setback variance to the 50' front yard setback requirement on property zoned Planned Industrial Development and located at 10501 N. I-70 Frontage Road. Glen Gidley presented the staff report. All pertinent • documents were entered into record, which Chairman WALKER accepted. • WHEAT RIDGE BOARD OF ADJIISTMENT Mi,~uir.5 OF MEETING: April 25, 1996 Page 4 Board Member ABBOTT said if the survey pin had been correct then their setback would have been correct, and Mr. Gidley replied presumably if the intent was to measure 50 feet to the north of the correct survey pin then location of the sign would be 50 feet back. When the incorrect pin was measured 50 feet back, it is 50 feet to the leading edge. Mr. Gidley said he believes the applicant had intent to comply with the law. Board Member ABBOTT said you could cut off the southern edge of the sign the required number of feet you could reach the actual required setback from the real corner location. Mr. Gidley replied he supposed that could be done, it would have to be done in a balanced fashion with the other side so that the foundation could properly support the offsetting structure. He is not an expert in terms of fabrication of these things and does not know what it would take to do this. • Board Member ABBOTT said he did not follow the criteria on response #1 and was staff saying that the second case we will be hearing relating to this sign height could be effected by the outcome of this variance, and Mr. Gidley said not really, what they are saying is that if from a practical standpoint that is possible. That is why staff has indicated the property in question can yield a reasonable return in use, service or income if permitted to be used only under the conditions allowed by regulation. If the actual structure was required to be moved back 4 feet the addition that's currently being constructed is well lower than the bottom edge of the sign and actually could be moved back without encroaching or causing a problem for this building. Board Member ECHELMEYER asked are there not surveys on record with the City on a piece of property like this that show the actual location of the four benchmarks of the property, and Mr. Gidley replied the City does not maintain surveys of all properties in the City. Whenever a building permit comes in for a building, a survey is required to be submitted. There is probably a survey when this original building was built that dates back to around 1975. Again, the City does not normally maintain surveys, the county does. Board Member professional property now • taken for the survey on the ECHELMEYER felt that somewhere there must be a survey on record either by the owner of the or the owner of the property as the land was frontage road. Mr. Gidley said there is a property on record, but that survey is prior WSEAT RIDGE BOARD OF ADJ[TSTMENT • MIav~iaS OF MEETING: April 25, 1996 Page 5 to buildings being placed on the property originally. When they did this addition, since it was in line with the existing building, staff did not require an update to the survey. To his knowledge, Mr. Gidley said there has not been any taking in terms of additional right-of-way along this area since the original interstate was put in the late 60's. This front property line should not have changed. Board Member ECHELMEYER asked whose irrigation culvert is that on the property, and Mr. Gidley said he is not for sure but it may be Wadsworth or Slough ditch, and both of those are owned by the City of Arvada. • Board Member ECHELMEYER said he gets the indication that the sign was built and put up before the Planning Department even knew about it, and Mr. Gidley said no, they actually came in and pulled a permit for the billboard. Staff knew where it was to go and gave them the permit based upon the information they had supplied to us. Staff focused their attention on the requirements and the Code of Laws (gave them copies of it). In this particular instance, it is his belief, based on the information he received after writing the staff report that this is a legitimate error and the error is based upon a incorrect pin location. It is quite possible because there are survey problems generally in the west area. No one knows how the pin got located at that point, for some reason the pin was there and the applicant assumed that it was correct. Board Member SANG said nothing has been addressed yet as to the height requirement, and Mr. Gidley said that is the next case. Board Member SANG said if the billboard were brought into the height requirement of 32 feet, wouldn't it then effect the sign of High Country as far as blocking it. Mr. Gidley answered the auto body sign in the photograph has a 10 foot setback and would be approximately 35 feet further to the south, so he does not believe it would block the sign. Board Member ABBOTT questioned the staff report saying the front yard setback variance as being 5 feet, and. Mr. Gidley answered the actual variance is 4.62 feet, which is less than 10 percent. No further questions were asked. • Chris Melcher, attorney with Strickland, representing the Communications, was sworn in Brownstein, Hyatt, Farber and applicant, C & E Mr. Melcher said he does have WHEAT RIDGE BOARD OF ADJUSTMENT • MINIITES OF MEETING: April 25, 1996 Page 6 power of attorney from both the property owner and the sign company. Mr. Melcher entered into record, powers of attorney, one dated March 29, 1996 and labeled 'Applicant's Exhibit 6' and one dated April 25, 1996 and labeled 'Applicant°s Exhibit 27'. Mr. Melcher wanted to inform the board that High Country Auto Body is the property owner and they are the ones who leased the applicant the right to come and put up the billboard; they want the billboard there and are not concerned about blocking their sign or light and air. They thanked Mr. Gidley for correcting the record as they are seeking a 4.6' setback. There is no longer any concern regarding the structural integrity of the sign or any concern how it was built. He entered into record documents that were provided to the City that confirms speaking with Mr. Gidley, Director of the Planning Department and Mr. John Eckert, the Chief Building Inspector, labeled 'Applicant's Exhibit 29', and they both confirmed in the conversations that they have no more concern about that sign. The • applicants have engineer's certification on every aspect of that sign, it is completely safe and complies with all industry building codes and it will withstand, he believes, wind-pressure of over 100 miles per hour. Mr. Melcher said he would like to supplement what Mr. Gidley talked about and that is the general nature of this neighborhood and location. This property is located in what the City considers Billboard District #2 (B-2), Mr. Melcher put on the easel an enlarged copy of the billboard zoning map of the City. The City, a number of years back, adopted a policy to try and get all billboards out of the rest of the City called Billboard District #1 (B-1) and into the B-2 district. The property they are talking about is right next to I-70 and it is where a large number of billboards in Wheat Ridge are located... Mr. Melcher pointed out the billboards and larger signs in the area and mentioned that two of the Medved signs are applied and permitted as billboards and not free-standing signs. There are a number of billboards up and down for all sorts of businesses, and noted this is a Planned Industrial Development. Volant is a manufacturing warehouse and. pointed out their billboard and the Yamaha sign. He continued saying this is not a residential or quiet area nor an area where it is unusual to see a billboard as they are all up and down this road. Mr. Melcher entered into record 5 pictures of the frontage road . with the billboards, labeled 'Applicant's Exhibit 30, 31, 32, 33, and 34'. He did this so the board could get a flair WHEAT RIDGE BOARD OF ADJiJSTMENT • MYNIITBS OF MEETING: April 25, 1996 Page 7 for the properties and understand what they are talking about. The slides only show one billboard and he just wanted the board to understand just how many there are in the area. Mr. Melcher added the area should be familiar to the board because Volant was in less than a year ago asking for a setback variance for their sign. The case is confusing, so it is hard to tell what their setback range is, it seems to be anywhere from 9-21 feet. Volant intentionally put their sign with a 21' setback violation and then Came in and asked for a variance. He said they are coming in here now with an honest error which Mr. Gidley has pointed out, and asking for a much more minor setback. Board Member ABBOTT stated that prior variances granted by this board have nothing whatsoever to do with this case. Volant came in with a proposal much different than the applicants and we considered it reasonable and granted it. He does not think it is persuasive to him to argue about Volant's or other existing signage that occurs along I-70 in relation to this request. • Mr. Melcher said he merely brought this up because he feels it should have been handled as an administrative variance and they certainly thought it was going to be. Their only objection was Volant, being their neighbor, who had gotten a variance themselves however, came in and objected to their variance request; that did not seem fair to them. Mr. Melcher showed an enlargement of the survey, labeled 'Applicant's Exhibit C'. C & E Communications approached the City for a building permit, and was given a permit that said 50' setback. They did their very best to comply with that permit and placed the sign exactly 50' from the property line. He entered into record the signed copy of the lease, labeled 'Applicant's Exhibit 2'. The lease that was prepared shows the proposed location of the pole-and the fence was well-inside the property line. Also the information that C & E received stated that the fence was well inside the property line and there would be a pin there. • He said the contractor went out and looked for the pin and found it under a few inches of dirt and there was also a #4 rebar, which is a standard property pin placement device. They found the rebar exactly where the property owner said the pin would be. They measured exactly 50' and if 4.62 feet was measured from the pin to the property to the fence WHEAT RIDGE BOARD OF ADJUSTMENT • MINIITES OF MEETING: April 25, 1996 Page 8 and then add 45.73 feet from fence to the leading edge of the billboard, it comes out 50.35 feet; just over 50 feet. At some point afterwards, the City notified C & E Communications that the setback was too short. Mr. Melcher said the company was confused and said the setback was not to short, and they both talked to the City and explained what they relied on. The City asked for a survey and so they gave them an 'unofficial' survey from Joe Asmus while he was doing the official survey. They told the City they made an honest mistake but will get the surveyor to tell us and if they were wrong they certainly did not do that intentionally. The surveyor went out and dug and measured and what he did, as it turns out, is go to the back of the property, found a #4 rebar with a plastic cap and measured 181.5 feet from that cap as the legal description says. He came up with the 'true deep line' which is just outside that fence and he measured from that line down to that cap/rebar which they now found out it was wrong. He found 4.62' and laid it out but apparently it looks like the property line was a little short of what he thought it was; but the billboard is 50 feet from this rebar. That rebar, • as it was explained, is what you would expect to find and it was certainly reasonable for them to think that was the property line. That illustrates how they got here and why this billboard is where it is. Board Member ABBOTT asked Mr. Melcher if he was saying they did not find another pin, and he replied yes, there is no other pin that they could find anywhere. They certainly do not know this for sure but years ago whoever surveyed this property and stuck these pins in the ground, stuck this pin in and missed it by 4.5 feet. The cap came off probably sometime when the landscaping or concrete walk was being done. That is where some surveyor years and years ago placed that property pin and they certainly thought that was where the property line was. Board Member ECHELMEYER questioned if the survey was done 2 months after the billboard was up because even the survey now does not identify that as a piece of rebar. The surveyor doesn't call it a benchmark, a corner post, a pin - - and asked why is there such a problem identifying this specifically for it is, and why would a man survey a property two months later and simply say here is a piece of rebar and not define what it is. Mr. Melcher answered saying the client, C & E Communications, did not think it was necessary for them to bear the expense of doing an • entirely new survey which would cost several thousand dollars. They understood there was some data as to where WHEAT RIDGE BOARD OF ADJIISTMENT • MINQTES OF MEETING: April 25, 1996 Page 9 the property line was because they honestly did not know. The property owner told us where the property line was and quoted what the surveyor said on the survey 'I surveyed and located the leading edge of the existing billboard on the property according to existing monumentation'. He does not say this is the actual property line, just that this is his best attempt at finding it without a full blown survey. Mr. Melcher agrees there should be some survey on record with the City or the county but they have not-found it. The property owner should also have a survey, and they haven't found it with him either. Board Member ECIiELMEYER asked Mr. Melcher if he knew if the general contractor who put in the rebar used a transit to locate any of the four benchmarks on the property and he answered he did not know. The contractor was told by the property owner to go outside the fence a few feet and there would be a property pin where the property line is and that is what they did. They did not think there would be any unusual circumstances here. Mr. Melcher addressed the nine. criteria in the staff report: • 1. Can the property in question yield a reasonable return in use, service or income if permitted to be used only under the conditions allowed by regulation for the district in which it is located. This property would not yield a reasonable return in use because if the sign had to be relocated it would cost somewhere in the neighborhood of $8,000 to $10,000 to dig the sign up and-move it 4.5 feet. 2. Is the plight of the owner due to unique circumstances. They would argue strongly that this is unique circumstances because they relied on this property pin survey. 3. If the variance were granted would it alter the essential character of the locality. No, as this is just a commercial area and if the 4 foot setback variance were granted it would not alter the essential character of the locality. 4. Would the particular physical surrounding, shape or typographical condition of the specific property involved result in a particular hardship upon the owner, as • distinguished from a mere inconvenience, if the strict letter of the regulations were carried out. WSEAT RIDGB BOARD OF ADNSTMENT • Miavuas.5 OF MEETING: April 25, 1996 Page 10 It would because the erroneous pin placement is a physical surrounding and a topographical condition. 5. Would the conditions upon which the petition for a variation is based be applicable, generally, to the other property within the same zoning classification. No, because this is an incorrectly placed property pin and other properties generally will not have this condition. 6. Is the purpose of the variation based exclusively upon a desire to make money out of the property. Yes, because this is a commercial enterprise. 7. Has the alleged difficulty or hardship been created by any person presently having an interest in the property. They would urge very strongly that in no way was this hardship imposed by them. They did everything they possibly could to comply. • 8. Would the granting of the variation be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located. Absolutely not. The setback is far enough back to not effect any adjoining signs or property. 9. Would the proposed variation impair the adequate supply of light and air to adjacent property or substantially increase the congestion in the public streets or increase the danger of fire or endanger the public safety or substantially diminish or impair property values within the neighborhood. No, this variance will not. Mr. Melcher added there are a couple of reasons why the sign cannot be cut off 4 1/2 feet and why it would be a severe hardship. This sign and virtually all the signs in the City are standardized sizes. In the advertising industry billboards are classified according to their size and are designed for those sizes. If a few feet would be cut off, it is hard to sell the sign because advertisers won't be able to use the copy they've prepared because it is not uniform. Mr. Melcher said he cannot vouch for the engineering certification of this sign being cut off 4 feet • as he does not know how it would effect the stress and load. WHEAT RIDGE SOARD OF ADJIISTMENT • MIi~uiaS OF MEETING: April 25, 1996 Page it Board Member ECHELMEYER quoted from the staff report saying the building inspector said the concrete was crumbling and then indicated he wanted to have it checked to its suitability for this type of construction; and wanted to know if that has been done and passed the necessary tests. Mr. Melcher said this sign has passed all questions of Mr. Eckert and he has stated he is completely satisfied with the structural integrity and stability of the sign and the concrete footing. They have obtained letters and affidavits from the sign manufacturer and contractor and the engineer who did stress and load tests and they all said this sign satisfies all uniform building code and industry standards. They did not conduct further tests because they did not feel it was necessary and after they showed Mr. Eckert the engineering certification he did not think it was necessary either. The reason for that crumbling is that it was slightly cold the day they installed the sign and concrete at the top will cool faster than the footing. The top will crumble or appear soft, however, the entire footing was curing and was completely sound when load was placed on it. No further questions were asked at this time. • Craig Chaffee, 10601 W. 2-70 Frontage Road, was sworn in. Mr. Chaffee is the Vice President of manufacturing for Volant Ski Company which is the neighbor directly west of the property in question. They moved to Wheat Ridge just a year ago and were located in Boulder prior to that. They spent a good year looking for a new location and one of the primary concerns was to be on the I-70 corridor. They are in a highly competitive mature market and are a very young struggling company trying to sell a winter sport. They moved there again to look for frontage and is very important for them to have visibility for potential customers, retailers and distributors. It has been very beneficial to be at their location because they have a lot more accessibility to people. He has opened the door after hours several times for people who seen their location and wanted to get brochures. They are there to attract people to their business and to get Volant's name out into the market place. Mr. Chaffee continued saying they are all competing for that eye-space for people's attention. Right now if you go along I-70, that sign is the only thing you see and it towers above everything else. Mr. Melcher objected and stated they should confine the comments to the setback and not the height. • Mr. Chaffee said his concern and objection to the variance for the setback is because the sign is very big and the WSEAT RIDGE BOARD OF ADJ[TSTMENT • Ml.~ui+sS OF MSBTING: April 25, 1996 Page 12 closer to the street it gets, the more it blocks the corner of their building and the more it will interfere with visibility to their facility. Board Member ABBOTT asked if the owner of the billboard would be willing to cut off 5' shorter from the south would that help, and Mr. Chaffee said the more the sign detracts from them the less people notice their business. Board Member ECHELMEYER wanted to know if they were leasing the property they occupy now, and Mr. Chaffee replied yes. Board Member ECHELMEYER asked if they had a survey that indicates the southeastern corner of that property, and Mr. Chaffee answered he does not know. He said they did a major renovation of the property a year ago and had a lot of dealings with the City. He knows there was a lot of work done but cannot say if there was a survey done. Board Member HOWARD asked if he was familiar with the variance that his company requested in regards to the free- standing sign, and Mr. Chaffee answered he did not know they • got one because Mr. Kashawa handled that personally. Board Member HOWARD asked then if he was aware why they had to get a variance, and Mr. Chaffee replied he believes it was a setback variance, but he is not aware why. Board Member HOWARD answered the reason for the request was because of a pre-determined location of .that ditch which precluded a signage in that particular area, and they had to go back closer to the building. Mr. Chaffee said they had an issue with that because it is actually in their parking lot also. They have a very limited space and have to lease spaces next. door for their parking. Board Member HOWARD added the variance was strictly for setback and not height. No further questions were asked of Mr. Chaffee. Dennis Polk, Attorney, 1667 Cole Boulevard, Golden, CO, was sworn in. Mr. Polk said he has certain arguments with the applicant and finds this very interesting. The 'slight of hand' for bodies who come in and have an applicant who is a lessee who is trying to find a hardship based upon their owner's conduct. Mr. Polk feels they are the same person in so far as this board is concerned. He stated the map attached to the lease shows the fence line and the fence line should place some notice as to where the true boundaries are. He thinks it is preposterous to try to do this slight of hand as it is unfair and deceptive. wHSAT RIDGS HOARD OF ADJUSTMENT • MINUTES OF MEETING: April 25, 1996 Page 13 Mr. Polk said in dealing with this T-70 corridor for 12-14 years, he feels this is perhaps one of the most well documented surveyed locations in the Denver metro area. The State highway has surveyed that area and you can go to their office and get reams of surveys. This area is completely and thoroughly surveyed and it is not difficult to make reasonable inquiry notice. Mr. Melcher wanted to know who Mr. Polk represented and he stated he is a citizen of this area and has a right to speak, however he is aggearing on behalf of Mr. Medved and Mr. Kashiwa. Mr. Polk said look at the timing, the made this application 1-2 days perhaps before the ordinance changed and then run out and construct this thing in a 24 hour period. He said if you look at it from the time of their application to the day they started construction. He added if you are going to spend that kind of money, is it reasonable to perceive that you should be doing something more than this `tape-measure survey' when you have been told the fence line may not be the property line. I submit to you that they cannot, as a result of this, satisfy the legal • requirements that are necessary for this body in terms or rather or not this is a self-induced hardship. Therefore, on that basis alone the Board should deny this request for a variance. Mr. Polk said he feels they built it and then talked to the City, and that is exactly what the Board is being asked to ratify. He said this is kind of a neat slight of hand and he wishes he would have thought of it, and next time he is before the City, he will try it. He feels this is deceptive and does not feel the City should adopt that kind of philosophy. There are honest legitimate mistakes that happen and to please do examine this carefully and conclude that there is something here that does not satisfy the City ordinance. Rebuttal was made by Mr. Melcher saying he will respond to Mr. Polk first as Mr. Medved is the Cadillac-Chevy and GEO dealer.... Mr. Polk specifically objected to Mr. Melcher objection stating they are not here to try Mr. Medved's signage plan. He objected to the imputation that occurred regarding Mr. Medved and don't think it is proper or relevant. Mr. Melcher stated he did not think Mr. Polk heard the rest of his point being he represents Medved Chevrolet which has three signs and has an interest as a property owner who • wants to get benefit from his property to make these WSEAT RIDGE BOARD OF ADJIISTMENT • M11YUlaS OF MEETING: April 25, 1996 Page 14 arguments. He also represents Mr. Kashiwa who owns the Volant factory. The Volant factory is here simply as another business trying to get their benefit to our detriment. Mr. Melcher continued saying he is trying to address these arguments however, he sees a lot of smoke and is trying to find where the fire is. Mr. Melcher commented that Mr. Polk said something about 'slight of hand' and that he is the owner and the lessee. Mr. Melcher said they are not the owner, the owner is Daniel Dearing who leased the property for the billboard to his client, C and E Communications. Daniel Dearing gave Mr. Melcher's law firm power of attorney to say that he supports the setback variance application. The property owner did make a mistake in the lease and they would like this mistake to be treated as such. They did not intentionally do this, and Mr. Melcher said he thinks the property owner honestly believed that the pin was correct. Mr. Melcher quoted Mr. Gidley saying it is well documented that in west Wheat Ridge there aren't surveys. Mr. Polk nor he are surveyors and they do not have expert surveyor opinion, just hearsay. He does have a survey that he feels • they should rely on. Mr. Melcher continued saying that Mr. Polk said they were building first then asking later; he would ask a simple question: Why would they do that, why would they build a billboard 45.73 feet away and sneak 4.6 feet past you. He said that is ridiculous to risk $10,000 or more to have to tear this thing out and move it 4 feet away from the property line. If they had known, the contractor had known, if anyone had known they would not have relied on the survey. They are not trying to sneak anything by the Board, they regret the situation. To correct Mr. Chaffee, Mr. Melcher wanted to enter into the record the case file for Mr. Kashiwa's height and setback variance last year which is Case No. WA-95-14. The setback was 21 feet and height was a friendly amendment. Mr. Melcher feels that Mr. Kashiwa's sign does not qualify under the code because this is not a retail or service business; it is a manufacturing plant and it states that on the application. Mr. Polk respectfully objected because (inaudible) and secondly, if he is asking to re-hear Mr. Kashiwa's case, that is not the proper consideration of this Board. • Mr. Melcher said with all due respect, the reason he brought this up was one of the rules in the Colorado body of law; WHEAT RIDGE BOARD OF ADNSTMENT • MINUTES OF MEETING: April 25, 1996 Page 15 the Colorado Supreme Court, is that everyone in the zoning code has to be treated fairly. Chairman WALKER said at this point the Volant material is part of last year's minutes and since all those actions have taken place he does not feel it is germane at this moment. Mr. Melcher said again with all due respect, he would like to put on record and briefly state that the Supreme Court in 1957 with the unanimous decision said that 'to favor one applicant over another is discriminatory, and suggests the exercise as unwarranted and uncontrolled discretion on part of the licensing authority°. It is a situation where you treat one applicant in a certain way, you must treat the same situated applicant in the same way. They do have a similar situation here; they have two properties side by side, two signs which are intended to advertise, and they are trying to get fair treatment. They are not going to argue with Mr. Kashiwa's setback because they think it was reasonable for the Board to acknowledge and grant that variance, they agree with that and are simply asking for the same treatment. Their request is more equitable because the unintentionally are here before you because they relied on a • misplaced property pin. Chairman WALKER stated at this point they are only presenting material, the motion has not been made yet to grant or not grant this variance. Mr. Melcher said he just wanted it on record why they are doing this and thanked the Board for their patience. Mr. Gidley spoke on a couple of issues that were raised by the applicant's attorney. There was a mixing of references to billboards and signs by the applicant. Representations that a variety of free-standing signs are in actuality billboards. There is a definite difference between a billboard by definition and afree-standing sign, and the regulations that apply to free-standing signs verses billboards. The billboard provisions has its own section and standards which are different than the sign code for free-standing signs. Regarding our presentation relative to the height issue, we will pursue that matter later in more detail. Mr. Melcher said he would refer to Wheat Ridge City Code, they do agree with Mr. Gidley that there are different sections for free-standing signs and billboards. He read the code and said obviously Medved Chevrolet and Volant have signs over 25 feet, and the Volant sign does not qualify . because they are not retail. Chairman WALKER said the code mentioned the word 'service' and believes Volant 'builds' a WHEAT RIDGE BOARD OF ADJIISTMENT • Miavui.c5 OF MEETING: April 25, 1996 Page 16 material that is a service to us to use their equipment. Mr. Melcher defined service as 'a business that services products brought in'. Tie noted that two of Medved's signs were permitted as billboards and the volant as a free- standing sign. Board Member ECHELMEYER stated he finds this incomprehensible that Mr. Melcher has gone through the trouble with every 'i' dotted and 't' crossed in this lease, probably the most thorough lease he has ever read. Covered is the construction of the sign and the sign company to permitted (inaudible) sign service, but failed to spend $100 to hire a land surveyor to come in and establish a valid bench mark on this piece of property. Fifty feet is what you put your name to and the Board will abide by the 50' that the City demands for this sign, and he believes this just does not tie together. Mr. Gidley suggested that comments such as this be, once the motion is made and after it is voted upon, and any comments relative to supporting the motion be appropriate after that also, and ask to be sure and close the public hearing. • Mr. Melcher responded to the board members by apologizing for this, saying they did do their best to comply and there is simply no reason why they would do this on purpose, they did not gain by it and all they did was go to a lot of trouble and the company had to pay him a fair amount of money to come here and talk to the Board and he is sure they wish they didn't have to waste money on him. Mr. Melcher wishes he did not have to be here, he wishes they would have measured it correctly and if they could do it again, he is sure they would do it correctly the second time. Chairman WALKER announced the public hearing for this case is closed, Motion was made by Board Member ABBOTT, that Case No. WA-96- 11, an application by C & E Communications, be DENIED for the following reasons: With the general acknowledgement of the following: The survey corner pin which was used to measure the 50' setback by the sign contractor was in error as to location and the sign would be located correctly if (not for) following the erroneous pin. WSEAT RIAGE BOARD OF ADJQSTMENT • MiaruacS OF MEETING: April 25, 1996 Page 17 Both staff and the Board believes incorrect pin was not with malice the Wheat Ridge Sign Code. No correct pin was found. that the use of the or intent to circumvent A building permit was applied for and issued. The variance is for less than 10%. FOR THE FOLLOWING REASONS: • 1. Objections were registered by two adjacent businesses to the setback variance requested and is understood by the Board that these businesses have in the past been granted sign code variances. 2. The hardship is self imposed and importantly, when considering the hundreds of thousands of dollars in construction costs and lease payments, it seems substantially illogical and imprudent from a business standpoint that a formal survey was not conducted. 3. Although of considerable expense and potential Loss of lease income, an alternative would be available by removing 4.62 feet from the south edge of the billboard. Motion was seconded by Board Member ECHELMEYER. Motion for denial was 4-2, with Board Members HOVLAND and SANG voting no. Glen Gidley stated this is a passing motion because it is a motion to deny, it would require a vote of 5 to be in favor of the applicant. Since it was a motion not in favor of the applicant, the motion passes. Mr. Melcher asked Chairman WALKER for a re-vote and direct the attention to the Volant variance which on self-imposed hardship, the board decided last year and went with staff's recommendation that they had intentionally built the sign with illegal setback and yet this wasn't a self-imposed hardship and ask for a reconsideration and a re-vote now as the motion apparently has not passed as drafted. Chairman WALKER stated the motion has passed as drafted. Mr. Melcher commented what it means under the code is that if a motion cannot be passed 5-1, then a default position for the application is automatically denied. Gerald Dahl, attorney for the City of Wheat Ridge, disagreed and said Section 26-6(D) sets forth the minimum requirements • for 4 votes to approve any variance which is what is being requested, specifically sets forth if there are 6 members wSEAT RIDGE BOARD OF ADJUSTMENT • MINUTES OF MEETING: April 25, 1996 Page 18 present, there must be 5 affirmative votes to approve the variance. There was not a motion to approve a variance, the motion voted on was for denial, and that motion passed by more than majority of the members present. There was not a motion to approve the variance so the 5 out of 6 rule is simply unapplicable here. He disagrees with Mr. Melcher°s artful interpretation that if you vote 4-2 to deny, then that must mean it was voted 5-1 to approve. That is not correct and he doesn't support that position, the commission has taken the vote it is going to take. Mr. Melcher can certainly ask for a reconsideration of the vote, but the Board certainly does not have to accommodate him in that regard, it is totally up to the Board. Chairman WALKER stated the vote stands as placed and the variance is denied. Chairman WALKER called for a 10 minute recess. The meeting reconvened at 9:40 p.m. C. Case No_ wA-96-12: An application by C and E Communications for approval of a 22' height variance to the 32' billboard • height requirement for property zoned Planned Industrial Development and located at 10501 N. I-70 Frontage Road. The attorney for the applicant, Chris Melcher, requested to have this case postponed until the next board meeting. Mr. Melcher bel-ieves under the by-laws they are entitled to one postponement and would like to exercise that right. Gerald Dahl, spoke saying on behalf of the City, he would like to respond to that request. Mr. Dahl said that is true, the by-laws do say that, there is a parallel code section 26-6(F)(5)(a) says "postponement after a public hearing that has been legally noticed, only one postponement by the applicant may be allowed by the board... Upon the second request for postponement, the board... shall have the authority to dismiss the application". As a matter of the City code, it is less an open question rather if the applicant has the right to bring us all here, sit us all down, and say "I changed my mind, I'd like to postpone it". On behalf of the City, we intend to oppose this application very vigorously. If it will serve us all to meet at another day and not have to worry about some argument from the applicant that they were denied their right to a postponement, he wants to be as persuasive as he can whenever this matter is taken up, so the City has no objection to the matter being postponed until the May • meeting and added under the rules, it is required to be the last matter on the agenda. Mr. Dahl stated so all of us NTSEAT RIDGE BOARD OF ADJ[JSTMENT • Mia~uiES OF MEETING: April 25, 1996 Page 19 gentlemen will be in front of you rather late on that evening if you take a motion to grant the postponement. Mr. Melcher said he would like to note for the record that under that rule, Article IV(6), unless impossible, the applicant must be at the scheduled hearing and ask for a postponement in person. They are here because the rule requires us to be here and ask for that postponement. They have a lot of reasons why, but since the City does not object, it appears they will be here next month and be better prepared. Board Member ECHELMEYER wanted to hear some of the applicant's reasons for postponement. Mr. Melcher said the primary reason is that they received the staff report last Friday and were very surprised by the approach and statements in the staff report. They feel the staff report treated the applicants, C & E Communications in a discriminatory way, has acted arbitrarily in a legal sense, and has treated them unfairly in relation to other applicants in the-same position. As soon as they had the staff report they filed an open records act request on that • same Friday. He was there at the very first available opportunity going through the City's records trying to learn as much as he could about how the City treats billboards and they have just not been able to go through all of the materials there are. There are a number of billboards around the City that are well over height and they would like to go around the City and see if there are others that are the same or higher than theirs and establish that a variance has been granted for these, and if they are to be treated fairly, should be given a variance to the height. For the record, they believe they were not treated fairly. Mr. Dahl interjected saying if Mr. Melcher is going to ask for a postponement to argue his case for a height variance, then he ought to save that argument until they have that postponed hearing. If he wants to tell why he is unable to be prepared that is fine, but to go further than that is engaging in the hearing that he sets. Mr. Melcher is not ready to conduct here tonight, so he's going to have to make a choice. Mr. Melcher said he objects because that is mis- characterizing what he said as he is honestly responding to a question from a board member, and honestly giving their reasons. He has to object because counsel is mischaracterizing his statements, he simply said he is trying to gather evidence and records which will show the theory he has. WHEAT RIDGE BOARD OF ADJIISTMENT • Miav~iaS OF MEETING: April 25, 1996 page 20 Board Member SANG asked Mr. Gidley what if dismiss the case, and Mr. Gidley answered Board has no authority to dismiss the case second request after the Board approves t On a second request then the Board may dis this particular point they have two option case until May 23rd as requested, or Conti hearing this evening. they opt to at this point the only upon a he first extension. miss the case. At s; continue the nue on with the Motion was made by Board Member ABBOTT to continue this case, given the considerable expense involved with this particular billboard issue, he feels it is only fair to give both sides a chance to think about the issue in more depth and hear it next month. Motion was seconded by Board Member HOVLAND and carried 6-0. • 4. CLOSE THE PUBLIC HEARING 5. OLD BUSINESS 6. NEW BUSINESS A. Approval of Minutes: March 28, 1996 Motion was made by Board Member HOWARD, and seconded by Board Member ECHELMEYER, that the minutes of March 28, 1996, be approved. Motion carried. B. Discussion on the billboard ordinance. Mr. Gidley spoke saying there are now 17 allowed billboards in the B-2 District. The rest of the billboards in the B-1 District are illegal and there will be Code Enforcement action starting on July 1st. There can be no more billboards put up in the B-2 District, but they can be relocated from one location in the B-2 District to another location in the B-2 District. C. Discussion on determinations and motion. 7. ADJvuicavrlENT Motion was made by Board Member HOWARD, seconded by Board Member HOVLAND that the meeting be adjourned. Meeting was adjourned at 10:11 p.m. • ~~~~ ~ ~h~~~~~ Mary o~hapla, Secretary B OAR D O F A D J U S T M E N T, ~. PUBLIC FORUM ROSTER April 25, 1996 - THIS IS THE TIME FOR ANYONE TO SPEAK ON ANY SUBJECT NOT APPEARING UNDER ITEM 3 OF THE PUBLIC HEARING SECTION OF THE AGENDA. Name and Address Please Print .. - ~ _, _