OSHTEMO CHARTER TOWNSHIP
ZONING BOARD OF APPEALS
May 5, 2005
Revised Pursuant to Zoning Board of Appeals - May 25,2005
WEST CENTURY CENTER - INTERPRETATION OF NON-CONFORMING USE STATUS - 5015-5063 WEST MAIN STREET - (PARCEL NO. 3905-13-430-041)
WEST CENTURY CENTER - DEVIATION - WALL SIGNS - 5015-5063 WEST MAIN STREET - (PARCEL NO. 3905-13-430-041)
HALLI'S AUTO SALES, LLC - DISPLAY IN SETBACK VARIANCE - 8688 WEST MAIN STREET - (PARCEL NO. 3905-16-180-059)
A special meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Tuesday, May 5, 2005, commencing at approximately 3:00 p.m. at the Oshtemo Charter Township Hall.
MEMBERS PRESENT: Millard Loy, Chairman
MEMBERS ABSENT: None
Also present were Jodi Stefforia, Planning Director; Mary Lynn Bugge, Township Planner; James W. Porter, Township Attorney; and approximately five other interested persons.
CALL TO ORDER
The Chairman called the meeting to order at 3:00 p.m. and pointed out that the items on the Agenda were held over from their last meeting due to the lack of a full Board.
WEST CENTURY CENTER - INTERPRETATION OF NONCONFORMING USE STATUS - 5015-5063 WEST MAIN STREET - (PARCEL NO. 3905-13-430-041)
The Chairman stated the first item on the Agenda was interpretation of non-conforming use status for West Century Center. The Chairman explained that the applicant was requesting an interpretation of non-conforming use provisions of Section 62.151 as to whether the existing Lexan panels on the building constitute a lawful non-conforming sign. If it is determined to be a lawful non-conforming sign, would replacement of the panels constitute an alteration triggering the non-conforming use provisions of the Township Ordinance? He said the subject property is located at 5014-5063 West Main Street, Parcel No. 3905-13-430-041. The Chairman asked to hear from the Planning Department. Ms. Bugge submitted her report to the Zoning Board of Appeals dated April 26 and May 5, 2005, and the same is incorporated herein by reference.
Ms. Bugge told the Board that the applicant had filed two requests, the first, a request for interpretation, and the second, if necessary, a sign deviation request. Ms. Bugge said the West Century Center is a 70,000 square foot shopping center located at West Main Street and Drake Road. She said the Center contains one multi-tenant building and a freestanding restaurant. She explained, when the Center was approved in 1989, commercial wall signs were permitted to have a total sign area not to exceed to two square feet for each foot in length or height, whichever is greater, of the wall to which it was attached. She said, with the adoption of the new Sign Ordinance in 2000, commercial tenants within a multi-tenant development were permitted one square foot of wall signage for each lineal foot of tenant space width. Signs established in conformance with the previous Ordinance prior to adoption of the new criteria were considered lawfully non-conforming and would be permitted to remain subject to Section 62. She said signs not in conformance with regulations existing at the time of their establishment are considered illegal.
Ms. Bugge then provided the following analysis and interpretation of the Zoning Ordinance, as set forth in her report, as it applied to the Lexan panels band area on the subject building:
! To be considered lawfully non-conforming, a sign must be in conformance with the Ordinance in effect at the time the sign was established.
! When the shopping center was approved on March 27, 1989, a condition of approval was "That all signage be located pursuant to the setback, size and height requirements of the ordinance."
! By definition, sign area "shall be measured within a single, continuous perimeter composed of any straight line geometric figure which encloses the extreme of any frame or other material or color forming an integral part of the display, message, drawing or similar device, or used to differentiate same from the background against which it is placed . . ."
West Century Center has approximately 728 feet of tenant space width along the front facade of the building and therefore, the maximum sign area allowed under the previous Ordinance text, two (2) square feet for each foot in length of the wall to which it is attached, would have been 1,456 square feet for all tenants combined.
The Lexan band has a total combined length of 617 feet and, per the applicant's information, its height ranges from 3.25 feet to 4.25 feet. Therefore, the total sign area of the supposedly "valid non-conforming" sign is somewhere between a minimum of 2,005 square feet and a maximum of 2,622 square feet, thus exceeding the then permitted sign area of 1,456 square feet by some amount between 549 and 1,166 square feet.
Therefore, it does not appear the Lexan band can be considered a lawfully non-conforming sign since the sign area is not in conformance with the Ordinance in effect when it was established.
! Staff contends that the band was intended as a background material upon which tenant signs would be placed, each one subject to conformance with the then existing Ordinance. This, in fact, is how the signs have been treated; tenant signs were reviewed by the Township on an individual basis for conformance with the Ordinance, and sign permits were issued. Some were reviewed under the previous text and others under the current Ordinance. However, some tenant sign changes were made without Township review. Numerous sign changes have occurred over time due to changes in tenants and the reconfiguration of the number and size of tenant spaces. Some of the individual tenant wall signs may be lawfully non-conforming while others are not; however, that is not the subject of this interpretation.
! Staff does not dispute that Lexan band has the physical characteristics of a sign cabinet, only that it not a lawfully non-conforming sign under the Ordinance as it was never in conformance with the Ordinance, and furthermore, it was never treated as a single sign but rather as a background material upon which to place tenant space signs that were individually regulated under the Ordinance.
! Recognition of the band as a lawfully non-conforming sign implies that sign copy could encompass the entire sign area, in this case somewhere between a minimum of 2,005 square feet and a maximum of 2,622 square feet, and thereby defeat the intent of the Ordinance to regulate the physical dimensions of signs.
! The Township does allow replacement of sign faces in lawfully non-conforming signs. However, typically this involves a sign with a ridged frame and a predetermined sign area that cannot be expanded, rather than an expansive sign area, as in the subject case.
! This interpretation would also apply to other multi-tenant buildings with similar type signs, such as Elks Place.
At the conclusion of Ms. Bugge's report, the Chairman asked if there were any questions. Hearing none, he asked to hear from the applicant. Mr. Mark Chilcott introduced himself and told the Board he represented the West Century Center. He also introduced Steve VanderSloot and their attorney, Dave Smith. Mr. Chilcott said he was hoping to reach a solution to a challenging business situation. He said he thought there was a serious need to renovate the signs, but it was a challenge to work with the tenants in a positive fashion. He said requiring them to reduce their signage, in order to install new Lexan panels, was causing serious resistence to the update of the facility. He said that he wanted to work with the Township, and hopefully, develop a win-win situation which would not only further the Township's goals, but the goals of West Century Center, as well. He said there was a real need to repair and replace the Lexan panels due to fading and overall deterioration. He said there was a need to update the entire sign area and hoped to be able to achieve that with the assistance of the Township.
Ms. Borgfjord asked if it was crucial to replace the panels in 12-foot sections. Mr. Chilcott said that they had chosen 12-foot lengths for ease of handling and to avoid breakage. He said the Lexan could be cut in larger or smaller sections, but they found the 12-foot sections to be the most practical to work with. He said, once the Lexan panels were replaced, the vinyl lettering was attached to complete the sign. He noted that, if the panels were in good condition, they could be cleaned and replaced, but as they got older and were faded and covered with glue, they became unsightly and had to be replaced.
Ms. Borgfjord asked if it mattered which direction the signs were facing in relationship to the sun. Mr. Chilcott said that those panels receiving more sunlight did tend to fade a little more quickly, but that overall, it was not a major factor.
Mr. McClung said he saw two different things while looking at this issue. He saw the panels, which appeared to him to be an architectural element, and then the vinyl application, which was actually the sign. He said he saw both of those as being distinct.
Mr. Chilcott asked their attorney, David Smith, to address the Zoning Board of Appeals. Mr. David Smith said that he had told his client that this was a unique situation. He told the Board that he thought this was a non-conforming use and should be treated as such. He explained that West Century Center was caught between a rock and a hard place due to the Ordinance. He said the Ordinance required maintenance, and yet at the same time, required that the signs, if they were maintained, be downsized. He said he thought it was surprising to see the Planning Department to take the position that these signs were illegal. He said he thought if the signs had been illegal, that the Township would have taken a position on this long ago. He said the signage had been permitted, and therefore, it was a lawful, non-conforming use which was required to be maintained, and should not be subject to the reduction in sign area.
Ms. Bugge reminded the Zoning Board of Appeals that the Township had never considered the Lexan panels as one sign. She said the Township had always considered the Lexan panels part of the architectural element of the building, just as Mr. McClung had indicated, and that the applique was actually the sign area, to which the size limitations had been applied.
The Chairman explained that he had always leaned toward the position that the Lexan area, even if it was lighted, was part of the building and not part of the sign area. Mr. McClung said it was no different than putting lettering on a brick wall. He said you would not call the wall a sign; you would apply the sign limitation to the actual lettering placed upon the wall.
Mr. Bushouse said the Board had interpreted the Walgreen's neon lighting inside their nine-panels window area to include only the lettering, not the window panels. He said he did not see that any differently from the Lexan panels. He said he did not think a Lexan panels was any different from the rest of the building other than it was not blue or green. He said his concern was the amount of script that was used for signage purposes.
The Chairman said the issue was to decide whether the Lexan panels are part of the building. Mr. Smith said he thought their request was to determine whether the Lexan was a valid, non-conforming use that required maintenance under Section 76.400. Ms. Bugge said that was what the Planning Department was attempting to address. She explained, if the Board found that the Lexan face was part of the building architecture, it would therefore not be a legal non-conforming sign.
Attorney Porter indicated that the Zoning Board of Appeals could address the issue in a form that it chose so long as it answered the question raised by the applicant. He said they could also break the issue down into more than one question if they chose.
Ms. Borgfjord pointed out that the developers of the building which houses Spring Arbor University developed lighted panels, two to three feet in width. However, she said that applicant had taken into account the total signage area available to it at the time. She said that West Century Center did not appear to do that at the time it developed, and therefore, she felt that the Lexan panels could not be considered part of the sign because it would not have been in conformance with the Ordinance.
Mr. Turcott said he agreed with the reasoning he heard from the Board members, but more importantly, he said that Mike Seelye had answered that question when the Spring Arbor building was developed. He said Mr. Seelye specifically indicated the Lexan panels were part of the building, it was not part of the sign, and it could not be considered part of the sign now.
The Chairman said, based on what he heard, he did not believe that it could be considered a lawful, non-conforming use. The Chairman said he would entertain a motion. Mr. Turcott made a motion to interpret the Lexan panels on the West Century Center as part of the building itself, i.e., an architectural component, and therefore, not a lawful, non-conforming sign. The motion was seconded by Mr. McClung. The Chairman called for further discussion, and hearing none, called for a vote on the motion. The motion passed unanimously.
WEST CENTURY CENTER - WALL SIGNS DEVIATION - 5015-5063 WEST MAIN STREET - (PARCEL NO. 3905-13-430-041)
The Chairman said that the next item up for consideration was the request for a deviation from the provisions of Section 76.170B to allow replacement of individual tenant wall signs where the signs would exceed the area permitted. The subject property was located at 5015-5063 West Main Street, Parcel No. 3905-13-430-041. The Chairman asked to hear from the Planning Department. Ms. Bugge presented her report dated April 26 and May 5, 2005, and the same is incorporated herein by reference.
Ms. Bugge said that applicant was requesting a deviation which would allow the replacement of the Lexan panels, upon which the tenant signs are placed, and permit the installation of new signs for tenants using an overall formula of 1.5 square feet of wall sign area per lineal foot of tenant space width when only one square foot is permitted. Ms. Bugge said, as previously indicated, that with the adoption of the new Sign Ordinance in 2000, commercial tenants were restricted to one square foot of wall sign area for each lineal foot of tenant space width. She noted, however, that existing wall signs in conformance with the Ordinance prior to the adoption of the 2000 Ordinance were considered lawfully non-conforming and permitted to remain, subject to Section 62 of the Ordinance. She pointed out that there have been numerous changes to the signs over time, some in compliance and some not in compliance with the Zoning Ordinance. She said, given the tenants' reluctance to replace their signs, if they are to be reduced by half, the applicant was requesting a sign deviation to allow the replacement of the tenant signs based on the 1.5 square foot formula. Ms. Bugge then proceeded to take the Board through the standards for approval of a sign deviation. Ms. Bugge suggested it might be appropriate to allow a deviation for sign area of 1.5 square feet per linear foot of tenant space width for businesses located in their current tenant space prior to October 26, 2000, the date of the adoption of the current sign criteria. This would bring them closer to compliance with the existing requirements. All other tenants and all future signs would need to be in compliance. Ms. Bugge noted at the end of her report that Godfather's Pizza and Blockbuster each had one sign in excess of the number currently allowed and recommended that any deviation should include a requirement that the number of signs for those two businesses be brought into compliance.
The Chairman asked if there were any questions of Ms. Bugge. Hearing none, he asked to hear from the applicant. Mr. Steve VanderSloot spoke on behalf of West Century Center. Mr. VanderSloot explained to the Board that the fascia panels needed to be replaced. He said he thought this was somewhat unique in that ten of the seventeen units had less than 20 feet of frontage, a couple tenants had 20 to 30 feet of frontage, and only three tenants had greater than 30 feet of frontage. He said, given the limited amount of frontage, the allotted sign area was quite small. He said he thought that these facilities certainly were different than the small businesses as set forth by the Planning Department. He pointed out the front lineal footage of Hobby Lobby, Value City Furniture, MC Sporting Goods and Dollar Tree ranged from 80 to 180 lineal feet.
Mr. VanderSloot also noted that the set back from the road right-of-way and a reduction in the wall signage would create a real hardship on the local businesses. He said the pole sign, while demanded by many of the tenants, really did not serve to enhance visibility, and therefore, a deviation would be appropriate. Mr. VanderSloot said that the Elks Place was not a fair comparison due to its close proximity to the road right-of-way versus the businesses in the West Century Center. Mr. VanderSloot said that the Center needed the assistance of the Township in upgrading its sign. He explained, given the number of preexisting signs, that it would be impossible to reach an agreement with the tenants to update and modernize the sign facade without the Township granting some deviation to the tenants with pre-existing signs. He asked for the Board's consideration in their attempt to update and modernize the look of the West Century Center.
Ms. Borgfjord asked if the businesses could put a sign on the back of their buildings. Ms. Bugge indicated that they could.
Mr. Smith, attorney for the applicant, told the Board that they met the requirements for a sign deviation. He said he did not believe there would be any detrimental effect to property owners in the vicinity. Also, he believed that the proposed location was unique due to its frontage on a very busy intersection. Mr. Smith also noted that their need to replace the signs after a change in the Ordinance was unique and hoped that the Board would take that into account.
The Chairman, noting there was no public left to comment on the item, called for Board deliberations. The Chairman began the discussion by drawing the Board's attention to the sign summary for the West Century Center provided by the Planning Department. He said that he was concerned that several of the tenants of the facility were in violation of the Township's Ordinance. He said, if his interpretation of the memo was correct, at least half of the signs currently at the Center were illegal. He said, given that, he was reluctant to grant the relief requested.
Mr. Bushouse said he had to agree with the Chairman. He said he saw no reason to grant a variance and thought that the pole sign was sufficient to direct people to the Center, and that once in the parking area, the wall signs would be sufficient to identify the businesses to potential customers.
Ms. Bugge pointed out that, if the applicant's request was granted, it would have the effect of bringing many of the signs into a greater degree of compliance than they were currently. She said she thought it would be beneficial to the Center in its attempt to get the tenants to replace their old signs with smaller signs. Otherwise, the tenants were likely to resist making any changes, leaving the larger signs in place.
The Chairman asked what they should do with regard to Blockbusters and Godfather's Pizza. Ms. Bugge said they would have to remove the signs currently disallowed and bring their signage into compliance if a deviation was not granted.
The Chairman asked how many signs had existed prior to the Ordinance change in 2000. Ms. Bugge said she thought the signs for Godfather's Pizza, Blockbuster, Blimpie's, American General, Costcutters, and Check and Go had existed prior to the 2000 Ordinance.
Mr. Turcott said, given the number of businesses which would actually be reducing their signage, he did not believe it was unreasonable to consider the Staff's recommendations. He said he thought this would bring older businesses closer to compliance, with all new tenants being in compliance with the Sign Ordinance of the Township.
Mr. Bushouse said he wondered what message would be sent to Payless, which was currently in compliance, to allow others to install larger signs not in compliance with the existing Ordinance. He said it appeared to him to penalize Payless and reward those not currently in compliance. Ms. Bugge said she did not believe it was as much a penalty to Payless as it was an incentive to those currently operating under the old Ordinance to come more into compliance with the current Ordinance. She said that was not likely to happen without the granting of the proposed deviation. Mr. Bushouse again noted that he thought all of the signage should be brought into compliance.
Mr. McClung said he understood Mr. Bushouse's feelings, but he agreed with Mr. Turcott that it was reasonable to allow a deviation to bring the signs which predate the current Ordinance more into compliance and that when the signs were later replaced or new tenants occupied the buildings, the signs would be brought totally into compliance.
Mr. Chilcott said that perhaps they should work with Staff and come back with a new recommendation. Ms. Bugge said she did not think that was necessary, since all the issues had been fully discussed by the Board. The Chairman said he thought it was appropriate that the Board complete its deliberations and make a determination.
The Chairman asked for clarification regarding those new businesses occupying the site. Ms. Bugge said all businesses established prior to the 2000 Ordinance would be allowed the 1.5 square feet, but that all businesses established subsequent to that time would have to comply with the existing Zoning Ordinance. In addition, she said any extra signs established in violation of the Zoning Ordinance would have to be removed.
The Chairman asked if they would be setting a precedent in this case. Ms. Bugge said she did not believe that they would, since the only businesses which would be granted a deviation would be those which were pre-existing. She said that all new businesses being established would have to conform with the Ordinance.
Ms. Borgfjord said, while she would like to see total uniformity, she thought that the requested deviation would bring the pre-existing businesses into greater conformity and that she could live with that accommodation until such time as new signs were erected. The Chairman said he could live with the proposal, even though he was unhappy with several of the tenants for their illegal signage.
After further discussion, Ms. Borgfjord made a motion to allow the tenants of the West Century Center, which occupied their current space in the Center prior to the adoption of the new Sign Ordinance in 2000, to replace their existing signs, using an overall formula of 1.5 square feet of wall sign per lineal foot of tenant space in replacing their existing signs, and that any future signs would have to comply with the then existing Sign Ordinance. Her motion was further subject to the requirement that all additional illegal signs within the West Century Center be removed. Mr. McClung seconded the motion. The Chairman called for further discussion, and hearing none, called for a vote on the motion. The motion passed 4-to-1, with Mr. Bushouse in opposition.
HALLI'S AUTO SALES, LLC - DISPLAY IN SETBACK VARIANCE - 8688 WEST MAIN STREET - (PARCEL NO. 3905-16-180-059)
The Chairman said the next item for consideration was a request from Halli's Auto Sales, LLC for a variance under Section 31.403 to allow vehicles for sale to be displayed within the required building setback area. He said the subject property was located at 8688 West Main Street, Parcel No. 3905-16-180-059. Ms. Borgfjord excused herself from the Board due to a conflict of interest. The Chairman asked to hear from the Planning Department. Ms. Stefforia submitted her reported dated April 26 and May 5, 2005, to the Board for its consideration, and the same is incorporated herein by reference.
Ms. Stefforia then took the Board through a review of the property located at 8688 West Main Street. She provided an analysis of the variance provisions as set forth in the Zoning Ordinance. In her analysis, Ms. Stefforia noted that it would be reasonable for the applicant to prefer to use the existing parking lot for vehicle display rather than developing additional parking to the west. She also noted that the Board had granted a variance to Paul Brown at 8410 West Main Street to display vehicles within the setback area. She also noted that automobile display within the setback area was allowed at Maple Hill Mall and DeNooyer Chevrolet. She noted, in addition, that Steensma had been allowed a variance to display its equipment at the property line on Stadium Drive.
Ms. Stefforia said, with regard to whether there were unique physical limitations, that the topography of the subject property presented some physical limitations which would prevent compliance with the setback requirements. In conclusion, she noted that there were several properties with significant outdoor display in the area, and that this commercial area of the Township differed significantly from other areas within the Township.
The Chairman asked if there were any questions, and hearing none, asked to hear from the applicant. Ms. Borgfjord, on behalf of Halli's Auto Sales, LLC, told the Board that she thought the Planning Department had outlined their request quite well. She explained that the sale of automobiles had taken place at the site for years as an accessory use. However, with the change in State law requiring all used car sales dealers to post a sign, the Planning Department had asked that they seek a special use permit and a variance to continue the use. Ms. Borgfjord said nothing would change with regard to the very limited sale of used cars and believed, given the topography and limited use, that a variance was warranted.
The Chairman asked if there were any questions of the applicant, and hearing none, said he would entertain a motion. Mr. McClung made a motion to grant the variance as requested for the reasons set forth in the Planning Department's report. Mr. Turcott seconded the motion. The Chairman called for a vote on the motion, and the motion passed unanimously.
There was no "Other Business" to come before the Board.
The Chairman asked if there was any other business to come before the Board, and hearing none, the Chairman called for adjournment at approximately 5:10 p.m.
OSHTEMO CHARTER TOWNSHIP
ZONING BOARD OF APPEALS
Millard Loy, Chairman
May 10, 2005