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HomeMy WebLinkAbout2008-05-12 BOA MINUTES ORDER BOARD OF ADJUSTMENT AND APPEALS CITY OF APACHE JUNCTION, ARIZONA CASE NO. BA-1-08 DATE OF PUBLIC HEARING: May 12, 2008 APPLICANT: David Doherty, represented by Attorney Amy Rasor. PROPERT LOCATION: Cactus Jack' s Used Car Sales, 2281 West Apache Trail, on the southwest corner of Apache Trail and Grand Drive. LEGAL DESCRIPTION : APN: 101-10-110 SIZE OF SUBJECT PARCEL: 55, 000 square feet (1. 26 acres) ZONING DISTRICT: CB-2 General Business Zone REQUEST: This is a request by David Doherty, president and owner of Cactus Jack' s Used Car Sales, to appeal a Zoning Administrator' s decision relating to a changing message LED sign. BOARD AUTHORIZATION: Pursuant to the Apache Junction City Code, Volume II, Land Developmc-n,t Code, Chapter 1, Zoning Ordinance, Article 11, Board of Adjustment and Appeals Section 11 . 0103 Powers, Subsection (c) this empowers the Board to: "Hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, decision, grant or refusal made by the Zoning Administrator in the enforcement of the provisions of this Ordinance . " BOARD OF ADJUSTMENT ACTION: Motion and Second by Board Members Condon/Urich "PURSUANT TO THE AUTHORITY UNDER APACHE JUNCTION CITY CODE, VOLUME II, LAND DEVELOPMENT CODE, CHAPTER 1, ZONING ORDINANCE, ARTICLE 11, BOARD OF ADJUSTMENT AND APPEALS, SECTION 11 . 0103, POWERS, SUBSECTION (C) : A) THE BOARD REVERSES AND MODIFIES THE DECEMBER 7, 2007 ZONING ADMINISTRATOR' S NOTICE TO CACTUS JACK' S AUTO SALES PRESIDENT DAVID DOHERTY, WHICH ORDERED THE BUSINESS TO ONLY DISPLAY DATE, TIME AND TEMPERATURE ON ITS ELECTRONIC CHANGING MESSAGE SIGN INSTALLED AT 2281 W. APACHE TRAIL, APACHE JUNCTION, ARIZONA. B) THE BOARD MODIFICATION IS AS FOLLOWS: 1) CACTUS JACK' S AUTO SALES MAY KEEP THE ELECTRONIC CHANGING MESSAGE SIGN, BUT SHALL ONLY DISPLAY STATIONARY MESSAGES. THE MESSAGES MAY CHANGE AT A MINIMUM INTERVAL OF ONCE EVER 6-10 SECONDS. WHEN SUCH MESSAGES CHANGE, THEY SHALL DO SO INSTANTLY WITH NO CONTINUOUS TRAVELING, FLASHING, SCROLLING, OR BLINKING. 2) THE STATIONARY MESSAGES MAY NOT BE ANIMATED AND OR AUDIBLE, AND SHALL NOT ROTATE OR HAVE INTERMITTENT OR FLASHING ILLUMINATION. 3) ADVERTISING OF OFFSITE BUSINESS ON SUCH SIGN OF ANY KIND IS PROHIBITED. ADVERTISING SHALL BE LIMITED ONLY TO BUSINESS ACTIVITIES CONDUCTED AT 2281 W. APACHE TRAIL, APACHE JUNCTION, ARIZONA, AND THE INVENTORY STORED THEREON. ORDER - BOARD OF ADJUSTMENT AND APPEALS CASE NO. BA-1-08 - Cactus JaCI<'s Used Auto Sales Page 2 4 ) MESSAGES MAY, AT CACTUS JACK' S DISCRETION, INCLUDE TIME, DATE OR TEMPERATURE AND ANY STATE OR CITY OF APACHE JUNCTION GOVERNMENTAL MESSAGE, BUT THERE IS NO REQUIREMENT TO DO SO. C) THE BOARD FINDS THAT CACTUS JACK' S SHOULD NOT BE PENALIZED AFTER IT HAS INVESTED SIGNIFICANT FUNDS OF APPROXIMATELY $27, 000 FOR THE COST OF THE SIGN AND INSTALLATION DUE TO A CITY STAFF MEMBER' S INADVERTENT MISTAKE IN APPROVING THE SIGN AS IT CURRENTLY OPERATES. CACTUS JACK' S IS A VALUED BUSINESS IN THE COMMUNITY AND SHOULD BE GIVEN THE ACCOMMODATION NOTED WITHIN THIS MOTION, WHICH IS CONSISTENT AND IS IN HARMONY WITH THE INTENT OF THE SIGN CODE. D) ANY PERSON AGGRIEVED BY THIS DECISION MAY, AT ANY TIME WITHIN 30 DAYS AFTER TODAY' S DATE, IN ORDER TO PRESERVE THEIR LEGAL REMEDIES, FILE AN APPROPRIATE ACTION IN FINAL COUNTY SUPERIOR COURT. FILING THE ACTION IN SUPERIOR COURT DOES NOT STAY PROCEEDINGS ON THE DECISION, BUT THE COURT MAY, UPON APPLICATION, GRANT SUCH A STAY AND ON FINAL HEARING MAY AFFIRM OR REVERSE IN WHOLE OR IN PART, OR OTHERWISE MODIFY, THE BOARD' S DECISION. " MOTION PASSED, VOTE 4-0 (Vice Chairwomen Spellman absent and two vacancies) SIGNED : �JAN ONES-DENNEY, HAIRWOMAN DATE OARD OF ADJUSTMENT & APPEALS ORDER - BOARD OF ADJUSTMENT AND APPEALS CASE NO. BA 1.08 - Cactus Jack's Used Auto Sales Page 3 ATTEST : ,. v j z9 Ua R U D E 'QU S DA`I [— BOAR CLE APPROVED AS TO FORM: 5 085 W RICHARD JOEL STERN DATE CITY ATTORNEY ORDER- BOARD OF ADJUSTMENT AND APPEALS CASE NO. BA-1-08 - Cactus Jack's Used Auto Sales Page 4 Board of Adiustment Executive Session Notes 5/12/08 Case BA-1-08: (Cactus Jack's Auto Sales/David Doherty) Staff Members Present: Joel Stern, Fred Baker, Ian Crittenden, Rudy Esquivias Board Members Present: Jane Jones Denney, Carol Urich, Sam Condon,John Gordon Joel: Welcome. Legal opinion memo received? Members: Yes. Joel: Under rules, he can give legal advice. Applicant filed a response saying ordinance is not content neutral. Joel gave examples of what is/is not content neutral. They did not bring up the estoppel issue—did City make a malicious approval or decision, then try to stop them? Planner who approved permit made an error, not a malicious decision. Applicant spent $27,000 on sign, $14,000 on the changing message element alone. Could go to court,judge may award them for money spent, plus attorney fees. 50/50 if we win or lose depending on various courts. Not much law in our circuit, except on estoppels issue. Questions? Jane: There is precedence for this law? Joel: Estoppel argument is easier to win, this mistake was not intentional or malicious. Jane: Time, temperature, messages ok? Joel: Explained code provision. Issue of"grand opening" not covered by code. Grand opening discussion was not documented. Fred: Explained how and why the permit was approved with the 30 days, grand opening intent. He gave planner the "ok". Joel: Recommendation in legal opinion. Suggested compromise. Applicant seems agreeable. John: "Pay Here, buy here" ok? Joel: Yes. Messages would not scroll or flash. Joel exp ained what could happen next, if they don't get their request. Jane: Message would pertain to this business, but no flash or scroll, intermittent messages, at intervals? Joel: Correct. Site specific messages are key. Don't want them advertising their out-of-town dealerships or other businesses. Joel suggests they use the entire motion he drafted. Fred: Including time/temperature messages? Joel: Yes. Applicant is probably amenable, but you never know; and they may ask for other things. John: Can they (the Board) stop and have another E-session if they need it. kel: Yes, but he will point out legal issues when needed. This is attorney-client privileged information. Their attorney has not seen Joel's memo, but is familiar with the elements of the compromise. Board can direct question to him. We also have a court reporter. An appeal would be a new trial. Jane Joel: Adjourn e-session 7:29pm. [These notes were taken by Rudy Esquivias, Senior Planner/Zoning Administrator] BOARD OF ADJUSTMENT AND APPEALS EXECUTIVE SESSION AND REGULAR MEETING 300 E. SUPERSTITION BOULEVARD MEETING OF MAY 12, 2008 An Executive Session and Regular Meeting of the Board of Adjustment and Appeals of the City of Apache Junction, Arizona, was held on May 12, 2008 , in the City Council Chambers located at 300 E. Superstition Boulevard, pursuant to the notice required by law. CALL TO ORDER Chairwoman Jones-Denney called the meeting to order at 7 : 00 p.m. Flanninq Manager Fred Baker announced that Board Member Daniel Austin submitted his resignation from the Board effective 5/12/08 . ROLL CALL Board Members Present : Chairwoman Jane Jones-Denney Board Member Carol Urich Board Member Samuel Condon Board Member John Gordon Board Members Absent : Board Member Sandra Spelman Staff Present : City Attorney Joel Stern Planning Manager Fred Baker Senior Planner Rudy Esquivias Planning Intern Ian Crittenden MOTION FOR EXECUTIVE SESSION A MOTION WAS MADE THAT AN EXECUTIVE SESSION OF THE BOARD OF ADJUSTMENT AND APPEALS BE HELD AT THIS TIME TO DISCUSS LEGAL MATTERS WITH THE CITY ATTORNEY. MOTION: Urich SECOND: Gordon AYES : Jones-Denney, Urich, Gordon, Condon NOES : None BOARD OF ADJUSTMENT AND APPEALS MAY 12, 2008 PAGE 1 OF 7 ABSTAIN: None ABSENT: Spelman City Attorney Joel Stern announced as a Point of Order, the Board Members will have time to talk about legal issues involving this case . We will leave these chambers and return within 15-20 minutes . We will reconvene and start the hearing . Chairwoman Jones-Denney announced that the Board will be adjourned for 15-20 minutes . The Board reconvened at 7 : 32 p.m. Chairwoman Jones-Denney called for a motion on the Consent Agenda . CONSENT AGENDA A MOTION WAS MADE TO ACCEPT THE AGENDA AND THE MINUTES OF MARCH 10, 2008 AS PRESENTED. MOTION: Urich SECONDED: Gordon AYES : Jones-Denney, Urich, Gordon, Condon NOES : None ABSTAIN: None ABSENT: Spelman PUBLIC HEARINGS Title : BA-1-08 Appeal of the Zoning Administrator' s Decision Applicant: David Doherty/Cactus Jack ' s Auto Sales Represented by Attorney Amy Rasor Location: 2281 West Apache Trail Request: Allow a changing message sign displaying general advertising content Staff : Ian Crittenden City Attorney Joel Stern announced that there is a court reporter in the room tonight . If anyone speaking goes too fast she will interrupt because she is taking down everyone ' s words . This is for the record. BOARD OF ADJUSTMENT AND APPEALS MAY 12, 2008 PAGE 2 OF 7 Planning Intern Ian Crittenden gave a brief overview of his Staff Report dated May 12 , 2008 on Case BA-1-08 . City Attorney Joel Stern asked a procedural question of Mr . Crittenden . Is it correct that what you have in the material is everything that we just saw on the screen? Planning Intern Ian Crittenden said that is correct . City Attorney Joel Stern advised that this should be put into evidence as an exhibit including the actual staff report, and an electronic copy of this should be printed out and marked as Exhibit A for the court reporter for the record. Board Member Urich asked if staff has put anything in place that this won' t re-occur in the future . Planning Manager Fred Baker said we will follow the code as we did this time . In terms of a Planner making a decision on a building permit , we will have to look into that procedure . I do not want to look at every permit that is issued by the Building Department and reviewed by the Planner . By some degree management has to rely on the staff to make those types of decisions . Chairwoman Jones-Denney asked if the applicant would care to address the Board . Amy Rasor, representing Dave Doherty, addressed the Board. You have been presented terms of a possible resolution to this matter . She will read them into evidence . Do we need to do that? City Attorney Joel Stern said yes, whatever you have should be provided as Exhibit B. Ms . Rasor said the points for the sign would be; stationary commercial messages may be displayed on the sign, such messages may change at a minimal interval of once every 6-10 seconds . Any change must take place instantly with no scrolling, flashing or continuous traveling allowed. No message shall be animated, audible and shall not rotate or have intermittent or flashing illumination. The sign shall be maintained and not fall into disrepair. Any changeable message must be directly related to the Cactus Jack Auto Sales business conducted at 2281 W. Apache Trail , Apache Junction. No offsite business activity. Cactus Jacks may also display the time, date and temperature as well as any non-profit community oriented message in the same manner as commercial messages noted above . BOARD OF ADJUSTMENT AND APPEALS MAY 12 , 2008 F AGE i OF 7 My client and I accept these terms. We find them to be a very reasonable resolution to the issue and fair for both the City of Apache Junction and Dave Doherty of Cactus Jack's . Dave Doherty, addressed the Board. He wanted to give a quick synopsis . We are new to the area and wanted to differentiate ourselves and wanted to have a sign that grabs attention . We used the Sign Depot in Mesa . We looked at different digital displays . The Sign Depot applied for us . They described the sign, had pictures of the sign, and spelled it out that it was an LED changeable sign . We thought it was fairly clear. We received approval for the sign. After 2 or 3 weeks we received approval, so we thought they had adequate time to review it and ask questions . It rolled right through. At that point we ordered our sign . We waited to receive approval from the City before spending money for the sign. They installed the sign and everything was fine for 2 or 3 months with no adversity. We received a call from the City saying that the Grand Opening was over and that we had to take down the electronic portion of the sign. We were confused. we went back to talk with the gentleman that approved the permit and found he was no longer with the City. We received a notice from the City that they wanted us to take down the sign or discontinue the usage of it . It was a matter of reasonableness and fairness that we thought we had gone through the appropriate steps and once approval was received we went forward with our plans . We were disappointed with the outcome . I think the resolution you have proposed is fair and equitable . We would like to move forward . Board Member Urich asked Mr. Doherty if he was in agreement with what the two attorneys have talked about and the compromise . Mr. Doherty said based on everything that has transpired, yes, I believe it will work for us . Chairwoman Jones-Denney asked if there was anyone wishing to speak for or against . Hearing none, the public portion is closed and opened to the Board for discussion. Hearing none, she called for a motion. Motion on Case BA-1-08 A motion was made that Pursuant to the authority under Apache Junction City Code, Volume II, Land Development Code, Zoning Ordinance Chapter 1, Article 11, Board of Adjustment and Appeals, Section 11 . 0103 , Powers, Subsection (c) : BOARD OF ADJUSTMENT AND APPEALS MAY 12 , 2008 PAGE 4 OF 7 A) The Board reverses and modifies the December 7, 2007 Zoning Administrator' s notice to Cactus Jack' s Auto Sales president David Doherty, which ordered the business to only display date, time and temperature on its electronic changing message sign installed at 2281 W. Apache Trail, Apache Junction, AZ . B) The Board' s Modification is as follows : 1) Cactus Jack' s Auto Sales may keep the electronic changing message sign, but shall only display stationary messages. The messages may change at a minimum interval of once every 6-10 seconds . When such messages change, they shall do so instantly with no continuous traveling, flashing, scrolling, or blinking. 2) The stationary messages may not be animated and/or audible, and shall not rotate or have intermittent or flashing illumination. 3) Advertising of offsite business on such sign of any kind is prohibited. Advertising shall be limited only to business activities conducted at 2281 W. Apache Trail, Apache Junction, AZ and the inventory stored thereon. 4) Messages may, at Cactus Jack' s discretion, include time, date or temperature and any State or City of Apache Junction governmental message, but there is no requirement to do so. C) The Board finds that Cactus Jack' s should not be penalized after it has invested significant funds of approximately $27 , 000 for the cost of the sign and installation due to a City staff member' s inadvertent mistake in approving the sign as it currently operates . Cactus Jack' s is a valued business in the community and should be given the accommodation noted within this motion, which is consistent and is in harmony with the intent of the Sign Code. D) Any person aggrieved by this decision may, at any time BOARD OF ADJUSTMENT AND APPEALS MAY 12, 2008 PAGE 5 OF 7 within 30 days after today' s date, in order to preserve their legal remedies, file an appropriate action in Pinal County Superior Court . Filing the action in Pinal County Superior Court does not stay proceedings on the decision, but the Court may, upon application, grant such a stay and on final hearing may affirm or reverse in whole or in part, or otherwise modify, the Board' s decision. MOTION: Condon SECONDED : Urich AYES : Jones-Denny, Urich, Gordon, Condon NOES : None ABSTAIN: None ABSENT: Spelman OLD BUSINESS Nothing to report NEW BUSINESS Nothing to report REQUEST OF STAFF No requests INFORMATION AND REPORTS No Executive Secretary ' s Report SELECTION OF MEETING DATE, TIMES, LOCATIONS, AND PURPOSES A MOTION WAS MADE THAT THE REGULAR MEETING OF THE BOARD OF ADJUSTMENT AND APPEALS BE HELD AT 7 : 00 P.M. ON JUNE 9, 2008, IN THE CITY COUNCIL CHAMBERS LOCATED AT 300 E. SUPERSTITION BOULEVARD. MOTION: Gordon SECONDED: Urich AYES : Jones-Denney, Urich, Gordon, Condon NOES : None ABSTAIN: None ABSENT: Spelman Chairwoman Jones-Denney adjourned the meeting at 7 : 58 p .m. BOARD OF ADJUSTMENT AND APPEALS MAY 12 , 2008 PAGE 6 OF 7 lanll VAil - V_1017� J JO S - DENNEY CVirwoi an r D BAKER, Executive Secretary/Planning Manager BOARD OF ADJUSTMENT AND APPEALS MAY 12 , 2008 PAGE 7 OF 7