City of Goose Creek

MINUTES
CITY OF GOOSE CREEK
ZONING BOARD OF APPEALS MEETING
JULY 28, 2010, 6:30 P.M.
GOOSE CREEK MUNICIPAL CENTER
519 N. GOOSE CREEK BOULEVARD

I. Call To Order - Chairman Robert Williams

Chairman Robert Williams called the meeting to order at 6:32 p.m.

Present: Butch Clift, James Fisk, Larry Monheit, Kevin Smith, Thomas Volkmar, Robert Williams, and Van Williams
Staff Present: Daniel Ben-Yisrael and Sarah Hanson

Pledge of Allegiance

II. Review of Minutes -May 5, 2010

The review and approval of the minutes was tabled until the end of the Public Hearing.

III. Public Hearing - Request for Variance

Motion: Mr. Clift made a motion to open the Public Hearing. Mr. Volkmar seconded the motion.
Discussion: There was none.
Vote: All voted in favor; none opposed

Chairman Williams administered the oath to those testifying.

Chairman Williams requested Staff present their facts and evidence.

Mr. Ben-Yisrael explained that on June 10, 2010 the City notified Eastwood Homes that signs they had installed must be removed, as they were deemed illegal signs. Between June 10 and June 14, 2010 there were several emails and conversations concerning the signs, and on June 14 Eastwood Homes presented their argument that the signs met the Ordinance, qualified as informational signs, and should be able to remain. Staff then reviewed the Ordinance and reviewed the signs and responded that these were not informational signs and then ordered that the signs be removed within 48 hours. Within the provision 151.171 of the Ordinance, Eastwood Homes is appealing the decision of the Zoning Administrator that these signs are not informational signs under Zoning Ordinance 151.084(D)(2)(k).

Eastwood Homes asserts that the signs are in fact informational signs and should be allowed. Staff has determined that the signs are of an advertising nature in that they promote their products and services and go beyond providing specific information. As such the signs are not allowed under the Zoning Ordinance 151.084(D)(2)(k). Informational signs have been interpreted to mean signs that give basic and essential information to patrons or the public about the property, business, operation, etc. Historically what have been determined as informational signs are signs that are not of a promotional nature but signs that provide directions, instructions, or other non-advertising messages such as "enter", "exit", "open", "closed", "drive thru", etc. He referred to photographs of examples of signs deemed informational signs. He also shared past ARB sign applications which illustrate that Staff has always treated these types of signs - "enter", "exit", etc. as informational signs.

Mr. Monheit asked if there is a limit for the number of informational signs, and Mr. Ben-Yisrael responded that there is not, and this is determined on a case by case basis. Mr. Volkmar clarified that Staff has interpreted Ordinance 151.084(D)(2)(k) and that there was no other specific clarification given within the Ordinance.

Mr. Ben-Yisrael stated there were no further facts or evidence to present.

Chairman Williams recognized Mr. Jason Fabrizio with Eastwood Homes to present the Applicant's facts and evidence.

Mr. Fabrizio thanked Mr. Ben-Yisrael for his cooperation during the process.

He stated that Eastwood Homes was trying to conform to the Ordinance, as their signs do fit the size requirement, and per their interpretation of the Ordinance their signs offered information being conveyed to an end user. Their reason for coming before the Board is they feel they have complied with the Ordinance.

Mr. Fisk asked for Mr. Fabrizio's interpretation for an advertising type of sign. He asked if these signs would fit those criteria as well. Mr. Fabrizio stated they would. He stated he felt the City should have a more specific ordinance. He stated if the City Council decided to change the rules they would follow them. Mr. Fisk asked if he had contacted the City to ask if there was a question about how the signs would be perceived. Mr. Fabrizio stated they had not, as they had had other smaller signs and they had seen other signs from other builders that had been up for a time, so they felt it wasn't necessary. They felt they were following the Ordinance.

Mr. Clift asked about the number of signs that they had put up. He stated he considered these particular signs as advertisements for the Eastwood community. He also stated he didn't want there to be the opportunity for every community to put up these same types of signs. Mr. Fabrizio responded that it wasn't up to the business to write the rules, just to follow them as they are written. He stated they had been diligent in their installation and sizing in order to follow the Ordinance. He stated the determination has been an interpretation, as the Ordinance isn't clear. He stated they would abide by whatever the City decided and wanted to be good neighbors, but they felt they had followed the rules.

Mr. Volkmar asked how these signs were helping the consumers, the public. He asked if he felt these signs were turning houses. Mr. Fabrizio stated they were limited in Goose Creek for signage and so these do provide a service to the public when they drive through the area, and these signs give the public an idea of what is going to be in the community.

There was brief discussion concerning the signage limitations within the city and the inability to have off-premise signage. Mr. Fabrizio stated this is why they wanted to be able to have signs that give the public information when they drive by. He reiterated that they are trying to follow the written rules though they can be interpreted different ways. He stated he felt it should be the responsibility of City Council to clarify any rule that isn't clear, as there are two ways to interpret the rules, and each has some validity.

Mr. Monheit asked how the Ordinance can be changed, and Mr. Ben-Yisrael stated it would have to be through a zoning ordinance amendment to define "informational signs" and put any limitation on the number of signs that any business could have.

There was discussion concerning what happens when something is grandfathered because of a change in the Ordinance. Mr. Ben-Yisrael answered that preexisting nonconforming signs would be allowed to remain after an Ordinance change. They couldn't be relocated or modified in any way, but they could remain.

The Board discussed the differences between "informational" and advertising signs, citing the vagueness of the Ordinance language. It was suggested that the intent of the sign is important in making the determination. There was concern about setting a precedence in allowing businesses to have unlimited informational signage.

Mr. Smith asked Mr. Fabrizio what would happen to the signs once the community was completed. Mr. Fabrizio stated they would remain to convey information about the community and then would be removed, as they wouldn't be needed any longer. Mr. Smith stated he felt that because they would then be removed they were more of an advertising nature.

Mr. Van Williams questioned what circumstance prompted Eastwood's appeal. Mr. Fabrizio stated they installed the signs based on the fact that they owned the property and managed the homeowners association and could then dictate what signs were provided. He stated they made a special effort to insure they were the proper size, located them out of right-of-ways, had the authority of the HOA, and thought they were following the Ordinance. He said as soon as he was informed there was an issue with it they applied for their appeal, as they felt the signs are in compliance with the Ordinance as it is written today and as it can be interpreted.

Mr. Ben-Yisrael addressed the earlier concern about some informational signs containing corporate logos. He stated that Staff considers the intent and impact of the sign as to whether it is conveying information or advertising. If the logo or any other wording is more dominant, Staff brings that to the applicant's attention. The intent of the Ordinance is to limit the amount of signs a business can have at their location. He cited the example of a car dealership being able to put up an unlimited number of signs such as "500 Horsepower", "zero percent interest", "manufacturer's retail price $20,000" if these are considered informational signs. In that instance a dealership could put up 50 signs because the language is vague. He stated he felt it was clear it was not the intent of the Ordinance to allow such a situation. Likewise, if Eastwood's signs were to be considered informational signs with no limit as to the number of signs, they could tomorrow put up eight or nine more. He said this clearly is not the intent of the Zoning Ordinance. He stated also that in keeping with the historical interpretation of informational signs, which in most cases are related to commercial applications, these signs are of a permanent nature: "enter", "exit", "drive-thru", "open", "closed". From day one the intent is for the signs to be kept there in perpetuity.

Mr. Clift asked about why a sign permit wasn't required in this instance, as he said the ordinance stated the only exception for a permit would be for residential signage. He stated the application was referencing Ordinance section (D)(2), so a permit should have been required. Mr. Ben-Yisrael stated that if that were the case Staff would reject the application due to the interpretation that the signs are not informational signs. There was discussion about whether because of there being no permit application the appeal could be considered prior to their applying for a permit.

Motion: Mr. Clift moved that the appeal be denied due to their not having a permit application. Mr. Monheit seconded the motion.
Discussion: There was discussion among the members concurring that the ZBA wasn't the proper hearing body at this time.

Chairman Williams asked Mr. Ben-Yisrael is he would like to make a summary statement. Mr. Ben-Yisrael responded that Staff's position remained the same, that the signs in question are not informational signs. He stated he did agree that there may be a lingering procedural question as to whether the appeal was premature and whether at this point the applicant had safe standing because he had yet to apply for an informational sign permit. He stated he felt the Board was correct in having the applicant apply for a sign permit to the ARB and then if a determination is made that the signs are not informational signs, the applicant can appeal. He also responded that this was exactly what was happening at this hearing.

Mr. Van Williams asked how these signs were able to be standing without prior City approval. Mr. Ben-Yisrael responded that because of the applicant's appeal all enforcement measures had been stayed and the signs were allowed to remain until a ruling is made. He stated if it is remanded back to the ARB then the enforcement would resume and the applicant would have to remove the signs until the ARB heard the matter.

Mr. Clift suggested the matter should be tabled until the proper procedures are carried out. Mr. Ben-Yisrael responded that actually a determination by the Board would not be approving the signs; they would be deciding whether or not Staff made the proper determination. Mr. Clift reiterated that because there was no permit application there could be no determination. He confirmed he felt until it came back to them after it had gone through the proper protocol they could not made a determination.

Mr. Ben-Yisrael responded that in considering the discussion he felt the Board actually did need to make a determination based on the fact that the Ordinance states the ZBA has three duties, one of which states that the Board shall hear appeals where it is alleged that the Zoning Administrator has made an error in interpreting the Ordinance. He has done that. He has issued an order, the applicant has rebutted, and he has made a determination that the signs are not informational signs and need to be removed, so he has already made an interpretation of the Ordinance, and the applicant is appealing that determination. Based on the statement of their duties, the Board must hear this and make a determination. Again, this is based on the fact that they are not approving the installation of the signs but merely affirming or reversing his ruling based on their interpretation of subparagraph (k). Additionally, based on their capacity, they were assuming all administrative powers of the Zoning Administrator, and could attach to their affirmation or reversal any order or direction they wished, meaning they could order the applicant to go to the ARB and to get a permit. But based on the fact that a determination has been made they can made their determination. Mr. Ben-Yisrael stated that in his mind he never considered the signs as informational signs, so the requirement to get a permit was never an option. He asserted that if the determination is affirmed then the signs would have to be removed. If the determination is reversed, then the Board is determining that they believe the signs to be informational signs and can then require the applicant to get a permit, remove the signs until they have a permit, or whatever they direct. He stated he felt they could only make a direction if it is attached to an affirmation or reversal of Staff's determination.

Mr. Fabrizio stated that if it was intended for the City Planner to have the jurisdiction under (k), then City Council would have expressed that or it could easily be fixed; any informational signs would have to go through the City Planner before they were installed. Mr. Clift stated that was true, but until then if the Board ruled in favor of them, these signs would be grandfathered in and they could add to the signs they have now, and that was a concern. Mr. Fabrizio stated their intent was to have the signs they have. He stated they thought they had gone through the proper process and then appealed.

Mr. Ben-Yisrael stated the Board had the option to continue the hearing if they wished to allow time for Staff or the Board to consult legal counsel. Mr. Clift responded he didn't think they needed that option.

Chairman Williams requested Mr. Clift to restate his motion.

Motion: Mr. Clift: I move to Affirm the determination and order made, by the Zoning Administrator pursuant to §151.084 of the Zoning Ordinance of the City of Goose Creek, regarding the question of whether or not certain signs, located at the property identified by TMS# 235-06-03-129, are to be considered "informational signs" and whether or not said signage must be removed from the aforementioned property. Also, this actually falls under subparagraph D1 rather than D2.

Mr. Ben-Yisrael responded that because this wasn't the original motion the Board must act on the original motion prior to their making another.

Mr. Clift withdrew his first motion, and Mr. Monheit withdrew his second of the motion.

Discussion: There was brief discussion as to the specific ordinance that needed to be referenced. Mr. Volkmar stated he agreed that the Ordinance was vague and confirmed that what they were trying to decide was what an informational sign is and then either affirm or reverse Staff's determination. Mr. Clift suggested that they were to determine what section of the Ordinance was being appealed. Mr. Volkmar and Mr. Smith responded that question wasn't really relevant, just whether they would affirm or reverse Staff's determination. There was brief discussion about their making a recommendation to clarify the Ordinance, but it was decided that would be separate of their affirming or reversing the determination. Mr. Volkmar stated he felt they should reverse the action because he felt under section (k) these are informational signs. He stated he felt the Ordinance was vague and needed to be more specific. Mr. Clift stated that a sign permit should have been applied for. Mr. Volkmar stated that was a separate issue and that's the way the City has to manage the sign issue, that he was asserting that they were here to hear a determination of an order made by the Zoning Administrator as to how he interpreted the term informational sign, and he didn't feel it was clear enough. Mr. Clift responded Staff was referring to the wrong paragraph when they gave out the information and the Board needed to straighten that out. He stated they were there to correct that mistake. Other members reiterated the Board was to affirm or reverse the determination. There was discussion and questions about the results of a decision to affirm or to reverse. Mr. Ben-Yisrael clarified that the Board, by reversing or affirming they are assuming the administrative duties of the Zoning Administrator and may attach any obligation or direction they wished to attach to it. Mr. Smith stated for clarification that Staff has determined that these signs are not informational, and the Board will decide either that they are not informational or that they are informational and, thus, allowed to have the signs. Mr. Volkmar stated that they can also modify that with instructions. Mr. Smith stated that no modification would change the fact if they've decided that they believe these signs are informational. Mr. Monheit stated he agreed. Mr. Volkmar stated they wouldn't be able to have them because they would be over the maximum number of signs, but there was disagreement that this was the case. There was further discussion about what the results would be if reversing the determination.

Mr. Ben-Yisrael reiterated Staff's opinion that this is clearly beyond the intent of the Ordinance to consider such signs as informational because, though the Ordinance needs to be tightened up and clarified, it could result in having any number of signs, limitless number of signs, throughout the city, and this essentially would mutilate the Ordinance. Per the information given it is clearly the intent of the Ordinance to limit the amount of signage for any one commercial or multi-family application. Per the City's historical interpretation of informational signs, the applications would limit how much signage they can install per subparagraph (k). Whereas, in Staff's opinion, in this case it is obvious that if any business owner is allowed to put up an unlimited number of signs advertising their products or services it mutilates the Ordinance.

Mr. Fabrizio stated he understands the concern and he wouldn't want that either, but he stated they don't have intent on their part, just what they've done; it can't be said they will put 60 signs out there because they haven't done that. When it was mentioned that others could, Mr. Fabrizio stated that would be penalizing Eastwood for following the Ordinance as they believe it is written.

Mr. Van Williams stated that they were arguing semantics. He suggested they needed to proceed with the motion.

Vote: Chairman Williams asked for a roll call vote. Mr. Clift: Aye; Mr. Fisk: Aye; Mr. Monheit: Aye; Mr. Smith: Aye; Mr. Volkmar: Aye; Mr. Robert Williams: Aye; Mr. Van Williams: Aye. The Board voted unanimously to affirm the decision of the Zoning Administrator.

Chairman Williams asked that the Ordinance definition for the term informational signs be clarified in the near future with specific examples given. Mr. Smith suggested that they could make a motion to take this before the Commission for clarification. Mr. Volkmar stated the precedent has been set by this determination unless it is taken to another level of appeal. Mr. Ben-Yisrael stated Staff intends to rewrite the language.

IV. Comments from the Board

Mr. Clift asked if the process could be made easier. Mr. Van Williams stated he felt the clarification was included in the paperwork. Mr. Volkmar said he felt this ordinance was making it difficult on the business owner. Mr. Fisk stated he felt he would have asked for clarification first to make sure what they wanted to do was permissible. Chairman Williams stated he felt the definition for informational signs needs to be rewritten to be clear and to set examples. Mr. Smith reiterated that was clearly not the intent of the Ordinance. Mr. Monheit stated it needs to also limit the number of signs, and Mr. Smith suggested if it were defined properly they would be self limited. Mr. Clift suggested having these signs included in their allowable sign square footage, and the business would limit the sizes.

V. Comments from Staff

Mr. Volkmar asked about the status of the required training. Mr. Ben-Yisrael explained that he wanted to do two one and one-half hour sessions, and he had yet to have it approved by the committee.

Mr. Monheit asked if Staff would be working to clarify the language of the Ordinance, and Mr. Ben-Yisrael stated that once the Comp Plan is completed a land use policy committee will be formed to oversee the overhaul of the Zoning Ordinance, and he is requesting funds for the COG to assist in the rewriting of the Zoning Ordinance. He stated that certain subjects will be brought before them for review.

VI. Review of Minutes -May 5, 2010

Motion: Mr. Volkmar made a motion to accept the minutes as written. Mr. Clift seconded the motion.
Discussion: There was none.
Vote: All voted in favor; none opposed.

VII. Adjournment

Motion: Mr. Clift made a motion to adjourn. Mr. Smith seconded.
Discussion: There was none.
Vote: All voted in favor.

The meeting adjourned at or about 7:58 p.m.