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1999-08-19 Hearing Examiner MinutesHEARING EXAMINER HEARING OF AUGUST 19, 1999 VERBATIM TRANSCRIPTS File No. V-99-134 Ron McConnell, Hearing Examiner Mr. McConnell: The next item on the agenda. Mr. Bullock: Mr. Examiner. Mr. McConnell: We have the request from the Olympic View Deli and Steve Bullock... Mr. Bullock: Just a little bit of background on what is happening. For the record, my name is Steve Bullock. I will be representing the City Planning Department on this matter. Again, it is V-99-134. Mr. McConnell: Do you swear to tell the truth? Mr. Bullock: I do. Mr. McConnell: Okay, go ahead. Mr. Bullock: This matter probably got initiated approximately (It is August now) a year and two or three months ago. Mr. McConnell: I remember it. Mr. Bullock: It originally came to the City staff and the logo mounted on the canopy of the awning was determined to be a wall graphic. As such, they weren't required to go to the design board for their review. That determination was appealed by the appellant, Mr. Hertrich. But, in the meantime the applicant had actually installed the logos on the canopy. The appeal ultimately came before the Hearing Examiner and the City Council. The City Council made the determination that the logos were going to be considered signs and as such required the review of the design board. It went before the ADB approximately a month and a half ago. It received approval for the design and it is now back before Hearing Examiner on appeal. Mr. Bullock: Excuse me. It is not before the Hearing Examiner on appeal. Because the signs are located on the canopy, they are over the maximum allowed height and the signs require a variance for that purpose. The sign height limit is 14 feet. The top of the canopy of the gas station (or excuse me, the bottom edge of the canopy) as you will see noted on the first page of attachment 3 is approximately 131/2 feet off the ground. That is the bottom edge of the canopy. The actual facia of the canopy is about 31/Z feet in height. They are trying to locate the sign in the middle of that canopy vertically, which puts it over the 14 feet in height. They are asking for a variance to allow the sign to be 17 feet off the ground. The sign area for the property is calculated... Mr. McConnell: To the top of the sign? Mr. Bullock: Exactly. The sign area for the property is calculated based on the lineal footage of the building. All the signs, including the freestanding sign on the corner, are added into the allowable sign area and they fall within it as shown on a table (Page 3 of the staff report) which shows that the maximum permitted is 72 square feet. The logos around the canopy, the wall mounted sign and the monument sign total 59 square feet. So, they are within the allowed sign areas. It is only an issue of the height. The City has approved variances for canopy mounted signs on several gas stations throughout the City. You will see those specifically addressed on Page 4 of the staff report under the additional information by the staff in regards to... Well, just additional information. There is probably five or six gas stations throughout the City (Texaco's, Chevrons, Shell Stations, Exxon Stations) that have all received variances to mount either names or logos on canopy facias over 14 feet in height. Mr. Bullock: Again, since this is a variance, it is required to meet the variance criteria. As has been found in previous circumstances, the fact that the canopies have to be up to a certain height to allow trucks and filling trucks and the typical users of the canopy to pass underneath it safely without causing any problems, that has been determined to be a special circumstance that has warranted approval of variances for signs to be mounted on those canopies. It is not a grant of a special privilege in that it has been demonstrated and approved in the past for other projects. The proposal is consistent with both the zoning code and the Comprehensive Plan. That is a commercial use in a commercial area and designated as such. Mr. Bullock: We don't feel that it is going to be detrimental in that it is not going to block views or make this business any more competitive than surrounding businesses. It is not as if they are making it extremely high to make them more visible than other businesses in the area. We don't feel that the proposal is going to be something that dominates somebody's view or anything in that area. Therefore, we don't feel that it is detrimental. It is the minimum necessary. I think with that, I would conclude my report and answer any questions you have of me. Mr. McConnell: I don't have any at this time, but I would like to hear from the applicant. Who is speaking for the applicant? Mr. Rottrup: My name is Lowell Rottrup. That is L-o-w-e-1-1 R-o-t-t-r-u-p. My address is 17427 Northeast 3111 Court, Redmond, WA 98052. Mr. McConnell: Do you swear to tell the truth? Mr. Rottrup: I do. I am the owner of Ray F. Snyder Company. We are a Texaco distributor that supplies gasoline to Olympic View Deli, and we have done so for a couple of years. Mr. Mehdi is the present owner. We are here to agree with the City and to encourage the hearing examiner to approve the application for the signs above 17 feet. Just to review briefly, the colors on the building and some of the other signage on the station are less than what Texaco would like. But, as you have known before, Texaco and Ray F. Snyder Company are anxious to be good corporate citizens and do what the City asks us to do. We have complied in those cases before. In regard to the logos and corporate look, the corporate desire is to have the Texaco letter, itself, along with the small circle star that is on the canopy. We have less than the corporate required image. That is okay. We are content with that, but we are intent and want to fight for the Texaco logo on the canopy. It is a recognized worldwide trademark and does make a difference as far as identification. People recognize it and it is important for. Mr. Mehdi's business. We request that the Hearing Examiner approve. Mr. McConnell: Okay, anyone else speaking on behalf of the applicant? Mr. Hertrich, I assume you want to speak. Mr. Hertrich: Roger Hertich, 1020 Puget Drive. Do I need to swear. Mr. McConnell: Oh sure. Do you? Mr. Hertrich: I do. To begin with, I always hate to start something out on a negative note. But, I would challenge the Hearing Examiner's participation in this because you have made a previous decision on this same item only called different. It was called a wall graphic at that time. In regard to the color ... Mr. McConnell: The Council also told me I was wrong. Mr. Hertich: They said you were wrong on your interpretation of the description. But, you made a declaration as far as the colors go in your decision. I would challenge on that basis. The specifics were garish, obtrusive, impact on the community. That little catch all. Secondly, I would challenge the advertising of this issue. Lighting was not mentioned. I had someone call me saying, "Gee, they advertised for signs up there and they dealt with square footage, but did not mention the fact that Verbatim Transcripts of Hearing Examiner Hearing File No. V-99-134 Hearing Date: August 19, 1999 Hearing Examiner: Ron McConnell Page 2 the signs were going to be lighted." That person called this morning and said they were unable to be here. I would suggest that was left out of the proper notification. Third, the application ... Let's see. The application, itself... Let me get my head together for a minute please. The staff report erred in their conclusion. They incorrectly quoted the code on Page 3 of 6 in the staff report. Mr. McConnell: Just a second. Let me get there so that I am with you on that. Okay, where? Mr. Hertrich: On number 2, Compliance for a Variance. They stated that 20.85 says that this may be varied on a case -by - case basis if it would result in an unusual or unreasonable hardship. It does not state that in the code. That draws you to a conclusion that is incorrect. The applicant's response in regard to the staff report... I would challenge that it does not provide answers for any of the special circumstances, special privilege zoning not detrimental or a minimum necessary. I would like to go back to the ADB when they discussed this issue. Unfortunately, I was sick and not able to make it. After a year, you'd think I would have been there. But, unfortunately, I couldn't make it. I would suggest that the staff report for the ADB meeting... First of all part of that has been left out of your paper work. They gave you the conclusion, but not the staff report of that time. Nor did they give you the discussion of the ADB. Most of that was based on area. There was no mention of the lighting. There was no discussion of how many signs there was going to be on the property. There was no discussion of whether this was going to be obtrusive or garish or how it affected people who could view this from adjacent properties. Staff knew very well my concerns about the lighting and the glare. I would suggest that there has never been an application for the gas pump station or the new colors. Nor has there been any discussion on the ADB level for the changes to the color of the canopy, itself. I would suggest that the ADB was shorted by staff on information. They made their discussion basically on square footage, which it complies with. I would suggest that the Hearing Examiner needs to address some of those issues that I mentioned since they were left out of the ADB report and their discussion. Mr. Hertrich: The history of this building began many years ago, of course. But the most recent was in 1989 (or 1987) when the application was made to paint the building gray and the canopy gray. There was no application for a sign on the canopy at that time. In 1987, the ADB considered this signage again and made comments to the fact that red was a garish color. That was 1.25.88, and that was in 1987. They suggested that signage could be placed underneath the canopy. There has been no attempt to put this signage under the canopy where there is room. I will present evidence of other locations that have signage under the canopy which would not be over height. Mr. Hertrich: Also, this is in a BN zone and our code requires that the signage be considered the same as the downtown area. And the restrictions the ADB puts on the downtown are quite extensive. They are basically based on pedestrian view of the signage. A station in the downtown area reduced their signage down to two square feet on the canopy (a small little spark) in an attempt to comply more with the requirements, the feelings of the ADB and the look of the downtown area. This area should be treated the same as the downtown area as the code has stated a number of times. Mr. Hertrich: I have a letter from a lady who signed in but couldn't stay. She'd wrote this letter at the time of another hearing and I would like to present it. Her name is Ann Spivey. She was at dinner at our house one evening... Mr. McConnell: I will identify her letter as Exhibit B. Mr. Hertrich: Okay. Basically, she viewed the glare and the color, etc. and the sign shining through the front room window. She expresses her shock and dismay at what they have there. 20.85 is the requirements for variances, and I find that there is nothing that has been presented so far by the applicant or by the staff that actually satisfies that requirement. Let's see, I am trying to find where it was here. Excuse me. There are too many sheets of paper and I apologize. I left out the best part. Number one, the applicant has not proved that there were any special circumstances. The approval of the ADB does not constitute as special circumstance. Let me read this exactly. The ADB approval of the proposed sign based on the specific design of the canopy, the location of the sign or compliance with the ADB criteria or comprehensive guidelines are not special circumstances as defined in 20.85. These features of the sign do not involve size, shape, topography, location or surroundings of the property. I believe the applicant has failed to prove that a special circumstance exists. Especially since there are other locations that this sign could be put. Mr. Hertrich: 20.85 does not allow special circumstances predicated on the personal factor of the owner, including the fact or resulting from the actions of the owner or previous owner and the design of the canopy is a result of the action of the Verbatim Transcripts of Hearing Examiner Hearing File No. V-99-134 Hearing Date: August 19, 1999 Hearing Examiner: Ron McConnell Page 3 previous owners. The grant of the variance would be a grant of a special privilege. There is discussions of other stations, and I believe the code requires that you make comparisons to other businesses in the same vicinity or in the same zone. If you compare this sign to others in the area of Puget Drive or Olympic View Drive in that BN zone, there are no signs that are over height. So, it fails to meet the comparison basis of something that has been granted to other people in the same vicinity. It is difficult to compare... There is no competition for this gas station because you have to go several miles away and it stands on its own. It is not in the middle of Highway 99 with five other stations that are competing. Mr. Hertrich: In order to prove special circumstances... Well, first of all, I don't believe those special circumstances have been proven and the detrimental affects are going to be exhibited in the photographs that I will give you, which there are a number of. The first set of photographs will be all photographs from my house —my front room. There is a group of them here. They are basically shown in the nighttime. These photographs were not available at a previous hearing on a similar subject because these were not lighted. Now they are lighted. Okay. Mr. McConnell: I will enter the photos from your house (Mr. Hertrich's house) as Exhibit C. Mr. Hertrich: Thank you. Next, the issue of where the signs could be placed. I have a series of photographs of existing stations in the City of Edmonds where advertising is placed (either using logos, gas prices, full name of the company) underneath the canopy. I would like to present these photos. Mr. McConnell: These are photos with signs underneath the canopy? Mr. Hertrich: Yes. This would be included ... Mr. McConnell: That would be Exhibit D. Mr. Hertrich: And, I guess these too. You should never try and collect photos after having them in a file for over a year. It takes quite a bit of doing here. The last photo is an example of a station that has no signage on the canopy at all. That is over near Lake Ballinger. Mr. McConnell: Okay, the photo of the canopy with no signage will be Exhibit E. Mr. Hertrich: The ADB, as I mentioned, did not discuss scale. Nor did they discuss the change of the colors on the canopy. We have been discussing a three-foot diameter circle approximately seven square feet three places on the canopy. But, with each one of these there is a flare (a red splash as you might call it) which strictly interpreted could be considered part of the signage. Or it could be part of the color of the canopy. It is difficult to decide. But, the decision to change the colors never came in front of the ADB. At the same time, my comments about the increased signage and coloring and changing of the gas pumps shows that that color scheme is also displayed with their basic red and white colors. That is the last series of photographs I have. Oh no, excuse me. I have .... Mr. McConnell: So, the photos showing the canopy with the logo and the flare will be Exhibit F. Mr. Hertrich: I have an additional photograph of the canopy downtown to indicate the minimum (dealing with scale) amount of approximately two square feet (that couple of little tiny sparks up there). This differs from the scale on this location. The canopy is just a few inches higher and lower than the circle, itself. Mr. McConnell: The photo with the canopy... How do you want to call that? Mr. Hertrich: No signage. Use of a canopy without signage, indicating that it is done. The scale, as I mentioned downtown, is very small. It has been highly reduced and hardly shows at all. I don't know the height of the canopy. That canopy might be under the 14-foot height. I would leave that question open. It has been my experience that another Texaco sign that was put on a canopy was put on in a much smaller scale at Five Corners. I believe some of that package was done on a wall graphic basis before they clarified the code. Mr. McConnell: Is that still there at Five Comers? Verbatim Transcripts of Hearing Examiner Hearing File No. V-99-134 Hearing Date: August 19, 1999 Hearing Examiner: Ron McConnell Page 4 Mr. Hertrich: I think it is. They put several things up there. But, when we are talking about logos, I think that was included as a wall graphic. I did some research on this, but it has been quite a while ago. Basically, I would suggest that since 20.85 requires all items to be satisfied, that they haven't been. And that this variance should be denied. Let's see if I forgot anything. I think it is real important to note (and I have to underline this because I have dealt with staff over time and they have been very polite about a number of these things) that I have not found them very helpful for my case because I am not the applicant. When they leave out things like visibility... Where is it seen from? Is it seen from a strictly commercial area or is it really seen from the adjacent residential properties, which the code states we try to protect from all sorts of influences (noise, light, glare). This has been left out of their reports and it is either done to simplify the process or just to left out as something that they might expect me to be there to report on. But, I shouldn't have to be there every time. That is my point. I really feel that they have also failed in recognizing the fact that there are requirements for those things that were never brought to the ADB (the color and design of the pumps and the canopy colors). At no time has staff ever, even though testimony has been in front of them several times about the scale of this thing... It is huge, and it is lighted. The ADB, with all of the things on their agenda, this was a real simple slam-dunk deal. There's a canopy that meets the square footage. So, go for it guys. No discussion time. We have bigger things to do. If some of these issues would have been brought up in front of them, I think they would have had a very good discussion. Unfortunately, they missed all of my participation. Therefore, they missed that introduction of evidence. Mr. McConnell: Thank you. Response from the applicant? Just state your name again for the record. Mr. Rottrup: My name is Lowell Rottrup. In regard to the Five Corners Deli, I was personally involved in the installation of those signs. Actually, the Texaco letters are used up there, but they are a smaller scale. But, I believe (and I haven't got the exact square footage) that it would be more than 21 square feet if we did measure those signs up there on that canopy. In talking to Mr. Mehdi, the owner, he has had several folks who have inquired about the notice that was posted on the station because of the hearing. We don't have names and addresses and phone numbers, but several residents have commented favorably about the way the station is. It is impossible to provide you with that .... My comment is one of fairness. With due respect to Mr. Hertrich, I understand his concern. On the other hand, I am not sure if reasonableness is a part of the process here. I know that there is a lot of history with this location, going way back even before the 80s when it was built. So, I want to comment that the owner has had a lot of favorable response to the way things are and we are not trying to be garish or obtrusive. The light... I don't know what the code says. I am ignorant there, and I apologize for that. But, I believe that lighting is allowed. We would like to keep that in place, if possible. That is all of my comments. Mr. McConnell: Okay, staff? Mr. Bullock: Mr. Examiner, thank you. I have a couple of things that I would like to address regarding Mr. Hertrich's comments. First of all, some of my take on his comments are that if Mr. Hertrich disagrees with a position that the staff or the ADB has, then he chooses to say that they haven't addressed the issue, not that they just don't agree with him. Some of the things that he has brought up today —that the ADB has not reviewed the number of signs, that they have not reviewed the change in canopy color, and that they have not reviewed some of those things —are false. The project actually went before the ADB last spring (and this is a year ago spring) for a change in colors of the whole complex. That included the change of colors for the canopy and a change of the freestanding sign. That proposal actually included a change in colors to the face of the building. The ADB reviewed the project and denied the change for the face of the building, but approved it for the canopy and the freestanding sign. The ADB has reviewed this project for some of the things he says that they have not. They have reviewed it for the number of signs. They have reviewed it for the lighting that is happening on the site. They have found those things not to be obtrusive or garish, not that they haven't made a decision on it at all, as he seems to imply. Mr. Bullock: I would direct your attention to one of the photos in the photos that he submitted. This one that I put on the front of his envelope C, is in my mind, the clearest image that he has shown of what the illuminated sign looks like from inside his house. It is a round circle, with a star and a T in it. To me, it is a very small part of his entire view. The ADB agreed with that determination when they reviewed this just a month and a half ago. They felt that the lighting and the sign was not obtrusive and such a small part of the entire landscaping that could be seen that it was not an issue. Therefore, they approved it as not being garish or obtrusive. I found it interesting that some of the other photos that Mr. Hertrich has submitted showing signage underneath the canopies crop off the canopy to eliminate the signage that is actually on the canopy. I know some of those canopies, from personal experience, and know that there are signs on the canopies. Verbatim Transcripts of Hearing Examiner Hearing File No. V-99-134 Hearing Date: August 19, 1999 Hearing Examiner: Ron McConnell Page 5 Mr. Bullock: Getting back to the issue of a variance. Mr. Hertrich has, first of all, asked the Hearing Examiner to make some decisions on the design review element of the project. I know that you are fully aware of what things that you can be reviewing on this application. That is the variance issue —he height of these three logos mounted on the facia of the canopy. In sticking with just those issues, Mr. Hertrich has seemed to place the bulk of his argument on whether or not this project meets the special circumstances requirement of the variance criteria. City staff s position on previous variance requests and on this one, as well, is that the canopies are located at the height they are located for safety purposes. The vehicles that service and provide the gas for the stations, typically on a small site like this, have to be able to maneuver underneath those canopies. Commercial vehicles and then also other taller vehicles that come to the site for their gas need to be able to get under the canopy in a safe manner without causing any potential for hazards or risks. That has been the determining factor on how high the canopy is. The location of the signs on those canopies is not an action of the owner by their desire to raise it up above the height limit. It is because that is where the canopy is. That is why they are requesting to locate it there. We have found in the past on other variance applications, and in this case as well, that that presents a special circumstance in regards to signs and gasoline canopies. I think with that, I would conclude my remarks. Mr. McConnell: Okay, anything new or different that I haven't heard? Mr. Hertrich. Mr. Hertrich: Thank you. In regard to cropping off the signs, I was making a point about location and where advertising could be placed so that you are not required to put them on top of the canopy. You are not limited only on putting them on top of the canopy. You can put them underneath. Then they would comply and we wouldn't be in front of you today. Steve mentioned the looks of the sign. He doesn't realize that as it gets darker and darker, that light becomes more and more glare. I thought I gave you a photograph of this, but at a different time of night (same camera, cheap camera)... Mr. McConnell: I will put that in with Exhibit C. Mr. Hertrich: But, that one indicates the kind of glare that you get. Actually, you get a red color on the far wall in the house. That is how much you get. The ADB reviewed, the last time around where you didn't get the full input... Mr. McConnell: I will tell you what I will do. After the hearing, I will stop down and pick up the ADB record and enter it as Exhibit H. Mr. Hertrich: I would appreciate that because that tells you what they discussed. Mr. McConnell: Okay, I will enter the ADB record as Exhibit H and pick it up on my way out. Mr. Hertrich: And, if there was any discussion previously about the signage, it was specifically left out in discussion on the canopy because the wall graphics were not part of the application. So, that part of it was left out. There was never, that I know of, any discussion on the change to the gas pumps and the coloring. I could be proved wrong, but that is what I feel. The ADB, certainly if you read the record, did not discuss any of those things that are important to their normal decision (scale and their effects to the surrounding community, etc.). I am not arguing the height of the canopy. I am arguing the location of the signs. I am not arguing the area. That is allowed. But, you cannot base this on other applications. It is not in the criteria for 20.85 and Steve knows that. No matter what decisions you have made and whether they are good decisions or errors you have made in using the variance criteria does not count in this regard. This stands on its own. Thank you very much. Mr. McConnell: Anything further from the applicant? Anything further from staff? Okay, I will close the hearing and have a written decision out in two weeks. These are the official transcripts of the Hearing Examiner Hearing dated August 19, 1999. I testify that they are accurate and complete. Verbatim Transcripts of Hearing Examiner Hearing File No. V-99-134 Hearing Date: August 19, 1999 Hearing Examiner: Ron McConnell Page 6 Karin Noyes, Transcriber Date Verbatim Transcripts of Hearing Examiner Hearing File No. V-99-134 Hearing Date: August 19, 1999 Hearing Examiner: Ron McConnell Page 7