ELECTRONIC SIGN COMING TO CITY---DESPITE BAN. WERE P&Z’S HANDS (REALLY) TIED?

The legal requirements for obtaining a “variance” (i.e. an exemption) from local zoning requirements are pretty clear.

Applicants have the burden of showing that “special conditions” and “practical difficulties or unnecessary hardships” exist peculiar to their property (i.e. piece of real estate) AND that the variance won’t be “materially detrimental” to the public welfare or injurious to property in the zone or neighborhood where the applicant’s property is located.

The Planning & Zoning Commission (P&Z) is charged with safeguarding “public health, safety, morals and general welfare” and doing “substantial justice” when deciding whether to grant variances.

In addition Highland Heights Ordinance 1113.10, titled “Standards for Granting Variances,” explicitly states:

"A variance merely permits that which is contemplated in this Zoning Code under certain conditions. On the other hand, that which is not contemplated, but deemed desirable, in this Zoning Code, should be effected by amendments to the Zoning Code or Map." Emphasis added.

In other words, P&Z can grant exemptions from specific existing code requirements but, in doing so, can’t change, expand, amend or add to the existing zoning code.

I thought about §1113.10 during last Monday's P&Z meeting, while listening to the discussion about Security Self Storage’s (SSS) application to install a proposed LED electronic sign on its Bishop Road property.

P&Z was dealing with a zoning code that contains specific sign requirements but was enacted before digital/electronic signs came into existence.

The demarcation line set out in §1113.10 proved to be a very fine line-----one perhaps crossed---when P&Z approved variances, allowing the sign to be erected.

Since Law Director Tim Paluf was in attendance (a rare occurrence), I expected him to ensure that the discussion stayed focused on whether SSS established the legal requirements for obtaining a variance.

For whatever reason, however, Paluf sat silently through most of the meeting.

When directly asked a question, he responded (usually by agreeing with whatever he was asked), but that was it.

P&Z was pretty much left to its own devices and (in my opinion) seemed to make decisions based mostly on its own sense of "equity" and, to a lesser extent, business economic concerns.

BACKGROUND

Security Self Storage (SSS) first applied for a variance in December 2013.

According to minutes from the December 9th P&Z meeting a representative for Security Self Storage:

" …stated they are proposing to replace the existing, antiquated 13-year old, 50 square- foot double-faced ground sign with a 56 square-foot double-faced internally illuminated LED ground sign. 
The proposed sign is 11 inches taller than the existing sign and will be mounted on the existing foundation posts. 
The sign will be over 50 feet away from Bishop Road and the overall lighting can be easily dimmed by software so as to not be a distraction.  He said the sign will be non-flashing….
Law Director (Tim) Paluf replied (to concern expressed by a P&Z member that) the City may consider requiring variances or ruling on the merits of reasonableness, nuisance and ability to control.  Mr. (Bob) Mastrangelo and Law Director Paluf stated variances would be needed for sign size, height and number of colors for the proposed LED sign….”    
  http://www.highlandhts.com/docs/planning_and_zoning/meeting%20minutes/2013/12-09-13_P&Z_minutes.htm

Norm Kotoch, one of SSS's owners, had a different recollection of the December 9th discussion.

Last Monday he told P&Z:

“I am confused. At the last meeting, when this was set down for a public hearing, we discussed a variance for height.
We no longer need a variance for height.

Our position is that we don’t need any variances for the sign.”

“Originally when we appeared in December…the only variance the city said we needed was a height variance.
This has been a moving target.  I felt like it was personal.
The next day (after the December P&Z meeting) there is emergency legislation to stop the sign from being built.
At no time did someone  sit down with us and try to work this out.
I’ve waited 6 months patiently to be here and now the game’s changed again.”

THE JUNE 9TH P&Z MEETING

P&Z discussed 3 possible variances in connection with SSS's proposed electronic sign:

• A variance for excessive brightness/flashing signs ( §1145.03(c))
• A variance for a sign having more than 3 colors (§1145.03(j))
•  A variance for size (§1145.06(f)(1))
  

      BRIGHTNESS/FLASHING VARIANCE

After hearing from Norm Kotoch, P&Z decided that no variance with regard to brightness or flashing was necessary.
Kotoch assured the Commission that the proposed sign:

"…will not be excessively bright or flashing…
There is a photocell attached to the sign…that works within federal standards to make sure the sign is not excessively bright….
The sign is manufactured to avoid excessive brightness…
We are not asking a variance to have anything moving.
The message will simply change, similar to the message board out here (referring to the Municipal Complex's "emergency red" electronic sign)..
We will not stream videos."

He later clarified that although the SSS electronic sign wouldn't be used to stream video, some of the advertising messages might have motion in them, i.e.:

"…maybe a moving truck moves from left to right on the screen."

As a further concession, Kotoch agreed not to use "transitions," such as spiraling to close messages.
He agreed that the sign---one of several owned by SSS throughout the area--- will simply instantaneously display one message after another.
DURATION OF MESSAGES
P&Z struggled mightily with a safety issue, specifically how long each advertising message would remain displayed.

P&Z members Bob Mastrangelo, Bill Urban and Anthony Valentino referred to documents and studies that recommended that electronic sign messages be displayed for a minimum of between 4 and 8 seconds before being replaced.

Mastrangelo, who at one point said that he thought 2 seconds "is too low," pointed out that the messages on the city's electronic signs were displayed for at least 3 seconds, suggesting that as a minimum standard.

Valentino noted,

“We are trying to create a baseline that we’re comfortable with here.
 5 to 8 seconds seems to be pretty reasonable from all the standards
  we’ve seen. Changing a message every 3 seconds is as distracting as a video.”

Kotoch claimed that 5 to 8 seconds was "an eternity" and that:

 "….8 seconds to me is not reasonable or safe"…

"The whole point is to have different messages.
To do that you have to change the copy…"

P&Z Chair Vince Adamus---who at one point said:

"We don’t want you to walk out of here without a variance"

seemed quite concerned about Kotoch's business needs, at one point commenting that transitions (between messages) "do nothing for him" because SSS can't make money with a blank screen:

 "He's not going to want lengthy transitions.”

As for duration, Adamus said:

"At 3 seconds you can see 2 messages driving by this place…"

“From their point of view, they have a hard time thinking of what’s the right amount of time. Almost to me it’s a private decision."

Adamus proposed allowing durations of between 2 and 8 seconds.

He got his way.

THREE COLOR VARIANCE
  Ordinance §1145.03(j) states:

"Not more than three colors may be used on the sign or signs of any one building.
 For purposes of this chapter, black and white shall not be considered colors. Colored light of indirect lighting shall be considered as one of the allowed colors." Emphasis added

Kotoch appeared successful in convincing P&Z not to be concerned about this requirement, stating that the proposed SSS LED sign came equipped with only 2 colors, orange and blue, in addition to black and white.

The rub here, of course, is that however many base color it comes equipped with, SSS's electronic sign will, in fact, "use" lots of different colors in its message displays---many more than just orange and blue.

If you've ever watched them mix paint at Home Depot you know what I mean.

Many different colors result from the mixture of base tints.

The messages displayed on the SSS electronic sign won't be just orange or blue.
They will be much more colorful.

Even Law Director Tim Paluf acknowledged that the proposed sign was

"technically more than 3 colors"

No matter. No problem.

I can't help but wonder if by allowing multi-colored electronic messages to be displayed on the SSS electronic sign, P&Z didn't take it up themselves to alter the city's zoning code--something they are not supposed to do.

SIZE OF SIGN VARIANCE

The current monument sign in front of SSS is non-conforming, yet there is no record that P&Z ever approved a variance from §1145.06(f)(1), allowing installation of such a large sign.

Law Director Tim Paluf vaguely explained:

“There was a court case that determined some things about the sign.”

The only case I found that seemed at all applicable was Kotoch v. Board of Bldg. & Zoning Appeals, a 1997 decision in which the 8th District Court of Appeals upheld Kotoch’s right to install the self-storage business on Bishop Road.
That decision (1997 Ohio App. LEXIS 4000) focused exclusively on whether a self-storage facility was a permitted use within a PCM District.
It says nothing about signage.

No matter.
Chairman Vince Adamus called SSS’s current sign “a legal non-conforming sign,” a description that Law Director Tim Paluf found apt.

P&Z’s focused on whether to approve a variance to allow SSS to install an even larger electronic sign, to replace its current 50 square foot monument sign.

Kotoch originally claimed,

“This sign is going to be the same size as what we currently have.”

When pressed, however, he conceded that that wasn’t the case.
He explained that the size of the overall sign was dictated, in part, by the size of the panels making up the electronic LED display.
The panels are a uniform 1 square foot each.
Kotoch said,

“I did talk to (the sign manufacturer).
The only way to reduce (the LED portion) is to take a whole foot out.”

When asked if he could reduce the size of the “cabinet” holding the electronic signboard, thereby reducing the size of the overall sign, Kotoch replied:

“We want to be able to read our name on top.
We did consider that.
We want to make sure the name is still readable.”

Interestingly, at no point did P&Z focus on, or discuss, whether Kotoch met his burden of establishing the legal requirements for a variance.

Business needs and practical difficulties in a general sense don’t count as part of that discussion.

Instead, according to §1113.10, applicants must show that some unique condition of their particular piece of real estate (in this case the SSS Bishop Road property) itself presents “practical difficulty” in the “strict application of the Zoning Code”.

Kotoch presented no evidence on that point.

Kotoch’s attorney, however, did dispute the applicability of §1145.06(f)(1).
He claimed, sign ordinance aside, that SSS could have up to 190 square feet of total signage---far less than what is currently erected on the property.

Perhaps sensing a possible legal battle, P&Z decided that adding less than an additional 10 square feet to SSS's current oversized monument sign was acceptable.

Only P&Z member (and attorney) Robert Warner voted against the variances.
He explained:

“No hardship was established.
The hardship must go with the property.
He (Kotoch) didn’t establish any of that.”