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Res 1769 - 2875 Newberg Hwy COUNCIL BILL NO. 2534 RESOLUTION NO. 1769 A RESOLUTION DENYING VARIANCE APPLICATION 04-10 FOR THE PROPERTY LOCATED AT 2875 NEWBERG HIGHWAY. WHEREAS. Variance Applicatian 04-10 was made for variance of the standards contained in Sections 11 (C) (5) and (6) of Woodburn Sign Ordinance No, 2092 ("the WSO") to allow WESMAR to increase the height of its sign from the 35 foot maximum sign height allowed by the WSO in the CG zone to 41 '12 feet and to increase the square footage of its sign from 75 to 140.4 square feet; and WHEREAS. the Planning Commission conducted a public hearing on July 22. 2004, considered the testimony. and denied the application; and WHEREAS, WESMAR appealed the Planning Commission's denial of Variance Application 04-10 to the City Council; and WHEREAS. the City Council conducted a public hearing at its September 27, 2004 meeting, considered the testimony. and directed staff to prepare written Findings and Conclusions denying Variance Application 04-10; NOW THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. The City Council denies Variance Application 04-10 based upon the Findings and Conclusions contained in Exhibit "A" which are attached hereto and by reference incorporated herein. Approved as to form: Cf). ~~ Approve ID/6/20"'+ Date / . City Attorney Passed by the Council Submitted to the Mayor Approved by the Mayor October 12, 2004 October 12, 2004 Filed in the Office of the Recorder October 12, 2004 ATTEST: Mary Ten nt City Recorder City of Woodburn. Oregon Page 1 - Council Bill No. 2534 Resolution No. 1769 T' .,,----- .-..............-........'.....'..-.."..... .-....-....-., --------. 11 , '--r EXHIBIT "A" FINDINGS & CONCLUSIONS Variance 04-10 I. APPLICATION INFORMATION Applicant: Donald Kelley, Attorney for WESMAR 110 N. Second Street Silverton, OR 97381 Property Owner: WESMAR Land Company 42874 Old Wingville Road Baker City, OR 97814 Application Deemed Complete: June 17, 2004 120-Day Rule Deadline: October 15, 2004 II. NATURE OF APPLICATION: WESMAR Land Company ("WESMAR") requests a variance to the standards contained in Sections 11 (C)(5) and (6) of Woodburn Sign Ordinance 2092 ("the WSO") to allow WESMAR to increase the height of its sign from the 35 foot maximum sign height allowed by the WSO in the CG zone to 41 Y, feet and to increase the square footage of its sign from 75 square feet to 140.4 square feet. III. RELEVANT FACTS: The subject site is located at 2875 Newberg Highway. It is further identified on Marion County Assessor Maps as Township 5 South, Range 2 West, Section 12AC, Tax Lots: #4900 and 5000. The subject property is zoned Commercial General (CG), designated commercial on the Woodburn Comprehensive Plan Map, and is located approximately 440 feet east of Interstate-5 (1-5) and its interchange with Newberg Highway. WESMAR is the landowner. Wendy's restaurant (2,726 square feet in size) and associated parking spaces occupies the subject site. WESMAR owned the 41 Y, foot tall 140.4 square foot Wendy's pole sign located near the north edge of Newberg Highway. Wendy's sign was installed before the City of Woodburn adopted the WSO. Pursuant to the WSO, the City recognizes the sign as a non- conforming sign. The surrounding properties are also zoned CG and designated commercial on the Woodburn Comprehensive Plan Map. Commercial businesses surround the subject site. The Oregon Department of Transportation (ODOT) condemned a portion of the subject site adjacent to Newberg Highway and has removed the nonconforming Wendy's sign to allow for the widening of Newberg Highway. Removal of the Wendy's pole sign, which was located on the land that ODOT is condemning, is Page 1 - Findings and Conclusions '1 , ~I part of the ODOT condemnation proceeding for which WESMAR will receive just compensation for the property taken. WESMAR may purchase the removed sign from ODOT or its contractor. The current Newberg Highway I 1-5 interchange improvement is an interim improvement to the northeast quadrant of the interchange. ODOT is planning to complete the improvement to the entire interchange, which will require acquisition of lands, and probably signs, from other owners in the vicinity. Section 13(C) of the WSO requires a nonconforming sign to comply with the provisions of the WSO if a nonconforming sign is relocated from one location to another location. The standard contained in the WSO, which was applicable until July 1, 2004, allowed a freestanding sign up to a maximum height of 35 feet and a maximum area of 75 square feet. WESMAR submitted variance and sign permit requests to enable the removed nonconforming sign to be relocated on the subject property. The variance application was filed on May 27, 2004. Consequently, it is subject to the standards in the WSO, not the newly adopted sign ordinance incorporated into the Woodburn Development Ordinance (WOO) effective July 1, 2004. WESMAR requests a variance from Section 11 (C)(5) and (6) of the WSO to allow the relocated free standing sign to exceed the required 35 foot maximum sign height and 75 square foot maximum sign area allowed in the CG zone for an individual business. The height variance is to exceed the maximum standard by 6.5 feet and the area variance is to exceed the maximum standard by 65.4 square feet. On the same day that WESMAR filed the variance request to relocate the nonconforming sign, it filed a separate sign permit application for a new Wendy's sign that would be 15 feet and 10 inches tall with an area of 54 square feet. The requested sign permit, for a sign that is shorter and smaller than what is allowed by the WSO, was administratively approved on June 28, 2004 and the sign has been placed on site. IV. RELEVANT APPROVAL CRITERIA: WOODBURN SIGN ORDINANCE (Ordinance 2092) Section 11 (C)(5) and (6). Signs in Commercial and Industrial Zones Section 13. Nonconforming Signs WOODBURN DEVELOPMENT ORDINANCE (WDO) Section 5.103.11 Variance V. BURDEN OF PROOF. The applicant for a land use application has the burden of proving that the application meets all applicable approval standards. Fasano v. Washinqton Co. Comm., 264 Or 547, 586, 507 P2d 23 (1973). It is also the applicant's legal responsibility to make certain that the record is adequate to Page 2 - Findings and Conclusions .' .,......y... .-.--- ~.-"._.,_..-.~_.. ,.,-- ,- -'~-'-~----'"- 11 , support granting the application. Toth v. Curry Countv, 22 Or LUBA, 488, 493 (1991). VI. FINDINGS: WOODBURN SIGN ORDINANCE (Ordinance 2092) Section 11. Zoning District Regulations C) Signs in Commercial and Industrial Zones No sign or outdoor advertising of any character shall be permitted in a CR, CG, 10, CB, IS, IP, IL or IH zoning district except the following: (1) A total of 2 signs per each business, which may be wall signs or roof signs, the total combined area of which shall not exceed 50 square feet or 1 square foot per foot of frontage, which ever is greater. (2) Only one projecting or free standing sign is allowed per business. .. . (5) Free standing signs are limited to a maximum height of 35 feet. (6) Free standing signs are limited to a maximum of 75 square feet in area. FINDING: WESMAR is allowed only one free standing sign on the property. One free standing sign, a 15-foot-10-inch tall sign; has been approved and installed on the property. That approval was not conditioned on the outcome of this application. Approval of this sign permit would allow a second free standing sign on the property in violation of the WSO. If Variance 04-10 were approved, a condition requiring removal of the previously installed sign would have to be imposed so that the WSO one-sign requirement is not violated. Section 13. Nonconforming Signs (C) Nonconforming signs shall comply with the provIsIons of this ordinance when one or more of the following occurs. (1) A nonconforming sign is relocated from one location to another location. Page 3 - Findings and Conclusions ...., ... FINDING: ODOT condemned a portion of the subject site adjacent to Newberg Highway to allow the widening of Newberg Highway and has removed the 41 Y:z foot tall and 140.4 square foot sign that was located on WESMAR's property. WESMAR wants to relocate its condemned and removed nonconforming sign to another location on its property. When a sign is relocated, the WSO requires a sign to comply with WSO standards, or obtain a variance. For the owner to relocate the sign, the WSO requires the sign to be reduced in height by 6.5 feet and in area by 65.4 square feet in order to comply with applicable standards of the WSO. WESMAR requested a variance to Section 11 C(5) and (6) of the WSO to allow it to relocate the sign to another place on the site and to exceed the required 35 foot maximum sign height and 75 square foot maximum sign area allowed in the CG zone for an individual business. VARIANCE PROCEDURES The WSO provides in Section 14. Variance, that "all request[s] for variances to this ordinance shall be processed in accordance with the variance procedures set forth in the Woodburn Zoning Ordinance." The Woodburn Zoning Ordinance was repealed in 2001 and replaced by the Woodburn Development Ordinance (WOO). The variance procedures in the WOO apply to this application. Section 5.103.11 Variance C. Criteria. A determination of whether the criteria set forth are satisfied necessarily involves the balancing of competing and conflicting interest. The factors that are listed to be considered are not criteria and are not intended to be an exclusive list. The factors to be considered are used as a guide in deliberations on the application. FINDING: The variances must be denied because WESMAR has not proven that the variance criteria discussed below have been met. 1. The variance is necessary to prevent unnecessary hardship relating to the land or structure which would cause the property to be un buildable by application of the WDO. Factors to consider in determining whether hardship exists, include: a. Physical circumstances over which the applicant has no control related to the piece of property involved that distinguish it from other land in the zone, including but not limited to lot size, shape, topography. Page 4 - Findings and Conclusions . -----..,.. b. Whether reasonable use similar to other properties can be made of the property without the variance. c. Whether the hardship was created by the person requesting the variance. FINDING: WESMAR states the following: "...ODOT has filed a lawsuit to condemn the sign and that portion of the subject property that contains the sign. ODOT has now removed the Applicants' sign. The Applicants hold a vested right to continue the use of the sign at its present height and area size. The State of Oregon has violated that right. The City of Woodburn, a municipal corporation of the State of Oregon, should not cooperate in taking the Applicants' vested right. In other words, two entities of the state, a department and a municipal government in this case, should not be able to come together to remove a vested right held by the Applicants. Removed from its current location, the sign is unusable without a variance for its height and area. Again, this factor is not directly applicable to this request because it relates to the subject property and not the sign. If the sign is removed, the applicants' business will be severely damaged. The Wendy's Restaurant, like other restaurants in the vicinity, depends heavily on its sign to attract business, especially drivers coming in off of 1-5 and Highway 214. The Applicants did not create the hardship. ODOT seeks condemnation of the sign and that portion of the subject property holding the sign. ODOT's condemnation action and effort to remove the sign is the cause of the hardship. The Applicants will suffer further hardship economically if their vested right in the sign at its present height and area size is taken from them because a new sign would be far less visible from 1-5. Likewise, the Applicants' competitors' signs (i.e., McDonalds and Kentucky Fried Chicken) are not under the same threat of condemnation and are in many cases taller and larger. Applicants should not be forced to a competitive disadvantage by the removal of their sign. . . " The focus of this first criterion is whether there is a hardship which would "cause the property to be unbuildable" if the applicable standards are imposed without a variance. The three factors of the first criterion are' measures for determining whether there. is a hardship. If there is no hardship the first criteria is not satisfied. WESMAR has not demonstrated that this criterion is satisfied because denying the sign variance cannot Page 5 - Findings and Conclusions - - .~..,.. make the parcel unbuildable. The parcel is buildable. In fact, the property is developed with a restaurant. Even if the City concluded that a sign could be relevant to whether a property was buildable, the application still would not satisfy the first criterion because a freestanding sign can be developed on the parcel. WESMAR applied for a permit to construct, and has constructed a 15-foot 10-inch tall sign with a sign area of 54 square feet. WESMAR argues that the "sign is unusable without a variance." The criterion is not concerned with whether the sian that was taken down is "usable." It is concerned with whether the orooertv is "unbuildable." Again, it is noted that the condemnation process assures that WESMAR will be paid just compensation for the value of all property condemned by ODOT. Since there is substantial evidence to support the conclusion that the property would not be rendered un buildable without varying the sign standards, the application could be denied on this basis. Nonetheless, each of the factors for determining whether a hardship exists will be addressed next. Factor 1.a. requires WESMAR to address whether there are physical circumstances over which WESMAR had no control related to the property and whether those circumstances distinguish the property from other land in the zone. The taking of a strip of WESMAR's land for right-of-way improvements and the removal of a nonconforming sign are physical circumstances over which WESMAR had no control and those circumstances relate to the subject property. However, the circumstances do not distinguish this property from other parcels in the CG zone. Other commercially zoned properties fronting Newberg Highway east of the 1-5 interchange are in the same predicament as WESMAR's site because their signs have been, or may in the foreseeable future be removed due to condemnation of land to allow for improvement of the interchange. Factor 1.b. requires WESMAR to address whether reasonable use, similar to other properties, can be made of the property if no variance is granted. WESMAR has provided no evidence to prove that reasonable use of the property cannot be made without the variance. WESMAR argues that its business will be severely damaged without the variance because it depends heavily on the sign to attract business. WESMAR's argument essentially addresses the profitability of the use not whether the property can continue in restaurant use. Factor 1.c. requires WESMAR to address whether it created the hardship. WESMAR was allowed a 35-foot tall sign with an area of 75 square feet had it applied for one. Instead, WESMAR submitted two applications, one Page 6 - Findings and Conclusions . '--r-'" '. -." -.--...." ..-"-0 "11 1 r for this larger sign that requires a variance and the other for a smaller sign 15-feet and 10-inches in height and 54 square feet in area, which staff approved on June 28, 2004. This smaller sign was then erected by WESMAR on the property. If there is any hardship created by a shorter or smaller sign, WESMAR created at least part of the hardship by failing to apply for a taller and bigger sign that was allowed. WESMAR argues that the taller sign is needed to attract people from 1-5. WESMAR's property is located approximately 440 feet east of the Interstate-5 (1-5) right of way. The affidavits submitted by WESMAR contain stark conclusions which are unsupported by facts in the record. WESMAR has not submitted a visual study or any other evidence that a free standing sign 41 Y, feet in height and 140.4 square feet in area would be visible from 1-5 or that a free standing sign 35 feet in height and 75 square feet in area would not be visible from 1-5. WESMAR's business is identified on ODOT informational signs located on the north and south bound lanes of 1-5. 2. Development consistent with the request will not be materially injurious to adjacent properties. Factors to be considered in determining whether development consistent with the variance [is] materially injurious include but are not limited to: a. Physical impacts such development will have because of the variance, such as visual, noise, traffic and drainage, erosion and landslide hazards. b. Incremental impacts occurring as a result of the proposed variance. FINDING: WESMAR states the following: "...If ODOT is unsuccessful in its condemnation action, the sign will remain in its current location on the subject property and at its current height. If ODOT is successful, the sign will be moved to a new location on the subject property. Moving the sign to a new location on the subject property but maintaining it at its current height of 41 Y, feet will have little physical impact on the adjacent properties. Already the area is heavily developed as a commercial center. Other signs in the area are of equal or greater height. Maintaining the sign at 45 feet will in no way affect traffic, noise, drainage or any other factors. Visually, the sign's height is consistent with the abundance of other signs of similar height in the area and the fact that the sign would remain at its current height, there would be no additional impact because nothing would change from how it is presently. Page 7 - Findings and Conclusions 'II , ---r As mentioned above, there will be no impact from the variance because the sign will remain at its current height. . . " If WESMAR's variance to allow a 41 Yo tall and 140.4 square foot free standing sign is granted, then other businesses along Newberg Highway that have had signs removed and businesses who may have their signs removed in the foreseeable future could also argue that they should be able to have taller and larger signs than the WOO allows. The impact of allowing a taller and larger sign for a business in the CG zone than the Woodburn Sign Ordinance allows is more sign clutter along Newberg Highway than the Woodburn Sign Ordinance intended. Although affidavits containing unsupported conclusions have been submitted, WESMAR has not defined the area of analysis for surrounding signage and has not provided an inventory of the existing signs in the area of the subject site to prove that other signs in the area are of equal or greater height. Other signs exist within the area of the subject site that meet the 35 foot free standing sign height and 75 square foot area requirements. 3. Existing physical and natural systems, such as but not limited to traffic, drainage, dramatic land forms or parks will not be adversely affected because of the variance. FINDING: WESMAR states the following: "". As stated above there will be no adverse affects from the variance. The area is highly developed in commercial use. There are no natural systems in the area. Physical systems, such as traffic will not be impacted by the height of the signs. Dramatic land forms or parks are also absent in the area. There will be no adverse affects as a result of this variance..." This criterion requires WESMAR to address whether the variance will adversely affect the manmade or the natural environment. There are no dramatic land forms or parks in the area to affect. However, WESMAR did not provide any evidence that a taller and larger free standing sign would not adversely affect the traffic system due to its larger size and taller height than the WSO allows. WESMAR's statement again consists of stark conclusions unsubstantiated by supporting facts. A substantial reason for the sign ordinance regulations is to improve the beauty of Woodburn by controlling sign clutter. WESMAR has not addressed the effect of sign variances on this aspect of the City's manmade environment. Page 8 - Findings and Conclusions ~ "... '~ ~"'e"_.'W"'._'_'+_'______'_.""'~_ 11 r --- --r 4. The variance is the minimum deviation necessary to make reasonable economic use of the property. FINDING: WESMAR states the following: "".Either the variance is granted or the sign loses all value. The sign has a height of 41 Y, feet. There is no way to make the sign shorter and, therefore, a lesser variance would be meaningless. Without the variance, the sign has no economic value. The requested variance is the minimum deviation necessary to make reasonable economic use of the property "." This criterion asks for information as to the minimum variation from applicable development standards that would allow WESMAR to make a reasonable economic use of the property. The "property" that the variance is concerned with is the lot or parcel that is the subject of the application. It is not the personal property or fixtures attached to the lot or parcel, such as a sign. WESMAR has provided no evidence that a 75 square foot free standing sign, 35 feet in height, that was allowed by the WSO, or the approved 15 foot 10 inch, 54 square foot sign, would not provide reasonable economic use of the parcel. WESMAR's site has direct visibility from Newberg Highway. Customers can identify WESMAR's business with a shorter, smaller sign. WESMAR has not provided sufficient justification that the existing sign face cannot be modified to meet the 75 square foot sign area requirement or the 35 foot tall sign height requirement or could be used at another Wendy's location, or even that they have any property right in the sign which is being taken by OOOT and for which the owner will be compensated. 5. The variance does not conflict with the Woodburn Comprehensive Plan. FINDING: WESMAR states the following: ".. . The area in which the subject site is located, the 1-5 Interchange", is discussed in several parts of the Woodburn Comprehensive Plan (WCP). See WCP, pp. 14 and 79. the WCP recognizes the commercial importance of the 1-5 interchange area. Inherent in that recognition is the fact that commercial businesses need signs. In particular, businesses reliant on 1-5 traffic for their customers need signs that are visible to those traveling on 1-5. goals and policies related to Commercial Land Development contain no mention of signs. WCP, pp. 47-48. the City's Sign Ordinance is discussed generally at pages 81-82 of the WCP, especially with regard to safety and aesthetics. It contains no discussion of sign height and contains nothing that this variance Page 9 - Findings and Conclusions 46 "._.......-".-' .~..~.._---_._- '1 , . ......,. request would conflict with. The height variance, as discussed above, will have no impact on either of these factors. This request for a variance in no way conflicts with the WCP..." The Woodburn Comprehensive Plan does not provide any goals, policies or specific regulations pertaining to signage on the subject site. The Woodburn Comprehensive Plan does not apply, therefore, this criterion does not apply. VII. WESMAR'S LEGAL MEMORANDUM: At the September 27, 2004 public hearing, WESMAR submitted a Legal Memorandum regarding the existence of "vested rights". It is appropriate to briefly address this memorandum. First, contrary to the memorandum, the "vested rights" concept is not relevant to this application. A vested right is a legal term of art requiring a judicial determination as to whether a property owner has substantially established an inchoate use so that the owner's ability to continue to establish that use is protected. See Clackamas Countv v. Holmes. 265 or 193, 196-197, 508 P2d 190 (1973). By way of comparison, the "nonconforming use" concept affords limited legal protection to an established use that does not comply with new regulations. A nonconforming use is a use that is in existence at the time of a change in regulations that is allowed to remain in existence until a "triggering event" occurs and the existing regulations are applied. The vested rights analysis set out in the memorandum does not apply to WESMAR's application because WESMAR's sign was a fully established nonconforming sign that was allowed to remain under the WSO subject to the occurrence of certain triggering events specified by the WSO. Pursuant to Section 13 (C) (1) of the WSO, when the sign was relocated because of ODOT's condemnation of the property, a triggering event occurred. The WSO then required the sign to comply with its height and size restrictions. Second, regardless of the appropriate legal concept, the memorandum states that the City is taking a property right from WESMAR without paying just compensation. Contrary to the memorandum, it is ODOT that has taken property from WESMAR and will pay WESMAR just compensation. The City is simply applying the terms of its regulations as provided in the WSO. VIII. CONCLUSION: WESMAR has not met its burden of demonstrating that the relevant approval criteria related to Variance 04-10 have been met. Therefore, and the application should be denied. Page 10 - Findings and Conclusions 47 ...r . --'-r