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20130116 HE Decision 03202013 4ufT"Epp City of Yelm 4 R1 Community Development Department 105 Yelm Avenue West P.O. Box 479 Y ELM Yelm, WA 98597 WASHINGTON March 20, 2013 William Trull II 801 Yelm Avenue West Yelm, WA 98597 RE: Bill's Towing Sign Variance VAR-20130116 Dear Mr. Trull: Transmitted herewith is the Report and Decision of the City of Yelm Hearing Examiner relating to the above-entitled matter. Very truly yours, STEPHEN K. CAUSSEAUX, JR. Hearing Examiner SKC/jjp cc: Parties of Record -1- OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO.: Bill's Towing Sign Variance VAR-20130116 APPLICANT: William Trull II 801 Yelm Avenue West Yelm, WA 98597 PLANNER: Gary Carlson, Building Official SUMMARY OF REQUEST: Variance to extend the maximum height of a pole sign from ten feet to 16 feet, seven inches. SUMMARY OF DECISION: See Decision PUBLIC HEARING: After reviewing Community Development Department Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows: The hearing was opened on March 11 , 2013, at 10:15 a.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: EXHIBIT "1" - Community Development Department Staff Report with Attachments GARY CARLSON, City Building Official, appeared and testified that the existing sign is not allowed and staff had suggested that the applicant apply for a variance. The site is within the C-1 zone classification in a commercial area. The property owner to the east submitted a letter asking questions regarding the variance. Mr. Trull started a towing -2- company in 1978 and has operated it and several other companies from the site. He no longer has a wrecking yard or vehicle repair shop at the site. The towing company is a nonconforming use. He found that a lesser variance meets the criteria as the sign code would deny the same height of sign that is allowed to other businesses. The present sign is a nonconforming structure but is an allowed use. A grade deferential exists between the street and the towing company parcel. The City built a two foot tall, retaining wall behind the sidewalk. The towing company must comply with the State law that requires an eight foot high fence. The code allows a maximum sign height of ten feet, but such a sign is not visible from the street due to the grade and the eight foot fence height. The sign would extend only six feet above the sidewalk grade and the fence would obscure it. The City agrees that the grade difference presents a special circumstance. However, the applicant wants the top of the sign to reach 16 feet. The City does not support that height, and wants the sign height limited to that enjoyed by other business. Such would mean 12 feet above grade. He then discussed conditions of approval and noted that the sign height variance will apply only when the site supports a towing company. The sign code does not recognize differences in grade. They will move the sign from the sidewalk grade. No one spoke further in this matter as the applicant did not attend the hearing. The Examiner took the request under advisement and the hearing was concluded at 10:30 a.m. NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department. FINDINGS, CONCLUSIONS, AND DECISION: FINDINGS: 1 . The Hearing Examiner has admitted documentary evidence into the record, viewed the property, heard testimony, and taken this matter under advisement. 2. This matter is exempt from review pursuant to the State Environmental Policy Act (SEPA) in accordance with Section 14.06.025 of the Yelm Municipal Code (YMC). 3. Proper notice of both the variance application and the public hearing were provided in accordance with the YMC. 4. The applicant has a possessory ownership interest in a 2.88 acre parcel of property that abuts the south side of Yelm Avenue West. The parcel supports a structure with a gross building/floor area of 11 ,625 square feet, and is located within the Commercial Zone (C-1) of the YMC. -3- 5. The applicant's family acquired the parcel in 1978 and immediately began operating a towing service from the site. Additional uses that have operated from the site in the past include an auto body shop and auto wrecking yard. The applicant presently operates a towing company and tire sales and service at the site. 6. The applicant currently advertises his business with a single, 32 square foot (each side), free standing sign, the top of which, according to his March 12, 2011 , letter, measures 20 feet above grade. The sign height is nonconforming with the requirements of the City of Yelm Sign Code set forth in Chapter 15.24 YMC. Section 15.24.280 YMC limits the height of free standing signs for buildings of 10,001-35,000 square feet to ten feet. Thus, the applicant's sign exceeds the maximum height by ten feet. The applicant proposes to change the sign face, and upon such happening, YMC 15.24.210(A) requires the applicant to bring the sign into compliance with the YMC. 7. The applicant proposes a new sign that would measure 36 square feet (per side) and measure ten feet from the Yelm Avenue right-of-way. Such complies with the bulk sign regulations set forth in YMC 15.24.280. However, the proposed sign would extend 16 feet above grade and the applicant must obtain a sign code variance to allow the additional height. 8. The applicant asserts that he needs the increased sign height for two reasons: A. When the City reconstructed Yelm Avenue West, it acquired a strip of property four feet in width across the applicant's parcel. The City installed a two foot tall, retaining wall at the right-of-way edge. Such raised the height of the sidewalk adjacent to Yelm Avenue two feet above the grade of the applicant's parcel. The applicant asserts that he needs to extend the new sign 16 feet above the grade of the sidewalk or customers will not see it. B. The State of Washington requires towing companies to protect their storage yards with a six foot tall, chain link fence topped by two strands of barbed wire for a total fence height of eight feet. Since the applicant will locate the fence on the property line, it will extend an additional two feet above the height of a six foot high fence, the tallest authorized without a building permit. Although the YMC contains no fence height limitations, a fence over six feet in height requires a building permit. It is therefore reasonable to assume that those businesses desiring a fence in the front yard will limit it to a maximum height of six feet. In the present case the applicant cannot do so as the State of Washington requires a towing company to secure its yard with an eight foot high fence. Such requirement provides a second, special circumstance. However, the -4- second, special circumstance is not related to the size, shape, topography, location, or surroundings of the parcel. 9. Prior to obtaining a sign code variance the applicant must show that the request satisfies the criteria set forth in YMC 17.96.023. Said criteria requires the applicant to show that special circumstances apply to the subject property due to its size, shape, topography, location, and surroundings, and also show that strict application of the sign code would deprive his parcel of rights and privileges enjoyed by other properties in the vicinity and under the identical zone classification. The two reasons cited by the applicant as justification for the variance are the grade deferential between his parcel and Yelm Avenue and the fact that the State requires him to protect his towing yard with an eight foot high fence. Staff agrees with the grade deferential and has recommended a variance to the sign height in an amount equal to the difference between the grade of Yelm Avenue and the parcel. However, staff does not agree that the eight foot fence height requirement is a special circumstance that meets the variance criteria. 10. Staff accurately interprets the variance criteria. A ten foot high sign located two feet below the grade of the street that abuts the parcel essentially allows the applicant to have an eight foot high sign as measured from the street. Thus, adding the grade deferential to the height of the sign is appropriate as it is related to the topography of the parcel. Furthermore, strict application of the sign height requirement would deprive the applicant of the same sign height as enjoyed by other businesses in the area. However, the height of the fence has nothing to do with the property itself as it stems from a requirement of the State that applies to every towing company within the City. The Yelm City Council has not adopted an exception to the sign code criteria either for towing companies or other businesses that may have special fence height requirements. Granting this applicant a variance based upon a fence height requirement would automatically grant every towing company a sign height variance and could change the City Sign Code. Such is within the province of the legislative body. CONCLUSIONS: 1 . The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The applicant has shown that the request for a variance to the height requirements of the City of Yelm Sign Code satisfies the criteria set forth in YMC 17.96.023 for an increase in sign height defined as the difference between the grade of the applicant's parcel and the grade of the sidewalk along Yelm Avenue. -5- 3. The applicant has not established that a variance to the height limitations of the sign code based upon the State's requirement for an eight foot high fence around his business satisfies the variance criteria. DECISION: The request for a variance to the maximum sign height is granted for a parcel located at 801 Yelm Avenue West. The maximum allowed sign height is ten feet plus the difference between the height of the grade of the sign and the sidewalk grade. The variance is hereby granted subject to the following conditions: 1 . The allowed height for the sign shall be ten feet plus the grade difference between the base of the sign and the sidewalk grade. 2. The sign area shall meet the requirements of the Sign Code, Chapter 15.24 YMC. 3. The setback between the property line and the sign shall meet the requirements of the Sign Code, Chapter 15.24 YMC. 4. Landscaping at the base of the free standing sing is not required, however the area shall be maintained to be kept free of weeds and debris. 5. If the barbed wire at the top of the fence overhangs the City right-of-way, the applicant shall reposition it such that it is does not encroach thereon. ORDERED this 20th day of March, 2013. STEPHEN K. CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 20th day of March, 2013, to the following: APPLICANT: William Trull II 801 Yelm Avenue West Yelm, WA 98597 OTHERS: CITY OF YELM CASE NO.: Bill's Towing Sign Variance VAR-20130116 NOTICE 1 . RECONSIDERATION: Any interested party or agency of record, oral or written, that disagrees with the decision of the hearing examiner may make a written request for reconsideration by the hearing examiner. Said request shall set forth specific errors relating to: A. Erroneous procedures; B. Errors of law objected to at the public hearing by the person requesting reconsideration; C. Incomplete record; D. An error in interpreting the comprehensive plan or other relevant material; or E. Newly discovered material evidence which was not available at the time of the hearing. The term "new evidence" shall mean only evidence discovered after the hearing held by the hearing examiner and shall not include evidence which was available or which could reasonably have been available and simply not presented at the hearing for whatever reason. The request must be filed no later than 4:30 p.m. on April 3, 2013, (ten days from mailing) with the Community Development Department 105 Yelm Avenue West, Yelm, WA 98597. This request shall set forth the bases for reconsideration -7- as limited by the above. The hearing examiner shall review said request in light of the record and take such further action as he deems proper. The hearing examiner may request further information which shall be provided within 10 days of the request. 2. APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or written that disagrees with the decision of the hearing examiner, except threshold determinations (YMC 15.49.160) in accordance with Section 2.26.150 of the Yelm Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration.