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BZA 03-20-07 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on, March 20, 2007. PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Kevin Scott, Shawnee District; Dwight Shenk, Gainesboro District; Eric Lowman, Red Bud District; and, Jay Givens, Back Creek District. ABSENT: Robert W. Wells, Member -At- Large. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Lauren Krempa, Zoning Inspector; and Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m. On a motion by Mr. Scott and seconded by Mr. Lowman, the minutes for the February 20, 2007 meeting were unanimously approved as presented. The cut -off date for the April meeting is March 23, 2007, and at this time, there are no items to be heard. PUBLIC HEARING Appeal Application #03 -07 of Roma Restaurant, submitted by Greenway Engineering, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to Section 165- 30A(1), animated or flashing signs. The subject property is located on the south side of Fairfax Pike (Route 277), approximately 500 feet east of Interstate 81, Exit 307, and is identified with Property Identification Number 85- A -148E in the Opequon Magisterial District. ACTION — APPEAL APPROVED Mr. Cheran gave the staff report. This is an appeal of the determination of the Zoning Administrator in the interpretation of the Frederick County Zoning Ordinance, Section 165- 30A(1), animated or flashing signs. The applicant is appealing the determination of the Zoning Administrator as to the use of LED, Light Emitting Diode, signage in Frederick County. There is a picture of the proposed sign in your agenda package. Mr. Cheran further stated that the Frederick County Zoning Ordinance does not allow animated or flashing signs within Frederick County. The definitions of the Frederick County Ordinance defines an animated sign as any sign or part of a sign that changes physical position or light intensity by any movement or rotation or that gives the visual impression of such Minute Book Page 1434 Frederick County Board of Zoning Appeals Minutes of March 20, 2007 movement or rotation. The ordinance defines a flashing sign as any sign directly or indirectly illuminated that exhibits changing natural or artificial light or color effects by any means whatsoever. Staff has included Section 165 -156, sign definitions, in your agenda package. This proposed sign falls under the definition of a flashing sign and is not permitted. Any change in definitions or types of signage allowed by the Frederick County Zoning Ordinance is a legislative action and not within the scope of the Board of Zoning Appeals. Mr. Cheran asked the Board members to keep in mind that although they have seen this type of appeal before, each land use action stands on its own merit; there is no precedent set. Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165- 30A(1) and Section 165 -156, that LED and EMB signage is flashing and is not a permitted sign in Frederick County. Mr. Cheran stated that the applicant is represented by Mr. Evan Wyatt of Greenway Engineering. Mr. Wyatt approached the podium and identified himself. Mr. Wyatt handed out a picture of the proposed sign. This picture was the same as the picture included in the Board's agenda package. Mr. Wyatt stated that one of the things that Roma has applied for is to be able to produce the type of sign in the picture he handed out. Roma Restaurant is requesting for the message board portion of the sign to use the LED technology. Roma has applied for a sign and the permit for the sign in and of itself was acceptable; however, the message board portion of the sign was rejected by the Zoning Administrator. Mr. Wyatt spoke of things that had happened previously, for the benefit of Mr. Lowman and Mr. Givens, who were not on the Board when the previous three actions occurred. The first one of these that came in front of the BZA was done as a result of CVS and this is really the first time, based on Mr. Wyatt's research, that the Board of Zoning Appeals was really educated on LED technology and message boarding. One of the things that the representative of that application pointed out was the fact that LED and EMB are not defined by the ordinance, and the staff report recognizes that. What the representative did at that point was went to the next source, which was the International Zoning Code. What the representative determined was the definition in the International Zoning Code actually does define both animated and flashing signs. The definition of a flashing sign is where it's characterized by a repetitive cycle in which the period of illumination is either the same or less than the period of non- illumination. The repetitive cycle is defined as a period of less than four seconds. Locally, a sign that comes close to that would probably be like what the Sportsplex has up. Mr. Wyatt thinks if that type of sign was being proposed, there would be a legitimate argument by staff. But what Mr. Wyatt is talking about is something very similar to this: what you have is a message display and the message display is no different than a manual board. Mr. Wyatt continued that with the CVS sign what the BZA determined was that it was appropriate to use LED technology for the message board and they approved that with a change in that the message board could not change messages for a period of two minutes. The thinking at that time, based on the research Mr. Wyatt did, was that's a standard that the City of Winchester uses for their LED -type signs and if you are sitting at an intersection, that's going to supercede the signal for a traffic Minute Book Page 1435 Frederick County Board of Zoning Appeals Minutes of March 20, 2007 light to change. In other words, you'll be in and out of that intersection, so the feeling was that was an appropriate time change. In April 2006, Mr. Wyatt said he was in front of this Board with something that was similar, but different, in that it was LED technology to display gas pricing. What the BZA and staff were concerned with on that application was to have the gas pricing as a fixed LED display wasn't necessarily that big of a concern, but they didn't want the price flashing. That wasn't what the applicant wanted either, and the BZA recommended approval of that type of sign with the caveat there would be no flashing mechanism. In May of 2006, Valley Farm Credit came in with an application for a LED technology sign with an electronic message board. Similar to CVS, there was a limitation that the message portion could not change for a period of two minutes, but there was also a restriction put on that there would be no, animation effects associated with the sign. Mr. Wvatt stated he's talking about something very similar to the other three cases that have been before the Board. He's talking about a sign that instead of using block lettering uses LED technology to display the message and, of course, it's important to know that there is no restriction on changing a message in the County. If you had a standardized manual sign, they could change the message as many times during the course of the day as they wanted to. What he's talking about here is the same thing; it's using LED to display a message. Mr. Wyatt continued that basically what the flashing sign definition is it exhibits changing light or color effects by means whatsoever. What he's looking at is a sign that is going to have red lettering, it's not going to change colors, and it's not going to have animation. He doesn't believe that this falls under the definition of a flashing sign whatsoever. Mr. Wyatt stated they are willing to entertain that if the BZA would be willing to grant the appeal similar to what you did with CVS and Valley Farm Credit, they would certainly accept the condition placed on the sign that there would be no animation and no flashing effects of the sign whatsoever. They are simply looking to use a message board with LED technology and to have an interval change for a message that is acceptable to the Board. Mr. Shenk asked Mr. Wyatt how often they plan on changing the LED message. Mr. Wyatt responded that he's talked to Mr. Ritenour, owner of Roma Restaurant, and they would be very willing to have the same conditions that CVS and Valley Farm Credit have, which is two minutes. Mr. Benjamin Ritenour approached the podium and identified himself as the owner of Roma Casual Dining. Mr. Ritenour stated that he hopes the Board will allow him the tools he needs to compete successfully against nationally owned corporate restaurants. Mr. Ritenour believes this sign is essential. Roma is tucked away some 200 feet off Route 277 and a store front sign can only be seen for a few seconds when you pass it. Mr. Ritenour stated that this business is changing and becoming more competitive. He's asking for consistency and fairness in this appeal. Mr. Shenk asked Mr. Ritenour if he anticipates needing to change the sign every two minutes, or maybe once every day. Mr. Ritenour responded they will probably have daily specials listed, lunch and dinner, and any entertainment they might be having, so maybe five to seven messages. 0 Mr. Perry stated that the LED portion of the sign shown in the picture shows two lines. Does Minute Book Page 1436 Frederick County Board of Zoning Appeals Minutes of March 20, 2007 Mr. Ritenour envision his sign staying at two lines. Mr. Ritenour responded yes, two lines, because of the letter size. Chairman Catlett asked if anyone else would like to speak. No one responded and the public hearing portion was closed. Discussion Chairman Catlett stated that like Mr. Scott, she lives in the area and goes by the restaurant frequently as well. She does have a little more concern about this area than perhaps the CVS area because this is so much more congested. Personally, Chairman Catlett isn't sure that she would see the need to change it every two minutes but maybe change it occasionally throughout the day for lunch and dinner. Mr. Givens stated that being new to the Board, this is his first exposure to this. Mr. Givens stated that he really does not have a problem with the LED display; it's the way that's coming and it's probably safer and just as good as a manual sign. Mr. Givens thinks because the ordinances are written in such a way now that they're very hard to follow that this Board should be consistent. If we're going to approve this, it ought to be two minutes. To do this, the Board has to make the determination that it's not a flashing sign. Once they make the determination, if they uphold the flashing sign then it's not allowed and the BZA cannot put a condition on it, because the way he reads it under the zoning ordinance, it's prohibited. Therefore, Mr. Givens feels they wouldn't be able to go in and put a condition on something the Board of Supervisors has set. Mr. Givens doesn't know why they couldn't define it as a business sign, which says... "A sign which directs attention to a business or profession conducted or to a commodity or service sold, offered or manufactured or to a service or entertainment offered ". At the same time, restrict it to that two minute change over. In Mr. Givens' opinion, if you call it a flashing sign, you have no option but to say that it's not allowed in Frederick County. Mr. Scott would agree with Mr. Givens until they were educated about the definition of LED versus flashing or animated. Mr. Scott agrees with Mr. Cheran's action based on his ability to follow the ordinance; he didn't have any choice. What Mr. Scott disagrees with is the nature of what the ordinance states right now. Mr. Scott asked Mr. Cheran the status of changing the sign ordinance. Mr. Cheran stated that the ordinance for the signage is ready to go, but they have to talk to the Chamber of Commerce, Retail Petroleum Association and the industrial parks before it's brought to public hearing. Mr. Cheran further stated that what concerns staff are violations of the two minutes limitation. Mr. Cheran believes the competitive issue doesn't play into this, because none of the other adjoining businesses have a LED sign. Mr. Perry asked Mr. Cheran how the ordinance that's almost ready to go to public hearing addresses LED signage. Mr. Cheran stated it completely outlaws them, but that may change. Mr. Perry told Mr. Cheran that he totally agrees with what he had to do, with the way the ordinance reads. Minute Book Page 1437 Frederick County Board of Zoning Appeals Minutes of March 20, 2007 Chairman Catlett stated that she doesn't think this Board has the authority to change and allow a sign that the Board of Supervisors has not already allowed. What this Board has to do is to determine in our minds if this is a flashing or animated sign. If we say it is, we have to uphold Mr. Cheran's decision. If we believe that it is not, we have the authority to override Mr. Cheran's decision. Mr. Perry stated that if it changes every two minutes, in his opinion, it is not flashing Mr. Shenk made a motion to overturn the decision of the Zoning Administrator, based on the definition that the sign is a business sign and not a flashing sign. However, the Board limits the number of changes in messages to two - minute intervals. Mr. Perry seconded the motion and it passed unanimously. OTHER Chairman Catlett asked if there is any other business to come before the Board. Mr. Cheran stated that the Board of Supervisors on February 28, 2007, made a change to the RA setbacks. A waiver for the setback requirements goes to the Board of Supervisors versus the Board of Zoning Appeals. The BZA should not be seeing as many cases, especially concerning non - conforming lots. As there were no other items to be discussed, the meeting adjourned at 4:00 p.m. by unanimous vote. Respectfully submitted, r Theresa B. Catl tt, Chairman Bev Dellinger, retary Minute Book Page 1438 Frederick County Board of Zoning Appeals Minutes of March 20, 2007