Planning staff is recommending denial based on the determinations of the review criteria for variance applications. There is limited BOA history of granting similar variances for similarly situated buildings and property.  The property within the immediate vicinity is a new development and has been developed in conformance to the current code for signage.  The building is new construction and IV Nutrition is the first established tenant, the sign was installed without a permit.  If the board were to approve this variance, it will reduce the available signage for the other future tenants in the building.  

City Variance 1357 – 1423 38th St. West, Ste. 2.  A variance from BMCC 27-1407.B(3) requiring a maximum allowable area of wall signs (a type of attached sign) to 100 square feet maximum for all tenants in a multi-tenant structure, and an individual tenant sign to a maximum of 32 square feet, in a Neighborhood Mixed Use (NMU) zone, to allow Suite 2 (three suites total in the building) to have sign area of 43.25 square feet. The property is legally described as Block 1, Lot 1A1, Hancock Grand Subdivision, a 1-acre parcel of land. The purpose of the variance is to allow a sign area greater than 32 square feet for IV Nutrition, a new business in a multi-tenant building.

The sign was constructed and installed without applying for or receiving an approved permit. Code Enforcement and Planning Division staff were notified of the sign. Staff research found no permit had been applied for. As such, the sign company applied for a sign permit, but ultimately it could not be approved as constructed and installed. The applicant was informed of several options that could bring the sign into compliance one of which included an application for variance. The four options provided by staff were:

• Apply for a variance; or
• Move the logo portion of the sign to a window; or
• Remove the sign and install a smaller one in accordance with regulations; or
• Change the sign type to a canopy and meet the sign regulation requirements.

The Board has issued few sign variances since 1972 under the various iterations of the sign code. The most common sign variance is to allow a larger sign area. Sign area is limited based on the sign type and the zone district. The most recent variances were Main Street Target store (Var 1351 - December 2022)  a variance request from Section 27-1407.C --Table of Allowed Attached Signs -- allowing only one wall sign on a single tenant structure to allow a second wall sign in a Corridor Mixed Use 2 (CMU2) zone, allowing the replacement of the existing wall sign with a new Target wall sign and a second sign to inform customers of the new pickup and load out area in the parking lot; and for the Coca-Cola bottling plant (Var 1341 -March 2022) under construction on S Frontage Road near the Zoo Drive interchange with I-90. This variance allowed a wall sign of 456 square feet that is normally limited to 250 square feet.  The Board of Adjustment also granted a similar variance to the Coca Cola  variance for the Scheels building in Shiloh Crossing in December 2011. The previous Shiloh Corridor Overlay District also had a maximum wall sign area of 250 square feet. The Scheels building was much taller but had a similar facade area and the desire to address traffic on a road that was more than 800 feet from the structure.  Although these requests were for sign area/size variances, the scope of the building and area that they are located are in a larger building scale and property layout, intended to address traffic on a street located a significant distance from the structures.  The NMU zone district is a smaller scale allowed for signage as well as type of uses allowed, much similar to the previous zone designation of Residential Professional (RP).

Most sign variance requests have been approved due to specific building or location challenges such as the bulk of the building, the location of the building related to the street frontage and other similar geographic and architectural challenges. Not all variances have been approved particularly where an alternative type of sign can provide the same result as a variance from the code limitations. Prior to the new zoning code, the BOA has granted five sign variances and denied one previously classified in the Residential Professional (similar to the NMU) zone within the city limits since 1990 that share similarities to this request.  A variance request for the business at 2075 Central Avenue also in an RP zone request for 47 square feet, was denied in 1991 (Var 634).  

The RP zone is described as “a zone intended to accommodate limited commercial and professional offices as would be compatible with adjoining residential districts." This is similar to the current NMU district. Most sign variance requests have been approved due to specific building or location challenges such as the bulk of the building, the location of the building related to the street frontage and other similar geographic and architectural challenges. Not all variances have been approved particularly where an alternative type of sign can provide the same result as a variance from the code limitations.  The majority of approved sign variances were prior to the new code restrictions, and were in established developments that had other similar signs in the area, or had some special circumstance that would instigate a recommendation for approval.

APPLICATION DATA
OWNER: IV Nutrition (tenant)
AGENT: Ryan & Sara Nelson
PURPOSE: To allow a wall sign of 43.25 sf 
LEGAL DESCRIPTION: Block 1, Lot 1A1, Hancock Grand Sub. .
ADDRESS: 1423 38th St. W
SIZE OF PARCEL: 1 acre
ZONING: NMU
EXISTING LAND USE:  Commercial multi tenant complex
PROPOSED LAND USE: Commercial multi tenant complex

SURROUNDING ZONING & LAND USE
NORTH: Zoning: N2
Land Use: Residential
SOUTH: Zoning: CMU1
Land Use: Multi Tenant complex
EAST: Zoning: NO
Land Use:  Residential multi family apartment
WEST: Zoning: NO
Land Use:  Multi tenant office building

Planning staff notified owners by mail, posted the property and published the legal ad as required. As of the date of this staff report, no comments or concerns have been registered with the Planning Division.

The Board of Adjustment may:

1. Approve the requested variance with conditions;
2. Approve the requested variance with no conditions;
3. Deny the requested variance with staff recommended findings of fact of the criteria;
4. Allow the applicant to withdraw the variance request; or
5. Delay action on the variance to a future BOA meeting

Approval or denial of the requested variance will have no financial effect on the Planning Division budget.

Prior to approval, the Board of Adjustment shall ensure that the determinations for variances (Sec. 27-1627.D and E.), as outlined below, have been satisfied: 

Section 27-1627.D
1) That special conditions and circumstances exist which are peculiar to the land, the lot or something inherent in the land which causes the hardship, and which are not applicable to other lands in the same district. 
There are no special circumstances that exist which are peculiar to the lot that are not applicable to other lots in the same district. The property is a one acre parcel with three new tenant spaces, and is not oriented in a way to address traffic on 38th St. The signs on this building address traffic through parking lots, there is another multi tenant property between it and Grand Ave, and the building sign does not face 38th St.  The building is over 300 feet from the closest travel lane on Grand Ave. While this is not uncommon under the previous suburban development style, the new sign code was intended to work well with the new commercial zone district requirements that bring buildings to the street.  Because of the distances involved it is not likely a viewer will notice the difference between a wall sign, a canopy sign or an awning sign. There is no current architectural design on the building such as a canopy or awning for this suite on the building for the applicant to use for attached signs, it would have to be an added feature. Alternatively, the applicant can reduce the sign size by 11.25 SF to adhere to the code requirements.  The sign was installed without a permit. Had the sign company applied for the permit prior to installation, it would have known the dimensions were too large for allowable signage.

2) That a literal interpretation of the provisions of this Chapter would deprive the applicant of rights commonly enjoyed by other tracts in the same district. 
The Board of Adjustment has granted at least four sign area variances in the past decade. Two variances for the number of allowed signs on a property were granted prior to 1999. Sign variances are rare and very specific to conditions and buildings. Of the 1350+ variances of record, only about 19 applications for sign variances have been processed. Under the previous sign code, the sign budget was generous at 3 sf for each linear foot of street facing building facade. The sign code was amended to address this context insensitive approach and to define and allow other types of attached signs - not just wall signs as a generic term for all types of attached signage. This sign was installed without the benefit of a permit. The applicant could have a different type of sign (canopy or projecting would allow the size they are requesting). The applicant would prefer to utilize their existing sign as installed (because of ordering complications per their attached letter to the BOA).

3) That granting the variance requested will not confer on the applicant any special privilege that is denied by this zoning code to other land in the same district. 
Similar to number 2 granting this variance may confer on the applicant a special privilege because the Board of Adjustment has granted a limited number of variances from the code limitation on the sign size for other land in the same or similar district.  The applicant could have a different type of sign (canopy or projecting) but would prefer to utilize their existing (because of ordering complications per their attached letter to the BOA). Because this is a new developed parcel and the parcel to the south is a new development, approving the variance may be granting a special privilege.

4) That the granting of the variance will be in harmony with the general purpose and intent of this zoning code and with the Growth Policy. 
Granting this variance will meet the general purposes and intent of the 2016 Growth Policy. The Growth Policy guidelines state that local economic prosperity should be supported and sustained.  However, it does not meet the zoning regulation specification for granting a variance application, and is not in harmony with the intent of the Zoning Code for new signage in this district.

Section 27-1627.E
2) In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this Zoning Code. Violation of such conditions and safeguards, when made a part of the terms upon which the variance is granted, shall be deemed a violation of this Zoning Code;   

Although staff is recommending denial of the variance, if the BOA chooses to approve the variance, Staff recommends the following conditions;

1. The variance is for a tenant sign for suite #2 of 43.25 square feet (attached sign type). No other variance is intended or implied by this approval.
2. The variance applies to Block 1, Lot 1A1 of Hancock Grand Sub. 1423 38th Street West.
3. The proposed location of the wall sign will be in substantial conformance with the submitted site plan and sign graphic. Minor adjustments to the plan are allowed.
4. The applicant will apply for a sign permit for the wall sign within 6 months of the Board of Adjustment approval. Although the sign has already been installed the sign still needs an approved permit.
5. Per this variance exceeding the total tenant signage allowed by code, future tenant signs on the facade of this building will be permitted to ensure the max allowed wall sign square footage is not exceeded on the building.
6. This Variance approval is for the specified suite #2 location for the IV Nutrition sign only. If the sign is removed it will be replaced with a conforming sign of no more than 32 sf.
7. These conditions of variance approval shall run with this building only and the sign in question for the tenant of suite #2 known as "IV Nutrition", it shall apply to all current and subsequent owners, operators, managers, leaseholders, heirs and assigns of this building.

3) The Board shall prescribe a time limit within which the action for which the variance is required shall be begun or completed, or both. Failure to begin or complete such action within the time limit set shall void the variance.
Staff is not recommending a time limit for the denial, however the existing sign that was installed without permit approval, should be removed and modified to conform to the code prior to installation and after permit approval.  If the BOA chooses to approve the sign variance, staff recommends the applicant apply for a sign permit for the wall sign within 6 months of the Board of Adjustment approval. Although the sign has already been installed the sign still needs an approved permit.

4) Under no circumstances shall the Board grant a variance to allow a use not permissible under the terms of this zoning code in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other properties in the district.
The granting of this variance would not allow a use that is not allowed in the zoning district.Personal service establishments are allowed in the NMU zone.