location: owner/applicant

Staff Writer: Jeffrey Penzes E-mail: [email protected]

AGENDA ITEM: 3 CASE NUMBER: BOA 18-62 (City) B.O.A. MEETING: August 22, 2018 LOCATION: 4810 Poplar Avenue OWNER/APPLICANT: Henry Loeb Marital Trust #1, Henry Loeb Marital Trust #2, and Henry Loeb

Residual Trust / Olive Oil Associates REPRESENTATIVE: McCaskill & Associates, Inc. – Tim McCaskill REQUEST: Variance from Table 1 in Section 4.9.7 to allow a detached sign of 32 feet in height AREA: +/-0.583 acres EXISTING ZONING: Commercial Mixed Use – 3 (CMU-3) and the Land Use Control Board conditions

in the Colonial – Poplar Subdivision Resubdivision of 2.426 acres of lots 2 and 3

CONCLUSIONS 1. The applicant is seeking a variance from Table 1 in Section 4.9.7 to allow a detached sign of 32 feet in height.

2. When the sign was converted from “Burger King” to “Popeyes,” a sign permit was obtained (S0096177).

However, this permit was later revoked by the Building Official on July 3, 2018 (see pages 22-25 of this report for the sign permit and revocation letter). In the applicant’s letter of intent and answer to variance criteria 9.22.6A(1), it is further stated that the “only modification to the existing sign was the change in logos” and that “[t]here has been no change in the height of the sign.” As shown on pages 17-18 of this report, the “Burger King” detached sign was significantly shorter than the 32 feet in height that the “Popeyes” detached sign is. It is this offices opinion that the original “Burger King” detached sign was 25 feet or less in height and as such in compliance with Table 1 in Section 4.9.7. Furthermore, given this evidence, the sign permit (S0096177) that was obtained for the “Popeyes” detached sign was done so under false pretenses.

3. Due to the fact that the original sign permit (S0096177) was obtained under false pretenses, it was never a valid permit and as such, the applicant has no justification for this variance request and fails to meet the variance approval criteria of Sub-Section 9.22.6A.

4. The granting of this variance will cause substantial detriment to the public good, it will substantially impair the intent and purpose of an adopted plan or the Code, it will be injurious to the neighborhood and the general welfare, and it will not be harmony with the purpose and intent of the development code.

5. There is no hardship or practical difficulty presented by the applicant that justifies approving this variance.

RECOMMENDATION: Rejection

mailto:[email protected]

Staff Report August 22, 2018 BOA 18-62

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GENERAL INFORMATION Street Frontage: Poplar Avenue +/-101.55 linear feet Zoning Atlas Page: 2140 Parcel ID: 056007 00104 Existing Zoning: Commercial Mixed Use – 3 (CMU-3) and the Land Use Control Board conditions

in the Colonial – Poplar Subdivision Resubdivision of 2.426 acres of lots 2 and 3

PUBLIC NOTICE In accordance with Sub-Section 9.3.4A of the Unified Development Code, a notice of public hearing is required to be mailed. A total of 54 notices were mailed on August 7, 2018.


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LOCATION MAP

Subject property located within the pink circle, East Memphis neighborhood

SUBJECT PROPERTY


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VICINITY MAP

Subject property highlighted in yellow


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AERIAL

Imagery from March 8, 2018

DETATCHED SIGN LOCATION


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COLONIAL – POPLAR SUBDIVISION RESUBDIVISION OF 2.426 ACRES OF LOTS 2 AND 3 – SHEET 1


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COLONIAL – POPLAR SUBDIVISION RESUBDIVISION OF 2.426 ACRES OF LOTS 2 AND 3 – SHEET 1 (ZOOMED)


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COLONIAL – POPLAR SUBDIVISION RESUBDIVISION OF 2.426 ACRES OF LOTS 2 AND 3 – SHEET 2


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COLONIAL – POPLAR SUBDIVISION RESUBDIVISION OF 2.426 ACRES OF LOTS 2 AND 3 – SHEET 2 (ZOOMED)


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LANDSCAPE

The existing landscaping is not in conformance with Land Use Control Board Condition 4 of the Colonial – Poplar Subdivision Resubdivision of 2.426 acres of Lots 2 and 3 (see page 9 of this report)


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ZONING MAP

Existing Zoning: Commercial Mixed Use – 3 (CMU-3) Surrounding Zoning North: PUD 0-86 and RW East: CMU-3 then R-10 South: CMU-3 then CMU-2 and R-10 West: CMU-3



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LAND USE MAP



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SURVEY/SITE PLAN


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SITE PHOTOS

View of subject property from Poplar Avenue looking northeast

View across Poplar Avenue from the subject property looking south


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View down Poplar Avenue looking east

View down Poplar Avenue looking west


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DETACHED SIGN TIMELINE

May 2015 as Burger King

Partially removed signage in 2016

April 2017 as Popeyes


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DETACHED SIGN HEIGHT CHANGE The following perspectives indicate the “Popeyes” detached sign is taller than the former “Burger King” detached sign. Google Street View has a set camera height of approximately 8.2 feet and the first four images are taken from the same lane of traffic on Poplar Avenue from approximately the same location. The final two images (on page 18) are taken from the intersection of Poplar Avenue and Colonial Street from different lanes, but the same approximate location. In all of the images the yellow line is directly on top of the metal utility pole that is adjacent to the detached signs and serving as a comparison height reference for the respective perspectives.


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STAFF ANALYSIS Request and Justification The application, response to the variance criteria, and letter of intent have been added to this report. The request is a variance from Table 1 in Section 4.9.7 to allow a sign of 32 feet in height. Variance Criteria Staff agrees the variance criteria as set out in the Unified Development Code Sub-Section 9.22.6A are met. 9.22.6 Findings of Fact

A(1) Unusual characteristics of the property. The property is unusual in that it exhibits at least one of the following exceptional physical features as compared to other properties located in the same zoning district: exceptional topographic conditions, exceptional narrowness, exceptional shallowness, exceptional shape or any other extraordinary and exceptional situation or condition;

A(2) Practical difficulties or undue hardship. By reason of the unusual characteristics found to apply in Paragraph 1, the strict application of any regulation found in this Code would result in peculiar and exceptional practical difficulties to or exceptional or undue hardship upon the owner of such property;

A(3) The unusual characteristic found to apply in Paragraph 1 is not the result from any deliberate action by the owner;

A(4) That a variance from the strict application of this Code may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of an adopted plan and this Code;

A(5) The requested variance will be in harmony with the purpose and intent of this development code and will not be injurious to the neighborhood or to the general welfare;

A(6) The variance is not granted simply because by granting the variance, the property could be utilized more profitably or that the applicant would save money.

Site Description The detached sign is located at 4810 Poplar Avenue in East Memphis, and known as Lot 3A of the “Colonial – Poplar Subdivision Resubdivision of 2.426 acres of Lots 2 and 3” and zoned Commercial Mixed Use – 3. Per the Assessor’s Office, the principal structure on the site is a one-story structure built in 2001 and with a ground floor area of 2,869 square feet and the surrounding land uses are a mixture of commercial, parking, office, single-family residential, and vacant. Sign Permit When the detached sign was converted from “Burger King” to “Popeyes” a sign permit was obtained (S0096177), see pages 22-24 of this report. However, this permit was later revoked by the Building Official on July 3, 2018 (see page 25 of this report for the permit and revocation letter). In the sign permit application, it stated the original “Burger King” detached sign was 32 feet in height and the new “Popeyes” detached sign would also be 32 feet in height. However, as seen on pages 17-18 of this report, the “Burger King” detached sign was clearly not as tall as the new “Popeyes” detached sign is. Supplementary This case originated from a complaint made by the adjacent billboard owner (David Buring) immediately to the east of the “Popeyes” detached sign to the Office of Construction Code Enforcement. Mr. Buring had previously filed an application with this Board, BOA 17-69 which was withdrawn. Part of that request was a variance to increase the height aforementioned billboard. A reason Mr. Buring provides as a justification of that additional


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height request pertains to the fact that the “Popeyes” detached sign increased in height beyond what the Unified Development Code allows and was blocking the view of his billboard from eastbound Poplar Avenue traffic. Mr. Buring also stated that the former “Burger King” detached sign was not as tall as the current “Popeyes” detached sign which conforms with the evidence this office found via Google Street View, see pages 17-18 of this report. Mr. Buring further states that the increase in height of the new “Popeyes” detached sign has been injurious to the sale of advertisements on his billboard as well, see page 31 of this report for Mr. Buring’s letter of opposition in full. Conclusions The applicant is seeking a variance from Table 1 in Section 4.9.7 to allow a detached sign of 32 feet in height. When the sign was converted from “Burger King” to “Popeyes,” a sign permit was obtained (S0096177). However, this permit was later revoked by the Building Official on July 3, 2018 (see pages 22-25 of this report for the sign permit and revocation letter). In the applicant’s letter of intent and answer to variance criteria 9.22.6A(1), it is further stated that the “only modification to the existing sign was the change in logos” and that “[t]here has been no change in the height of the sign.” As shown on pages 17-18 of this report, the “Burger King” detached sign was significantly shorter than the 32 feet in height that the “Popeyes” detached sign is. It is this offices opinion that the original “Burger King” detached sign was 25 feet or less in height and as such in compliance with Table 1 in Section 4.9.7. Furthermore, given this evidence, the sign permit (S0096177) that was obtained for the “Popeyes” detached sign was done so under false pretenses. Due to the fact that the original sign permit (S0096177) was obtained under false pretenses, it was never a valid permit and as such, the applicant has no justification for this variance request and fails to meet the variance approval criteria of Sub-Section 9.22.6A. The granting of this variance will cause substantial detriment to the public good, it will substantially impair the intent and purpose of an adopted plan or the Code, it will be injurious to the neighborhood and the general welfare, and it will not be harmony with the purpose and intent of the development code. There is no hardship or practical difficulty presented by the applicant that justifies approving this variance. RECOMMENDATION Staff recommends rejection; however, if approved, staff recommends the following conditions: Conditions 1. Any change or deviation from the site plan upon the determination of the Planning Director shall be submitted

to the Board of Adjustment for review and approval or administrative review and approval by the Office of Planning and Development.


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DEPARTMENTAL COMMENTS The following comments were provided by agencies to which this application was referred: City/County Engineer: Sewer Design Department

• There is sewer capacity to serve this development City/County Fire Division: No comments received. City Real Estate: No comments received. City/County Health Department: No comments received. Shelby County Schools: No comments received. Construction Code Enforcement: No comments received. Memphis Light, Gas and Water: No comments received.


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SIGN PERMIT SC004794


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SIGN PERMIT REVOCATION LETTER


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APPLICATION


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LETTER OF INTENT


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LETTERS RECEIVED Four letters of opposition were received at the time of completion of this report and have subsequently been attached.


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location: owner/applicant

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