CITY OF DOVER
BOARD OF ADJUSTMENT
June 20, 2007
The Regular Meeting of the City of Dover Board of Adjustment was held on Wednesday, June 20, 2007 at 10:00 PM with Vice Chairman Dr. Goate? presiding.? Members present were Dr. Goate?, Mr. Senato, Colonel Ericson and Mr. Hufnal.? Mr. Sheth was absent.
Staff members present were, Mrs. Melson-Williams, Ms. Cornwell, Mr. Albert and Mr. Rodriguez.? Also present were Mr. Dale McCalister, Mr. Benjamin Herra, Mrs. Kim Diehl, and Mr. Mozzam Khan.
Mrs. Melson-Williams stated that Staff has a series of amendments to the agenda.? The office is in receipt of a letter in regards to application V-07-12, Lands of Halpern Family Property, a series of properties located on Governors Avenue dated June 19, 2007 requesting that on behalf of Halpern Family Property Investment, LP they are withdrawing the referenced variance application for the property located on South Governors Avenue.?
Colonel Ericson moved to approve the withdrawal of Application V-07-2 Lands of Halpern Family Property Investment, LP, seconded by Mr. Senato and the motion was unanimously carried.
Mrs. Melson-Williams stated that the next letter that Staff is in receipt of is pertaining to Application V-07-19, Lands of Lutheran Senior Services of Dover, Inc. for property located at 430 Kings Highway dated June 18, 2007 in regards to a request to defer for one month the Board of Adjustment application.? In their letter they refer to a scheduling conflict with their original attorney which has been reassigned so they are asking for deferment until the July 18, 2007 Board of Adjustment meeting.?
Colonel Ericson moved to approve the deferral of Application V-07-19 Lands of Lutheran Senior Services of Dover, Inc. until next months Board of Adjustment meeting of July 18, 2007, seconded by Mr.? Hufnal and the motion was unanimously carried.
Mrs. Melson-Williams further stated that the last two letters are pertaining to the same application which is V-07-20, Country Village Apartments, Community Support Programs, Inc. located on South Little Creek Road.? Staff is in receipt of a letter dated June 15, 2007 that was received from the City Solicitor, Mr. Rodriguez, in regards to the appearance of Beth Pepper, Esquire.? In this setting she is entered into the Maryland Bar but not the Delaware Bar. ?The City Solicitor would like to speak towards this matter.
Mr. Rodriguez stated that Mrs. Beth Pepper is a member of the Maryland Bar and not a member of the Delaware Bar and she filed a request with the Delaware Supreme Court to appear before the Board of Adjustment to argue this case which is an appeal from a decision of the City Planner.? The Board has to approve her application and it has to be approved before the hearing date and as it came in late to him, he approved it on behalf of the board.?
Mrs. Melson-Williams further stated that with regards to application V-07-20 another letter has been received by Staff dated June 18, 2007 and in that letter they are requesting adjournment of their appearance before the Board of Adjustment to postpone it in order to pursue a Planning Commission Application related to the issue at hand.? If this application is successful at the Planning Commission level, you would probably see a request to withdraw this application.?
Colonel Ericson moved to postpone Application V-07-20, Country Village Apartments, Community Support Programs, Inc., Seconded by Mr. Hufnal and the motion was unanimously carried.?
Mr. Senato moved to approve the agenda as amended, seconded by Mr. Hufnal and the motion was unanimously carried.
APPROVAL OF THE REGULAR BOARD OF ADJUSTMENT MEETING MINUTES OF MAY 16, 2007
Mr. Senato moved to approve the regular Board of Adjustment meeting minutes of May 16, 2007, seconded by Mr. Hufnal and the motion was unanimously carried.
OPENING REMARKS CONCERNING DEVELOPMENT APPLICATIONS
Mrs. Melson-Williams presented to the audience the policies and procedures that would be followed during these hearings.
OLD BUSINESS:
Applicant #V-07-13:?
245 South Dupont Highway, Lands of Benher, LLC:? Benher, LLC has applied to the City of Dover Board of Adjustment requesting a variance from the requirements of Article 5 ?4.10 of the Zoning Ordinance pertaining to non-conforming signs.
Subject property is zoned C-4 (Highway Commercial Zone) and the Tax Parcel ID # is ED05-077.06-02-72.00-000.? The owner of record is the Benher, LLC.
Representatives:? Mr. Dale McCalister, First State Signs; and Mr. Benjamin Herra, Property Owner.
Mrs. Melson-Williams stated that the legal notice was published in the Delaware State News on June 10, 2007 and the public was notified in accordance with the regulations.?
Mrs. Melson-Williams further stated that the public hearing for this application was held at the April Board of Adjustment meeting and the Board deferred action so that further information could be provided by Staff and the applicant.? A letter was placed on your desk this morning dated January 12, 2007 that was received from Dale McCalister from First State Signs pertaining to his signage and its non-conforming status.
Dr. Goate? questioned if there were any members of the Board with a conflict of interest and there was none.?
Mr. McCalister stated that the last discussion held on this was tabled two months ago.? What we are trying to do is keep his current sign as it exists except for changing the name.? As you are aware, the business has been closed for almost two years now and he has had a lot of contractor problems.? There are two reasons according to City Code that this sign has to come down.? The first one is that any sign that is not being used for a year has to be redone in a year.? The argument for that is that La Tolteca has continued to keep their Business License and Liquor License current for the last two years since the fire.? The other argument is that if you redo the exterior, seventy (70) percent of your building, you have to change your sign and bring it into compliance.? This is the City?s attempt to bring non-conforming signs into compliance.? My client meets both of those.?
Mr. McCalister further stated that within the last six to eight months is when the remodeling started because of contractor problems over the past two years.? When he contracted with his newest contractor, they decided that they would redo the front of the building.? He would like to try and keep some consistency.? The name of the restaurant will change to La Tolmlateca so the top panel will have to be changed.? If we have to change the entire sign, it would create a hardship for Benjamin.? The main reason they want to keep it is to keep the look as it has been here forever and they have barely changed the exterior of the building. ?They totally changed the interior and there has been a partner dispute.? He is trying to tell people that he is the same person that he has been and that he is changing the name of it; however, it is the same business and same Staff.? His business was closed two years ago because of a fire and he moved them all down to El Corralejo.? He will bring the same staff from El Corralejo back to this restaurant and staff El Corralejo again.? The hardship is that it has been a comedy of errors trying to get this restaurant re-opened which has been at no fault of his own.? This is to make what is a legal non-conforming sign conforming.? We are not going to change the character of the neighborhood as the Safeway/Target sign is much bigger than this one would be.?
Mr. McCalister further stated that ten years ago when they figured the size of this sign, they figured it by the top sign, the middle sign, and the bottom sign and added all three together.? Under the new Sign Ordinance, you put a big rectangle around the entire thing and this is why it is 260 square feet; however, if you counted the actual sign area, it is not 260 illuminated area as he has a 2x10, 4x8, and a 6x14 signs.?
Mr. McCalister further stated that he understands the City?s intent to bring signs into compliance.? He was on the sign committee when the Ordinance was written. ?It was good for him because old signs have to come down and people have to buy new ones and he would make more money off of his client if he is made to take this sign down; however, he believes that this is through no fault of his own and he should be able to reface the existing sign.? This sign has been on the skyline of Dover now for almost 20 years.?
Mr. Senato stated that he had the fire a little over two years ago, and the sign was there at the time of that fire. ?If he had complied and had the restaurant redone and renovated after the fire in the course of one year, what problem would there be?? Responding to Mr. Senato, Mr. McCalister stated that if he would have had it done within one year, he would not have had a problem because he was going to remodel the business.? When he started remodeling the outside, the City placed in this new ordinance, that if seventy (70) percent of the exterior of the building has been remodeled, then signage must come into compliance.?
Ms. Cornwell stated that the issue here is that you illegally put up the changeable copy sign and prior to the issuance of any new permit for additional signage; no new signs can be added to this sign until the sign comes into conformance.? If you would have just been refacing the sign within that year and had not renovated the building, this would have been okay.? Since you are now refacing the sign, you are also renovating more than seventy-five (75) percent of the building and you have already illegally changed the sign area for the sign. ?You need to come into compliance with the Sign Ordinance.?
Responding to Ms. Cornwell, Mr. McCalister stated that the computerized marquee that Ms. Cornwell is talking about, he had a man on his Staff, and this was over a year ago, call the City and asked if they needed anything to change out the face of the reader panel and change it to an electronic message center and he was told no.? This man is no longer in his employment and the person who told him he did not need a permit from the City is not here as well.? He could show you numerous times over the last six months where the City Ordinance is being applied differently.? He is not implying that it is being done wrong; however, ?it?s how that person reads the Code.? He does not feel that this is an issue because he did get permission from the City to put up the sign.?
Mr. Senato further questioned if he had any correspondence from the person who contacted the City?? Responding to Mr. Senato, Mr. McCalister stated that signs are so low in the pecking order that we are lucky if we get an answer and we did and it was up for months when we got a letter telling us it was illegal.? Since then, he has received two fines from the City of Dover, one was to turn it off.? We had already turned it off; however, it got turned back on by accident. The other was for what he was advertising for was illegal with a message that stated ?We Support the Troops? and was told that this was off-premise advertising.? Since then, these two summonses have been dismissed. ?L.E.D. message centers are legal in the City of Dover and the fact that he changed out a static board to an electronic board is what they are saying the issue because it is without a permit.?
Dr Goate? opened a public hearing and after seeing no one wishing to speak closed the public hearing.
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Dr. Goate? questioned if there was any correspondence received regarding this application and there was none.
Mr. Senato moved to approve Application V-07-13 245 South DuPont Highway, Lands of Benher, LLC; however, stipulate very strongly that a precedent not be set on this particular case and future cases, seconded by Mr. Hufnal and the vote was carried with Colonel Ericson in opposition.
Mr. Rodriguez stated that Mr. Senato could incorporate what the applicant has stated as being the reasons and this could differentiate the case from future applications.
Ms. Cornwell stated that Staff would like to know if in that motion, you would actually have them obtain a permit for what City Staff considers to be an illegal sign at this point.? Responding to Ms. Cornwell, Mr. Senato stated that yes, he would.?
NEW BUSINESS
Application V-07-18 Lands of Mozzam Khan and Ravi Enterprise, LLC:
1113 South State Street, Lands of Mozzam Khan and Ravi Enterprise, LLC:? Mozzam Khan and Ravi Enterprise, LLC have applied to the City of Dover Board of Adjustment requesting a variance from the requirements of Article 5 ?4.7 of the Zoning Ordinance pertaining to sign size and location.
Subject property is zoned C-1A (Limited Commercial Zone) and the Tax Parcel ID # is ED05-077.06-02-72.00-000.? The owner of record is the Mozzam Khan and Ravi Enterprise, LLC.
Representatives:? Mrs. Kim Diehl, Kent Sign Company; and Mr. Mozzam Khan Property Owner.
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Mrs. Melson Williams stated that legal notice was published in the Delaware State News on June 10, 2007 and the public was notified in accordance with regulations.
Dr. Goate? questioned if any member of the Board had a conflict of interest and there was none.
Dr. Kahn stated that his wife is a practitioner in town and five years ago and they had a sign that was legal and permitted. ?Now she has moved across the street to her new office next to the YMCA and we are asking to relocate the sign.? His reason for this request is that the sign that they already have is being relocated in the same business name.? Previously, this sign was located on a smaller lot and has been there for five years and now it will be on a site that is larger in size. ?Secondly, this new office will have three tenants and all of their names will be placed on the same sign when previously only one business name was on this sign.?
Dr. Kahn further stated that they are also asking to put a sign on the building itself and to his understanding, this should be facing the street which is Lotus Street.? He is asking that a variance be granted to place this sign on the opposite side of the building which is facing the YMCA business rather than on Lotus Street where it would be facing residential properties.?
Mrs. Diehl stated that currently, Mr. Kahn is allowed two building signs because he fronts two streets, Lotus Street and State Street.? We have installed the sign on State Street with a permit that is a conforming sign.? The problem is that we want to relocate the sign from the Lotus Street side to the YMCA side of the property.? The twenty-four (24) foot sign has since been removed because they have left that building and moved across the street.? The sign meets all setback requirements; however, it does not meet the square footage requirement of sixteen (16) square feet and we are at twenty-four (24) feet with this sign.?? This sign was permitted five (5) years ago and issued in error by City Staff.
Mrs. Diehl handed out pictures of two other signs in the area that were probably installed before the code changes; however these pictures will show you that it is in keeping with the neighborhood.? The YMCA sign that neighbors this property is thirty-six (36) square feet and the Happy Harry?s which is only one block down is thirty-two (32) square feet.? Happy Harry?s has two signs, one on each street at this location.? This sign will enhance the business that will be moving in here and would allow them to have a small tenant panel on the twenty-four (24) foot panel sign.?
Dr Goate? opened a public hearing and after seeing no one wishing to speak closed the public hearing.
Dr. Goate? questioned if there was any correspondence received regarding this application and there was none.?
Colonel Ericson moved to approve Application V-07-18 Lands of Mozzam Khan and Ravi Enterprise, LLC located at 1113 South State Street, seconded by Mr. Hufnal and the motion was unanimously carried.?
Mr. Senato moved to adjourn the Board of Adjustment meeting, seconded by Mr. Hufnal and the motion was unanimously carried.
Meeting adjourned at 10:36 PM.??
Sincerely,
Diane Metsch
Secretary