CITY OF DOVER
BOARD OF ADJUSTMENT
SPECIAL WORKSHOP
June 13, 2007
The Special Workshop for the City of Dover Board of Adjustment was held on Wednesday, June 13, 2007 at 4:00 PM with Mr. Sheth presiding.? Members present were Mr. Sheth, Mr. Senato, Colonel Ericson and Mr. Hufnal.? Dr. Goate? was absent.
Staff members present were, Mrs. Townshend, Ms. Cornwell, and Mr. Albert.?
Mrs. Townshend stated that Staff members attended Board of Adjustment training last month and one of the things to come out of that training was that we needed to hold a special workshop to talk about some things that we need to do to improve our process.
Mrs. Townshend further stated that one of the things that she wanted to bring to the attention of this Board is that last year Mr. Rodriguez sent her a letter that explains some case law that was explained in this class.? It explains that the applicable test for an area variance which is 90% of what this Board sees is the ?Exceptional Practical Difficulty? which is somewhat less standard then a hardship.? Our Code on the other hand, refers to hardship.? Staff has been using this information in our review of applications.? Back when Mr. Rodriguez sent this letter, a conversation that came from it was that we needed to re-write the ordinance so that our ordinance does not conflict with State case law.?
Mrs. Townshend further stated that she will re-write the Board of Adjustment portion of the Code.? The powers from the Board of Adjustment come from two places; the Delaware State Code and the Dover Code; however, State Code and State Case Law supersede our Code so they need to be brought together.? It is not the issue of interpretation it is the issue of variances where it refers to unnecessary hardship and one of the tests is not granting the variance; however, depriving you of all reasonable use of your property.? The test for an area variance should not be that high.?
Mrs. Townshend further stated that what she wanted to do this evening was to do a little brainstorming about your experience with the Board of Adjustment as most of the members are fairly new as well as Staff.? Another idea that came from this seminar was to come up with some procedures for the Board of Adjustment.? The Historic District Commission has By-Laws as does the Planning Commission; however, she has not been able to find any that apply to that board.? Some of the things that have come up in the last year would be that if we had good procedures in place, they would not necessarily have to be adopted by City Council if they are the Board of Adjustments adopted procedures.? Two things that jump out are conflict of interest and the idea of postponements.?
Mrs. Townshend further stated that the reason she thought of conflict of interest is because we had the one sign variance where Mr. Sheth did not have a direct conflict of interest; however, there could be an appearance that he did.? If we had a procedure on how we determine if a member has a conflict of interest it would make it easier.? She would like to know what Staff could do from our standpoint to improve the operations of the Board of Adjustment and if she is going to put together draft procedures for you to review and ultimately adopt, what are the things that you would like her to put into this and then get out of the procedures.? She would like to take a couple of months to put these ideas together and then meet again in September to discuss what has been drafted and then from there take it to the Planning Commission and City Council to change the Code as it relates to the Board of Adjustment and to put those procedures in place.?
Mrs. Townshend further questioned if there were things that we as a staff could be doing better to communicate with this Board to get things to you in terms with how we interact with the Board and prepare for the Board that would make things easier or better for you to do your job?? Are there things in the report that you would like to see placed in the Staff reports or things in the Staff report that you do not want?
Colonel Ericson stated that most of the reports are good and are well thought out; however, it seems that recently Staff has backed off in that we did not meet any of the criteria in the rules that were set with what needed to be approved and obviously none of them hit that.? If we should look in another direction, you should just be up front with us on what your opinion is.? If you receive letters from Mr. Rodriguez that is important, not only give it to your Staff but to us as well because we do not see the case background like Mr. Rodriguez does and could possible change our way of thinking.?
Mr. Sheth stated that usually in the past, ninety-eight (98) percent of the cases heard were approved and Staff and I at that time sat down and decided that there was either something wrong with the ordinance or something wrong with the Board.? It was decided that either we change the ordinance or change the delivery of the variance.? What we found was that the Board felt that it was there responsibility to give them what they asked for so we changed the format with regards to the application to show burden on the applicant and not on the Board.? The applicant was to tell the Board why they wanted the variance not the Board telling why we would or would not give it.? This change dropped seventy (70) percent of the cases where people no longer needed to apply.? Suddenly, there is a big flow of applications and he wonders why we have a lot more now.? He would note that there has been a lot of turn over with regards to the Director of the Planning Department.? At the same time, the pressure has increased on the City of Dover for expansion so every land piece has become very important.
Mrs. Townshend stated that you are seeing an increased number of sign variances.? One of the issues is that, in due respect for the Staff who was formerly approving permits, there were a lot of sign permits issued that we are finding in the past several years in error where things did not meet the ordinance and they were issued for whatever reason which predates present Staff.? It is difficult to explain to people who were able to obtain a sign permit a couple of years ago and now they cannot.?
Mr. Sheth stated that he supports Staff in this in that the Board has to pay the cost and Staff has to pay the cost because someone bypassed the Board of Adjustment.? Responding to Mr. Sheth, Mrs. Townshend stated that they actually found a note on a permit that stated that ?even though it did not meet sign regulations, it made sense in the area.??
Mrs. Townshend further stated that we went through not only several Directors but Staff as well as Mrs. Melson-Williams is the only consistent Staff member for the last five years so we lost consistency in how these things were done.? We are stuck with what this has left us and it is difficult to tell someone that the person is no longer on Staff and they made a mistake.? Just because these mistakes were made in the past, does not mean that we are committed to making that same mistake in the future.? If you send a letter on behalf of the Board of Adjustment to the Planning Commission and myself as the Director of Planning Staff, that it has been a problem and that it has been noticed that there is an increased number of sign variances and that we strongly recommend that you look at the signage for a property during the Site Plan phase, it would help and would also document the issue.? The reality is that when they have been to the Planning Commission and obtain approval they then go to the Chief Building Inspector for a building permit and build the building based on signage being what they had planned on. The fact that it does not comply with our Sign Ordinance does not come up until the building is there and we are stuck saying we cannot approve the sign.?
Colonel Ericson questioned whether we could refer these back to the Planning Commission.? Responding to Colonel Ericson, Mr. Sheth stated that they have already been and most of the new signs would be approved along with the phase of planning.?
Ms. Cornwell stated that normally when she meets with some of the bigger franchises coming into town for pre-application meetings, sometimes she will ask about signage and if she is at the meeting she will tell them what Staff would like to see placement of the sign on the Site Plan.? She then presents the Code to them on what is permitted and will usually point out to them what would be permitted for signage.? Some will admit that they cannot meet the Code and request to come before the Board of Adjustment for relief.
Colonel Ericson questioned whether it was time that the Planning Commission look at the Sign Ordinance and make some more changes?? Responding to Colonel Ericson, Ms. Cornwell stated that a lot of signs on the agenda have nothing to do with Planning Commission.? They just want to put up a new sign and they cannot because the Code has changed or things have happened where they are looking for a different type of sign and it does not work for them.? The way a sign is approved is what street you are located on and depends on the amount of square footage area that is allowed for that sign.? Most of the City streets are local collectors which would grant thirty-two (32) square feet of signage which would be 4x8 which is a pretty decent sign.? If you are located on Route 13, Route 113 and a section of Court Street, there is no maximum so you could have a one hundred (100) square foot sign; however, you would have to meet other requirements.? There are a number of streets that are minor arterial streets; however, some are adjacent to residential properties where a big sign would not be permitted.? The smallest sign that would be permissible is sixteen (16) square feet if you are adjacent to residential and that is on a local collector.?
Mrs. Townshend stated that part of the issue is that there are a lot of Corporate entities out there that want their chains to have a certain size; however, the reality is they are going to go to the Board of Adjustment if they feel they can get it; however, there are places all over the country where the Board of Adjustment has turned them down and they are forced to do what the local government regulations say. ?They are much more attractive signage in those areas.?
Mrs. Townshend further stated that Ms. Cornwell will be working on the Sign Ordinance and will put forth a Zoning Ordinance Text Amendment that would allow us the flexibility that if it is not increasing the number of signs or the size of the sign we should have some administrative flexibility to allow it to be put on the side of the building that it is going to work best.? This will cut back on some of the requests because we have had a number in the past and some coming in the future.? Staff recently passed an ordinance in the RG-1 zoning district that allows for very small lots that do not conform to current zoning regulations that gives Staff the ability to issue administrative waivers on the Bulk Standards so that you could put a house on it without having to go to the Board of Adjustment because in some cases, it is just one more layer of bureaucracy.? To use the Board of Adjustment to create Beaurocracy that is in the end going to give people what they want anyway, the real purpose of the Board of Adjustment should be where the requirements of the Zoning Ordinance do not make sense.?
Mr. Senato stated that he felt that it was important that the input both for nay or yea in the general public should be given an opportunity to present their case.? Mrs. Townshend stated that a woman had shown up to speak regarding the Halpern application and is the second time that she had shown up.? We went by only giving the applicant one time to defer; however, in this case they deferred more than once with the cost being passed onto the applicant.? It dealt with the expense that the City occurs; however, what it did not deal with the fact that people came out.?
Mrs. Townshend further stated that the one change that Staff has made based on this is that the ad that went out this time along with the mailing, a note was placed on it that stated ?The agenda is subject to change and to contact this office or check the City?s website at 1:00 PM the day prior to the meeting.?
Mr. Senato stated that the emails that are being received by Staff, wouldn?t these emails be of interest to the Board members?? Responding to Mr. Senato, Mr. Sheth stated that anything of this nature is referred to Staff because the Chairman does not get involved in any process.
Mrs. Townshend further stated that her personal opinion is that if you start to circulate emails it starts to border on ex parte contact even though they are not talking necessarily about the content.? Her preference would be that she would simply respond to the email with what happened at the meeting.?
Mr. Sheth stated that Board members use to meet a half an hour before the Board of Adjustment meeting; however, under the new Sunshine Law, we cannot even discuss anything to do with the meeting anymore.
Mr. Sheth posed the question to members about meeting at 8:30 in the morning so that it does not break up the entire day.? Responding to Mr. Sheth, Mr. Hufnal suggested changing the meeting time to 8:30 in September when the fall schedule starts.?
Mrs. Townshend stated that she would like to create a check list similar to the one that Staff has for Annexations and for the different application processes. She would create one for our files so that Staff is sure they are getting everything done in the process.? She would like to come back in September after the 8:30 meeting to continue for another hour and talk about what we would want in our procedures so that we make sure we are doing things correctly.?
Mrs. Townshend further stated that her concern with the Ordinance and how it is written is with section 2.2 b ?the strict application of the provisions would provide the applicant of all reasonable use of such land?; however, you want to put Exceptional Practical Difficulties and because the issue is that essentially this is the test for a use variance.? Pretty much what we are saying is that if we do not give you approval for the variance there is not a single thing you can do on your land and there is no variance that we are issuing that actually meets that.? The issue then becomes changing it to have Exceptional Practical Difficulties.?
Mr. Sheth stated that he would like to request that once the Mayor appoints a new member that it be a requirement that they attend this seminar for the Board of Adjustment.?
Mr. Senato stated that there have been several times when the applicant other than a representative of the applicant shows up, he feels that the applicant should be present to present their case even if an attorney or a sign company is present.?
Mrs. Townshend stated that we often have engineers and sign company?s representing clients when really one of the things that we should think about because it is a quasi judicial board, should be we have one of two choices, either the applicant representing himself or an attorney. ?The reason being that in a court of law, you would not be able to have a civil engineer represent you.? You could call on the engineer as a witness to testify but in terms of who is representing you it should not be the engineer.?
Colonel Ericson stated that some of the applicants do not speak very well and represent themselves. ?They then have someone else there to represent them so that if they speak they can say they did not understand so they protect themselves from any legal problems.?
Mr. Senato stated that when they come up to the podium tell them to speak into the microphone and raise the microphone if necessary.? ?Give them protocol with regards to the speakers so that they do not speak to the left or to the right of the speakers so that all of the information can be heard 100%.
Mr. Senato stated that if the applicant presents any type of exhibit, he would suggest that whatever they are going to present that they present it prior to the meeting to Staff to provide copies to the Board.? Responding to Mr. Senato, Mrs. Townshend stated that she would add that all exhibits must be submitted to the Planning Staff within twenty-four (24) hours prior to the meeting.?
Mrs. Townshend asked if the Board was in agreement with postponement.? Staff could say that any additional postponements would result in the full application fee.? Previously, it was the applicant pays the cost of advertisement and mailing costs.?
Colonel Ericson stated that with regards to postponement it is not always the applicants fault.? Responding to Colonel Ericson, Mrs. Townshend stated that what we could state is that ?at the applicants request or because of a no show.?? Colonel Ericson requested that it be done this way.? ?
Mr. Sheth stated that he feels that a financial interest in the matter should not be considered as a conflict of interest.?
Ms. Senato stated that sometimes we have a hesitation on how a motion should be worded.? He looks at it from a standpoint based on what Staff?s recommendations are.? Responding to Mr. Senato, Mrs. Townshend stated that she thinks that she would bring forward to you in September a draft of rules to review.? She could possibly give it to you at the July or August meeting and then come back in September to discuss it.? She wants to change the application according to the Ordinance; Planning Commission approves the application; however she wants this Board to look at it before it goes to the Planning Commission.? The application is geared toward variances and do we need a different application for interpretations and what she has been doing is having the request submitted in letter form.? Staff will only review what has been placed on paper.?
Meeting adjourned at 5:39 PM.??
Sincerely,
Diane Metsch
Secretary