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HomeMy WebLinkAboutcoa.lu.ca.Sign Code Cunniffe.QA043-99 1""""\ i"",,, MEMORANDUM TO: THRU: The Mayor and City Council Amy Margerum, City Manager John Worcester, City Attorney FROM: RE: Julie Ann Woods, Community Development Director Appeal of Code Interpretation: Section 26.04.100, Definitions, "Sign", and Section 26.36.030, "Procedure for sign permit approval, (B) Exempt signs, (6) Fine Art." DATE: May 10, 1999 SUMMARY: Section 26.04.100, Definitions, of the Municipal Code defines "Sign" as follows: Sign means any object, device, display, symbol, light or structure, fixed to, painted on, placed on or incorporated in, the building surface of structure, or displayed from or within a building or structure, or freestanding upon the site which is designed to be visible from outside and used, intended or designed to conveyor direct information or a message to the public concerning the identification of the premises or to advertise or promote the interests of any private or public firm, person, organization, service or product.. This definition is broad and encompassing and could be interpreted in a multitude of ways. Herb Klein, esq., representing Charles Cunniffe and Charles Cunniffe Architects (CCA), submitted a request for interpretation arguing that the backlit photo transparencies of homes on display in the window of Charles Cunniffe's office are simply photos with no written words, and that such an object should not be considered a sign. He further states that "Furthermore, without conceding that the photos are a sign, CCA believes that the photographs it displays are a form of art and may be considered to be an exempt sign under 26.36.030(B)(6)." This cited section of the code identifies signs that may be exempt from obtaining a sign permit, but must still comply with all other applicable provisions of the code. Section 26.36.030(B)(6) does identify that "fine art" is considered exempt from obtain a sign permit, and reads as follows: 6. Fine art. Works of fine art which in no way identifY or advertise a person, product, service or business, Mr. Klein purports that the photos simply represent the art that has been created, and that since they do not have any written words on them, they do not convey any message that one would typically expect to be contained within a sign. The specific request by Mr. Klein is an ". . .interpretation by the Planning Director and if necessary, the City Council, as to whether or not they believe that CCA's photographs are a sign or in the alternative, that if the photos are a sign, that they are exempt as art." ~ r-, ,-" INTERPRETATION: Photo display boxes, such as the one located at the Charles Cunniffe offices, have historically been viewed by the Community Development Department as signs and have been required to meet all standards of the sign regulations, including the provision in Section 26.36.070 prohibiting signs from being illuminated by the use of internal or rear illumination. Staff has not interpreted photo displays of this kind as fine art as they are used to specifically identify a product or business. The community Development Director has concluded that the photo display board is a sign, and therefore must comply with all provisions of 26.36, including obtaining a sign permit and complying with the sign illumination requirements. (See Exhibit B). BACKGROUND: Based on a complaint from a resident, the Zoning Enforcemen~/ Office followed up with a citing of a violation to the sign code for an internally ") illuminated (backlit) display board located in the window of Charles Cunniffe's offices ~ located at 610 E. Hyman Ave. The Zoning Officer concluded that the display box, which 'v ~ ~ ' displayed residences designed by the architecture office, was indeed a Sign" and was in ~ \:"_.:L ~ violation of Section 26.36.070 Sign Illumination. She informed the owner that the sign .....\.~ could remain, but a permit must be applied for and the sign could not be internally / < ")2 ~ illuminated. The owner then requested an interpretation from the CommunityC ~ ?X Development Director (see Exhibit A) requesting that the sign be considered "fine art" ~ .~ ~~ and therefore be exempt from the necessary permits. Upon advise of legal counsel, the ~ ( Director also concluded that the backlit display is indeed a sign, as defined in the code, n and is subject to the requirement that signs not be internally illuminated. Exhibit B is a ~ ") ")0 copy of the Community Development Director's interpretation. Upon receipt of this /:::"\ '-~ interpretation, the applicant, through his attorney, has petitioned the City council to \:.. S- .,) consider an appeal from the Director's decision (Exhibit C). ~ '-:) \ DISCUSSION: A number of "sign code" enforcement complaints have been received ~ ff~ ~ by the Community Development Department in recent months, which pertain, not to ./, actual signage, but rather to window displays and merchandising. Staff does agree that vs, , the definition of sign is so broad in scope that window displays, as well as any '\ 0>?- merchandise that is visible to the public, can technically be considered as signage. The , '\t c '.J conflict arises when staff is asked to enforce and regulate window displays under the sign 'f: code criteria. As the sign code prohibits moving parts, neon lighting or backlit lighting ~. ;<: we have been asked to regulate items such as a moving bicycle wheel in the window of :t.. I The Hub, a small rotating "chef' in the window of Charcuterie, and a backlit panel in the Y "j .J' window of Gucci. At a recent Cl,' ty Council meeting, a neon cowboy located at a gallery ~ '^- on Hyman Avenue was also discussed as a possible violation of the sign code. ~ "-.. ')~ Staff is concerned that if "merchandise" is actually considered as signage, then all aspects ~ \. ~ of the sign code should apply to displays, not just the regulations regarding lighting and,. ~~ moving parts. However, if we were to apply all provisions of the sign code to window displays then virtually every business in town would be violating the sign code in that /':If most would be exceeding the allowed size and number of signs. If it is determined that window displays are not to be considered as signage, the current \. ~ sign definition could be amended to be more narrowed in scope. If it is determined that '"\ _ -'S \. window displays still need to be regulated in regards to lightin.g, moving parts, etc., a N~ ~ code section could be added that is specific to window displays and merchandising, ~ ~ " separate from the sign code regulations. Adding language to the upcoming code {; I ~ _ ~ 0'" ~ ;;.. ;k, ~U\ c, \J~s;;~~ -~ ~s ,/, ~ 2 -\ i'""'l amendment for lighting standards which would address the use of neon or backlighting in commercial window displays, could also be considered. CONCLUSION: While staff is comfortable basing its conclusions on the current definition of "signs", we do recognize that an amendment to more specifically address signs vs. window displays may be appropriate. The interpretation of photo display boxes being considered signs has been consistently applied in the past. Thus, while staff stands by its interpretation, staff also feels it might be worthwhile to pursue a simple code amendment that would allow for the a more specific definition of sign, separate from window display of merchandise, as well as new language under the new lighting standards that would address illumination of window displays, if City Council agrees. City Council should also consider whether it wants to regulate moving parts within a window display. RECOMMENDATION: Staff recommends that City Council uphold the Community , Development Director's interpretation of Section 26.04.100, Definitions, "Sign" fmding that the term "sign" as used in the subject definition does refer to the backlit photo display case located within the Charles Cunniffe office, that is designed to be visible from the outside and intended to convey information or to promote the interests of the Charles Cunniffe Architectural firm's product. Further, that the subject sign should not be considered fine art under Section 26.36.030(B)(6) which would be exempt from a sign permit. In addition, it is recommended that Council direct staff to pursue a simple code amendment that would allow for the a more specific definition of sign, separate from window display of merchandise, as well as new language under the new lighting standards that would address illumination of window displays. RECOMMENDED MOTION: "I move to uphold the Community Development Director's March 15, 1999, Code Interpretation regarding the definition of "Sign," as provided in Section 26.04.100 of the Aspen Municipal Code, and find that the subject sign should not be exempt under Section 26.36.030(B)(6) as fine art." "I also move to direct staff to pursue a simple code amendment that would allow for a more specific definition of sign, separate from window display of merchandise, as well as new language under the new lighting standards that would address illumination of window displays." EXHIBITS: Exhibit A --- Request for Interpretation Exhibit B --- Director's Interpretation Exhibit C --- Request for Appeal ofInterpretation G:/planningJaspenlmemos/signintrp.doc 3 r" ~ I ~\ G ("f"" <:.- 201 NORTH MILL STREET SUITE 203 ASPEN. OOLORADO 81611 TEL: (970) 925-6700 FAX: (970) 925-3977 HERBERT S. KLEIN MILLARD J. ZIMET' PROFESSIONAL CORPORATlON ATIORNEYS AT LAW OF COUNSEL: JACQUELINE L. GARDNER "also admitted in New York April 14, 1999 Julie Ann Woods Community Development Director City of Aspen 130 S. Galena St. Aspen, CO 81611 Re: Charles Cunniffe Architects - Alleged Sign Violation - petition to City Council Appealing Community Development Director's Code Interpretation. Dear Julie: This office reoresents Charles Cunniffe and Charles Cunniffe Architects ("CCA"),. I have received your code interpretation dated March 15, 1999, which was provided to me by Sara Thomas' letter dated March 16, 1999, concerning this matter and am now submitting this letter as the "Petition" called for by Section 26.112.010 F, constituting an appeal of your decision to the City Council. The decisions being appealed are your determinations that (1) the color transparencies of houses which Mr, Cunniffe has designed are signs within the City Land Use Code ("LUC") definition found at LUC 26.04.100; and (2) these photos are not exempt from the sign code as "fine art" pursuant to LUC 26.36.030. Enclosed is a letter to the City Council constituting the Petition, Please forward this on to the Council and contact me so that we can establish a date when a hearing can be held with Council on this matter, Thank you for your anticipated cooperation, Very truly yours, KLEIN-ZIMET PROFESSIONAL CORPORATION ~ Herbert S. Kl~' By: sg\cunniffe\104.ltr Enclosure I"'" PROFESSIONAL CORPORATION ATIORNEYS AT LAW 201 NORTH MILL STREET SUITE 203 ASPEN. COLORADO 81611 TEL: (970) 925'8700 FAX: (970) 925.3977 HERBERT S. KLEIN MILLARD J. ZIMET' OF COUNSEL: JACQUELINE L. GARDNER *also admitted in New York April 14, 1999 Honorable City Council City of Aspen 130 S, Galena Street Aspen, CO 81611 Re: Charles Cunniffe Architects - Alleged Sign Violation - Petition to City Council Appealing Community Development Director's Code Interpretation Members Dear Council Members: This office represents Charles Cunniffe and Charles Cunniffe Architects ("CCA"). CCA has been cited for a violation of s26.36.070(A) of the City Code which relates to prohibited illuminated signs. This allegation relates to CCA's placement in the window of its office of back-lit photo transparencies of homes which it has designed. The photos do not have any written words on them and are simply photos of homes designed by CCA. I sought and have received a code interpretation from Julie Ann Woods, Community Development Director dated March 15, 1999, which was provided to me by Sara Thomas' letter dated March 16, 1999, and am now submitting this letter as the "Petition" called for by Section 26.112.010 F, constituting an appeal of the Director's decision to the City Council. The decisions being appealed are her determinations that (1) the color transparencies of houses which Mr. Cunniffe has designed are signs within the City Land Use Code ("LUC") definition found at LUC 26.04.100; and (2) these photos are not exempt from the sign code as "fine art" pursuant to LUC 26.36.030. The first question which requires a determination is whether or not these photos are a "sign". If the first question is determined in the affirmative, then the second question which needs to be determined is whether these photos are exempt from the sign code as "fine art". Unfortunately, the Director I s determination of the first question did not explain why she believed that these photos are a "sign" and simply states that the Community Development Department ("CDD") has historically viewed similar photo display boxes as being signs, There is no reasoning or analysis of the LUC provided nor any explanation as to why the CDD has historically taken this position. With respect to the second question, the CDD position is that these photos are not within the r-, ~ Honorable City Council Members April H, 1999 Page 2 definition of "fine art" because they "specifically ident.ify a product or business". I have reviewed the Code definition of "sign" found in ~26.04.100 and also the relevant sections of the sign code found in ~26.36.010, ~ ~ I have also walked by CCA's offices at night and observed its photographs as well as the appearance of storefronts nearby and in other parts of town. Quite frankly, I find it difficult to agree that CCA's photographs constitute a sign. It is true that the photographs are illuminated from the rear because they are transparencies and can only be viewed in this manner. However, simply having an obj ect illuminated from the rear does not make it a sign, When the definition of "sign" is scrutinized, it appears to be extremely broad and if applied to this situation it will be challenged as unenforceable for this reason. The definition states, generally, that any object which conveys information to advertise or' promote any firm, person, service or product is a sign. Does this mean that the sweatshirts in the window of the Gap are signs? After all, they prominently have the word "Gap" on them. How about the lamps lit up at night in the window of the Aspen Lighting Studio, are they signs? They are objects which convey information about what is sold there, and they are internally illuminated. What about the photos of homes for sale in every realtor's office in town, are they signs? Is an antique urn displayed in a shop window and illuminated from all sides a sign? Is that diamond necklace in the Hyde Park window, illuminated from the rear a sign? Is a photograph of a house designed by an architect a sign? As you can see, the City's definition of sign is so broad that it could include all of these objects. Historically, the City has not treated these objects as signs even though they seem to fit within the overly broad definition. We submit that CCA I s photos are not signs and have fewer indicia of information displayed by other objects which the City has not interpreted as being signs. For example, there is no lettering or logo identifying CCA,on the photos, They are simply photos of houses designed by CCA. In that regard they are similar to the wares displayed in store windows allover town, and are less like signs than those like the Gap which puts its name in big letters right on the front of its sweatshirts, or the jewelers whose name appears on the display which holds the jewelry item. Therefore, we believe these photos are not signs within the intent of the sign code. If despite the foregoing reasons why these photos are not signs, you determine they are signs, then the second question must be addressed, e.g. are these photos fine art and deemed an exempt r-, ,-" Honorable City Council Members April 14, 1999 Page 3 sign under ~26.36.030B6. It is well recognized that architectural work is an art form. In fact, the Council recently dealt with this issue in a similar vein and determined that architects should be allowed to have offices in the neighborhood commercial zone because their work is similar in character to the allowed use for artists studios. Since these photographs do not have any written words on them, they do not convey any message that one would typically expect to be contained within a sign. These photos simply represent the art that has been created and are as much art as are the photos or watercolors of Aspen's victorian houses which appear in many shop and gallery windows. In conclusion, the photographs are attractive and certainly not offensive in any respect. Simply walking down the street at night ought to provide you with an appreciation of the "stretch" that the CDD has undertaken to include CCA's photographs within the definition of sign and then to assert a code violation based upon them as prohibited illuminated signs. Thank you very much for your anticipated cooperation in this matter. I would appreciate your scheduling a hearing on this matter so that we can make a presentation of our position and provide you with additional information at that time. Very truly yours, KLEIN-ZIMET PROFESSIONAL CORPORATION -x% Herbert S. Klein, Esg, .-/ By: sg\cunniffe\103.1tr cc: Charles Cunniffe ,,-.. ,,-.. I""'" 1""'. ~ March 16, 1999 Mr. Herb Klein , 201 North Mill Street, Suite 203 Aspen, Color<;Q9_816 I 1 Dear Mr. Klein, ASPEN ' PITKIN COMMUNITY DEVELOP~IE>:T DEPARNENT Please find enclosed a code inte:pretation from the Community Development Department in response to yoUr recent request regarding the Charles Cunnife Architects backlit photo display box. It is the opinion of this office that the photo display box is indeed a sign, and cannot be consi<;iered as "fine art". Therefore, our office requests that the sign be brought into compliance with all applicable sign regulations, including the submission of a sign permit application and removal of the backlit lighting, by no later than March 30, 1999. ' Feel free to contact me if you need any additional information. "Sinceret, , , . . "c#rj)..:/{'l () IYcM Sara Thomas, City Zoning Officer cc;.- J.d~ -' :llJn.~rm~~~InW~~{)r David Hoefer, Assistant City Attorney 130 SoUTH GALE~A STREET' ASPEN, COLORADO,81611.1975 . PHoNE"970.920.5090 . FAX 970.920.5439 . PrintedOll Recyded Paper JURISDICTION: GXHIG/'t" ,. App" 1'-1(1 ;;.- ~.t::::O ASPEN/PITKIN COUNTY COMMUNITY DEVELOPMENT DEP ARTMENT"", :~lj1.'-? 1. {i lOo CODE INTERPRETATION trlMUNt>". ....is ':""C; ,- C";-.. _.-:~""'~/t/vru' "V!-,.;'>'~ I,:::., '" "':~::'/I '" {"...-. (""'\ "1 City of Aspen APPLICABLE CODE SECTION: Section 26.36 (Signs), Section 26.04.100 (Definitions - Sign) EFFECTIVE DATE: March 5, 1999 '.' .) (\ APPROVED By:"'>!~A..-CJN>r ,/ ,Sara Thomas, City Zoning Officer DATE: 3/;S/39 WRITTEN BY: SUMMARY: Mr. Herb Klein submitted a code interpretation request to the Community Development Department on February 22,1999 to determine if the sign code regulations were applicable to the backlit photo display box that was recently erected outside the Charles Cunniffe Architects office building. . BACKGROUND: Section 26.04.100 of the Municipal Code reads as follows: Sign means any object, device, display, symbol, light or structure, fixed to, painted on, placed on or incorporated in, the building surface of structure, or displayed from or within a building or structure, or freestanding upon the site which is designed to be visible from outside and used, intended or designed to conveyor direct information or a message to the public concerning the identification of the premises or to advertise or promote the interests of any private or public firm, person, organization, service or product,. Mr. Klein states in his interpretation request that the Community Development Department should consider the photo display as fine art, and not as a sign. Section 26.36.030 (B) (6) - Exempt Signs - defines "fine art" as follows: 6, Fine art. Works of fine art which in no way identify or advertise a person, product, service or business. Exempt signs, including fine art, are exempt from having to obtain a sign permit, but are still required by Section 26.36.030 to comply with all other provisions of the sign regulations. INTERPRETATION: Photo display boxes, such as the one located at the Charles Cunniffe offices, have historically been viewed by the Community Development Department r-, tl as signs and have been required to meet all standards of the sign regulations, including the provision in Section 26.36.070 prohibiting signs from being illuminated by the use of internal or rear illumination. Staffhas not interpreted photo displays of this kind as fine art as they are used to specifically identify a product or business. Staff concludes that the photo display area at the Charles Cunniffe Architects office is a sign and therefore must comply with all provisions of Section 26.36, inc1u.ding obtaining a sign permit and complying with the sign illumination requirements. .~..~ ..""\ i"'"'\ '",,-, Februar.y 22, 1999 . Julie Ann Woods CommUnity Development Director City of Aspen 130 South Galena Aspen, CO 81611 RE: Request of Herb Klein For a Code Interpretation Regarding the Sign Code fU::CEIV~O FrS 2.: 1999 Sat cJ., Ocd-P.) 51.~~ ~ Aq'f3 - 97 . THE CITY OF ASPEN . OFFICE OF THE'CITY AnoRNEY ASPEN I PiTKIN . COMMUNiTy DEVElOPf.jEN'l Pear Julie Ann, Please find enclosed a letter from Herb Klein requesting a code interpretation regarding the alleged sign code violation by Charles Cunniffe Architects. . The request is explained in detail in the enclqsed letter. Please proceed ""ith the requested interpretation. , Thanks. ..-0 avid Hoefer J- . Assistant City Attorney cc. Herb Jqein Sarah Oates 'Pcfntecl en Recycled Paper 130 SoUTH GALENA STREET' ASPEN, COLORADO 81611.1975 " PHONE 970.920.5055 . FAX 970.920.5119 ,-., .~ 1Sl(l-t'U.l-r Pr LAW OFFICES OF HERBERT S. KLEIN & ASSOCIATES, P.c. OF COUNSEL: JACQUELINE L GARDNER * olso admitted in r'lew York 201 NORTH MILl. STREET SUITe 203 ASPEN, COLORADO 81611 (970) 925-8700 TELECOP1ER (910) 925-3977 TELLURIDE OFFICE: P.O. BOX 215 ~,,~ -'1,517 1a 7$:':) 300 WEST COLORADO AVENUE . " + ~O~ SUlTE2B .:..~ '? ...... ~ ELL.URJOE. COLORADO 81435 1999/2. FEB 1999 ~ ELEC~:~~~2(:-:~)5;25.3977 I; City Allorney's ~ Office ti 1:> .GJ , ",:' :.::' ,?:: ":.1:'J: HERBERT S. KLEIN MILLARD J. ZIMET" February 16, David Hoefer, Esq. Assistant City Attorney City of Aspen 130 S. Galena St. Aspen, CO 81611 Re: Charles CUlli,iffe Architects - Alleged Sign Violation Dear David: This office represents Charles Cunniffe and Charles Cunniffe Architects ,( "CCA"). Mr. Cunniffe referred' to me your letter of February 5, 1999, wherein your office alleges that CCA is in violation of ~26. 36,. 070 (A) of the City Code which relates to prohibited illuminated signs. This allegation relates to CCA's placement in the window of its office of back-lit photo transparencies of homes which it has designed. The photos do not have any written words on them and are simply photos of homes designed by CCA. Apparently, Sarah Oates, the City Planning Technician, believes that these photographs constitute a "sign" under the City code. I have reviewed the Code definition of "sign" found in ~26.04.100 and also the relevant sections of the sign code found in ~26.36.010, et. ~ I have also walked by CCA's offices at night and observed its photographs as well as the appearance of storefronts nearby and in other parts of town, Quite frankly, I find it difficult to agree with your assertion that CCA's photographs constitute a sign. It is true that the photographs are illuminated from the rear because they are transparencies and can only be viewed in this manner. However, simply having an object illuminated from the rear does not make it a sign. When the definition of "sign" is scrutinized, it appears to be extremely broad and possibly unenforceable because of its breadth. In particular, the definition of "sign" states, generally, that any object which conveys information to advertise or promote any firm, person, service or product is a sign. Does this mean that the sweatshirts in the window of th~ Gap are signs? How about the lamps lit up at night in the window of the Aspen Lighting Studio, are they signs? What about the photos of homes for sale in every realtor's office in town, are they signs? Is an antique urn displayed in a shop window and illuminated from all sides a sign? Is that diamond necklace in the Hyde Park window, illuminated from the rear a sign? Is a photograph of a house designed by an architect a sign? As you can see, the City's definition of sign is r-, .~ David Hoefer, Esq. February 16, 1999 Page 2 so broad that it could include all of these objects. Historically, the City has not treated these objects as signs even though they seem to fit within the definition. Why then, is CCA being singled out? Furthermore, without conceding that the photos are a sign, CCA believes that the photographs it displays are a form of art and may be considered to be an exempt sign under ~26.36.030B6. It is well recognized that architectural work is an art form. These photos simply represent the art that has been created. Since these photographs do not have any written words on them, they do not convey any message that one would typically expect to be contained within a sign. The photographs are attractive and certainly not offensive in any respect. Simply walking down the street at night ought to provide you with an appreciation of the "stretch" that the City Planning Technician has attempted in order to include CCA's photographs within the definition of sign and then to assert a code violation based upon the prohibited illumination of a sign. It seems that rather than precipitously taking this matter to court, it might be better to seek an interpretation under ~26,l12,OlO by the Planning Director and if necessary, the City Council, as to whether or not they believe that CCA's photographs are a sign or in the alternative, that if the photos are a sign, that they are exempt as art. We, therefore, request that such interpretation be made by the Planning Director. I would think your office would support such determination so that if the Planning Director or, on a subsequent appeal, the City Council determines that CCA's photographs are not signs or are exempt as art, a prosecution will be avoided. On the other hand, if through the appeal process the City Council determines that CCA's photographs are signs, we will at least have had an opportunity to discuss and fully evaluate how council interprets the definition of a sign in light of the breadth of the current code section. Thank you very much for your anticipated cooperation in this matter. I would appreciate a response to this letter and an indication as to whether or not the City will process this response as a request for an interpretation. Very truly yours, HERBERT S. KLEIN & ASSOCIATES, P,C. By, ~ Herb t S. Klein sg\cunniffe\102.1tr cc: Charles Cunniffe