With the conclusion of the holidays, we’re about to get back into the swing of committee and council meetings, but I have been using some of this quiet time over the last couple weeks to go back and recap old Board of Zoning meetings that I missed when they first happened.
As we saw with the recent request by Ben to the Board of Building Inspection, not all variance requests get approved, and such was the experience of the Orthopedic and Sports Institute of the Fox Valley on 10/18/2021 when they requested a variance to install, on their property, a raised, oversized sign that could be seen and easily read by someone driving on highway 41.
As laid out in the agenda, “The applicant proposes to install a sign that is 694 sq. ft. Section 23-529(c)(2) of the Zoning Ordinance limits the area of a sign in this location to 200 sq. ft.”
Curt Kubiak the administrator of the facility and Brad DePasse of Brilliant Marketing and Consulting appeared before the committee to plead their case for a variance.
Curt started out by explaining that the property was first developed in 2006 at the corner of Ballard and 41. The Orthopedics and Sports Institute was the first facility in that location. Since that time other large buildings have been built around them and vegetation has also grown up. As a result, they have not had good visibility of their property since the area has been fully developed. “So, for us the hardship is the location of the property on a corner lot. We have encumbrances visually with the overpass of the highway. We have encumbrances with other buildings that have been put up since our facility has been put up, and we’ve got issues with both wayfinding as well as signage that would depict what our facility offers to the community.”
He noted that 11 years ago they had added a skilled nursing facility onto the building which they called “Recovery Inn”. That allowed them to perform total hip and total knee replacements in an outpatient setting, and they have performed thousands of those procedures over the last 11 years. They’ve also added on different services since then such as a walk-in clinic that’s open 7 days a week as well as other amenities, but they don’t have a great way of letting folks know what is there. The signage would allow them to let people know what sorts of things were available at that location.
He finished up by reiterating, “Again, the encumbrance, or the hardship, that we have is the physical location of the property—it does sit lower than other properties so it’s not easy to see because of some of these physical attributes of that corner.” Later on in the meeting he noted that Fox Communities Credit Union which leased the building next to them was supportive of their proposal, and their general council actually sent in an email to the board stating as much.
Brad gave what sounded like a fairly involved presentation. Although my impression was that there was some overlap between the PowerPoint and videos he shared and the images included in the agenda packet, it sounded to me like what he presented to the board was much more extensive than what was included in the agenda packet.
The presentation, discussion, and deliberations took around a hour and 20 minutes. Given that I don’t have all of the slides that he was presenting, I’m going to greatly truncate things for this recap.
Essentially, Brad presented a lot of information demonstrating the visibility issues that existed with the property and then went over federal guidelines for highway signage regarding the sizes and positions to achieve maximum readable and not cause distracted driving. It was, I would say, fairly reasonably demonstrated that there were visibility issues for signage on that property and that those visibility issues were due to the layout of the property because it was next to an overpass and also fairly low down. Northbound traffic, notably, could not see any signage whatsoever.
They wanted to install a digital sign that would serve to both signal their presence at that location and serve as a type of branding that advertised the various services that they provided at that location. I did gather that the images on the sign would not be moving images, but it wasn’t clear to me if it would just be a single static image or if the sign would involve a series of changing images.
In the information in the agenda packet, it was not clear that the sign they were proposing was going to be a digital sign, and it sounded to me like that was a surprise to the board members also. It added an additional wrinkle in that, by city code, digital signs are limited to no more than 48 square feet in size which is far less than the 200 square feet limit for a regular sign that they already wanted to exceed by nearly 500 square feet. It also put limitations on the dimensions that the sign could be because the Direct View LED panels that would comprise the sign come in certain set dimensions which influences how the sign will end up being configured and what aspect ratio it can have.
The size of the sign they wanted to erect was essentially the size of a billboard, and the municipal code does not allow the erection of billboards along the highways in the city of Appleton.
Boiled down, there were essentially two issues or arguments being made. (1) The location and layout of the property resulted in OSI not being able to erect a sign on their property that both conformed to code and was easily visible to passers-by on highway 41. (2) Their signage and advertising needs could only be served by getting a variance to erect a very specific size and style of sign that was either (depending on the code) 500 square feet or 650 square feet larger than what they would otherwise be allowed to erect.
Brad presented much data and many cogent reasons why signs need to be a certain size in order to be read by someone travelling along the highway at highway speeds. He also presented reasons why the municipal code governing electronic signs was outdate given the changes and improvements to the technology, but, ultimately, his arguments were being given to the wrong body. As Inspections Supervisor Craanen noted in his Staff Analysis memo, “the more appropriate course of action would be to petition the City Council to change the code language.” Regardless of the data supporting the need for a larger sign, was this something that it was appropriate to handle with a variance given that the Common Council had already determined that they wanted signs along the highway to be no larger than 200 square feet.
Board member Kelly Sperl said that he was struggling a bit with how to handle this. Everything that Brad had said made sense from a marketing standpoint and a readability standpoint and, basically, a “selling the sign” standpoint, but he wasn’t sure how that could be attached to a hardship that would support a variance.
Board member Chris Croatt was concerned about the repercussions of granting such a variance. “If you grant one you’ve set a precedent, and now all of a sudden you might have more of them.” He thought the language of the municipal code was what Curt and Brad needed to be addressing.
Board Chairman McCann echoed those concerns when he said, “I’m still searching for a hardship…One of my concerns here—you’re not the only business on 41 within the city of Appleton that’s going to be interested in airing their advertising message to all those people on highway 41….I don’t know what hardship you can actually solve with this problem, and I don’t think the code was intended to allow this type of a sign. And I know that’s why you’re here is to prove a hardship and to get a variance. It’s really hard to see where this gets you what you want to have because of some unique situation…on your property that isn’t going to extend to everyone else’s property. I mean, you’ve got plenty of space, you’ve got plenty of access from two different roads. It’s just hard for me to put it together.”
There was some discussion between the board, Curt, and Brad regarding possibly decreasing the size of the sign, but Brad needed to do some research into how small the sign could be while still being readable and serving the purpose that they wanted it to serve.
Regarding the purpose of the sign, Chairman McCann said, “I think the sign code is intended to provide some sort of a locator sign with a logo and a reasonable ability to identify and read that and not necessarily share your marketing message at 65 miles an hour. I just don’t think the code intends for that to be done with the sign.” He couldn’t imagine Thrivent or Encircle Health putting up signs advertising their entire portfolio of products and services.
Curt pointed out that Thrivent and Encircle both had unencumbered views up and down 41, but Chairman McCann responded that Encircle had appeared before the Board of Zoning Appeals and argued that they didn’t have an unencumbered view for southbound traffic.
Board member Sperl also pointed out that these sorts of things are generally reviewed when site selection is done on projects and properties. He also note that, in terms of access to the highway, OSI had a lot more as compared to some of the other places.
There was some discussion about holding the item instead of voting on it, but Inspections Supervisor Craanen advised them they could vote on it that evening and then the applicants could come back with a new application and proposal in the future if they so chose.
Curt said [understandably I would say], “I would like to know before we invest that additional energy and money that that’s something that this board would consider, right? Because, again, we’re asking you to consider a physical hardship that is attributable to this particular property. So I’d like some feedback from the board as to your understanding of that before we go and make additional…”
That additional feedback was difficult for the board to give given that they did not know what a future proposal would potentially look like. They didn’t know the message on the sign. They didn’t know if OSI would be trying to do marketing on the sign that might better fit on their website.
There were also financial considerations that OSI had throughout this pursuit, but as board member Sperl pointed out, financial considerations were the one thing the board couldn’t consider. What they needed to determine was could OSI use the property without the variance?
Curt responded they had tried to use signage on the side of the building to accomplish their objectives but it wasn’t working. He acknowledged that there were numerous ways for them to reach their clients, “but the facility itself is–has become an icon and is something that people recognize in the valley, even folks that travel to us from the UP and elsewhere to have their procedures done at our facility, but it’s difficult to get the message out from this location because of the physical attributes of this particular parcel. So, if what you’re saying is ‘we acknowledge that there are physical attributes at that location that are encumbering you from meeting the need, but we don’t believe that you met the minimal viable solution’ we can go back and rework that.”
Chairman McCann said he didn’t know where his threshold of pain on this particular sign was. “I do recognize that the standard, or the compliant, sign is probably not sufficient for even a locator sign on this property. I recognize that. So I do think that there is a hardship in comparison with the current requirement. I think that this is—your request here has just gone way past what I think the intent of the sign code is.”
Brad started kicking around some ideas for changes, but board member Croatt suggested the board take up the item as originally submitted and then, in the future, Curt and Brad could bring a new application forward. He said he wasn’t comfortable changing things that evening. He had five reasons why he couldn’t support the current variance request and he thought there was a bigger discussion to be had, particularly around the language of the code and whether that needed to be changed, but that was for the Common Council. He was also struggling with the hardship and the precedent that it might set.
There was a brief discussion as to whether the motion made should be a motion to approve with people voting nay to deny, or a motion to deny with people voting aye to affirm that. It was determined it should me a motion to approve with nay votes to deny.
Board member Croatt said, “I’m going to make a motion to approve this for the purposes of taking a vote.” He was seconded by board member Sperl.
There was no further discussion and the board voted unanimously to deny the application for a variance.
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=894382&GUID=2F12B96D-8620-4C0B-B16F-14CB70512872
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