TOWN OF

TOWN OF CARY
ZONING BOARD OF ADJUSTMENT QUASI-JUDICIAL HEARING
(December 3, 2007; Board in recess until January 9, 2008, 5 p.m.;
Board in recess until February 20, 2008, 5 p.m.; Board in recess until March 3, 2008, 6:30 p.m.; Board in recess until March 26, 2008, 7 p.m.)

ADDENDUM TO THE TOWN OF CARY
ZONING BOARD OF ADJUSTMENT QUASI-JUDICIAL HEARING
(DECEMBER 3, 2007)

FOR THE JANUARY 9, 2008 ZONING BOARD OF ADJUSTMENT QUASI-JUDICIAL HEARING

ADDENDUM TO THE DECEMBER 3, 2007 APPEAL WORKSHEET

IN THE MATTER OF: CASE NO’s. 07-AA-01, 07-AA-02, 07-AA-04

TOWN OF CARY
STATE OF NORTH CAROLINA

APPLICANT NAME(S) AND ADDRESS (Person aggrieved by an order, requirement, permit, decision or determination that is subject to an appeal to the BOA):

Reginald B. Gillespie, Jr., Attorney (Faison & Gillespie)
Representing:
Fairway Outdoor Advertising
P.O. Box 10545
Raleigh, NC 27605

ADDRESS OF SUBJECT PROPERTY: 844 E. Chatham Street

NAME(S) AND ADDRESS(ES) OF PROPERTY OWNERS, IF DIFFERENT FROM APPLICANT:

Elizabeth C. Nowell Family Ltd. Partnership (ECNFLP) own the real property upon which the billboard
is located

900 E. Chatham Street
Cary, NC 27511

STAFF REPRESENTATIVE:
Jeffery G. Ulma, AICP, Director, Planning Department
Phone: (919) 319-4580
E-mail: jeff.ulma@townofcary.org

Jennifer Currin, Planner II
Phone: (919) 469-4342
E-mail: jennifer.currin@townofcary.org

UPDATE from December 3, 2007 Hearing

After the December 3, 2007 Zoning Board of Adjustment’s decision that the original appeals to Mr. Bill Coleman, Town Manager, were timely, Legal Department staff requested Mr. Coleman’s review of substantive matters relating to such appeals that had not previously been considered. On December 17, 2007, the Town Manager responded to Fairway Outdoor Advertising’s appeals with respect to the issue of (1) whether Fairway’s sign located on the property at 844 E. Chatham Street is in violation of the Land Development Ordinance (LDO) and (2) the issue of whether the civil penalties assessed by the staff should be upheld. The Town Manager’s written determination concurred with Planning Department staff that the sign in question is indeed in violation of the LDO and should have been removed by July 1, 2006. Mr. Coleman also concluded that the amount of the civil penalties should not be reduced and Fairway should pay the civil penalties as of September 10, 2007 (in the amount of $51,350).

On behalf of Fairway Outdoor Advertising in a letter dated December 21, 2007 to Town Attorney, Christine Simpson, Mr. Reginald Gillespie maintained his client’s appeals (07-AA-01, 07-AA-02, and 07-AA-04) in all cases being reviewed by the Zoning Board of Adjustment.

[Attached are copies of 1. December 17 Manager’s Decision Letter and 2. December 21 Appeal Letter from Faison & Gillespie]

Matters for Consideration on January 9, 2008

Based upon this consideration by the Town Manager, the questions of timeliness of the appeals presented to the Board of Adjustment in December are no longer relevant, and only the three substantive issues remain. These issues are again being presented for consideration by the Zoning Board of Adjustment on January 9, 2008, and they include:

(1) An appeal of the violation,

(2) An appeal of a decision by the Planning Director not to allow a substitute sign to be permitted using the “unlisted use” provision contained in the LDO, and

(3) An appeal of the amount of the civil citation.

THE APPEAL PROCESS is provided as required by N.C.G.S 160A-388 and Secs.3.21 and 11.2.2 of the Cary Land Development Ordinance (LDO). Per the LDO:

The Board may, by Resolution, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and shall make any order, requirement, decision, or determination that in its opinion ought to be made in the premises. To this end the Board shall have all the powers of the officer from whom the appeal is taken. The Board shall not reverse or modify the Contested Action unless it finds that the administrative officer erred in the application or interpretation of the terms of the Ordinance or related policies adopted by the Town. The Board shall not reverse or modify the Contested Action unless there is a concurring vote of at least four-fifths (4/5) of the members. If the Board reverses or modifies the Contested Action, all subsequent actions taken by administrative officers with regard to the subject matter shall be in accordance with the reversal or modification granted by the Board.

If the Board is determining a penalty or fine, the Board shall consider:

1. The gravity of the violation;

2. Any action taken by the violator to correct the violation;

3. The cost of the action to correct the violation; and

4. Any previous violation committed by the violator, on the same or different site.

UNDISPUTED FACTS:

1. The application for 07-AA-01 was filed (received by the Planning Department) on September 10,
2007. The Ulma August 10 Letter was made on August 10, 2007.

2.                   The application for 07-AA-02 was filed (received by the Planning Department) on September 14,
            2007. The Manager’s Decision was dated August 9, 2007. However, the Manager’s Decision was
            not postmarked until August 15, 2007

3. The application for 07-AA-04 was filed (received by the Planning Department) on September 28,
2007. The Ulma August 28 Letter was made on August 28, 2007.

4. The Applicant is Fairway Outdoor Advertising. The applicant is represented by Reginald B.
Gillespie, Jr., Faison & Gillespie Attorneys and Counselors at Law.

5. All proceedings in furtherance of the Contested Actions have been stayed.

6. If applicable, the Subject Property is:

Site Address: 844 E. Chatham Street
            PIN #: 0774122862
            Lot #: 1
            Total lot/tract size: 2.02 ± acres
            Existing Zoning District: General Commercial (GC) and Residential-40 (R-40) and is shown on the Town of Cary Zoning Map

7. All papers constituting the record upon which the contested actions appealed from were taken
have been provided to the BOA, the applicant and other persons requesting copies.

8. Case History:

A Land Development text amendment, which became effective July 1, 2003, established a three year amortization period to phase out existing pole signs (including billboards). All affected pole signs were required by ordinance to be removed by July 1, 2006

      On February 21, 2005, an informal notice was sent to the property owner at 844 E. Chatham Street, the
      Elizabeth C. Nowell Family Ltd. Partnership (“ECNFLP”), reminding the owner of his/her responsibility to
      comply with the LDO.

On June 14, 2006, Betty Waller, of Waller & Stewart, sent a letter to the Town Attorney, Christine Simpson, on behalf of the actual pole sign owner, Fairways Outdoor Advertising. This letter acknowledged the existence of the non-conforming structure, and requested that future correspondence also be directed to Fairway Outdoor Advertising.

In response to Ms. Waller’s request, on June 23, 2006, a letter regarding the non-conforming pole sign/billboard was subsequently addressed to Mr. Paul Hickman, with Fairway Outdoor Advertising, Fairway Outdoor Advertising, and Betty Waller, Esq. This letter provided these parties with a direct notice of the nonconformity of the pole sign/billboard.

Mr. Paul Hickman, with Fairway Outdoor Advertising was an addressee on the final informal notice, sent on December 1, 2006.

A letter dated December 8, 2006 and addressed to Christine Simpson, Town Attorney, stated that Ms. Betty Waller represented both Fairway Outdoor Advertising and “ECNFLP”. The letter requested that the Town suspend further action until after January 1, 2007. Ms. Waller also requested that, if this was not possible, the maximum cure period of 30 days be permitted.

A Notice of Violation, 07-ZV-068, dated April 24, 2007, was addressed to Mr. Paul Hickman, Fairways Outdoor Advertising.

To date, several Notices of Zoning Citation have been sent to both Fairways and the property owner, ECNFLP. Ms. Waller & Paul Hickman have been recipients on such notices. The following are the dates and cumulative amounts of the Notices of Zoning Citation that have been issued:

· June 1, 2007 for the amount of $2,850

· June 27, 2007 for the amount of $13,350

· July 6, 2007 for the amount of $18,350

· July 13, 2007 for the amount of $21, 850

· August 2, 2007 for the amount of $28,850

· August 10, 2007 for the amount of $35,850

· August 21, 2007 for the amount of $39,350

Betty Waller submitted a letter, dated July 6, 2007, addressed to Mr. Bill Coleman, Town Manager, and Mr. Jeff Ulma, Planning Director, requesting that the Town of Cary reverse the civil penalties and requesting that all enforcement action for the alleged violation be pursued, if at all, against Fairway Outdoor Advertising, not ECNFLP.

These Notices and letters that have been mentioned are included as exhibits for this case.

Case Discussion

Three separate appeals are being presented for consideration by the board. They include:

(1) An appeal of the violation

(2) An appeal of a decision by the Planning Director not to allow a substitute sign to be permitted using the “unlisted use” provision contained in the LDO, and

(3) An appeal of the amount of the civil citation.

#1: APPEAL OF DECISION THERE WAS A ZONING (SIGN) VIOLATION

The Board should determine whether there was a zoning violation.

The Fairway’s sign, located on property at 844 E. Chatham Street, is in violation of the sign ordinance. Staff believes that this sign meets the definition of a pole sign, and does not meet the Town of Cary LDO for several reasons.

1. The sign meets the definition of a pole sign, and was required by the Land Development Ordinance (LDO) Section 10.5.2 to be removed by July 1, 2006. According to the LDO Section 12.4, a pole sign is:

A sign which is mounted on a freestanding pole or poles, or other support structure such that the bottom edge of the sign face is 42 inches or more above the adjacent grade or roadway crown height.

The sign in question meets the definition of pole sign because the sign is mounted on freestanding poles such that the bottom edge of the sign face is 42” or more above the adjacent grade of roadway crown height. Photographs (front, side, back views) of the sign are attached for reference.

2. The existing non-confirming pole sign also meets the definition of an “off-site” sign, another sign type which is prohibited. As defined in LDO Section 12.4, an off-site sign is:

Any sign that is used to attract attention to an object, person, product, institution, organization, business, service, event, or location that is not located on the premises upon which the sign is located. This shall not include traffic, directional or regulatory signs or notices erected by a federal, state, county, or municipal government agency.

As shown in the photographs, the sign is being used to attract attention to, but not limited to, a product, organization, and business that is not located on the premises upon which the sign is located. Besides the illegal pole sign/billboard, no other uses are located on this parcel.

Even if the sign were allowed to replace its supporting structure such that it is no longer a pole sign, the sign would still be illegal because it falls under the definition of an off-site sign provision of the ordinance.

3. The existing sign also meets the definition of a billboard, which is stated in Section 12.4 of the LDO, which is also prohibited by the LDO. A billboard is:

Any outdoor advertising sign erected and maintained by an advertising business or service, upon which advertising matter may be displayed and that generally advertises firms and organizations that, along with their goods and services, are not located on the same premises as the sign; and whose surface is sold, rented or leased for display of advertising material.

Billboard signs have been prohibited in the Town of Cary since at least 1983.

The sign is a billboard sign because it is an outdoor advertising sign erected and maintained by an advertising business or service, upon which advertising matter may be displayed and that generally advertises firms and organizations that, along with their goods and services, are not located on the same premises as the sign; and whose surface is sold, rented or leased for display of advertising material. The illegal pole sign/billboard is not located on the same premises as the firms or organizations that it is advertising. Photographs depicting this pole sign/billboard are attached for reference.

In summary, the non-conforming pole sign which meets the definition of a billboard and which can only function as an off-site sign, is not permitted under Chapter 9, and is prohibited. Specifically, Table 9.3-1, Table of Permitted Signs, does not include pole signs or billboard signs as permitted sign types. Section 9.4.1, Prohibited Signs and Devices, of the LDO explicitly states that, “All signs not expressly permitted under this chapter or exempt from regulation hereunder in accordance with the previous section are prohibited.” Further, Section 9.4.1 (N) specifically states that “off-site signs, except as otherwise permitted in this Ordinance, are prohibited.” Therefore, this pole sign/billboard/off-site sign is in violation of the ordinance since it was not brought into compliance by July 1, 2006, as required by Section 10.5.2 of the LDO.

Staff’s Findings on the Appeal of the Zoning Violation

Staff finds, based upon the evidence presented in this worksheet, that the violation does exist and that Staff’s determination should be upheld by the Zoning Board of Adjustment.

#2: APPEAL OF DECISION NOT TO APPROVE UNLISTED USE

Staff has determined that since the Land Development Ordinance already defines and restricts billboards as a sign, it is not a permitted use and does not fall under this provision of the ordinance. Specifically, section 12.3.1(C) of the LDO includes a procedure to allow a new use category or specific type of land use if the ordinance does not address that use category or type, as long as certain criteria in 12.3.1 (C)(2) have been met. (Section 12.3.1 (C) has been attached for your reference.)

The appellant sought to have a “billboard communication center” added to the LDO under this provision. As previously explained in two letters to Ms. Betty Waller, dated August 10, 2007 and August 28, 2007, respectively, the procedure for an “Unlisted Use” was not available for a “Billboard Communication Center” since the current ordinance already addresses the issue of pole signs and billboards as sign types. In fact, it specifically prohibits such off-site advertising signs and, further, requires that any such non-conforming sign be removed and/or made conforming by July 1, 2006.

However, the current ordinance does address the issue of pole signs and billboards as sign types. In fact, it specifically made them non-conforming and required that they be removed and/or made conforming by July 1, 2006. Neither of these actions occurred by the date prescribed in the ordinance.

Again, since the ordinance does indeed address pole signs and billboards, these are not “unlisted” uses, but instead they are prohibited uses. Seeking to allow them as an unlisted use (simply with a different name) is not available since that would eliminate the prohibition of such uses and would result in an administrative change to the ordinance in lieu of a text amendment that requires Council approval.

Staff’s Findings on the Appeal of the Decision Not to Approve Unlisted Use

Based on the ordinance language and the fact that pole signs (including billboards) are explicitly prohibited and were further made illegal after July 2003, the procedure for the Planning Director to consider the sign types as unlisted uses is not available.

#3: APPEAL OF CIVIL PENALTIES

The criteria set forth in the LDO need to be considered when determining if the penalty should be upheld.

The criterion the Board shall consider is the following:

a) The gravity of the violation:

b) Action taken by the violated to correct the violation;

c) The cost of the action to correct the violation; and

d) Any previous violation committed by the violator, on the same or different site.

Staff’s Findings on Reducing the Penalties Imposed

Fairways Outdoor Advertising has made no serious attempts to correct the violation to date. Instead, they have delayed compliance, raised extraneous issues, and have sought alternatives or other arrangements to thwart the ordinance’s objectives and allow the sign to remain or be replaced.

Town Staff gave Fairways considerable leeway to achieve compliance with the LDO before beginning formal actions to issue citations. There was no timely appeal of the initial Notice of Violation.

The pole sign/billboard has been an illegal sign since July 1, 2006. Owners of the 19 other pole signs have voluntarily removed or brought their signs into compliance with the 2003 LDO requirement. This pole sign is 1 of only 2 pole signs that still remains in violation of the ordinance.

Thus, Staff recommends that the civil penalty not be reduced. As of the first appeal date (September 10, 2007), the cumulative amount of the penalty was $51,350.

IN THE MATTER OF: CASE NO’s. 07-AA-01, 07-AA-02, 07-AA-04

TOWN OF CARY
STATE OF NORTH CAROLINA

APPLICANT NAME(S) AND ADDRESS (Person aggrieved by an order, requirement, permit, decision or determination that is subject to an appeal to the BOA):

Reginald B. Gillespie, Jr., Attorney (Faison & Gillespie)
Representing:
Fairway Outdoor Advertising
P.O. Box 10545
Raleigh, NC 27605

ADDRESS OF SUBJECT PROPERTY: 844 E. Chatham Street

NAME(S) AND ADDRESS(ES) OF PROPERTY OWNERS, IF DIFFERENT FROM APPLICANT:

Elizabeth C. Nowell Family Ltd. Partnership (ECNFLP) own the real property upon which the billboard is located
900 E. Chatham Street
Cary, NC 27511

STAFF REPRESENTATIVE:
Jeffery G. Ulma, AICP, Director, Planning Department
Phone: (919) 319-4580
E-mail: jeff.ulma@townofcary.org

Jennifer Currin, Planner II
Phone: (919) 469-4342
E-mail: jennifer.currin@townofcary.org

APPLICATION NO.: 07-AA-01

1. Appeal from paragraphs 3-8 of the letter/decision of Jeff Ulma, Planning Director, dated August 10, 2007 (“Ulma August 10 Letter”)

2. A civil penalty appeal of the Manager’s Decision

APPLICATION NO.: 07-AA-02

1. Appeal from all aspects of Bill Coleman’s, Town Manager, letter dated August 9, 2007 (“Manager’s Decision”)

2. A civil penalty appeal

APPLICATION NO.: 07-AA-04

1. Appeal to all aspects of the Manager’s Decision

2. A civil penalty appeal

3. Appeal of letter of Jeff Ulma, Planning Director, dated August 28, 2007 (“Ulma August 28 Letter”). Specifically appealing:

· Denial of application for approval of “atypical” Unlisted Use

· Various ‘findings’ including: penalty amount; efforts made to comply, lack of previous appeals, lack of timely appeal of civil penalty

· Notice to remove sign by September 7, 2007

[Attached are copies of 1. Civil Penalty Assessment; 2. Ulma August 10 Letter; 3. Manager’s Decision; 4. Ulma August 28 Letter]

VICINITY MAP

THE APPEAL PROCESS is provided as required by N.C.G.S 160A-388 and Secs.3.21 and 11.2.2 of the Cary Land Development Ordinance (LDO). Per the LDO:

If the Board is determining a penalty or fine, the Board shall consider:

1. The gravity of the violation;

2. Any action taken by the violator to correct the violation;

3. The cost of the action to correct the violation; and

4. Any previous violation committed by the violator, on the same or different site.

REQUEST:

1. An appeal from paragraphs 3-8 of the letter/decision of Jeff Ulma, Planning Director dated August 10, 2007 ("Ulma August 10 Letter”). A civil penalty appeal of the Manager's Decision.

2. An appeal from all aspects of Bill Coleman, Town Manager’s Letter dated August 9, 2007 (“Manager's Decision”). A civil penalty appeal

3. An appeal to all aspects of the Manager's Decision. A civil penalty appeal for the Manger to hear, consider, & decide Fairway's Appeal. Appeal of letter of Jeff Ulma, Planning Director dated August 28, 2007 (“Ulma August 28 Letter’). Specifically appealing:

a) Denial of application for approval of “atypical” Unlisted Use

b) Various ‘findings’ including, penalty amount; efforts made to comply, lack of previous appeals, lack of timely appeal of civil penalty

c) Notice to remove sign by September 7, 2007

UNDISPUTED FACTS:

1. The application for 07-AA-01 was filed (received by the Planning Department) on September 10, 2007. The Ulma August 10 Letter was made on August 10, 2007.

2. The application for 07-AA-02 was filed (received by the Planning Department) on September 14, 2007. The Manager’s Decision was dated August 9, 2007. However, the Manager’s Decision was not postmarked until August 15, 2007.

3. The application for 07-AA-04 was filed (received by the Planning Department) on September 28, 2007. The Ulma August 28 Letter was made on August 28, 2007.

4. The Applicant is Fairway Outdoor Advertising. The applicant is represented by Reginald B. Gillespie, Jr., Faison & Gillespie Attorneys and Counselors at Law.

5. All proceedings in furtherance of the Contested Actions have been stayed.

6.       If applicable, the Subject Property is:
            Site Address: 844 E. Chatham Street
            PIN #: 0774122862
            Lot #: 1
            Total lot/tract size: 2.02 ± acres
            Existing Zoning District: General Commercial (GC) and is shown on the Town of Cary Zoning Map.

7. All papers constituting the record upon which the contested actions appealed from were taken have been provided to the BOA, the applicant and other persons requesting copies.

8. Case History:

On February 21, 2005, an informal notice was sent to the property owner at 844 E. Chatham Street the Elizabeth C. Nowell Family Ltd. Partnership (“ECNFLP”), reminding the owner of his/her responsibility to comply with the LDO.

Mr. Paul Hickman, with Fairway Outdoor Advertising was an addressee on the final informal notice, sent on December 1, 2006.

A Notice of Violation, 07-ZV-068, dated April 24, 2007, was addressed to Mr. Paul Hickman, Fairways Outdoor Advertising.

To date, several Notices of Zoning Citation have been sent to both Fairways and the property owner, ECNFLP. Ms. Waller & Paul Hickman have been recipients on such notices. The following are the dates and cumulative amounts of the Notices of Zoning Citation that have been issued:

· June 1, 2007 for the amount of $2,850

· June 27, 2007 for the amount of $13,350

· July 6, 2007 for the amount of $18,350

· July 13, 2007 for the amount of $21, 850

· August 2, 2007 for the amount of $28,850

· August 10, 2007 for the amount of $35,850

· August 21, 2007 for the amount of $39,350

These Notices and letters that have been mentioned are included as exhibits for this case.

Case Discussion

Three separate appeals are being presented for consideration by the board. They include:

(1) An appeal of the violation

(2) An appeal of a decision by the Planning Director not to allow a substitute sign to be permitted using the “unlisted use” provision contained in the LDO, and

(3) An appeal of the amount of the civil citation.

For the violation and the civil citation appeals, there are determinations to be made regarding both: (A) the timeliness of the appeal as well as (B) the substantive aspects of the topic.

#1: APPEAL OF DECISION THERE WAS A ZONING (SIGN) VIOLATION

A. Timeliness of Appeal of Decision there was a Violation

Staff has determined that the appeal of the decision there was a Zoning Violation is not timely. According to Section 3.21 of the Town of Cary LDO, appeals of administrative staff decisions have to be brought within 30 days.

3.21 APPEALS OF ADMINISTRATIVE DECISIONS

3.21.3 Filing of Appeal; Effect of Filing

(B) An application for an appeal shall be filed with the Planning Department. Once the application is complete, the Planning Department shall schedule the appeal for consideration at a public hearing before the Zoning Board of Adjustment. The Department and the administrative officer from whom the appeal is taken shall transmit to the Zoning Board of Adjustment all applications and other records pertaining to such appeal. The application shall be filed no later than 30 days after the date of the contested action.

Fairway had notice that the sign was in violation and needed to be removed at least by June 2006. Ms. Waller wrote to Ms. Simpson on June 14, 2006 and Mr. Lawrence Hardee, the former Zoning Compliance Supervisor of the Town, wrote to Fairways on June 23, 2006. A formal Notice of Violation, 07-ZV-068, dated April 24, 2007, was issued and addressed to Mr. Paul Hickman, Fairways Outdoor Advertising. This formal notice follow numerous informal notices concerning the violation. At the very latest, the determination that there was a violation could have been appeal was on May 2, 2007. Appeals of decisions are directly to the Board. The appeal to the Zoning Board of Adjustment was not filed until September 10, 2007. Since it was not received within 30 days of April 24, 2007, this appeal of the zoning violation is not timely.

Staff Findings on the Timeliness of the Zoning Violation

Staff finds that the appeal of the Zoning Violation is untimely. The Zoning Board of Adjustment should find that the Appeal of the Zoning Violation is untimely and cannot be heard.

B. Decision there was a Sign Violation

Whether or not, the Zoning Board of Adjustment determines that the appeal that there was a zoning violation is timely, the Board should determine whether there was a zoning violation.

1. The sign meets the definition of a pole sign, and was required by the Land Development Ordinance (LDO) Section 10.5.2 to be removed by July 1, 2006 . According to the LDO Section 12.4, a pole sign is:

A sign which is mounted on a freestanding pole or poles, or other support structure such that the bottom edge of the sign face is 42 inches or more above the adjacent grade or roadway crown height.

2. The existing non-confirming pole sign also meets the definition of an “off-site” sign, another sign type which is prohibited. As defined in LDO Section 12.4, an off-site sign is:

3. The existing sign also meets the definition of a billboard, which is stated in Section 12.4 of the LDO, which is also prohibited by the LDO. A billboard is:

Billboard signs have been prohibited in the Town of Cary since at least 1983.

Staff’s Findings on the Appeal of the Zoning Violation

If the Zoning Board of Adjustment found the appeal to be timely, Staff finds, based upon the evidence presented in this worksheet, that the violation does exist and that Staff’s determination should be upheld by the Zoning Board of Adjustment.

#2: APPEAL OF DECISION NOT TO APPROVE UNLISTED USE

The appellant sought to have a “billboard communication center” added to the LDO under this provision. As previously explained in two letters to Ms. Betty Waller, dated August 10, 2007 and August 28, 2007, respectively, the procedure for an “Unlisted Use” was not available for a “ Billboard Communication Center ” since the current ordinance already addresses the issue of pole signs and billboards as sign types. In fact, it specifically prohibits such off-site advertising signs and, further, requires that any such non-conforming sign be removed and/or made conforming by July 1, 2006.

However, the current ordinance does address the issue of pole signs and billboards as sign types. In fact, it specifically made them non-conforming and required that they be removed and/or made conforming by July 1, 2007. Neither of these actions occurred by the date prescribed in the ordinance.

Staff’s Findings on the Appeal of the Decision Not to Approve Unlisted Use

#3: APPEAL OF CIVIL PENALTIES

A. Timeliness of Appeal

Even though the pole sign/billboard has been non-conforming since July 1, 2006, the first Notice of Citation levying actual penalties was not issued until June 1, 2007. Appeal of the civil penalties was received on September 10, 2007.

Staff’s Findings on Timeliness of Civil Penalties

Since any appeal of the citation was due by July 1, 2007, this appeal is not timely.

However, if the Board finds this debatable, it is only timely with respect to civil penalties imposed after August 10, since the first appeal was received on September 10 (a second appeal was filed on September 14 and a third one was filed on September 28).

If the civil penalty appeal is found to be timely, the criteria set forth in the LDO need to be considered when determining if the penalty should be upheld.

The criterion the Board shall consider is the following:

a) The gravity of the violation:

b) Action taken by the violated to correct the violation;

c) The cost of the action to correct the violation; and

d) Any previous violation committed by the violator, on the same or different site.

B. Staff’s Findings on Reducing the Penalties Imposed

Town Staff gave Fairways considerable leeway to achieve compliance with the LDO before beginning formal actions to issue citations. There was no timely appeal of the initial Notice of Violation.

Thus, Staff recommends that the civil penalty not be reduced. As of the first appeal date (September 10, 2007), the cumulative amount of the penalty was $51,350.

Additional penalties were “stayed” during this appeal. As of 5 p.m. December 3, 2007, without accounting for the stay, the penalty has accumulated to $93,350. (Note: In either case, the total citation amount is $16,000 less than it should have been due to an incorrect calculation; Staff recommends that this amount be conceded and not pursued.) .