Minutes of the Centerville City Board of Adjustment meeting held Tuesday, January 13, 2009 at 7:00 p.m. in the Centerville City Council Chambers, 250 North Main Street, Centerville, Utah.

MEMBERS PRESENT
 Robert Chamberlain
 John Eriksson, Chair
 Cornell Evans
 Jason Hunter
 Peter Lassig II

STAFF PRESENT
 Cory Snyder, Community Development Director
 Lisa Romney, City Attorney
 Connie Larson, Recording Secretary

VISITORS
 David Bell  David Irvine

ADMINISTRATIVE APPEAL – ADMINISTRATIVE INTERPRETATION OF NOVEMBER 24, 2008 REGARDING THE PROPOSED USE OF LIGHTED ARTIFICAL PALM TREES AT DAVE’S COMPLETE AUTO SERVICE, LOCATED AT 335 SOUTH FRONTAGE ROAD IN THE C-VH ZONE.  APPELLANT, DAVE’S COMPLETE AUTO SERVICE.

John Eriksson, Chair, introduced the agenda item and disclosed that he has had vehicles worked on at Dave’s Auto Service, but said he does not believe this creates any conflict of interest with Dave’s Auto Service, and that he can be objective in his decision making. Robert Chamberlain said he has also had his vehicles worked on at Dave’s Auto Service, and when he was on the Planning Commission there was an issue discussed regarding property owned by David Bell, but he does not see this as a conflict of interest. Peter Lassig stated he has also had his vehicles worked on at Dave’s Auto, but he does not feel this is a conflict of interest for him.  

Cory Snyder, Community Development Director, said he is also the Zoning Administrator for the City of Centerville. In his capacity as Zoning Administrator, he was asked to provide a Zoning Administrator’s interpretation regarding whether artificial palm trees are considered a sign and/or structure under the provision of the City Sign Ordinance.  The Zoning Administrator interpretation is limited to and shall apply only to the facts and circumstances indicated in the request. The factual context for the interpretation involves three artificial palm trees outlined with varying colors of single-tube neon lights and range in height from fifteen (15) feet to twenty-two (22) feet.  The artificial palm trees bear no written message or symbols of any kind and are lighted in the evening hours.
 Mr. Snyder said it is assumed the lights on the trees would not be blinking.  In the request for interpretation of Section 12-12-040, the Sign Ordinance says that essentially, “a sign is any object, device, display, or structure or part thereof, which uses words, letters, figures, designs, symbols, fixtures, colors, illumination, or projected image for the purposes stated above.” The palm trees have to be put on a base and have electricity. The use of hot and cold air balloons, banners and pennants are also deemed signs by the ordinance. Section 20 states these signs cannot be erected without approval. Section 24 says, “A building or structure that is erected must comply with zoning ordinances. Any component or structure that constitutes enhancing an integral part of the sign becomes a part of that sign.” 

Mr. Snyder said the definition purposely excludes the display of merchandize from the sign definition. Because of this, it is staff’s opinion is that there are a variety of ways to advertise or communicate a message.  Signs are not limited to letters, words, or sentences to convey messages. Commercial and noncommercial messages can be conveyed through images, colors, shapes, and forms. Mr. Snyder gave examples of the shapes of the Arby’s “hat” and the Chili’s Restaurant “pepper,” where there are no letters or words used. A spot light does not contain words or a logo, but it is parked on a site with an animated message that is used as a promotional device.  Streamers used for open houses and grand openings are used as a temporary device and they are defined as signs and prohibited by ordinance. The palm trees are a permanent structure of brightly colored shapes, and the use of neon tube lighting indicates they are signs. 

Staff’s response is that the palm trees constitute signs for they draw attention to the site through use of a decorative object, device, and structure that also utilizes colored illumination for the purpose of drawing attention and identifying the location of the auto repair business. The claim of error submitted utilizes no current zoning provisions outlining an opposite or alternative interpretation. The Zoning Ordinance does, in fact, outline and provide a process for administrative interpretations, as found in Section 12-21-190. Mr. Snyder said the appellant fails to identify how the decision is inconsistent with the provisions of the ordinance or how the Zoning Administrator failed to apply the proper standards for the interpretation rendered.

Mr. Snyder explained only the City Council is authorized to decide if additional clarifications or changes to the ordinances are needed to address the government’s purpose and its associated prohibitions and allowances. The Zoning Administrator cannot change or alter the law, and the Landscaping Ordinance does not allow for artificial plants.  Staff’s position is that the palm trees are a sign because they attract attention to the location, and they are decorative objects, devices, and structures.
 
 David Irvine, attorney for Mr. Bell, explained the palm trees Mr. Bell is interested in reinstalling were first installed in 2004, and they were in place for four years.  He did not make application for a sign permit, because as he read the Sign Ordinance, they were not signs. It did not occur to him that a sign permit would be necessary.
Mr. Bell was looking at them as artificial palm trees, and that they were a structure that he did not need a permit to install. During the time the trees were in place, he never received a complaint from anyone, and if the City received a complaint, he was never informed. Mr. Irvine noted the lighting on the trees is not an outline as described. The lighting is in the back of the trees, and they are tube lighting, not neon lighting. The trees were removed in early 2008 as consequence of a Planning Commission meeting at which consideration was being given to an application for a conditional use permit, not related to this issue for which Mr. Bell had applied.  Mr. Bell was told that no decision on the conditional use permit would be given until the palm trees were removed.

Mr. Irvine explained the Community Development Director has ruled that the trees are signs, and that by use of color and illumination, the trees convey a commercial or noncommercial message of attracting attention to the business. In the alternative that they are a prohibited device or a sign, such as a streamer or a flag, the language of the ordinance simply refers to other decorative materials as being prohibited devices. If the trees are treated as signs, they are not necessarily prohibited signage. Mr. Irvine said in his discussion with Mr. Snyder on the ruling his reference meant, he said, “If Mr. Bell wanted to remove the sign that he has, the City would be willing to consider allowing him to install the trees as signs.”  Mr. Irvine referred to the administrator’s ruling restricting palm trees as signs on the basis that the ordinance and the restrictions of what a sign is was enacted to promote the general purposes of controlling signs, and fostering community character which has a minimum of visual clutter.  Mr. Irvine said there is not a definition in the ordinance of what “visual clutter” is.  Mr. Irvine referred to the general governmental purposes that Mr. Snyder concluded the signage definition advances such as enhancing the economic strength as a city, minimizing traffic hazards, protecting public health, public welfare, public safety, prosperity, peace, good order, comfort, convenience, and the aesthetics of the present and future inhabitants of the city. 

Mr. Irvine said how this relates to the palm trees is not defined in the ordinance.  There are no guidelines proposed that would allow anyone reading the ordinance to reach a conclusion that the trees are in some manner inimical to those general governmental purposes.  For example, the Sign Ordinance Section 12-20-60 charges the Board of Adjustment “to use just and fair treatment and to see that substantial justice is done.” Section 12-21-200(e)(4) requires the Board of Adjustment to construe ambiguous provision of the ordinance in favor of the property owner.” He said a vague law fails to forewarn persons of ordinary intelligence of what is prohibited, so that they may act accordingly, and it lends itself to arbitrary and discriminatory enforcement, because it fails to apply explicit standards for those who enforce it.  Mr. Irvine quoted from Section 12-21-200(d)(1)(e) that he said requires him to describe and allege every theory of relief that he could raise on appeal to a district court. 

Mr. Irvine said the Board of Adjustment has the authority to determine if the palm trees are signs within the meaning of the ordinance. The City’s definition of signs requires that the object convey a commercial or a noncommercial message, but the ordinance does not define what is or is not a commercial or noncommercial message.
He said Mr. Snyder stated, “I don’t believe it’s appropriate to include a definition of what a commercial or a non commercial message is, because that might get us into the business of regulating content.”  Mr. Irvine said unless a definition is given of what a commercial or noncommercial message is, anyone who is seeking to do anything with his property is at a complete loss to have any understanding of what is prohibited, because the City hasn’t described the conduct that is unlawful or illegal, or not within the parameters of the ordinance that is being enforced. In this case, cities around the country have made definitions of commercial and noncommercial messages, and those definitions have been upheld by the courts. He said another flaw is that there is no attempt to base any conclusions on facts, and the prohibitory language of the statute is vague and ambiguous and should be construed in favor of the property owner.  Mr. Irvine said the Community Development Director uses a “catch all” theory to deny Mr. Bell a legitimate use of his property.  He quoted Mr. Snyder as saying, “In the alternative if these trees are not signs within Section 12, then it is a prohibited device, because it is akin to a search light, a flag, or a streamer.” Mr. Irvine said this particular section of the ordinance does not specify that a tree is intended to be included as part of that proscription. The language of Section 12 states, “If any of the foregoing signs are deemed lawful by a court, they shall be permitted.” He said anything that is to be classified as a sign, should convey a commercial or noncommercial message, and the palm trees do not do this.  

Mr. Irvine said the series of conclusions presented by Mr. Snyder on the various signs did not include how an artificial palm tree positioned where it was is inimical to any of the governmental purposes. Was it visual clutter?  Was it a traffic hazard?  Was it something that undermined the prosperity of Centerville or its residents?  Was it inimical to the aesthetic appreciation of Centerville that its citizens are entitled to have? What is visual clutter? The ordinance does not define it.  If visual clutter is going to be controlled, visual clutter must be defined. Mr. Irvine distributed three photographs taken of the property Mr. Bell owns and the adjacent property to the north of Mr. Bell’s property on the Frontage Road. He said the palm trees were not in place at the time the pictures were taken. The third photograph shows a series of poles with external lighting fixtures on top, and they illuminate the entire parking lot of the business. Under Mr. Snyder’s definition of a sign, if the palm trees are signs, all of the light fixtures in the photographs are a sign, because they call attention to the property where they are placed. They do not give a commercial or noncommercial message. He said the over breadth of the Sign Ordinance is a problem for a property owner, and there is too much ambiguity in the Sign Ordinance. 

John Eriksson stated that no new evidence will be allowed, and the photographs are not allowed as evidence. Lisa Romney, City Attorney, clarified that the photographs are not necessarily new evidence, but may be considered as support for the legal arguments that are already on record. The photographs are similar to sample pictures shown in staff’s presentation which were permitted.  John Eriksson then stated the pictures would be admitted.
 Mr. Snyder explained the use and purpose of that the structure must be considered, and the Parking Lot Lighting Ordinance is clear on what is allowed for lighting.  Parking lot lighting is regulated according to illumination and heights, and is not the same as the Sign Ordinance. 

Mr. Snyder said the appellant has presented a case that says he does not like the structure of the ordinance as written, and he is requesting the ordinance be changed for himself. Mr. Snyder said there are government purposes, but are there government purposes to 75 percent landscaping, and we do not call out every single piece of planting material you are going to use, or do you purpose that on your plans and it becomes acceptable. To tie it from A to Z is a comprehensive document for every regulation would be an absorbent document. These are the reasons and the purposes of the ordinance. When the Planning Commission and Zoning Administrator apply the Code, what do the provisions say? What is the use of the palm trees, and how do they apply, because the Zoning Ordinance recognizes that not every single situation can be covered comprehensively. Therefore, we do some interpretation, and if it is felt there is an error, the decision is taken to the Board of Adjustment. Mr. Snyder said the appellant has not presented anything that uses the policies and provisions that are to be administered that says there is an error. Staff’s conclusion is that artificial palm trees are not spelled out, and so the policy must be examined to determine what is a sign, what the structure is, and what the purpose of the structure is. Staff’s conclusion is that the palm trees are a sign, and they are applicable to the regulations of the City.

Dave Bell, appellant, said he grew up in Florida 28 years ago, and he installed the palm trees because that’s who he is and he loves palm trees.  Mr. Irvine said he is not asking that the ordinance be amended.  He said the city of Twin Falls was faced with a question similar to this one. The judgment was for Twin Falls, and the judge was persuaded that the Twin Falls ordinance was constitutionally respectful because it was very specific. One of the governmental purposes that Twin Falls sought to implement was promoting the aesthetic quality of the community. The city was required, under the ordinance, to “consider if the location and placement of the sign will not endanger motorists; the sign will not cover or blanket any prominent view of structure or façade of historical or architectural significance; signs will not obstruct views of users of adjacent   buildings to side yards, front yards, or open space; the sign will not negatively impact the visual quality of a public open space as a public recreation facility square plaza, court yard, etc.; the sign is compatible with the building heights of the existing neighborhood;  and does not impose a foreign or inharmonious element with the sky line, the signs lighting will not cause hazardous or unsafe driving conditions for motorists.” He said these findings tie to the governmental purpose sought to be achieved by the ordinance, and these are lacking in Centerville’s ordinance, and raises the infirmities that were outlined. Mr. Irvine asked that the language of the Sign Ordinance be considered, as it does not cover the use of the palm trees. 

Cory Evans said there are commercial enterprises that put outdoor Christmas lights on their business at other times than Christmas, such as a reception center. He asked if Mr. Bell put Christmas lights on his building, would that be considered a sign or a decoration. Mr. Snyder stated this would be considered a sign.  Peter Lassig referred to the Sign Ordinance Section 12-51-070, Chapter 54, Item 8, page 3 that states, “Other decorative materials used for commercial advertising purposes or to direct attention to a place of business.” He asked if the focus should be narrowed to flags, streamers, pennants, and things of that manner, or is it thrown in as a last item that could apply to that entire section. Lisa Romney explained the Board of Adjustment is being asked to interpret the definition of signs, and whether the palm trees are signs. She said the Prohibited Signs Section is used as an example that flags, pennants, streamers, or other decorative materials used for commercial adverting purposes, or to direct attention to a business are prohibited. Staff’s interpretation is that the palm trees are signs because they convey a commercial or noncommercial message because they attract attention to the business. Mr. Snyder said devices and signs are in the same category, and a commercial message is not necessarily letters, words, or sentences to be read.  Signs with words or without words are signs. Mr. Irvine asked how it is known what is or what is not a commercial message based on what Mr. Snyder said.

Lisa Romney said the Zoning Administrator and the Board of Adjustment do not have jurisdiction to render a decision on the legality or constitutionality of City Ordinances. Staff was interpreting the ordinances as provided and adopted by the City Council. She said the issue is if the palm trees meet the definitions of signs. Lisa Romney stated that the appellant is required to raise all legal issues and arguments that could be raised on appeal to the district court. It is noted on the record such constitutional issues have been raised, and are preserved for appeal. She said the Board of Adjustment does not have jurisdiction to get into the constitutional issues or legality of the ordinance. Peter Lassig asked about the palm trees being allowed for four years and then removed. He asked if this should play a role in the Board of Adjustments decision. Lisa Romney said “no,” as the trees were required to be removed as part of the conditional use permit, and the applicant could have appealed that part of the decision, but he did not. The time to appeal that decision and action by the Planning Commission has expired. She said the previous past history is not relevant to this appeal of an ordinance interpretation.  

John Eriksson made a motion that the decision of the Zoning Administrator interpreting the definition of signs and concluding that the artificial palm trees constitute signs under City Ordinances should be reversed based on the following findings:

1. The definition of a sign in Section 12-12-40 of the Zoning Ordinance     requires that the object or structure that is at issue “visually convey a     commercial and/or noncommercial message for the purpose of identifying,    directing, etc.”  That element of message is in addition to the requirements    or element of the definition regarding the purpose of the message.
 2. There is no substantial evidence in the record that the artificial palm trees    conveyed a message. 
 3. In the absence of the trees conveying a message, the Zoning       Administrator’s interpretation that the artificial trees fall within the     definition of sign was in error.
 4. At best, the definition of sign is ambiguous as to the need of a particular    message. Under the Sign Ordinance Section 12-21-200 it states, “It shall    be construed in favor of the property owner.”
 5.     Construing the definition of sign in favor of the property owner, the     requirement of a message has not been shown, and the Zoning       Administrator’s definition that the artificial trees are signs as defined in the    Ordinance was incorrect and should be reversed.

 Jason Hunter seconded the motion. 

John Eriksson said in reading the definition he was initially focused on the purpose, and he said some could argue the trees were there to focus attention.  The definition requires that a specific message be conveyed, and without a message, a single-light pole with a very particular and unique and attractive light that draws attention to the business would seem to be a sign under the Zoning Administrator’s interpretation. This is in the absence of any message that the light by itself conveys. Likewise, if a business owner were to paint his building florescent neon yellow with purple trim, that would draw attention to the business, but what is the message?  This is the case of the palm trees. He said he cannot see any evidence of the trees having a message. Mr. Eriksson said Section 12-54-070(8) lists several devices that are not defined anywhere else as being signs. This section does not support the position that flags, streamers, and pennants are necessarily signs. Mr. Eriksson stated there is a definition of what a sign is, and a very specific element in the definition that there is a message that is visually conveyed, which he said there is no evidence in the record supporting a finding of that element.

Cory Evans said the message of the trees are, “hello, I’m a business, I’m here.” The palm trees identify and attract attention.  There is no flashing “Dave’s Complete Auto” on the tree, but by their nature they call attention and convey that message of attention.  He asked if a string of flashing lights on the eves of a building is considered as a sign. If a spotlight shinning in the parking lot is construed as a sign having no innate message in itself, but saying, “here we are”, under the definition the ordinance allows, its interpretation falls under a broad scope and there is room for interpretation.

Robert Chamberlain said when a business applies for a conditional use permit the Planning Commission looks at the size, design and color of the building. He said a palm tree in Utah is a definite attention getter. Mr. Eriksson said his view is that the Zoning Administrator’s interpretation combines the message element and the purpose element into one, or essentially disregards the message element. Peter Lassig said the palm trees do not convey a logo message.  He asked if there are other signs in the community that are not signs, but convey a message. 

Lisa Romney said it must be determined if the palm trees visually convey or do not convey a commercial and/or noncommercial message for the purpose of identifying, attracting, or direction to, etc. This is a unique question. Artificial palm trees are not specifically addressed in the City Ordinances. The Board of Adjustment must decide if such artificial palm trees meet the definition of sign. Peter Lassig said it appears in the Prohibited Sign Section that it does attempt to define and give examples of signs. Lisa Romney said under statutory rules of construction, headings are not generally given weight.  The headings are for convenience only, and we need to look to the text within that Section for direction and interpretation.

Peter Lassig asked if a large blow-up ape is considered a sign under the ordinance. Lisa Romney said it would be considered a balloon, and would be prohibited under the Prohibited Signs and Devices Section. Mr. Snyder explained under the Signs Promotional Section, it states, “Temporary devices such as banners, streamers, flags, balloons, pennants, trailer signs, and inflated signs are considered signs”. John Eriksson said the various types of signs listed are all qualified by having to also meet the initial definition of a sign.  Peter Lassig said he is not convinced that a general message or particular meaning needs to be conveyed other than drawing attention to itself. Lisa Romney said another ordinance or statuary rule of construction is that each word should be read to have meaning. 

The motion was defeated by a vote of 3-2. Cory Evans, Robert Chamberlain, and Peter Lassig were the dissenting votes. 

Cory Evans made a motion to affirm the decision of the Zoning Administrator and adopt the findings proposed in the staff report as follows:

1. The Board finds that the Zoning Administrator appropriately considered the definition of signs, as cited in Section 12-12-040 of the Zoning Ordinance.
2. The Board finds that the Zoning Administrator appropriately considered the definition of structures, as cited in Section 12-12-040 of the Zoning Ordinance.
3. The Board finds that the Zoning Administrator established a factual context for the interpretation, as found on Page 2 of the November 24, 2008, Written Interpretation.
4. The Board finds that the Zoning Administrator correctly provided a comparison between the factual context of the matter, and the use of promotional signs citing Section 12-54-070, as found on Page 3 of the November 24, 2008, Written Interpretation.
5. The Board finds that the Zoning Administrator considered whether the factual context of the matter qualified as artificial landscaping citing Section 12-51-080 regarding the use of “artificial plants,” and correctly concluded that the factual context was inconsistent with the landscaping requirements of Chapter 12-51 of the Zoning Ordinance.
6. The Board finds that signs are not solely limited to letters, words, or sentences to convey messages and that commercial and noncommercial messages can also be conveyed through images, colors, shapes, and forms.
7. The Board finds that the use of promotional signs such as spotlights, hot and cold air balloons, flags, pennants, and so forth are signs that do not necessarily have letters, words, or sentences, but such objects and devices, whether permanent or not, do convey a commercial or noncommercial message of “look over here, something is going on,” or “pay attention over here” and are used to “attract attention” to identify the business or location of the business.
8. The Board finds that sign area calculation includes any “emblem, representation, or figure” to be included in computation of the sign area and allows even elements such as supports, uprights, or structures to be included in calculating the sign area if such items “form an integral part of the sign display,” as indicated in Section 12-54-060.
9. The Board finds that the findings number 7 and number 8 can be supported by the specific exclusion of “merchandise displays,” from the sign definition of Section 12-12-040 of the Zoning Ordinance that infers that there are a variety of ways to advertise or communicate a message.
10. The Board finds that findings number 7 and number 8 can be supported by the Ordinance’s prohibition of similar promotional signs, as stated in Section 12-54-070 of the Zoning Ordinance.
11. The Board finds that the Zoning Administrator made a reasonable, comparable and consistent interpretation in concluding that neon-light illumination of the artificial palm trees constitute signs, for they draw attention to the site through use of a decorative object, device, and structure that also utilizes colored illumination for the purpose of drawing attention and identifying the location of the auto repair business.
12. The Board finds that the Zoning Administrator correctly concluded that the interpretation did not prohibit the potential installation, but their installation as signs was subject to the certain applicable provisions, as found on Page 4 of the November 24, 2008, Written Interpretation. 
13. Based upon the record of evidence, the Board finds that the Zoning Administrator’s interpretation did not add to or change the provisions of the Zoning Ordinance, as required by Section 12-21-190(e).
14. Based upon the record of evidence, the Board finds that the Zoning Administrator’s interpretation was consistent with the provisions of the Zoning Ordinance, as required by Section 12-21-190(e).
15. The Board finds that the Ordinance assigns “administrative authority” only to the Zoning Administrator, as outlined in Section 12-20-090 of the Zoning Ordinance.  Thus, Zoning Administrator is to accomplish or cause to accomplish the “administrative actions” of the Zoning Ordinance.
16. The Board finds that when necessary, the Zoning Administrator is given authority to “interpret the provisions of the Title,” as outlined in Section 12-20-190 of the Zoning Ordinance.
17. The Board finds that for administrative interpretations, the specific and general policies that have been established are found in Section 12-21-060, and in Section 12-21-090 of the Zoning Ordinance.
18. The Board finds that the Zoning Administrator does not have “broad authorization” to interpret as the appellant argues, but is “subject to the specific and general policies established by the Planning Commission and City Council,” as stated in Section 12-21-090(b) of the Zoning Ordinance.
19. The Board finds that to assume a “broader authorization” places the Zoning Administrator in a position to potentially change, alter, add, modify, and even overrule the legislative body and their actions, and to do so would frustrate the needed separation or distinction of legislative decisions verses administrative decisions, as outlined and procedurally set forth in Section 12-21-060, and Section 12-20-090 of the Zoning Ordinance.
20. The Board finds that the City Council is the body or entity authorized to adopt law and policy, or in other words establish its purpose and the associated prohibitions and allowances, and that decisions regarding these matters are  legislative actions, which are subject to the “reasonably debatable” standard, as outlined in Subsection 12-21-060(a)(2)(A) of the Zoning Ordinance.
21. The Board finds that this “legislative authority” is further supported by State statutes authorizing the legislative body, not the Zoning Administrator, to “enact land use ordinances” consistent with the Utah Code (See UCA 10-9a-102, UCA10-9a-104, and UCA 10-9a-501).
22. Given findings 15 through 20, the Board finds that the appellant incorrectly argues that the Zoning Administrator has “jurisdiction to consider constitutional infirmities raised [by] the request.”
23. The Board finds that the decision to overrule or remand the matter of the appeal must be based on “substantial evidence standard” and the “burden of proof standard” that indicates that the Zoning Administrator was in error of the assigned duties or of the decision or interpretation that was made.
24. Given the specific and general policies governing administrative interpretation, the record of evidence and with the findings stated above, the Board finds that the appellant failed to identify how the interpretation is inconsistent with provisions of the Zoning Ordinance, or how the Zoning Administrator failed and/or was in error in applying the proper standards for the interpretation rendered. Thus, the Board finds that appellant has not satisfied the “burden of proof standard,” as required by Section 12-21-200 of the Zoning Ordinance.

Robert Chamberlain seconded the motion. 

Lisa Romney suggested the word “correctly” be used in place of the word “suitably” in findings 4, 5, and 12.  Cory Evans amended his motion to reflect the three changes.

Robert Chamberlain seconded the amendment to the motion. 

Jason Hunter said there are no words in the ordinances that make clear what messages are conveyed considering the ambiguities that have been seen, and it requires further consideration by staff. John Eriksson said there is no basis for staff to determine what the messages of the trees are other than speculation. Peter Lassig said his decision to vote no was that the palm trees objective is to attract attention, and he asked for clarification if staff is using Section 12-54-070-(9) as an aspect of its argument against the display of the palm trees. Mr. Snyder replied “yes,” that he using Section 12-54-070(9) as constituted, as all of the devices listed are used as signs. 

Peter Lassig made an amendment to the motion to add a finding that the message is to attract attention to the place of business. The amendment was passed by a vote of 3-2.  Jason Hunter and John Eriksson were the dissenting votes. 

Peter Lassig made a motion to remove item five from staff’s findings.  There was no second to the motion.

The amended motion passed by a vote of 3-2.  Jason Hunter and John Eriksson were the dissenting votes. 

The meeting was adjourned at 8:55 p.m.

_____________________________    _______2-19-09__________
         John Eriksson, Chair                                Date Approved

_____________________________
Connie Larson, Recording Secretary