If, as the well-known aphorism says, patriotism if the last refuge of the scoundrel, more and more, the Memphis and Shelby County Board of Adjustment is becoming the last refuge of zoning scoundrels.
It’s become the go to public board for anyone who wants to protect billboards and to make a mockery of the intent and spirit of the Memphis and Shelby County Unified Development Code.
The board likely already has its rubber stamp out while awaiting yet another request to keep a visually jarring billboard in a neighborhood that deserves better, and more thoughtful, treatment from its city’s planners.
Next up on January 22 at 2:30 is an Office of Planning and Development staff report that recommends approval of a variance allowing the billboard on Central Avenue at Cooper Street to remain in place.
The OPD staff report recommends approval of a variance to allow the billboard to remain although the Unified Development Code says it must be taken down and removed from the property when the site is redeveloped.
The OPD staff report gives the following reasons:
* The billboard company owns the sign. That is the case with all billboards throughout the City and County, so it’s tantamount to suggesting all billboards should stsay.
* OPD has allowed other billboards to stay, and lately, it seems all it takes for a variance is to ask for it.
* There is an easement, but no lease, but this fact is irrelevant (although OPD tells a story to make it seem that this is relevant).
* At the end of its report, OPD points out that the site is irregular in shape, but fails to explain how this would make it difficult to remove this sign.
We have a Unified Development Code for a reason. Take it down.
Why would city planners and Memphis communities put so much effort into the Unified Development Code and then not follow it’s most fundamental tenets?
Does Truck Stop want the billboard to remain?
Gates: No, they have said that they would prefer to not have it there, but that their opinion doesn’t matter – they don’t own the land.
…but it is so much easier for Josh Whitehead’s group (“the city”) to simply go with the flow, keep the status quo and simply allow enough variances to permit any developer to do whatever they want at any location. This is exactly what I would expect from a department that was more than willing to gut the University District (under the banner of “re-development” and “employment”) in order for McDonalds to abandon its existing drive through by building an even more suburban design across the street. The OPD is now nothing more than a legal support service for developers to avoid meeting the minimum design standards established in the UDC. We cannot expect a higher quality built environment within the I-240 loop- one that would require developers do nothing more than conform to the minimum standards set forth in the UDC- under current leadership.
We have read the easement agreement. We do not see any language with sets out a penalty if the local government zoning regulations require the billboard to be removed. We do see language that prohibits landscaping from interfering with the view of the sign, Does this mean street trees must be eliminated to comply with this private easement agreement entered into by private entities without local government or the City of Memphis knowing about it?
The only other language regarding the right of the billboard company to seek damages says that they MAY SEEK damages if the billboard must be removed. This only states a right that we all have. It could not be more because a private easement agreement by its nature has not power to overrule our zoning ordinance.
It sounds like the kangaroo court that passes for the Board of Adjustment did its normal rubber stamping today. In a word, the hearing was a sham. The applicant was given unlimited rebuttal time even to the point of calling up new speakers, but opponents were not allowed to speak after their original presentation.
What does Mr. Loeb think? Is he is favor of “public art” only when it plays the role of advertisement?
If Mr. Loeb (the owner of the property) wants to beautify Midtown he will seek the removal of the offensive billboard.
Josh Whitehead is in the pocket of developers.
Tom, you may have this one wrong. Truck Stop developers explained in a public session last week that the variance is not to allow the billboard to remain, but rather to allow the restaurant to be located on a property already occupied by the billboard, which is considered a permanent improvement. Current zoning does not allow them to co-occupy the property. It’s just as bad a situation, but for an unusual reason.
Thanks, Reb. Have you read the staff report on this?
The person who has the ability to fire Josh Whitehead is in the pocket of developers. Whitehead has maintained policy positions that support developers (i.e. amendments to the Unified Development Code) because of pressure from above. If he advocates for more controls, complaints from developers go to his boss and/or his boss’s boss and Whitehead’s job is threatened.
Several years ago Memphis was on verge of enacting a billboard amortization program, which would have removed all billboards over a period of years, but it failed because of “pressure” from developers. One City Council member went to jail because of too much “pressure” from a billboard owner in a zoning case.
I don’t understand why a variance was even needed since billboard owner had bought an easement to erect a billboard, which was allowed at the time.
Could you provide a link to he OPD report?
I have not read the OPD report.
Kathy and Reb,
This address should take you to the staff report:
http://www.shelbycountytn.gov/ArchiveCenter/ViewFile/Item/1148
Thanks, Urbanut. We’ve been in meetings all day and are just seeing the request for the report.
We look forward to hearing what people discern from it.
Here’s what someone who shares our opinion that billboards are a scourge of urban life said:
The UDC says that the billboard should be removed when the site is redeveloped. It is the only way we have of ever getting rid of these billboard. The applicant’s representative made a public presentation that the easement agreement says the billboard cannot be removed. The easement agreement does not contain any such language. They used a letter from the billboard owner, Larry Quas of Clear Channel, as evidence that the billboard cannot be removed. If we are going to use a letter from Clear Channel as evidence for waiving the UDC requirements for removing the billboard when a site is redeveloped, we may as well just go on and make them all permanent and be finished with the debate.
The most egregious part of the whole affair is that OPD allowed the applicant to wait until 11 days before the Board of Adjustment meeting before they added the billboard variance to their application and provided a copy of the easement agreement. That is even though the process was more than 2 months long and we constantly and regularly requested the information from the very beginning. Because they were able to withhold the easement text, citizens had no reasonable opportunity to review it and discuss openly what the easement really says. At the Board of Adjustment meeting it was very clear that the members did not know what the easement agreement really says and did not care.
A decision by the Board of Adjustment is final. There is no appeal except to spend the money it takes to go to court. It is very disappointing that this process allowed critical information to be withheld until 11 days before the meeting when the staff knew that the vote was final and citizens would be helpless to appeal so that the real text of the easement agreement could be openly debated.
I don’t blame the applicants for wanting to control access to information during the process, but OPD has an obligation to conduct a fair process which they did not do in this case.
There is a very important point in the response regarding OPD’s ability and desire to conduct a fair and open process. While I would not directly suggest that such tactics are by design, OPD has been making a dangerous habit of providing information to the public as late as possible, the consequence of which is limited exposure to public scrutiny. Occurrences that come to mind include both the proposed Highland McDonalds as well as the recent round of UDC amendments.
Considering the so called “evidence” provided by OPD, it is becoming increasingly clear that they can be labeled as a mouthpiece of developer interests. The organization that was meant to serve as the tool by which the interests of private developers were balanced with those of the public- providing an important check in the name of balance- has increasingly shown itself to be compromised.
Is Midtown or Memphis without any organizations willing to fight this in court?
Rose-
Considering resources, I am not sure there are any organizations with the capacity to challenge this issue. There is also the question of the ability to challenge OPD’s approach of allowing variances that run counter to the intent and letter of the UDC. OPD will be the first to disclaim any responsibility on any matter by simply stating that they do nothing more than make recommendations. It raises serious ethical and professional practice questions, but legally they would be correct. At the end of the day, that is all that matters when your department is run by a lawyer instead of someone with planning and design experience. The various boards and city councils can then claim they were simply relying on the “expert” opinion provided by the OPD. It is the perfect system to absolve everyone of any responsibility.
Personally I like how the Commercial Appeal noted a comment from Josh Whitehead and his take on the situation. Within the article Whitehead set the language for the fault not lying with the developer, the owner of the sign, or his department but instead suggested that the fault was with the UDC for requiring such signs be removed. Can you imagine a lawyer arguing in court that his client would not be guilty of speeding if the speed limit were simply increased? Apparently OPD would be willing to make that argument for the guilty party. Another example of OPD’s desire to dull the edge of the UDC to such an extent that it serves as little more than a document containing suggestions regarding the built environment and little more.
The above comment was my own- not sure how UDC ended up there even if it might be appropriate.
put it on the same shelf as the rest of the “””Plans””” developed over the last 50 years and forget about it.
development of the muni schools, and the growth that will follow them, will continue to depress any real development ideas inside the loop, unless President Lipscomb and Federal $ are involved.
and thankfully opd has little or no influence on God’s Country here in Shelby.
Anon 3:16,
Maybe you failed to understand the topic of the post. This issue revolves around a proposed private redevelopment in Midtown at the corner of Central and Cooper. With that in mind, your daft comment seems exceptionally out of place.
Anonymous: You are seriously in error. OPD years ago was part and parcel to the unsustainable sprawl that drove up county tax rates, drove up the costs of public services, and approved the cookie cutter developments that dot the landscape out in “God’s country.”
Urbanut: Wouldn’t most successful cities find their head planner fighting to rid his/her city of the plague of billboards rather than apologizing and enabling them? The proliferation of billboards in this city/county is one of the worst in the country, but the tolerance and defense of them within city neighborhoods is intolerable.
The truck stop will be a metal building, right? Are metal buildings allowed in that neighborhood? (just curious)
SCM-
Many (if not most) of those in heading an Office of Planning and Development (or similar) in other cities are either seeking to curb the location and use of billboards or are proactively seeking their removal. Several states have banned billboards outright. A diverse range of cities from L.A. to Jacksonville and from Houston to Ann Arbor have either banned new billboard construction, banned the use of digital billboards and/or are actively removing existing billboards through various programs and initiatives.
This raises additional issues regarding the current operations and activities of the Office of Planning and Development. It is my understanding that OPD (and maybe more specifically Josh Whitehead) crossed the line at least twice where the Truck Stop site is concerned. The first was providing opinions of a legal nature to the Shelby County Board of Adjustment regarding the sign and it permanence. Of course, it is now public knowledge that this legal opinion was in fact provided by the company that owns the billboard- hardly a neutral third party. It is not for the OPD to supply legal advice but to make recommendations regarding land use which is first and foremost to be based on the OPD’s role which is administration of the UDC. Of course this relates directly to the department’s continued attempts to undermine some of the most important aspects of the UDC which conveniently leads to the second point. Josh Whitehead stated publicly that the UDC requirements to eliminate the billboard would have removed the possibility of redevelopment of this site. In essence, enforcing the UDC means that the site would become vacant. This was the more egregious act committed of the two. Here we have the head of the OPD, whose responsibility is in part to create a higher quality built environment undermining the very tool that was created to yield such results. He can neither support nor prove that the redevelopment would not have occurred had the requirement for the sign’s removal been supported. There is plenty of legal precedent supporting the removal of public signage which does not conform to current sign regulations. As a lawyer, you would think he would know that. His (and thus OPD’s) true colors were on display in that one statement: it is the stance of the current department that short term gains and a vision that extends no further than next year have and will continue to guide decision making as opposed to safeguarding and creating the types of places that encourage sustainable and continued investment and redevelopment over the long term.
Kathy-
The truck stop will be metal, and metal buildings are not allowed under the Midtown overlay. However, in my attempt to be an impartial architect- I am less offended by this variance because while it might not follow the letter of the law, it did follow the intent. The intent in the case of banning “metal buildings” was to prohibit the construction of inappropriate metal pre-fab buildings such as those at the corner of Nelson and Cooper and the eastside of Cooper at Linden as well as various locations throughout the city. In this case, the redevelopment proposes a “creative” use of metal shipping containers. It definitely enters the grey zone of design- one man’s scrap metal is another’s MOMA exhibit.
Josh’s comments in the CA are completely wrong. See the excerpt below from the UDC which says a billboard destroyed by a force of nature etc. may be replaced within 60 days. This was our one and only chance to get rid of this sign and the planning office is actively defending keeping it in place.
It is hard for me to believe that Josh really thinks that an agreement between private parties completely without any public input or knowledge should be allowed to supersede the publicly adopted UDC. I believe we could have taken the sign down as required AND still the restaurant or some other new use would be built there. We did not get rid of the old, nonconforming sign because it is too easy to get approval of a variance.
Now we know his thoughts on the subject. That means variances for all the nonconforming billboards will be approved by OPD. I am sure Larry Quas will be happy to provide a letter saying he will not agree to remove the sign for all of them.
I think I am going to sell an easement saying that the person I sell it too can do motor vehicle repair in my garage. Then I will provide a letter saying I will not give up the motor vehicle repair use of the garage. Hopefully Josh will keep Code Enforcement from enforcing the UDC because I have sold this easement. I am completely baffled by his comments.
M. Removal of Nonconforming Signs
1. Any Nonconforming Sign
1. If a nonconforming sign is damaged or destroyed by a force of nature or other action beyond the control of the sign owner, then it may be replaced with a sign of identical size in the same location or by a conforming sign provided that a complete application for a permit for the replacement is filed within sixty (60) days of the date of the damage or destruction, and the replacement or repair is completed before the expiration of the permit or any valid extension thereof. The repaired or replacement sign shall be considered a legal nonconforming sign.
2. If a nonconforming sign is voluntarily removed or damaged or destroyed through the actions of the sign owner, then such sign shall not be replaced except with a sign that fully conforms with the requirements of this ordinance. If such sign is an off-premise sign that is located more than 300 feet from a U.S. Interstate Highway, it shall not be replaced with an off-premise sign.