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Home My WebLink AboutCOM 0401.000 1996-1998 - RECEIVED ~re~.~. erg9-~ ~Ny cD~~~n V a n P E R N I S S M I T H & V A N C I L July 14, 1997 Dominic Yagong Chairman, Public Works and Parks Committee County Council County of Hawaii Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 RE: Sign Permit Application The Jose Business Trust Dear Chairman Yagong: The Jose Business Trust, doing business as International Motors, pursuant to Section 3-5 of Chapter 3, Advertising and Signs - of the Hawaii County Code, seeks approval in the form of a variance for the below referred to twelve (12) existing flags or banners. A variance is sought because: 1. International Motors was requested or instructed by the County's Department of Public Works to submit a Sign Permit Application for the flags, (because of what we understand was a complaint from another business), and the Application was made on July 7, 1997 in the form attached hereto as Exhibit "A"; 2. On July 8, 1997 the Building Division of the Department of Public Works stated that it was "unable to approve the subject application" referring to Sections 3-25 and 3-29 of Chapter 3, and in essence denied the Application to approve (permit) the twelve (12) existing flags except for one (1). A copy of that denial letter is attached hereto as Exhibit "B". 3. International Motors has incurred expenses of $6,600.00 as to the flags that appear to be commonly used throughout the Island of Hawaii, particularly by car sales businesses. i 4. International Motors appears to be the subject of discrimination. Scaled drawings and photographs of the existing flags and their location 4 were submitted with the Application. Attached as Exhibit "C" are copies of ~ wTrow+Rxs wt uw ~ ~ A LA W CORPoRATION ~ ppre` MARKVanPERNIS -DAVID E. SMITH -GARY W. VANCIL - Wm. I. ZIMMERMAN ~r N L7 SUITE H, HUALAI,AI CENTER, 95-169P HUA4LLAI ROAD - P. O. BOX 1839, KAB.UA-KONA, HAWAH 9fi90.9 - PHONH (808) 329-3551, PAX (808) 329-fi185 Dominic Yagong July 14, 1997 Page Two those drawings. The photographs we assume remain in the hands of the Building Division. Please review very carefully the Addendum to the Sign Permit Application, being the second ~aEe of Exhibit "A". In large part it states International Motors' position and basis for a variance in this matter. A. Flags Could Be Considered Not To Be Signs. Section 3-24 does not refer to hanging fabric flags as signs at all. The Building Division's letter, Exhibit "B", appears to consider a pole and flag as a ground sign. Section 3-2(a)(8) defines the meaning of "sign". An easy solution would be to decide that flags on poles are not "signs". or are "Exempt Signs" as defined by Section 3-32, and set that precedent as to interpretation and enforcement of Chapter 3. B. If Flags Are Not Signs. The Limit On The Number Of Si ns Is Inapplicable. Section 3-25 combined with Section 3-29 limits International Motors' commercial property to one ground sign, one marquee sign, one projecting sign, one roof sign and one wall sign for each street on which the commercial property has frontage. International Motors already has one permitted wall sign. If the flags aren't such signs, there would be no limit to their number. C. International Motors Could Have Up to Ten Signs. International Motors adjoins Mamalahoa Highway and St. John's Road, at their intersection. Thus two ground signs, two marquee signs, two projecting signs, two roof signs and two wall signs could be allowed under sections 3-25 and 3-29. International Motors already has one permitted wall sign, thus leaving the possibility of nine more permitted signs of various kinds. Thus, if flags are signs under sctions 3-2(a)(8) and 3-29, the possibility is presented of giving International Motors permission (a variance) for nine of its flags provided any request for any other form of sign is waived. D. The Flags/Signs Should Be Allowed At Least Temporarily To Insure Equal Protection Of Law And Avoid Discrimination And Damages. The essence of this issue is that: (1) more than two signs and flags in large numbers are in place on innumerable business and properties throughout the Big Island; and (2) the County has not significantly enforced Chapter 3 as to numbers of signs and flags. Thus, for the County to try to prevent International Motors from using flags in almost exactly the same manner as other auto dealers throughout the Big Island have been doing for a long time without sign permits or variances and undisturbed by County enforcement action, creates a discriminating and unequal use of legal authority that not only could put all of Chapter 3 in jeopardy, but also could result in economic Dominic Yagong July 14, 1997 Page Three damages and potential liability resulting from favoring one competing business over another. As the second page of Exhibit "A" points out, several of International Motors' West Hawaii competitors with their flags have no permits or variances and are not the subJect of County enforcement action. This is also the situation in Hilo and elsewhere. As to numbers of signs, this is also the case. We are prepared to prove this situation, but it should be obvious by driving through commercial districts, and observing the signage, particularly at auto sales businesses. Obviously government has an interest in regulating signage for public benefit, aesthetics and safety, and particularly in Hawaii. However, such regulation must be fair and uniform. If the enforcement of such regulations are sporadic and unequal, non-compliance with and challenges to the regulations can be expected. One solution for this matter might be to give International Motors a temporary variance for all of its existing flags/banners until such time as all similar flags/banners and excessive numbers of signs are resolved by appropriate County enforcement action, at which time the variance would cease and International Motors also would have to come into compliance. Please consider this variance application seriously and comprehensively in light of Inernational Motors' hardship and their position where they appear to be the victim of unfairness or discrimination. If any additional input or information would be necessary or helpful, please contact us. We look forward to your response. Sincerely yours, VAN PERNIS, SMITH & VANCIL B MARK VAN PE MVP/ar-g Enclosures cc: Laddie Jose Councilman Joe Reynolds -a County of Hawall Valuation $ Department of Public Works BUILDING DIVISION l=ee S SIGN PERMIT APPLICATION T~ ~SE bw5t•viss (,'t~ns9 >Q~ soh `~Y lRrLti»-~(n-~h~YS Neo.~ia3~376 Legal Owner Address Tel. Sign Owner Address No. Tel. Designer ~ t-N t,2~C. Address No. Tel. Sipn Installer S Address No. Electrical Contractor ~ ~ ~ Address Neo. SignLOCaGon gl ~~sg`f ,1.1/hMf}L/}~ (j- /~/4/ ~~q.{~:IG.1,~!- Zone ~ 1-016-039 (SVeet) (District) TYPE O~ SIGN MATERIAL AAFJ1 ILLUMINATED HT. CLEARANCE 1. Marquee 2. Projecting 3. Ground 4. Wall 5. Root ~o l.f, ~ r~~ c~ N ~ o N C(.aT?t iii 7~ ~ N Remarks: { E~l-V t~~ I Zl ~ ~-n!N ~t2S See attached Addendum for explanation adn legal basis and contingencies of this Application. THE SIGN SHALL COMPLY WITH THE HAWAII COUNTY CODE AND STATE LAWS REGULATING SIGNS. TOTAL AMOUNT OF SIGNS FACING ANY ADJACENT STREET SHALL NOT EXCEED TWO. (NO MORE Tti:.N ONE SIGN OF EACH TYPE OF SIGN PERMITTEDI. SEPARATE ELECTRICAL PERMIT REQUIRED FOIE ELECTRICAL WORK RELATIN TO THIS PERMIT. ~ c<i e. F ~os~ -~~1 Sitrte.. 2 (o 4 a'r APPLICANT Date APPROVED: REVIEWED BY: PLANNING DEPT. DATE ELECTRICAL DATE BUILDING DIVISION DATE PERMIT N0. 3rd DIVISION Z S PL PAR LOT EXHIBIT A ADDENDUM TO SIGN PERMIT APPLICATION OF THE JOSE BUSINESS TRUST 1. The banners are flags attached to poles located on the applicant's property. These flags are similar or identical to flags or banners existed and in place for years for numerous business from Kailua-Kona to Captain Cook and beyond. 2. Applicant The Jose Business Trust does not concede that the banners or flags are signs subject to any State of Hawaii or County of Hawaii la:vs, ordinance ar regulation, and does not concede that any such law, ordinance or regulation is enforceable against the Applicant, nor that any sign permit application, permit or variance is required or appropriate for the banners or flags. This Application is made only as a courtesy because of the request of representatives of the County of Hawaii. 3. Numerous West Hawaii business, such as Big Island Toyota, Kona Auto Center, Kona Coast Divers, University of the Nations, McDonald's (Kealakekua), Bad Ass Coffee (Kainaliu) and many others throughout the Big Island have flags or banners similar or identical in size, message, and/or numbers as part of their signage. It is not presently known whether or not such signage has County of Hawaii permits or variances. Numerous West Hawaii businesses, including those listed above and also such businesses as Budget Car Sales and the Union 76 Service Station in Kailua-Kona, to name just a few, have many more non-electrical signs than two, whether or not counting flags and banners. It is not known whether or not such signage has County of Hawaii permits or variances. 4. Signage laws, ordinances and regulations must be uniformly and fairly interpreted and enforced. They can become ineffective by acquiescence and lack of enforcement. If they are to be enforced, and EXHIBIT A legal action for selective and inequitable enforcement avoided, they must be uniformly and fairly interpreted. and actually enforced against all, not just one. 5. If the County of Hawaii establishes that any sign law. ordinance or r~ulation is applicable to the banners or fla¢s of the application and that the same have been and will be uniformly interpreted and enforced against all businesses with such banners or flays, the Applicant will cooperate as appropriate with the County. However, as indicated above and particularly in section 3 above, this does not yet appear to be the situation. Obviously, discriminatory interpretation and enforcement of commercial signage laws can have the effect of favoring certain competing businesses over others or creating advantages for some businesses and disadvantages for others. This can cause economic damages and potential liabilities and claims for compensation. 6. The Applicant is represented by Mark Van Pernis, and Van Pernis, Smith & Vancil in this matter. The County of Hawaii and its representatives are encouraged to contact him at any time in this matter. Dated: ~ , Kailua-Kona. Hawaii JOSE BUSINESS TRUST By Its Office Manager and By~J MART VAN PERNIS Attorney for Applicant 2 EXHIBIT A JUL-5+?-97 TUE ~J3 :4~! .M P. dl or.os:er TtE ts:si r4S Bps 327 3sos C OF H BL'ILDIA'G Ohl xav~ .,,.t, BUlLGiNt~ DIV{SIUN -DPW ~ '1 ~ ~'d' WTY pF HAV?A;I.13 AUWN' ST7EEt - I OIC. HA'JOA!I 06)Yp r!a00FFlr'E CE08)Q6t,933t ?.ONA riFFlCc (BOF) 1; iuly 1 y97 >v4r. I a idle Jose, General Mattngcr The Joie Busipecs Trust P.O. Box 't'~t Kaiiua-lona, HI i~6745 FAX: 323-214t5 Sut~jact: Sign Permit Application TMIC: 8-1-16:34 We are unable w approve the subject application recetved Ju:y r, I9?7, because of non-contpliance u:th tba zollox ing rcgairem®nts from Hawaii County Code Chapter 3 Signs and Advertising: SeCtiau 3-25 Type and mtmber of signs permissible. Section 3-29 Cuzlzntez'cial and industrial districts, Two signs, ene each of two different types ate allowed to front on any sacet. lu the commercial disirict you are allowed one ground sign end according to our records , yuu already havA a rennit for a wall sign. In wzlcluslon, only (l) of the 2) proposed ground 3igus is allo•n~ed. Please make tho appropriate changes to the 3ppliCatlon. ICthc cumct'tons are. not utade 4*~tithin ~ working clays, uc will be returning the application and plats, by mail. Regarding the addendum to lire applioation, •~~e suggest you re ?rew the definhipn u f sign under Section 3-2, clearly Including your banners on pales as devices which awzriix ynnr buaineas. toe ha~'e already taLen action to enLurce the regulation, ar the Dona Auto Censer site. That and two of the other sites mentioned a=e ,tc~dcr our jurisdiction. the others have bcea referred to the. Planning Department, the enforcing aSency within the l+ttilua Village Special District. i£ you .have atry questions regarding the about, plcao® fzet free to : nntact l~:iran Eadel ~f cur Kona ofBcr ctaff~ Cur Kona CitiCe IdX ntUriber is 327-3 X09. ~j 1 y1 ~'ati'ne Oe~omura, Aivieion Chzef Buitdang Uivislozt k'_E xc~ i*Zarl: tTan Pernis Stmalay Takamura 'tocineyCtuaat EXHIBIT LX ~ ~~'T ~o~. W o Z~ i \l T y'~'~, t 4 ill; s c . 't ' `y i ~i~ ~ ~ ~ ,t~~ . , . { ` r i ~ 4 r~r y I a - I! fa 1 [~5~' ~j(I, , y n ~ ;i #1. ~cHiBir «c„ 5 ~ RV, i C ~Ey?-ti' T ~ ~ V ~ ~ e~ _ ~ 8~'~ 90" m 1 ~ T a pF ~ ?C~S ~ g-t.~ ~o l~,s R-r~e. ~ „G~~v~u~~.D ~'1 ~a $p~NN~ERS .4~RE ~'X 7' c~~ ~~l {.3',~ T WE 7 N 1 ~ ~ ~'f' _ ~yi a I Z. S~a~as ~ ~ s WE ~ R ~ f a k ~ ~ E 2. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ s L S t N ~ I~ROHNd~ WVQ~ L FJ(SIS IN(~ ~vowt~ t w. a~ i 1 .r ~i. 1.~~ T _ 1. ti~~ .nom ~ NTE(~NkT~oN/P't-~ /~OTDipS 1~y'!(Jau_~~•.!1 , ~O~~RYY L,tl~+1~ Lr+E XNT,Ep.M~T~BMAC yy OTORs'' / ~~Qp~`~ 83.1 ll.oM