By Dan Mika
Posted on Thursday, April 7th, 2022
So your client needs more or bigger signs than the sign code allows. Or signs closer to the road. Or a different type than the code allows.
Should you advise them to apply for a variance (a waiver from the code)? It depends on the justifications used and the municipality in question. It’s important to understand how variances work, and how to estimate if a variance will be granted.
Even municipalities located right next to each other may differ wildly in their variance approval percentages—from close to zero to over 50%. If the figure is high and you have a good case, the ZBA is probably business friendly—which increases the chances of a favorable outcome.
How many get granted?
To determine what percentage and types of variances are granted, ask the municipality in question where the records of the ZBA are kept. You may be able to look at them right there, or you can ask for copies of the records going back a couple of years. The records may even be accessible online.
See how many sign-related cases were granted variances and look at the specifics of the cases. For example, you may find that lesser setbacks or larger sizes were frequently allowed. Take notes.
In some communities, the building department has someone who attends the variance board meetings who will be able to advise you on how your issue has been handled in the past. More likely you’ll hear, “It could go either way…” or “It’s up to the board…”. One building code official told me, “Our ZBA is a pushover…”
Making your case
Most sign variance requests ask for increased face area, extra signs, additional height, reduced setbacks or a type of sign not allowed by the code. You and your client must prove to the board that your need is genuine and essential for both the business and the safety of the community.
ZBA’s look for “unique factors” when deciding cases because they are reluctant to allow signs that create a precedent that will legally force them to grant the same variance to others. Approach the request using factors that make your case unique and use research-based justifications to increase your odds of getting a variance for your client. Unique justifications can be both physical and, in some states, economic.
There are instances when unique physical factors (usually related to safety) make the sign code limitations overly harsh and dangerous. Drivers may be forced to make dangerous U-turns or slow down to look for the business. They may not have enough time to safely change lanes when they approach the location.
Here are a few possible causes for these safety concerns:
■ Traffic speed too high for safe, on-time response to the sign
■ The number of lanes on the street—making signs unreadable
■ Buildings, trees, bridge abutments or railings that block vision
■ A building fronts on two roads but the sign allowance is only sufficient for one
■ Background clutter
Use resources and research
Much research has been done to help you objectively prove your case. The United States Sign Council published plenty of independent and university-based research on sign visibility and traffic safety. Their book, USSC Best Practices Guidelines: Standards for On-Premise Signs, is an excellent resource.
The American Planning Association [www.planning.org], whose members write many of the sign codes these days, published a book, Street Graphics and the Law, which contains sign recommendations based on USSC research. It answers questions like “Is a 25 square foot sign sufficient, and safe, for a four-lane highway where the speed limit is 45 mph?” Referencing the APA book at your hearing is like bringing an expert witness.
Here are a few other points you may want to consider during your preparation:
■ If a video presentation is possible and advantageous, videotape the site.
■ Know if other signs in the municipality have received variances for the same thing you are seeking.
■ At the meeting, you may hear the question, “If we grant your variance, what will we say when another business asks for the same thing?” Be ready with an explanation of the unique circumstances of your request.
■ Get neighborhood businesses and residential neighbors to give their favorable opinions.
■ Make a model of the site showing the proposed signs, if necessary.
■ Bring in witnesses.
Less than half of states allow economic justifications to be used in presenting a case. Check the application form or ask the ZBA whether economic justifications are allowed or not. The board members will be interested to know the economic reason behind the application. These economic justifications (“talking points”) give the board more background:
■ Insufficient income to keep operating
■ The fear of having to lay off employees or the inability to hire more employees.
■ The business may be larger by comparison than neighboring businesses. Normal sign limits to them is an undue economic burden because the larger operation represents a larger investment.
■ The shape of the building, such as in a narrow storefront on a deep lot, can make limits based upon frontage unfair.
■ Little or no street visibility.
■ A lack of impulse buyers is causing economic distress.
■ An argument can also be made in some cases that “the taxable value of that parcel is directly related to the income that can be produced on that property and it’s not there yet.”
■ Economic downturns, Internet competition and struggling local economies
Plan for compromise
During the ZBA meeting, if it seems like the board is listening but leaning against granting your variance in full, be ready with a compromise. Find out what your client is willing to settle for but don’t show your hand all at once.
Before the meeting, make a list of things you could possibly offer:
■ Plant shrubbery or to professionally landscape around a ground sign.
■ Reduce the size somewhat.
■ Reduce the height somewhat.
■ Trade off some lesser important existing signs. “We’re willing to eliminate the sign on the side of the building if we get a more effective size for the freestanding sign.”
■ Change or eliminate the lighting.
■ Change the location.
■ Ask for a temporary use permit.
■ Perhaps be ready with an alternative design.
In some cases, applicants ask for a little more than they want in the application so that they will have something to bargain down to—and still get close to what they originally wanted. But be careful; if you begin by asking for too much, you may just annoy the board.
Charge for your time and expenses
The cost of a variance hearing may range from $100 to $1000. A lot of time can be spent registering for the meeting, preparing the materials and attending the meeting. A packet of information for each of the board members will usually be required.
Charge your client accordingly for all this work or politely offer to let them do it themselves. It is important to use business practices that will give you the financial return that will allow you to stay in business.
Remember that no matter who does the work, the time and expense will be far outweighed by the increased sign visibility that will be provided by the variance, if granted. Signs, after all, offer the best value by far of any advertising media.
Sign analyst Dan Mika, Cheektowaga, New York, is always looking for ways signs can be more effective.