Board of Zoning Appeals Regular Meeting

Development Center Board of Zoning Appeals 1120 Monroe Ave NW Meeting Full Grand Rapids, MI 49503 December 15, 2022 Public Hearing Room, 2nd Floor I. 12:00 - 12:30 p.m. Commissioner's lunch - Room 303 PRESENT: Rabaut, Swanson, Schaffer, Perkins, Montgomery, Stella, King, Lewis ABSENT: Zeiser, McCoy, Kilpatrick Staff Present: Planning Director Kristin Turkelson, Tyler Kent, Dale Fitz, Sarah Behmlander, Assistant City Attorney Michael Hoeker and recording secretary Carol Gornowich II. 12:30 p.m. Roll Call III. Approval of Minutes 1. Approval of Minutes from November 17, 2022 RESULT: ACCEPTED [UNANIMOUS] MOVER: Traci Montgomery SECONDER: Micah Perkins YEAS: Rabaut, Swanson, Schaffer, Perkins, Montgomery, Stella, King, Lewis ABSENT: Lawrence Zeiser, Bruce Anthony McCoy, Ryan Kilpatrick IV. Public Hearings beginning 1:00 p.m. or soon thereafter in the Public Hearing Room, 2nd Floor A. 1:00 PM - P-BZA-2022-0008 - Appeal Address: 2739 Breton Rd SE Case Number: P-BZA-2022-0008 Applicant: Jinling “Wendy” Ren Owner: Peng Chang, LLC (Lilly Ren) Agent Phillip Slot Variance Type: Appeal Requesting: Appealing the Planning Department decision that two statues in front of the Mr. & Mrs. Crab restaurant are signs, but should be considered art, and therefore the statues would not be regulated by the Zoning Ordinance. Lot Size: Frontage: 173 ft. Depth: irr. 314 ft. Area: 1.34 Acres Generated 12/19/2022 4:29 PM Board of Zoning Appeals Meeting Full Page 2 December 15, 2022 Zoning: MON-C & NOS Inspection: Swanson Ordinance Sec. 5.13.05 Previous Appeals and See Attached Disposition: Mr. Fitz introduced the applicant’s appeal of the Planning Department decision that two statues in front of the Mr. & Mrs. Crab restaurant are signs, but should be considered art, and therefore the statues would not be regulated by the Zoning Ordinance. Mr. Fitz advised that the property is dual zoned. The restaurant and parking are located in the MON-C Zone District with a small portion of the property in the NOS Zone District. Ms. Turkelson wished to explain how staff arrived at the determination that the crabs are in fact ground signs. The applicant’s packet references quite a bit of commentary on constitutional claims. City Attorney Mike Hoeker will provide the Board with advice on that. Ms. Turkelson reiterated that this is a commercial property. As such, there are rights under the Ordinance to allow for signage. The sign ordinance is based on time, place, and manner. The time, place, and manner restrictions are intended to support the purpose and intent statements of the sign ordinance. Ms. Turkelson advised that the purpose of the sign ordinance is to promote safe, well- maintained, vibrant and attractive commercial districts as well as neighborhoods. The City recognizes constitutional rights to free expression as well as the need to provide directional information, and promote commerce. The City also recognizes that excessive numbers and locations for signs can impair travel and navigation by overwhelming and confusing travelers. Ms. Turkelson explained that when the sign packet was submitted it was initially for just a wall sign that was located above the primary entrance. That permit was issued as it was deemed compliant with the City’s requirements. However, post permit, there were a number of signs that were installed that did not have the benefit of a permit. It is clearly noted in the application that they are now compliant and have removed the illegal signs as they’ve worked through this process. The current sign package included the wall signs and an existing pylon/pole sign that was refaced. During the enforcement process related to the signs that were installed without the benefit of a permit, it was staff’s determination that the crabs are signs, based on the City’s definition of a ground sign and a sign, and thus not permitted. They are permitted one pylon/pole sign or one ground sign. It isn’t permitted by the ordinance to have both. Ms. Turkelson stated that there is no dispute between the City and applicant that these are crabs. There isn’t any interpretation about what the images convey. The application also notes that the crabs make children happy and guests enjoy taking photographs next to the statues when they enter and exit the restaurant. By their own admission, they note that the crabs do attract guests to the business. Therefore, it is undisputed that they constitute commercial speech, which is also defined by the Zoning Ordinance. Ms. Turkelson provided the definition of “sign”, in part: an object, whether permanent or temporary, which is affixed to a lot, and which directs attention to a business. The applicant is Board of Zoning Appeals Meeting Full Page 3 December 15, 2022 asking the BZA to use their discretion to come to a different conclusion that these are something other than signs when there is really no authority to reach a different conclusion. The Board’s responsibility is to determine whether or not City staff used the appropriate review standards and applied reasonable findings to arrive at that determination, which staff feels they have. Mr. Hoeker commented on the constitutional issues included in the application for appeal. The BZA has been advised and the Michigan Supreme Court has recognized that Zoning Boards of Appeal have no jurisdiction over constitutional claims. It is from a case Houdini Properties LLC v City of Romulus. As Ms. Turkelson mentioned, the Board of Zoning Appeals has limited authority and that authority is to interpret the zoning code. The Board of Zoning Appeals is not given authority to strike down the Zoning Code on constitutional grounds or otherwise or find that the City has violated anyone’s constitutional rights. The Zoning Ordinance requires the Board to determine if the decision being appealed followed proper procedures under the Zoning Code. Attorney Phillip Slot was present on behalf of the applicant. He introduced her and invited her to address the Board. Wendy related that she has two daughters, 6 & 8 years old. She came from China and she and her husband had a restaurant that closed for a couple of years because of COVID. They went to Florida and a friend of theirs had a restaurant there called Mr. & Mrs. Crab. It is a franchise restaurant with 20 locations in Florida. This is the 21st location and the first in Michigan. There aren’t many restaurants like this in Grand Rapids; their specialty is seafood. When they first opened the restaurant, their daughters invited their friends from school to try it. They took a picture of the crabs and loved it. When others came, they asked where the crab was. She explained that they aren’t able to have them out there currently but hopefully will be able to have them back. Her daughter asked her today if they will be able to get the crabs back. Wendy stated that she is hoping to be able to go home and tell her daughter they can have them back. She added that customers like the crabs but they also get people driving by that stop to take a picture with the crabs. Mr. Slot circulated a photo of a statue on the MSU Health campus of three women and 2 children. The back story is developing the vaccine for whooping cough. Mr. Slot recalled some of the comments Ms. Turkelson made about the admission that it is a sign because it makes people happy, they take photographs with it, and it is a point of interest. All of those points apply equally to the statue on the MSU campus. To a certain extent, they are dealing with something here that is extremely nuanced, which is where do you delineate between art and signage? Essentially, the analysis the City staff engaged in when they made this determination went outside of the scope of the Zoning Ordinance and applied criteria that are included nowhere in the Ordinance. Specifically, to make an analysis of the communicative intent that the crabs are conveying. In essence, they were determined to be a sign because they communicate that this is a seafood restaurant that sells seafood products. That is an analysis of the communicative intent or the messaging behind the signs. Mr. Slot stated that that analysis and interpretation is nowhere in the Zoning Ordinance and is improper. Mr. Slot felt Mr. Fitz did a great job of describing the facts. There is no difference of opinion of the facts. There was a bit of a learning curve on his client’s part with the prior violations and they Board of Zoning Appeals Meeting Full Page 4 December 15, 2022 were happy to remedy those. He would hope that doesn’t taint this application. They have engaged in good faith with staff to remedy the violations and they apologize for any prior miscommunication. Mr. Slot referred to the photos of the crabs. Each is 5’7” tall x 5’10” across. They are asking the Board to overrule the determination of City staff that these crabs are signs because the City staff applied a content-based analysis of the signs, which isn’t in the Ordinance. Mr. Slot referred to the definition of a sign in the Ordinance: Any name, number, symbol, identification, description, display, illustration, object, graphic, sign structure, or part thereof, whether permanent or temporary, which is affixed to, painted on, represented directly or indirectly upon, or projected onto a building, structure, lot, or other device, whether mobile or affixed to the ground, and which directs attention to any object, product, place, activity, person, institution, organization, or business. The City reasoned that a sign has relevance to a business or service seeking attention and explicitly identified through their branding, logo emblem, available services, etc. To that point, almost anything can be a sign if is speaks directly to the business or services of the property. Mr. Slot stated that it is not necessarily true, nor is it the City’s position, that every statue is a sign. In some instances, a statue is deemed public art and therefore seeks approval from the Art Advisory Committee prior to its installation. In other instances, it may be determined to be an architectural feature based upon the discretion of the City. Mr. Slot asked that the Board focus on the word discretion. He related that that information comes from City staff in their analysis; it doesn’t come out of the Ordinance. It shows what staff did and what they were thinking when they made the determination. When recapping the rationale, what the City has done is engaged in content based analysis of what these signs are conveying. For example, if the statues were crocodiles it would have no connection to the product being served in the restaurant and therefore, under this analysis, it wouldn’t be a sign. In this case, they reasoned that the crabs suggest the product being sold, i.e. seafood, and therefore it is a sign and illegal. Mr. Slot recalled that Ms. Turkelson outlined the standard of appeal. The BZA should be limited to determine whether the decision was made using the proper requirements and the standards of this chapter. Mr. Slot would argue that discretion appears nowhere in the Ordinance. The content-based analysis is contained nowhere in the Ordinance. Mr. Slot indicated he would skip over the constitutional issues and focus exclusively on what is in the Ordinance vs. what was the analysis the City engaged in. First of all, nothing in the Ordinance talks about statues. You don’t see that language specifically called out. Mr. Slot offered the position that the Ordinance is so broad that virtually anything could be included as a sign. He recalled the example he used in his emails with City staff where he said a tree could be a sign because it is an object, it is affixed to a lot, it directs attention to a place, and therefore it is a sign. He would also say that that analysis is exactly the same for every work of art and certainly every statue. It is affixed to the lot. It has interest, much like the photo circulated. The difference is a subjective analysis that requires you to look at whether it has artistic merit and whether it is messaging or engaged in any sort of communicative intent of what is it conveying. Mr. Slot summarized that nothing in the Ordinance suggests that City staff is authorized to make a content-based analysis, which they did. When looking at the staff memo, the City admits that they eliminated nearly all provisions of the Ordinance that bore any relationship to the content of a sign. It may not be in the Ordinance but it was certainly what the City staff did. Secondly, the City admits the courts decision in Reed v. Town of Gilbert, which was a Supreme Court decision in 2015, posed significant challenges in our ability to differentiate between art and signage. Third, under this type of content-based Board of Zoning Appeals Meeting Full Page 5 December 15, 2022 analysis, it is unconstitutional. The reason it isn’t in the Ordinance is because if it was, it wouldn’t be proper. Notwithstanding that fact, the City did apply a content based analysis. Mr. Slot quoted one line from Gilbert: “a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed”. In this case, the idea or message allegedly expressed is buy seafood, this is a seafood restaurant, this is a crab, come in. That is the analysis the City engaged in. Mr. Slot made his final point stating that he finds that City staff is in the unenviable position of trying to determine what is art vs. what is signage. There is very little criteria in that so it leaves staff in a place where they have to make a subjective decision. The Ordinance is extremely broad and vague and City staff is forced to either determine that all art is signs, which is unconstitutional, or they need to engage in an improper and illegal content-based analysis of each work, which is what they did in this case even though it isn’t in the Ordinance. The City admits that the determination of the art vs. sign is at the discretion of the City, which is contained in one of the staff emails included in the packet. The City applied the wrong standard by analyzing the content of the statue and simply put, they believe that the application and decision making process of the City is inconsistent with the Ordinance and they believe the Board is entitled to and should overrule that decision by determining that these statues are works of art and not signage. Mr. Slot indicated that they are fiberglass and each says “lets be together” on the bottom. If it had the branding or logo that may be a more compelling point but there is nothing to suggest, other than the subjective analysis, that it in fact relates at all. As Wendy mentioned, the crabs make children and guests happy. The guests like taking photos next to them. They aren’t here to debate the aesthetic merits of the work. Mr. Slot provided an example of what was voted to be the most influential work of art in the 20th Century by 500 British art world professionals in 2004; a urinal. Reasonable minds can differ. Love it or hate it, that isn’t what is under consideration. The discussion is the nuance and decision-making framework that was applied by the City. The City’s Art Advisory Committee certainly has an opinion, Mr. Slot has an opinion, and everyone else has opinions. Reasonable minds can differ. The City has admitted that the determination of art vs. sign is in its discretion yet the framework they applied is improper. Mr. Slot asked that the Board overrule staff’s decision. Ms. Swanson related that she did go out to visit the site and at the time of her visit the crabs were covered and at the side. Therefore, the photos were helpful. She asked if it was appropriate to ask about the design or selection of that particular piece of art. Ms. Turkelson explained that it wasn’t part of staff’s decision-making process as to whether they thought it was artistic or the designs were appropriate. It clearly communicated that they were crabs and so the subjective opinion of whether staff liked it or didn’t like it isn’t material or appropriate for them to even comment on. Therefore, she doesn’t feel it is appropriate to go into discussion about the design. Mr. Stella asked the applicant if these weren’t statues, and were painted or reproduced on wooden boards, would they be defending them as art. Mr. Slot replied that what appealed to him about this case is the nuance and how interesting he found the issue of the sculpture as a sign. He finds the whole concept to be very nuanced and Board of Zoning Appeals Meeting Full Page 6 December 15, 2022 interesting. The hypothetical suggestion would be different but he didn’t look at that in sufficient detail nor has he looked at the law as it relates to a mural vs. a statue; he focused his inquiry on the statue. The facts in this case are that they have a statue and the analysis that was engaged in looked at the communicative intent. When looking at the sample that was circulated, the exact same analysis can be conducted. It is a beautiful statue about pioneers in medical research developing vaccine for whooping cough. It suggests the product being sold at Michigan State University’s Medical School, which is medical research and health care. Mr. Slot feels the analysis is exactly the same. The only thing that is different is the application in this case and he feels it is an unworkable framework. Ms. Swanson asked Ms. Turkelson if the statues in front of MSU were reviewed by the public art committee. Ms. Turkelson replied that they didn’t come prepared with that information. She doesn’t recall off hand. Ms. Rabaut stated that she was under the impression that the City does not have jurisdiction over signage for schools. Ms. Turkelson agreed. There are certain State Land Grant institutions that have the effect of being exempt from Zoning, meaning that they do not have to comply with local zoning ordinances. MSU is one of those institutions that is protected under that law. Ms. Rabaut asked the applicant if they consider the crabs an object and is their standpoint that the crabs are not substantially a logo similar to what is over the front door. Mr. Slot replied that anything can be an object. Undisputedly it is an object, as a rock would be an object, etc. Is it a logo? When taken in its totality it is a work of art. Does it suggest the product being sold? It probably does, which is why he finds staff in the unenviable position here. It’s a catch 22 that the City is in. However, he remains convinced that under the analysis that was engaged in every work of art is a sign and he doesn’t believe that is right or that that should be the case. Ms. Rabaut was interested in hearing from the staff person that sent the emails/made the decisions. Ms. Turkelson suggested the Board remain focused on the appeal and the information in the packet. She asked if there was something specific Ms. Rabaut was interested in hearing. Ms. Rabaut replied that for her it is how it was decided that it is a sign vs. art. There was a word used in the email, “discretion”, that seems to be relevant to the applicant. Ms. Turkelson read the statement from the email of September 20; “In other instances, it may be determined to be an architectural feature based on the discretion of the Director or PC/BZA”. She stated that she didn’t want to speak for Ms. Behmlander’s intent but it is certainly at Ms. Turkelson’s discretion, and her responsibility to administer and interpret the Ordinance. That doesn’t mean that they’re discretionary decisions with any subjectivity being applied. Rather, it Board of Zoning Appeals Meeting Full Page 7 December 15, 2022 is her responsibility to administer the Ordinance and make the interpretations based on the plain language of the Ordinance. She wanted to be sure that the word discretion isn’t taken out of context to suggest that at her will she is making a decision vs. supporting the findings; those are part of her interpretations. Ms. Rabaut explained that when she read the argument about discretion, she was thinking it is discretion within the parameters of the code. Ms. Turkelson agreed. The responsibilities of the Director are fairly clearly outlined in Article 12 of the Zoning Ordinance. She is fortunate that there are other staff members that assist in the administration of that but it ultimately becomes her responsibility. Mr. Lewis asked how the location of the signage was considered in determining it is a sign. Ms. Turkelson replied that the location isn’t material to the determination as to whether or not it met the definition of a ground sign. Whether it is inset into the site or at the street frontage, that isn’t a criteria of the Ordinance. Mr. Lewis asked if the signs were behind a tree or not visible to anyone else are they still a sign according to the Ordinance. Ms. Turkelson replied yes, they would be. In those instances, typically when there are campus like developments such as a commercial mall or institutional campus, the Ordinance looks to a Planned Sign Program, which provides the Planning Commission with guidance for how to administer signs on a campus wide setting. That is a recognition that it isn’t a typical city lot where you have frontage and things are easily readable or accessible and that there will be internal buildings, uses, landscaping, and signage. All of that is still subject to the development requirements of the Ordinance even if it isn’t fully visible from the right-of-way. Mr. Lewis asked how ground sign vs. way finding is determined. Ms. Turkelson replied that way finding has different dimensional criteria and is typically at the access points or locations within a site to direct people/traffic. Mr. Fitz added that they would deem that as directional signage. Way finding is generally something in a public right-of-way where the public would be directed to a particular building. Mr. Lewis explained that his thought process was that if coming south from 28th St. the topography of the site is such that they aren’t visible. Most times of the day if the business is occupied there is a car in front of it and you can’t see them. They are trying to draw attention to the front door so perhaps they are more way finding than a ground mounted sign drawing attention to the business. Mr. Fitz explained that directional signage is limited to a few square feet to direct people to a particular part of a building or entrance. Ms. Rabaut opened the public hearing and invited public comment. Board of Zoning Appeals Meeting Full Page 8 December 15, 2022 Ricardo Saladin, employee of the restaurant, stated that he feels the statue in front of the building that says “Lets Be Together” is very positive and he likes to see people taking pictures. He would like to have it back because it makes people happy. Jeff Korte, 2530 Anchester, stated that the restaurant opened in July and since then it has become a hub in ways they never thought and it has been a great thing for the neighborhood. It has been a struggling site. This has become a destination in Grand Rapids in ways they never thought. The parking lot is full. Mr. Korte stated that he is part of a big community right behind the restaurant and they all kind of have an affinity not only to the restaurant, because it is great to see activity there, but also the crabs. They talk about them all the time. One of the things he’s noticed on his bike rides at night and during the day when traversing the site is that there are literally families lined up with their kids getting ready to take pictures. He thought to himself that is unique. It’s a wonderful thing and he would love to see them put back in place. He found Mr. Slot’s argument on the artistic side of things interesting. He thought to himself how he took his daughters to some of the notable restaurants throughout their childhood, such as McDonalds. He doesn’t have one picture of them standing next to a McDonalds, Burger King or Uccello’s sign. The signage was never anything his daughters suggested getting a picture of. To Mr. Lewis’s point, if you put a McDonalds sign behind a tree everyone would look at it and recognize it is McDonalds but if you put the two crabs behind a tree, he doesn’t know that anyone would say “oh, that’s Mr. & Mrs. Crabs on 28th St.”. He feels that is an interesting point. It is unique in the fact that a lot of families don’t take pictures next to very popular restaurant signage but they do here and it is a wonderful thing. It would be great to see the crabs come back. Mr. Stella asked Ms. Turkelson if she would agree with the statement made earlier that if these were crocodiles, they wouldn’t be here. Ms. Turkelson replied that she finds it uncomfortable to render a determination on the spot. Staff hasn’t conducted that evaluation in light of the Ordinance criteria. This a commercial building and there is commercial messaging associated with this, based on the fact that it does attract people to the business. It is part of or at least has a close likeness to the logo, to the products that they sell and to their primary business operation. To her, the crabs are direct commercial messaging that are visible, albeit there is potential for cars to be parked in front of them periodically. She would prefer not to speculate on a determination without any sort of evaluation process. Motion by Mr. Perkins, supported by Ms. Schaffer, to close the public hearing. Motion carried unanimously. Ms. Swanson appreciates hearing the discussion. She related that she spent a lot of time looking at the code, looking at their responsibility, and looking at the logo itself and its coloring and placement on the site. Ms. Swanson MOVED TO AFFIRM the Administrative determination made by staff in the matter of the crabs proposed by Mr. & Mrs. Crab restaurant at 2739 Breton Rd. SE due to the finding that staff has the responsibility to interpret the code and properly applied the Ordinance in making the determination per 5.15.12.B for the number of signs and also the Board of Zoning Appeals Meeting Full Page 9 December 15, 2022 finding based on the definition of a sign in Section 5.15.17.A. Per the application and per testimony today, the crabs are there to attract guests to a commercial business enterprise at the site and therefore, it is an object that is there to direct and draw attention to a product, place, or business. SUPPORTED by Ms. Schaffer. Mr. Perkins explained that the reason he disagrees with the motion is because it is so incredibly subjective. He thinks that it is a fine enough point that you could ask an equal number of people whether they think it is a sign or piece of art and 50% of the people would likely fall on either side of that. Mr. Perkins stated that he sees it as art. Given that it is so subjective it is probably an important area to stay out of as much as they can so people can express themselves with their businesses. Ms. Rabaut pointed out that the Board’s role is to look at how staff went about making their decision and subjectivity is part of that but it is subjectivity given the code. Ms. Rabaut asked Mr. Perkins if he doesn’t think that the objects fall within any part of what is defined as a sign. Mr. Perkins replied no. To Mr. Slot’s point that you can literally call almost anything a sign makes it a judgement call and it is a call that he personally disagrees with. He doesn’t feel it falls within the scope of the code. Ms. Montgomery asked if there is any other precedent for this type of interpretation. Ms. Turkelson replied that the examples that were raised in the application were installed under a prior code. She can’t think of a similar example. They recently had BJ’s on the East Beltline and 28th St., they had silhouettes and that was considered as part of a Planned Sign Program. There were silhouettes that were projected or painted onto or affixed to the building that depicted individuals working in a wheat field. Staff made the same determination; that it was not art and it needed to be included in the sign package, which was subsequently reviewed by the Planning Commission and it was approved as part of the Planned Sign Program. Ms. Turkelson didn’t recall all of the findings but they weren’t making findings on that staff interpretation so it isn’t an exact comparison. However, relative to staff’s determination, it was individuals working in a wheat field for the hops for making beer and it is a brew house so staff made the determination that that was also a sign. That is the closest example Ms. Turkelson could think of and she isn’t sure it is completely relevant because of the nature of the request and the process by which it was under review was not the same. Mr. Lewis asked if this applicant would have the ability to go through a Planned Sign Program process. Mr. Fitz replied that it doesn’t have the lot size; it is based on lot size. You need a minimum of 2 acres to request a Planned Sign Program. This lot is 1.3 acres. Ms. Schaffer clarified that if they affirm staff’s decision, her understanding is that they will then consider the variance request. Ms. Swanson stated that her understanding is that the applicant has a choice between a ground sign and a pole sign. Board of Zoning Appeals Meeting Full Page 10 December 15, 2022 Ms. Turkelson agreed. They could eliminate the pole sign and install a ground sign in its place without a variance. Mr. Lewis stated that he feels the location is incredibly relevant to whether a sign is a sign and there is nothing written about that in the Ordinance. He asked what their responsibility is in that case. Ms. Turkelson replied that the Board doesn’t have responsibility in that respect. Policy is set by the City Commission. The City has the right to regulate signs with respect to time, place, manner and placement. There are minimum setback requirements for signs. They cannot be closer than 5-10 ft. to the lot line, depending on the Zone District. There is no maximum setback unlike building placement. The Board has no role in that. However, as a Board, if struggling with administration of the Zoning Ordinance it wouldn’t be inappropriate for the Board to make a request of the Planning Commission to consider it. They aren’t obligated to take that up but it is a message that could be sent to the Planning Commission if it is felt to be helpful in the process of administering variances. Ms. Rabaut feels that is a good example of the difference between the Planning Commission and the Zoning Board. The Zoning Board has what is written to go by, and that’s it. The one thing she worries about is making the interpretation that this isn’t a sign because you could have a million statues or items on one lot. Anything would then fit into that category and properties could be littered with all sorts of forms of art. Based on the intent of the code, that isn’t what the City was looking for when the code was written. Given the fact that the code was rewritten not too long ago, because of a court decision, and it has been reviewed by legal staff and has been accepted by the City, she feels the Board needs to work with what they have and make a determination as to whether or not they feel staff went through the steps they needed to go through to see if it fit into the definition of a sign or not. Ms. Rabaut understands art not being a category that is in the code because that is truly in the eye of the beholder. She worries about coming to a conclusion that signs can be anything. Ms. Turkelson clarified that that is not at all the interpretation staff has made; that anything can be a sign. They were very specific that these crabs are signs because it attracts attention and directly speaks to the business that is in operation. It is a commercial message and attracts attention to that business. Ms. Rabaut added that it is as close as you can get to the logo. Ms. Schaffer added that when talking about the commercial message for her that is the nexus. One has a bow tie and one doesn’t and you can maybe assign gender that it is a Mr. & Mrs. crab and the restaurant is called Mr. & Mrs. Crab and they sell crab and they are the same color family. Not getting into the content of the message, she looks at the crab and surmises it is a crab food restaurant and that is designed to get my attention to come to the restaurant. No matter how adorable they may be, it is still a Mr. & Mrs. Crab to get one into the restaurant and purchase what they are selling. Ms. Schaffer believes it fits within the code that staff was looking at; it is an object designed to draw attention to the business and what the business is selling. That is how she looked at the question of whether they followed the correct standards. If the Board is to only Board of Zoning Appeals Meeting Full Page 11 December 15, 2022 consider how staff made the determination, they looked at the Ordinance, cited the Ordinance, and said this is how it fits within the Ordinance. Her opinion, and the reason she supported the motion, is that is following exactly what staff is supposed to do. It wasn’t a content-based decision; it is a crab designed to draw attention to a commercial business. Mr. Stella suggested they could agree it is art, but commercial art. Ms. Swanson stated that one of the things she struggled with is that it is very closely tied to the commercial purpose of the building. As she focused on the words of the Ordinance, it is there to direct attention to the building. The question was called. YEAS: 7. NAYS: 1 (Perkins). MOTION CARRIED. B. 1:20 PM - P-BZA-2022-0007 - Sign Variance Address: 2739 Breton Rd Se Case Number: P-BZA-2022-0007 Applicant: Jinling “Wendy” Ren Owner: Peng Chang, LLC (Lily Ren) Agent: Phillip Slot Variance Type: Sign Requesting: To display two ground signs totaling 66 sq. ft. in front of the entrance into the Mr. & Mrs. Crab restaurant. In the Modern Era Neighborhood – Commercial (MON-C) zone district one ground sign up to 75 sq. ft. is permitted provided there are no pylon/pole signs on the same street frontage. Permitted: 1 ground sign up to 75 sq. ft. or one pylon/pole sign up to 50 sq. ft. Requesting: 2 ground signs totaling 66 sq. ft. and 1 pylon/pole sign Variance Needed For: 2 ground signs totaling 66 sq. ft. and 1 pylon/pole sign Lot Size: Frontage: 173 ft. Depth: 314 ft. Area: 1.34 acres Zoning: MON-C & NOS Inspection: Swanson Board of Zoning Appeals Meeting Full Page 12 December 15, 2022 Ordinance Sec. 5.15.12. Previous Appeals and See Attached Disposition: Mr. Fitz introduced the request for a dimensional variance/sign variance to display two ground signs totaling 66 sq. ft. in front of the entrance into the Mr. & Mrs. Crab restaurant. In the Modern Era Neighborhood-Commercial (MON-C) zone district, one ground sign up to 75 sq. ft. is permitted provided there are no pylon/pole signs on the same street frontage. Ms. Rabaut advised Board Members that the sign standards are included in the information at their seats, which is what they are considering for this particular variance request. Ms. Turkelson added, for the benefit of the applicant, that the standards are reviewed as part of the Board Member orientation and were reiterated in the packet so it shouldn’t be the first time seeing them. Ms. Swanson provided the inspection report. She visited the site, which is just off the corner of Breton and 28th St. It is a relatively standard lot size. There was ample parking. There is a pole sign that was there when it was a former restaurant. Ms. Swanson stated that she is familiar with the site so she had no trouble finding it. She isn’t sure if she would have felt differently if not familiar with it. You could pull right in and see there was a business with ample parking, which tends to draw your eye to it. The crab signs were not there when she and Mr. Fitz visited the site; they were on the side. They looked around the building and drove past on 28th St. to look at the stairway type entrance but the primary entrance was off of Breton. Ms. Swanson felt it was a very standard site. It was very attractive. In addition to the pole sign out by the road there was signage over each of the doors and there was also a mural type of painting. There was no misunderstanding what the building was. Mr. Fitz clarified that there is window signage, which is different than the mural that was to the left of the window. The mural has been removed. There is some discussion with enforcement staff about the signage that is there. Ms. Rabaut recalled that there is information in the packet about the ability to reach the front door from the south parking lot. She asked about the grade variation there. Mr. Fitz indicated that there is a bit of grade coming from 28th St. and going toward the restaurant. There is approximately a 10 ft. difference from the lower portion of the building where there is another suite and the steps that get you up to the restaurant. Mr. Slot addressed the topography on the site. He agreed that there is an approximate 10 ft. grade change. He identified the location of the hill, the stairs and the front entrance. You can’t access the restaurant from the lower area of the site except for the flight of stairs. There is another user that occupies the lower level. Mr. Fitz explained that there is access internal to the site so people can get to the upper or lower parking lot without going onto Breton. Board of Zoning Appeals Meeting Full Page 13 December 15, 2022 Mr. Slot addressed the five standards to be met for a variance. What is exceptional or extraordinary is that the building is set back from the street vs. other buildings that are directly on 28th St. or Breton. When approaching south on Breton the view of the front door is obstructed by other structures. If you pass the first entrance you have the hill to contend with. Secondly, the lot topography makes the location of the front door of the restaurant somewhat unclear. The purpose of the statues is to identify the front door and direct people to parking vs. them parking at the bottom of the hill and wondering where to go. With regard to substantial property rights, Mr. Slot suggested that the applicant has a substantial property right to exercise the first and fourteenth amendment; rights to free speech and to display works of art. The conditions are not self-created. The immediate practical difficulty was not created by the applicant. This building has existed since 1966. The topography unique to the site was not created by the applicant. Mr. Slot doesn’t believe the statues offer any substantial detriment to surrounding properties. It is set back from the road so there isn’t a visibility issue as you are going down the street for pedestrians or vehicular traffic. They are right by the front door. The location on the site is as innocuous as it can be and they are not likely to cause blockage for traffic or visibility. They are for engagement for patrons as they enter and exit the restaurant for fun and entertainment. Finally, with respect to being consistent with the Master Plan and Zoning Ordinance, Mr. Slot respectfully disagrees with the determination made by the City. One of the stated purposes of the Ordinance is to “ensure that the constitutionally guaranteed right of free speech is protected”. If every object affixed to a piece of property is a sign that means every work of art is a sign and that means every work of art is prohibited. Mr. Slot argued that that does not protect the constitutionally guaranteed right to free speech. Ms. Swanson explained that when she has previously visited the subject site, and during the inspection related to this request, she considered the upper-level parking the primary parking. That is where you want people to access the building. Mr. Slot agreed. However, in the very limited number of times he has been there he has seen people in the lower parking lot wandering around looking where to go and then proceeding to climb the stairs. He believes there is some merit to identifying the location of the front door. Mr. King asked, with respect to the exceptional or extraordinary circumstances, if it is view obstruction of the door or of the pole sign due to the topography. Mr. Slot replied that when you are driving down 28th St., heading east or west, and you are looking for the restaurant you really can’t see it because of the setback. Because of that setback and the obscurities caused by existing structures it merits additional signage. Mr. King clarified that the variance is being requested because the existing sign is obstructed, not the building. The sign can’t reasonably be seen by passing motorists? Ms. Schaffer believes Mr. Slot is focusing on two points to address the standard of exceptional or extraordinary circumstances; 1) the shape of the lot and the setback of the building, which would require more than just the pylon sign that they have and, 2) the view obstruction because of the lot and how the building is setback that it requires more signage to attract people to the appropriate entrance. Board of Zoning Appeals Meeting Full Page 14 December 15, 2022 Ms. Rabaut asked if they have considered directional signage so that patrons don’t go down the internal drive to the lower parking area. Mr. Slot replied that the extent to which he has been involved with this has been to address the violations as they relate to the statues. He hasn’t explored alternatives. His client will likely do that if not successful here today. Ms. Rabaut asked if there is an expectation on the applicant’s part to be seen from 28th St. even though they aren’t on 28th St. Mr. Slot replied that when you look at the location of the structure, as it relates to either Breton or 28th St., it is really set back from both streets and you can access it from both. He isn’t sure that the intention is that you can see the subject sign from 28th St. but, in general, the setback of the building combined with the placement of other structures around on three sides merits additional signage on the site so that when people are looking they can see what they’re looking for and in particular to identify the front door of this building so they don’t have to navigate the steps or go into the wrong suite. He clarified that the pole sign was part of the original sign permit application. Ms. Rabaut explained that the Board has to consider whether the needs can be met within the constraints of the code. The code says they are permitted either a ground or pylon sign. She asked if there has been any discussion about replacing the pylon sign with the subject ground sign. Mr. Slot replied that his suspicion is that the pole sign is likely more important from an identification standpoint. Ms. Turkelson related that the pole sign has been refaced and they have rights to that sign. To the best of her knowledge it is conforming. At worst, they have non-conforming rights and therefore refaced the sign and there were no issues. They could eliminate the pole sign and install a ground sign in that general location but she isn’t sure there is adequate setback width, which may necessitate moving the inner curb line to ensure setbacks could be met. There are likely some site impacts that would need to be addressed should the eliminate the pole sign and install the ground sign. However, her understanding is that the premise for the variance is that additional signage is warranted because of the constraints that Mr. Slot has outlined. Ms. Rabaut opened the public hearing and invited public comment; there was none. Mr. Lewis expressed his understanding that if the lot were 2 acres they could apply for a Planned Sign Program. He asked how often lots are 2 acres or more in the MON zone district. Ms. Turkelson indicated that she isn’t prepared to speculate on the percentage of lots. From her perspective what may be more material to how she would guide the Planning Commission on this is that she doesn’t know that she would find this to be an excellent candidate for Planned Sign Program for reasons she stated in the prior case. The Planned Sign Program is intended to address more complicated sites than traditional commercial development patterns such as this. The kinds of development patterns more appropriate for a Planned Sign Program are shopping Board of Zoning Appeals Meeting Full Page 15 December 15, 2022 centers, medical complexes, etc. where there are multiple buildings or occupants of a site, etc. This is a fairly typical commercial pattern of development and she wouldn’t guide the applicant to a Planned Sign Program even if it met the 2-acre minimum. Mr. Fitz agreed. Generally, the Planned Sign Program is for multiple buildings in a campus type setting. Ms. Turkelson advised that from staff’s perspective the variance process is the most appropriate review process for this type of request. There were statements about the placement of the building itself as well as the buildings around it. There are clearly some unique grade concerns and having the sign setback approximately 154 ft. from the back of the curb. There are those facts associated with this property to be better aligned with a variance request process than a Planned Sign Program process. Mr. Fitz advised that if the Board is inclined to approve the variance there is an ordinance requirement for a minimum of 200 sq. ft. of landscaping around the sign. Therefore, the landscaping would have to be provided or a variance granted for inadequate landscape area. Mr. Slot asked the extent of the landscape requirement. Mr. Fitz explained that for a ground sign you are supposed to have 200 sq. ft. of landscaped area where the sign is located. Motion by Mr. Perkins, supported by Ms. Schaffer, to close the public hearing. Motion carried unanimously. Ms. Swanson addressed the points. 1. That there are exceptional or extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same Zone District or in the neighboring area. Ms. Swanson didn’t find that there were particularly exceptional or extraordinary conditions to warrant a variance. She doesn’t disagree with the applicant’s statement that the building is setback but she wouldn’t say that the commercial use of the site is obscured from the primary view along Breton, not to the extent that you can’t identify the restaurant if you are headed for it. She also agreed that there are stairs but she didn’t see that as particularly extraordinary or unique either, especially because it isn’t the primary entrance and you could still have signage over the doors, which is present now and doesn’t require a variance. 2. The conditions upon which the petition for a Variance is based would not be generally applicable to another property or structure in the same zone District and in the neighboring area. Ms. Swanson did not address the constitutional rights argument. Her focus was on the use of the building. Prior to the applicant’s ownership, the building was most recently occupied successfully as a Persian restaurant for more than ten years. Prior to that it was a coffee shop and offices, all of which were able to operate without a similar variance. Therefore, she didn’t find that a variance was necessary for the property to be used within the zoning district. Board of Zoning Appeals Meeting Full Page 16 December 15, 2022 3. The immediate practical difficulty causing the need for the Variance was not created by the applicant or any person having an interest in the sign, structure, or property. Ms. Swanson stated that she does agree with the applicant as to the condition of the property’s topography, location on the site, and the construction were not self-created. The point is met. 4. Granting the Variance will not be detrimental to the public welfare, be injurious to other properties or improvements, endanger the public safety or substantially diminish or impair property values in the area. The property already has a large sign near the road, two signs on the doors, and window signage. It is well signed and the Ordinance discourages a structure with so many signs that it is overwhelming and visually cluttering. Ms. Swanson feels this is somewhat in the eye of the beholder. While a fifth sign may not be distracting to drivers, due to the setback, it could still be considered visually overwhelming to those visiting the site. It could be a distraction to visitors to the site, neighbors and passersby. Ms. Swanson did not find this point to be met. 5. The Variance shall be consistent with, and not materially impair, the purpose and intent of the Zoning Ordinance and the Master Plan. Granting the variance is not consistent with the purpose and intent of Zoning Ordinance, which speaks directly to preventing visual clutter and reducing the aesthetics of a site and the neighboring area. Ms. Swanson found that the point is not met. Ms. Swanson MOVED TO DENY the sign variance request. SUPPORTED by Mr. Perkins. Ms. Schaffer related that what struck her in viewing this site is how different it is from the locations that surround it that have a presence right on the road. She feels that is an exceptional or extraordinary condition of the building that is not shared by others in the immediate vicinity. In addition, coming around the corner, and considering the traffic, it is very easy to go by and have to turn around. In Ms. Schaffer’s opinion, that does make it exceptional or extraordinary due to the setback of 154 ft. It is very different from all of the other commercial buildings in the area and it isn’t very visible. She feels that would warrant additional signage to ensure people get safely to their destination. Mr. Lewis agreed with Ms. Schaffer. If he were to design a new restaurant it would be set back approximately 70 ft. from the edge of the site with a double loaded parking lot. The current location is approximately double that setback so the visibility challenge of that distance, plus the topography, is an extraordinary circumstance on the site. Ms. Schaffer added that the way it is set is rather odd in that it has another suite below, the stairs, and the access to the lower parking lot with the internal drive. It is all interconnected and it can often be difficult to find your way. Mr. Perkins agreed with Ms. Schaffer. Ms. Rabaut felt that rationale also addressed point three. Ms. Schaffer commented on point two. She recalled that Ms. Swanson felt they do have rights commonly enjoyed since the site was able to function successfully for many years as a restaurant. Ms. Schaffer can understand that point. However, her argument would be that it Board of Zoning Appeals Meeting Full Page 17 December 15, 2022 doesn’t have the same rights of being visible to motorists due to the way the building is set up. They may be able to run a business from this location but are they able to attract customers in the same manner due to the setback? They are a commercial business with the goal of attracting customers. Therefore, they do have a substantial property right to do so and they aren’t able to do it within the code or as other businesses in the area are able to. Mr. Perkins felt that Ms. Swanson’s point was correct in that there is a lot of precedence set. Ms. Swanson explained that what she was looking at is that they do have a sign. It isn’t that they can’t have a sign or that a business hasn’t been able to function there. If it had been turning over or if there had been problems, she may have felt differently but the last restaurant was there for ten years and wasn’t a big, well-known name. It was also a small, independently owned restaurant. Ms. Schaffer addressed the fourth point explaining that she relied on the testimony of the neighbor who indicated that when the crabs were there they were enjoyed by the neighborhood. There was also testimony from the applicant and her agent that people enjoyed the crabs and take photos with them. There was also a letter in the packet that expressed support for the crabs. She finds no substantial detriment because it seems like it is something that was supported. In addition, considering where they are located, they don’t endanger public safety or diminish or impair property values in the area. Mr. Stella added that there is precedent for granting variances for changes that neighbors believe are an improvement to an existing building. Ms. Turkelson expressed her understanding of Ms. Schaffer’s comment about not endangering the public safety due to its setback being close to the building, approximately 154 ft. back from the curb. Ms. Schaffer agreed. It won’t create a traffic jam with people stopping to take pictures. Mr. Lewis added that it isn’t the same as having them right under the pylon sign. Ms. Schaffer addressed the fifth point, which she indicated she struggled with somewhat. Ms. Schaffer appreciates the comments about not wanting to have clutter and not wanting to create an eyesore. However, she feels the Master Plan encourages promoting one’s business in an appropriate way. In this case, if they agree that the way the building was constructed and setback, and the interesting parking lot situation then in her opinion that means that the one pylon sign they are allowed by the Ordinance is not sufficient. They want businesses to be successful and promote themselves. Mr. Perkins stated that points 2 and 5 were why he supported the motion to deny. He doesn’t feel it falls within the Ordinance as you read it. He also doesn’t feel it is a substantial property right. Ms. Montgomery agreed. Points 2 and 5 were also the points she struggled with. She agrees with Ms. Swanson. Board of Zoning Appeals Meeting Full Page 18 December 15, 2022 Ms. Turkelson related that point five was the least challenging from her perspective because of the fact that it is set so far back and they aim to support creative visual interest within the commercial zone districts by allowing some unique installations with appropriate placement. That may be something to consider. Ms. Turkelson clarified that she wasn’t speaking in support or opposition of the variance, just offering her thoughts on how it could comport with the Master Plan. Ms. Rabaut again stated that if it can be done within the code they shouldn’t be giving variances. Part of the unusual circumstances can be addressed with directional signage, which would not need a variance. It doesn’t mean that it negates the fact that the building sits back. She is struggling with the fact that this property can operate within the code. Mr. Lewis feels that while they can operate within the code the desire is for them to be a successful and thriving businesses, which is supported by the Master Plan. Mr. Lewis feels this additional signage would help them in that goal and therefore help the City in their goal of having thriving businesses, especially in difficult locations. Ms. Swanson expressed her appreciation for the input on point one as she went back and forth on that point as well. However, she agrees with Ms. Rabaut about their ability to operate within the code. The property has been able to operate successfully within the code, which is where she struggled with point two. Ms. Montgomery asked that Ms. Schaffer articulate her findings for point two. Ms. Schaffer feels the substantial property right element is focused on the preservation of substantial property rights similar to that possessed by other properties in the same zone district. In her opinion, when looking at the site and the exhibits in the packet, due to the setback and construction of the building on the site it doesn’t have the same ability to attract customers as those that are at the street. Therefore, it is impeding their substantial property right similar to neighbors to attract those customers without additional signage. To Ms. Rabaut’s point, where a pylon may be completely sufficient in other cases for buildings that are at the road and that they could operate within the code is ultimately what is desired. However, this is a commercial property and the whole purpose is to attract customers and sell their product and that is inhibited by not having appropriate signage to draw people into the building. She doesn’t feel this site can be treated like others because it is not like other properties in the area. Mr. Lewis added that he thinks about this kind of restaurant and who its peers are in the market, such as Anna’s House, Morning Bell, etc. that you might see along the East Beltline having two rows of parking and then the building. This is an excellent location in terms of where it is in the city but it isn’t attracting those kinds of businesses. That got him to think about why they wouldn’t want to snap this property up. He believes it has to do with the shape and location of the existing building on the property. Being in that industry, and working with restaurant owners trying to identify potential sites, those are the things that go through his mind and how they would think about this type of property. The question was called on the motion to deny. YEAS: 4 (Swanson, Perkins, Rabaut, King). NAYS: 4 (Schaffer, Lewis, Stella, Montgomery). MOTION FAILED. Board of Zoning Appeals Meeting Full Page 19 December 15, 2022 Mr. Lewis stated for the record that he doesn’t feel it would be a problem for the applicant to meet the 200 sq. ft. landscaping requirement. Ms. Schaffer MOVED TO GRANT the sign variance to permit the existing pylon sign and to display two ground signs totaling 66 sq. ft. in front of the entrance into the Mr. & Mrs. Crab restaurant, as well as a variance to the 200 sq. ft. landscaping requirement with the condition that 100 sq. ft. of landscaping be provided, based on the following points: 1. That there are exceptional or extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same Zone District or in the neighboring area. This building sits on the lot very differently than its neighbors. It has a very large setback compared to the neighbors that sit on Breton Rd. It does have the ability to get to the restaurant from 28th St. and sits on the lot in such a way that it has a set of stairs that lead to a ground floor commercial use. Additionally, the pylon sign is existing but, due to the setback, additional signage would make sense in attracting customers. Ms. Schaffer also noted that the applicant and agent talked at length around the fact that customers often have a hard time finding the entrance to the building or park in the wrong location and that the signage would assist with that. 2. The conditions upon which the petition for a Variance is based would not be generally applicable to another property or structure in the same zone District and in the neighboring area. The buildings around the subject building enjoy the right to attract customers by their placement along Breton Rd. However, due to the setback, the applicant is unable to exercise that same property right to attract customers. For that reason, additional signage would be necessary. 3. The immediate practical difficulty causing the need for the Variance was not created by the applicant or any person having an interest in the sign, structure, or property. This point is met. The building was purchased as it was previously constructed with the setback. 4. Granting the Variance will not be detrimental to the public welfare, be injurious to other properties or improvements, endanger the public safety or substantially diminish or impair property values in the area. Ms. Schaffer cited the testimony from the public hearing that the neighbors enjoyed the signs when they were up and that it brings people to the restaurant. In addition, there is a letter in the packet expressing support for the signage. This point is met. 5. The Variance shall be consistent with, and not materially impair, the purpose and intent of the Zoning Ordinance and the Master Plan. The variance will be consistent with the Master Plan and Zoning Ordinance. As noted by Ms. Turkelson, the City likes to encourage creative and unique ways to advertise buildings. In addition, the City does have an interest in having successful commercial operations within its bounds. SUPPORTED by Mr. Lewis. Ms. Montgomery asked why the requirement to provide 100 sq. ft. of landscaping. Ms. Schaffer replied that she chose 100 sq. ft. because she didn’t want to deny that portion of the variance and require that they come back if they couldn’t meet the 200 sq. ft. requirement. She felt 100 sq. ft. seemed reasonable and would provide some landscaping. Board of Zoning Appeals Meeting Full Page 20 December 15, 2022 Ms. Turkelson stated that when looking at the aerial photography she believes that meeting the 200 sq. ft. requirement would likely project into the sidewalk space, the stair sidewalk, and/or the parking space. It might actually be more challenging to meet the full 200 sq. ft. because of the impervious improvements that are on all sides (east, west and north sides) of the sign location. She isn’t sure it is practically feasible to provide 200 sq. ft. By providing the variance to only require 100 sq. ft. might give a bit of flexibility to accommodate current site conditions. Mr. Lewis wished to make another point about this particular location and existing building. It seems clear that, despite the last couple of uses, this building wasn’t originally designed as a restaurant. There is internal circulation within the building and the windows on the other facades strike him as office space and the way the parking is set up is office space. In the current market conditions, expecting this building to go back to office at some point in the future as the highest and best use is unrealistic. The continuation of use as a commercial business/restaurant is its most likely path forward and it is important to try to make sure it succeeds as a restaurant. Mr. Lewis stated that he frequented the former restaurant that was in this location and it didn’t seem that it had the following it needed to survive and it is no longer there. He believes it needs the extra support to continue on and make sure it isn’t a vacant property in the future. Ms. Schaffer accepted the friendly amendment to her statement around exceptional and extraordinary circumstances to include Mr. Lewis’s comments about the design of the building. The question was called on the motion to grant: YEAS: 5 (Schaffer, Perkins, Montgomery, Stella, Lewis). NAYS: 3 (King, Swanson, Rabaut). MOTION CARRIED. RESULT: APPROVED WITH CONDITIONS [5 TO 3] MOVER: Cortney Schaffer SECONDER: James Lewis YEAS: Schaffer, Perkins, Montgomery, Stella, Lewis NAYS: Lynn Rabaut, Mary Swanson, Jeffrey King ABSENT: Lawrence Zeiser, Bruce Anthony McCoy, Ryan Kilpatrick V. Discussion  Ms. Turkelson related that staff is looking at providing training through the Michigan Association of Planning for all Board Members at the February meeting. The goal is to keep that meeting date as a training date. However, if there is a variance request it may be necessary to hear at least one case. She asked that Board Members make every effort to attend. They will also be inviting the Wyoming and Kentwood Zoning Board Members.  Ms. Rabaut reminded Board Members about responding to emails in a group due to the Open Meetings Act. She suggested that Board Members contact staff directly if they have questions. VI. Adjournment The meeting was closed at 3:04 PM