February 17, 2013
Powell Council, after about a year of repeated postponements and passionate debate, voted in favor of the CVS annexation and its lit reader-board sign — yet not before making a few last-minute compromising amendments.
Council had previously stated that the CVS LED sign, to be located at the corner of Seldom Seen Road and Sawmill Parkway, must have amber text instead of the traditional red. Also, its message was not to change more than once every 30 minutes, may not be animated, and must periodically allow for Powell to post public service announcements. The ordinance also forbid any temporary outdoor signs to be posted on the property.
Moments before the vote, council amended that the LED message change no more than once a day instead of 30 minutes, be lit only during current businesses hours, and cannot be brighter than the backlit sign above the LED sign.
Council also stipulated that the applicant must revisit the sign “in good faith” in three years to investigate and upgrade new technology that could improve the sign’s resolution and the appearance.
The ordinance of the amended development plan for the CVS was approved by a vote of 4 to 3.
The following ordinance, which accepted the annexation of the 2.501-acre tract more or less to the City of Powell, was approved by a vote of 5 to 2. Despite the adjustments council made to comply with CVS’s requests and quell residents’ complaints, some homeowners were still not pleased.
“An LED is an LED,” said Tom Fink, president of Woods at Big Bear Farms Homeowners Association. Furthermore, he believed it was not necessary.
“I go to CVS because of goods and services, not some cockamamy sign out there,” he said.
Fink warned that council would open “a Pandora’s box” by approving an LED sign.
“We had faith and trust in you that you were going to maintain (the character of Powell),” Fink told council. “The character of our community is going to be lost, and you guys are going to be responsible for it.”
Councilman Jim Hrivnak argued that approving the sign would not necessarily set a precedent because it is in a planned commercial district.
“Each one is handled individually,” Hrivnak said.
Mayor Art Schultz agreed that the approval would not lead to an LED-riddled Powell.
“I think it will be even harder for people to get reader board signs approved,” said Schultz.
The council faced more than public criticism Tuesday night; it faced risks of a lawsuit if the resolution did not pass.
“CVS’s position is that if the annexation is off and the deal is off, that we take legal action,” said CVS attorney Tyler Stoner. “It hasn’t been decided but its something that’s been considered.”
Stoner listed the ways that CVS has been flexible with the city. He reminded council that CVS agreed to change the color to amber, to allow for public messages, and to not change the text more than once every 30 minutes.
“I think we’ve shown over and over again that we’re trying to work with the City of Powell,” said Stoner. “But at the end of the day, we had a crystal clear contract.”
“Basically, CVS was ready, willing and able to perform and the city just changed its mind,” Stoner added.
Powell attorney Gene Hollins said that council had 120 days to act after the agreement was presented. Tuesday, he pointed out, marked the 119th day.
While council had approved the pre-annexation agreement with CVS, which included mention of the lighted sign, some members claimed they thought the design could be adjusted before the final proposal.
“Either I made a mistake or I’m changing my mind or both,” said councilman Don Grubbs. He proposed eliminating the sign from the agreement, “then pay the piper.”
After calling for an executive session, during which council debated for about 20 minutes, council agreed to make a few amendments to the CVS sign plan. Because council ultimately accepted a sign and the annexation, Schultz said a lawsuit was less likely.
Although Stoner suggested that CVS would not accept the amendment of turning the sign off after business hours, Schultz said “it is more likely that his client would have more of a disagreement with us if we hadn’t allowed the sign at all.”
“Given that we have proceeded with the sign, there is no reason for (CVS) to have any grievance against the city,” Schultz added.
Director of development David Betz said there is a 30 day referendum period following the ordinance adoption. Consequently, Schultz said that the sign would take several weeks to several months to even be in a position to start construction.