City staff are asking council to stand by their order that Whitehorse businessman Con Lattin remove the Pepsi sign displayed on Lattin's vacant Fourth Avenue property.

Lattin has asked council to review the order issued by the planning department, most recently on March 9, in the hopes it will be rescinded.

At last night's city council meeting, planning manager Mike Gau presented the report recommending the order remain. He pointed to sections of the zoning bylaw that allow signs only for the main purpose the land is used for.

"It is the city's position that the location of the Pepsi sign on the vacant lands offends this section," reads the report.

"This position has been confirmed by the city's legal advisors. Simply put, the lands are vacant and no services or products are offered on the site.

"In addition, the principal use of the lands must be looked at within the present context of how the lands are ordinarily used or permitted to be used through an application process, not some intended future use of the lands, as has been suggested."

Last night and at a previous council and senior management meeting, Lattin and Peter Sandiford, an articled student with Davis LLP, argued the city has to look at the definition of the word use under the bylaw which states "the purposes for which land or a building is arranged or intended, or for which either land or building is, or may be, occupied and maintained."

"The bylaw has its own explicit definition," Sandiford told council last night, noting that an intended use would include future plans for the site.

While Lattin has had plans drawn up for the lot which would include serving Pepsi products, as he's told city officials, he's waiting for the right economic climate before he goes ahead with the plans.

Though city officials may typically use a development permit as a way of determining the intended plans for a site, Sandiford has pointed out there's nothing in the bylaw that says a development permit is required to show an intended use.

But even outside of that, city staff are arguing they have yet to receive a development permit application for the sign to be placed and that it's unknown whether it meets size requirements or addresses safety concerns around structural integrity.

"Inspections of the sign from the adjacent public right-of-way indicate that the sign exceeds the maximum allowable advertising copy area of 10 square metres for free-standing signs (zoning bylaw 8.9.8) and that the copy area is too close to the ground," notes the report to council. Under the same section of the bylaw the advertisement must be 2.5 metres or more off the ground.

But as Sandiford argued, the size is not the subject of the order, which relies solely on the section around use.

"That's the only thing it relies on," he said. "Since this time, there's been further reasons - not complying with size, lack of development permit, the normal city process for (placing) signs on developments. These are not part of the order. The order is under (section) 8.5.3 (of the zoning bylaw) - that's it."

While the city may have other legitimate concerns about the sign, they would have to be brought up at a later date because the current order relates only to the section on use.

First the city would have to deal with this issue before exploring other matters.

Noting concerns around the size, he pointed out no one has taken measurements.

Being on private property, city officials would need to get Lattin's permission before they could go on site and take measurements. There have been no phone calls nor discussions to get that authorization, he said.

While the most recent order on the sign came in March, it isn't the first time the city has taken issue with it.

Lattin was first informed in October 2008 and the following December that he couldn't have the sign because it was deemed a billboard.

The city eventually agreed it isn't a billboard, but then issued an amended notice of violation stating it didn't meet the advertising criteria for the property. That was then followed by the most recent order to remove it.

"I wonder why this sign is being singled out," Lattin commented last night after reviewing the history of the property and suggesting there are other signs that contravene the bylaw and aren't the object of removal orders.

Even when it was the home of the Midnight Sun Coffee Roasters shop (along with The Nest used furniture and appliance shop), Pepsi products were served there, he said as he asked council to cancel the order and "stop this silly harassment."

Questioned by Coun. Florence Roberts about whether there wasn't a more amicable way to deal with the situation, Gau noted staff have been working on the issue since last October.

"As you know, this is likely the first time an order like this has been brought to council; that's how often it gets to this stage," he said. "It's very rare."

While there's a disagreement, the city has to carry on with its job.

There's only one court case Gau could remember that saw an issue over a sign violation go to court.

In 2004, Judge Gail Maltby ruled the Wharf on Fourth was violating the city's bylaw with its billboard sign on Second Avenue at Quartz Road.

Council will vote next week on whether to confirm the order over Lattin's sign.