HomeMy WebLinkAbout10-13-2004 Board of Adjustment
AGENDA
IOWA CITY BOARD OF ADJUSTMENT MEETING
WEDNESDAY, October 13, 2004 - 5:00 PM
EMMAJ. HARVAT HALL
A. Call to Order
B. Roll Call
C. Consider the August 11, 2004 Meeting Minutes
D. Special Exceptions:
1. EXC04-00020 Discussion of an application submitted by First Presbyterian Church for a
special exception to permit installation of a columbarium for the use of the church members
for property located in the Low Density Single-Family Residential (RS-5) zone at 2701
Rochester Avenue.
2. EXC04-00022 Discussion of an application submitted by Verizon Wireless for a special
exception to permit installation of a telecommunications tower site for property located in the
Interim Development Single-Family Residential (I-DRS) zone at 637 Foster Road.
3. EXC04-00023 Discussion of an application submitted by Mark Holtkamp for a special
exception to permit a shared common driveway and parking areas for property located in the
Medium Density Single-Family Residential (RS-8) zone at 211 Myrtle Avenue.
4. EXC04-00024 Discussion of an application submitted by Southgate Development for a
special exception to permit a drive thru restaurant for property located in the Community
Commercial (CC-2) zone at Pepperwood Plaza on the east side of Keokuk Street south of
Hwy6.
E. Appeal:
APL04-00004 Discussion of an application submitted by Wesley Foundation for an appeal of
a decision of the Building Official that an auto and truck oriented use has lost its non-
conforming status for property located in the Central Business Support (CB-5) zone at 130 N.
Dubuque Street.
F. Other
G. Board of Adjustment Information
H. Adjourn
NEXT BOARD OF ADJUSTMENT MEETING - NOVEMBER 13, 2004
STAFF REPORT
To: Board of Adjustment
Prepared by: Robert Miklo
Date: October 13, 2004
Item: EX04-00020 2701 Rochester Ave.
GENERAL INFORMATION:
Applicant:
First Presbyterian Church
2701 Rochester Avenue
Iowa City, IA 52245
Contact Person:
Dick Brown
2905 Saddle Club Rd. NE
Phone: 351 5408
Requested Action:
Approval of a special exception to
permit the expansion of a religious
institution in an RS-5 zone
Purpose:
To allow the installation of a
columbarium.
Location:
2701 Rochester Avenue
Size:
1.96 acres
Existing Land Use and Zoning:
First Presbyterian Church; RS-5
Surrounding Land Use and Zoning:
North:
Residential; RS-5 and
OPDH-5
Residential; RS-5
Vacant; OSAlRS-5
Residential; RS-5
South:
East:
West:
Comprehensive Plan:
Institutional
Applicable Code requirements:
14-6D-2D, religious institutions
permitted by special exception in
the RS-5 zone; 14-6L-10,
additional regulations for religious
institutions; 14-6W-2B, general
standards for special exceptions.
File Date:
August 30, 2003
BACKGROUND:
The First Presbyterian Church was built in 1974 when this property was zoned R1A,
Single Family Residence Zone. Churches were a permitted use in the R1A zone. In
1983 as part of a citywide rezoning, the City rezoned this property to RS-5, Low Density
Single-Family. Religious institutions require a special exception in the RS-5 zone. Any
expansion of the existing church on this property requires approval of a special
exception.
The applicant is now requesting a special exception to allow the construction of a
columbarium. A columbarium is a vault with niches for urns containing ashes of the
dead (Webster's Collegiate Dictionary). The zoning code defines a religious institution
as an organization having a religious purpose, which has been granted a Federal tax
exemption as a section 501 (c)(3) organization under the Internal Revenue Code, as
amended, including churches, rectories, meeting halls, schools and the facilities related
to their use. The columbarium is intended for use of members of the First Presbyterian
Church, and as such, is a facility related to the use of the church.
ANAL YSIS:
The purpose of the Zoning Ordinance is to promote the public health, safety and general
welfare, to conserve and protect the value of property throughout the City, and to
encourage the most appropriate use of land. It is the intent of the Ordinance to permit
the full use and enjoyment of property in a manner that does not intrude upon adjacent
property. The Board may grant the requested special exception if the requested action is
found to be in accordance with the regulations found in Section 14-6L-10, pertaining to
religious institutions in the RS-5 zone, and the general standards for special exceptions
as setforth in Section 14-6W-2B.
Specific Standards: 14-6L-10, Special Exceptions: Religious Institutions. This
section requires that religious institutions have access to a collector or an arterial street
and specifies that religious institutions in the RS-5 zone are required to have a minimum
lot area of 40,000 square feet and buildings must be setback 2 feet for every one-foot of
building height. The existing church and proposed columbarium meet all of these
requirements.
General Standards: 14-6W-2B, Special Exception Review Requirements. The
applicant's statements regarding each of the general standards are attached. Staff
comments are offered as needed and correspond to the standards as enumerated in the
Zoning Ordinance.
a. The specific proposed exception will not be detrimental to or endanger the
public health, safety, comfort or general welfare. There is an existing church on
this property. In staffs view the expansion of this religious institution to include a
columbarium will have minimal effect on public health, safety, comfort or welfare.
The proposed columbarium is relatively small in scale and should generate minimal
traffic. It will be situated on the property so that it will not be highly visible from
nearby properties.
b. The specific proposed exception will not be injurious to the use and enjoyment
of other property in the immediate vicinity and will not substantially diminish
or impair property values in the neighborhood. As noted the columbarium will
not be highly visible and should generate minimal traffic and thus will have minimal
effect on adjacent properties.
c. Establishment of the specific proposed exception will not impede the normal
and orderly development and improvement of the surrounding property for
uses permitted in the zone in which such property is located. The proposed
columbarium is relatively small in scale when compared to the existing building and
in staff's opinion will not significantly alter the character of the neighborhood. The
structure will not be highly visible from adjacent residential properties. Although it
may generate occasional visitors, traffic associated with its presence should be
negligible and therefore in staff's opinion it will be compatible with the nearby
residential uses.
d. Adequate utilities, access roads, drainage and/or necessary facilities have
been or are being provided. Adequate utilities, access and drainage are in place to
serve the existing church on this property. The columbarium should not increase
demand on these facilities.
e. Adequate measures have been or will be taken to provide ingress or egress
designed so as to minimize traffic congestion on public streets. The Church
has two driveways onto Mt. Vernon Drive and one onto Rochester Avenue. The
proposed columbarium would be located to the west of the driveway onto Rochester
Avenue. As noted traffic associated with the columbarium should be negligible.
f. Except for the specific regulations and standards applicable to the exception
being considered, the specific proposed exception, in all other respects,
conforms to the applicable regulations or standards of the zone in which it is
to be located. The proposed addition complies with the dimensional requirements
for religious institutions in the RS-5 zone.
g. The proposed use will be consistent with the short-range Comprehensive Plan
of the City. The Northeast District Plan, a component of the Comprehensive Plan,
identifies this area as appropriate for institutional uses, which would include religious
institutions.
STAFF RECOMMENDATION:
Staff recommends that EXC04-00020, an application for a special exception to allow a
columbarium addition to a religious institution in the Low-Density Single- Family zone at
2701 Rochester Avenue be approved, subject to general compliance with the plans
submitted with the application.
ATTACHMENTS:
1. Location map
2. Proposed Site Plan
3. Illustration of columbarium
4. Correspondence
Approved by:
Kari Franklin, Director,
De artment of Planning and Community
Development
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APPEAL TO THE
BOARD OF ADJUSTMENT
SPECIAL EXCEPTION
TITLE 14, CHAPTER 6, ARTICLE W
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DATE:
9-1-04
PROPERTY PARCEL NO.
1012279001
APPEAL PROPERTY ADDRESS:
APPEAL PROPERTY ZONE: R55
2701 Rochester Ave.
1. 96 AC
APPEAL PROPERTY LOT SIZE: 85378 sq. ft.
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APPLICANT: Name: First Presbyterian Charch
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Address: 2701 Rochester Ave.
Phone: 351-2660
CONTACT PERSON: Name: Dick Brown
Address: 2905 Saddle Club Rd. NE
Phone: 351-5408 331-7088
PROPERTY OWNER: Name: First Presbyterian Church
Address: 2701 Rochester Ave.
351-2660
Phone:
Specific Requested Special Exception; Applicable Section(s) of the Zoning Chapter:
Installaton of pre-constructed columbarium for use of members of FPC
Purpose for special exception:
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Date of previous application or appeal filed, if any:
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INFORMATION TO BE PROVIDED BY APPLICANT:
A,
LeQal description of property:
W 196 AC of E 8.48 AC SE
NW 1/4 12-79-6 Lots 1?0-1 A Washington Park add. part 7
B. *Plot p!an drawn to scale showing:
1. Lot with dimensions;
2. North point and scale;
3. Existing and proposed structures with distances from property lines;
4. Abutting streets and alleys;
5. Surrounding land uses, including the location and record owner of each
property opposite or abutting the property in question;
6. Parking spaces and trees - existing and proposed,
[*Submission of an 82" x 11" bold print plot plan is preferred.]
C. Review. The Board shall review all applicable evidence regarding the site, existing
and proposed structures, neighboring uses, parking areas, driveway locations,
highway and street access, traffic generation and circulation, drainage, sanitary
sewer and water systems, the operation of the specific proposed exception and
such other evidence as deemed appropriate. (Section 14-6W-2B1, City Code).
In the space provided below or on an attached sheet, address the areas of Board
review which apply to the requested special exception. In this narrative statement,
set forth the grounds offered as support for the special exception.
See pi~res and plat for Bldg and lot. Also parking and street. "'J
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The applicant is required to present specific information, not just opinions, thatthe
general standards for the granting of a special exception (Section 14-6W-2B2, City
Code), enumerated below, will be met:
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1. The specific proposed exception will not be detrimental to or endanger the
public health, safety, comfort, or general welfare.
This unit is pre-constructed; is all granite and concrete. Will not
have any water or electric. See picture. This is complete It surronded
by the church property; it will not be neccesary to modify parking
or egress.
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2. The specific proposed exception will not be injurious to the use and
enjoyment of other property in the immediate vicinity and will not
substantially diminish éJlnd impair property values in the neighborhood.
See pictures.
3. Establishment of the specific proposed exception will not impede the normal
and orderly development and improvement of the surrounding property for
uses permitted in the zone in which such property is located.
This is co~pletly surronded by church property and all surronding
property ~s developed.
4. Adequate utilities, access roads, drainage and/or necessary facilities have
been or are being provided.
Nothing needs to be changed.
5. Adequate measures have been or will be taken to provide ingress or egress
designed so as to minimize traffic congestion on public streets.
Ingress and egress are already in place.
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6. Except for the specific regulations and standards applicable to the exception
being considered, the specific proposed exception, In all other respects,
conforms to the applicable regulations or standards of the zone In which it is
to be located. [Depending on the type of exception requested, certain
specific conditions may need to be met. The applicant will demonstrate
compliance with the specific conditions required for a particular use, as
provided In City Code Section 14-6L-1, Special Exception Enumerated
Requirements; Section 14-6N-1, Off-Street Parking Requirements; Section
14-6Q, Dimensional Requirements, or Section 14-6R, Tree Regulations, as
appropriate.]
Will meet all other city ord.
7. The proposed use will be consistent with the short-range Comprehensive
Plan of the City.
Compo plans shows RS5 area - church use is acceptable.
E. List the names and mailing addresses of the record owners of all property located
within 300 feet ofthe exterior limits ofthe property Involved in this appeal:
NAME
ADDRESS
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NOTE: Conditions. In permitting a special exception, the Board may Impose appropriate
conditions and safeguards, including but not limited to planting screens, fencing,
construction commencement and completion deadlines, lighting, operational controls,
improved tr¡¡¡fflc circulation requirements, highway access restrictions, increased
minimum yard requirements, parking requirements, limitations on the duration of a use or
ownership or any other requirement which the Board deems appropriate under the
circumstances upon a finding that the conditions are necessary to fulfill the purpose and
intent of the Zoning Chapter. (Section 14-6W-2B3, City Code).
Orders. Unless otherwise determined by the Board, all orders of the Board shall
expire six (6) months from the date the written decision Is filed with the City Clerk,
unless the applicant shall have taken action within the six (6) month period to
establish the use or construct the building permitted under the terms of the
Board's decision, such as by obtaining a building permit and proceeding to
completion In accordance with the terms of the permit. Upon written request, and
for good cause shown, the Board may extend the expiration date of any order
without further public hearing on the merits of the original appeal or application.
(Section 14-6W-3E, City Code).
Petition for writ of certiorari. Any person or persons, jointly or severally, aggrieved
by any decision of the Board under the provisions of the Zoning Chapter, or any
taxpayer or any officer, department or board of the City may present to a court of
record a petition for writ of certiorari duly verified, setting forth that such decision
is illegal, in whole or In part, and specifying the grounds of the illegality. (Section
14-6W-7, City Code). Such petition shall be presented to the court within thirty (30)
days after the filing of the decision In the office of the City Clerk.
Date:
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Signature(s) of Applicant(s)
Date:
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Case No.
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BEFORE THE IOWA CITY BOARD OF ADJUSTM
IN THE MATTER OF
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OPPOSITION TO APPLICATION
FOR SPECIAL EXCEPTION
THE APPLICATION FOR
SPECIAL EXCEPTION BY
FIRST PRESBYTERIAN CHURCH
ISSUES I. II & III
A "cOLUMBARIUM" IS A "CEMETERY" UNDER THE ZONING CHAPTER
A "CEMETERY" IS NEITHER A PERMITTED USE. PROVISIONAL USE NOR A
SPECIAL EXCEPTION IN A RS-S LOW DENSITY SINGLE-FAMILY RESIDENTIAL
ZONE
A "CEMETERY" IS NOT A "PERMITTED ACCESSORY USE" TO A "RELIGIOUS
INSTITUTION' IN A RS-S LOW DENSITY SINGLE-FAMILY RESIDENTIAL ZONE
THE BOARD OF ADJUSTMENT DOES NOT HAVE JURISDICTION TO HEAR AND
DECIDE AN APPLICATION FOR A "CEMETERY" IN A RS-S LOW DENSITY SINGLE-
FAMILY RESIDENTIAL ZONE
First Presbyterian Church is zoned RS-5 Low Density Single-Family
Residential. See "Site Location 2701 Rochester Ave." attached as Exhibit A.
In a RS-5 Zone a cemetery is neither a "permitted use", "provisional use" nor
a "special exception." See Iowa City Zoning Chapter 14-6D-2(B)(C) & (D),
In a RS-5 Zone a cemetery is not one of the seventeen exclusive permitted
"accessory uses, buildings or other structures customarily incidental to and
commonly associated with a permitted use, provisional use or special exception."
See 14-6M-1 (B) (1-17): Permitted Accessory Uses and Buildings,
First Presbyterian Church is a "Religious Institution", "Religious Institution" is
specifically defined as "[a]n organization having a religious purpose, . . including
churches, rectories, meeting halls, schools and the facilities related to their use."
See 14-6B-2
"Religious Institution" as defined in the Zoning Chapter excludes the terms
"cemetery", "mausoleum, or "columbarium."
The term "Cemetery", "Religious Cemetery", "Columbarium" and "Sale" are
not defined in the Zoning Chapter.
Terms not defined [in the Zoning Chapter] shall have the meanings
customarily assigned to them as defined in Webster's new collegiate dictionary, as
amended, . " See 14-6B-1 (8): Rules of Word Construction.
Merriam-Webster's Collegiate Dictionary, Eleventh Edition defines "cemetery"
only as "a burial ground,"
The term "Cemetery", "Columbarium", "Religious Cemetery" and "Sale" are
defined pursuant to Iowa law as:
"Cemetery" means a cemetery, mausoleum, columbarium, or other space
held for the purpose of burial, entombment, or inurnment of human remains
and where such space is offered for sale to the public.
"Columbarium" means a structure or room or other space in a building or
structure use or intended to be used for the inurnment or deposit of cremated
human remains.
"Religious cemetery" means a cemetery that is owned, operated, or controlled
by a recognized church, religious society, association or denomination.
"Sale" means a transfer for consideration of any interest in ownership, title or
right of use,
See Iowa Code §§566A,1A(2), (4), (17) & (18) (2003).
Although "Religious Institutions" are special exceptions in a RS-5 Low Density
Single-Family Residential Zone, they are subject to the enumerated special
exception requirements of Article L of Chapter 6. See 14-60-2(0).
The enumerated special exception requirements of Article L clearly classify
"Religious Institutions" as a principal use and exclude cemeteries, mausoleums or
columbariums, See 14-6L-1 (0)(1-2).
The only reasonable, logical and internally consistent statutory interpretation
of the Zoning Chapter is that a columbarium is a cemetery and that a cemetery is
neither a permitted use, provisional use, special exception or a permitted accessory
use to a religious institution in a RS-5 Low Density Single Family Residential Zone.
The Board of Adjustment only has the power to hear and decide appeals,
special exceptions, variances and interpret zoning provisions. See 14-6W-2:
Powers.
The Board of Adjustment does not have jurisdiction to hear and decide an
application for a cemetery in a RS-5 Zone, Only the City Council has the power to
amend the Zoning Chapter to allow "cemeteries" as a "permitted use", "provisional
use", "special exception" , or "permitted accessory use to a religious institution" in a
RS-5 Zone.
2
ISSUES IV & V
ALLOWING A "cOLUMBARIUM" TO BE BUILT ON 1.96 ACRES FIRST REQUIRES
REZONING THE PARCEL TO RM-12. RM-20 OR cc-2 ZONE BY THE CITY COUNCIL
AND THEN AN APPLICATION TO THE BOARD FOR A VARIANCE
THE BOARD OF ADJUSTMENT DOES NOT HAVE JURISDICTION TO OSTENSIBLY
REZONE THE PARCEL FROM RS-S TO RM-12. RM-20 OR cc-2 AND THEN
CONTEMPORANEOUSLY GRANT A VARIANCE IN VIOLATION OF DUE PROCESS
NOTICE AND HEARING REQUIREMENTS
The Zoning Chapter does allow cemeteries & mausoleums as special
exceptions in RM-12, RM-20 & CC-2 Zones, See 14-60-7(0)(1), 14-6D-8(0)(1) &
14-6E-5(0)(2).
Cemeteries and mausoleums as special exceptions in RM-12 and RM-20
Zones are subject to the enumerated special exception requirements of Article L of
the Zoning Chapter. See 14-60-7(0)(1) & 14-6D-8(0)(1).
The enumerated special exception requirements of Article L for RM-12 and
RM-20 Zones clearly require that "any new cemetery shall be located on a site
containing not less than twenty (20) acres," See 14-6L-1(C)(1).
First Presbyterian Church, 2701 Rochester Ave" is 1.96 acres in size. See
Iowa City Assessor parcel description attached as Exhibit B.
Allowing a columbarium to be built on 1,96 acres first requires rezoning the
parcel to a RM-12, RM-20 or CC-2 Zone by the City Council and then the Applicant
would have to apply to the Board of Adjustment for a variance.
The Board of Adjustment only has the power to hear and decide appeals,
special exceptions, variances and interpret zoning provisions. See 14-6W-2:
Powers. Only the City Council has the power to rezone parcels of land,
Granting a special exception on these facts and law would result in the Board
of Adjustment illegally rezoning the parcel to RM-12, RM-20 or CC-2 and then
contemporaneously granting a variance without an application for variance and
without notice and hearing in violation of procedural due process requirements.
On the above facts and law the undersigned opposes the application fa
special exception.
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Iowa City Assessor
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1012279001
FIRST PRESBYTERIAN CHURCH OF, IOWA
CITY
Deed
Contract
Address 2701 ROCHESTER AVE
IOWA CITY IA 52245-
Class COMMERCIAL
Map
Area
20800-Com
Plat Map
W 1.96 AC OF E 8.48 ACSE1/4 NW1/4 12-79-6
Legal LOTS 150-154 WASHINGTON PARK ADD
PART 7
Land Value
196,000
Current Value Information
Dwelling Value Improvement Value
o 1,232,780
Total Value
1,428,780
Building or Addition
Building
Building
Commercial Building Information
Occupancy Year Built
814 Church 1975
717 School- Class Room 1975
Gross building area
3,379
9,070
Description
Yard Extra Information
Item Count
Year Built
Pªving
1
1975
Lot Basis
Land Information
Square Feet
Acres
Acres x Rate
85,378
1.96
Sketch
87
18
34
5'6" CHURCH AREA
26 [3379]
34
70
70 5'8"
CLASSRMIOFFICES
[9070]
18 18
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Propt?rty Rt?cord Çard Rt?port
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Property Record Card Report (Adobe PDF file)
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October 4,2004
To: The Iowa City Board of Adjustment
From: Thomas Flynn and Mary Lee Dixon Flynn
241 Green Mountain Drive, Iowa City, IA 52245
Re: Case No. EXC04-00020. Application for Special Exception from First
Presbyterian Church.
The First Presbyterian Church wants to install a columbarium, which is a structure of
vaults for the placement of cremated human remains. Pursuant to Iowa law a "cemetery"
means a cemetery, mausoleum, columbarium or other space held for the purpose of
burial, entombment, or inumment of human remains.
We are submitting the following information as opposition to the First Presbyterian
Church's application for a special exception. Our opposition deals with these specific
issues: zoning, size of the property, traffic, parking and impact on surrounding properties.
I. The property of the First Presbyterian Church is zoned RS-S including a
sensitive area overlay zone. The Zoning Chapter allows cemeteries as special
exceptions in RM-12, RM-20, and CC-2 Zones. Refer to 14-6D-7(D), 14-6D-
8(D)(I) and 14-6E-S(D)(2). Cemeteries are not allowed in RS-S Zones.
2. Special exception requirements of Article L for RM-12 and RM-20 Zones
specifically state that, "any new cemetery shall be located on a site containing
not less than 20 acres." Refer to 14-6L-l(C)(1). The lot size for the First
Presbyterian Church is 1.92 acres.
The brochure, A Citizen's Guide to the Board of Adjustment prepared by the City of Iowa
City's Department of Planning and Community Development states that exceptions may
be granted when uses are considered compatible with other uses in the zone - such as a
daycare center in a residential zone- but require careful review to ensure that activities,
traffic, parking and other elements of the project do not negatively affect surrounding
properties.
3. Increased traffic has a negative impact on property located in a predominately
single-family area. Traffic will increase in the neighborhood whenever there
is a funeral and the utilization of the columbarium (cemetery). Other events
such as Memorial Day will bring increased traffic to the neighborhood.
4. During regular services at the First Presbyterian Church cars are parked on
residential streets next to the church, because the church does not have
adequate parking spaces for their members. Increased activity as a result of
the columbarium (cemetery) at the church would result in additional times that
this overflow parking would occur on the streets in the neighborhood.
5. All surrounding properties are RS-5 with the sensitive area overlay zone.
When our property was developed, the City of Iowa City required the
Developer to complete many special considerations to protect the land. We as
a property owner in the neighborhood did due diligence to assure that the use
of the church property was only for worship and a daycare center. The
proposed additional use will have a negative impact on the surrounding
properties in the neighborhood.
On September 30, 2004 several neighbors met with Dick Brown who is the columbarium
representative from the First Presbyterian Church, When Mr. Brown was asked the
question of what would happen when the proposed columbarium reached capacity, he
indicated the First Presbyterian Church had space to place three or four more
columbariums alongside the first. Mr. Brown also indicated that the First Presbyterian
Church considered another site for the columbariums to the south of the church parking
lot. However, he stated that this would upset the neighbors and have a negative .impact
on the adjacent properties.
Ifa church wishes to have a columbarium as part of their services, the church should: (a)
"Be located in a zone that stipulates and permits this use, and (b) Have the correct amount
of land as required by the Iowa City Code.
Based on the above information, we oppose the application for special exception.
}..lQ..t'\..f lU.- ..ò'ÞM ~
Mary Lee Dixon Flynn
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Thomas H. Flynn
. .
241 Green Mountain Drive
Iowa City, IA 52245
To: Board of Adjustment
Item: EXC04-00022
637 Foster Road
GENERAL INFORMATION:
Applicant:
Contact Person:
Property Owner:
Requested Action:
Purpose:
Location:
Tower Site Size:
Existing Land Use and Zoning:
Surrounding Land Use and Zoning:
Comprehensive Plan:
Applicable Code Requirements:
File Date:
STAFF REPORT
Prepared by: John Yapp
Date: October 13, 2004
Verizon Wireless
C/o Selective Site Consultants
10740 Nail Avenue, Suite 400
Overland Park, KS 66211
Phone: 913-344-2800
Velton Viles
8500 W. 11 Oth Street, Suite 300
Overland Park, KS 6621 0
Phone: 913-438-7700
Benevolent Protective Order of Elks
Lodge #590
637 Foster Road
Iowa City, IA 52245
Approval of a special exception to allow a
communication tower in the Interim
Development Residential (ID-RS) zone
To allow a communication tower on the
Elks Club property
637 Foster Road
Approximately 0.1 acre
Private Golf Course, ID-RS
North:
South:
East:
West:
Private Golf Course, ID-RS
Private Golf Course, ID-RS
Private Golf Course, ID-RS
Private Golf Course, ID-RS
The North District Plan identifies the
property as public/private open space
14-6C-4A, Communication Towers in the
ID zone; 14-6W-2B, special exception
review standards
September 15, 2004
2
BackQround Information:
Selective Site Consultants, on behalf of Verizon Wireless, has applied for a special exception for a
communication tower on the Benevolent Protective Order of Elks ("Elks Club") property at 637
Foster Road. The proposal is for a 150-foot tall monopole style tower, with an antenna array
mounted at 130 feet. The additional height of the tower above the antenna array is to
accommodate co-location of other communication providers. Communication towers are permitted
by special exception in the Interim Development, ID zones.
Analysis:
The purpose of the zoning chapter is to promote the public health, safety and general welfare; to
conserve and protect the value of property throughout the city; and to encourage the most
appropriate use of land. It is the intent of the chapter to permit the full enjoyment of property in a
manner that does not intrude upon adjacent properties. The Board of Adjustment may grant relief
from the requirements of the zoning chapter through special exceptions if the action is considered
to serve the public interest and is consistent with the intent of the zoning chapter.
Specific Standards: 14-6c-4A, Communication Towers in the ID-RS zone
Communication towers and satellite receiving devices are permitted by special exception in the
ID-RS zone, provided the distance of the tower or receiving device from the property line is equal
to or greater than its height above grade. No other standards are given for communication towers
in the ID zone. The proposed tower appears to easily meet the setback standard. The tower is
proposed to be located behind (east of) the storage garages for golf carts on the Elks Club
property at 637 Foster Road, approximately 400' from the Foster Road right-of-way and 1,500'
from the Iowa River. The base of the tower and the first 80 to 100 feet of the tower will be
obscured by the trees in the area.
The applicant has provided a narrative statement detailing how this location was chosen for the
proposed tower. The ID-RS zone is one of the few zones that allows communication towers;
communication towers are not permitted in any other residential or commercial zone. According to
the applicant, the proposed tower will have capacity for three additional wireless providers, and
has provided an affidavit that Verizon Wireless has a policy of allowing co-location on their towers.
Co-location, while increasing the height of a tower, minimizes the number of future towers that will
,be necessary to serve the area.
The North District Plan identifies the Elks Club property as public/private open space.
Communication towers do not necessarily conflict with open space if they are appropriately
located, and placing a tower behind the golf cart storage area should not detract from the use of
the property as a golf course. If the property ever redevelops as a residential use, however, the
existence of the tower will place limitations on the placement of residences, at least within 150' of
the tower.
General Standards: 14-6W-2B, Special Exception Review Standards
The applicant's statements regarding each of the seven general standards are included within the
attached application. Staff comments are summarized below.
1. The specific proposed exception will not be detrimental to or endanger the public
health, safety, comfort, or general welfare. The setback requirement is meant to
address safety (and aesthetic) concerns with the tower falling in high-wind event. These
types of towers are designed to fold in on themselves if they become unstable.
3
Under the Telecommunications Act of 1996, the Federal Communications Commission
(FCC) preempts local government on regulating radio frequency emissions of
telecommunications facilities. Because the FCC regulates radio frequency emissions, a
local government may not deny a request to construct a facility based on perceptions that
the tower may harm the health of area residents or the environment. Because the Board of
Adjustment rarely considers communications towers requests, staff has attached a short
primer entitled Local Zoning Authority over Cellular Antennas and Towers.
2. The specific proposed exception will not be injurious to the use and enjoyment of
other property in the immediate vicinity, and will not substantially diminish or
impair property values in the neighborhood. While the tower will be visible from
residential properties on the north side of Foster Road and the other side of the Iowa
River, it will not impede their use or their further development. The main impact of the
tower will be visual, in that it will be visible from many residences in the area. As the use of
wireless communication devices becomes more prevalent, communication towers are
becoming increasingly common in urban and suburban areas.
3. Establishment of the specific proposed exception will not impede the normal and
orderly development and improvement of the surrounding property for uses
permitted in the zone in which such property is located. As noted above, the tower
may impede redevelopment of the Elks Club property, but it is unknown if and when this
property may redevelop. The tower will not affect development or redevelopment of other
area properties. The tower does not conflict with the use of the Elks Club property as a
private golf course, nor would it conflict with the use of the property as public or private
open space as is depicted in the North District Plan.
4. Adequate util~ties, access roads, drainage and/or necessary facilities have been or
are being provided. The applicant intends to construct a 150' communication tower with
space for four carriers and associated equipment shelters. The 50' by 50' parcel is
proposed to be surrounded by a 6' tall fence. The site would be accessed via the Elks Club
driveway and parking lot. The applicant notes they intend to obtain all necessary
permits/approvals should this special exception be approved.
5. Adequate measures have been or will be taken to provide ingress or egress
designed so as to minimize traffic congestion on public streets. The applicant notes
the site will generate two to four vehicle trips per month per carrier. The existing access to
Foster Road will be used. This use will not contribute to congestion on area public streets.
6. Except for the specific regulations and standards applicable to the exception being
considered, the specific proposed exception, in all other respects, conforms to the
applicable regulations or standards of the zone in which it is to be located. The use
of a communication tower should not conflict with other permitted uses in the Interim
Development zone.
7. The proposed use will be consistent with the short-range Comprehensive Plan of
the City. The proposed communication tower does not conflict with the use of the property
as private open space. In the Economic Well-Being Goals and Strategies section, the
Comprehensive Plan states the City should "encourage the development and expansion of
businesses which use information technologies by making public right-of-way and land
available for infrastructure such as fiber optics lines and wireless communication facilities."
4
Summary
The main impact of a communication tower in this location is visual. The top of the tower will be
visible from properties in this neighborhood and from properties on the other side of the Iowa
River. The applicant has provided justification for a tower in this area based on wireless service
demand, and has stated the tower will have enough area for four carriers, thus minimizing the
chance that additional towers will locate in this area in the future. Given the growth in the use of
wireless devices, communication towers are becoming a more common feature of urban and
suburban areas. Staff finds that the application for a communication tower on the Elks Club
property at 637 Foster Road meets the general and specific standards for a special exception.
STAFF RECOMMENDATION:
Staff recommends that EXC04-00022, a special exception to require a communication tower on
the property at 637 Foster Road, be approved.
ATTACHMENTS:
1 . Location map
2. Special exception application
3. Article entitled Local Zoning Authority over Cellular Antennas and Towers
4. Letter from Drew Dillman, M.D.
Approved by:
~~
Robert Miklo, Senior Planner,
Department of Planning and Community Development
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LOCAL ZONING AUTHORITY OVER
CELLULAR ANTENNAS AND TOWERS
Local governments exercise zoning authority to protect the
health and safety of residents and to ensure orderly land use
development. Local officials also use zoning to preserve the
aesthetic character of the community and guard against new
land uses that clutter up neighborhoods with unsightly facilities.
To a great extent, the 1996 Telecommunications Act
specifically protects local zoning authority over the placement
of cellular towers. At the same time, however, the law places
some new federal restrictions on that authority.
The Act addresses the issue of local zoning authority over
wireless telecommunications facilities in three ways. First, it
establishes a general principle that local zoning authority is
preserved, subject to certain conditions. Second, it lists the
conditions that local zoning requirements must satisfy. Third,
it identifies which disputes will be handled by the courts and
which will be handled by the FCC.
FIVe Conditions Affecting Local Zoning Aulhoñty
I£local zoning requirements satisfy certain conditions, nothing
in the 1996 Telecommunications Act limits or affects the
zoning authority of local governments over the placement,
construction, and modification of wireless telecommunications
facilities. In order to maintain their zoning authority over
wireless telecommunications facilities, local governments must
satisfy five conditions.
1. Local zoning requirements may not unreasonably
discriminate among wireless telecommunications providers
that compete against one another.
This requirement does not mean that local governments must
treat competitive providers in exactly the same way if their
proposed facilities present different zoning concerns. Congress
intended to give local governments flexibility in this area. The
law recognizes, for example, that a proposed 50-foot tower in a
residential district presents different concerns than a 50-foot
tower in a commercial district, even if the two towers are going
to offer services that compete with one another. As a result,
applications to site these facilities may be treated differently.
Another defensible difference in treatment of providers
interested in siting facilities might be the order or timing of a
particular request if it is for use on a limited capacity tower site.
As a general rule, however, local governments should avoid
making zoning decisions that give one provider of wireless
service a competitive advantage over another, Under the law,
if a local government has no rational basis for making a
distinction between providers whose facilities have identical
characteristics, differential treatment of those providers is
prohibited. For example, a zoning ordinance that permits one
provider of wireless services to construct a tower in a
commercial district, but prohibits the construction of a
similarly sized tower by another provider in that same
commercial district with no other distinguishable differences in
impact, is probably inviting a challenge based upon
unreasonable discrimination.
2, Local zoning requirements may not prohibit or have
the effect of prohibiting the provision of wireless
telecommunications service.
This requirement is designed to prevent local governments
from imposing outright bans on wireless telecommunications
services, However, local ordinances may limit the number and
placement of facilities so long as those limits do not prohibit or
have the effect of prohibiting a wireless telecommunications
5
Siting Cellular Towers: What You Need to Know, What You Need to Do
provider's ability to offer service. An ordinance might include
such severe restrictions on the placement and number of towers
in a community that they interfere with the reception of a
signal and make it impossible to deliver service, In such a case,
the fact that a local government ordinance permits the siting of
cellular towers is insufficient to meet the requirements of the
Act if the community remains unable to receive satisfactory
service.
There is no requirement that every local community have a
cellular tower. The Act says that there should be no
prohibition on the service; it says nothing about the specific
facilities. Therefore, a community of small geographic size
might be able to limit the number of towers, or avoid a cellular
tower completely, if it can demonstrate that subscribers can
receive adequate service from towers located outside the
jurisdiction's corporate boundaries,
Some local governments have instituted temporary freezes or
moratoria on the granting of facility siting pennits in order to
review the requirements of the 1996 Act, develop relevant
ordinances, and make long-tenn land use assessments, The
Cellular Telecommunications Industry Association has
challenged such moratoria before the FCC, claiming that they
are a barrier to market entry and violate the Act. At least one
court has detennined that a short moratorium is not a
"prohibition on wireless facilities, nor does it have a prohibitory
effect, It is, rather, a short tenn suspension of pennit issuing
while the city gathers infonnation and processes applications."
Sprint Spectrum, L.P. v. City of Medina , Washington.
Instituting moratoria on the processing of applications and the
granting of tower siting permits should not become a regular
practice by local governments. If a locality detennines that a
brief moratorium is necessary in order to develop a procedure
for the effective handling of siting requests, the FCC (in its
Fact Sheet on National Wireless Facilities Siting policies)
recommends that the locality communicate with wireless
service providers about the intended duration of the
moratorium, the tasks the locality wishes to accomplish during
the moratorium, and the ways - such as by providing additional
information about facilities and services - in which the
providers can assist the locality in ending the moratorium.
There is no requirement that every local
community have a ceUular tower.
3. A local government must act within a reasonable period of
time on requests for permission to place or construct wireless
telecommunications facilities,
The time taken to act on an application will be considered
reasonable if it is no longer than the time the local government
usually takes to act on other requests - such as zoning variances
- of comparable magnitude that have nothing to do with
telecommunications facilities. The Act does not require local
governments to give preferential treatment to zoning requests
involving telecommunications facilities - such requests can
wait their turn. The request should not be moved down the list,
but it does not have to be moved up the list.
4, Any city or county councilor zoning board decision
denying a request for permission to install or construct
wireless telecommunications facilities must be in writing and
must be based on evidence in a UlTitten record before the
councilor board.
This requirement may necessitate a considerable change in
practice for some local governments, since it means that
written proceedings on a zoning application must be produced.
This can be done by having the proceedings transcribed and by
requiring the applicant, the city or county staff, and any
interested members of the public to submit their comments and
arguments in writing to the councilor board, Local
government staff must ensure that any facts or arguments on
which the council or board may rely in denying a request are
included in the transcribed hearing or written filings submitted
to the councilor board before its decision is made. The
decision itself also must be in writing and contain reasons that
are consistent with the Act's requirements. Localities should
consult extensively with city or county attorneys to implement
this requirement.
5. If a wireless telecommunications facility meets technical
emissions standards set by the FCC, it is presumed safe. A
local government may not deny a request to construct a
facility on grounds that its radiofrequency emissions would be
harmful to the environment or the health of residents if those
emissions meet FCC standards.
The Act gives the FCC, not local governments, the sole
authority to determine what standards wireless facilities must
meet to ensure that their radiofrequency emissions do not harm
humans or the environment, While local governments can
require facilities to comply with the FCC emissions standards,
they may not adopt their own standards. If the facilities meet
FCC emissions standards, concern about the effects of
6
#
~
LOCAL ZONING AUTHORITY OVER CELLULAR ANTENNAS AND TOWERS
emissions from cellular towers on the health of nearby residents
is not a permissible reason for making zoning decisions about
the placement of wireless telecommunications facilities.
The Act does not require local governments
to give preferential treatment to zoning requests
involving telecommunications facilities.
On August 6, 1996, the FCC adopted revised guidelines
(Report and Order, FCC 96-326) for evaluating the
environmental effects of radiofrequency emissions. Copies of
the FCC's Report and Order adopting these guidelines can be
obtained from the FCC's duplication contractor, International
Transcription Service, 2100 M Street, NW, Suite 140,
Washington, DC 20037,202-857-3800.
Localities can require providers to comply with other federal
regulations prior to issuing a tower construction or
modification permit. For example, towers taller than 200 feet
and located within a certain distance of airport runways must
be registered with the FCC. The FCC works with the Federal
Aviation Administration (FAA) to ensure that such towers are
appropriately constructed, marked, painted, and lighted so that
they do not create a hazard to air navigation.
Towers also must comply with the requirements of the National
Environmental Policy Act (NEPA) and the requirements of
those regulations implementing NEPA affecting wilderness
areas, wildlife preserves, endangered species, historical sites,
Indian religious sites, floodplains, wetlands, high intensity
white lights in residential neighborhoods, and radiofrequency
emissions in excess of the FCC's guidelines.
Dispute Resolution
If a wireless provider claims that a local government has violated
any of the first four conditions above, that provider must seek
relief in a state or federal court, not from the FCC. This
provision in the Telecommunications Act was a victory for local
governments. State and federal courts provide a more neutral
and much less costly arena for parties to resolve disputes than the
FCC, where industry attorneys have a decided financial and
practical advantage over city and county attorneys.
A disappointed applicant may go to the FCC only if it claims
that the locality improperly based its adverse siting decision on
the harmful effects of radiofrequency emissions from the
proposed facility,
7
Drew B. Dillman, MD, MPH
845 Normandy Drive
Iowa City, IA 52246-2932
Phone: 319-358-7925
drewdillman l@yahoo.com
October 6, 2004
Iowa City Board of Adjustment
410 East Washington St.
Iowa City, IA 52240-1826
Dear Members of the City Planning Board:
We oppose the proposed location of a Verizon telecommunications tower visually near the Iowa
River. In this location, the tower will detract from the presendy beautiful view of wooded hills from
the River. My neighbors and I presendy enjoy the river from our back yards. I believe that I can
safely say that it is one of the main reasons that each of us chose to purchase homes that abut the
Iowa River. These lots are special in spite of the extra insurance expense and flooding risk
associated with such a location.
Building the tower in the presendy planned location will detract from our enjoyment of our
property at all seasons and hours, but it will be especially distracting during the night, when the
constellations to our North still are enjoyably bright in spite of the City Lights to our South. The
flashing light that is placed on towers for safety reasons is obtrusive and obnoxious. The River
enjoys increasingly heavy use during the warm months by fishermen, canoe and kayak users,
university and other crew teams, and pontoon pleasure boaters. All of these uses will be negatively
impacted by a highly visible tower near the river. I believe the tower will be negatively visible,
especially at night, from the new highly successful walking paths along the river in City Park.
Towers such as this also constitute a significant and well known hazard to migrating song birds, The
river presendy acts a corridor funneling birds of many species through the center of our city. Every
effort should be taken to protect and even expand the wild habitat immediately surrounding the
river, The site proposed is near the home of a local Barred Owl and I have seen Pileated
Woodpeckers on the river side of the proposed location. Placing an ugly tower near a riparian
habitat will decrease the number of such wild creatures in our town.
The tower should be placed further to the North, closer to the freeway. There are already numerous
towers located along the freeway and at that location, it would be much less harmful.
Sincerely,
1)trhïV~
Drew Dillman, M.D.
To: Board of Adjustment
Item: EXC04-00023, 211 Myrtle Avenue
GENERAL INFORMATION:
Applicant:
Contact Person:
Requested Action:
Purpose:
Location:
Size:
Existing Land Use and Zoning:
Surrounding Land Use and Zoning:
Comprehensive Plan:
File Date:
45-Day Limitation Period:
Applicable Zoning Ordinance Sections:
STAFF REPORT
Prepared by: Tokey Boswell, Planning Intern
Date: October 8,2004
Mark Holtkamp
PO Box 3284
Iowa City, IA 52244
319-594-1062
same as above
Special Exception for shared driveway on
three lots in the RS-8 zone on Myrtle Avenue
and Olive Street.
To allow for vehicular access to the properties
off Olive Street, and to accommodate all
necessary parking.
211 Myrtle Avenue
Total lot size = .54 acres. Three individual
parcels of 5,692 sq.ft., 8,762 sq.ft., and 8,754
sq.ft. are proposed.
One single-family residence, Medium Density
Single-Family Residential, RS-8
North:
South:
East:
West:
University of Iowa, Public, P
Residential, RS-8
Residential, RS-8
Residential, RS-8
The Comprehensive Plan places this property
in the Southwest Planning District. The District
Plan indicates that the area is appropriate for
single-family and duplex residential units.
September 15, 2004
November 30, 2004
14-6D-3C-3, Provisional uses in RS-8 zone
14-6N-1 B-3, Location of driveways/parking
areas
14-6N-1C, Drives/parking areas on a separate
lot
14-6N-1 D, Screening requirements
2
BACKGROUND INFORMATION:
Mr. Holtkamp owns the property at 211 Myrtle, a .54 acre lot that currently contains one single-
family home. He wishes to divide the lot into three separate parcels and construct two duplexes
on the newly-created lots. Duplexes are allowed as a provisional use in the RS-8 zone, if the lot is
equal to or greater than 8,700 square feet, with the design subject to the requirements listed in the
Zoning Ordinance. The two proposed lots are each greater than 8,700 square feet, so duplexes
are permissible. One roomer per dwelling unit is also allowed as a provisional use, provided that
an off-street parking space is provided for the roomer (14-6D-3C-3). This brings the maximum
allowable occupancy of each unit to a family plus one roomer or three unrelated people. Four off-
street parking spaces are required for each duplex, (six, if there are to be roomers). The applicant
proposes to accommodate the required parking spaces by providing two, two-car garages in the
rear of the northern duplex, and by a paved area in the rear of the southern lot.
In order to access the parking spaces for the existing house and the proposed duplexes, and to
avoid a driveway access point on Myrtle, the applicant has proposed a shared driveway from
Olive Street that crosses all three proposed lots. Drives are normally required to be completely
contained within the individual lot, and no closer than three feet to the property line. A special
exception is therefore sought to allow for a shared drive. The exception is dependent upon the
submission of a legal document that acts as a covenant for current and future property owners to
allow for perpetual access, and upon several design requirements spelled out in the Zoning
Ordinance.
ANAL YSIS:
The purpose of the Zoning Ordinance is to promote the public health, safety and general welfare,
to conserve and protect the value of property throughout the City, and to encourage the most
appropriate use of land. It is the intent of the Ordinance to permit the full use and enjoyment of
property in a manner that does not intrude upon adjacent property. The Board may grant relief
from the requirements of the Zoning Chapter through a special exception if the action is
considered to serve the public interest and is consistent with the intent of the Zoning Chapter.
Specific Standards: 14-6N-1C, Off-Street Parking and Drives Located on a Separate Lot.
Subsection 6N-1 C-7 of the Zoning Chapter states that a special exception to allow for shared
driveways and parking areas may be granted by the Board of Adjustment. In addition to the
general standards for exceptions, the applicant must also meet the following conditions before the
Board can grant an exception.
1. A special location plan shall be filed with the Board by the owners of the entire land
area to be included within the special location plan and shall contain such information
deemed necessary to comply with the requirements herein. Evidence of ownership
shall be provided. A location plan has been provided that shows the portions of drives,
aisles, and parking that will be shared by the three proposed lots. A draft legal document
regarding ownership and rights and responsibilities for the shared parking and drive areas has
been submitted to the City Attorney for review.
2. Off-street parking shall be located as follows:
a. In Rand C zones, the nearest point of the parking area to the nearest point of the
building that the parking area is required to serve shall not be greater than three
hundred feet. The parking is well within that distance, less than one hundred feet from
3
the residences served.
b. In the same zone as the principal use. The three lots are all in the RS-8 zone.
3, Where two (2) or more uses jointly use off-street parking, the number of parking spaces
shall equal the sum total of off-street parking spaces required for each use. In this case
the minimum number of spaces required for two duplexes and one single-family residence is
eleven. If the duplexes are to have roomers, the minimum number of spaces is equal to
fifteen. The total number of spaces provided is seventeen, which exceeds the minimum
requirement by two spaces.
4. Not applicable.
5. A written agreement, properly executed by the owners within the area of the special
exception plan, assuring the retention of the parking and stacking spaces, aisles and
drives and binding upon their successors and assigns, shall be submitted with the
special location plan as a covenant running with the land. A draft agreement has been
submitted and is being reviewed by the City Attorney's Office. We anticipate that it will be
approved by the City Attorney's office either prior to or shortly after the Board's meeting.
6. Not applicable.
7. In assessing an application for a special exception, the Board shall consider the
desirability of the location of off-street parking and stacking spaces, aisles and drives
on a lot separate from the use served in terms of pedestrian and vehicular traffic
safety; any detrimental effects on adjacent property; the appearance of the streetscape
as a consequence of the off-street parking; and in the case of non-required parking, the
need for additional off-street parking. Staff finds that the proposed shared driveway will
eliminate a potential vehicular access point from Myrtle Avenue to the properties, in favor of
shared access from Olive Street. Myrtle Avenue at this point is just below the crest of a hill,
and not a desirable place for vehicular access. Staff believes the exception will increase the
safety of both vehicles and pedestrians on Myrtle Avenue. One shared driveway on Olive
Street (as opposed to two separate drives) limits the amount of paving in the front yards of the
lots created, and decreases the potential points of conflict between vehicles and pedestrians.
Staff further finds that the effect of the shared drive and associated rear parking areas will be
no more detrimental to neighboring properties than individual drives serving the same
purpose. A consolidated parking area allows the applicant to limit the paving near and
potential impact on a large oak tree located in Lot 3. Staff finds that the applicant has
provided two additional parking spaces not required by the Zoning Code. To minimize paving
in this residential area and to provide for more landscaping, staff recommends so that only
one of these spaces be permitted. Staff also recommends that paving be minimized within the
area of the root zone of the exiting oak tree on lot 3. By limiting these three lots to one access
point, Staff feels the aesthetic qualities of the streetscape, and vehicular and pedestrian safety
along Olive Street will be improved.
General Standards: 14-6W-2B, Special Exception Review Standards
In addition to the specific standards mentioned above, the Board must find that the applicant
meets several general standards spelled out in chapter 14-6W-2-B. Staff's findings are below.
A. The specific exception will not be detrimental to or endanger the public health, safety,
comfort or general welfare. Staff finds that the proposed exception will have a positive
impact on the health, safety, comfort, and welfare of the public. By limiting the street access
of these three properties to a single shared drive on Olive Street, vehicular and pedestrian
traffic will be better able to predict potential conflicts.
B. The specific proposed exception will not be injurious to the use and enjoyment of other
4
property in the immediate vicinity and will not substantially diminish or impair property
values in the neighborhood. The proposed shared driveway may well be preferable to
three separate driveways for these three proposed lots. It is Staff's opinion that streetscape
resulting from the shared drive and interior-accessed parking areas is preferable to that
produced by three separate drives. The shared drive allows for increased side and front yards
that more closely resemble the development pattern in this neighborhood. Appropriate
landscaping and screening of the parking areas should mitigate any negative effects.
C. Establishment of the specific proposed exception will not impede the normal and
orderly development and improvement of the surrounding property for uses permitted
in the zone in which such property is located. Staff finds that this infill project will not
impede the redevelopment of surrounding property in any manner.
D. Adequate utilities, access roads, drainage and/or necessary facilities have been or are
being provided. This is the final parcel to be developed in this area, and all necessary
utilities and facilities currently exist.
E. Adequate measures have been or will be taken to provide ingress or egress designed
so as to minimize traffic congestion on public streets. Staff finds that allowing these three
lots to use Olive Street for an access point is preferable to requiring an access point off Myrtle
Avenue in terms of safety, likelihood of traffic incidents, and overall congestion.
F. Except for the specific regulation and standards applicable to the exception being
considered, the specific proposed exception, in all other respects, conforms to the
applicable regulations or standards of the zone in which it is to be located. This
property and the proposed residences will be conforming in all other aspects. There currently
is a paved parking area on Lot 1 within the required front yard. The zoning code prohibits
parking within the front yard except in a driveway. The paving within the front yard will need to
be removed prior to a building permit being issued for any of these lots.
G. The proposed use will be consistent with the Comprehensive Plan of the City, as
amended. Staff finds that the proposed use is consistent with the Comprehensive Plan
and the District Plan, which call for single-family and duplex housing in this area.
STAFF RECOMMENDATION:
Staff recommends that EXC04-00023, a special exception requesting a shared driveway on three
lots for three parcels in the RS-8 zone on Olive Street and Myrtle Avenue, be approved subject to:
1) general conformance to the plans submitted to the Planning and Community Development
department 2) the protection of the large oak tree in the southeast quadrant of Lot 3 during
construction, 3) approval by the City Attorney of a covenant providing for the perpetual use and
maintenance of the shared driveway, and 4) screening of the parking areas in accordance with
14-6N-1 D of the Zoning Ordinance.
ATTACHMENTS:
1 . Location Map
2. Application Documents
Approved by: ~I
Robert Miklo, Senior Planner,
Department of Planning and Community Development
.
.
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APPEAL TO THE
BOARD OF ADJUSTMENT
SPECIAL EXCEPTION
TITLE 14, CHAPTER 6, ARTICLE W
DATE: Cj /3/ () if PROPERTY PARCEL NO. I ol(P/" ol> /
.
APPEAL PROPERTY ADDRESS: ~I/ M'1J!.n£ yt.ve~t
APPEAL PROPERTY ZONE: 1-$' ~ APPEAL PROPERTY LOT SIZE: I ~o ' X 1'1'- '
APPLICANT: Name: 1'1112V ~Ln:Aßff#
Address: :PO Î5tJx ~ ZH1ír~ouv4-CI"":~S2æ.,
Phone: 3r'''5'~-/Ø'z.
CONTACT PERSON: Name: P1~ 4t-n:AJtlt..t='
Address: 7>ø~ 3Uc/
Phone: '31'-S''/-/iJ' Z.
PROPERTY OWNER:Name: MAIL/!.. Æ 1o-T1!AIM.P
Address: .fJ4..M t ( 5
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Phone: ( ~._,.,
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Specific Requested Special Exception; Applicable Section(s) of the Zoning Cha~?~
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Purpose for special exception: 5,J¡.AIl.EfJ rcMmb~ DLI ve~ y
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Date of previous application or appeal filed, if any:
-2-
INFORMATION TO BE PROVIDED BY APPLICANT:
N /u7' - t.A.:) IJ Ô' LÐ, I St\. ".II. '\
A. Leaal description of property: fOr' _f£. U IIV
>£ Co- ,'- -1' - {p
B. *Plot plan drawn to scale showing:
1. Lot with dimensions;
2. North point and scale;
3. Existing and proposed structures with distances from property lines;
4. Abutting streets and alleys;
5. Surrounding land uses, Including the location and record owner of each
property opposite or abutting the property in question;
6. Parking spaces and trees - existing and proposed.
rSubmisslon of an 82" x 11" bold print plot plan Is preferred.]
C. Review. The Board shall review all applicable evidence regarding the site, existing
and proposed structures, neighboring uses, parking areas, driveway locations,
highway and street access, traffic generation and circulation, drainage, sanitary
sewer and water systems, the operation of the specific proposed exception and
such other evidence as deemed appropriate. (Section 14-6W-2B1, City Code).
In the space provided below or on an attached sheet, address the areas of Board
review which apply to the requested special exception. In this narrative statement,
set forth the grounds offered as support for the special exception.
"(Hi: >1fA-a-e-o Dlùv€ loJ/ LL AL-l. O~ ...,-#~ £!.-/""'1I.)/4'1I OJ..:) 0 r=
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D. The applicant is required to present specific information, not Just opinions, that the
aeneral standards for the arantlna of a special exception (Section 14-6W-2B2, City
Code), enumerated below, will be met:
1. The specific proposed exception will not be detrimental to or endanger the
public health, safety, comfort, or general welfare.
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2. The specific proposed exception will not be Injurious to the use and
enjoyment of other property In the Immediate vicinity and will not
substantially diminish and Impair property values In the neighborhood.
3. Establishment of the specific proposed exception will not impede the normal
and orderly development and improvement of the surrounding property for
uses permitted In the zone in which such property is located.
4. Adequate utilities, access roads, drainage and/or necessary facilities have
been or are being provided.
5. Adequate measures have been or will be taken to provide ingress or egress
designed so as to minimize traffic congestion on public streets.
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6. Except for the specific regulations and standards applicable to the exception
being considered, the specific proposed exception, In all other respects,
conforms to the applicable regulations or standards of the zone in which it Is
to be located. [Depending on the type of exception requested, certain
specific conditions may need to be met. The applicant will demonstrate
compliance with the specific conditions required for a particular use, as
provided In City Code Section 14-6L-1, Special Exception Enumerated
Requirements; Section 14-6N-1, Off-Street Parking Requirements; Section
14-6Q, Dimensional Requirements, or Section 14-6R, Tree Regulations, as
appropriate.]
7, The proposed use will be consistent with the short-range Comprehensive
Plan ofthe City.
E. List the names and mailing addresses of the record owners of all property located
within 300 feet of the exterior limits of the property involved in this appeal:
NAME
ADDRESS
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NOTE: Conditions. In permitting a special exception, the Board may Impose appropriate
conditions and safeguards, including but not limited to planting screens, fencing,
construction commencement and completion deadlines, lighting, operational controls,
improved traffic circulation requirements, highway access restrictions, Increased
minimum yard requirements, parking requirements, limitations on the duration of a use or
ownership or any other requirement which the Board deems appropriate under the
circumstances upon a finding that the conditions are necessary to fulfill the purpose and
intent of the Zoning Chapter. (Section 14-6W-2B3, City Code).
Orders. Unless otherwise determined by the Board, all orders of the Board shall
expire six (6) months from the date the written decision Is flied with the City Clerk,
unless the applicant shall have taken action within the six (6) month period to
establish the use or construct the building permitted under the terms of the
Board's decision, such as by obtaining a building permit and proceeding to
completion in accordance with the terms of the permit. Upon written request, and
for good cause shown, the Board may extend the expiration date of any order
without further public hearing on the merits of the original appeal or application.
(Section 14-6W-3E, City Code).
Petition for writ of certiorarI. Any person or persons, jointly or severally, aggrieved
by any decision of the Board under the provisions of the Zoning Chapter, or any
taxpayer or any officer, department or board of the City may present to a court of
record a petition for writ of certiorari duly verified, setting forth that such decision
is illegal, in whole or In part, and specifying the grounds of the illegality. (Section
14-6W-7, City Code). Such petition shall be presented to the court within thirty (30)
days after the filing of the decision In the office of the City Clerk.
Date: :sl ~. 3
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Date: ~.3
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Signature(s) of Property Owner(s)
If Different than Applicant(s)
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STAFF REPORT
To: Board of Adjustment
Item: EXC04-00024, 1926 Keokuk
Pizza Hut drive-through
Prepared by: Robert Miklo
Date: October 13, 2004
GENERAL INFORMATION:
Applicant:
Southgate Development Company
755 Mormon Trek Blvd.
Iowa City, Iowa 52246
Contact person:
Steven Rohrback
338-9311
Property owner:
Southgate Development Company
Requested Action:
Approval of a special exception per Section 14-
6E-5D-1, auto- and truck-oriented uses.
Purpose:
To permit a drive-through restaurant in a CC-2
zone.
Location:
1926 Keokuk Street, Pepperwood Shopping
Center
Size:
Approximately .5 of an acre
Existing Land Use and Zoning:
Vacant, CC-2
Surrounding Land Use and Zoning:
North:
South:
East:
West:
Commercial, CC-2
Commercial, CC-2
Commercial, CC-2
Commercial, CC-2
Applicable code sections:
14-6E-5D, auto- and truck-oriented uses in the
CC-2 zone; 14-6W-2B, special exception
review standards
File Date:
September·17,2004
BACKGROUND INFORMATION:
This property contained a driveway to the K-Mart and Pepperwood Plaza and a building
that most recently contained a bar. The building was recently removed and the driveway
was relocated to the north as part of other improvements to the shopping center. Pizza
Hut restaurant, which is currently located on the west side of Keokuk Street is moving to
this location. A drive-through window is proposed for the new restaurant. Drive-through
2
restaurants are consider to be auto and truck-oriented uses, which are permitted only by
special exception in the Community Commercial zone.
ANAL YSIS:
The purpose of the Zoning Ordinance is to promote the public health, safety and general
welfare, to conserve and protect the value of property throughout the City, and to
encourage the most appropriate use of land. It is the intent of the Ordinance to permit the
full use and enjoyment of property in a manner that does not intrude upon adjacent
property. The Board may grant the requested special exception for the establishment of
an auto- and truck-oriented use if the requested action is found to be in accordance with
the regulations of the CC-2 zone and the general standards for special exceptions as set
forth in Section 14-6W-2B.
Specific Standards: 14-6E-5D, Special Exceptions: Auto- and Truck Oriented Uses.
The CC-2 zone permits auto and truck oriented uses by special exception, but provides
no additional criteria or standards by which to review the location of such facilities. The
requirement for a special exception was likely incorporated into the CC-2 regulations due
to concerns about compatibility of the uses with adjacent properties, potential traffic
circulation problems, and aesthetic concerns about auto and truck oriented uses. There
are no specific standards for review of applications for this type of use.
Three concerns raised by the proposed use of a drive-through window in this location are:
1) how well the drive-through lane is separated from surrounding pedestrian and vehicular
use areas, 2) whether there are sufficient stacking spaces for motorist waiting to pick-up
orders from the drive-through window and 3) the appearance of the retaining wall that will
provide a level site for the drive-through lane.
To address concerns about separation of vehicular of pedestrian traffic, staff recommends
that at least 4 feet of landscape area be provided on each side of the sidewalk that
connects the entrance to the restaurant to the sidewalk that provides access to the north
and eventually Keokuk Street. A portion of the sidewalk near the entrance to this site
currently has no buffer between the driveway and the sidewalk. Addition of a landscape
buffer in this area may result in the loss of one parking space for the restaurant, which
has two extra parking spaces based on the site plan.
Staff also recommends that a pedestrian crosswalk be denoted by the use of paint or
colored or patterned concrete across the driveway entrance to the site and across the
driveway that leads to the K-Mart building.
The site plan shows that vehicles leaving the pick-up window will be directed head on into
traffic traveling west on the driveway from the K-Mart parking lot. To avoid this potential
traffic conflict staff recommends that the drive-through exit be reconfigured to provide an
approximate 90 degree angle where the exit for the pick-up window intersects with the
driveway.
The site plan shows sufficient area within the drive-through lane to accommodate
approximately 8-9 vehicles. Because customers will be telephoning orders into the
restaurant, and then driving through to pick up their orders, the number of stacking
spaces should be less than required for a fast food drive-through restaurant where
3
customers place their orders at a menu board and then drive forward to pick up their
orders. In staff's view the proposed stacking spaces should be sufficient for the
proposed type of restaurant.
An approximately 6-foot high retaining wall has been built along the west property line to
provide a level site for the drive-through lane. To soften the appearance this wall, staff
recommends that a landscaping plan, including a mixture of evergreen and deciduous
plants, be required for the area between the Keokuk Street property line and the retaining
wall.
General Standards: 14-6W-2B, Special Exception Review Requirements. The
applicant's statements regarding each of the general standards are attached. Staff
comments are offered as needed and correspond to the standards as enumerated in the
Zoning Ordinance.
a. The specific proposed exception will not be detrimental to or endanger the
public health, safety, comfort or welfare. The Pepperwood Shopping Center has
been the subject of improvement efforts including the reconfiguration of driveways and
parking areas as the property owner attempts to attract new businesses to the
development. The recent reconfiguration of driveways onto Keokuk Street will
improve traffic circulation in the area. The entrance and exit from the proposed drive-
through restaurant will be from driveways within the shopping center and should have
little if any effect on the use of public streets in the area. To minimize vehicular
conflicts, staff recommends that the exit for the pick-up window be reconfigured as
noted above. Staff believes that sufficient stacking spaces will be provided so that
internal vehicular circulation is adequate. To assure pedestrian safety and improve
the aesthetics of this proposal, staff recommends pedestrian walkways be better
defined and additional landscaping be provided on the site, If these issues are
addressed, staff believes that the proposed special exception will not be detrimental to
or endanger pubic health, safety, comfort or welfare,
b. The specific proposed exception will not be injurious to the use and enjoyment
of other property in the immediate vicinity and will not substantially diminish or
impair property values in the neighborhood. Pepperwood Plaza is ~asily
accessible by car; traffic generated by the proposed use would be a minor fraction of
the total. Provided that sufficient stacking spaces are provided, the pick-up window
exit is reconfigured to assure good internal traffic circulation and the aesthetics of the
retaining wall are addressed, this proposed drive-through should not have a negative
effect on other properties in the area.
c. Establishment of the specific proposed exception will not impede the normal
and orderly development and improvement of the surrounding property for uses
permitted in the zone in which such property is located. Restaurants are
permitted uses in the CC-2 zone, as are retail and office uses, The addition of a drive-
through restaurant in this location should not impede other properties in the area.
d. Adequate measures have been or will be taken to provide ingress or egress
designed so as to minimize traffic congestion on public streets. As noted above
4
access to this site will be from internal driveways within the Pepperwood Shopping
Center. The proposed drive-through is likely to have no effect on public streets.
e. Except for the specific regulations and standards applicable to the exception
being considered, the specific proposed exception, in all other respects,
conforms to the applicable regulations or standards of the zone in which it is to
be located. The applicant has also submitted an application for a site plan and
building permit approval. Any deficiencies in those applications will need to be
resolved prior to the issuance of a building permit.
f. The proposed use will be consistent with the short-range Comprehensive Plan
of the City. The Comprehensive Plan identifies this area as appropriate for
commercial uses. If concerns about vehicle and pedestrian safety and the
appearance of the retaining wall are addressed, a drive-through restaurant in this
location would be consistent with this designation.
STAFF RECOMMENDATION:
Staff recommends that EXC04-00024, an application for a special exception to establish
an auto- and truck-oriented use, specifically a drive-through restaurant, in the Community
Commercial zone at 1926 Keokuk Street, be approved subject to 1) the reconfiguration of
the exit drive from the pick-up window so that it is closer to a 90 degree angle, 2) a
landscape plan for the area between the retaining wall and Keokuk Street including a
mixture of evergreen and deciduous plants 3) at least 4 feet of landscape area between
the sidewalk and the north/south drive along the east side of the parking lot entrance and
4) crosswalks be delineated across the two driveways.
ATTACHMENTS:
1. Location map
2. Proposed Site Plan .
Approved bY~- CJf~ ------
Karin Franklin, Dir ctor,
Department of Planning and Community Development
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LÞRG£ PLA,. 10
APPEAL TO THE PC.D ~
BOARD OF ADJUSTMENT
SPECIAL EXCEPTION
TITLE 14, CHAPTER 6, ARTICLE W
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DATE: PROPERTY PARCEL NO.
APPEAL PROPERTY ADDRESS:
APPEAL PROPERTY ZONE: ~- ~ APPEAL PROPERTY LOT SIZE: ~1Z.l!'"~
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APPElCANT~
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Name:
Address:
Phone: ~~~
PROPERTY OWNER:Name:
Phone: ~-~
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cONfÂcT PËRSON: Name:
Address: J~ A ~1~A
Phone: ~1" ~ C;
Specific Requested Special Exception; Applicable Sectlon(s) of the Zoning Chapter:
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Purpose for special exception:
Date of previous application or appeal filed, If any:
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INFORMATION TO BE PROVIDED BY APPLICANT:
A.
Leaal description of property:
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B.
*Plot plan drawn to scale showing:
1.
2.
3.
4.
5.
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Lot with dimensions; :3"-3 q
North point and scale; CO) "-"',
Existing and proposed structures with distances from property llñijS:;.~~ -.J
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Abutting streets and alleys; '"-:__CT~ ~
Surrounding land uses, Including the location and record oWÁit~f eaeh
property opposite or abutting the property In question; ~ ~
Parking spaces and trees - existing and proposed. \D
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rSubmlsslon of an 82" x 11" bold print plot plan Is preferred.]
C. Review. The Board shall review all applicable evidence regarding the site, existing
and proposed structures, neighboring uses, parking areas, driveway locations,
highway and street access, traffic generation and circulation, drainage, sanitary
sewer and water systems, the operation of the specific proposed exception and
such other evidence as deemed appropriate. (Section 14-6W-2B1, City Code).
In the space provided below or on an attached sheet, address the areas of Board
review which apply to the requested special exception. in this narrative statement,
set forth the grounds offered as support for the special exception.
D. The applicant Is required to present specific Information, not just opinions, that the
aeneral standards for the arantlna of a special exception (Section 14-6W-2B2, City
Code), enumerated below, will be met:
1. The specific proposed exception will not be detrimental to or endanger the
public health, safety, comfort, or general welfare.
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2. The specific proposed exception will not be Injurious to the use and
enjoyment of other property In the Immediate vicinity and will not
substantially diminish and Impair property values In the neighborhood.
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3. Establishment of the specific proposed exception will not Impede the normal
and orderly development and Improvement of the surrounding property for
uses permitted In the zone In which such property Is located.
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4. Adequate utilities, access roads, drainage and/or necessary facilities have
been or are being provided.
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5. Adequate measures have been or will be taken to provide Ingress or egress
designed so as to minimize traffic congestion on public streets.
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6. Except for the specific regulations and standards applicable to the exception
being considered, the specific proposed exception, In all other respects,
conforms to the applicable regulations or standards of the zone In which It Is
to be located. [Depending on the type of exception requested, certain
specific conditions may need to be met. The applicant will demonstrate
compliance with the specific conditions required for a particular use, as
provided In City Code Section 14-6L-1, Special Exception Enumerated
Requirements; Section 14-6N-1, Off-Street Parking Requirements; Section
14-6Q, Dimensional Requirements, or Section 14-6R, Tree Regulations, as
appropriate.]
7. The proposed use will be consistent with the short-range Comprehensive
Plan ofthe City.
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E. List the names and mailing addresses of the record owners of all property located
within 300 feet of the exterior limits of the property Involved In this appeal:
NAME
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ADDRESS
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NOTE: Conditions. In permitting a special exception, the Board may Impose appropriate
conditions and safeguards, including but not limited to planting screens, fencing,
construction commencement and completion deadlines, lighting, operational controls,
improved traffic circulation requirements, highway access restrictions, increased
minimum yard requirements, parking requirements, limitations on the duration of a use or
ownership or any other requirement which the Board deems appropriate under the
circumstances upon a finding that the conditions are necessary to fulfill the purpose and
intent of the Zoning Chapter. (Section 14-6W-2B3, City Code).
Orders. Unless otherwise determined by the Board, all orders of the Board shall
expire six (6) months from the date the written decision Is filed with the City Clerk,
unless the applicant shall have taken action within the six (6) month period to
establish the use or construct the building permitted under the terms of the
Board's decision, such as by obtaining a building permit and proceeding to
completion in accordance with the terms of the permit. Upon written request, and
for good cause shown, the Board may extend the expiration date of any order
without further public hearing on the merits of the original appeal or application.
(Section 14-6W-3E, City Code).
Petition for writ of certiorarI. Any person or persons, Jointly or severally, aggrieved
by any decision of the Board under the provisions of the Zoning Chapter, or any
taxpayer or any officer, department or board of the City may present to a court of
record a petition for writ of certiorari duly verified, setting forth that such decision
is illegal, In whole or In part, and specifying the grounds of the illegality. (Section
14-6W-7, City Code). Such petition shall be presented to the court within thirty (30)
days after the filing of the decision In the office of the City Clerk.
Date:
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Slgnature(s) of Property Owner(s)
if Different than Applicant(s)
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A part of Lot 2 of Block 1. Bravern:an Center. an addition to Iowa City,
Johnson County. Iowa òescribed as follows:
. BegInning at the northwest-corner of said lot 2 of Elock 1. said point'
lying on the east line of Keokuk Street;
Thence S. 780 48' 50" E Of 175.00 feet along the northe rly line of sa id
Lot 2 to the COrner of said Lot 2;
Thence S. 110 11' 10" W., 122.50 feeti .
Thence N. 68° 10' 50" W., 173. ()8 fee.t to the, east I ine of Keokuk Street;
Thence northerly along said east line of KE'okuk Street" 90.69 feet along
a 1290.58 foot radius curve concave easterly to the point of beginnIng
which lies N. 80 01' 00" Eoø 90. 67 fee t of the last de scribed poinh
Said parcel contains 0.42 acres, more or less.' ~O ~.'(;
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Braverman Center
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STATE OF IOWA
JOHNSON COUNTY
$C'a/e: ¡"-50'
Dafe: Nov. 8,1973
[O.C. <: I: 3000
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1 hereby certify that this plat was prepared by me or under my direct personal
supervIsion and that I am a duly registered ~rofes,sional Land Surveyor under
the laws of the State of Iowa.
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, Ralph StoifíH·. L. S
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Subscribed and sworn before me this 8
day of
No~mber 8
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November
, 1973
, 1973
STAFF REPORT
To: Board of Adjustment
Prepared by: John Yapp
Item: APL04-00004 130 N Dubuque Street
Date: October 13, 2004
GENERAL INFORMATION:
Applicant:
Wesley Foundation
120 N Dubuque Street
Iowa City, IA 52245
Applicant's Contact Person and Attorney:
Bob Downer
122 S Linn Street
Iowa City, IA 52240
Phone: 338-1179
Req uested Action:
Appeal a decision of the Building Official
regarding the nonconforming use
provision
Purpose:
To reestablish an auto and truck
oriented use (repair garage) on the
property
Location:
130 N Dubuque Street
Size:
6,000 square feet
Existing Land Use and Zoning:
Vacant; CB-5
Surrounding Land Use and Zoning:
North:
Gas and convenience store;
CB-2
Wesley Foundation; CB-5
Commercial; CB-5
Religious Institution; PRM
South:
East:
West:
Comprehensive Plan:
Mixed-use
File Date:
September 24, 2004
BACKGROUND INFORMATION:
The applicant, the Wesley Foundation, has submitted an appeal of a decision of the Building
Official regarding the reestablishment of a non-conforming use. The application was initially
made for a variance to allow an auto-oriented use in the CB-5 zone, and was subsequently
converted to an appeal of a decision of the Building Official. On September 17, 2004 the
building department denied a building permit related to the reestablishment of a repair garage
on the property. The repair garage business that previously occupied the property (Johnson's
2
Auto) ceased operating at this location approximately 18 months ago, and had moved from this
property by the time it was rezoned from CB-2, Central Business Service Zone to CB-5,
Central Business Support Zone.
In 2003, the property was rezoned from CB-2 to CB-5 at the request of a local realtor and the
property owner. Representations were made in the rezoning application that the request for
the rezoning was to enable the property to be developed with a mixed-use
commercial/residential building on the property. The CB-5 zone is more conducive to mixed-
use development due to lower parking requirements, no setback requirements, and higher
allowable building density. As part of the rezoning analysis, city staff recommended the entire
block be rezoned from CB-2 to CB-5, due to the CB-5 zone being more in conformance with
the Comprehensive Plan for this area, which encourages mixed-use, pedestrian-oriented
development. The rezoning to CB-5 was approved by the City Council on May 20, 2003.
After the property was rezoned, the Wesley Foundation leased the property. According to the
application materials it is their long-range plan to develop and utilize the properties on the west
side of the block (including the Wesley Foundation and United Methodist Church) as a
cohesive unit. In the short-term, however, they wish to sub-lease the property to an auto-repair
business. Auto-and-truck oriented uses are not permitted in the CB-5 zone, and the non-
conforming use status for an auto-and-truck oriented use on this property expired on May 20,
2004, one year after it was rezoned.
ANAL YSIS:
The purpose of the Zoning Code is to promote the public health, safety and general welfare, to
conserve and protect the value of property throughout the City, and to encourage the most
appropriate use of land. It is the intent of the Zoning Code to permit the full use of property in a
manner that does not intrude upon adjacent property.
Section 14-6W-2A of the Zoning Code grants the Board of Adjustment the power to hear and
decide appeals where it is alleged there is error in any order, requirement, decision or
determination made by the City Manager or designee in the enforcement of the Zoning
Chapter or any ordinance adopted pursuant thereto. In this case the applicant is appealing the
determination of the Building Official that the auto-and-truck oriented use cannot be
reestablished because it has ceased for more than one year, and has, therefore, been
discontinued as a non-conforming use of this property. The issue for the Board of Adjustment
is whether the Building Official erred in making this determination.
In making his determination, the Building Official relied on City Code Section 14-6T-3D
Discontinuance of Nonconforming Use, which states "A lot or portion of a lot devoted to a
nonconforming use which is discontinued for a period of one year shall revert to a conforming
use."
Since the auto-and-truck oriented use ceased operating more than one year ago, it is clear that
the Building Official did not err in making this decision.
The applicant makes two arguments in support of their appeal. First, the applicant denies that
the nonconforming use of an auto-and-truck oriented use has been discontinued, and that said
use may be continued by a new tenant. Staff finds that while an auto-repair business may
occupy the existing building on the property, there is a distinction between the building and the
U:\special exceptions\appeal130 dubuque street.doc
3
use within the building. While non-conforming buildings may be permitted to remain under City
Code, a non-conforming use may not be reestablished if it has ceased for more than one year.
This is to encourage redevelopment of properties such that they conform to the zone in which
the property is located,
An argument the applicant makes [in their variance application] is that they are "stymied" by
restrictions as a religious institution by not being able to lease the property to businesses
that generate income from alcohol, tobacco or gambling. However the CB-5 zone does
allow a wide range of uses that could occupy the property that do not involve the sale of
alcohol or tobacco. The CB-5, Central Business Support Zone, is intended to allow for the
expansion of the Central Business District of Iowa City, and to enhance the pedestrian
orientation of the central area of the City. The CB-5 Zone is intended to accommodate mixed
land uses. Permitted uses include a range of retail establishments, restaurants (including
carry-out restaurants), offices, and personal service businesses. Part of the rationale for
rezoning the property to CB-5 18 months ago was that the CB-5 zone had less stringent
parking requirements, çmd more area of this relatively small (6,000 square feet) lot could be
utilized for a building, than under the CB-2 Zone. In other words, the lot may be utilized more
fully under the CB-5 zone. There are many examples of old service station structures in other
cities as well as in Iowa City being used for uses like restaurants or offices, that do not rely on
income generated from alcohol, tobacco or gambling. Some examples/photos of converted
service station structures are attached.
The intent of the non-conforming use provisions is to phase-out uses that are no longer
appropriate or compatible with the zone in which they are located. In this case, the property
was rezoned (at the property owners request) which made the auto repair use non-
conforming. Allowing an auto-and-truck oriented use on the property would be contrary to
the rezoning decision made by the Planning and Zoning Commission and the City Council.
The applicant makes the statement that an auto repair business fits into the neighborhood
because there is a gas station/convenience store across the street. While there is a gas
station/convenience store on the property across Market Street, it is in the CB-2, Central
Business Service Zone, a zone that allows such uses. Other uses in this area include video
rental, ice cream, pizza, and book sales, a Laundromat, restaurants and other retail uses.
The CB-5 zone is intended for the expansion of the Central Business District and allows a
wide range of retail and personal service uses.
FINDINGS:
Staff finds that:
The property at 130 N Dubuque Street was rezoned from CB-2, Central Business Service
Zone, to CB-5, Central Business Support Zone, on May 20, 2003.
The previous auto repair business that occupied this property had relocated to 315 E. Benton
Street by the time the property at 130 N Dubuque Street was rezoned to CB-5 on May 20
2003.
The property has been unoccupied by a business for a period of approximately 18 months.
The CB-5 Zone is intended for the expansion of the Central Business District, and
accommodates a wide range of retail, office and personal service uses.
U:\special exceptionslappeal130 dubuque street.doc
4
The applicant acquired a lease interest in the property with knowledge f the CB-5 zoning
requirements that apply to the property.
The non-conforming use provision of the City Code states that once a non-conforming use has
been discontinued for a period of more than one year, the property shall revert to a conforming
use.
CONCLUSION:
Based on the above findings, staff concludes that the Building Official correctly applied City
Code Section 14-6T-3D Discontinuance of Nonconforming Use, which states "A lot or
portion of a lot devoted to a nonconforming use which is discontinued for a period of one year
shall revert to a conforming use."
STAFF RECOMMENDATION:
Staff recommends APL04-00004, an appeal of the Building Officials decision to deny a building
permit application on the basis that the use of the premises of an automobile repair facility has
been abandoned for approximately 18 months, be denied, and the Building Officials
determination be upheld.
1. Location map
2. Application materials
3. Photos of service station structures that have been reused
Approved by: . ~
Robert MI 0, Senior Planner,
Department of Planning and Community Development
U:\special exceptionslappeal130 dubuque street.doc
5
Service station converted to Bar-B-Que restaurant in Virginia
Service station converted to insurance office in New York State
Service station converted to coffee ship in Wisconsin
U:\special exceptions\appeal130 dubuque street.doc
Former service station at Linn Street / Burlington Street, Iowa City of Iowa City
Former service station at Dodge Street / Iowa Avenue, Iowa City
U:\special exceptionslappeal130 dubuque street.doc
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ROBERT N. DOWNER
JAMES D. McCARRAGHER
MARKT. HAMER
THOMAS D. HOBART
MARGARETT. LAINSON
DOUGLAS D. RUPPERT
TIMOTHY J. KRUMM
WILLIAM J. SUEPPEL
CHARLES A. MEARDON
DENNIS J. MITCHELL
DAVID J. BRIGHT
PETER J. GARDNER
MEARDON. SUEPPEL & DOWNER P. L. c.
LAWYERS
I 22 SOUTH LINN STREET
1ELEPHONE: (319) 338-9222
FAX: (319) 338-7250
IOWA CnY, IOWA 52240 -1830
WWW.MEARDONLAW.COM
WILLIAM L. MEARDON
( I 9 I g- I 997)
OF COUNSEL:
WILLIAM F. SUEPPEL
JEAN BARTLEY
September 24, 2004
BOARD OF ADJUSTMENT
CITY OF lOW A CITY
410 E WASHINGTON
IOWA CITY IA 52240
Re: Wesley Foundation
Ladies and Gentlemen:
Wesley Foundation has recently filed a Request for Variance covering the
property at 130 North Dubuque Street, Iowa City, Iowa, pursuant to the provisions of
Section 14-6W-2.C. of the City Code of the City of Iowa City, Iowa. The undersigned, as
attorney for the Wesley Foundation and with its authorization, is asking that said
Application for Variance be converted to an appeal of the denial by the building official
of a building permit application on September 17, 2004, on the basis that the use of said
premises as an automobile repair facility had been abandoned for a year and a half.
Wesley Foundation denies that the nonconforming use of an auto and truck oriented
use had been abandoned, and submits that said usage could be continued on said
premises by a new tenant.
Attached is a listing of the parcel numbers, mailing names and addresses
and property addresses of all properties located within 300 feet of the subject property.
RND /bjf
Enclosure
INFORMATION TO BE PROVIDED BY APPLICANT:
A. Leaal descriDtion of property:
THE NORTH HALF OF LOT 4 IN BLOCK 67 IN IOWA CITY, IOWA, ACCORDING TO THE PLAT
THEREOF RECORDED IN PLAT RECORD 1, PAGE 116.
B.
*Plot Dlan drawn to scale showing:
1.
2.
3.
4.
5,
6.
Lot with dimensions;
North point and scale;
Existing and proposed structures with distances from property lines;
Abutting streets and alleys;
Land uses on and property owners of abutting lots; and
Parking spaces and trees - existing and proposed,
[*Submission of an 8" x 11" bold print plot plan is preferred.]
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C. List of property owners within 300 feet of the exterior limits of the property involved in this
appeal:
NAME
ADDRESS
Julie Hodge, Mike Hodge, Key Properties Ltd.
711 S. Gilbert, 52240
Parkhouse LC
711 S. Gilbert, 52240
First English Lutheran (Gloria Dei)
121 N. Dubuque, 52245
Iowa Bnai Brith Hillel
122 E. Market, 52245
Nordstrom Oil (Handimart)
PO Box 66, Cedar Rapids, IA 52406
First United Methodist Church
214 E. Jefferson, 52245
St. Mary's Catholic Church
220 E. Jefferson, 52245
HCB Properties LC
711 S. Gilbert, 52240
Melinda Miller
525 Emerald Street, 52246
APPLICANT'S JUSTIFICATION:
Section 14-6W-2C of the Iowa City Zoning Chapter gives the Board of Adjustment power to
authorize upon appeal in specific cases such variances from the tenns of the Zoning Chapter as
will not be contrary to the public interest, where owing to special conditions a literal enforcement of
the provisions of the Zoning Chapter will result in unnecessary hardship and so the spirit of the
ordinance shall be observed and substantial justice done. No variance to the strict application
of any provision of the Zoning Chapter shall be granted by the Board unless the applicant
demonstrates that all of the following elements are present: (emphasis added)
(Please respond specifically to each of the following, explaining your answers.)
Not contrary to the Dublic interest.
a. Explain why the proposed variance will not threaten neighborhood integrity, or
have a substantially adverse effect on the use or value of other properties in the
area adjacent to the property included in the variance,
Planned use is the same as has been at this site since 1920 with the most recent occupant being
Johnson's Auto. With a convenience store across the street, auto-oriented business fits this
neighborhood.
b. Explain why the proposed variance will be in harmony with the general purpose
and intent of the Zoning Chapter, and not contravene the objectives of the
Comprehensive Plan.
The buüding use permitted under current zoning has made it difficult to get a renter to utilize
the property. Wesley Foundation seeks to sub-lease the property, developing cash flowJ£hile
working on a cohesive plan to develop the property in conjunction with 213 E. Market~ 120
N. Dubuque that will comply with the goals of the Comprehensive Plan. <: 0
»-1
Unnecessary hardshiD.
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Explain why the property in question cannot yield a reasonable retum if ùšèd onl~
for a purpose allowed in the zone where the property is located.
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The current size of building and property and the restrictions as a religious organization in
receiving income from alcohol, tobacco or gambling sales has made it nearly impossible to
sub-lease to a business permitted under CB-S zoning. We have had many inquiries into
sub-leasing the current structure and property without the ability to secure an agreement.
b. Explain how the owner's situation is unique or peculiar to the property in question,
and the situation not shared with other landowners in the area or due to general
conditions in the neighborhood,
The United Methodist Church basically owns the West Halfofthis block except for 130 N.
Dubuque. The ability to lease with an option to buy 130 N. Dubuque presents an opportunity to
develop all of the property on the West half of the block as a cohesive unit. Because of the
voluntary nature of religious institutions, several years are needed to fund-raise and develop a
plan that will add value and beauty to the neighborhood. This property needs to cash-flow itself,
while that plan is developed.
c. Explain how the hardship is not of the landowner's or applicant's own making or
that of a predecessor in title.
The previous business vacated the property seven (7) before the Wesley Foundation was able to
lease the property. We began to seek tenants to sub-lease the property immediately but were
stymied by restrictions to who we could get as a tenant because of income generated from alcohol,
tobacco or gambling sales being prohibitive. In the mean time, the nonconforming use period
ended before finding a tenant willing to sub-lease the property and structure.
NOTE: Conditions. In permitting a variance, the Board may impose appropriate conditions and
safeguards, including but not limited to planting screens, fencing, construction
commencement and completion deadlines, lighting, operational controls, improved traffic
circulation requirements, highway access restrictions, increased minimum yard
requirements, parking requirements, limitations on the duration of a use or ownership or
any other requirement which the Board deems appropriate under the circumstances,
upon a finding that the conditions are necessary to fulfill the purpose and intent of the
Zoning Chapter, (Section 14-6W-2C3, City Code).
Orders. Unless otherwise determined by the Board, all orders of the Board shall expire
six (6) months from the date the written decision is filed with the City Clerk, unless the
applicant shall have taken action within the six (6) month period to establish the use or
construct the building permitted under the terms of the Board's decision, such as by
obtaining a building permit and proceeding to completion in accordance with the terms of
the permit. Upon written request, and for good cause shown, the Board may extend the
expiration date of any order without further public hearing on the merits of the original
appeal or application, (Section 14-6W-3E, City Code)
Petition for writ of certiorari. Any person or persons, jointly or severally, aggrieved by any
decision of the Board under the provisions of the Zoning Chapter or any taxpayer or any
officer, department or board of the City may present to a court of record a petition for writ
of certiorari duly verified, setting forth that such decision is illegal, in whole or in part, and
specifying the grounds of the illegality, (Section 14-6W-7, City Code.) Such petition shall
be presented to the court within thirty (30) days after the filing of the decision in the office
of the City Clerk.
Date: September 16
2004
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Signatu (s) of Applicant(s)
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Date: September 16
2004
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Signature(s) of Property Owner(s)
if Different than Applicant(s)
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BUILDING PERMIT APPLI
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CITY OF IOWA CITY
· Site Address:
OR
· Lot & Subdivision:
130
· OwnerlTenant: <;
Address: t Zo N... ~~l ~_ t;\" City:
Daytime Phone: t - l t "1
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· General Contractor:
Address:
State
Zip
Subcontractors:
· Plumber:
Electrician:
· ,Mechanical:
Sewer/Water
· Project Description: ~ ~ lJ...::-b G: +ì. E-"S..} ~&.&. ~e:.-o-r~cl
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· Total Value of Project: $ 'd Sb ~
(Exclude cost of land)
· Permit Value of Project: $ "'5J 'D~
(Exclude cost of plumb., mech., elec. & land)
Contact Person Name: J;\iJ.e <:.iJ R l £.c..o LL
Phone: 35}-Z-l w(¡;,
Is project subject to: TO BE COMPLETED BY STAFF:
Yes No C-~ ~5
Site Zone:
Iowa Architectural law? ........................ 0 0 Lot Area:
Formal site plan review? ...................... 0 D Fees/Escrows Required:
Plot plan review? ................................. 0 [J
Other:
Energy Code review? .........................., D 0
Historic preservation review? ............... 0 0 Staff Initials:
Flood Dlain raaulations? ................... 0 0
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