HomeMy WebLinkAbout05-13-2008 Board of AdjustmentAGENDA
IOWA CITY BOARD OF ADJUSTMENT MEETING
WEDNESDAY, MAY 13, 2009 — 5:00 PM
CITY HALL — EMMA J. HARVAT HALL
A. Call to Order
B. Roll Call
C. Consider the January 14 and January 20, 2009 minutes
D. Special Exception
EXC09-00001: Discussion of an application submitted by Faith Baptist Church
for a special exception to expand its church facility located in the OPD-8 (Planned
Development Overlay) at 1251 Village Road.
E. Other
F. Board of Adjustment Information
G. Adjourn
NEXT BOARD OF ADJUSTMENT MEETING — JUNE 10, 2009
STAFF REPORT
To: Board of Adjustment
Item: EXC09-00001
Faith Baptist Church, 1251 Village Road
GENERAL INFORMATION:
Applicant:
Contact:
Requested Action:
Purpose:
Location:
Size:
Existing Land Use and Zoning:
Surrounding Land Use and Zoning:
Applicable code sections:
File Date:
BACKGROUND INFORMATION:
Prepared by: Sarah Walz
Date: May 13, 2009
Faith Baptist Church
1251 Village Road
Iowa City, IA
319-338-6762
Tim Waldron
4976 400 St. SE
Iowa City
319-338-9142
Expansion of a church facility in a
residential zone.
To allow construction of a garage/storage
building.
1251 Village Road
1.97 acres
Religious/Private Group Assembly (OPD-8)
North: Residential (RS-5)
South: Residential (RS-5)
East: Residential (OPD-8)
West: Residential (RS-5)
Specific criteria for religious/private group
assembly in the Single-family residential zones
(1 4-4B-4D1 4); Multi -family site development
standards, 14-213-6; Development Standards
for Detached Accessory Buildings, 14-4C-3B-
2c(1); General criteria for special exceptions,
14-4B-3A.
April 16, 2009
The subject property is located in a planned development overlay, medium -density, single-family
residential (OPD-8) zone at 1251 Village Road. Religious/Private Group Assembly uses are
.0
allowed in residential zones by special exception. The applicant is seeking a special exception to
allow construction of a 30 x 48 -foot garage/storage building for church vehicles, equipment, and
materials. Garages and storage buildings are considered accessory structures. Because the
proposed building is larger than 500 square feet it requires a special exception (see item 'T' in
the specific criteria). The proposed location of the building is at the northwest corner of the
parking lot, an area behind the church building but visible from the street and the adjacent
residential uses, especially the townhomes located to the north. The proposed building is post -
frame construction with metal siding. No changes to the parking lot are proposed.
ANALYSIS:
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 of Section 14-4B-4D-14 pertaining to the specific standards for Religious/Private
Group Assembly uses in single-family residential zones as well as the general approval criteria
for special exceptions as set forth in Section 14-413-3A.
Specific Standards: 14-4B-4D-14, Religious /Private Group Assembly in the Single -Family
Residential Zones (see attached).
Because this application is for the construction of an accessory building, and because it will not
alter the use or intensity of use on the property, not all of the specific criteria listed under the
special exception apply. / have attached a list with all the specific criteria for the special
exception but in this report address only those criteria that apply.
a. Vehicular access to the proposed use is limited to streets with pavement width greater
than 28 feet. The paving width of Village Road is 25 feet, and the code offers no exception for
churches already established along streets that do not meet the 28-foot standard. A number of
established churches face this same situation. Therefore, Staff is proposing an amendment to
the code that would change this requirement.
Prior to 2006 the zoning code allowed religious institutions on arterial or collector streets or on
streets with paving wider than 28 feet. With the rewrite of the code in 2005 the language was
simplified to require access to a street that is wider than 28 feet, assuming that all arterials and
collector streets are wider than 28 feet. We have now learned that this is not the case.
Although Village Road is a collector street, it is only 25 feet wide. The proposed amendment to
the code would rely on a traffic transportation assessment to show the volume of vehicles
accessing the site at peak times. Transportation planners would review the application to ensure
that roads were able to safely and efficiently handle anticipated traffic. If the special exception is
approved it will need to be subject to City Council approval of the amendment.
Because the proposed garage/storage building will not generate additional traffic to the facility
or expand its capacity, it will not alter the existing traffic pattern for the church. Village Road is a
collector street and parking is prohibited along this public street.
b. The zoning code provides setback requirements for the principal building on church
facilities located in residential zones (Front 20 feet; Side 20 feet, Rear 50 feet). Because a
garage/storage building is an accessory structure, it is not subject to the principal building
setback requirements listed in the special exception criteria. The Multi -family design standards,
which apply to institutional uses located in residential zones, require that garages be located
behind the principal building. The proposed location for the garage is at the northwest corner of
the parking area and well behind the rear plain of the building. The standards for accessory
structures require side and rear setbacks of 5 feet. The rear setback is in excess of 67 feet and
the side setback is shown at 8 feet.
The proposed location for the garage/storage building is along the north property line. The front
facades of the townhouses to the north face the location where the garage is proposed.
Generally townhouses would face a public street, and there would be considerably more
distance between the fronts of the townhouses and a side yard of an adjacent property. In this
case, both the townhouses and the church were approved as part of a Planned Development
Overlay zone that allowed this unusual configuration. To provide more space between the
townhouses and the proposed building, and to help preserve the view from the townhouses,
Staff recommends that the proposed garage/storage building be located farther to the west and
south. Along the southwest property line there is a row of tall evergreens that would effectively
screen the building from the rear yards of the adjacent residential properties. Additional
screening around the proposed building would help to soften the view of the building from other
properties, including those to the west. This would allow the church to build the garage/storage
building, while minimizing the affect on the adjacent residential properties.
c. The proposed use will be designed to be compatible with adjacent uses. The Board of
Adjustment will consider aspects of the proposed use, such as the site size, types of
accessory uses, anticipated traffic, building scale, setbacks, landscaping and location and
amount of paved areas. The Board of Adjustment may deny any aspects of the use that are
deemed out of scale, incompatible, or out of character with surrounding residential uses,
or may require additional measures to mitigate these differences. Additional requirements
may include, but are not limited to, additional screening, landscaping, pedestrian facilities,
setbacks, location and design of parking facilities, and location and design of buildings.
Given the size and visibility of the property from abutting residential uses, Staff believes that any
accessory building should reflect the character of the surrounding neighborhood. The structure
originally proposed by the applicant was not, in the view of Staff, consistent with the surrounding
neighborhood. Moreover, the Multi -family building requirements (14-2B-6G-4) state that "any
portion of a building that is clearly visible from the street must be constructed using similar
materials and design as the front fagade." The building originally proposed by the church was a
pole barn, the design and materials for which are more typical of the sort of structure one would
find in an agricultural or industrial setting. The Multi -Family Design Standards require that the
materials and design complement that of the church building, which is brick with lap siding. Staff
recommends that the applicant use similar horizontal siding in a color that will help the garage
blend into its surroundings but to avoid white, which would only make a larger building more
visible from the street and adjacent properties.
Staff advised the applicant that the proposed design for the garage shown in the original
application was not in character with the surrounding residential neighborhood and would not
meet the requirements of the Multi -family Design Standards (see below). The applicant has
agreed to construct the garage with vinyl siding similar to the siding on the church building.
Because a sketch of the building showing the required material is not available at this time, Staff
recommends that a final design of the building be approved by Staff.
In addition, Staff recommends positioning the garage along the southwest property line where an
established row of evergreens will effectively screen the view of the building from the adjacent
property with additional landscape screening around the perimeter of the building to minimize
views from the west.
4
General Standards: 14-413-3, Special Exception Review Requirements
1. The specific proposed exception will not be detrimental to or endanger the public
health, safety, comfort or general welfare. Because the proposed special exception will not
alter the use or the intensity of use of the church property, it will not be detrimental to or
endanger the public health, safety, comfort or general welfare.
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. Again, the construction of a garage will not alter the
use or intensity of use of the church property. Provided that the garage is designed to be
compatible and is located to minimize effects on the adjacent townhouses, which face the
church property, it will not be injurious to the use and enjoyment of other property nor diminish
or impair the value of property 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. See 1 and 2 above.
4. Adequate utilities, access roads, drainage and/or necessary facilities have been or
are being provided. Not applicable.
5. Adequate measures have been or will be taken to provide ingress or egress designed
so as to minimize traffic congestion on public streets. Not applicable.
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 parking
area for the church is non -conforming: it is not designed, paved, or landscaped in compliance
with current code requirements. The regulations for Non -conforming Parking and Loading state
that when a use is enlarged by less than 50 percent in total floor area on the property, the
parking area does not have to be brought into full compliance, but must meet the perimeter
screening standards (14-4E-8B-4). Most of the south side of the property is screened by a
continuous hedge, but additional screening will be required between the parking area and the
north and west property lines.
The applicant must submit a final site plan and construction drawings to the building official as
part of the building permit process. These submissions will be reviewed to ensure compliance
with all other aspects of the zoning code.
7. The proposed use will be consistent with the Comprehensive Plan, as amended. The
Comprehensive Plan encourages the location of institutional uses, such as churches, schools,
and daycares, within residential neighborhoods so long as they meet the requirements of the
zoning code and are designed to be compatible with the surrounding neighborhood. As noted
above, Staff recommends that the design, location, and landscaping be amended to make the
proposed garage/storage building more compatible with the surrounding residential
neighborhood and to minimize views from the adjacent property.
STAFF RECOMMENDATION:
Staff recommends that EXC09-00001, an application for a special exception to allow expansion
of a church facility located in the OPD-8 zone at 1251 Village Road be approved subject to the
following conditions:
• Council approval of an amendment to the zoning code to allow religious/private
group assembly uses along streets with a pavement width narrower than 28 feet.
• Staff approval of a final design of the garage/storage building showing
compliance with the Multi -family Design standards with regard to materials and
landscape screening to minimize views of the building.
• Location of the garage/storage building along at the southwest corner of the
parking lot, adjacent to existing landscaping.
• Compliance with the screening requirements for non -conforming parking and
loading areas.
ATTACHMENTS:
1. Specific criteria for the special exception
2. Location map
3. Aerial views
4. Proposed site plan
5. Applicant's materials
Approved by:
Karen Howard, ting Senior Planner,
Department of Planning and Community Development
PAGE 4B-33 144B
Minor Modifications, Variances, Special
Exceptions, and Provisional Uses
parking, the estimated parking demand, and opportunities for shared parking
with other nonresidential uses in the vicinity of the use
e. If the proposed use in located in a Residential Zone or in the Central Planning
District, it must comply with the Multi -Family Site Development,Standards as set
forth in Section 14-2B-6.
14. Religious/Private Group Assembly in the ID-RS, RS-5, RS-8, RS-12, and
RNS-12 Zones
a. Vehicular access to the proposed use is limited to streets with pavement width
greater than 28 feet.
b. The following minimum setbacks are required in lieu of the setbacks specified in
the base zone. However, the Board of Adjustment may reduce these setbacks,
subject to the approval criteria for setback adjustments as specified in 14-2A-
4B-5, Adjustments to Principal Building Setback Requirements.
(1) Front: 20 feet
(2) Side: 20 feet
(3) Rear: 50 feet
C. The proposed use will be designed to be compatible with adjacent uses. The
Board of Adjustment will consider aspects of the proposed use, such as the site
size, types of accessory uses, anticipated traffic, building scale, setbacks,
landscaping, and location and amount of paved areas. The Board of Adjustment
may deny the use or aspects of the use that are deemed out of scale,
incompatible, or out of character with surrounding residential uses, or may
require additional measures to mitigate these differences. Additional
requirements may include, but are not limited to, additional screening,
landscaping, pedestrian facilities, setbacks, location and design of parking
facilities, and location and design of buildings.
d. Given that large parking lots can seriously erode the single family residential
character of these zones, the Board of Adjustment will carefully review any
requests for parking spaces beyond the minimum required. The Board may limit
the number of parking spaces and the size and location of parking lots, taking
into account the availability of on -street parking, the estimated parking demand,
and opportunities for shared parking with other nonresidential uses in the
vicinity of the use.
e. The proposed use will not have significant adverse affects on the livability of
nearby residential uses due to noise, glare from lights, late -night operations,
odors, and litter.
f. The Building Official may grant approval for the following modifications to a
Religious/Private Group Assembly Use, without approval from the Board of
Adjustment, upon written findings that the modification will not be detrimental
to the public health, safety, or welfare, or be injurious to the other property or
improvements in the vicinity and in the zone in which the property is located.
(1) An accessory storage building less than 500 square feet in size.
Title 14: Iowa City Zoning Code ReAsed 12-22-08
PAGE 48-34 144B
Minor Modifications, Variances, Special
Exceptions, and Provisional Uses
(2) A building addition of less than 500 square feet, provided the addition does
not increase the occupancy load of the building.
g. If the proposed use is located in a Residential Zone or in the Central Planning
District, it must comply with the Multi -Family Site Development Standards as set
forth in Section 14-2B-6.
E. Other Uses
1. Animal -Related Agriculture in the ID Zones
a. Livestock feedlots must be located no closer than 1/4 mile from any Residential
Zone boundary.
b. Confinement feeding operations are prohibited.
2. Extraction
a. Extraction is not permitted within 1,000 feet of a Residential Zone.
b. Proof of compliance with all State requirements, including all approvals and
licenses referenced in subparagraphs c. through e. must be submitted to the
City for review and approval prior to commencing extraction operations.
C. Approval for the withdrawal of water must be obtained from the Iowa
Department of Natural Resources, or its successor.
d. Approval for operation in a floodplain must be obtained from the Iowa
Department of Natural Resources, or its successor.
e. A license to operate the Extraction use must be obtained from the Iowa
Department of Agricultural and Land Stewardship, Division of Soil Conservation,
or its successor. Failure to maintain said license shall constitute abandonment.
3. Helicopter Landing Facilities in the I-1, I-2, RDP, and ORP Zones
a. The proposed landing facility must be located at least 1,000 feet from any
Residential Zone.
b. The landing facility must meet all applicable federal regulations. Documentation
of compliance with federal regulations must be submitted to the Board of
Adjustment with the application for a special exception.
4. Communication Transmission Facilities in Residential Zones and in the ID-
RS and ID-RM Zones
Communication Transmission Facilities are limited to communications antennae,
provided the following conditions are met:
a. The antenna is mounted on the roof of a principal building that contains a
nonresidential use or on the roof of a building that is accessory to a
nonresidential use. Examples include church and school buildings. A maximum
of two antennae is permitted per building.
b. Strobe lighting is prohibited in Residential Zones. Therefore, any antenna that
requires such illumination is prohibited.
C. Any equipment associated with an antenna must be located within the exterior
walls of the building to which the antenna is attached. No separate equipment
shed is permitted.
Title 14: Iowa City Zoning Code Redsed 12-22-08
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APPLICATION TO THE
BOARD OF ADJUSTMENT
SPECIAL EXCEPTION
DATE: 4 - 16 - o9 PROPERTY PARCEL NO.
101349 2601
PROPERTY ADDRESS: 1251
PROPERTY ZONE: OPDQ PROPERTY LOT SIZE:
APPLICANT: Name: sdp�1- C16M 6
Address: 12 51 V;1145 , Qcd . Town C�}y
Phone: SO 338 - 6'T62
CONTACT PERSON:
(if other than applicant)
PROPERTY OWNER:
(if other than applicant)
Name: Tim W01AMl
Address: 44T6 400""St. 8JE. T-aAa 61y
Phone: S iq 33S- q 14-Z
Name:
Address:
Phone:
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Specific Requested Special Exception; please list the description and section number in
the zoning code .that addresses the specific special exception you are seeking. If you
cannot find this information or do not know which section of the code to look in, please
contact Sarah Walz at 356-5239 or email sarah-waiz@iowa-city.org.
Purpose for special exception: 70 Plf., /CY & a av e
Date of previous application or appeal filed, if any:
-2-
In order for your application to be considered complete, you must provide responses to all of the
information requested below. Failure to provide this information may delay the hearing date
for your application. A pre -application consultation with Planning staff is STRONGLY
recommended to ensure that your application addresses all of the required criteria.
As the applicant, you bear the burden of proof for showing that the requested exception should be
granted. Because this application will be presented to the Board of Adjustment as your official
statement, you should address all the applicable criteria in a clear and concise manner.
A. Legal description of property (attach a separate sheet if necessary):
You can find the legal description and parcel number for your property by doing a parcel
search for your address on the Assessor's website at wwwJowacify.iowaassessors.com/
or by calling 319-356-6066.
B. Plot Plan/Site Plan drawn to scale showing all of the following information:
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 location and record owner of each property
opposite or abutting the property in question;
6. Parking spaces and trees- existing and proposed.
7. Any other site elements that are to be addressed in the specific criteria for your
special exception (i.e., some uses require landscape screening, buffers, stacking
spaces, etc.)
— C. Specific Approval Criteria: In order to grant a special exception, the Board must find that
the requested special exception meets certain specific approval criteria listed within the
Zoning Code. In the space below or on an attached sheet, address each of the criteria that
apply to the special exception being sought. Your responses to these criteria should just
be opinions, but should provide specific information demonstrating that the criteria are
being met. (Specific approval criteria for uses listed as special exceptions are described in 14-413-4
of the Zoning Code. Other types of special exceptions to modify requirements for the property are
listed elsewhere in the Code.)
IF YOU DO NOT KNOW WHERE TO FIND THE SPECIFIC CRITERIA THAT MUST BE
ADDRESSED, please contact Sarah Walz at 356-5339 or e-mail Sarah-walz@iowa-
city.org. Failure to provide this information will constitute an incomplete application
and may lead to a delay in its consideration before the Board of Adjustment.
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Faith Baptist Church, " 1 Village Road, Iowa City propos the construction of a
30 X 48 X 9'8" post frame garage for storage of church vehicles and church
equipment/materials. This structure will be built by Greiner Buildings of Washington,
Iowa. It will be post frame construction, metal exterior and concrete floor. The structure
will be located on a northwest site of the church property that will not reduce parking or
green space used for church activities. The location will not hinder vehicle movement on
the church parking lot. The structure will include two (2) garage doors that face south
and one (1) egress door and one (1) window. It is the opinion of Faith Baptist Church
that this structure will be compatible with adjacent uses and not have significant adverse
affects on the livability of nearby residential uses due to noise, lights, late -night
operations or litter. It will not be detrimental or endanger the health, safety, comfort and
welfare of the neighborhood. It will allow Faith Baptist Church to safely store vehicles
and equipment in an orderly, protected manner.
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Garage Structure Proposal
April 15, 2009
O V V l L ✓
similar Grainer Building at 4004 White Oak Ave SE in Iowa City.
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March 5, 2009 Joe Goodell
2088 250 "' Street
Page 1 Washington, Iowa
(319) 461-4815 (Mobile)
(888) 466-4139 (Office)
(319) 653-1023 (Fax)
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March 4, 2009
Pastor Tim Waldron
Faith Baptist Church
1251-Village- Road - - -- - -- - -- ---
-
Iowa City, IA.
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AL4KE YOUR BUILDING L0OKBEAUTIFUL FOR LONGER,
PURCHASEKYNAR 500 PAINT COATING FROM GRF,INER
BUILDINGS TODAY (SEEIATOR MATIONBEL09j
Main Building Specifications:
General Description:
o 30'x 48'x 9' 8" Perimeter dimensions - basic -frame style Greiner Post
Frame Building
• 9' 8 height measured from bottom of splash to bottom of truss.
• Pole are 8' on center
o Designed to be built in the city of Iowa City, IA.
o Pre-engineered webbed trusses from Engineered Building Design of
Washington, IA
• 4/12 roof pitch top chord
• 20+4+5 truss loading
o 25 lb. snow load
o 4 lb. reinforced ceiling load
o Bottom chord truss loading is 5 lb. psf throughout
Harch S, 2009
Page 2
o Industry best, 3-ply 2x6 Glue -laminated columns w/ manufacturer's
limited lifetime warranty against rot and decay (Best wood column
warranty available!)
filled with road -stone or equivalent
• Recommended to be back
material
• Columns have the:
o Best warranty
o Best strength
o Straightest column on market
o (See brochure)
0 29 gauge galvalume roof and wall steel from Central States Steel; baked -
on siliconized polyester paint for base bid
Kynar painted roof and wall steel from Central States Steel as an
upgrade option; see below for further information
o Continuously ventilated ridge using Uni-Vent.
0 1 row of 2x8 treated center match splash boards for bottom skirt.
0 1-3'011x 618" solid walk door, Harvard Model AS3
_ - _ ____ - ..--_--•_-_ _LSDA medium. duty lockset
0 1-4'x3' Non -Thermal pane windows; AJ EZ=Fit-widows-vv/�-Z= it- aim-- -----
package; windows do not require J-trim; guaranteed not to leak!
0 2-101x8' Non -Thermal overhead door;
Model 281; provided and installed
by Overhead Door Company of Cedar Rapids located on the side wall.
• For operators for overhead doors see price increase option below.
0 1' overhang surrounding entire structure (on all walls)
Ventilated soffit @ eaves
• Solid soffit @ gables
2x6 fascia
0 5K gutter with one drop per side
o Wainscot on all 4 walls priced separately below
0 4" Concrete floor poured throughout, p se p
4" flat pour throughout
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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 14-8C-2C-4, 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 14-8C-1 E, 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
14-8C-1F, 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: 4 - 1 C , Y0 os f
Date: , 20 _
ppdadminlapplication-boase.doc
Signature(s) of Applicant(s)
Signature(s) of Property Owner(s)
if Different than Applicant(s)
0
71
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3 xi
Vt
MINUTES
IOWA CITY BOARD OF ADJUSTMENT
JANUARY 14, 2009 — 5:00 PM
EMMA J. HARVAT HALL
Members Present: Terry Hora, Caroline Sheerin, Edgar Thornton, Ned Wood,
Barbara Eckstein
Members Excused: None
Staff Present: Sarah Walz, Sarah Greenwood Hektoen, Doug Boothroy
Others Present: Frank Gersch, Gregg Geerdes, Lori Dahlen, Joyce Barker, Craig Dahlen,
Janet Dahlen, Tim Krumm, Tom Werderitsch, Mike Dahlen, Chrissy
Canganelli
RECOMMENDATIONS TO CITY COUNCIL:
None.
CALL TO ORDER:
The meeting was called to order by Chairperson Ned Wood at 5:00 p.m.
An opening statement was read by the Chair outlining the role and purpose of the Board and the
procedures governing the proceedings.
ROLL CALL: Hora, Sheerin, Thornton, Wood and Eckstein were present.
CONSIDERATION OF THE DECEMBER 10, 2008:
Sheerin moved to approve the minutes.
Hora seconded.
The motion carried 5-0.
Iowa City Board of Adjustment
January 14, 2009
Page 2
SPECIAL EXCEPTIONS:
EXC08-00017: An application submitted by John Hartson and Frank Gersch for a special
exception to allow conversion of a non -conforming use from medical office to general office
for property located in the Neighborhood Stabilization Residential (RNS-12) zone at 1027
Rochester Avenue.
Walz noted that the subject property is zoned for single-family residential and commercial uses
are not permitted. The building was built in 1920 to serve as a grocery store and was converted
to medical office use in the 1950's (a conversion allowed under zoning at that time). The
regulations in the code allow for a non -conforming use to be converted over time to bring it
closer into conformity with the current regulations. The purpose of this is to ensure that an
owner does not lose all rights to a building and its function with a zoning change.
Walz stated that the Board may grant a special exception to allow the conversion to another non-
conforming use if the criteria for the special exception are met.
Walz said that the first criterion fits precisely the situation of this building: a commercial
storefront building in a single-family residential zone. The interior of the building is divided into
office space (serving most recently as an office for psychologists).
Walz stated that the proposed new use must be less intense than the existing use. The use that is
proposed for the building is as an office for an architectural group. The previous use, medical
office use, is defined in part by its reliance on regularly scheduled appointments. A general
office use does not ordinarily depend upon the turn -over of regularly scheduled appointments.
Thus, the parking requirement for a medical office use is higher than the parking requirements
for general office use. This provides one illustration of the lesser intensity anticipated by the
zoning code for a general office use than a medical office use.
The subject property was established without the required off-street parking, Walz said, and is
credited with what is known as "ghost parking." Walz noted that in this case, the required
parking for the new use will be less than that for the previous use so there is no effect.
Walz said that the proposed use is appropriate for the building and site. The architecture of the
building makes it clear that the building's intended use would be commercial. The interior is
already subdivided into offices, which is appropriate for the proposed new use.
Walz indicated that the new owners have no plans for expansion of the building; nor is there
space on the lot for expansion. The building will be restricted to approximately 1500 square feet
of office space and thus the non -conforming use will not be enlarged.
Walz said that she would not go through each of the general standard orally, as they were
addressed in the staff report. She summarized that because this building has functioned
consistently over time as a commercial use, and because the proposed new use is less intense
than the use currently allowed there the conclusion can be reached that the general standards are
also met. Walz stated that the issue of the conversion of non -conforming uses was not addressed
Iowa City Board of Adjustment
January 14, 2009
Page 3
directly by the Comprehensive Plan, but noted that the Central District Plan does speak to the
demand for on -street parking. Walz said it is reasonable to anticipate that the change to general
office use would reduce the demand for parking. Walz stated that Staff recommends EXC08-
00017 be approved.
Wood opened the floor to questions for Staff from the Board.
Eckstein noted that the advertisement for the property stated that there was ample off-street
parking available. Walz said that the advertisement was incorrect, that there is no off-street
parking and that it was probably an error and meant to say ample on -street parking.
Wood opened the public hearing, inviting the applicant to address the Board.
Frank Gersch, 1041 Woodlawn Avenue, said that he believed Walz's summary was
comprehensive, but offered to answer any questions board members might have.
Eckstein noted that the application adequately addresses the issue of traffic congestion, but does
not speak to pedestrian safety. Eckstein asked Gersch to speak to the issue of having only on -
street parking available at the site and pedestrians having to cross a busy street like Rochester
Avenue. Gersch stated that in ten years at that location there had never been a problem or a
complaint on that issue.
Wood asked if there was plenty of parking available on the streets nearby. Gersch said that there
is parking on Rochester Avenue, Elizabeth Street, Bloomington Street, and other surrounding
streets.
Sheerin asked approximately how many customers the medical practice had in a week's time.
Gersch replied that four doctors worked in the building, with each of them seeing a patient each
hour, sometimes families would also come for appointments in separate cars. He said there
would have been approximately thirty-two clients per day.
There were no further questions for Gersch from the Commission.
Wood invited anyone wishing to speak in opposition to the application to come forward. Seeing
no one, Wood closed the public hearing.
Walz noted that when the change of use is contemplated by the Board, it should be contemplated
as a change from a generic medical use to a generic general office use. She stated that the
special exception is tied to the property and not an individual owner/user. She said it was once
converted to the general office use, it could not revert to a medical office use.
Thornton moved to accept EXC08-00017, an application submitted by John Hartson and
Frank Gersch for a special exception to allow conversion of a non -conforming use from
medical office to general office for property located in the Neighborhood Stabilization
Residential (RNS-12) zone at 1027 Rochester Avenue.
Sheerin seconded.
Iowa City Board of Adjustment
January 14, 2009
Page 4
Sheerin said that this application meets the specific standards for the regulations governing non-
conforming use because the property would be moving to a use of less intensity than the present
use. Sheerin said that the proposed use will be located in a structure that was designed for a use
that is currently not allowed in the zone. Sheerin said that the one-story building with large
display windows in the front, and the interior space with its office space, examination rooms, and
filing and storage space is designed for a commercial use, which is not allowed in the current
zone. The new use will be of a lesser impact than the current use because of the lower traffic
anticipated by the zoning code in a general office use. Because of the ghost parking that applies
to the building, no additional parking will be needed for the new use. The proposed use is
suitable for the subject structure and site because the building is designed and constructed for
commercial use. The owners are not able to, and do not wish to, expand the building in any way.
Sheerin outlined the general standards. She stated that the proposed exception would not be
detrimental to or endanger the public health, safety or general welfare because the new use is less
intensive than the current use. The proposed use will not be injurious to the use of other
properties in the immediate vicinity and will not substantially diminish or impair property values
in the neighborhood because traffic will actually be reduced from that generated by the current
use. Normal and orderly development of the surrounding area will not be impeded by this use
because the proposed use is less intense than the present use. Sheerin stated that all utilities,
access roads and other necessary facilities are already being provided. There is no issue of
ingress or egress because there is no off-street parking. The use conforms to all other applicable
standards of the zone in which it is to be located; while it is non -conforming, it is a lesser intense
use and thereby meets this requirement. The use is consistent with the Comprehensive Plan
because it will most likely relieve the demand for on -street parking in the neighborhood. Sheerin
said that for these reasons she intended to vote in favor of this application.
Thornton noted the uniqueness of the property. He said it was important to note that the owner
will be aware that the property cannot be expanded; the property will not generate additional
traffic and will not impede on the normal orderly development of the area, and all utilities are
already present. He said that he believes the use is consistent with the Comprehensive Plan and
he intends to vote in favor of it.
Hora said that he concurred with his colleagues and that he thinks this is a good use for this
building. He said that the use will be in better conformance with the zoning for the area.
Eckstein said that she too agreed with her colleagues. She noted that the building seems to have
been an interesting and good neighbor for quite some time in its non -conforming capacity. She
said the proposed non -conforming use seems consistent with both regulations and with the
building's history.
Wood said that he believed the matter had been well stated by his colleagues. He said that the
property had been designed and constructed for commercial use and will continue to be used that
way. He said the proposed use will pose less of a parking concern than the present use, and that
he intends to vote in favor of the application.
Iowa City Board of Adjustment
January 14, 2009
Page 5
A vote was taken and the motion was approved on a 5-0 vote.
Wood declared the motion approved. He advised that anyone wishing to appeal the decision to a
court of record may do so within 30 days after the decision is filed with the City Clerk's office.
APPEALS
APL08-00001: An application submitted by Michael and Jan Dahlen appealing a decision
by the Building Office to grant a building permit to Shelter House for property located in
the CI-1 zone at 429 Southgate.
Walz stated that Michael and Jan Dahlen filed an appeal of the Building Official's decision to
issue a building permit to Shelter House. The appellants claim that the decision to issue a
building permit to Shelter House was in error for the following reasons:
1) Section 14-4B-4d-5b in the zoning code requires a shelter management plan. Shelter
House has not submitted such a plan.
2) The site plan fails to comply with the parking requirements of code sectionl4-5A-4.
3) The site plan that was approved was not submitted to or approved by the Appellants, the
owners of a substantial portion of land included with this site plan.
4) The site plan that was approved was not the site plan that was submitted by the Shelter
House ("Applicant") and was not made available to Appellants for their review.
5) Appellants also contend that the special exception granted to Shelter House in July of
2004 was expired, and therefore a new special exception is necessary.
Walz stated that the staff memo provides background on the process that the site plan and
building permit has gone through up to this point; as a result, she will not go through that with
the Board. She said that she would briefly summarize the appellant's points in terms of how
Staff interprets them.
To secure a building permit, Walz said, Shelter House was required to meet the specific
standards for the special exception that were in place at the time that the application was
approved in July 2004. At the time the special exception was granted, the only specific special
exception criteria contained in the zoning code for community shelter/transient housing uses was
minimum of 200 square feet of lot area per temporary resident and a minimum of 300 square
foot per lot area for permanent residents. Shelter House indicated a maximum of 70 temporary
residents would be using the facility (Shelter House does not have permanent residents) so they
were required to provide the appropriate square footage for that number of residents.
The Board of Adjustment, based on recommendations from Staff, approved the original
application (2004) subject to the following conditions:
Iowa City Board of Adjustment
January 14, 2009
Page 6
1) General compliance with the site plan submitted;
2) An evergreen landscape buffer along the east property line;
3) An approximate 30-foot rear building setback;
4) An 8-foot high privacy fence installed along the south property line;
5) Compliance with the exterior stairwell guidelines. (Walz noted that Shelter House is no
longer proposing an exterior stairwell.)
Walz stated that the Appellant's reference to the required site management plan is taken from
Iowa City's current zoning code, which took effect in 2005, and which now requires a
management plan as one of the specific criteria for the Board of Adjustment to consider.
Because this requirement did not exist at the time the original special exception was granted, it
was not considered in the deliberations of the Board of Adjustment at that time, and therefore
was not retroactively imposed by the Building Official. All other requirements for the site are
based on the current zoning code, Walz said.
The minimum parking requirement for Shelter House is seven spaces (0.1 x 70 residents) plus
one additional space for each employee, based on the maximum number of employees who will
be at the site at any given time. Shelter House has indicated that a maximum of 14 employees
would be at the site at one time, and thus a total of 21 spaces are required. The site plan
indicates that most of the spaces are at the front of the building, some are on the side, and two
spaces are in a ground -floor garage.
It is the City's position that the boundary dispute between the Appellants and Shelter House is a
private matter, and is beyond the City's jurisdiction to resolve. Because the Appellants are not
part of the application process for the property in question, there is no requirement to submit a
site plan to them.
Regarding the term of the special exception, by operation of local ordinance, Board of
Adjustment decisions expire six months from the date the written decision is filed unless
extended. Walz explained that the special exception was approved in July 2004 and extended in
February 2005. This extension was granted for a period of six months after the date of the
written court decision in the then on -going litigation. This resulted in Shelter House having until
October 9, 2008, to take action to establish the use. The timelines for Shelter House's various
submissions to Staff, the Building Official and the Planning and Zoning Commission are
included in the staff report and outline Shelter House's actions in establishing use.
Walz informed the Board that the Building Official was present and available for their questions.
Greenwood Hektoen stated that she wished to touch on the Board's role in this matter. She said
that in deciding this appeal the Board's first job is to determine if the Building Official erred in
granting the building permit. Greenwood Hektoen said that the Board could not decide that this
was not an appropriate location for the Shelter House and then grant the appeal; the Board would
Iowa City Board of Adjustment
January 14, 2009
Page 7
have to determine that the Building Official in some way violated the zoning code and/or other
regulations in issuing this building permit. Greenwood Hektoen said that if the Board
determines an error was made, then the Board can stand in the shoes of the Building Official and
make whatever decision they believe should have been made, whether it is granting a building
permit but adding considerations they feel are required by the code or denying the permit
outright.
Sheerin said that it is clear that the requirement for a site management plan was not required at
the time the special exception was granted. She asked if there was anything that could guide the
Board in establishing if it should be applied retroactively. Greenwood Hektoen said that the City
Attorney's interpretation is that the requirement should not be retroactively applied because it is
something that is required at the time an application for a special exception is submitted.
Greenwood Hektoen said there is nothing in the language that makes it retroactive. Greenwood
Hektoen explained that the parking requirements had also changed since the special exception
had been granted, and that these changes, unlike the site management plan, would be applied to
the Shelter House. The reason for the difference, Greenwood Hektoen explained, was that the
parking requirements are something that are enforced at the time that the site plan is submitted,
whereas, as previously noted, the site management plan would be submitted at the time the
special exception is applied for.
Thornton asked for clarification surrounding the issue of whether or not the special exception
had expired. Walz explained that an applicant is given six months from the date the special
exception is filed to take steps to "establish the use." In this case, Shelter House was granted a
special exception in August 2004, and requested an extension in the February 2005 Board of
Adjustment meeting. That extension was worded so that it gave Shelter House six months from
the date that litigation, which had been impeding their progress, came to an end. Walz said she
believed that this set the expiration date for the extension as October 9, 2008, by which time
Shelter House was to have taken action to establish the use. Walz noted that it is the Building
Official who makes the determination as to whether or not appropriate steps are taken, and that it
would be appropriate to direct questions to him regarding that issue. Walz said that during this
time site plans and updates were going back and forth between Shelter House and Staff, and that
ultimately the building permit was not issued until late November 2008.
Greenwood Hektoen added that the standard practice has been that the actions that Shelter House
did take have been in the past considered sufficient to establish use; the code does not require
that a building permit actually be granted prior to the expiration date of the special exception.
Hora asked about the boundary dispute between the Dahlens and Shelter House. He said he
understands that it is a private matter, but asked how that private issue affects the 30-foot setback
issue required by the special exception. Hora asked if the matter was resolved in the Dahlens
favor if it would result in pushing everything on the site farther away from the boundary, thereby
nullifying the current site plans. Walz explained that the 30-foot issue came up in the original
decision because it was cited as a finding of fact that the proposed 30-foot setback would provide
the space needed to separate the two uses. Walz said that the 30-foot setback was not imposed
Iowa City Board of Adjustment
January 14, 2009
Page 8
by the Board as a specific requirement. Walz asked the Building Official, Doug Boothroy, if he
would explain how the building department handles boundary disputes and their affect on the
issuance of building permits.
Doug Boothroy, Director of Housing Inspection Services and Building Official for the City of
Iowa City, asked Hora to restate his question. Hora asked if the land boundaries were different
than what the site plan says and a 30-foot off -set for water easement is required, then how would
the overall site plan be affected. Boothroy explained that in a boundary dispute, the building
department requires the complainant to file something with the court or have the boundary
claims certified and documented in some way; verification is required that the dispute is valid.
Boothroy said that this is a case of adverse possession, and the building department has not been
provided with any kind of documentation that there has been a claim. Boothroy said that until
there is some evidence that a claim has been made he is not sure it should be part of the
consideration.
Sheerin summarized that the burden is on the applicant to show that they own the property; once
that is done, the burden is on any claimant to verify that they have a claim to the property.
Boothroy affirmed this to be correct. Sheerin asked if it is correct that at this point the applicant
has shown that they own the property and the building department has no other indication that
there is a legal claim or pending litigation regarding ownership. Boothroy said that this was
correct. He added that if during this process, prior to the issuance of a certificate of occupancy, a
claim is verified or litigated and impacts compliance with the code, that could be a problem for
the applicant. He noted that this is a risk the applicant would be taking in proceeding prior to a
boundary dispute being resolved. Boothroy said that this does not come up very often.
Greenwood Hektoen asked Boothroy to speak to what the code requires for a rear -yard setback;
she asked if it was not the case that the 30-foot setback discussed in the appeal is superfluous to
code requirements. Walz stated that the special exception originally passed was worded as
follows: " ...the Board approves EXC04-00016 an application submitted by Shelter House for a
special exception to permit transient housing in the Intensive Commercial (CI-1) zone located at
429 Southgate Avenue subject to general compliance with the submitted site plan including a
landscape buffer being provided along the east property line, an 8-foot tall privacy fence being
provided along the south property line, and compliance with the exterior stairwell guides." At
that time, the site plan showed a 30-foot rear setback, but a requirement for a 30-foot setback
was not imposed upon the applicant by the Board.
Wood asked how problems regarding adverse possession generally get resolved. Boothroy said
they are typically resolved through the courts; the City has no authority to resolve such disputes.
Thornton asked if the manner in which the expiration date and extension of the special exception
were handled was standard. Boothroy said if Thornton's question was whether the amount of
effort made by Shelter House to get their plans approved and the process that they followed was
typical, then the answer is yes. Boothroy said there is some judgment involved in answering the
question of whether Shelter House has shown due diligence and follow through, and whether the
efforts were substantial enough to constitute taking action to establish a use. Boothroy said the
Iowa City Board of Adjustment
January 14, 2009
Page 9
question is in part whether the Board believes his judgment was made in error: that the sum of
the Shelter House's efforts was not actually enough to establish the use. Boothroy said that there
have been instances in the past where the application for a building permit has not been enough
to establish a use, because no other efforts were made. In this case, Boothroy said, a lot of work
on both sides (the City and the Shelter House) can be demonstrated in exchanges of information
and negotiations to get the site plan ready to go before the Planning and Zoning Commission.
Sheerin said having the information that the application for a building permit is not in and of
itself enough to establish use was very helpful. Hora asked if there had been applicants in the
past who have gone through the level of work the Shelter House has and not followed through
and applied for a building permit. Boothroy said that every case is unique, but at this point in
time he cannot think of a situation like that.
Wood asked what the procedure was for letting an applicant know that the six months they were
given by the Board of Adjustment is about to expire. Boothroy said that it seldom happens that
there has been little or no communication between the building department and the applicant at
that point, but if that were to occur, they would have to reapply to the Board of Adjustment.
Greenwood Hektoen clarified that in the case of the Shelter House, the expiration of the initial
Board decision is not being discussed; the appellant's claim that the extension that was granted
by the Board after the original six months expired also expired prior to the issuance of the
building permit, and therefore was no longer valid.
Sheerin asked if there was no requirement that the site plan be made available to the appellants in
this instance. Boothroy said that it is a public document, and as such is readily available to
anyone wishing to see it. Greenwood Hektoen stated that the only applicable notice
requirements were the sign postings. Boothroy said the primary purpose of the signs is to give
notice to the applicant.
Wood invited the public to address the Board. He reminded the public that the issue before the
Board is an appeal, and the Board's concern is whether the Building Official was in error when
he issued the building permit to Shelter House. Wood requested that discussion focus on that.
Gregg Geerdes, 105 Iowa Ave, #234, is an attorney representing the Appellants in this matter.
Geerdes said he wanted to emphasize what he and his clients consider the role of the Board,
which is one of being a judge and a buffer between the Staff and the Appellants and the
Applicant and the Appellants. Geerdes said it was the Board's job to review the facts, the case
and the law and to make a decision. He said he wished to note that the information the Board
was given regarding the standard of review is incorrect in his opinion. Geerdes advised Board
members to read the city ordinances on their own and draw their own conclusions about what
they mean, and what the Board's intended role is.
Geerdes said the Board was told that taking steps to establish use was sufficient to avoid the
automatic expiration six months after the special exception was granted. Geerdes encouraged
Board members to read section 14-8C-1e of the city's ordinance which states: "unless the
applicant shall have taken action within the six month period to establish the use or construct the
building permitted under the term of the Board's decision, such as obtaining a building permit
Iowa City Board of Adjustment
January 14, 2009
Page 10
and proceeding to completion under the terms of the permit ..." Geerdes said the ordinance is
very specific about what steps need to be done. Geerdes argued that obtaining the permit and
commencing construction was not even close to being done prior to the expiration of the special
exception. The building permit was not even applied for until late August or early September.
Geerdes concluded that the appropriate steps were not taken to establish use according to the
requirements of the city ordinance. Geerdes offered this interpretation as a good example of why
Board members should be reviewing the ordinances for their own purposes rather than relying on
the interpretation of others.
Geerdes noted that a survey showing the boundary lines of the appellant's property and the
applicant's property was attached to a copy of a letter he had provided to the Board and asked to
be entered into the record. The survey, Geerdes said, was performed by a surveyor hired by
Shelter House. The survey shows that there are at least two, if not three, mobile homes that are
on property which Shelter house proposes to develop. Geerdes said there are lawsuits on file to
establish ownership and the City Attorney's office is well aware of that. The survey, Geerdes
said, clearly shows the legitimacy of the Dahlen's claims to ownership, as the mobile homes
have been in the same spot for decades. The ownership issue presents a problem for the setback
situation, as it makes it impossible for Shelter House to comply with the setback requirements.
Geerdes said it is his position that the Board should not make a decision to approve until the
unresolved boundary issue has been settled in court.
Geerdes said he would next like to address the issue of the site management plan. He said that
Staff has offered the interpretation that a site management plan is unnecessary because it was not
required in 2004. Geerdes again cautioned Board members to review the ordinances themselves,
particularly 14-4E-4e-5, which specifically states that when a site plan is presented it is to be
determined at that point in time whether zoning requirements and other requirements of the code
have been complied with. Geerdes said that a shelter management plan is not submitted with a
special exception application; it is submitted when the site plan is submitted. Geerdes said that
because the shelter management plan was a requirement in effect at the time the site plan was
considered, it must be required.
Parking issues remain unresolved, said Geerdes. The appellants do not believe that the number
or type of parking spaces shown on the plat are correct. Geerdes said that they do not believe
that parking in the interior of a garage that is used to store Shelter House vans should qualify as
parking spaces for visitors or employees.
Geerdes said he wished to address the issue of whether or not the appellants needed to be
provided with a copy of the site plan. Geerdes said that he and his clients were provided a copy
of a site plan; the site plan did not meet the requirements and so they objected to it. At
approximately 6:00 p.m. on the night of the formal Planning and Zoning Commission meeting a
revised site plan was submitted to Staff and the Commission, but not to the appellate for their
review. Geerdes said that he and his clients believe that they were entitled to notice of that site
plan change, and were not properly provided with an updated copy. Wood asked what the date
Iowa City Board of Adjustment
January 14, 2009
Page 11
of that meeting was. Geerdes said that he did not know off the top of his head, but that the
information is included in the materials he distributed to the Board.
In looking at all of these matters and interpreting the ordinances on their own, Geerdes said, the
Board will have to agree that the building permit should not have been granted. Geerdes said
that the expiration of the special exception itself is reason enough for denying the permit and the
boundary issue is another problem. Geerdes asked that board members carefully consider all of
these points and grant the appeal before them.
Sheerin asked why Geerdes did not feel that the parking spaces in the garage should be
considered parking spaces. Parking spaces are designed for employees and visitors and
customers who come to a building, Geerdes said. When you have an interior garage space that
will permanently be dedicated to storing Shelter House vans, Geerdes said, it does not serve the
purpose of a parking space. Sheerin asked if the concern was that the parking spaces will be
occupied by vans or that he is concerned because it is in an interior space. Geerdes said the
garage will be used for other purposes and will not be realistic parking for anyone wishing to use
the shelter.
Sheerin stated that Geerdes had also argued that 20 employees should be used when determining
the number of parking spaces Shelter House should have. At the Planning and Zoning
Commission meeting, Geerdes said, the information provided by Shelter House was that as many
as 20 employees would be at the facility at one time. The number currently given by Shelter
House is a maximum of 14 employees at any one time. Wood asked if the figure was based on
the total number of employees. Greenwood Hektoen said that the parking is based on the
maximum number of employees that would be on site at any given time, not the total number of
employees on payroll.
Sheerin asked for clarification as to whether lawsuits had or had not been filed regarding the
boundary issue. Geerdes said that lawsuits have been filed in Johnson County and in federal
court. Geerdes said that the City Attorney could provide the documentation of that lawsuit to the
Board. Thornton asked why that information had not been shared already if the City has such
information. Greenwood Hektoen said that to her knowledge there is litigation ongoing but that
it is not specifically concerning title to the land, and is about other issues. Sheerin asked if it
would be possible for the Board to get access to those filings. Geerdes said he could provide it to
the Board, and that he could assure the Board that the issue of ownership of the land is very
much a part of the lawsuit. Wood asked how long the mobile homes had been occupying the
land in question. Geerdes replied that it had been decades, realistically, since sometime in the
late 1950's or early 1960's.
Lori Dahlen, 2018 Waterfront Drive, identified herself as a manager at the Hilltop Mobile Home
Park. She said that the number of parking spaces had not been adequately resolved to her
thinking. She said that there was no space allowed for visitors in the current calculations.
Walz explained that the minimum parking requirements ensure that a site provides a certain
minimal amount of parking. This formula for determining the minimum requirement is based, in
Iowa City Board of Adjustment
January 14, 2009
Page 12
part, on the maximum number of staff that will be on -site at any given time (14 in this case). The
minimum parking requirements do not restrict parking to those specific uses (staff, visitors, etc.),
rather it is the minimum that must be provided. Walz said that if the Board of Adjustment had
sought to, they could have imposed additional parking requirements above and beyond the
minimum. However, in this case, the Board did not. Walz explained that spaces inside of
parking garages do count toward the minimum, saying that what they are actually used for does
not matter as long as they function as parking spaces. Walz said that in earlier versions of the site
plan, Shelter House had in fact not provided the number of spaces required, apparently due to the
misreading of a regulation by one of their consulting engineers. However, when the error was
pointed out to Shelter House they did revise the plan to meet the 21-space requirement.
Dahlen said that even if the site management plan is not technically required at this time, though
she believes that Geerdes has demonstrated that it is, the plan is definitely needed. The site
management plan addresses such issues as littering, noise levels, loitering, and getting along with
neighbors. Dahlen said that she and her family have gone a long distance on this journey
because they believe that this is not an appropriate place for this facility. Dahlen said she would
think the Shelter House would want to create a site management plan to alleviate the concerns of
the neighbors and foster dialogue. Dahlen said that when she attended the very first Board of
Adjustment meeting on this issue in 2004, she picked up a hand-out entitled "Shelter House
Rules for Guardians of Dependents." She said that while she was not particularly surprised by
the content of the handout, she was convinced more than ever that Shelter House did not belong
in their neighborhood. She read from the pamphlet:
"Shelter House may have occasions in which clients of Shelter House may be on a state
sex -offender's list. It is the guardian's responsibility to provide care and supervision for
the well-being and safety of their dependent. Do not assume that anyone you meet while
at Shelter House is not on a state sex -offender list."
Dahlen said that she understands that if a person is on the state sex -offender list, they cannot
reside at Shelter House. However, sex -offenders can still receive services and leave. Dahlen
asked how this might affect the neighborhood. She said it is a very practical matter to have a
plan for what you do with someone whom you service and then must turn away. Will they be
denied shelter and then be simply left in the neighborhood? Dahlen said that these sorts of things
could be addressed in a shelter management plan.
Walz clarified that it is Staff s interpretation that they cannot retroactively impose something that
was meant to be evaluated by the Board of Adjustment. The criterion in the current code
referred to by Geerdes says: "site plan and shelter management plan must be submitted along
with the application for a special exception or if allowed for a provisional use ..." Walz
explained that this use is not a provisional use; a provisional use is a use that has to meet all of
those criteria but is reviewed only administratively. Provisional uses are reviewed by Staff only;
special exceptions must be reviewed by the Board of Adjustment.
Joyce Barker, 2018 Waterfront Drive, #128, pointed out that the reason the parking is such an
issue is because there is no parking on Southgate whatsoever, and Waterfront is very problematic
Iowa City Board of Adjustment
January 14, 2009
Page 13
for parking as well (residents have requested that it be designated a no parking zone). Barker
said that visibility and safety are major concerns with this issue.
Craig Dahlen, 2018 Waterfront Drive, identified himself as a manager at Hilltop Mobile Home
Park. He said that all he has been hearing for the last year is how the Shelter House wants to be
good neighbors. Dahlen said he thinks that is great. However, he believes that having a shelter
management plan is the best way to start the process of being a good neighbor. Dahlen said that
there are nearly 90 children in the park, a lot of children riding buses, a lot of children in the
daycare/preschool around the corner at HACAP. Dahlen noted that there is no bus service on the
weekends, and wondered what the plan was for transportation. Dahlen worried about how the
area would be policed to ensure that families and kids were safe. He restated that the shelter
management plan was huge in answering these questions.
Janet Dahlen, 2018 Waterfront Drive, read from the general standards for a special exception:
"The specific proposed exception will not be detrimental to or endanger the public health,
safety, comfort or general welfare. The specific proposed exception will not be injurious
to the use and enjoyment of other property in the immediate vicinity, will not
substantially diminish or impair property values in the neighborhood."
Dahlen said she is not a person that likes to go against the City, or likes to fight about anything.
She said that she would not be there if the matter were not very important to her. Dahlen said
that one of the residents in her trailer park had received a letter from Dorothy Person,
chairperson of the Shelter House board, in response to a letter the resident had written. Dahlen
read the final paragraph of Person's letter to the Board:
"Even though a registered sex offender cannot be a resident of Shelter House, he or she
may be permitted to utilize the facilities for drop -in center and outreach purposes. Such
individuals may access the shower and laundry facility, eat dinner, receive phone
messages and mail, and work with the outreach staff. Their access to and use of the
facility is with the knowledge of and under the supervision of Shelter House staff. As a
practical matter, individuals who are on a registry of sex offenders are not physically
present at the facility any longer than if they were shopping at the grocery store or
applying for food stamps at the Department of Human Services. It is imperative to
clarify that registered sex offenders rarely use the Shelter House support services."
Dahlen said she would be happy to help search for and secure other land for this project, and
would double the money that was paid for that lot in order to stop this project. She said there is
not anything they would not do. She said there are many children in her trailer park and there is
a large daycare across the street and she worries about what would be on the mind of a sex
offender in that area, even if they were only at the Shelter House very briefly. She was very
concerned about the safety of children in her neighborhood.
Iowa City Board of Adjustment
January 14, 2009
Page 14
Wood reiterated that the charge of the Board of Adjustment in this matter is to determine if the
Building Official was in error when he issued Shelter House a building permit, and that the
Board's focus was very narrowly centered on that issue.
There were no others wishing to speak in favor of the appeal so Wood opened the floor to those
against the appeal.
Tim Krumm, 4186 Prairie Meadow Court NE, an attorney with Meardon, Sueppel and Downer
spoke on behalf of Shelter House. He offered his appreciation to the Board for the considerable
work they had done on this issue. He said that he believed all legitimate concerns had been
addressed thoroughly by Staff in the staff report and supporting materials. Krumm said that for
any questions he cannot answer, Christine Cangenelli, Director of Shelter House, and Tom
Werderitsch, a member of the Shelter House board and construction manager for the project
were present.
Krumm said he felt it was fitting that the issue was back before the Board of Adjustment in what
he hoped was a milestone activity in terms of making the shelter a reality for the city. The Board
of Adjustment is where the matter began, Krumm said, noting that none of the present members
of the Board were on the Board in July 2004 when the matter first began. Krumm said that the
Shelter House and been in litigation for this project for many years, ending in the Iowa Supreme
Court last April. Krumm said he concurred with Staff analysis of the matter.
Krumm said that Geerdes had requested a delay from the Board, but he urged the Board to issue
a prompt decision because the Shelter House has been waiting since July 2004. Krumm said that
Shelter House does not believe the Board's approval will mean the end of the litigation road, but
at least this important milestone would be passed.
The first issue is the question of the shelter management plan. Krumm said that Staff had fully
addressed this question. The requirement for a shelter management plan is a requirement for a
special exception, not for site plan approval or the issuance of a building permit. The code is
quite clear on this, Krumm said. Krumm said that Shelter House is anxious to be good
neighbors, but the shelter management plan should not be a precondition of that. Krumm said
that with all due respect the Dahlens do not want a shelter management plan; they want to stop
the shelter.
Krumm said that the parking space issue was a simple question of math. 21 spaces are required;
one for each employee who will be at the facility at a given time, which is 14, not 20. Krumm
said that 20 is the total number of Shelter House employees. The code requires .01 spaces per
resident; a maximum of 70 residents will be at Shelter House, adding 14 more spaces to the
requirement for a total requirement of 21. The code is clear in all respects regarding the parking.
Krumm took issue with the boundary line dispute. The discovery of the encroachment onto
Shelter House property was a surprise that came about during the site plan process. The issue is
whether that encroachment and boundary issue has anything to do with the issuance of a building
permit. Krumm said the 30-foot setback issue is a city drainage way in which the Shelter House
Iowa City Board of Adjustment
January 14, 2009
Page 15
has never had any intention of building. Krumm said that it is not the goal of Shelter House to
move those mobile homes; he said that the homes do not impact Shelter House's plans at all
other than the location of a fence. Krumm said that if these legal issues could be resolved
Shelter House would be more than willing to grant a perpetual easement to the Dahlens. Krumm
said that the Dahlens are using their encroachment on the property as a delay tactic. Krumm said
that Geerdes' assertion that there are lawsuits on file to establish the issue of ownership of this
property is simply not true. There are lawsuits on file, and they do mention a boundary dispute,
Krumm said, but they have not asked any state or federal court to change the boundary line.
Krumm said that Geerdes and his client take issue because they were not provided with a copy of
the final site plan submitted to the Planning and Zoning Commission. Krumm said it is not at all
unusual for Staff and applicants to continue discussions and revisions to site plans up until the
time of the meeting. He said there is no neighbor notification requirement whatsoever, and that
the process is a public one. The site plan in question was projected on the wall of the Planning
and Zoning Commission meeting and the Dahlens were present. There were no surprises,
Krumm said.
Krumm said that in regard to the issue of whether or not the special exception had expired, Staff
and Boothroy have detailed the level of activity that Shelter House took during that six month
time period. The requirement is that there be activity toward establishing a use, and the level of
activity was sufficient to establishing that use when measured by past City practice and Iowa
law. While this is ultimately a judgment call on the part of the Building Official, Krumm said, it
is not as though Shelter House had demonstrated some indifference. The context of the matter is
that Shelter House has been waiting for over four years to build. Even if Shelter House had had
site plans ready and waiting for the moment the Supreme Court ruled, Krumm said, the site plans
may not have met final approval within six months due to the extensive back and forth with the
City that goes on in the process. The purpose of the six month expiration rule is to penalize
those who are indifferent to the approval that has been granted.
Krumm offered to answer any questions the Board had.
Wood asked about the October 16th petition for a site plan review that had been submitted by the
neighbors. Krumm said that this petition was actually a petition asking that the Planning and
Zoning Commission complete the site plan approval process as opposed to City Staff, which is
the usual process.
Wood asked if the site plan was public record. Walz said that it is. She noted that around that
time she had discovered that the parking requirement was not met, informed Shelter House of
this, and Shelter House changed the site plan to comply with parking requirements by the time of
the Planning and Zoning Commission meeting. Krumm said that there had been an issue at the
time the special exception was granted as to whether 18 or 22 spaces were required. In the
interim, the code had changed, so a change to the site plan was necessary.
Thornton asked if Krumm was saying that a previous version of the site plan had been provided
to the neighbors. Krumm said that he did not believe so as there is nothing in the code requiring
Iowa City Board of Adjustment
January 14, 2009
Page 16
that. Walz said that Staff will provide a site plan that is under consideration to anyone requesting
it, as it is part of the public record; however, they are not required provide it to anyone without a
request.
Hora asked if there was a timeline by which a site plan had to be in to Planning and Zoning so
that the public has time to review it. Walz said that typically a site plan would not even go to
Planning and Zoning. In this case, it went to Planning and Zoning because of the petition filed
by the neighbors. Hora asked if the site plan can be changed right up to the final minute without
the public having a chance to review it prior to the meeting. Walz said that that was correct, and
that this is also the case with the Board of Adjustment. Greenwood Hektoen stated that it was
important to understand that typically approving a site plan is an administrative process, so there
is no set time for public comment. Krumm added that the practice of allowing the give and take
between the applicant and Staff right up to the point of the minute actually works to the benefit
of the City, as it helps to get projects up to City code the first time around. Hora said he was
simply trying to establish if there was a process in place for the public to see these documents
before the time of the meeting so that they are not trying to formulate their objections in the
middle of a meeting from a projection on the wall.
Wood asked if there was anyone else opposing the appeal who wished to speak.
Tom Werderitsch, 3 Evergreen Place, said that he is a member of the Shelter House Board of
Directors and is donating his services to the project as construction manager. He said he wished
to speak to the 30-foot issue. Werderitsch said that the 30-feet is a city drainage easement; there
is no backyard setback. He said that if it was not for the drainage that comes down from the
mobile home court and the property to the east, Shelter House could build up to the property line.
Werderitsch said that even if a court ruled that the Dahlens were the owners of the five or six feet
of property in question, the location of Shelter House would not move. The only thing that
would be affected would be the location of a fence which they are planning to put as close to the
property line as possible.
Walz reiterated that the 30-foot setback issue came up as a finding of fact, and was not required
by the Board as a condition of the special exception. The Board did contemplate that some
setback was appropriate, realizing that the 30-foot easement was there and would provide a
buffer.
There was no one else who wished to speak against the appeal and Wood invited those in favor
of the appeal to respond to comments.
Joyce Barker, 2018 Waterfront Drive, #128, said that Krumm had said it is not Shelter House's
intention to have any of those trailers encroaching on the property line moved. Barker said that
one of the residents received a letter from Shelter House in October 2008 stating that she had to
move her mobile home by December 1, 2008. Barker said that this makes her suspect the
validity of some of the other things said by Shelter House and its representatives, as there is a
direct contradiction between what was said in this meeting and actions taken prior to it.
Iowa City Board of Adjustment
January 14, 2009
Page 17
Geerdes said that he too received a letter from Krumm directing the Dahlens to move those
mobile homes, which of course resulted in the lawsuit in which the issue of ownership will be
determined. In regard to the issue of the 30-foot setback, Geerdes read from the July 14, 2004
decision from the Board of Adjustment:
"This Board finds that the 30-foot setback from the south property line and an eight -foot
tall privacy fence will provide a transition from the proposed two-story Shelter House to
the one-story manufactured housing units located to the south."
The decision goes on to say that the special exception is conditioned upon "general compliance
with the submitted site plan." Geerdes noted that the submitted site plan showed a 30-foot
setback. The idea that the setbacks are not an issue is simply wrong. Geerdes said that if he
understood Krumm correctly then he is basically conceding that those mobile homes have been
there a long time and that the Dahlens may prevail in court. What that does, Geerdes said, is
eviscerate the site plan; a site plan which Shelter House is required to comply with. Geerdes said
this is why the adverse possession claims cannot simply be ignored.
For all of these reasons, Geerdes said, he is requesting that the Board overturn the decision of the
Building Official and revoke the building permit.
Mike Barker, 2018 Waterfront Drive, #128, said he was going to ask for a little bit of leeway
because his comments did not directly pertain to the building permit. Since 2004, Barker said,
the argument has not been so much if the Shelter House should be built, but more a matter of
getting some questions answered. Barker said he had lived in the mobile home court for 25
years, and that there are over 150 kids in the trailer court. Barker asked what would become of
the sex offenders and alcoholics who were turned away from Shelter House.
Wood stated that this is beyond the jurisdiction of the Board.
Barker replied that that is why he requested leeway at the outset. He said that his concern was
not the boundary lines but what becomes of those who are turned away from the shelter into his
neighborhood. He said that he believed it was time to stop all of this nonsense and sit down and
figure out what is best for everyone.
There were no further comments from those supporting the appeal and Wood invited response
from those opposed to the appeal.
Chrissy Canganelli, resident of the east side of Iowa City and Executive Director of Shelter
House, said that she wants the public record to show that Shelter House has served this
community for 25 years, has demonstrated that it is a good and responsible neighbor, and has
acted proactively in its neighborhood. Canganelli said she agreed with Barker that everyone's
time could be best spent in other pursuits, and she is very interested in sitting down with the
neighbors, engaging in conversation and working together. She said this is impossible to do,
however, when lawsuit after lawsuit is being filed against the City and Shelter House.
Canganelli said that if these lawsuits were to go away tomorrow, Shelter House would
immediately contact its neighbors and say "let's sit down and talk and get things worked out."
Iowa City Board of Adjustment
January 14, 2009
Page 18
Canganelli said she is concerned that Shelter House is being held to a different standard than
other organizations in the community that serve the poor, the disabled and homeless veterans.
She is also concerned that there is a lack of understanding that well -over 100 children are served
by Shelter House every year. Shelter House works very closely with HACAP and MECCA; the
people receiving services from Shelter House often are the same people receiving services from
HACAP.
There were no further comments and the public hearing was closed.
Walz advised the Board to ask for any information/documentation they might need, and to take
whatever time they needed to make a decision. Greenwood Hektoen said that she agreed and
that the Board did not necessarily need to make a decision that night. She said that if a decision
was made, then it would be important to clearly state the findings of fact and the basis for the
Board's conclusions.
Thornton suggested deferring the matter and having a work session to discuss the issue fully. He
said there were a lot of issues and very good comments that were made by both sides. Walz
explained that a work session would be a public meeting, but the time for public comment would
be closed.
Wood asked if there were others who felt the need for a work session. Hora and Sheerin
indicated that they would.
Thornton moved to defer the matter and call a special work session at another time.
Sheerin seconded.
A vote was taken and the motion carried 4-1 (Eckstein opposed).
After some discussion, a tentative date of January 201h at 5:00 p.m. was set for the work session,
with board members agreeing to notify Walz if they discovered they had a conflict.
Walz compiled a list of additional documentation that board members had indicated an interest in
seeing which included information on lawsuits that have been filed and the letters referenced in
the public hearing. Walz reminded board members that they should not talk to one another,
Staff, or any member of the public about this matter prior to the meeting.
ELECTION OF OFFICERS:
Wood opened the floor for nominations for Chairperson.
Sheerin nominated Wood for Chair.
Hora seconded the nomination.
Iowa City Board of Adjustment
January 14, 2009
Page 19
A vote was taken and the motion passed 5-0.
Hora nominated Thornton for Vice -Chair.
Wood seconded.
A vote was taken and the motion passed 5-0.
OTHER:
Hora asked how to bring about change to the zoning coe. He noted that their charge stated that
they could bring about changes to ordinances and he wanted to know the process for doing that.
Walz said that the Board can make a motion for the Planning and Zoning Commission (or other
appropriate authority) to consider investigating an issue. Walz and Greenwood Hektoen said
they would look into the exact process and get back to Hora.
BOARD OF ADJUSTMENT INFORMATION:
None.
ADJOURNMENT:
Hora motioned to adjourn.
Thornton seconded.
The motion carried 5-0, and the meeting was adjourned at 7:32 p.m.
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MINUTES
IOWA CITY BOARD OF ADJUSTMENT
JANUARY 20, 2009 — 5:00 PM
EMMA J. HARVAT HALL
Members Present: Terry Hora, Caroline Sheerin, Edgar Thornton, Ned Wood, Barbara Eckstein
Members Excused: None
Staff Present: Sarah Walz, Sarah Greenwood Hektoen
Others Present: Greg Geerdes, Tim Krumm, other unidentified members of the pubic.
RECOMMENDATIONS TO CITY COUNCIL:
None.
CALL TO ORDER:
The meeting was called to order by Chairperson Ned Wood at 5:00 p.m.
ROLL CALL: Hora, Sheerin, Thornton, Wood and Eckstein were present.
APPEALS
APL08-00001: An application submitted by Michael and Jan Dahlen appealing a decision by the
Building Official to grant a building permit to Shelter House for property located in the CI-1 zone
at 429 Southgate.
Wood explained that this was a continuation of the consideration from the January 14, 2009 meeting,
during which the public hearing for this case was closed. He stated that the public hearing would not be
reopened tonight, and that the board was to discuss the appeal and hopefully reach a conclusion.
Walz announced that she had distributed information provided by the Appellant on January 20`h. This
information covered pending litigation related to Shelter House and was similar to information that the
City Attorney had mailed to the board at their request.
Wood disclosed that he is a teacher at West High and had realized after the previous meeting that the
attorney for the Shelter House is a member of the Iowa City School Board. He stated that he did not feel
this would impact his ability to reach a fair judgment.
Iowa City Board of Adjustment
January 20, 2009
Page 2
Wood also disclosed that he had been contacted by Sheerin regarding a message she had received from a
reporter who wanted to know the date of the board work session. Sheerin had called Wood to confirm
that she could provide this information to the reporter. Sheerin indicated that she would have referred
the reporter to staff, but the call came in during the Martin Luther King, Jr., holiday when City offices
were closed.
Greenwood-Hektoen stated that she had mailed information that the board had requested regarding
current litigation involving the Shelter House. Sheerin reported that she did not receive the mailing.
Walz provided Sheerin with a copy. Thornton reported that he had not received a copy. Greenwood-
Hektoen said it was basically a duplication of the information submitted by Gregg Geerdes. Walz
offered to make additional copies. The board indicated that none were needed.
Greenwood-Hektoen explained that the motion should be made in the affirmative to uphold the appeal.
Sheerin asked for some clarification of the steps that could be taken, if the appeal was upheld and a
separate motion was made to rectify the situation. Greenwood-Hektoen explained that this could happen
in two steps as described by Sheerin.
Sheerin moved to uphold the appeal APL08-00001: that a decision made by the Building Official
to issue a building permit to Shelter House was in error.
Hora seconded.
Sheerin asked for clarification of the standard of review. She wanted to make sure that the board was in
agreement that its job was to determine whether there had been an error made by the Building Official.
The board members indicated their agreement.
Wood directed the members to consider the first issue, as to whether a shelter management plan was
required.
Eckstein first asked for an explanation of the term "colorable claim of title" used by the City Attorney in
her mailing to the board regarding pending litigation. Greenwood-Hektoen explained that the term was
used by First Assistant City Attorney Sarah Holecek and it meant that the City's interpretation was that
the litigation filed presumes that the Appellants have title to the land; it does not seek to establish title.
Sheerin said that the current zoning code states that the shelter management plan "should be submitted
along with the application for the special exception." That language was not included in the code until
2005, one year after the application was approved. She stated that this seemed to make it clear that
Shelter House was not required to provide a management plan at this time.
Hora stated that the shelter management plan does not need to be submitted. He stated that he based his
interpretation on the language in the code and the fact that the special exception was still in effect at the
time the building permit was applied for. He indicated that only if the board determined that the special
exception had expired would the current requirement apply. The board cannot go backward in time to
impose the requirement.
Iowa City Board of Adjustment
January 20, 2009
Page 3
Thornton concurred with the previous statements. From his review of the material and testimony at the
previous hearing, he concluded that the requirement for the management plan was not in effect at the
time the special exception was granted.
Eckstein stated that it is clear that the 2004 ordinance was in place when the Shelter House submitted its
application.
Wood agreed. He stated that the special exception was granted in 2004 and at that time there was no
requirement for a shelter management plan.
Wood directed the board to the second point, which was whether the parking requirements had been
met.
Hora stated that he believed that Shelter House and the City followed the requirements of the parking
ordinance. The zoning code does not differentiate between indoor and outdoor parking. The code does
not contain language determining how the parking is used or by whom. The code only sets the number
of spaces required. Twenty-one stalls are required and twenty-one are provided on the site plan.
Sheerin agreed that the formula was followed correctly. Shelter House has indicated that 14 was the
maximum number of employees at the site at one time and that is what the code provides for. The code
does not consider the total number of employees of the organization to determine required parking. She
found no language in the code or elsewhere in the record stating that parking provided inside a garage
should not be considered as contributing to the required parking.
Eckstein agreed, stating there was not language in the code restricting indoor parking. Thornton
concurred that based on the information in writing and testimony, the correct formula was used. Wood
stated that the parking calculation followed the formula and is based on the maximum number of
employees at the site at one time, which is 14. There is nothing in the code that indicates that interior
parking should not count toward required parking. The building official followed the formula and
requirements appropriately.
Wood stated that the next issue was whether the site plan should have been submitted to or approved by
the Appellants.
Sheerin stated the ordinance provides that "within 24 hours of submitting an application for major site
plan approval, the Applicant shall post notice of intent to develop the site. The notice to be posted shall
be provided by the City as directed by the City." That is 18-2-1C. She saw no language requiring the
plan to be submitted to the neighbors, only notice of intent to develop the site. The record indicates that
the required notice was properly given. She stated that it is not an issue that a new site plan was
submitted on the night of the review by the Planning and Zoning Commission, as the ordinance does not
perceive that as an issue. Hora agreed.
Thornton also agreed that the ordinance was clear on the issue of notice and posting, and that the City
and Shelter House provided notice as required by the ordinance.
Eckstein agreed that the property was properly posted and that the ordinance does not require that the
site plan be submitted to the neighbors.
Iowa City Board of Adjustment
January 20, 2009
Page 4
Wood agreed that the site plan was submitted October 1, and the site was posted on October 2. There
were revisions to the original site plan, but there is nothing that requires revisions to be communicated to
the Appellants.
Wood directed the board to the issue of the boundary dispute.
Hora asked for clarification on the water drainage easement shown on the site plan submitted with the
staff report. Hora stated that it was his understanding that such an easement is a permanent requirement
that stays with the land regardless of who owns the property. Greenwood-Hektoen agreed and clarified
that it is an easement for the benefit of the City.
Sheerin stated that her concern was that the Building Official had indicated that if there was litigation on
file disputing ownership, this would be a reason to hold up the permit. The attorney for the Appellants
had stated that there was litigation on file, arguing that they own the property. However, the new
information submitted regarding the litigation shows that the court is not being asked to make a
determination of ownership. Sheerin asked the City Attorney for clarification.
Greenwood-Hektoen explained that the ongoing litigation presumes that the Appellants have property
interests in the area of encroachment, but it does not seek to establish title. She stated that when the
Building Official spoke at the hearing, he was referring to litigation that seeks to establish title. She
stated that it is the City Attorney's opinion that anything short of an injunction would not allow the
Building Official to delay the permit, because the code does not require a title opinion or anything rising
to that level of proof as to who owns the land. At the time the site plan is submitted for approval, the
Applicant must provide the names and addresses of the owner of record of the property, the Applicant,
the persons preparing the site plan, and the names and addresses of the Applicant's attorneys. That is all
that is required to establish who is responsible for the land. The application was provided, and the City
Attorney's Office believes that this meets the requirement. It is the opinion of the City Attorney's Office
that the pending litigation should not impede the issuance of the permit. The Applicant has a
constitutional right to due process. Just because a third party claims title to the land is not enough, in the
City Attorney's opinion, and only an injunction would rise to a level that would justify denying the
permit.
Thornton stated that the Building Official is not required to be aware of the dispute over the ownership
at the time he issues the permit.
Hora stated that determining ownership is not an issue for the City. The 30-foot easement on the
property will not go away, regardless of ownership. Hora's only concern was the placement of the 8-foot
privacy fence within the easement, but believed that the City would deal with this.
Eckstein agreed that the Building Official came to a reasonable judgment, and referred to the context of
two pieces of information she heard in the public hearing, which she would comment on. Her first
comment was that she heard that two of the homes encroach on the property. The Appellants' attorney
had indicated that this was some kind of proof of ownership. Eckstein stated that she is aware of
situations where people were occupying property for many decades, but it turned out that did not give
them title to the land. She stated that over time things change on property, but that does not necessarily
determine title. The other issue has to do with the context of litigation. This is a circumstance that
various courts have heard testimony on over a period of years, and so she feels there has been
Iowa City Board of Adjustment
January 20, 2009
Page 5
considerable hearing and consideration of questions in this case. As a result, she did not feel that there
was any evidence that the Building Official should have withheld the building permit based on yet more
litigation.
Wood agreed that the Building Official's determination should not be impeded by the litigation. He has
issued permits in the past in similar situations. These are not conflicts that can be resolved by the City,
but are disputes between adjoining land owners that must be resolved by them. He believed the Building
Official acted appropriately by not impeding the process.
Wood pointed to the issue of the expiration of the special exception.
Sheerin stated that she believed this required judgment on the part of the Building Official. She
indicated that it seemed that the Appellant believed that a permit must be obtained within six months,
because the ordinance says, "unless the Applicant shall have taken action within the 6-month period to
establish the use or construct the building permitted under the terms of the Board's decision, such as
obtaining a building permit and proceeding to the completion in accordance with the terms of the permit
" — with the example being obtaining a building permit. Sheerin stated that she believed the
language "such as" is set out to be exemplary and not restrictive, as opposed to something like, "only in
the instance when." Sheerin indicated that she believed there was evidence of action within the six
months, including submitting the application, responding to questions about the application, and making
multiple revisions to the application. For this reason she did not believe the Building Official erred.
Hora stated that the Building Official did err, based on the language in the code. He interpreted the same
ordinance as indicating that you must almost have a shovel ready to put in the ground to show action
taken to establish the use. He said he did not know why the Shelter House waited for 4 1/2 months with
no action after the Supreme Court ruling. He believes the term of the special exception had expired.
Eckstein said she takes to heart the phrase "to take action to establish the use." In her judgment, Shelter
House had done this in a number of extraordinary ways and that their intent to establish the use was
clear.
Thornton stated that while there was a significant amount of time of inaction on the part of Shelter
House, or the appearance of a lack of action, it appears there was action between the City and Shelter
House. Despite the slowness of the process, he believes this should not have impeded the Building
Official from issuing the permit.
Wood indicated that the phrase "such as" indicates an example. He does not believe that the code
indicates that a building permit is necessary for the special exception to be upheld. A site plan was
submitted August 27th and there was considerable communication from that point on. An application for
the building permit was submitted on September 22°d. Detailed building plans were submitted on
September 261h. A revised site plan was submitted on October 1. The Building Official's handling of this
was consistent with past practices. The Building Official indicated that a building permit is not the only
thing that establishes the use on the property. Wood noted that an August 4, 2004, letter from Senior
Planner Bob Miklo to Shelter House informed them of the action of the board. The letter stated that
"within this time period you should establish the use approved, apply for a building permit for
construction, or apply for an extension from the board." There is nothing that says they need a building
permit within the six months. He read from the letter, "failure to take some action within the six months
Iowa City Board of Adjustment
January 20, 2009
Page 6
will result in the necessity for a new application." Shelter House was working hard to obtain the permit,
and was doing all they could to obtain it. It is a long process, he said, but they were acting to obtain the
permit.
Hora stated that while Shelter House was working to obtain the permit, he read the language to mean
that the permit needed to be issued within the six months. He said it does not talk about site plans or
negotiation back and forth between the City and the Applicant. He believes there should have been a
faster process. In his interpretation the least they were required to do was to obtain the building permit.
The phrase "proceed to completion" indicates to him that you need to be ready to start building.
Walz re -read the motion to uphold the appeal, and find that the Building Official was in error in issuing
the permit. She reminded the board that a "yes" vote would indicate that the Building Official was in
error; a "no" vote would uphold the Building Official's decision.
Motion failed on a vote of 1 to 4 (Hora voting yea).
Wood read a statement indicating that anyone wishing to appeal the decision could do so within 30 days
of its filing.
Sheerin moved to adjourn.
Thornton seconded.
Motion carried on a vote of 5-0. The meeting adjourned at 5:45 p.m.
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