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HomeMy WebLinkAbout12-14-2011 Board of AdjustmentIOWA CITY BOARD OF ADJUSTMENT MEETING Wednesday, December 14, 2011 — 5:15 PM City Hall — Emma J. Harvat Hall AGENDA A. Call to Order B. Roll Call C. Consider the August 17 and September 14, 2011 Board Minutes D. Other A request submitted by Steve Streb to extend the term of a special exception (EXC11- 00007) to allow a wet -batch concrete manufacturing plant in the General Industrial (1 -1) zone on Independence Road, north of 4201h Street and south of Liberty Drive. E. Variance VAR11- 00001: Discussion of an application submitted by Kevin Hanick for a variance from the minimum lot area requirement for a duplex use in the RNS -12 zone located at 331 N Gilbert Street. F. Board of Adjustment Information G. Adjourn NEXT BOARD OF ADJUSTMENT MEETING: January 11, 2012 City of Iowa City MEMORANDUM Date: December 14, 2011 To: Board of Adjustment From: Sarah Walz RE: Request to extend the term of a special exception EXC11 -00007 The zoning code specifies that "unless otherwise determined by the Board, all order of the Board shall expire 6 months from the date of the written decision is filed with the City Clerk unless the applicant shall have taken action within the 6 -moht period to establish the use or construct the building permitted under the terms of the Board's decision...." The code also allows that "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." Subsequent to granting a special exception (EXC11- 00007) a neighbor of the subject property has filed a petition for Writ or Certiorari with the court. The applicant, Steve Streb is therefore seeking to extend the term of his special exception to 12 months after all litigation is settled (see the attached e- mail). Previous to the legal filing, Mr. Streb had discussed with Staff a request to that the extend the term of the exception to allow time secure the financing required for this venture and to get the batch plant ordered. Sarah Walz From: Steve Streb <steve @strebconstruction.com> Sent: Wednesday, December 07, 2011 11:47 AM To: Sarah Walz Cc: Dave Streb Subject: RE: letter for BOA Sarah, Please use this e-mail as our request for an extension of time regarding the special exception granted Streb Construction Co., Inc. As you are aware the City has pending litigation regarding this exception. After this pending litigation has been resolved we request and extension of 12 months to line up the financing for this project. Respectfully, Steven M. Streb Vice President Streb Construction Co., Inc. Office: 319- 338 -3498 Cell: 319- 631 -5276 Fax: 319- 351 -4369 To: Board of Adjustment Item: VAR11 -00001 GENERAL INFORMATION: STAFF REPORT Prepared by: Sarah Walz Date: December 14, 2011 Applicant: Kevin Hanick 2346 Mormon Trek Blvd. Iowa City, IA 319- 248 -0555 Property Owner: Shelter House (The Emergency Housing Project) 429 Southgate Avenue Iowa City, IA Requested Action: Purpose: Location: Size: Existing Land Use and Zoning: Surrounding Land Use and Zoning Applicable code sections: File Date: BACKGROUND: Variance from the minimum lot area requirement. To allow a Two - family (duplex) use. 331 North Gilbert Street 4,000 square feet Community Service Shelter, RNS -12 North: Residential, RNS -12 South: Residential, RNS -12 East: Residential, RNS -12 West: Residential, RNS -12 14- 46 -2A, Criteria for a Variance; Minimum lot area requirements for a Two - Family (duplex) use in the RNS -12 zone, 14 -2A -4 (Table 2A) November 16, 2011 The subject property is located in the Neighborhood Stabilization Residential (RNS -12) zone at the corner of North Gilbert and Davenport Streets. The zoning code defines the purpose of the RNS -12 designation as follows: "to stabilize certain existing residential neighborhoods by preserving the predominantly single - family residential character of these neighborhoods. Provisions in this zone prevent the conversion or redevelopment of single - family uses to multi - family uses. However, existing conforming multi - family uses retain their conforming status when re -zoned to RNS -12." The subject property has a lot area of 4,000 square feet (50 x 80 feet) and the house provides 2,364 square feet of living area. The house has served as an emergency shelter since the early 1980s. In the early 1990s, the subject property and its surrounding neighborhood were re- zoned from Low - Density Multi- family (RM -12) Residential to RNS -12. Under the previous RM -12 zoning, duplexes uses were allowed on properties with a minimum lot are of 6,000 square feet. Shelter uses (transient housing) were allowed by special exception. Under the current RNS -12 zoning, duplexes require the same 6,000 sq. feet minimum lot area as under the previous zoning designation. Shelters are not a permitted use in the RNS -12 zone. Emergency shelters are classified as Community Service/ Institutional uses. The rental permit for the property indicates a maximum occupancy of 29 unrelated persons. The shelter relocated to Southgate Avenue in November of 2010 and the house has remained vacant since that time. The zoning code indicates that if the use is discontinued, the property must convert to a conforming use. By right, the property may be use for a single - family unit with a maximum of 3 unrelated persons (rental or owner occupied) or as a group household, such as an elder care or group care home. Other uses such as bed and breakfast, daycare, and religious /private group assembly are allowed by special exception and the criteria for these uses take into consideration the ability to provide adequate parking, setbacks, or play areas. The property has been for sale for more than twelve months but has not sold. The applicant is seeking a variance from the minimum lot area for a duplex. 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 variance to reduce the minimum lot area requirement for a duplex in the RNS -12 zone only if the requested relief is found to meet all of the tests for variances as set forth in Section 14- 46 -2A. The burden of proof for each of these tests rests with the applicant. No variance to the strict application of any provision of the Zoning Chapter may be legally granted by the Board unless the applicant demonstrates that all of the following elements are present: 1. Not contrary to the Public Interest: a. The proposed variance will not threaten neighborhood integrity, nor have a substantially adverse affect on the use or value of other properties in the area adjacent to the property included in the variance. On the face of it, it may seem unlikely that waiving the lot area requirement for a duplex in a neighborhood with a significant proportion of rental units would have a substantially adverse affect on the use or value of other properties in the adjacent area. However, Staff believes that granting the variance has the potential to threaten neighborhood integrity. While the present applicant seeks to waive the minimum lot area requirement for a duplex, in the view of staff, this would in effect grant rights that are not permitted to similar properties in the neighborhood. Of the RNS -12 properties located within 300 feet of the subject property, 21 do not satisfy the 6,000 square foot minimum lot size for a duplex (see 2b below and zoning analysis attached). Eleven of these properties comply with the zoning use and occupancy requirements —they are single - family uses with a maximum occupancy of 3 unrelated persons. The remaining 10 properties are considered non - conforming uses, and as such are subject to the Non - conforming Use Regulations in the Zoning Code that prohibit expansion and, if discontinued for a period of one year or destroyed beyond 75% percent of the assessed value, must revert to a conforming use. Staff believes that granting a variance to one property could set the stage for similar requests from other properties that could have a higher value if allowed rights to a duplex (two - family) use. b. The proposed variance will be in harmony with the general purpose and intent of the Zoning Chapter and will not contravene the objectives of the Comprehensive Plan, as amended. The RNS -12 zone was created to address the conversion of single - family neighborhoods to higher densities, which came about in response to rising demand for student rental housing in the near - campus neighborhoods. Single- family homes close to campus were converted to two - family and multi - family uses on small lots in areas where infrastructure could not readily support more intense uses. On and off - street parking became an issue as did the lack of usable open space and the degradation of alleys. In response to the conversion to higher density in near - campus neighborhoods as described above, the City rezoned some RM -12 areas that still retained a single - family character in terms of lot sizes and housing styles. Properties that were conforming under their previous zoning (in this case, RM -12) were granted conforming rights in the new RNS -12 zone. However, the further conversion of single – family homes to multi - family was stopped. Under RM -12 zoning, the minimum lot size for a duplex was 6,000 square feet —the same as in the new RNS -12 zone. Thus there should be no confusion that rights to a duplex use or the expectation to use the subject property as duplex, were an option for the property. Many properties in Iowa City's Northside Neighborhood and other near - campus neighborhoods are established on lots that are non - conforming with regarding to the minimum lot area requirements. Staff believes that granting a variance to allow a duplex use in order to increase the rental opportunity for the property could set the stage for similar requests from other properties. The Central District Plan calls attention to the complexity of the market in the near - campus neighborhoods, north and east of the downtown, where student rental demand keeps prices higher than in other area of the community. The Plan notes the ongoing challenge to maintain a balance between different housing types and mix of residents within these neighborhoods. Goal 2 in the Housing and Quality of Life section of the Central District Plan includes a number of objectives focused on "achiev[ing] a healthy balance of rental and owner occupied housing in the districts older neighborhoods to promote long -term investment, affordable housing opportunities, and preservation of historic homes and neighborhoods." Those objectives include the following: • Work to bring over - occupied properties into compliance with current zoning requirements. Explore ways to make more of the existing and future rental housing in the Central District available to families and other non - student populations in need of affordable housing, e.g. revisiting occupancy rules and housing code provisions to discourage or prevent unmanaged dorm -style apartments, supporting efforts by non - profit housing developers to rehabilitate older housing stock, partnerships between historic preservation organizations and affordable housing developers, etc. To that end, the City has taken several steps in the Northside Neighborhood. When the home at 321 Davenport was destroyed by fire, the City purchased the lot with the goal of creating affordable owner - occupied housing. In 2010, the City and University formed the UniverCity Neighborhood Partnership and began a phase one program to purchase and rehabilitate rental housing units in the near - campus neighborhoods and convert them to affordable, owner - occupied housing. Homes at 618 North Gilbert and 408 and 320 Fairchild have been or are in the process of being converted to owner occupied use. Staff believes that granting the variance would be counter to the general purpose and intent of the Zoning Code and contravene the objectives of the Comprehensive Plan, which both focus on preventing further density in the subject zone and encouraging a better balance between rental and owner occupied housing in the Northside Neighborhood. 2. Unnecessary Hardship: The test for unnecessary hardship consists of three prongs, each of which must be proven by the applicant for the Board to legally grant a variance: a. The property in question cannot yield a reasonable return if used only for a purpose allowed in the zone where the property is located. Staff agrees with the applicant's assessment that the property, in its present condition, is unlikely to sell for the asking price. Staff also agrees that a significant amount of renovation is necessary to restore the home to a condition that makes it feasible to operate the property as a single - family use, whether rental or owner occupied. However, Staff believes that any diminishment in value of the property is tied to the condition of the house, which is in need of substantial renovation, and not its RNS -12 zoning. The evidence presented by staff regarding the use of other RNS -12 properties within 300 feet shows that similar properties are being used both as rental and owner occupied housing in conformity with the requirements of the zoning code. Moreover, even if the applicant was able to show that the application of the zoning law to his property resulted in a diminishment of value, Iowa courts have found that in order to justify a variance, it must be proven that the strict application of the zoning law practically destroys the value of the property. The ordinance must operate so as to be in effect confiscatory. Mere diminishment of profit is not sufficient to satisfy the test of inability to yield a reasonable return necessary to legally allow the Board to grant a variance (Deardorf v. Board of Adjustment of the Planning and Zoning Commission, 118 N.W. 2"t' 78 (Iowa 1962). b. The owner's situation is unique or peculiar to the property in question, and the situation is not shared with other landowners in the area nor due to general conditions in the neighborhood. In reviewing the applicant's map submission, Staff would like to note a few inconsistencies. Properties south of the alley between Bloomington and Davenport are zoned Commercial (CO -1 and CB -2) and would not be considered comparable since that zoning designation allows a number of different uses with different requirements. The applicant has presented evidence of a number of rentals within 300 feet that operate as duplexes or multi - family uses that are established on properties with lot areas less than the required 6,000 square feet. Staff does not believe that this evidence satisfies this criterion. Staff has provided an assessment of the surrounding properties zoned RNS -12 (see attached analysis); those within 300 feet of the subject property appear inside the blue dashed line. The assessment shows the following: • 21 properties have lot areas of less than 6,000 square feet; of these ... • 10 properties contain more than one dwelling unit (duplex or multi - family) • 11 are single unit properties (owner- occupied or rental) with maximum unrelated occupancies of 3 persons. Staff believes this shows that the zoning of the property as a single - family dwelling (owner occupied or rental) would not be unusual in this neighborhood, as more than half of the lots less than 6,000 square feet comply with the zoning code with regard to use (single - family) and occupancy (maximum of 3 unrelated persons). c. The hardship is not of the landowner's or applicant's own making or that of a predecessor in title. In Staff's view, it is not size of the lot that makes it unique or peculiar. What is unusual about the property is the condition of the house itself. As a shelter, the house was allowed 29 roomers, and that intensity of use over the course of more than 25 years has likely altered or degraded the house to such an extent that its sale price as a single - family property is substantially reduced. That condition is one that is due not to the zoning of the property but to the applicant's own making. Were it not for the home's condition, the property could demand a higher price. The evidence presented regarding the use of other RNS -12 properties within 300 feet shows that similar properties in improved condition are being used both as rental and owner occupied housing in conformity with the requirements of the zoning code. SUMMARY: The question of the variance is not whether the property should remain a shelter use or a duplex or whether the neighborhood or the owner or future owner would choose one use over another. Rather, the variance asks whether the zoning itself has eviscerated a reasonable return for the property. In this case, is it reasonable to expect a single - family use (rental or owner occupied) to function on a 4,000 square foot lot? The zoning analysis provided by staff indicates that it is not unreasonable, and that other properties in the area are functioning in compliance with the use requirements of the zone. Staff believes the hardship faced by the property is due to the present condition of the house itself, which, by the applicants own statement is in substantial need of renovation. That is a situation of the owner's own making. Staff believes that granting the variance would be counter to the general purpose and intent of the Zoning Code and contravene the objectives of the Comprehensive Plan, which both focus on preventing further density in the subject zone and encouraging a better balance between rental and owner occupied housing in the near campus neighborhoods. On the face of it, it may seem unlikely that waiving the lot area requirement for a duplex in a neighborhood with a significant proportion of rental units would not have a substantially adverse affect on area, however Staff believes that granting special rights to one property based on characteristics that are shared by other properties in the neighborhood would undermine the intent of the RNS -12 zone and may lead to further requests for special treatment. STAFF RECOMMENDATION : Staff recommends denial of the request for a variance from the minimum lot area requirements for a duplex use in the RNS -12 zone. ATTACHMENTS: 1. Location map 2. Aerial View 3. Zoning analysis provided by Staff 4. Background on Variances and Zoning Law 5. Application materials 6. Map of uses within 300 feet provided by applicant Approved by: Ay"' *e-4. Robert Miklo, Senior Planner, Department of Planning and Community Development ^W W oil ZPJI °o /0 V ^cf) W LM a 0 N T L IJ z m 'Q-) T N � a is NOS N HOP z � � - N I, 1 �I 1 1 1 1 _ 1 II —_ !1 1 1 11 1 i 1 1 1 � = Ed" r is NldnB NVA to //z� cy- f U Q LL 1ST 118 110 � O _ > Q N � � z 1S NW t------- - - - - -- cc m 0 V. C 7 E g 5 r r T - t w a a y pal I u v u C d C C o Z IC N Q' N N a z grc rn I. _c E C o � L J Y L v 3 v Y CL C N L b c O v a N N L C 0 O C a u O E E X m E N 3 v L v a O a v PLANNING LAW PRIMER Basics of Variances ing regulations reflect the ment of the local governing body — typically based on recom- mendations from the planning commis- sion — on what land use regulations are needed to implement the policies set out in the local comprehensive plan. At their core, zoning regulations are designed to promote the statutory goals of protecting and promoting the "health, safety, and welfare" of the community. Given this, why do zoning codes include a mecha- nism for the issuance of variances, authorizing the use of a piece of property in a manner that would otherwise be prohibited by the zoning regulations? The answer is that variances are essential for legal reasons and for reasons of fairness. Most zoning regulations, by both necessity and practice, employ gen- eral language and are uniform in applica- tion to an often - diverse collection of properties. A zoning regulation, when strictly applied to a particular property, may have the effect of denying a property owner all reasonable use of his or her property. Without the mechanism of variances, property owners would have no method of seeking relief other than going to the courts. Variances are divided into two gener- al types: area variances (sometimes called dimensional variances) and use vari- ances. The most common variance is the area variance. Area variances authorize a deviation from the zoning regulations that govern physical location and improvement of a property, for example, setback, building height, lot width, or lot area. In contrast, a use variance authorizes a use of property that would otherwise be prohibited within the property's zone dis- trict. The effect of granting a use variance is often similar to a change in the proper- ty's zone district classification. by Robert Widner, Esq. Many states prohibit use variances, or authorize localities to prohibit them in their zoning codes. This is in recognition of the fact that: (1) allowing changes of use through variances can dramatically undermine the stability of neighbor- hoods, and (2) changes of use are much better considered by the legislative body through the zoning amendment process, not property -by- property through indi- vidual variance requests. Planning com- missioners should carefully review their state law and local ordinances to deter- mine if the granting of use variances is lawful in their jurisdiction, THE VARIANCE PROCESS In most communities, consideration of a variance request requires a public hearing, with notice given to neighbor- ing property owners. Variance applica- tions are usually reviewed by a "zoning board of adjustment" or "board of adjust- ment and appeals," typically appointed by the local governing body. In some communities (if allowed under state law) the authority to hear and decide vari- ances is conferred upon planning com- missions or reserved to the governing body itself. Regardless of the composition of the reviewing board, the board acts in a quasi-judicial manner when considering variance applications. In most circum- stances, the reviewing board's final deci- sion regarding a variance request is subject to judicial appeal in the state courts. Standards for Approval of Variances The procedures and standards applic- able to the granting of a variance vary widely among local governments. It is difficult, if not impossible, to summarize the diverse legislation and extensive body of judicial decisions governing vari- ances. Moreover, these judicial decisions are largely based upon specific factual circumstances underlying the particular variance decision. Nevertheless, some common threads can be found in most state and local variance criteria owing to the fact that variance provisions trace their origins to the same source: the model Standard Zoning Act published by the U.S. Depart- ment of Commerce in 1924. The Stan- dard Zoning Act included the following brief criteria for the issuance of a vari- ance: "To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special con- ditions, a literal enforcement of the provi- sions of the ordinance will result in unnecessary hardship, and so that the spir- it of the ordinance shall be observed and substantial justice done." The requirement that a "special (or unique) condition" exist and an "unnec- essary hardship" be demonstrated by the owner remain widely imposed require- ments in many statutes and local regula- tions governing variances. However, a variety of other standards for approval of variances have evolved. For example, some state statutes or local ordinances require the property owner demonstrate that there exist "practical difficulties" caused by the strict applica- tion of the zoning regulation that pre- cludes the owner's reasonable use of the PLANNING COMMISSIONERS JOURNAL / NUMBER 50 / SPRING 2003 continued on page 6 Basics of Variances continued from page 5 property. The practical difficulty stan- dard has evolved, in many jurisdictions, to be a lesser or more accommodating standard for variances than the unneces- sary hardship standard. Additionally, many local governments will reject a request for a variance where the need for the variance was the result of the owner's actions, often -times phrased a "self- creat- ed hardship. "� Self - Created Hardship. Even given the diversity of standards applicable to variances in communities across the country, some fairly uniform principles can be culled from the wealth of judicial decisions involving variances: • Variances are most appropriate to address unique or special physical char- acteristics of the property that prevent reasonable use under the requirements of the applicable zoning regulations. These circumstances may include unique standard prpvides that an owner cannot use his own ignorance or actions (or that of the prior owner).-as justification for the granting of a variance. variance requests based upon self- cre-ate hardships are quite common. Property owners who make unwise or`poorly planned development decisions may later find that a vari ance is necessary either to properly complete the project or to accom- modate some desired change in construc- tion. In some circumstances, owners either, unknowingly or intentionally construct buildings or engage in uses that violate the zoning regulations, only to later argue that the variance is necessary to;prevent the expense and waste associated with the destruction of the building or cessation of the use. Denying variance applications that are based on self - created hardships is a sound practice.' To grant such at variance would excuse or reward an owner's lack of reason- a}�le %il'iligence l$at aut�knly, owners in Moth, l 4 that l l�f tl Ch Vi# arices q, ., c l ii i Y < rl d gfve- Afjer topography such as steep slopes, water bodies, wetlands, or other natural fea- tures that are atypical within the commu- nity or within other properties in the same zone district. • Variances are not appropriate mere- ly because the variance would permit a more profitable use of the property. • Variances are also not appropriate to accommodate the particular limita- tions, characteristics, habits, or hobbies of the owner or occupants of the proper- ty Because variances run with the prop- erty and are not usually limited to ownership, the fact that a zoning regula- tion would effectively prevent an owner from engaging in a particular hobby would not justify the granting of a vari- ance to the regulation.' The Effect of a Variance It is important to keep in mind that the granting of a variance does not change the zone district or zoning classi- fication of the affected property. Instead, a variance is a limited change or modifi- cation of a specific standard or restriction associated with a particular property. A variance should be memorialized in writ- ten form, identifying the property affect- ed and employing clear and specific language to denote the zoning standard being modified and the extent of the per- mitted modification. Many administra- tive problems arise as the result of poorly documented variances or variances that fail to provide sufficient detail to deter- mine the permissible extent of the grant- ed modification. Zoning regulations in some commu- nities authorize the reviewing board to impose conditions upon the issuance of a variance. These conditions may enable the reviewing board to mitigate or elimi- nate potential adverse impacts upon adjacent property or the neighborhood caused by the variance. In addition, con- ditions may be authorized that would 1 There are, however, some limited exceptions to this general rule resulting from laws such as the federal Fair Housing Amendments Act and Americans with Disabilities Act where the variance might present an opportunity for a reasonable accommodation to a handicapped owner. Where such circumstances are present, the reviewing board should always seek legal advice. COivX.MISSIONERS limit the duration or term of the variance where a limitation is justified based on the evidence presented to the reviewing body. One common condition to the granting of a variance is that the pro- posed development be commenced or completed within a specified time. PLANNING COMMISSION ROLE IN VARIANCES Planning commissions should recog- nize that variances are an integral part of zoning, providing a "safety valve" that allows property owners, in certain limit- ed situations (and in compliance with the strict criteria for issuance of a vari- ance), to develop their property in a manner that would not otherwise be allowed under the zoning code. On the other hand, variances should clearly be the exception, not the rule. To ensure this, planning commissions should keep abreast of the types of vari- ance requests submitted within the juris- diction, the basic circumstances underlying the request, and the final decisions on the request made by the reviewing body. The frequent granting of variances may indicate a failure on the part of the zoning board to adhere to the ordinance's criteria for approval of variance requests. However, numerous requests for vari- ances concerning the same standard or restriction of a zoning regulation may highlight a need for review of that stan- dard and its suitability within the affect- ed zone district. In contrast, relatively infrequent requests for variances and issuance of variances should signal that the process is working well. Robert Widnet; Esq., is a partner with the Denver, Colorado, law firm of Gor- such Kirgis L.L.P Widner currently serves as the City1 Attorney for Cherry Hills Village, Town Attorney for the Town of Lyons, and the Parh County Attorney. His practice includes serving as special land use court - sel for a variety of local governments and represen- tation of municipal and county planning commissions. Widner also holds a master's degree in urban and regional planning. JOURNAL / NUMBER 50 / SPRING 2003 Variance Review Guidelines 1. Variance is not the appropriate remedy for a general condition. 2. Self- inflicted hardships are not grounds for a variance. 3. Personal hardships are not grounds for a variance. The hardship must relate to physical character of the property. 4. Economic conditions are not sole grounds for a variance. 5. Hardships must be severe. 6. If granted, variance must not adversely affect the neighborhood. 7. All applicants must be treated equally. IOWA LAND USE PLANNING NOTEBOOK - PD03d 9 Zoning Variances and Special Exceptions By James E. Nervig Chapter 414 of the Code of Iowa, grants cities broad powers to enact zoning regulations to divide the city into zoning districts and regulate and restrict the uses of land and structures within each zoning district. Section 414.3 of the Code requires that all zoning regu- lations must be made in accordance with a comprehen- sive plan. The zoning process is of great importance to a city; zoning allows the city to adopt a comprehensive plan setting forth long and short term goals for land use and then to enact zoning regulations to assure that ac- tual land use conforms to the goals of the plan. Zoning regulations and district boundaries are en- acted and amended by passage of an ordinance by the city council. Section 414.2 of the Code provides the gen- eral rule that all zoning "regulations and restrictions shall be uniform for each class or kind of buildings throughout each district, but the regulations in one dis- trict may differ from those in other districts." This general rule reasonably furthers the interest of the city in seeing that land uses in a certain district conform as much as possible to the broad objectives of the city's comprehensive plan. However, the general rule does not allow the city council the flexibility to modify or relax the general district regulations in ex- ceptional situations where special circumstances war- rant. For example, suppose a municipal zoning ordi- nance provides a 5 -foot sideyard setback requirement for accessory buildings, such as garages, and a 10 -foot sideyard setback for principal buildings, such as houses. Suppose that a residential lot owner has on his or her property a house lying 30 feet west of the east side lot line and a detached garage lying 5 feet directly east of the house and 9 feet west of the east side lot line. Suppose further that the owner wishes to construct an enclosed addition between the house and garage so as to convert the garage from a detached to an attached garage. Such an addition would violate the zoning regu- lations, because it would change the classification of the garage from an accessory building to a part of the prin- cipal building. Because the attached garage would be considered a part of the principal building, the expand- ed principal building would have a new sideyard set- back of 9 feet and would therefore violate the zoning or- dinance's 10 -foot setback requirement for principal buildings. In the foregoing example, it is quite possible that the proposed attachment of the garage to the house would constitute a benefit both to the owner of the sub- ject property and the neighborhood. The new addition might be expected to increase the value of the lot and thereby have a positive effect on other property values in the neighborhood. Because the addition would be constructed between the existing house and garage, there would appear to be no negative impact on -fLe neighbor to the east. The neighbor's access to light c, -d air along the property line would not be affected by tie new construction. While all interested parties might be in favor of -+Le. garage addition proposed in the foregoing example, the city council would be legally precluded from providing the administrative relief from the zoning regulations necessary to authorize the project. This is not to say, however, that the owner has nowhere to look for such relief. Chapter 414 of the Code establishes a separate municipal agency known as the zoning board of adjust- ment to hear and decide appeals for administrative re- lief from the strict application of the regulations of the zoning ordinance. Sections 414.7 and 414.8 of the Code require the city council to appoint a five or seven member board of adjustment. The board of adjustment is entirely sepa- rate from the city council in the zoning process; its deci- sions may not be overturned by the city council and are directly appealable to the district court. Depending on the particular case, the administra- tive relief which may be granted by the board may take the form either of a "variance" or a "special exception ". The statutory powers of city boards of adjustment to grant variances and special exceptions are set forth in Section 414.12 of the Code as follows: "The board of adjustment shall have the following powers: 2. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordi- nance. 3. To authorize upon appeal in specific cases such variance from the terms of the ordi- nance as will not be contrary to the public in- terest, where owing to special conditions a lit- eral enforcement of the provisions of the ordi- nance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done." (Emphasis added.) With regard to variances, the statutory "unneces- sary hardship" standard has been judicially defined by the Iowa Supreme Court. In Greenawalt v. Zoning Board of Adjustment of City of Davenport, 345 N.W.2d 537, 541 -542 (Iowa 1984), the Court reaffirmed its defi- nition as follows: "This court initially gave content to the stan- dard of `unnecessary hardship' in Deardorf v Zoning Board of Adjustment, 254 Iowa 380, 118 N.W.2d 78 (1962). It adopted the defini- tion of that term constructed by the New York Court of Appeals in Otto v Steinhilb r, 282 N.Y. 71, 24 N.E.2d 851 (1939), reh'g de_ 10 nigA 282 N.Y. 681, 26 N.E.2d 811 (1940). We have since reaffirmed that definition in Board of Adjustment v. Ruble, 193 N.W.2d 497 (Iowa 1972), and Graziano v. Board of Adjustment, 323 N.W.2d 233 (Iowa 1982). Under these decisions an applicant for a zon- ing variance establishes unnecessary hard- ship by showing all of the following elements: (1) [T1he land in question cannot yield a rea- sonable return if used only for a purpose al- lowed in that zone; (2) [T1he plight of the owner is due to unique circumstances and not to the general condi- tions in the neighborhood, which may reflect the unreasonableness of the zoning ordinance itself; and (3) [Tlhe use to be authorized by the variance will not alter the essential character of the lo- cality. Graziano, 323 N.W.2d at 236; Ruble, 193 N.W.2d at 504; Deardorf, 254 Iowa at 386, 118 N.W.2d at 81.... The burden is on the applicant to show all three of the elements. A failure to demon- strate one of them requires the board to deny the application. Ruble, 193 N.W.2d at 502; DeardorF 254 Iowa at 384, 118 N.W.2d at 80." On pages 542 -543 of its opinion, the Court in Greenawalt further defined the meaning of the phrase "cannot yield a reasonable return," as used in the first part of its three -part test, by adopting the following ex- planation as set forth in 3 Anderson, American Law of Zonin § 18.17, at 179 -83: "A zoning regulation imposes unnecessary hardship if property to which it applies can- not yield a reasonable return from = per- mitted use. Lack of a reasonable return may be shown by proof that the owner has been deprived of a beneficial use of his land. All beneficial use is said to have been lost where the land is not suitable for any use permitted by the zoning ordinance. For example, where land is located in a district limited to residen- tial or commercial use, and where lack of transportation, sparse development, and the refusal of lending institutions to advance money for residential or commercial uses ren- der development consistent with the ordi- nance unfeasible, unnecessary hardship is said to result from literal application of the ordinance. An ordinance deprives a landowner of a rea- sonable return if all `productive use of the land' is denied. Such deprivation is shown where the land in issue has so changed that the uses for which it was originally zoned are no longer feasible. The burden of proving that a literal applica- tion of the ordinance will deprive the owner of a reasonable return is upon the owner of the land in question. No variance for unnec- essary hardship may be granted if he fails to demonstrate loss of beneficial use. His bur- den is not sustained if it is shown the land is zoned for residential use, and that it is yield- ing a substantial return from such permitted use. It is not sufficient to show that the value of his land has been depreciated by the zon- ing regulations, or that a variance would per- mit him to maintain a more profitable use." (Emphasis added in Greenawalt opinion.) The judicial standard for the granting of variances is obviously very difficult to satisfy. Effectively, the three -part test requires that, to justify a variance, an owner must show that he or she would be subjected to unconstitutional inverse condemnation without the variance because the zoning regulations otherwise deny all productive use of the land. In the hypothetical fact situation discussed above involving the proposed con- version of a detached garage to an attached garage, if the owner was to apply for the necessary one -foot side - yard variance, the judicial test would require the owner to prove to the board of adjustment that the land has no productive use as it currently exists with a house and detached garage. Such a burden of proof would be virtu- ally impossible to overcome. Therefore, under the strict application of the judicial test, the owner in the hypo- thetical case would almost certainly fail to qualify for a variance. Iowa boards of adjustment have faced a dilemma in applying the judicial variance standard. Some boards have simply chosen to require each variance applicant to prove that he or she could make no productive use whatsoever of his or her property without the variance. Of course, because of the severity of the standard, these boards typically deny virtually every variance appeal. Other boards have chosen to relax the judicial standard, as much as they feel they legally can do, in order to grant variances in cases where the variance appears to be in the best interests of all concerned. A common criti- cism heard from these board members is that the strict application of the judicial standard effectively precludes the board from doing its job to grant administrative re- lief in cases where such relief is fairly warranted. The problem with the latter approach is that the Iowa Supreme Court decisions do not appear to allow boards any flexibility to relax the judicial standard. The attorney for the variance applicant should care- fully apprise himself or herself prior to a hearing before a particular board regarding the particular philosophy of the board members as to the burden of proof required to sustain the variance. The manner in which a particu- lar board interprets the judicial standard may have a significant effect on the amount and type of evidence which a variance applicant must present at the hearing to justify the variance to the satisfaction of the board. The dilemma of a board's inability to grant reason- able administrative relief through variance may effec- tively be resolved by the city council through the adop- tion of appropriate standards for special exceptions. The judicial three -part test applicable to variances has no applicability to special exceptions. The only standards 11 applicable to special exceptions are those imposed by a city in its particular zoning ordinance. The Iowa Supreme Court, in Vogelaar v. Polk County Zoning Board of Adjustment, 188 N.W.2d 860, 862 (1971), dis- tinguished variances from special exceptions as follows: "As used in the context of zoning ordinances, a `variance' is authority extended to the owner to use property in a manner forbidden by the zoning enactment, where literal en- forcement would cause him undue hardship; while an `exception' allows him to put his property to a use which the enactment presently permits.... [A] `special exception' permits in a particular district a use not otherwise permitted when certain conditions specifically set out in the ordinance are satisfied * * *. A `variance', on the other hand, relaxes the zoning regula- tions when literal enforcement would result in `unnecessary hardship'." Thus, a city council is entirely free to enact special exception standards which allow the board of adjust- ment to grant administrative relief from the strict ap- plication of zoning regulations in appropriate cases where an applicant can satisfy standards which may be far less burdensome than the judicial test for variances. An excellent example of a set of special exception stan- dards is contained in the Zoning Ordinance of the City of Des Moines. Section 2A -29(D) of the Des Moines Zoning Ordinance authorizes the board of adjustment to grant special exceptions to any setback, area, length, width, height, yard, size or projection limitation or to the mini- mum required number of off - street parking or loading spaces, subject to the following standards: a. No such exception shall exceed 50 percent of the particular limitation or number in question. b. The exception must relate entirely to a use classi- fied by applicable district regulations as either a principal permitted use, a permitted accessory use, or a permitted sign, or to off - street parking or loading areas accessory to such a permitted use. c. The exception must be reasonably necessary due to practical difficulties related to the land in question. d. Such practical difficulties cannot be overcome by any feasible alternative means other than an ex- ception. e. The exception must be in harmony with the es- sential character of the neighborhood of the land in question. f. The exception must adequately safeguard the health, safety and welfare of occupants of adjoin- ing and surrounding property. g. The exception must not impair an adequate sup- ply of light and air to adjacent property. h. The exception must not unduly increase conges- tion in the public streets. i. The exception must not increase public danger of fire and safety. j. The exception must not diminish or impair estab- lished property values in surrounding areas. With respect to the hypothetical garage case, if the subject property was located in Des Moines, the owner would be entitled to appeal for a special exception. This is because the appeal would be defined as a request for an exception of one foot of the required 10 -foot setback for principal buildings, and such appeal therefore would qualify as an exception not exceeding 50 percent of the limitation or number in question. The hypothetical case having qualified for consideration as a special exception before the Des Moines board of adjustment, it is appar- ent that the appealing owner would have a much easier chance of satisfying the Des Moines special exception standards than he or she would have in satisfying the judicial variance test. Because of the very different standards applicable to variances and special exceptions, the attorney for a property owner seeking administrative relief from zon- ing regulations should carefully review the city's zoning ordinance in determining how to structure the owner's appeal. If at all possible, the appeal should be struc- tured as a request for a special exception so as to allow the applicant to satisfy the much lesser burden of proof than would apply to a variance appeal. Section 414.14 of the Code provides that at least three members of a five- member board of adjustment, and at least four members of a seven - member board of adjustment, must vote to grant any appeal for a vari- ance or special exception. Obviously, this statutory re- quirement has the result of significantly reducing the applicant's odds for obtaining the variance or special ex- ception if any board members are absent at the time of hearing. The attorney for the applicant should be aware of the requirement and should not hesitate to ask the board for a continuance of the appeal in the event that less than a full board is present for the hearing of the appeal. Finally, Section 414.15 of the Code provides that any person aggrieved by a decision of the board of ad- justment may file an appeal with the district court within 30 days after the filing of the decision in the of- fice of the board. Pursuant to Section 414.18 of the Code, the appeal is required to be tried by the district court de novo, and the court may reverse or affirm, wholly or partly, or may modify the board's decision. !, \ /AR-1 (-per l APPLICATION TO THE BOARD OF ADJUSTMENT VARIANCE DATE: November 16, 2011 PROPERTY PARCEL NO. 1 01 01 63001 APPEAL PROPERTY ADDRESS: 331 N. Gilbert St APPEAL PROPERTY ZONE: RNS 12 APPEAL PROPERTY LOT SIZE: 50x80 APPLICANT: Name: Kevin Hanick Address: 2346 Mormon Trek Blvd, IC Phone: 319 - 248 -0555 CONTACT PERSON: Name: Same as above Address. Phone: PROPERTY OWNER: Name: Shelter House ( The EmercLency Housing Proj Wit, Inc) Address: 429 Southgate Ave, IC =` 7n- Phone: Specific requested variance; applicable section(s) of the Zoning Chapter: ='' `? ... CD 14 -2A -4A Minimum Lot Requirement Reason for variance request: owner seeks duplex use of existing structure Date of previous application or appeal filed; if any: None INFORMATION TO BE PROVIDED BY APPLICANT: A. Legal description ion of property: North 50' of Lot 1, Block 57 (Original Town), Iowa City B. *Plot Ilan drawn to scale showing: 1. Lot with dimensions; 2. North point and scale; 3. Existing and proposed structures with distances from property lines; 4. Abutting streets and alleys; 5. Land uses on and property owners of abutting lots; and 6. Parking spaces and trees - existing and proposed. [*Submission of an 8" x I V' bold print plot plan is preferred.] . C. List of property owners within 300 feet of the exterior limits of the property involved in this appeal: NAME ADDRESS See attached list IM �.a D CZ c., . ■■ Section 14 -7A -2 of the Iowa City Zoning Chapter gives the Board of Adjustment power to authorize upon appeal in specific cases such variances from the terms of the Zoning Chapter as will not be contrary to the public interest, where owing to special conditions a literal enforcement of. the provisions of the Zoning Chapter will result in unnecessary hardship and so the spirit of the ordinance shall be observed and substantial justice done. No variance to the strict application of any provision of the Zoning Chapter shall be granted by the Board unless the applicant demonstrates that all of the following elements are present: (emphasis added) Q (Please respond specifically to each of the following, explaining your answers) Not contrary to the Public interest. a. Explain why the proposed variance will not threaten neighborhood integrity, or have a substantially adverse effect on the use or value of other properties in the area adjacent to the property included in the variance. The neighborhood (properties within 300 feet) is well over half residential rental of 2 units or more. Just 15 of the 50 properties are owner — occupied. In addition there are 6 commercial /office properties in the immediate neighborhood. Of the 27 duplex uses, more than half are on lots which do not meet the RNS -12 lot size requirement. b. Explain why the proposed variance will be in harmony with the general purpose and intent of the Zoning Chapter, and not contravene the objectives of the Comprehensive Plan. The subject property was, for many years, used as a homeless shelter and subject to intensive occupancy (40 -50 people on a given day). The RNS -12 was created to accommodate existing multi - family uses. The change of use from the intense use as a homeless shelter to a duplex is certainly appropriate for the neighborhood. The actual structure of the subject property will not be altered except to improve appearance. 2. Unnecessary hardship. a. Explain why the property in question cannot yield a reasonable return if used only for a purpose allowed in the zone where the property is located. The former City permitted use has put the "shelter" in need of some kind of major remodeling for a useful, less intensive use. Given the anticipated expense, no potential buyer has emerged in nearly a year who can justify the expense for only 3 unrelated people. The assessed value of $205,000 is untenable. Even when reduced in price to $169,000, no buyer has been willing to invest what is necessary give the current use limitation. b. Explain how the owner's situation is unique or peculiar to the property in question, and the situation not shared with other landowners in the area or due to general conditions in the neighborhood. ironically the lot size limitation is not unique to this property. There are 14 properties used as duplex or more rental units that do not satisfy the City zoning requirement related to lot size. The reclassification by the City from homeless facility to single family instead of simply a less intensive use of duplex is of course unique to this property. c. Explain how the hardship is not of the landowner's or applicant's own making or that of a predecessor in title. The conforming duplex lots in the near neighborhood are "mid - block" lotssWith fulUength to alley dimensions. All the duplex lots facing North -South streets (thus laic ' gaffe s), _ Linn and Gilbert Streets, are simply anomalies based on original Town pQlft'. Though used as duplexes, none of these lots meet minimum lot size requirements: { - 0 '7 a Q NOTE: Conditions. In permitting a variance, the Board may impose appropriate conditions and safeguards, including but not limited to planting screens, fencing, construction commencement and completion deadlines, lighting, operational controls, improved traffic circulation requirements, highway access restrictions, increased minimum yard requirements, parking requirements, limitations on the duration of a use or ownership or any other requirement which the Board deems appropriate under the circumstances, upon a finding that the conditions are necessary to fulfill the purpose and intent of the Zoning Chapter. (Section 14- 8C 72C4, 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 -1 F, 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: , 20 �l A^ Sin re s) of Applicants) Date: 11 1/ , 20 ppdadmhapplicafiorrboavar.doc Signature(s) of Property Owner(s) if Different than Applicant(s) ry c� —7 rJ -17 r�J Cl 2/2/06 - G , , 7) 2.111 NOV 16 °nS 2: 061 ?00 ° o-f 5- ``;j eC+: 5-0 dkflex ar greq e.- �� VW�IC aecr�PB {N\ S C,S JC-,+ pwnev' occAr'a -0! ilyIex 157- MINUTES PRELIMINARY BOARD OF ADJUSTMENT August 17, 2011 — 5:15 PM CITY HALL, EMMA HARVAT HALL MEMBERS PRESENT: Brock Grenis, Adam Plagge, Caroline Sheerin, Will Jennings, Barbara Eckstein MEMBERS ABSENT: STAFF PRESENT: Sarah Walz, Sarah Holecek, OTHERS PRESENT: Kirk Murray, Wim Murray, Julie Riggert, RR Mount Vernon (name illegible), Annie Pedersen, Lee Eno, Steve Streb, Eldon Prybil, Steve Ballard, Phillip Prybil, Linda Prybil RECOMMENDATIONS TO CITY COUNCIL: None. CALL TO ORDER: The meeting was called to order at 5:15 PM. ROLL CALL: Grenis, Sheerin, Eckstein, Jennings and Plagge were present. A brief opening statement was read by the Chair outlining the role and purpose of the Board and the procedures that would be followed in the meeting. CONSIDERATION OF THE July 13, 2011 MEETING MINUTES: SPECIAL EXCEPTION: EXC11- 00004: Discussion of an application submitted by Kirk and Wim Murray for a special exception to allow a reduction in the rear principal building setback requirement for property located in the Medium - Density Single - Family Residential (RS -8) zone at 1026 Fairchild Street. Board of Adjustment August 17, 2011 Page 2 of 20 Walz noted that she gave a letter to the Board from the neighbors Thomas Fast and Jennifer Carpe of 1118 Fairchild Street and also included new information and photos from the property owner to the north. She noted that she would be going over the memo that was provided to the Board and hoped that it would address any issues that they had from the previous meeting. Walz said that after the last meeting the applicant has inquired why the north property line should be considered the rear property line and what the purpose of the rear yard is. Walz explained in the memo that on a square corner lot the zoning codes states that one of the lot lines opposite the street right -of -way must be designated the rear lot line. There are no guidelines for which property line should be chosen. Walz acknowledged that for this reason the applicant could resubmit her application declaring the west property line as the rear lot line. However, Walz said, for the present application the north property line is designated as the rear. Walz explained that the proposed addition is centered above the existing footprint of the house. The existing footprint will not change. The second floor addition would be 10 feet from the north property line with the first floor structure unchanged at 12 feet. In terms of the west property line the existing structure is five feet from the property line, and the new addition on top would be set back 12 feet. She noted that because it is arbitrary as to which lot is the rear lot line it makes the situation peculiar. Walz stated that the situation is more peculiar because there are two small properties that are nonconforming. The subject property they is set back 39 feet from Center Street, more than twice the minimum setback. Meanwhile, the adjacent property to the north is set closer to Center Street than the minimum setback required. Both properties are set approximately 10 to 12 feet back from the property line that they share. Walz stated that the purpose of the rear set back is to provide private space for each lot for uses or structures that the owner or occupant may not want on the street side of the property line, including accessory structures. Walz summed up stating that in staff's view the application is not contrary to this setback regulations regarding privacy and the physical relationship between buildings for the following reasons; the subject lot is square and reverse corner lot. Also, the surrounding neighborhood is characterized by homes that are set close together at their side lot lines. The subject property currently provides 12 feet of separation at the ground level and that will not change with the new addition. The house is modest in size and would add 143 square feet of living area to the second floor. Both the subject property and the property to the north provide the 10 to 12 feet of separation from their property line with about 20 to 24 feet over all. The applicant has provided an elevation showing their intent to place the windows approximately 5'6" from the floor at the sill height. Walz also noted that these windows would not open to mitigate any concerns of the adjacent neighbor regarding noise. Board of Adjustment August 17, 2011 Page 3 of 20 Sheerin asked for any questions for staff. Kirk and Wim Murray, Iowa City, Iowa, are the applicants/home owners. Wim thanked the Board for having the extra meeting. She stated that the contractor came up with the new window design to address privacy issues. They do not want to make their neighbor unhappy and they plan to live at the house for a long time. Sheerin asked if there were any questions for the applicant. Julie Riggert, Iowa City, Iowa, the occupant and owner of the 509 Center Street--fie thanked the Board for the extra meeting and all the effort that was put into it. Riggert stated that the bottom line would be that if you sat on her deck the view is now a wall. Over half of her tree will come down and the tree only has leaves three months of the year and the rest of the time she would be looking at a window and a wall. It will block the sun on the south side corner of the house. She noted that she uses her yard and deck year round and that is one of the reasons she purchased the house. Her yard gets lots of light. Riggert stated that the addition remains a privacy issue. She stated that she has no problems with her neighbors. She is afraid they will not always be her neighbors, and if the house sells it might become a rental. She feels the house is not conducive to a large family. If it does become a rental there would be 19 and 20 year olds up in the window and that could affect the value of her property. Her home is very small so there would be a limited population who could buy her home. There are steep steps so it would not be for the elderly. She feels that the only people that would buy her home would be a single person or a single person with a child and thinks this addition would invade their privacy. Sheerin asked if there were any questions for Riggert. R.R. (name illegible), Mount Vernon, Iowa, is the significant other of Julie Riggert. He noted that in the- response to poor plannin&y in the Mast all towns were required to produce a comprehensive plan and a subdivision ordinances to stop what is happening to these non - conforming properties. The original owner of the house split the house off and built a house for his son and daughter -in -law. Now you have two noncomplying houses and the state stepped in and said: enough, this can't happen anymore. The house to the west has had four owners. The applicants' house has 3 bedrooms with 1 on the first floor and 2 upstairs. He feels that if you vote in the addition you are adding to the noncompliance and then it may create more of a problem down the road. Sheerin asked if there are any questions for the speaker. Annie Pedersen, Iowa City, Iowa, is Wim's (applicant's) aunt. She stated she understands the objections and that these homes are older and that perhaps they shouldn't be changed. This is a neighborhood area that is meant to be residential. She thinks that the worry that Riggert shared about the house one day becoming a rental is part of what has invaded the north side and areas to the west of the subject property. Pedersen stated it is good to encourage families to stay in the area and that change is not a bad thing. This is a small addition and doesn't feel that the privacy will be affected any more than what it already is because the houses are already close together. She feels the plan is very Board of Adjustment August 17, 2011 Page 4 of 20 reasonable, very thought out and planned solution to the problem that the Murray family has. Sheerin asked if there are any questions for Pedersen. Lee Eno, Iowa City, Iowa, is the contractor working with the Murrays on the plan. The biggest concern from the last meeting was the privacy issue and the discussion of windows. Eno asked the Board members that were not present at the last meeting if they had any questions concerning his drawings of the windows and the remedy for the privacy issue. Jennings asked for confirmation that in order for a room to be considered a bedroom it has to have a ratio of window to floor space. Walz responded by stating that the window just has to provide egress. Eno confirmed that yes there would be an egress window on the Center Street side. Jennings stated that iii-the report cited the the steps to mitigate aU diminished privacy are ii having a non - opening window and raising the height of the windows without compromising the structural integrity of the wall. Eno stated that five feet six inches is the proposed window height. Sheerin asked about the glass. Eno stated it was a regular, transparent glass. He felt that raising the height to 5'6" would eliminate the need for obscurity. He indicated that 5'6" would be eye level for him. He said that if obscuring the windows were required it would be difficult. Eckstein stated she was one of the absent Board members and feels that the drawings are clear and the proposed change is also clear. Sheerin asked for any further questions. Sheerin asked if there were any other public comments for or against the application. Sheerin closed the public hearing. Eckstein moved to approve EXC11- 00004, a special exception to reduce the rear setback requirement for the principal structure at 1026 Fairchild Street from 20 feet to 10 feet subject to the following conditions: • The setback reduction applies to the proposed addition only; • Substantial compliance with the site plan and elevations as submitted by the contractor; • The north facing window will be at the level of five feet six inches and the window will not open; Seconded by Jennings. Sheerin asked if the Board wished to discuss the motion. Board of Adjustment August 17, 2011 Page 5 of 20 Jennings stated that the cause for conflict or resolution has been shifted a little bit from the previous meeting. Initially it was an issue of privacy as well as infringement on the use of one's property with objections based upon that. What was mentioned today were issues of blocking the sun because of raising the height of the building. Jennings is wondering if this is a new issue. Sheerin responded that this is a new issue from the last meeting. Grenis stated at the previous meeting he felt one of the issues was general standard two: that the exception not be injurious to the use and enjoyment of other property. He felt it was fair to the applicant to have all Board members present to weigh in on the issue and that is why they decided to wait for this meeting. Eckstein stated that when she first read the report in July she was sympathetic to both points of view and the complexity of living in the Goosetown Neighborhood, which she is familiar with having lived there herself. She felt, however, given the conditions that everyone has to work with in the neighborhood, she believed it would be inappropriate to deny the Murrays application with the accommodations they had made. The buildings are very close together and that compromises the privacy you would have if you lived in a different neighborhood with a larger lot. However, she stated, she didn't feel that the request to reduce the setback was unreasonable. Plagge stated he agrees with Eckstein that the addition doesn't seem to be out of character with the surrounding neighborhood. He understands the privacy concerns and some can be mitigated by the conditions noted. It was discussed about the shaded windows or texture on the glass to make the windows opaque. Plagge feels that Riggert's point that at some point in the future there may not be a person under five feet living there is valid. He would like to see that point addressed. With an adult living there they would be able to peer out and look onto the Riggerts deck. Sheerin agreed that the applicant has done a lot to mitigate an awkward situation. She would also like to see an opaque glass in to make it as private as possible. Jennings commented as someone that lives on the north side in an area of both rental and owner - occupied properties that houses that are built very close together. He explained the privacy issues with his own house and that of the neighbors next door. Changes in ownership that may happen five to twenty years down the line may infringe o +n the ownership value in the investment. That being said it is difficult to conjecture the impact of who will move, when or where. What is clear is that the conflict is a family wants to build an addition to the house to enable them to stay at the location and a neighbor is concerned that the addition will infringe upon her privacy. Jennings feels that the applicants are doing everything within their power to mitigate the effect of the addition on the neighbor's privacy issue. Sheerin asked for any further discussion. Sheerin asked the Board for findings of fact. Eckstein outlined the specific standards. The property is a square corner lot that is close to both properties in either direction. The 20 foot rear setback requirement is not possible Board of Adjustment August 17, 2011 Page 6 of 20 at this location. The existing first floor of the house is 12 feet from the property line to the north, and the property is smaller than the typical lot in the zone. There is practical difficulty complying with the setback requirements given the peculiarity of this property and its neighbors and the small lot size. The house was set back deep into the lot so the front setback is much larger than the requirement. That means it has short backyard setback. The logical location for an addition would be above the existing first floor structure which is preferable to extending the first floor. Granting the special exception will not be contrary to the purposes of the setback regulations. Those are to maintain light air separation for fire protection and access for fighting. To provide opportunities from privacy between dwellings to reflect the general building scale in placement of the structures in Iowa City neighborhoods. To promote a reasonable physical relationship between buildings and residences and to provide flexibility to site a building so that it is compatible with other buildings within the vicinity. Staff agrees that the application is not contrary to the purposes of the setback regulations because the lot is square and small and the house is set deep back in the lot and the rear setback is only 12 feet on the first floor and those things cannot be changed. The surrounding neighborhood is characterized by small lots that are densely built. It is not unusual for homes, especially on corners, to have side setbacks of 10 feet or less in any manner of other differences. The house currently provides a 12 foot setback from the north property line. The addition would extend out only two feet beyond the existing north wall of the house. The house will remain modest in size with the addition. Any potential negative affects resulting from the setback exception are mitigated to the extent practical including raising the north facing window to a height of five feet six inches. Making the window not able to open and using a window that is not see - through. The subject building will be located no closer than three feet to a side or rear property line. This proposed addition would be located 10 feet from the rear, north, property line. Sheerin outlined the general standards. The specific proposed exception will not be detrimental to or endanger the public health, safety or general welfare. It will not be injurious to the use and enjoyment of other property in the immediate vicinity or substantially or diminish property values in the neighborhood. It will not impede the normal and orderly development and improvement of the surrounding property for uses in the permitted zone. Due to the square shape of subject lot and its relation to the adjacent property to the north the rear setback functions practically as a side setback. The surrounding neighborhood is characterized by small lots with densely built housing. It is not unusual for homes in this neighborhood to have a side setback of ten feet or less. The property will keep a 10 foot setback from the north property line and a five foot side setback from the west property line. In addition a 10 foot side setback has adequate space for fire separation and firefighting access. Board of Adjustment August 17, 2011 Page 7 of 20 The house is modest in size and the proposed addition will increase the living space by 143 square feet and will be located above the existing first floor of the house. The proposed addition is set back 39 feet from the side street lot line such that the addition will not interfere with the street visibility right of way. The glass in the window facing the north side will be opaque to increase the privacy for the neighboring property. Adequate utilities, access roads, drainage and /or necessary facilities, here all necessary utilities are available at the site. In regards to the ingress or egress setback will not bring this structure any closer to the street and will have no effect on visibility or contribute to congestion. This conforms to all regulations and standards of the zone. In order to secure a permit the applicant must submit a site plan to the building official to show it will conform to other zoning requirements. The Comprehensive Plan does not address this situation directly though it does encourage reinvestment in the Iowa City established neighborhoods. Sheerin asked for an amendment to the motion. Eckstein stated that opaque seems not to be the word to describe the window visibility. She noted that you would want light in the room but not the ability to see through it. Sheerin asked if translucent would be a better word. Eckstein agreed. Walz suggested that the Board makes it subject to staff approval. Eckstein moved to amend the recommendation to say that the window on the north side be such that it allows the passage of light into the room but not visibility out of the room. The final design is subject to staff approval. Jennings seconded motion. A vote was taken and the motion carried 5 -0. Sheerin declared the motion approved, noting 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. EXCI1- 00007: Discussion of an application submitted by Streb Construction Co., Inc. for a special exception to allow a concrete manufacturing plant in the General Industrial (I -1) zone on Independence Road, north of 420th Street and south of Liberty Drive. Walz showed the zoning that surrounds the property within city limits. She pointed out the rural areas and stated that those counties are (R -1). The city does not have control over the zoning of county land, but these are areas within the Iowa City growth area. If the areas are rezoned or develop beyond what the county allows the county comes to the City for the recommendation for rezoning. Being within the growth area boundary means Board of Adjustment August 17, 2011 Page 8 of 20 that by 2025 the City foresees the likelihood that this land will be brought into City limits —that it will be served by local utilities, streets, services, etc. Walz showed a large view of the area. The industrial zone begins east of the First Avenue Highway 6 intersection and extends heads east. The industrial area has been there for some decades. There are some (CI -1) zones nearby that may be characterized by outdoor storage or display uses. There is a manufactured housing in an area north of the railroad tracks on the east side of Scott Boulevard with the Village Green neighborhood to the west. Walz pointed out on the comprehensive plan for the City includes a vision for the industrial zone to expand outward to the east. She pointed out where city limits lines are. Walz pointed out e to the Southeast District Plan map showing the industrial areas and noting that the plan was passed within the last year and involved two years of extensive public input, including invitations to all surrounding property owners in the county to meet with staff one -on -one. Any and all were invited to attend the public meetings to plan for the district. Walz stated that the reason for industrial zoning in this area hie is that industrial uses typically need two things: flat land and access to rail and / -or highway. The City views this area as prime industrial land because it has those things. Walz stated that the memo indicated that concrete batch facilities are allowed in two zones. She corrected that the use is actually allowed in three zones: the Heavy Industrial zone (I -2) allows the use by right; in the intensive commercial (CI -1) and the general commercial (I -1) the use is allowed by special exception. Walz explained that a special exception is different from a variance or re- zoning. Special exceptions are written into the code with specific criteria that attempt to address those externalities that are typically associated with that use. In this case the zoning code states heavy manufacturing uses in the (CI -1) and (I -1) zones are limited to concrete batch mix plants. Concrete batch mix plants must meet the standards with the first being that a proposed use must be located at least 500 feet from any residentially owned property. The property is within the city and it is approximately 2000 feet from the residential areas to the north. The second criteria, is all proposed outdoor storage and work areas must be located and screened adequately to reduce dust and visual impact of the proposed use of surrounding properties. The applicant has provided an updated site plan showing the plant with the screening. The site plan shows that around the perimeter of the site, which is the north half of the lot, S3 evergreen screening is provided. The City staff asked that the screening be of quick growing variety. Behind the row of evergreens the site plan shows a line of fast growing deciduous trees. The City has recommended using poplars. The other suggestion made by the City is that the screening be brought along to the west side of the active use area on the site, between the stormwater facility and the active area of the site. Any areas that are not paved or graveled would be covered in turf grass. Board of Adjustment August 17, 2011 Page 9 of 20 Walz noted that the applicant has indicated that the first 50 feet of the drive will be paved in order to prevent dragging gravel onto the public road. Any parking on the site is also required by code to be paved. The rest of the active work area will be gravel and eventually changed to a paved surface over time. Walz indicated that the board has the authority to require hard surface paving over gravel. In regards to the dust control for the facilities this facility is a wet batch facility which is typically less dusty than dry batch facilities. The particular equipment that is used has a bag house which is an "industrial vacuum cleaner" as described by the DNR. Dust is subject to EPA standards and to establish the facility the applicant would have to get a permit from the DNR to show they are controlling for dust. Walz explained that a concern was raised by a neighbor to the property about calcium carbonate dust. The applicant has indicated in a letter that he does not use that in the process. Walz noted that she checked with Iowa State Extension crop specialist Jim Faucet about the effect of batch facilities on adjacent crop land. Walzs said he indicated he is not aware of any issue in regards to these facilities having a negative effect on nearby crop land. Faucet also stated in ,-eg ds to that calcium carbonate is something that is applied to crops. He stated that the facility would have an effect on crops similar to being located next to a heavily used gravel road. The third criteria pertains to traffic circulation and access points. Walz stated that Iowa City has improved 420`" Street specifically for the purpose of serving the expanded industrial zone. This street is a City standard street with turn lanes. The road is meant for the kind of heavy traffic that is put out by an industrial zone. Walz stated that there has been some concern expressed about the height of the towers. This is not an issue that is addressed by criteria for the special exception. The criterion is principally concerned with the active area of this site, the conveyers, the outdoor storage or anything that is dispensing dust and noise. There are other tall structures that are located in the industrial zone. There is the Alpla plant further to the northwest that has large towers directly adjacent to the residential zone. The City plans an area of greater separation between the industrial area and future residential zones. Within the industrial zone, buildings are allowed to be up to 45 feet in height with additional height allowed provided the structure is set back further for each foot of height. Walz summarized that the applicant is seeking approval for a site that is located in the middle of the industrial zone at the far edge of Iowa City —a site that has direct access to the highway along a road that is built specifically for industrial users. City staff recommends approval of the special exception subject to use being located on-con the northern half of the lot, arid- substantial compliance with the site plan submitted with addition of the screening along the western portion of the property, and that- approval is limited to a wet batch facility. Board of Adjustment August 17, 2011 Page 10 of 20 G13renis noted that the mention of additional screening on the west side is not noted in the memo. Walz confirmed that the Board -would need to add this condition to their motion. Eckstein stated she didn't understand why the Board received a safety data sheet about calcium chloride when the issue seemed to be with calcium carbonate. was suppose to be ealeium . Walz stated that the applicant just submitted that information and that the Board would need to ask him directly. Plagge asked about the (I -2) zoning if it was the only industrial zoning that would allow this. Walz stated that there was (1 -2) zoning on South Riverside Drive, which is a salvage yard that has also been granted a special exception. The only other (I -2) zone is south of Burlington Street between Kirkwood and Benton Street where a portion of the City Carton facility has (1 -2) zoning. In time this zone will go away and the City will no longer zone (1 -2) in the center of town. Plagge asked if both areas were already developed. Walz confirmed they were already developed. She also stated that the City does not have a lot of (1 -2) zones because there is not a lot of demand for it and they do not encourage many heavy industrial uses. Sheerin asked for any further questions for staff. Steve Streb, Riverside, Iowa, with Streb Construction stated the City did a good job in the description. He felt like there was some confusion when he talked to Mr. Prybil about his concerns. Cealcium chloride thrt -is used in concrete to speed up the curing process -.—T that was the subject of the safety data sheet that Eckstein asked about. Streb stated he w4s-had eanfusedcon fused by the teffn; calcium chloride and fie- calcium carbonate. The calcium carbonate, whieli -about which Prybil was concerned. with is the dust from the rock piles. Eckstein asked if she understood correctly that the calcium chloride selation is a liquid. Streb confirmed that is correct. Walz clarified that calcium chloride solution may be used at a construction site but not at the batch facility. Calcium carbonate is the dust from the rocks that would be stored at the facility. Streb continued saying that calcium chloride is used to speed up the curing process. In twenty years they have only had to use the solution once when there= Fher-e were time restrictions on when they were able to do the work. Streb explained that you had to mix the solution with the batch right before you use it because otherwise it would harden too quickly which is why they wait to mix until they are at the site. Streb stated that in 1998 they had come to the board with the same idea on a different lot in the industrial zone. The three reasons it was denied were the facility would be the first use to go up in a new industrial park and it might discourage other uses from locating in the park. The second was the potential noise pollution and dust may have a negative impact on near -by agricultural and residential uses. The final was that 4201h street was not in a condition to handle the high level truck traffic that the plant would generate. Board of Adjustment August 17, 2011 Page 11 of 20 Streb noted that 4201h Street has been improved recently. He provided pictures of various businesses located near batch plants in the area to demonstrate that businesses do locate next to concrete plants. In the ten plus years since the last Board of Adjustment the technology has gotten so much better by way of controlling the dust from the mixing process. They do follow EPA and DNR regulations and the government agenciesy do site visits. The equipment has improved with the super suckers that have huge cartridges that collect the dust and the cartridges have to be changed either twice a year or yearly. Streb stated that the issue of Ore potential dust that hashaving a possible negative impact on the nearby agricultural fields and was not a concern he had been prepared to answer at the time of the were not pi- •pared fiW that 6 effl with the 1998 special exception. He noted that the City has now addressed the issue well with the information from the Iowa State Extension office. The dust that is being talked about t13at -as possibly eaffectii�s their crops is what is hauled every fall onto farmland to lower the pH balance of the ground. He is unsure eii-how this concern could be a negative impact on the agricultural plants. Walz clarified that while the board had denied the special exception in 1998, City staff had recommended approval at the time. Streb stated that Walz had asked him what the maximum height would be. He wasn't sure what height so he did research and picked a height of 53 feet. Walz stated that the screening is designed to minimize views of the active portion of the site, the conveyors, truck activity, and out -door storage. Many uses in an industrial zone are allowed to be 45 feet in height and higher. There are certain uses that do not have a- height restrictions at all. Streb stated that his point was that the maximum height would be the 53 feet for his facility, but that it may be lower. Sheerin asked if there were any questions. Jennings asked cif all the areas in which the dust would occur are being addressed or 4 whether there were are other ways to mitigate the dust besides the super sucker. Walz stated that the applicant could address the equipment and how that handles the dust. The DNR has requirements that would address the dust issue. Streb noted what happensthat at #-he -his other plant that t- hey -awn-in Coralville is that they use a water truck to wet down the area. The DNR and EPA do not allow fugitive dust to leave the site. He discussed another ways that they ea °'�jo eleviate the dust -i-t would be to lowerd-re-F heights from conveyorss e*to stacks. -The agro kit that it comes in is wet. If there is a dry spell then they use the water truck to help stop the dust and then the screen would be a huge factor in mitigating that dust. Jennings asked if the instaillation of the mechanical filtering devise addresses issues within the mixing process. Streb confirmed that wasthis as correct and that there are standards that they have to follow. He discussed the process of a dry plant and stated what he is proposing is a wet batch plant. The water and aggregates go into a drum to Board of Adjustment August 17, 2011 Page 12 of 20 minimize the dust, then it mixes in the drums and then it is dumped either into a dump truck or a mixer truck, then transported to its site. Grenis asked if Streb had already applied for the air quality permit from the DNR. Streb said they have not yet applied but they are aware of the standards because they do currently have the permit at the Coralville location. Grenis asked if it was correct that they would only be paving a portion of the driveway. Streb said yes theirre plan is to pave at least the first 50 feet of driveway to elevate any gravel from getting onto the public roadi; then over time they would pave the entire area with leftover mix that comes back on the trucks. Sheerin asked about how long the process would take to pave the entire area. Streb stated probably three years depending on how well his men calculate their yield. Sheerin opened the issue for public discussion. Eldon Prybil, Iowa City, Iowa, is the owner of farmland next to the proposed location. He noted he is pro Iowa City and they have done much in support of the area. Prybil stated that there was an incorrect statement made by the City from the County extension. Calcium carbonate is a large factor in growing healthy crops as well as lime. These are spread on the ground and not on top of the foliage because that is what kills the plant. Prybil asked the board how the lot line would go on this property that is proposed. Eckstein asked for clarification to Prybil's question. Prybil stated he wanted to know where the lot line would be and if it would touch his lot line. Walz stated that his lot line is shared with the proposed area. Prybil stated that they are in the county and that the lot line ins rural Johnson County is different than in Iowa City_ Line asked that it be explained. Walz responded that she was not aware of any difference and deferred to Holecek for clarification. Holecek stated that Prybil shares a property line along the eastern boarder with the proposed site. Walz stated that at the time that the applicant submits the site plan they will have to show that the construction of the facility is on their own property. Prybil stated that there would have to be a three foot easement in rural Johnson County. Walz responded stating that if that is a requirement then the applicant would be required to do that. She stated that the applicant would be subject to all easements that exist on his lot as well as any setback requirements from the City. Holecek confirmed that Prybil was correct that in the Johnson County zoning code that you would not be able to build closer than three feet to the adjoining lot line —that would apply to land in the county only. Prybil stated he would like clarification from Walz about the fast growing trees and the other row behind them. Walz stated that City staff suggested that the applicant puts a row on the outside of fast growing evergreens that meet the (S3) standard that grow to a height of no less than six feet. Behind the row of evergreens, closer to the facility itself, there is a row of deciduous fast growing trees such as poplar. That way there would be height to catch any additional dust and views of conveyors. Board of Adjustment August 17, 2011 Page 13 of 20 Prybil asked if the City would allow this fast growing tree to shade his crops to hinder his yield. Walz stated that it would be allowed. Prybil noted that he would not allow it. Walz continued stating that it would be regarded similar to a warehouse built in that location — anyone in that location would be allowed to build according to the zoning codes. Prybil asked where the row of fast growing trees would be located. Walz stated approximately 10 feet off of the property line and confirmed another row would be about 10 to 20 feet behind the first row. Prybil stated then that the second row would be on his property about 10 feet. Walz corrected Prybil stating that nothing is allowed to be on his property, that it is only allowed on the applicant's own property. She stated that the applicant would not be approved for a permit if he proposed to put anything on Prybil's property. Walz also noted that anything put on Prybil's property could be removed at his discretion. Prybil asked if anyone has been to the other sites where concrete plants are located. Walz stated she didn't know if any of the Board members had but she has been to locations. Prybil asked if there was any greenery around those places. Walz stated that most of the plants are in Coralville and they do not have the same standards. Prybil reiterated that he was concerned about his crops. Walz wanted to correct herself if she had misspoken,, *,,4 the Iowa State Extension crop specialist and he did say calcium carbonate is applied to crop land not crops. She asked him specifically the impact such a facility would have on crops. The crop specialist indicated that he was not aware of anything beyond what one would experience on a well -- traveled gravel road. Holecek clarified when Walz was explaining where the trees would be for the screening it would be 10 feet away from the property line with the next interior screen of trees another step toward the interior. There would be a significant separation between Prybil's property line and the screening of trees. Sheerin asked if there were any other comments. Steve Ballard, Iowa City, Iowa a lawyer representing the Prybil family investments spoke.- Steve went over a power point that he created. He showed a picture of the Prybil properties. He addressed the special exceptions requirements. The first is the notion that the property has to be located 500 feet from any residentially zoned property. He doesn't have any objection or contest that it is there. He was glad that the City pointed out that there is property where people are going to be concerned and affected by what the Board decides. The proposed cement lint isa4 pretty close to the 500 feet from a residential use. He feels the Board will serve everyone well if it considers the people that are on the other side of the property line, especially if the City staff is saying that the City will grow out in that direction in the next 10 to 15 years. Board of Adjustment August 17, 2011 Page 14 of 20 Ballard stated that the next requirement is proposed outdoor storage is located and screened adequately to reduce noise, dust and the visual impact. He stated that it is going to be a big facility. The proposal is to use trees as screening for a 53 foot facility. He stated that the City noted that the present zoning if the special exception is permitted would allow a 45 foot facility and with further exception it could be as tall as 53 feet. Ballard stated that there is no natural buffer in that area. He said it will be years before the trees will be adequate enough to screen and even at full maturity the trees will not provide a protective buffer. Ballard said it would be a good idea for the Board to go out and see these other concrete properties to be able to see the heavy traffic. This produces a lot of dust, noise and large piles of aggregate sand. He showed pictures of the Streb Concrete plant that is located out in Coralville pointing out the retaining wall, the lack of vegetative screening, the conveyors, and the large towers. The plant is located near Lowes on the south of Highway 6. Ballard noted that there is a gravel road that ends somewhere south of the Iowa Interstate Railroad. He pointed out that it is not just straight gravel anymore. There is the concrete matter that is now also apart of the road. Ballard showed a picture of a tower noting there is a regular spray of a certain amount of dust that comes out of the tower about every 10 to 15 minutes while in operation. He showed a picture of a bridge that had a large amount of dust that goes down the intake into the stream below. He asked that a video be played. The video would not show up on the screen for all to see. Ballard stated that the video shows the dust in the area. The next requirement is the traffic circulation. The roads in the industrial zone were designed for the (I -1) general industrial use not the heavy industrial use as proposed. Ballard stated the next criterion is that the exception won't be detrimental or endanger public health, safety, comfort or general welfare. He feels that the staff report doesn't address the negative impact that the concrete plant is going to have on the surrounding properties. Plagge asked if he had any studies or evidence that shows decreased crop redo tiownEr 2duction next to concrete plants. Ballard stated he did not but that someone else would speak to the agricultural aspect. He said he is more concerned with things that the Board decided in 1998 saying the plant wouldn't be good then and he feels it still wouldn't be good now. Ballard noted that the plant will be visible for years; the dust created will have a negative effect on businesses in the industrial park. There was a concern in 1998 if business would locate in the industrial park if the exception was approved then. There are businesses there now and farther to the east. T-there is a proposed growth area that is mostly industrial. He feels there will be that same concern of whether business will locate in the future growth area if there is a concrete plant there. He encourages the Board to go back and look at the 1998 file and staff reports. There is an e-mail in the packet from one of the closest neighbors. The neighbor told Ballard that he felt this would be a disaster for him because he keeps his doors open to Board of Adjustment August 17, 2011 Page 15 of 20 accommodate the employees with the fresh air, which would not be possible if there was dust everywhere. Ballard pointed out that the Prybil's have donated land to the City for use as a road to the East of his property that is adjacent to the applicants' property. He showed the Southeast District plan and explained that the purple area is designated as general industrial. Plagge stated that Ballard had stated that the purple area is currently owned by his clients and fhei-- theyare concerned about potential development of the crop land and the nature of the development because of this. Ballard clarified that not all of the area in purple is owned by his client but some of it is. They anticipate that at some point their crop land may be developed. That is one of the reasons that they permitted the dedication of the road to facilitate a north--south thoroughfare. They are concerned not for the present agricultural use but for the future industrial use. There are some notes from some real - estate agents saying that this will negatively affect property values. The Southeast District plan talks about encouraging green development. There is public support for encouraging green development in future industrial areas. Ballard states that this application is not encouraging green development. Ballard stated that there has been discussion about how there are some other commercial uses near by the industrial zone as well as in the zone. It seems that for those commercial uses that currently exist or that might locate nearby this would be detrimental for them. The next criterion talks about not impeding normal and orderly development. The Southeast District plan talked about general industrial zone not heavy industrial use. It talked about green development and not batch concrete plants. Ballard summed it up by stating that their view is the plant is going to change the character of the light industrial zone and general industrial zone. That it is inconsistent with the Southeast District plan and that these sorts of uses should be permitted where they are appropriate —in the (I -2) zone. In 1998 the Board found that the heavy industry might discourage other uses. There are still great portions in this area that are not developed. The Board found that noise and air pollution would have a negative impact on nearby agricultural and residential use. He notes that the staff report says nothing about the impact on agricultural use. Plagge stated that he doesn't see that Ballard has shown any evidence that it is a negative impact on agricultural use. Ballard stated that there will be more representation on the agricultural use by another party that will speak. His final note was that the Board did not find that the trees would effectively screen the area. The Streb family owns a large part of the development of the Scott and Highway 6. The people who might be perspective owners and those that are owners should have the same right as the Streb family in 1998 to be able to sell their property or think about developing their property without having to worry about the concrete batch plant. The Board protected the interest of those people in 1998 and he is asking the Board do the same and deny the special exception. Board of Adjustment August 17, 2011 Page 16 of 20 Grenis asked if the plant in Coralville that Ballard showed pictures of was a wet batch concrete plant. Ballard stated he did not know if it was. Grenis stated that when he read the Comprehensive Plan's reference to green development, he thought that was more about the types of manufacturing to attract as opposed to business for the industrial park. Ballard stated he thought the reading talked about both. Walz confirmeds that yes it talks about both. She stated that a large area of industrial property to the east is owned by the City and is being developed for potential use by a wind energy company. The City views that this area is an appropriate spot for the batch plant. The eastside of Iowa City is an area that will grow. Concrete will have to get to this area somehow, and placing it the middle of the industrial zone with the screening provisions that the City has outlined would be in keeping with the Comprehensive Plan. Walz stated that in regards to the roads not being created to sustain a use like this, the City engineers do review the staff report. The City engineers have cleared this type of use on the road. Ballard noted that he had stated that the road was designed for the (I -1) zone not (I -2) and that=flit -the general industrial zone and tfie -uses that were talked about in 1998 and the uses that are out there today ape-do not g =,enerate the constant stream of truck traffic that you have with a concrete batch plant. Ballard asked for the video to be tried and viewed again. There was no success in getting the video to show up. Sheerin noted that it was time to move on. Walz asked what was being demonstrated in the video. Ballard stated it was to show what it looks like at the plant in Coralville. Walz stated she would pass the video along to the Board and noted that it was a clip of a truck driving along a gravel road. Ballard said the first part is, but where the concrete plant is it is not a gravel road. He wants the Board to be able to see what the plant looked like while operating. Holeeek asked if the City staff would be able to use Ballard's jump drive to print out the pictures, slide show, comments for the record. Ballard confirmed. Plagge asked Walz to clarify if there were any homesteads within the 500 feet. Walz stated that there are some just outside the 500 feet. Sheerin asked if there was anyone else that would like to speak. Phillip Prybil, Iowa City, Iowa, stated he feels the Streb family has done a nice job developing a great addition to the City of Iowa City and their industrial park of Scott Boulevard and Highway 6. He stated that the Strebs did choose the zoning for that park. They requested the I -1 zoning from the City and received it. If they had wanted to put a concrete batch plant on it originally they could have sought heavy industrial zoning. This was an issue brought up in 1998. He was present at that meeting along with 20 other Board of Adjustment August 17, 2011 Page 17 of 20 people., many of whom spoke at that meeting. The uniform response he has received from those people today is that they believed the use was voted down in 1998. He asked if the situation is really all that different from then. Prybil stated that Walz says it is and the road has improved. However, he believes that the situation on the ground in terms of what is out there and what will be out there is much the same as it was in 1998. He feels it is more important that a concrete batch plant not be built there today by virtue of the City's plan for the area but--and noted that there is no natural buffer between the proms plant and other uses. Prybil noted that he has a BS in agronomy. Calcium carbonate is nothing more than material that makes soil more basic. This is applied to the ground and additional calcium carbonate flowing off of the gravel road also makes ground more basic. When someone purchases a piece of ground next to a gravel road you have to treat it differently than you treat the rest of a parcel. When calcium carbonate is present in such levels that it makes the ground so basic that it's not productive., it becomes an issue. Prybil feels that for someone to say that it can't be an issue or that calcium carbonate won't ever be an issue is absurd. The extension person's comment saying that it is similar is true. Iit is a function of degrees. Sheerin asked the Board for any questions. Sheerin asked if there was anyone else that would like to speak. Sheerin asked Streb if he would like to respond to any of the items talked about. Streb stated that he understands that the (I -1) zone does allow concrete plants but by special exception only. The other item he found that was spoken about that was not correct was the information about the wind energy company. He believes the company that is coming into Iowa City is an 85 million dollar venture is a foundry. So he feels that it would be very heavy industrial. Grenis asked if Streb knew if the plant in Coralville was a wet batch plant. Streb stated that it is a wet batch plant. Walz stated that it is up to the Board if they wanted to give their decision now but there was a lot of new information presented and they should not feel pressed for time. Holecek stated there are a number of things that could be discussed. Walz stated the Board could view the video before they leave. Sheerin asked if Streb was finished speaking. Streb stated their concrete plant is out in the county, there are no screening requirements and it is on gravel road from Highway 6 all the way to the River products. They are on rented ground so they could be kicked off at any time should that owner decide. There is a farm operation to the east of their plant that has been in production for many years. He referred to the photos he had provided and stated that businesses have located near these plants so to say that property values will diminish or to say that people won't locate next to a concrete batch plant is false. Board of Adjustment August 17, 2011 Page 18 of 20 Sheerin asked for their options. Holecek stated that the Board could continue the public hearing or could close the public hearing. There after the board could choose to defer and render the deliberations and decisions at another time. Walz stated there is only one case at the September 14 meeting. She did not want the Board to be pressured for a decision. This would give the Board time to go through all the information; they can view the video at some other time without comment. Holocek stated the most import thing to figure out is if they would need to continue the public hearing or close it. Sheerin asked the Board if they needed to continue. Sheerin stated she would close the public hearing. She asked if they needed to make a motion to defer to the next meeting. Holecek confirmed= unless they wanted to set up a special meeting in between to render the decision. Sheerin and Walz stated there was time at the next meeting. Walz stated this would be the first item of discussion. Eckstein pointed out that the most important thing was to not view the video because there are all the photographs available and that the video and photographs are from a particular point of view. She feels that it would be better to drive by the areas and view them in person. Holecek stated that the Board should not go together; they should go on their own and should not even talk about it. Jennings moved to defer the decision on EXC11 -00007 for the special exception for proposed cement batch mix facility located in Lot 35 of Scott Industrial area north of 420th Street and south of Liberty Drive until the September meeting. Seconded by Eckstein. A vote was taken and the motion carried 5 -0. Walz reminded the Board that in the interest of avoiding ex parte communication the board should not take any phone calls, from the press or individuals on either side. Walz stated she would not speak to the Board on the matter and that everything needs to be on the public record. Linda Prybil, Iowa City, Iowa, had a procedural question. She stated that her concern is the process of notification of people with interest in the area. The notification was very sparse and not a good way to provide good feelings about the growth of Iowa City and this area. Prybil stated that it bothered her that Walz had stated quote "that the three board members in attendance tonight are in favor of the motion" and stating that basically there is no reason to come. Prybil stated that Walz shared this with us and feels it is very inappropriate. She should not know how the board is going to vote beforehand. Walz stated she did not know what Prybil was talking about. Prybil stated that the fact is that Walz should not know how the Board feels before #rand. Walz stated she did not know. Plagge stated that he did not think that any one of them had talked with Walz regarding this special exception. Board of Adjustment August 17, 2011 Page 19 of 20 Walz stated that the City meets the legal requirement because the notice is published in the paper, they posted the land, and send letters to any property owner within 300 feet. Walz stated that concern was expressed that people didn't have enough forewarning and so the Board gave more time by deferring to this special meeting. Walz stated that she has had no conversation with the Board members and does not know how they feel about the case. She stated that what she did say was in order for the special exception to be approved, with just three members being at the original meeting, all three would have to vote in favor of the exception. Therefore she believed the applicant would be inclined to defer in order to have five members present. She stated she has no idea how the board will vote. Sheerin pointed out that the Board has not even discussed amongst themselves on how they are going to vote. Prybil stated she thinks that that kind of information is a little troubling. Sheerin asked for clarification on the type of information that Prybil was talking about. Prybil stated it was in regards to Walz's comment that three of the Board members were going to vote in favor. Sheerin stated that Walz did not make that statement. Walz stated that it would be a requirement that all three vote in favor if the special exception were to be approved. L. Prybil continued stating that she spoke with a business person who was very upset about not being informed. This person was very upset when talking with Walz because Walz tried to convince this person why the plant should be built. Prybil feels that if 4wWalz should be sharing information of both sides or should be impartial. Prybil thinks this is a tricky development and as staff they have to be more careful about how they speak to the public. Walz asked Holecek if they would resend letters if it is deferred. Holecek stated they typically do not. Walz stated that there will be a notice in the paper and the land will remained posted. ADJOURNMENT: Sheerin adjourned the meeting. The meeting was adjourned on a 5 -0 vote. H W � U (1) w G W V LQL.QN Op 0 �W Q� mQ c E N N Q r,� O 0`-O - N N 7 N N O 0) O 7 (u mQa E O O -00 O O` U O) N X � O N _ C N Z> Q> E ca U) dQQZ Z u n w n XOOZ w Y ti XXXXX co CD co OXOXX OXOXX co XXXXX co M XXXXX eh XXXXX N XXX 1 X LV M O O TI- O VI- O T- O wa: NNNNN w O O O O O C � 4 1 ._ C, N W N C7 •F CU (n C U' C d LLI CIO 2 - 0 Q O — to z mm QU E O O -00 O O` U O) N X � O N _ C N Z> Q> E ca U) dQQZ Z u n w n XOOZ w Y MINUTES PRELIMINARY BOARD OF ADJUSTMENT September 14, 2011 - 5:15 PM CITY HALL, EMMA HARVAT HALL MEMBERS PRESENT: Brock Grenis, Adam Plagge, Caroline Sheerin, Will Jennings, Barbara Eckstein MEMBERS ABSENT: STAFF PRESENT: Sarah Walz, Sarah Holecek OTHERS PRESENT: Sam Gilbaugh, Steve Streb, Steve Ballard RECOMMENDATIONS TO CITY COUNCIL: None. CALL TO ORDER: The meeting was called to order at 5:15 PM. ROLL CALL: Grenis, Sheerin, Plagge, Jennings, and Eckstein were present. A brief opening statement was read by the Chair outlining the role and purpose of the Board and the procedures that would be followed in the meeting. CONSIDERATION OF THE August 10, 2011 MEETING MINUTES: Grenis moved to approve the minutes as amended. Plagge seconded. A vote was taken and the motion carried 6 -0. CONSIDERATION OF THE August 17, 2011 MEETING MINUTES: Jennings asked for clarification on page four, third paragraph, on the second to last sentence. Formatted Walz stated the minutes should state that,raising the height and having a non - opening window Heisted: would mitigate issues of privacy. Jennings confirmed. Walz stated she would add the privacy issue. Board of Adjustment September 14, 2011 Page 2 of 14 Eckstein stated she had clarity corrections. She asked if she would be able to just hand in the corrections to be corrected rather than go through all of them at the meeting. Sheerin stated that would be fine as long as they were not substantive. Holecek asked if there were both substantive and clarity. Eckstein stated that they were maters of clarity. Holecek stated that when the minutes are revised that track changes used so that the Board knows what was changes are so that when it comes back to the full Board. Sheerin asked then if the Board should not vote on them yet. Holecek confirmed that was correct. Sheerin stated that they would be approved at the next meeting. SPECIAL EXCEPTION: EXC11- 00007: Board deliberation of an application submitted by Streb Construction Co., Inc. for a special exception to allow a concrete manufacturing plant in the General Industrial (1 -1) zone on Independence Road, north of 4201h Street and south of Liberty Drive. Sheerin stated that all the public had already been heard so they would be moving on to the deliberation portion. Holecek stated that at the last meeting the Board did receive a lot of material and information. The bylaws for the Board do contemplate that if during deliberation the Board has questions of persons who have submitted testimony that the Board may ask questions for clarification during deliberation. Jennings asked if they may also ask those questions of clarifications of City staff. Holecek confirmed that is okay. Jennings asked whether an active motion was on the floor. Holecek stated that a motion needed to be made. At the last meeting the public hearing was closed and the matter of deliberation was deferred until today. She does not believe that there was a motion on the floor at the end of the last meeting. Jennings asked if they would need a motion prior to beginning open formal deliberation or can the Board discuss among themselves in a public venue. Sheerin stated they have done it differently in the past but it was agreed that a motion would be given first. Holecek confirmed that was correct. It was decided to do motions first because that allows you to have friendly amendments and hostile amendments. Grenis moved to approve special exception EXC11 -00007 special exception to allow a concrete manufacturing plant in the general industrial zone on Independence Road north of 420`h Street and south of Liberty Drive subject to the following conditions. Substantial compliance with the site plan submitted with the addition of the following landscaping: screening to the S -3 standard is provided along the north edge of Lot 35 and in the western area between the detention basin and the concrete plant itself. Taller varieties of trees are mixed with the proposed evergreen screen. All areas outside of driveway and batch facility and loading area should be landscaped with turf grass or other approved vegetative ground cover. The approval is for a wet batch mix facility only. Plagge seconded. Eckstein noted two things. In the description from the staff it seemed clearer that the taller trees would be a second interior screen, closer to the plant than the evergreen screen rather than Board of Adjustment September 14, 2011 Page 3 of 14 mixed suggest back and forth. As well as the concern about the shade, she wants to be clear that those taller trees are closer to the plant not further away or even, as would seem to be implied by the condition, at the same distance as the evergreen trees. Eckstein stated that the other point that is not addressed is the discussion on how much of the drive up to the plant that the trucks would traverse would be paved concrete. The applicant proposes a certain amount of feet from the street and then indicates that as batches are left over that he would then pave more of the site. It seems that it is also a measure of good faith. She asked whether�he specifics of what should be paved should be part of the motion. Deleted: I Sheerin stated that she agrees but is conflicted because cutting down on the dust and gravel kicking up from the road is really important but the proposal,also seems like a good use of the Deleted: access concrete. She is wondering if there would be a middle ground by stating by "X" date the drive would need to be fully paved. If they have not had it filled in about a year from now it would have to be fully paved at that point so it doesn't end of being a ten year project. Plagge agreed that it could be one to two years. Sheerin asked whether the Board is referring to the long narrow drive or to the entire area where trucks will be. Eckstein stated she only meant the drive. Sheerin confirmed she was only thinking of the drive. Eckstein asked if the Board could ask the applicant how long it would take. Walz stated that the applicant indicated last time that it would be two to three years but it depended on how much gets brought back. Grenis stated that he likes both of the recommendations with the trees and the paving the entire driveway. He recommended it be done by two years. Sheerin agreed and asked if that would be a provision that could be put in. Holecek stated that the Board could do a friendly amendment by the person that moved and the person that seconded. Walz asked for a starting date for the two -year period. She suggested f rom the time of occupancy permit. Holecek agreed that it should be from the start of the occupancy to be the cleanest. ......... _ ........... .... .... ............ .. agge stated that as far as discussing of whether it meets the criteria, the three issues he sees Deleted: s are the visual impact, the dust impact and then the traffic impact. He stated he doesn't see the visual impact as being an issue that if it was a corn elevator no one would be having an issue over it. The dust impact has been resolved by the new road and has not seen any substantial evidence that it would be impacting the agricultural land. The traffic impact according to City staff has been satisfied as well. Grenis added that he did visit the concrete facilities in Coralville on First Avenue and the one on South Riverside Drive and they did not seem like that bad of a dust generator and did not think that it would make this situation so bad on the neighboring properties. Jennings stated he shares those sentiments but he is also concerned how the issue of dust is being discussed or how the Board is interpreting dust in dust mitigation and what are dust standards. He stated he has some concerns after reading through the supplemental material supplied by the DNR and others. He considers some to be less than helpful comments like its calcium it is in bones and it is in teeth and so therefore it is not a problem. It seems to be correlative not cause and effect. If you are an asthmatic and you are allergic to dust it doesn't matter whether that dust can be found in bones and teeth if you are breathing it. Board of Adjustment September 14, 2011 Page 4 of 14 Jennings stated that when discussing the impact on issuing a special exception on this and in reading the language and it says it is important to make a distinction between a special exception variance. A special exception is required in instances when a use may be appropriate in a particular zone but has externalities such that may not be appropriate on any and all property with that zoning designation. He stated that what he is hearing in terms of the objections that are being raised to this are two competing ideas. One says that the dust is detrimental on an environmental basis that it causes either damage to crops or has an environmental impact on people breathing. Therefore mitigation efforts that the applicant has offered in good faith, spraying water, state of the art technology could be put in place in such plants that were not in place ten or fifteen years ago. Those things can be mitigated. The other item being raised in the objection is that there is an economic impact. The surrounding owners are objecting that the siting of this plan will create economic impact on their future ability to use their property. Plagge asked if Jennings was referring to the farm land. Jennings confirmed that was correct and that the arguments that were made in the public hearing seem to be contradictory. Not necessarily contradictory but for them to say one way this or one way that and he wants to be clear on separating them. Jennings stated he wanted to be clear that if this plant is put in the location no one else will want to locate there. Or that you wouldn't be able to sell the land to potential light industrial users because they won't want to locate near a wet batch facility. That there is something associated with these facilities that makes people not want to locate by them. That is a future economic impact. Jennings stated that then there is also an argument madq„about what is being addressed oeiecea:. _ environmentally or dust mitigation. Sheerin stated that this is an industrial zone, and that the fPormatted: Not H 9hr9ht idea is that there will be more industrial uses in the future. If there was talk about putting this in l the middle of a residential area then there could be a point. She asked if it was not correct that this would be placed in an 1 -1 zone. Plagge stated that not only that but there are no 1 -2 zones in Iowa City at this point. It seems to be the most logical place for a necessary industry. Sheerin stated that Jennings needs to take into account the zone. Jennings stated that he was not objecting he was just trying to separate because the objections that were made during the discussion were two pronged in his mind. One was that this would have an impact on the future financial use of this property and the other was that it would have an immediate environmental impact that is detrimental to our arguments at this property. In other words, it would effect the immediate present day use of this property and down the line it would have a future impact on the potential to sell or use the property. Either it is a sequential argument or it is one or the other. He stated he finds it hard to say that the dust is going to cut the crop yields and therefore you wouldn't be able to sell this for other light industrial use. It doesn't seem congruent. Eckstein stated that distinction that Jennings is making is useful and that was the kind of objections that were heard. They were not all environmental, and they were not all about the dust, and there were ones about economic impact. She stated that to her ear and eye for good reason those were less pointed because it was talked about a speculative future. There are a number of cases that speculate on what will happen to this and that property in the future. Sheerin stated that was the argument that was heard in the prior application as well. Eckstein stated she didn't think it was an illegitimate concern on part of the public or for the Board. She does feel it is the Board's responsibility to make a judgment knowing that none of them know the future for sure. Board of Adjustment September 14, 2011 Page 5 of 14 Eckstein stated that this was zoned as an industrial area and it is the right place to consider a special exception like what is proposed. It is hard to consider what would happen in the future. Sheerin stated that there could be a new zoning code by then. Eckstein stated that she appreciated that Jennings made the distinction between the two objections that the public had. She thinks that one is more concrete than the other and it is more material and it is within the present purview to understand. Jennings stated that Eckstein has articulated that very well. He wanted to make sure that because apart of the public hearing seemed to be rushed -- there was a lot of information Deleted: o coming at the Board from a couple of different angles. In the Board's deliberations he wanted to make sure that the concerns were being addressed. That as a Board it needs to be noted that it is an appropriate exception to grant for the reasons in the findings and with the lack of suitable locations of such plants. Sheerin stated that it was a helpful distinction that Jennings made structurally and she asked if he had any comments substantively on either of the concerns. Jennings responded stating that his question seems basic: that when the Board says in its deliberation that "this is an appropriate use of an industrial zone" then an immediate question is "why is an exception necessary?" He stated that if this is a reasonable use of this space then why is there an exception required. The key language in the proposal it says, 'but has externalities such that may not be appropriate.' He wants to note that the externalities brought to the Board's attention were both a future economic impact of land use as wells immediate environmental. Sheerin asked Jennings where he came out on the externalities. Jennings stated that he agrees with Eckstein's summary of that one cannot predict the future from the speculative nature of this and he finds himself in agreement with sentiments stated by other members of the Board to this point. He stated that he finds troubling that they look at something that says this is an obvious candidate for an exception based on the lack of any other place to put something. Jennings stated that he could see that reasoning being applied in a lot of other ways and he is concerned as sort of an argument. Sheerin stated that she doesn't use that as a basis for her argument. She thinks that this is an industrial zone and to her that is more important than that there is no other place to put it because, well, there is no place else to put a nuclear reactor and they wouldn't put that in because where else to put it. She stated she agrees with Jennings the persuasive value of that is limited, it's there but it is not as strongly persuasive to her if they were to put this in a RS zone. Jennings stated he understood that. Plagge stated he agrees with Sheerin that he wouldn't be opposed to a recommendation to the City that there should be some sort of zoning for 1 -2 for necessary industries. So that they would not be required to ask for a special exception because it would certainly uncomplicated the matter if there was a place by right that they could locate. He stated that it is probably an issue of practicality. Walz stated that concrete facilities are allowed by right in the 1 -2 zone. Part of the consideration of the 1 -1 zone is where the 1 -1 zone is in town. For example there is an 1 -1 zone just off of Gilbert Street south of Burlington. That would be an area that it is unlikely that staff would recommend this use based on its location. Sheerin asked if it was where the animal shelter use Board of Adjustment September 14, 2011 Page 6 of 14 to be? Walz stated that it is within blocks of that area Eckstein stated that one of the notes that they received from a business owner in industrial area who talked about keeping the doors of the establishment open for his workers to get fresh air and that this would effect that. She asked Walz if she could locate the business for them in relative to this proposed site. Walz pointed out what lot it was stating it was right next door. Eckstein asked if the lot is the one directly behind it. Walz pointed out that the proposed site in on the north half of the lot next -door. Lot -wise it is their next door neighbor to the south. Eckstein stated that in the picture it looks like there is a large garage door facing toward the lot. Walz stated that she didn't not think that was a garage door she thought it was grass. She pointed out that there were doors on that side the facility and that there was a door on the back. The applicant, Steve Streb stated that the garage doors were on the south side and there are lock doors for fire on the north side. He noted that there was a picture of the building. Walz found the picture and showed it to the Board on screen. Eckstein asked for the design of the plant with the drive. Walz stated she did not have a slide of the design to show, but that it was in the packet of information. She stated that they had proposed to flop that so that it was the mirror image on the north side of Lot 35. The applicant had updated the site plan and it was included with the memo that was submitted on August 10. Eckstein asked where the neighbogng building was located. Sheerin stated it was on Lot 36. Deleted: h Walz stated that the long warehouse that is in the picture js Lot 34 to the north of the subject lot. _ Deleted: Walz stated that the proposed plant is on the northern half of the lot and the entire lot it looks - — like it is 355 feet wide, so there is approximately 175 feet of depth on the south half of the lot. Grenis amended the motion so that the second condition that the taller variety of trees are closer to the concrete plant than the adjacent evergreen vegetation. Walz stated that he could say an interior line. Holecek stated that the taller trees are closer to plant and the evergreen screening is toward the exterior. Grenis stated that another condition is that the paved driveway in the site plan includes the remainder of the driveway be paved within two years of the occupancy permit. Plagge seconded the motion Eckstein reported the findings of fact. In regards to specific standards; the proposed use is located at least five hundred feet from any residentially owned property. It is currently two thousand feet from a residential zone. The screening that is in the motion will satisfy S -3 standards along all sides of the batch plant area to screen views to the side and minimize dust with tall fast growing deciduous trees species such as poplar on the interior which is to say closer to the plant combined with evergreen outside of them in order to minimize views also of the tower and other equipment in storage of the facility and the back and forth of the traffic. The Board finds that traffic circulation and access points are designed to prevent hazards to adjacent streets or property. The site plan shows access to the concrete batch plant from Independence Road, which is designed and constructed for the types of vehicles and traffic associated with industrial uses. 4201h Street has been improved over the last years, which is to say the street running along the southern boundaries at the Scott Six Industrial Park has been upgraded with public utilities, curb, gutters and turn lanes to allow for increased industrial traffic. Board of Adjustment September 14, 2011 Page 7 of 14 Eckstein continued noting that the office and wet batch plant are located to the rear of the site and on the northern half of the subject lot so that movement on site will not impact adjacent streets. Also, that it is over one hundred feet to the lot to the south. Grenis reported the general standards. General standard one, that the exception will not be detrimental or endanger the public health safety comfort general welfare, is met in particular to regard to the traffic patterns that Eckstein discussed and that the plant is located in the middle of the Scott Six Industrial Park. Grenis stated that the commercial zone is located to the west and is located more than eight hundred feet from the property. The closest residential zone is located approximately two thousand feet from the property. The proposed plant is located in an industrial zone and served by streets designed to support industrial uses. The recommended screening should minimize noise and dust from the site and reduce the visual impact of the towers and screen views of the outdoor storage equipment. Because it is a wet batch facility it is designed to minimize dust associated with concrete facilities and it is regulated by the EPA. In addition they have received comment from the Johnson County crop specialist indicating he is not aware of any impacts beyond the dust associated with gravel on vegetation. Grenis stated that in general standard two, that the exception not be injurious to the use and enjoyment of other properties in the immediate vicinity and will not substantially diminish or impair property values in the neighborhood, is based on the screening requirements. Based on the discussion that the Board had on the speculative nature future property values, the Board finds these criteria met. Also the fact that the area is an industrial zone and future plans indicating surrounding areas appropriate for industrial zones. Eckstein stated that meeting this general criterion is dependent on the screening that has been described. The third criterion is that the exception will not impede normal and orderly development of the surrounding property for uses permitted in the zone in which such property is located. This criterion is satisfied because subject property is located in an industrial zone. The Comprehensive Plan identifies land in this area as appropriate for industrial use. Future uses identified in the Comprehensive Plan includes residential to the north of the railroad which is a substantial distance from this site. Grenis stated that criterion four, adequate utilities, access roads, drainage and necessary facilities are provided. This is met because the necessary utilities are provided on the site. Independence Road and 420`h Street have recently been updated to support uses. A storm water basin is proposed on the southwest portion of the lot to accommodate storm water from this site. Criterion number five, the adequate measures have been or will be taken to provide ingress or egress designed to minimize traffic congestion on public streets. This criteria should be satisfied based on the site plan and the traffic circulation discussed earlier. Criteria six, except for the specific regulations and standards applicable to the exception being considered, the proposed exception, in all other respects, conforms to the applicable regulation or standards of the zone in which it is to be located. This is satisfied because the building official will review the site plan to determine all applicable requirements are satisfied. Grenis stated that the seventh criterion that the proposed use will be consistent with the Board of Adjustment September 14, 2011 Page 8 of 14 Comprehensive Plan. This is satisfied based on the Comprehensive Plan language regarding the industrial park and surrounding land being industrial park with further residential uses farther to the north. Jennings stated that under standard two in the findings of fact that the Board also required the paving of the drive within two years to mitigate dust issue �eteted: 5.9 Sheerin adopted what has been presented. Steve Ballard spoke stating he was a lawyer representing the Prybil Family Investments. He had a question as to if he had the correct site plan that was discussed earlier. Sheerin noted he was looking at the wrong drawing and Walz gave him the correct one. Eckstein added to general criterion six to make clear that the building permit needs to be approved by the City. A vote was taken and the motion declared approved 5 -0. Watered: ; EXC11- 00009: Discussion of an application submitted by Bean Shack for a special exception to establish a drive - through use to be located in the Community Commercial (CC -2) zone at Gateway Plaza at Highway 1 West and South Riverside Drive. Walz showed the location of the CC -2 zone at the intersection of South Riverside Drive and State Highway 1. She clarified pointing out yellow arrows on the map stating that they are pointing to frontage roads, which are still a part of the public right of way. Walz stated she wanted to clarify this because in text she was describes a circular drive and that would be the drive that is inside of the parking lot, that is on the private property. Walz showed on an aerial the area that shows where the drive through will be located. Walz also pointed out where the main entrance was from Highway 1 and the main entrance from Riverside Drive. The drive through is about 180feet from the main entrance. The stand itself is small. It is a ten foot by fifteen foot stand and, though it does have access to electric utility, jt Deleted: t _ ......................... —........__._... ..._......_. does not connect to public water. They will provide their own water in compliance with health ......_..._......... ... _ ............ .._ standards. That limits what the stand can be used for. Walz stated that this is an unusual drive - through to bring to the Board because normally staff recommends more structural separation. In this case the shopping center has far more parking than it is required. It has more than four hundred fifty parking spaces and fewer than two hundred are required. This will eat up some of that parking. There was previously a coffee stand at this location where there are now orange barrels. That coffee stand went away some time ago. It was misclassified when it was established —it should have gone through a special exception process and it didn't. That was an error on staffs part. The use has gone away so any right to that use is no longer existent. Walz stated they had transportation engineers go out and look at the site and make a recommendation for how staff might allow a drive - through of this minimal intensity in size. Their recommendation was to keep the two bracketing parking rows as they are. She pointed out on Board of Adjustment September 14, 2011 Page 9 of 14 the map the location of the stand in the center of two parking rows with a landscaped curved island. There is a light pole in that area. Shortening the one parking row opens up some space for cars that are accessing the stand to circulate in the same direction as cars that are going to park without blocking the flow of circulation. The applicant has indicated that it is a coffee stand —that it is principally a beverage stand. The hours of operation are 6 a.m. to 6 p.m. with the peak hours being earlier than 10 in the morning. That will not create a conflict with the other retail operations at the site. There are some that open as early as 8 in the morning but their peak hours wouldn't be that early. Walz stated that there was space for three cars to stack on the east side of the coffee stand without being left out in the drive— they can be adjacent to the drive. Whereas cars accessing the west window will be in the circular drive stacking, but there is enough space that cars can go around on this drive because it's fairly wide. Because the location of the stand on the lot is away from the other uses most of the parking going to be clustered down around the building. That was the reasons for staff to come up with this particular recommendation and for saying that this use would be appropriate on the site. Rather than going through all of the criteria if the Board has specific questions about what is being proposed she would answer any questions as asked.. Deleted: Plagge asked if on the western side any more than one car would essentially block the end road. Walz confirmed that is correct. Plagge asked if that is not viewed as that big of a deal. Walz stated that because there is so much parking staff feels it wouldn't be keeping someone from accessing the parking. There are other rows that they can go to and they could get around and still get close to-the retail uses they would be accessing. Walz stated that the parking area is not in conformance with the current zoning requirements. Typically there would be terminal islands at the end of each row and there would be landscaping. Staff talked about putting terminal islands on the bracketing rows and the transportation folks did not think that was a good idea in such a large lot. Given that the stand is small in its intensity and so small in size. The other thing that this lacks is that there aren't pedestrian facilities on this parking lot. Given the intensity and the size of the place it was staff's view that it really wouldn't be practical for them to construct all of those facilities given the limited size of the use within the large lot. Eckstein said she read the newspaper this morning before she read the documents for this meeting and there was a notice about this coffee stand coming to this parking lot. When she saw it in their reading she was surprised by the order of events. Walz confirmed she was surprised as well and stated that one never knows what the newspaper will print. She stated that she was never contacted and that she cannot explain the article. Eckstein stated that would be a little bit off protocol. Walz and confirmed but said it isn't necessarily unusual. Eckstein asked if the staff considered any possibility that anybody would ever get out of their car on a really nice day and want to sit by a picnic table by this place or something. Walz stated that the applicant'sgoal was to just have a drive - through stand. Sheerin asked if there would be - Deleted: any signage that would state that you cannot walk up. Walz stated she did not think so because there has been none proposed. Sheerin asked if Eckstein was concerned about safety. Eckstein stated that if she owned a coffee stand it would occur to her pretty quickly that in nice weather it would be nice to have an umbrella table or a picnic table something that is right next Board of Adjustment September 14, 2011 Page 10 of 14 to the place. Walz asked Eckstein if she wished for them to include that or if she wished to Deleted: preclude them from doing that. Eckstein stated neither, she wished to include it in the discussion if it is at all a possibility so that it might be allowed. Walz stated that it was not unreasonable to think that people who are using this shopping center — either employees or people who are already parked that have gone into one of the retail —might choose to walk out to the coffee stand to use it. Staffs sense was that because in general this isn't a pedestrian area —it's a long two incredibly busy streets that do not have sidewalks or at least not on that side of the street— that the likelihood that there would be an kind of significant pedestrian traffic is pretty limited. However, there may be people within the shopping center that would use it. Jennings stated that his information is dated that in the 1980's he worked and did not own a car in a nearby building that is now occupied by the Iowa City School District, it was a Blooming Prairie warehouse. He stated he was constantly on foot walking around when this was formally Wardway Plaza and Montgomery Ward's was the anchor store for the area. The most popular Formatted; Not Highlight place for them to eat was at the Wendy's that was across the street on the corner. They constantly made pedestrian use of a non - pedestrian friendly place. Jennings stated he thinks it Formatted: Not Highlight is valid to look at it and say that the owners of this larger area the employees or the businesses that will be located there in the future will use the site. Sheerin asked if the staff knew what happened to the previous stand. Walz stated it went out of business. Sheerin clarified and asked if the people walked up to the stand or if that was unknown. Walz stated that was unknown but she would assume that there would be people from this shopping center who would walk up. Sheerin asked if it has been evaluated the safety of that. Walz stated that the staff only talked about,different scenarios and that their view was Deleted: a given the limited scale of this, it should not be required. If it were something like a Wendy's - .. .. — — - - - .... _.._ _ ... ..... _ . they would be requiring such facilities. It was something that staff discussed and this is an area of the lot that is not busy, and given that the use is so limited staff did not think it was reasonable to ask them to construct pedestrian facilities. Staff did not think it rose to the level that would make it a practical requirement —that is a subjective call but that is the Staffs view. Eckstein stated that these coffee kiosk owners are renting space on this parking lot. Walz stated that yes they would be renting space and she would need to ask the applicant the specifics. It is her understanding that it is a modular unit that will be placed there. It is not as temporary as a cart, but it is not as permanent as a building with a complete foundation. Eckstein stated she is wondering who would pay for the pedestrian facilities in the parking lot if they were required. - Holecek stated that it depends on the terms of the lease typically. Walz stated that often those are considered lease hold improvements and they fall to the applicant. Grenis asked if the site plan stipulates the pavement markings, just the arrows, or the pavement parking lines too. He stated that the last time he was out there the parking lines were pretty faded. Walz stated that if the parking lines are a concern then the Board would want to make that part of the condition of the special exception. Staff was contemplating striping of the actual drive through and stacking space. Grenis stated that site plan would include the directional arrows in stacking space. Walz confirmed. Sam Gilbaugh, Iowa City (representing the Bean Shack.) Sheerin asked if he had anything to - Formatted: Not Highlight add to the Staffs report. qi lbaug_h stated not specifically_ Sheerin asked if the Board had any Formatted: Not Highlight Board of Adjustment September 14, 2011 Page 11 of 14 questions for the applicant. Eckstein stated she had the picnic table question. Gilbaugh responded stating that with the heavy traffic and no pedestrian specific area and high traffic with a 35 mile per hour speed limit it is pretty fast compared to other places it is rare to see someone crossing the street and it is rare to see someone walking around there. He stated his point is not to get someone to sit down; they do not want picnic tables. They want people coming through with their cars picking up coffee within ninety seconds to three minutes and leaving within the 6 to 9 o'clock time frames. The goal is convenience and coffee. Pedestrians are not likely to be walking around at that time. People walking up to one of these areas is as likely as someone walking up through a Wendy's drive - through. Gilbaugh stated he didn't think there would be a safety hazard. Jennings asked if he would see it as a benefit to be pedestrian friendly. If the employees of the area turned out to be the main customers would they want to accommodate them in some way by forming and impromptu break area? Sheerin asked if the applicant was familiar with the previous coffee stand. Gilbaugh stated he has tried to contact the owner but he is out of state — out of touch. He stated he has talked to�Jerry Ambrose the owner of the lot and he said that he Formatted: Not Highlight knew the guy but never bought his coffee. He stated he had no idea of the type of building it was, the structural integrity or how it was run. Walz stated that it was smaller a cart. It was somewhat, for lack of a better word, primitive. Sheerin opened the public discussion. She asked if anyone would like to speak in favor of the application. There was none. She asked if anyone would like to speak in opposition to the application. Sheerin asked if staff had any additional comments. Walz stated she did not. Sheerin closed the public discussion Sheerin asked if the Board had any discussion. There was none Jennings moved to accept EXC11 -00009 by the applicant Bean Shack and Sam Gilbaugh. Special exception to allow a drive through facility in a Community Commercial CC -2 zone located at Gateway Plaza at Highway 1 West and S. Riverside Drive to the conditions as written in the staff report as recommended. Grenis sconded. Plagge reported the specific standards. The Board finds EXC11 -00009 to meet the specific standards. One: the Board finds that the shopping center is not adjacent to any residential property zones. The proposed site plan shows that up to three cars access to the drive - through on the east side for any stacking that occurs on the drive isle. Vehicles accessing the coffee stand on the west side will stack along the circulation drive that serves the lot. The site plan indicates approximately 38 feet between the stand and the north edge of the drive. The Board feels that this provides adequate space for the vehicles to pass around stacking cars. The drive - through coffee stand is located towards Highway 1, away from the most active portion of the parking lot. Because the drive- through is located approximately one 180 feet from the shopping center, it is unlikely to have any impact on the public right -of -way. Given the proposed use of the stand, the Board anticipates that the peak times for the drive - through will be in the morning most likely before 10 a.m., minimizing potential conflicts with peak business houL!;kfor Deleted: sr the other retail uses. Board of Adjustment September 14, 2011 Page 12 of 14 Standard 2, the Board finds to meet these standards the proposed drive - through will be accessed from within the private parking. The drive - through is located on the northeast side of the parking area away from the shopping center. The road is designed to accommodate this level of traffic. Standard 3, the Board finds that the drive- through lanes are set back more than twenty feet from the nearest property line. The adjacent green space to the north, which is located in the Highway 1 right -of -way, has small shrubs that meet the S -2 standards. Standard 4, the Board finds that any exterior lighting is included in the signage will be reviewed by the building department as part of the permitting process and all lighting and sign standards must be satisfied in order for the occupancy permit to be issued. Plagge reported the general standards. The Board finds it to meet the first general standard because Highway 1 and the private drive entrance to the shopping center are designed to accommodate the levels of traffic anticipated. It is located away from the main entrance and will not back up onto public roads. General standard 2: the Board finds it to meet this standard because the proposed drive - through is located away from any commercial uses. General standard 3: the Board finds it to meet this standard because a similar coffee stand existed in this location for several years prior and did not impact any of the adjacent businesses _ or the traffic circulation. Also, he size of the stand it limited to ten by fifteen feet. Deleted: General standard 4: electrical services are available at the stand. It provides its own water in compliance to the regulations at the state and health department. All the facilities and drainage are provided for the shopping center. General standard 5: the Board finds it to meet the standard because it will not stack onto public streets and there is efficient parking space and leeway for any traffic in the parking space. General standard 6: a previously discussed the parking area is not in compliance to the code requirements. It lacks external islands for the parking, no shade trees, and perimeter screening, pedestrian facilities. Given the limited size and intensity the use of the proposed coffee stand and the previous existence of the last coffee stand the Board feels it is reasonable to allow this proposed use despite the conformities. The building officials will review the site plan to determine any zoning requirements for lighting and signage is in compliance with the zoning code. All applicable zoning requirements must be met for the building permit to be issued. General standard seven, this use will be consistent with the Comprehensive Plan as amended. The Board finds it to meet this standard because the Comprehensive Plan does not specifically address this issue. The Southwest District Plan identifies this area appropriate for a Highway oriented commercial development. Eckstein added to the findings of fact that the parking lot is out of compliance with a screening requirements but that is not the responsibility of this applicant for this use. Sheerin adopted the standards. Board of Adjustment September 14, 2011 Page 13 of 14 A vote was taken and the motion carried 5 -0. BOARD OF ADJUSTMENT INFORMATION: Walz stated that she did not know of any applications coming through in October but that could change. If anyone is not going to be available in October they would need to let her know in the next few days so that she is aware. ADJOURNMENT: Jennings moved to adjourn. Plagge seconded. The meeting was adjourned on a 5 -0 vote. 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