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
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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)
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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.
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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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