HomeMy WebLinkAbout07-11-2012 Board of AdjustmentIOWA CITY BOARD OF ADJUSTMENT MEETING
Wednesday, July 11, 2012 - 5:15 PM
City Hall - Emma J. Harvat Hall
AGENDA
A. Call to Order
C. Consider the June 13, 2012 Minutes
D. Appeal
APL12-00001 Discussion of an application submitted by NCS Pearson to appeal a decision of the
Iowa City Housing & Inspection Services Director denying a building permit for a wind turbine on the
grounds that it is not an accessory use in the Office Research Park (ORP) zone.
E. Special Exception
EXC12-00003: Discussion of a request by Marc Moen to modify a previously approved special
exception in order to provide two required parking spaces off site in a municipal ramp for a proposed
mixed use development in the CB-10 zone at 114 S. Dubuque Street. A special exception approved in
April allowed the two required spaces to be provided at grade within the proposed building.
F. Board of Adjustment Information
G. Adjourn
NEXT BOARD OF ADJUSTMENT MEETING: August 8, 2012
MINUTES PRELIMINARY
BOARD OF ADJUSTMENT
JUNE 13, 2012 — 5:45 PM
CITY HALL, EMMA HARVAT HALL
MEMBERS PRESENT: Larry Baker, T. Gene Crischilles, Brock Grenis, Caroline
Sheerin
MEMBERS ABSENT: Will Jennings
STAFF PRESENT: Sarah Walz, Karen Howard, Sarah Holecek
OTHERS PRESENT: Beth Bewley -Randall, John F. Shaw, Johna Leddy, Mike
Pugh
RECOMMENDATIONS TO CITY COUNCIL:
None.
CALL TO ORDER:
The meeting was called to order at 5:15 PM.
ROLL CALL: All 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 MAY 9TH MEETING MINUTES:
Baker moved to approve the minutes for May 9th, 2012 with minor corrections.
Grenis seconded.
A vote was taken and the motion carried 4-0.
Holecek declared that a conflict of interest had been identified in regard to the second item on
the agenda and because it will likely be deferred, she suggested that the Board make that the
first item on the agenda and consider the items out of order.
Baker moved to consider the agenda items out of order.
Crischilles seconded.
A vote was taken and the motion carried 4-0.
Board of Adjustment
June 13, 2012
Page 2 of 17
APPEAL
APL12-00001: Discussion of an application submitted by NCS Pearson to appeal a decision of
the Iowa City Housing & Inspection Services Director denying a building permit on the grounds
that a proposed 145-foot wind turbine is not an accessory use.
Holecek stated that she has a conflict of interest with this application based on the fact that she
put the legal standards in the same memo as the staff memo that advocates or draws a
conclusion that is in support of the building official's determination. She said based on that and
the desire to give the applicant appropriate due process, she will have to recuse herself from
this application and the City will have to provide the Board with independent counsel. She said if
the Board wished to do so, they could proceed without counsel.
Mike Pugh, counsel for NCS Pearson, said they had raised the conflict issue, and they are not
willing to go forward with waiving the conflict. He said they think independent counsel should be
provided to the Board.
Baker moved to defer APL12-00001, an application submitted by NCS Pearson to appeal
a decision of the Iowa City Housing & Inspection Services Director denying a building
permit on the grounds that a proposed 145-foot wind turbine is not an accessory use.
Grenis seconded.
Sheerin invited discussion.
Baker asked if this issue was still going before the Planning and Zoning Commission for an
amendment.
Holecek said it was.
Baker asked if there was a time frame for the matter being resolved and the Planning and
Zoning level.
Walz said that she can't give the Board a date, although it is being worked on. She told Baker
that probably nothing would be resolved within 30 days.
Sheerin said she would personally not want to move forward on an application without legal
counsel.
A vote was taken and the motion carried 4-0.
Sheerin declared that the item is deferred to the July agenda.
SPECIAL EXCEPTION
EXC12-00009: Discussion of an application submitted by Beth Bewley -Randall and Tom
Randall for a special exception to convert a non -conforming use in the Medium Density Single
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June 13, 2012
Page 3 of 17
Family (RS-8) zone at 1018 Walnut Street to another non -conforming use (a Building Trade
Use).
Walz showed the location map and several views of the site to the Board. She said it's a large
building, 8,000 square feet, originally built in the 1930s as an automobile showroom. She said
there were a number of uses on the property over the years that were never permitted or known
about by the City. She said the most recent use that they were unofficially aware of was that
someone was storing cars there and restoring them for noncommercial purposes. She said the
Zoning Code provides for the situation where a building that was clearly constructed for a use
that's not permitted in the zone for the building and its use to be converted to those of a lesser
intensity, provided that certain conditions are met, which are outlined in the specific criteria in
the staff report. She said the applicants would like to use the building for their electrical business
and would not function in a way that would bring customers to the site, but would rather
principally contain storage and administrative functions. She explained that the applicants had
already purchased the building and were using it for these purposes when they discovered the
nonconforming use. She noted that there is a continuous curb cut along the front and there is no
set -back for the parking area or partially paved area.
Walz said the first specific standard is that the proposed use will be located in a structure that
was designed for a use currently not allowed in the zone, and this situation clearly meets that
criteria. She said the second standard is that the new use is of the same or lesser intensity and
impact than the previous existing use, which the Board will have to determine. She said the staff
considered the kinds of things that could potentially use the subject building and talked about
the kinds of things they wouldn't want to see — a lot of noise, many users, many visits to the site.
She said the building doesn't have a clear history. She said the use that's being proposed would
mean that there would likely be more vehicles, parking and day-to-day activity at the site. She
said staff considered that the special exception would be for one use only, all the activities
would be inside the building, employees would pick up their trucks inside early in the morning
and return them late in the day, and the rest of the day would be fairly quiet. She said this
special exception would be granted to the property so the staff laid out conditions with the fact in
mind that eventually there will be a different but similar user at this building. Walz said that staff
found the proposed use is suitable for the structure and site and outlined the reasons staff set
out in their report.
Walz said for the first general standard that states the specific proposed exception will not be
detrimental to or endanger the public health, safety, comfort or general welfare, the continuous
curb cut along the front was of concern to the staff because that crosses the sidewalk. She said
having narrower drives forces vehicles to slow down before they enter a site and limits where
they can enter and exit the site and it makes pedestrians more aware of where their space is
and where the vehicle space is. She said staff recommended limiting driveway access to the
site and described what the code recommends for that. Creating separation between the vehicle
parking set parking area back 10 feet from the public right of way from their front property line
and screen it, which serves as another way of separating vehicles from pedestrian areas and
also as aesthetic screen. She directed the Board to look at the staff report to see how staff
arrived at its recommended standards.
Walz said the second general standard is that the specific proposed exception will not be
injurious to the use and enjoyment of other property in the immediate vicinity and will not
substantially diminish or impair property values. She said she has laid out in the staff report
those things that staff feels would limit those aspects of the building trade use that might be
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June 13, 2012
Page 4 of 17
disturbing, which include changes to the parking area, limiting hours of operation, requiring that
the vehicles be stored inside during non -work hours, no outdoor storage of equipment, material
or dumpsters, activity must be conducted indoors, signage would be limited to what would be
allowed in a residential zone, all outdoor lighting would have to meet standards of residential
zones, the building must be painted, and the parking area should be paved. Walz said the rest
of the general standards are laid out in the staff report.
Crischilles asked Walz if she had received any emails opposed to the special exception before
the two that arrived today.
Walz said she was contacted early on by Miss Brookhart before the recommendation was
made. She said she may have received one of the positive responses before recommendations
She said the applicants had conducted a good neighbor meeting and invited people to come to
the building and learn what they intended to do with the site around the time that the City sent
out letters notifying residents within 300 feet of any portion of the subject property, which would
have been about two weeks ago.
Baker asked if there was a letter from either of the neighbors directly across the street from the
subject property.
Walz said there were not letters from them.
Baker asked if the existing gravel area would be paved.
Walz affirmed that it would.
Baker asked if the Code regulated the number of vehicles used by the particular use.
Walz said there is a minimum parking requirement for uses in the off-street parking standards,
and for a business trade use it is one space per 750 square feet, so that would require 11
spaces. She said some of those spaces can be provided in the interior of the building. Walz said
she recommended to the applicant that they think about the number of spaces they will actually
need in order to minimize on -street parking.
Baker asked if the number of vehicles needed for the business itself will increase over time.
Walz said it is possible that there will come a time when they outgrow the parking space, and if
that is a concern, the Board would need to discuss if they want a condition that addresses that
issue, should they approve the special exception.
Baker asked how the Code requirements for lighting in a residential zone would apply to this
commercial use.
Walz said the applicant would be required to comply but staff added it as a condition so that the
applicants and the neighbors would be on notice about that requirement.
Baker asked if the type of security lighting that would be on this kind of commercial building
would create a greater light nuisance than normal.
Walz said it would probably have more lighting than a house, but there would be no lighting
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June 13, 2012
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allowed in the parking area, all lighting would have to be downcast, and no lighted signs would
be allowed. She said the lighting allowed would be comparable to what you would find at a
church or school.
Grenis asked how restricted the hours of operation would be
Walz said they would be enforced only by complaint.
Sheerin referred to a letter by Johnna Leddy and said there was a question of deterioration of
the road because it's not made for these kinds of trucks and their weight.
Walz said she had Ron Knoche from the City Engineer's office go out and look at the street.
She said he felt the road was in good condition. She said no one on staff raised that issue with
this use.
Sheerin said she was sympathetic with the neighbors who are concerned that this use will
increase noise and congestion but she thought that by the nature of the structure, whatever its
use will do that. She asked Holecek that if they don't approve the special exception, at what
point are they making the building useless.
Holecek referred her back to the staff report and its considerations for adaptive use
Sheerin asked at what point it would be considered a taking.
Holecek replied that under Iowa law it substantially destroys the value of the building, and that's
typically under a variance analysis.
Grenis said if the building is not used for building trade use, what other uses qualify as a lesser
intensity use in an RS-8 zone.
Holecek said it would be nonconforming.
Walz said staff's main concern was any kind of use where you had customers coming to the site
or where you had multiple people independently using the building. She it could be used for
office use, although it would have to be adapted, or just for storage. She said she thought the
latter would be lesser intensity use, but it is a gray area. She said in staff's view what made this
application seem less intense was the single user, the controls that could be put upon it, and the
applicant willing to make those conditions official and abide by them.
Baker asked if it is business trade could it ever be retail space
Walz replied that she didn't believe that staff would ever recommend that but that there could be
another request for a special exception, in which case there would have to be such conditions
put upon it that it would limit any retail use to a certain level. She said with this applicant,
because the majority of trucks leave at one time in the morning and return late in the day, this
seemed to staff a desirable way to use the property.
Grenis asked if this exception would hinder it from being a residential use in the future.
Walz said it would not. She said this exception would not tie the building to a commercial use
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June 13, 2012
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Sheerin opened public hearing
Beth Bewley -Randall of 1020 Kirkwood thanked the Board members for their service and the
staff for putting together the recommendation and working with she and her husband as
applicants advising them on how to navigate the situation. She said in the past there was an
auto mechanic in the building for over twenty years and it's also a thrift store and car repair
shop. She said she and her husband are in agreement with the staff recommendations with a
couple exceptions. She said the building trade use they are seeking will have less impact than
the automotive service that it officially is now. She handed out two maps to the Board, one that
was labeled Area Buffer Green Space as Recommended by Staff and the other Area Buffer
Green Space as Requested by Owner. She said their proposal is increased green space, which
would enhance the visual appeal and would assist with run-off, water and drainage and keep
more storm water on site. She said that it would also eliminate the southwest street buffer,
which would make it easier for the trucks to back into the building and also a job trailer, should
they have one in the future.
Bewley -Randall said that daily post -renovation life should be very quiet for the neighborhood.
She said that in response to a concern about copper recycling, and she said they use best
practices in recycling and metal and the plastic, so there's nothing stored on site and there are
no fumes created.
Grenis asked if copper stripping and recycling is the only re -use.
Bewley -Randall said they plan to have a small metal dumpster that would be inside the building
for the materials that would later be taken away for recycling.
Baker asked about where the applicants live, when they purchased the building, how long their
company has been in operation and what their plans were for the building at the time of
purchase.
Beweley-Randall said she and her husband live on 1020 Kirkwood Avenue and can see the
building from their house. She said they purchased the building in the fall of 2010 and they have
been in operation since 2007. She said initially they wanted to use it for vehicle storage but
since then their company has grown substantially.
Baker asked where the company is located now, how many employees they have and how
many trucks.
Beweley-Randall said the business is currently located in their home, they have five vehicles
and twelve employees. They currently store the trucks in the building. She explained that 3-4
employees parking their personal vehicles at 1018 Walnut. The remaining employees go directly
from their homes to the work site. The employees would park in the six spots shown in both the
staff proposed site layout or the applicant proposed layout.
Baker explained that he was trying to consider what might happen on the site in the future. He
asked if the arrangement (the number of parking spaces) was adequate to serve future growth
of the business. He expressed concern over the parking requirement, which is based on the
square footage of the building rather than the number of employees.
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June 13, 2012
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John Shaw pointed out that both proposals showed 6 parking spaces
Chrischilles asked if there was room for more than 6 parking spaces.
Shaw stated that the amount of space needed for the required 10-foot buffer from the property
line in addition to a 10-foot buffer between the building and the parking that the applicant
intended to provide would leave enough space for three 9-foot wide spaces on each side of the
lot. Shaw asked about the new ordinance for non -conforming parking —whether there was a
statement that the use would only be required to provide as many parking spaces as conditions
allowed.
Walz explained that regardless of what the ordinance indicated, this was a special exception
and therefore the Board could require whatever it felt was appropriate, in terms of parking, in
order to satisfy the criteria for the special exception.
John reminded staff that 11 spaces could fit in the building in addition to what was outside. Walz
stated that when the applicant applied for a building permit, the official would look at how the
spaces were provided and identify any issues, however, it did appear that there would be
adequate space to provide all required parking by including spaces in and outside the building.
Chrischilles asked whether new employees could park inside the building if more than 6 spaces
were needed. Bewley -Randall indicated that this was true.
Baker asked about semis. Bewley -Randall said that shipments arrive on a job -by -job basis.
There is no set schedule. She said that they were asking for changes from staff had proposed
for the parking area so that there would be space for the semis to pull in so there would be less
congestion on Walnut Street when trucks are being unloaded. She indicated that no neighbors
had approached her directly about concerns with trucks but that she did read the a -mails sent to
the Board. She said delivery was a quick process that happens within 20 minutes max.
Baker asked what staff thought of the applicant proposed parking area design. Walz state that
she does not believe the proposal meets what staff was looking for in terms of safety in
separating vehicle and truck use from pedestrian areas and controlling entry and screening the
area. The recommendations were based on the maximum that would be allowed in a
commercial zone so the driveway should be adequate to allow trucks or semis in and out.
In response to a question from Baker about the parking arrangement, Walz said semis or
delivery trucks would not be using the driveway to load and unload and not a parking space.
Baker stated that it would still be a matter of backing in.
Bewley -Randall said this was the reason for their alternate plan to keep the southwest side
open was to make it easier to back in a truck.
Walz asked how wide the drive would need to be.
Baker asked how the semis were accessing the lot now.
Walz stated that staff's concern would be that if the entire west side of the lot needed to be open
to accommodate the semi entering the lot, how could they also provide parking in that area
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June 13, 2012
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since the truck would pull in through the parking spaces
Bewley -Randall said that they rarely fill all the spots and they could move cars in order to allow
a semi to pull in.
Walz said the code allowed a drive of 34 feet at the property live and 40 feet at the curb.
Baker did not see how a semi could work around parked cars on that portion of the lot. He
asked what the length of a semi was.
Shaw responded 60 feet.
Baker asked what the semi traffic was currently. Bewley -Randall answered about one per week.
They may receive 2 or 4 in a week and then none for 4 weeks. It would all be job -by -job.
Sheerin asked if there were other questions.
Johna Leddy referred to her letter regarding her concerns. Her concern was with the growth of
the business over the next 5 years. She is concerned with semis and whether they can really
back into the property. The parking issue is also a concern to her —will there be cars on the
street? She also referred to material recycling and hazards associated with things like asbestos,
led and heavy metal. How will they be storing or moving these materials around the site? She
mentioned the use of semis was not consistent with the site or how it had been used over the 21
years she has lived in the neighborhood. She referred to the automobile use and then the quiet
status of the site for the last decade. Most of the surrounding properties converted from rental to
single-family since the auto repair shop went away. She is concerned with the intensity of the
use over time and environmental concerns, which have not been addressed.
Chrischilles asked about previous uses. Leddy said that since AH Auto went away there
weren't really identifiable uses. Walz said that this was the period that staff had talked about that
is unknown. The only known use was a non-commercial automobile storage and repair, but that
was not legal. She said staff was a bit confounded by what to refer to as the previous use since
the repair shop had been gone so long any rights to it are also gone. And since then all uses
have been unknown or not officially sanctioned by the City.
Chrischilles asked Leddy if it is her preference to have the building be vacant and decay as
opposed to being occupied. Leddy said that was not her wish, but that the current proposed use
does not, in her view, meet the standards of the special exception. Chrischilles asked if it wasn't
true that any use increase traffic over its being vacant. Leddy agreed but said that 12
employees, 6 trucks, and an unknown number of semis seemed too much. She said it was a
significant use over vacancy and over the repair shop that was once located there.
Sheerin asked for additional comments.
Walz responded again to Shaw's comments about non -conforming parking. She stated that the
Board has to look at the specifics of this use on this specific piece of property, and then they
have to decide what the requirement is.
Shaw reiterated his point that the proposal does meet the calculated requirement of eleven and
exceeds it by one.
Board of Adjustment
June 13, 2012
Page 9 of 17
Walz referred to Baker's concern because the parking requirement is based on space within the
building rather than the specific use, what happens with any additional parking. Walz said that if
that is a concern of the Board's and they are leaning toward granting the special exception then
the Board can address that concern with a condition.
Shaw said he can't think of a more benign use for this building with so few cars.
Sheerin said she doesn't think the concern is the six cars but is rather about the future and if the
business continues to grow and adds employees, where are those employees going to park?
Shaw said that in his experience with construction, employees are not going to go to a satellite
office so they can ride over to the work site in a company truck, but will go directly to the work
site, which in this case will be off site.
Bewley -Randall said their company's plan is to keep this building as the administrative offices
should they grow beyond the use of this building and procure an additional warehouse in an
industrial area if needed.
Baker asked if on -street parking is currently allowed on Walnut Street.
Bewley -Randall said it's only on the north side and currently none of their employees park on
the street.
Baker asked if the request is denied, can the Randalls continue to use the building as they are
using it now.
Holecek replied that would be a legitimate non -conforming use and that would be in violation of
the zoning code. She said when the applicants bought the building and started to use it for
storage that was okay because the City's best knowledge was that it had been used for storage
in between AH Mechanics and when they bought the property.
Walz stated that she's not sure that the City knew about its use.
Baker said he wanted to know what would happen to this business if the Board denied the
special exception.
Walz said that would have to be determined, but the Board's only concern is with the use that is
being proposed as if it were not there. The Board should not consider what will happen if they
deny the application.
Holecek said they have to decide if this is an appropriate land use in this place and are there
conditions that would ameliorate the negative aspects. Walz added whether there were
conditions under which it would be appropriate.
Sheerin closed public hearing.
Grenis moved to approve EXC12-00009, a special exception to allow the nonconforming
use that is located in a structure designed for a use that is not allowed in the zone to
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June 13, 2012
Page 10 of 17
convert to another nonconforming building trade use for property located in the Medium
Density Single Family Zone at 1018 Walnut Street subject to the following conditions:
1. The special exception is for a building trade use only. No additional uses are
permitted on the site.
2. A building permit is required to establish the use
3. The parking area should be set back and screened to minimize views of the
parking, to create separation between vehicle areas and the right-of-way and
introduce driveway widths in compliance with the access standards in the Code
that being ten feet from the front property line with S-2 screening, ten feet from
the west property line with S-3 screening and five feet with no screening from the
east property line.
4. The site plan is to be approved by staff.
5. Hours of operation are limited to 6:00 a.m. to 6:00 p.m. weekdays.
6. Fleet vehicles must be stored inside the building during non -work hours including
weekends.
7. Outdoor storage of equipment, materials, and dumpsters is not allowed.
8. All assembly, repair or construction associated with the use must be conducted
indoors.
9. Signage should be limited to a facia or awning sign in compliance with the zoning
code standard for non-residential uses located in residential zones.
10. All outdoor lighting should comply with zoning code standards for residential
zones.
11. The applicants shall paint and maintain the front fagade of the building in a
manner that does not detract from the residential character of the zone as
proposed in the submitted elevations.
12. The parking area, including driveways, should be paved with a hard surface in
compliance with the parking area standards in the Code.
13. The applicant will secure a building permit to establish the change of use on the
property.
Bakerseconded.
Sheerin invited discussion on the motion.
Crischilles said that like Baker, he was concerned about what would happen if this application
was denied, but he is clear now that he can't consider that. He said when he first looked over
the material he thought it was a nice proposal and a good use for the building in light of the fact
that there had been no negative response from any of the neighbors. He said that the recent
negative responses from two of the neighbors has muddied the waters for him, and he doesn't
know what to do about that. He asked if it's more important keeping the building in use and
doing whatever is needed to make sure it's as unobtrusive to the neighborhood as possible or
saying that it's going to destroy the neighborhood to a degree that it shouldn't be allowed.
Baker said that the Board isn't really make a decision about Randall Electric but rather about the
use of the property as a building trades designation. He said he thinks staff's findings on traffic
increase is too optimistic and that there will be an impact, especially in the future. He said he is
very concerned about the future of any building use trade because once the Board allows this
exception, that is permanent. He said this particular business is typical of any business wanting
to use that location in that its aim is to increase business and is that an appropriate location. He
said they need to consider what if any use was appropriate. He said that by denying this
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June 13, 2012
Page 11 of 17
application says that almost no future comparable application will fit here, and in a sense the
Board is changing the future use of the property.
Grenis said he would like to propose another condition to the special exception to the effect that
all vehicles associated with the business have to remain on -site and can't park on the street.
Walz said that is enforceable and if someone called to complain, the Building Department would
go out and issue a citation.
Grenis said for all practical purposes, a business would have to move somewhere else if they
got that big based on these conditions.
Walz explained to the Board that Grenis is recommending is that all employee vehicles be
parked off-street.
Baker said he's inclined to like the alternate parking design but not with those three parking
spaces there, because he thinks it's unrealistic to assume that those three spaces in the
alternate design are actually going to be used that way, as that space is needed for trucks to get
in at that point. He said he wants to mandate that those three spaces be provided inside.
Walz explained that if Grenis's condition was accepted, the applicant would have to provide
those spaces either inside or outside, and if it proved to be inconvenient outside, they would
need to provide them inside.
Baker asked how they would be designated inside.
Walz said she would need to check with the building department, however they would at least
have to show the designated spaces on the site plan. She said if there were then to be a
parking violation and the City went inside and saw that the designated parking areas was being
used for something else and not held open for parking, then there would be consequences.
Baker reiterated that the Board either approve this use as a business trade and accept the
possible increase in business for the future, or they deny it and say that this is no longer an
acceptable use in this neighborhood.
Walz said the board would be saying that a business trade use would not be appropriate at that
site.
Baker asked if there was any other alternative.
Walz said it's conceivable that there are other, limited alternatives, but ultimately the Board has
to find for the criteria for this use.
Baker said he's not very happy about this, but he is going to vote to approve the application.
Walz reminded him that the findings must support the criteria. Baker said he agrees with most of
the findings, but will express reservations about traffic, and he wants some mandate that
parking is increased on the interior and that all employee parking must be off-street. He said he
would agree with the east -west change on the parking that Bewley -Randall suggested.
Grenis said this is a tricky application and that he thinks many of the conditions that the staff laid
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June 13, 2012
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out mitigate the concerns. He said he has experience with this kind of business and thinks that
the environmental concerns are addressed well by having the stripping and other handling take
place inside. He said he supports approving the application.
Baker said the exterior would certainly be approved.
Crischilles agreed that it's tricky. He said he's sensitive to the people who are not in favor of this
and thinks that staff has done a good job in trying to mitigate those factors they are concerned
about. He said since the building has been there a long time, residents knew of its existence
when they moved in, and it would be rather naive of them to think that nothing would ever
happen with that property. He said in terms of what could happen, this project is probably as
good as you are going to get in terms of disruption of the neighborhood. He said it's a difficult
decision but one that he would probably support because it's better having something done with
the building than leaving it vacant.
Sheerin agreed that it's a huge building, the neighbors have known it's there, but she is very
sympathetic about not wanting to create a dangerous situation for the children in the area or
noise, but she feels this use is probably as good as it's going to get without getting into a
situation where the City is basically making the building unusable, which is unfair to property
owners. She said she will support the application. Sheerin stated that she doesn't feel strongly
about the plan submitted by the applicant or the staff's and will support either one. She does,
however, feel strongly about the parking requirement, since if the business grows in the future,
it's not fair to the neighbors to have the streets clogged with cars from the business.
Grenis said he thinks either site plan is fine. He said the plan submitted by the applicant seems
to make it easier for semis to get in and out faster, thus making it less disruptive to the
neighborhood, and would be a good thing as long as the owner is aware that they have to keep
all cars off the street.
Sheerin said since the idea behind staff's recommendation is to keep the entries and exits
smaller so that pedestrians are not in so much danger would it be possible to make a stipulation
that something temporary like planters be used that could be moved away when semis come
in.
Walz said she thinks that is hard to enforce. She said in the view of staff, that thirty-four foot
width is what they would allow and that's forty feet at the street line.
Baker said he would propose that they mandate additional parking inside the building.
Walz clarified that if they accept Grenis's amendment all the parking is to be provided on -site,
either in front of the building or inside the buidling. She asked if Baker's assumption was that at
the front of the green areas on the applicant's proposed design there would be screening.
Sheerin asked if they could specify S-2 screening and Walz affirmed that they could.
Walz asked if the Board was waiving the staff recommended requirements that there be five foot
green area on one side of the lot and a ten foot green area on the other side.
The Board concurred that they were not.
Board of Adjustment
June 13, 2012
Page 13 of 17
Baker asked if they could mandate that the green space in the alternative plan be grass or grass
plus shrubs.
Walz said they could mandate whatever is necessary for them to feel that the standards are
satisfied. She clarified what the S-2 and S-3 standards are.
The Board discussed what changes they wished to make to the screening requirements,
particularly in the central green area proposed by the applicant.
Sheerin suggested adopted the buffer proposal submitted by the applicant provided that their
would be S2 screening in the area along the south side of the lot.
Leddy asked if the Board can put any other restrictions in place besides the parking that would
prohibit address the growth of the business over time such that you wouldn't have for example
10 semis a week and 57 employees.
Sheerin said she didn't think it was appropriate to tell them how many employees they could
have. She said she personally could not think of anything the board could do other than the
conditions placed upon the parking.
Leddy said if the business didn't have a driveway that could bring semis in, that would limit the
number of semis.
Sheerin said she appreciated Leddy's concern, but the Board is not trying to prohibit semis
Leddy said the number of semis would increase if the business grows, and at what point does
that become unacceptable increase of usage in the neighborhood. She said she doesn't
understand the answer she got to her question.
Sheerin said the answer is that the Board is now discussing how they would amend their motion
so they can approve the application. She said the Board's job to try to come to the most
amenable solution for the whole community.
Leddy said she wanted to know if there is any mechanism that could provide a cap on the
growth of this business.
Sheerin said the Board is contemplating the issue of growth, and that is why they are restricting
the parking.
Walz asked Holecek if it would be possible to make a restriction on the number of semis
allowed.
Holecek answered that if the Board finds that the use here is appropriate, to constrain a
business by delivery seems problematic.
Walz clarified that the issue seemed to be that the use as proposed is acceptable but there may
come a point at which the size of the use is not acceptable. Is it not possible to place a
restriction on semis such that it limits growth.
Holecek answered: no.
Board of Adjustment
June 13, 2012
Page 14 of 17
Grischilles said that by allowing the wide open driveway on the western portion of the property,
any semis could come in and out quickly so as not to disrupt the street.
Baker asked if there were restrictions on truck traffic in this area. Walz indicated that there are
weight limits on some streets and bridges.
Grenis states that it was his feeling that the standards that the board was about to put in place
would control the growth of the business. Sheerin agreed and said that the board does not want
to choke the business before it gets started. To not allow semis would mean not allowing
deliveries and then there could be no business at all.
Grenis moved to amend his motion to include a condition that all staff vehicles be parked
on site not on the public streets and that S-2 screening be included on the south side of
the property adopting the concept provided the owner for the buffered green space plan.
A vote was taken and the amendment carried 4-0.
Grenis submitted his specific findings:
1. The use being located in a structure that is designed for use that is currently not allowed
in the zone is found to be satisfied because this use will be in a residential zone being a
commercial use as an electric company.
2. The proposed use is of the same or lesser intensity of previous uses is found to be
satisfied given that there is some ambiguity about the previous use.
3. The proposed use is suitable for subject structure and site is found to be satisfied given
the structure as is and as proposed in the plan and its proximity to Summit Street and
Kirkwood Avenue.
4. The structure not be enlarged in such a way as to enlarge a non -conforming use is found
to be satisfied because the applicant is not proposing to enlarge the structure.
Grenis submitted his general findings.
1. The specific proposed exception will not be detrimental to or endanger the public health,
safety, comfort or general welfare is found to be satisfied given the restrictions that the
Board has placed on the approval: that limit the driveway access to the site with the
buffer plan; that they are creating separation between vehicle parking and the adjacent
right-of-way in addition to the screening standards they set forth; and they are keeping
the staff vehicles off the public streets.
2. The proposed exception will not be injurious to the use or enjoyment of other properties
in the immediate vicinity and will not substantially diminish or impair property values is
found to be satisfied because the building trade uses have certain aspects that may be
injurious to the use and enjoyment of other properties in the neighborhood, including
vehicle parking and use of outdoor areas but the Board's conditions address these
issues as follows: the special exception is for building trade use only allowing no other
permitted uses on the site; that the parking should be set back and screened; that there
are limited hours of operation from 6:00 a.m.— 6:00 p.m. only weekdays; that fleet
vehicles be stored inside the building; that outdoor storage of equipment, materials and
dumpsters is not allowed; that the assembly, repair or construction association with the
use must be conducted indoors; that signage should be limited to the facia or awning
signs in compliance with the Zoning Code standard for non-residential uses located in
residential zones; any outdoor lighting should comply with the Zoning Code standards
Board of Adjustment
June 13, 2012
Page 15 of 17
for residential zones; the structure shall be painted and maintained for the front fagade in
a manner that does not detract from the residential character of the zone; and the
parking area will be paved with a hard surface.
3. The establishment of the specific proposed exception will not impede the normal and
orderly development and improvement of surrounding property was found to be satisfied
based on the conditions the Board set forth.
4. That adequate utilities, access roads, drainage and necessary facilities have been or are
being provided are found to be satisfied based on the structure's current use and being
built.
5. That adequate measures have been or will be taken to provide ingress and egress
designed to minimize traffic congestion on public streets as was discussed in-depth is
found to be satisfied based on the Board's proposal to mitigate those factors and allow
for the most efficient use given the site constraints.
6. Except for the specific regulations and standards applicable to the exception being
considered the specific proposed exception conforms to the applicable regulation and
standards in the zone in which it is to be located but because it is a non -conforming use
within a residential zone either the single family site development standards or the
commercial site standards are specifically required by Code, but the application will
satisfy the specific and general criteria is found to be satisfied subject to the approval of
the building permit and the screening standards.
7. That this proposed use is consistent with the Comprehensive Plan is found to be
satisfied because the Comprehensive Plan does encourage the re -use of existing
buildings so long as their use does not interfere with the functioning character of the
neighborhood is found to be satisfied because this is a good example of reinvestment in
an older neighborhood.
Chrischilles adopted Grenis's fidnings.
Baker asked if he disagreed with some of the findings would he have to vote against the
exception.
Holecek said if he finds that the standard is not met, he should vote "no." All standards are
required.
Baker said he minimally accepts the finding of specific standards Part C, Finding 2, "Site is
located one block off Summit Street and one block from Kirkwood such that trucks are not
required to drive a great distance on residential streets to get to the site". He said he thinks will
increase that traffic and that even though only two small residential streets are involved, you
can't totally remove Burlington or Kirkwood as residential streets. He finds General Standard 1:
"The conditions described below will create a safer vehicle and pedestrian environment by
controlling and slowing vehicle entrance and will conform with the overall development
character of the residential neighborhood," a very weak argument and is not happy with that
finding. He said those reservations are not enough to deny the application but he thinks the staff
has not taken into account those concerns.
Sheerin adopted Grenis's finding. She said this is a difficult application to consider but given the
fact the building is there in the middle of a residential use this meets the standards and is an
appropriate use for this building in this area.
Walz asked the Board to clarify its findings for the specific standard B in terms of what makes
Board of Adjustment
June 13, 2012
Page 16 of 17
this lesser intensity. She asked if it was the board's intent to rely on the findings in the staff
report. Sheerin and Grenis indicated that it was.
Baker said that was also one of the findings that he had problems with. He said who knows if
the structure had been used at a lesser capacity for the past ten years.
A vote was taken and the motion carried 4-0.
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.
BOARD OF ADJUSTMENT INFORMATION:
The Board discussed the case load for the July meeting.
ADJOURNMENT:
Crischilles moved to adjourn.
Grenis seconded.
The meeting was adjourned on a 4-0 vote.
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City of Iowa City
MEMORANDUM
Date: June 13, 2012
To: Board of Adjustment
From: Sarah Walz, Associate Planner
Sarah E. Holecek, First Assistant City Attorney
RE: APL12-00001: An appeal of a decision made by the Building Official to
deny a building permit for a wind turbine to be located in the Office Research Park
(ORP) zone at 2510 North Dodge Street.
BACKGROUND:
In an e-mail dated April 5, Building Inspector Loren Brumm informed the applicant that a
requested building permit to install a 142.9-foot' wind turbine on property located in the
Office Research Park (ORP) was being denied because the zoning code does not allow
wind turbines as an accessory use in the subject zone.
At the request of the applicant's attorney, the Director of Housing and Inspection Services,
Doug Boothroy, reviewed the denial. In a letter dated April 12, Boothroy informed the
applicant's attorney that he concurred with the inspector's determination that the use was
not permitted in the zone. Citing the zoning code, Boothroy stated that a wind turbine is not
a permitted accessory use because it is not "... customarily incidental to and commonly
associated with the permitted use" [an office use]. He goes on to note that, at the request of
Pearson, the Planning Department would draft an amendment to the code to allow wind
turbines.
SCOPE OF REVIEW:
Iowa Code gives the Board authority to hear and decide appeals where it is alleged there is
error in any decision made by the zoning official. To that end, the Board may reverse or
affirm the official's decision, in whole or in part, or may modify the decision and may make
such decision as ought to be made, and thus has all the powers of the officer from whom the
appeal was made. In the case of a five -member board, the concurring vote of three
members is required to reverse any decision of the zoning official. Iowa Code §§414.12(1),
414.13, 414.14.
ANALYSIS:
The regulation regarding the determination of principal and accessory uses is
contained in Chapter 4 of the zoning code. Under 14-4A-2A4, the code states:
"Any use that cannot be clearly classified within an existing use category by the
procedures noted above is prohibited, unless incorporated into the Title by a Zoning
Code Text Amendment.... A specific use that cannot be classified into an existing use
category shall not be listed as permitted, provisional, or a special exception in any zone
without first establishing a new use category within the Article by Zoning Code Text
Amendment."
' Note that wind turbines are measured from the base of the tower to the tip of the turbine blade. In this
case the proposed tower is 115 feet. The turbine blade extends the height of the equipment to 142.9 feet.
June 8, 2012
Page 2
The regulations specific to accessory uses are set forth in Article C: "Accessory Uses
and Buildings," which begins as follows (14-4C-1):
"Accessory uses, buildings or other structures customarily incidental to and commonly
associated with a permitted use, provisional use, or special exception are permitted,
provided they are operated and maintained according to the following standards:
A. The accessory use is subordinate to the principal use of the property and
contributes to the comfort, convenience or necessity of occupants, customers, or
employees of the principal use;
B. The accessory use, building, or structure is under the same ownership as the
principal use or uses on the property;
C. The accessory use, building or structure does not include structures,
structural features, or activities inconsistent with the uses to which they are
accessory;
D. Except for off-street parking located on a separate lot as approved according
to the provisions set forth in section 14-5A-4F, Alternatives to Minimum Parking
Requirements, the accessory use, building, or structure is located on the same
lot as the principal use or uses to which it is accessory; and
E. The accessory use, building, or structure conforms to the applicable base
zone regulations and to the specific approval criteria and development
standards contained in this Article.
The appeal relies on an abbreviated definition of "accessory use" from Chapter 9 of the
code. "Definitions." That definition does not stand in place of or apart from the regulations for
accessory uses. It is staff's contention that to ignore the complete definition, which includes
"customarily incidental and commonly associated with," would allow nearly any use to be
claimed as an accessory use.
The Supreme Court of Iowa discussed language similar to that above in the case of City of
EmmetsbnuM v. Mullen, 129 N.W.2d 677, 678-79 (Iowa 1964), and adopted the following
rationale from 101 C.J.S. Zoning, section 176:
"A use is 'accessory' when it is customarily incident to the main use, or when it is so
necessary or so commonly to be expected in connection with the main use that it cannot be
supposed that the ordinance was intended to prevent it".
In the Emmetsburg case, the issue was whether a three stall garage constructed in a
residential zone and housing two pickup trucks for the owner's business as well as a private
automobile violated the zoning ordinance by not being an accessory use. There was
testimony that many occupants of single-family residences, scattered throughout the City,
used garages for the parking of vehicles and equipment, including heavy equipment, used in
the occupant's business. In upholding the use, the court found that this common practice
was relevant to what construction or interpretation city officials and city residents placed
upon the ordinance with respect to accessory uses.
See also, Grandview Baptist Church v. Zoning Board of Adjustment of the City of Davenport
Iowa, 301 N.W.2d 704, 708-709 (Iowa 1981)(citing the above and finding no error in Board
determination that 32' x 45' steel storage building constructed by church was not an
accessory use incidental to the church).
June 8, 2012
Page 3
The Accessory Use Regulations in the code provide a list of uses and structures considered
accessory and the specific criteria for allowing them. These criteria include measures such
as setbacks, screening, or size limitations intended to limit the scale or intensity of the use
and to minimize any negative impacts associated with the use or structure. The list of
accessory uses includes a wide range of uses, from decks and patios to pet shelters and
cages to drive -through facilities. Several accessory uses have entire code chapters devoted
to their regulation-i.e. outdoor lighting, off-street parking, and signs. [The Use Category
section of the code provides a list of anticipated accessory uses for each principal use
listed.]
The permitted accessory uses most similar to the proposed wind turbine in height or function
are communication towers and mechanical structures. Communication towers (14-4C-2H)
are allowed by special exception only and are subject to setbacks and other regulations
intended to ensure public safety and to reduce the visual impact of the tall tower structure.
Another accessory use that has some similar features is mechanical structures (14-4C-2N).
The regulations for mechanical structures contemplate only ground level and rooftop
structures and limit the size of the structure and require screening the use from public view.
In staff's view, the wind turbine cannot be classified under either of these permitted uses.
At this time, stand-alone wind turbines of the size proposed by Pearson are relatively new in
their application to non -utility uses. The use has not been contemplated by the City's zoning
code. Therefore, in accord with 14-4A-2A-4 of the code (cited above) "a specific use that
cannot be classified into an existing use category shall not be permitted ... without first
establishing a new use category within the Article by Zoning Code Text Amendment." As
noted in both the e-mail and letter denying the permit, City staff is in the process of drafting
an amendment to the zoning code to allow these sorts of wind turbines in appropriate zones
with appropriate conditions to ensure their safety and to control potential impacts on
adjacent properties.
CONCLUSION: While the 142.9-foot wind turbine proposed by Pearson would satisfy some
of the standards for an accessory use, the specific use is not "customarily incidental to or
commonly associated with" the office use. The proposed wind turbine does not fit under any
accessory use listed in the zoning code, therefore a code amendment is required in order to
allow the proposed accessory use. For these reasons, staff concurs with the decision of the
building official to deny the building permit.
ATTACHMENTS:
1. Application requesting appeal
Approved by:
Robert Miklo, Senior Planner
Department of Planning and Community Development
0101, AI100 * I
rAMUM ,
DATE: 1 1-May-2012 PROPERTY PARCEL NO. 0736326001
PROPERTY ADDRESS: 2510 North Dodge Iowa City, IA 52245
PROPERTY ZONE: ORP PROPERTY LOT SIZE: 50.1 AC m/I
Robert Wetherell
APPLICANT: Name:
2510 North Dodge Iowa City, IA 52245
Address:
319.339.6552
Phone:
Michael J. Pugh
CONTACT PERSON: Name:
(if other than applicant)
Bradley & Riley PC One S Gilbert Iowa City, IA 52240
Address:
319.358.5562
Phone:
National Computer Systems. Inc. dba NCS Pearson, Inc.
PROPERTY OWNER: Name: _
(if other than applicant) 5601 Green Valley Drive Bloomington, MN 55437
Address:
952.681.3000
Phone:
1
The Board of Adjustment is empowered to hear and decide appeals where it is alleged there is
error in any order, requirement, decision or determination made by the City Manager or
designee in the enforcement of the Zoning Code or of any ordinance adopted pursuant thereto.
Please see 14-8C-3 in the Zoning Code for detailed information on the appeal procedure.
Planning staff are available to assist applicants with questions about the appeal process or
regulations and standards in the code.
Decision being appealed: The applicant alleges that an error has been made by the following
administrative official (list title) Director, Housing & mspecnon services on (date) 4n2f2o12
in enforcing the Zoning Ordinance in relation to the property listed above . Please indicate the
section of the Zoning Ordinance cited in the official's decision:
Article C 14-4C-1
Purpose of the Appeal: The applicant wishes to challenge the above decision based on the
interpretation of the following section(s) of the Iowa City Zoning Ordinance. (This section of the
code may or may not be different from the section cited in the decision being challenged.)
14-9A-1
Summary: In the space provided below, or on a separate sheet, summarize the basis for your
appeal referring to the code sections listed above and providing sound reason(s) for overturning
the decision. (Provide evidence demonstrating that the decision was based on an improper or
erroneous interpretation of the Zoning Code).
See attached letter from Michael J. Pugh of Bradley & Riley PC hand delivered to the City of Iowa City Building Division dated April 4, 2012,
See also attached Exhibit "A"
Remedy desired:
Issuance of building permit to construct proposed 95kW wind turbine as described in the
permit application dated April 4, 2012 and provided to the City of Iowa City, IA.
ppdadnii6appeal haase.doc -.
2
M:(31.9)930-9416
E: kurt.Smieh@r)varsO,1.com
From: Loren Brumm [mailto:Loren-Brumm@iowa-city.org]
Sent: Thursday, April 05, 2012 9:11 AM
To: Smith, Kurt
Cc: Tim Hennes; Julie Tallman; Jann Ream
Subject: FW: Pearson wind turbine
Hi Kurt,
I received the building permit application for the wind turbine generator at 2510 N. Dodge St here in Iowa City.
Currently I am unable to complete the application since the use is not permitted in the zone, and have denied the permit
application. I have included below e-mail correspondence talking about this matter. Please let us know if you want any
additional information or have questions.
Once(if) the use becomes allowed in the zone we would need additional project information before being able to
continue processing the building permit. This includes, but may not be limited to:
1. A major site plan review would need to be completed. The current site plan is labeled "Preliminary, not for
construction"
2. Plans/information on the tower construction would be needed.
3. Foundation design needs to be signed/sealed by an engineer licensed in the State of Iowa. The e-mailed
foundation calculations are signed by a Minnesota engineer.
4. A special inspection form, provided by the City of Iowa City, would need to be completed. Allowable soil
bearing pressures will need to be confirmed on -site.
Regards,
Loren Brumm
Plans Examiner -
319-356-5123
From: Julie Tallman
Sent: Tuesday, March 27, 2012 4:54 PM
To,'ihodgins@shive-hattery.com'; SLUETH@shive-hattery.com
Cc: Loren Brumm; Tim Hennes; Karen Howard; Bob Miklo
Subject: Pearson wind turbine
Isaac and Shaun, 1 was wrong in my interpretation that a wind turbine is a permitted accessory use in the ORP Zone.
Accessory uses are, by definition, "customary incidental to and commonly associated with" a permitted use. Wind
turbines are not customary or commonly utilized; therefore, our zoning ordinance does not permit wind turbines.
Planning staff had previously brought the matter before Planning and Zoning, but other priorities prevailed and you now
have the opportunity to request an amendment to the zoning ordinance, in order that language might be developed to
allow wind turbines under specified conditions.
I looked on our website for the appropriate application to request a zoning ordinance amendment and did not find a
link. Please contact the Planning Department at 319/356-5230 to get an application.
Julie
4/8/2012
F, James Brodlay
Byron G. Riley
Michael K. DAerney
Pahick M. Courtney
Donald G. Ihompsoc
Katy R. Bdrar
Grogo,y 1, Saylor
Dean A- spina
josaab F. Scomnll
oradley G. Horl
William,. Neppl
`Ndliam T. McCarron
Maureao G. Kenney
Vernon P, Squires
Tlmoihp J, Hill
Poul D. Burrs
Michael J. Pugh
Janice 1_ Ksrkove
Norny A. Wood
April 4, 2012
VIA HAND DELIVERY
City of Iowa City
Building Division
clo Doug Bootbroy, Director
410 E. Washington Street
Iowa City, IA 52240
Kevin C Popp
Laruo C, Mueller
Kimberly H. B'ankonshio
Joseph W. Younker
Jessica A. Doro
Jeremy B. P. Hagan
Natalie K. Ditmars
Adam S. Torr
BP,ADLI Y & Rn,u PC
Raymond R. Rinkol Jr.
Charter w, ct:owa;tor
ATTORNEYS AND COUNISLLORS
CEDAR BRAIDS - IOWA CITY
W €BS ITE ADDRESS;
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OmI -'S"�k rr" GlIzFxT svBEL7
10WA CI'CY, IA 52 140- 1914
E-PRA!L ADDRF$$:
mpay$irn6radlryrll¢y.cnm
•rFtENIONE: 319,1664511
FAX: 119,359 i5%O DIRECT DIAL:
J 19358.556L
.i
Re: Pearson
Wind Turbine —Building permit Application
Dear Doug:
I represent Pearson in local real estate matters. Please find enclosed the Building Permit
Application submitted by Pearson in connection with the proposed installation of a 115 foot
monopole wind turbine on the southwest comer of its property located at 2510 North Dodge
Street, Iowa City, Iowa, Pearson has already received approval of the wind turbine from the
Federal Aviation Administration. 'ro give you an idea of scale, the proposed Pearson wind
turbine is twenty-six (26) times smaller than the wind turbine located at Kirkwood Community
College in Cedar Rapids.
Previously, Pearson's consultants, Shive-Ilattery, Inc., were informed by City Officials in
December of last year that the only municipal approval that was required in connection of the
installation of the wind turbine was the application for a building permit together with a site plan
showing the location of the proposed structure. Pearson relied upon this information to its
detriment, and issued purchase orders with contractors for the installation of the wind turbine in
the aggregate amount of $314,000.00.
{o1208553.Doc )
BRADLEY & RILEY PC
April 4, 2012
Page 2
On March 27w, Shive-Hattery officials were informed by Julie Tallman that the City was
previously wrong in its interpretation that a wind turbine was a permitted accessory use in an
Office Research Park Zone. Ms. Tallman indicated that accessory uses are, by definition
"customary incidental to and commonly associated with" a permitted use. She concluded that
Iowa City's Zoning Ordinance does not permit the construction of wind turbines and directed
Shive-Hattery to the City's Planning and Zoning Department to request an amendment to the
zoning ordinance.
The Zoning Code defines an Accessory Building 1 Use / Stricture as follows:
Iowa City Code 14-9A-1:
ACCESSORY BUILDINGFUSE/STRUCTURE: A building, structure, or use which:
A. Is subordinate to the principal use of the property and contributes to tite comfort,
convenience or necessity of occupants, customers, or employees of the principal use; and
B. Is under the same ownership as the principal use or uses on the property; and
C. Does not include structures, structural features, or activities inconsistent with the uses
to which they are accessory; and
D. Except for off street parking located on a separate lot as approved through a special
exception, is located on the same lot as the principal use or uses to which it is accessory.
Please note that the definition does not include "customary incidental to and commonly
associated with" as alluded to by Ms. Tallman. That language is found in 14-4C-1, and is in
reference to a permitted use, provisional use or special exception, not an accessory use. We
believe based on this definition in 14-9A-1,that a wind turbine clearly is a permitted accessory
use to the Pearson building. The wind turbine is designed to generate clean electrical energy that
will contribute greatly to the comfort and convenience of the Pearson campus.
Furthermore, there is established precedent in Iowa City for the installation of wind turbines.
There may be others, but we do know that the City of Iowa City has installed a wind turbine at
the East Side Recycling Center on Scott Boulevard and there is a wind turbine located at the
University of Iowa's Madison Street Services Building, which is a part of the Sustainable Energy
Discovery District. Both of these wind turbines are located in public zones. However, the
Zoning Code does not make a distinction between what is a permitted accessory use in a public
zone and what is a permitted accessory use in an office research park zone. Both zones refer to
Chapter 144C for approval and development criteria for accessory uses.
Pearson is hopeful that the City will Iook favorably on Pearson's Building Permit Application.
We are confident installation will meet site development standards under the City Code. If the
City wishes to establish further ordinances regarding the installation of wind turbines, we suggest
i01208553.00c I
BRADLEY & RILEY PC
April 4, 2012
Page 3
that those be developed through the Planning and Community Development Department together
with input from the Planning and Zoning Commission.
Tbank you in advance for your attention and consideration of this matter.
Sincerely,
A
Y�Pugh
MJPldab
Enclosures
Co. Pearson
Tom Markus, City Manager (via e-mail only)
Eleanor Dilkes, City Attorney (via e-msU only)
(012Q855).DOC }
410 E. Washington Street
BUILDING PERMIT APPLICATION Iowa City, 52240
(319) 356-5120
fax (319) 341.4020
CITY OF fOWA 0TY
• Site Address: 2510 North Dodge Street Date: 4/3/2012
OR
• Lot & Subdivision:
• Ownerrrenant: Pearson (NCS)
Address: 2510 N. Dodge St. City. Iowa City State IA Zip 52245
Phone: 319-358-4351 T Email: kurt.smith@pearson.com
• General Contractor: Talk, Inc. (Adam Suelflow)
Address: 312 East River Circle City: Sauk Centre State MN Zip 56378
Daytime Phone: 320-351-8255 Other Phone: 320-491-8356
Subcontractors:
• Plumber: n/a Electrician: TBD_ `—
• Mechanical n/a Sewer/Water: n/a
• Fire Sprinkler Installer. n/a Fire Alarm Installer: n/a
• Project Description: Installation of a 95kw Wind Turbine on SW corner of property.
• Total Value of Project: $ 314,000
(Exclude cost of land)
• Permit Value of Project: $ 289,620-
(Exclude cost of plumb., meth., efec.. fire alarm, fire sprinkler & land) ,
Contact Person Name: Kurt Smith Phone 319=930-941Q-
Is project subject to:
Yes No
Iowa Architectural law? ...... ...._..........
.. ❑
❑
Formal site plan review?._. ....... .- ...
.... ❑
❑
Plot plan review? .._............................
❑
❑
Energy Code review?.. ....... ...... ........
.- ❑
❑
Historic preservation review?... ...
❑
❑
Flood plain regulations? ........... ......
❑
TO BE COMPLETED BY STAFF:
Site Zone:
Lot Area:
FeeslEscrows Required:
Other:
Staff Initials:
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April 12, 2012
Michael J. Pugh
Bradley and Riley, PC
Attorneys and Counselors
Tower Place
One S. Gilbert Street
Iowa City, IA 52240-3914
Dear Mike:
CITY OF IOWA CITY
410 East Washington Slrcet
Iowa city. Iowa S2240-1826
(319)356-5000
(319) 356-5009 FAX
evww.icgov.org
This is in response to your letter of April 4, 2012, concerning Pearson's wind turbine building permit
application.
As I mentioned in our phone conversation of April 11, 20121, Loren Brumrn, Building Inspector emailed
Kurt Smith, Data Center Facilities Supervisor, on April 5, 2012 advising him that Pearson's building permit
for construction of a wind turbine was denied. The building permit was denied because the wind turbine is
not considered an allowed accessory use under the Iowa City Zoning Code.
I reviewed the decision to deny the building permit with Legal and Planning staff and conclude that the
wind turbine is not a permitted accessory use because the wind turbine is not "...customarily incidental to
and commonly associated with the permitted use..." in this case office use. The Zoning Code language
quoted is from Article C Accessory Use and Buildings, 14-4C1, General Approval Criteria and is attached
to this letter.
Karen Howard, Associate Planner, has been communicating with Kate Minett from Pearson's and Karen
indicates that Shive-Hattery on behalf of Pearson's is going to be submitting an application to amend the
Zoning Code to allow small wind energy systems with appropriate standards.
However, Pearson also has the right to appeal the decision to deny the building permit to the Board of
Adjustment. If you wish to appeal the decision to deny the building permit you must make application to
the Board of Adjustment and that appeal could be heard as early as May, 2012. Please contact Sarah
Walz, Associate Planner, abput scheduling an appeal with the Board.
inc e l'y�
VV
ouglas . Boothroy
Director Housing and Inspection
cc: in Markus
aren Howard
hisadm'Itrsldb-mpugh dw.
PAGE 4C-1 1 4-4C
Accessory Uses and Buildings
Article C. Accessary Uses and Buildings
Accessory uses, buildings or other structures customarily incidental to and commonly associated
with a permitted use, provisional use or special exception are permitted, provided they are
operated and maintained according to the following standards:
A. The accessory use is subordinate to the principal use of the property and contributes to
the comfort, convenience or necessity of occupants, customers, or employees of the
principal use;
B. the accessory use, building or structure is under the same ownership as the principal use
or uses on the property;
C. The accessory use, building or structure does not include structures, structural features, or
activities inconsistent with the uses to which they are accessory;
D. Except for off-street parking located on a separate lot as approved through a special
exception, the accessory use, building, or structure is located on the same lot as the
principal use or uses to which it is accessory; and
E. The accessory use, building, or structure conforms to the applicable base zone regulations
and to the specific approval criteria and development standards contained in this Article.
proval Criteria
Any accessory uses listed in the following subsections must comply with the conditions listed.
As noted, some require special exception approval from the Board of Adjustment. If a
regulation in the Base Zone Chapter conflicts with a regulation contained in this Article, the
regulation that is more specific to the situation applies. When regulations are equally specific or
when it is unclear which regulation to apply, the more restrictive regulation will govern.
A. Accessory Apartments
Accessory Apartments are permitted in the RS-5, RS-8, RS-12, RM-12, RM-20, and RNS-20
zones in owner -occupied Detached Single Family Dwellings and Detached Zero Lot Line
Dwellings and in buildings accessory to these same dwelling types, provided the following
conditions are met:
1. Permit Required
Prior to the establishment of any accessory apartment, the owner of the principal
dwelling unit must obtain a rental permit from the Department of Housing and
Inspection Services according to the applicable procedures set forth in Chapter 8 of
this Title, Review and Approval Procedures.
2. Ownership and Occupancy
a. The owner of the property on which an accessory apartment is locatedl»ust
occupy at least one of the dwelling units on the premises as the permanent
legal resident,
b. The accessory apartment and the principal dwelling must be under the -same
ownership.
Title 14. kwa City Zoning Code Revised 07-06-09
Exhibit "A"
The Director of Housing and Inspection Services opined on April 12, 2012 that the wind
turbine at issue is not a permitted accessory use because the wind turbine is not, ".. .
customarily incidental to an commonly associated with the permitted use." This
conclusion cites to Section 14-4-C1 of the Zoning Code.
As stated in Michael Pugh's prior April 4, 2012 correspondence, the language cited by
the City refers to a permitted use, provisional use or special exception but not an
accessory use. We continue to believe that the City's citation to Section 14-4-CI is
misplaced. Nevertheless, even if the City's position is to be addressed on its own terms,
jurisprudence in other jurisdictions explicitly rejects the City's conclusion.
In ffainhy, et. al. v. Board of Zoning Appeals, 932 N.E.2d 1251 (Indiana, 2011),
neighboring homeowners brought an action for declaratory relief reversing the local
Board of Zoning's decision to permit a wind turbine tower as an accessory use. Under
the applicable zoning ordinance an "accessory use or structure" was defined as a building
or use that was "incidental or subordinate to and customary in connection with the
principal building or use and which is located on the salve lot with such principal
building or use." Id. at 1254,
The neighboring homeowners argued that "customary" means "usual or habitual" and
that even if a free standing wind turbine were "incidental or subordinate" that it could not
under any reasonable interpretation be construed as "customary." Id. at 1254. The
county countered that the word "customary" is to be considered in the context of the
particular building or structure and not as a general standard. In addition, the county
argued that it is circular to argue that a wind turbine must be customary before it may be
a permitted accessory use because if it is not permitted to be constructed it would never
become customary.
The Indiana Court of Appeals noted that the phrase "customarily in connection with" was
not defined in the applicable ordinance and therefore decided to apply the plain, ordinary
and usual meaning. Id at 1255. The court further framed its analysis by noting that
ordinances inhibiting the use of real property are strictly construed in favor of the free use
of land 2 Id. The court then concluded, "We do not believe that the `customary i n
connection with' requirement for an accessory use structure should be construed so as to
prevent the implementation of new technologies Id "The court added that to
See also Tink-Brig Mountain Lake Forest Property Owners Association v. I,arknwaeen Townshi' Toning
Hearing Board, 986 A.2d 935 (Penn. 2009) (Affirming that a wind turbine tower is an accessoryIuse under
the applicable ordinance which defined an accessory use or structure as "A use of land or of a building or
portion thereof customarily incidental and subordinate to the principal use of the land or building 'and
located on the same lot with such principal use." (emphasis added).
2 In Iowa, zoning restrictions must also be strictly construed in favor of the free use of property. See
Greermwalt v. Zoning Bd. ofAdjustrnent of City of Davenport, 345 N.W.2d 537 (Iowa 1984); Linn County
v. City of Hiawatha, 311 N.W.2d 95, 100 (Iowa 1981); Business Ventures, Inc. v. Iowa City, 234 N.W.2d
376, 381 (Iowa 1975); Jersild v. Sarcone, 260Iowa 298, 296, 149 N.W.2d 179, 185 (1967).
I01219320.DOC 1
conclude otherwise would be contrary to public policy, especially in light of state and
federal incentives to renewable energy systems. Id..
The City erroneously cites to Section t4-4C-1 to arrive at the conclusion that a wind
tz.>rbine tower is not an accessory use under the zoning code. Courts that have examined
language almost identical to Section 14-4C-1 have reached the opposite conclusion. The
correct definition of an accessory use is found at Section 14-9A-1.
The City has already allowed the installation of wind turbines in publicly zoned property
which is contrary to the reasoning found in Mr. Boothroy's April 12, 2012 letter.
t01219320.na:1
NCS PEARSON, INC.
V.
CITY OF IOWA CITY
BOARD OF ADJUSTMENT APPEAL BRIEF OF
NCS PEARSON, INC.
MICHAEL J. PUGH (#AT0006474)
JEREMY B.P. HAGAN (#AT0009621)
of
BRADLEY & RILEY PC
1 South Gilbert Street
Iowa City, IA 52240
Phone: 319-466-1511
Fax: 319-358-5560
Email• mpugh@bradleyriley.com
jhagan@bradleyriley.com
Attorney for NCS Pearson, Inc.
[01251419.D000
TABLE OF CONTENTS
Introduction
Page No.
Procedural History. ..... ................ - ... — ............. ........... ........... ................. I
Standard of Review ... ............. — ........ ...... -- ............. ...... ......... -- ............... ......... 2
ApplicableLaw., ....... .................. ................... ......... — ............. - ........ —.— —.2
Analysis... .... ....... .............................................................................................. —.4
Under a plain reading of the Code, a wind turbine qualifies as an accessory use . ...................... 4
Even if the definition of an "accessory use" is expanded to include the supplemental
qualification requirements contained at Code § 14-4C-1, the proposed wind turbine satisfies
theserequirements as well..... ..... ............... ............ ........................ .......... ............................... 6
Wind turbines are not precluded as accessory uses just because they are not contemplated by
theCode.... ....... ........ ........................ ................. .......... ........ ...... ............... ................... 9
The City's denial of Pearson's wind turbine is unreasonable and arbitrary. ........... ....... ..... — I I
(01251419.D00XI
Introduction
This board of adjustment appeal stems from the City of Iowa City's denial of a building
permit to install a wind turbine. The City first indicated to NCS Pearson, Inc. ("Pearson") that
Planning and Zoning approval would not be required to install a wind turbine on its property but
then subsequently changed its position and has now cited two alternative rationales for its new
position that wind turbines are not permitted. The City's opposition to the wind turbine is
unreasonable under applicable law and arbitrary and capricious in light of the existing wind
turbines in the City (including a City building). The City's untenable position should be
considered in light of the competing demands of the proposed Moss Urban Village development.
Procedural History
Initially, in December of 2011, Pearson's consultant, Shive-Hattery, Inc., was informed
by City Officials that the only municipal approval that would be required in connection with the
installation of a wind turbine was an application for a building permit together with a site plan
showing the location of the proposed structure, Pearson relied upon this information to its
detriment and incurred $314,000.00 in purchase orders.
On March 27, 2012, Shive-Hattery was informed by city representative Julie Tallman that
the City was previously wrong in its interpretation and now concluded that wind turbines were
not permitted under the Code. See email from Julie Tallman (the "Email") attached hereto as
Exhibit "A". On April 12, 2012, Douglas Boothroy, the Director of Housing and Inspection
Services, addressed a letter to counsel to Pearson. See Letter from Douglas Boothroy attached
hereto as Exhibit "B" (the "Letter"). This Letter reiterated the same conclusion that wind
turbines were not permitted under the Code.
On June 13, 2012, Sarah Walz, Associate Planner for the City, and Sarah Holecek, First
Assistant City Attorney, addressed a memorandum to the Board of Adjustment citing an
[01251419.DOCX}
alternative basis for the position that a wind turbine is not permitted under the Code. See
Memorandum from Sarah Waltz and Sarah Holecek attached here to as Exhibit "C". (the
"Memorandum"). The Memorandum takes the position that because wind turbines are not
contemplated by the zoning code it can only be installed after the Code is amended to
specifically provide for their use. See Memorandum at 3. The Memorandum thus concludes,
"The proposed wind turbine does not fit under any accessory use listed in the zoning code,
therefore a code amendment is required in order to allow the proposed accessory use." See
Memorandum at 3.
Standard of Review
I.C. § 14-4A-2(A)(3) provides that a determination of the zoning code interpretation
panel may be appealed to the board of adjustment. The board of adjustment determines whether
the city has made an error in classifying the subject use based on facts in evidence and the factors
listed in the Iowa City Code (the "Code"). Under the Iowa Code, the board of adjustment may
reverse or modify the decision of a zoning official. Iowa Code Ann. §§ 414.12(1), 414.13. In
exercising its power, the board of adjustment retains all the powers of the officer from whom the
appeal is taken. Iowa Code Ann. § 414.13. In exercising this power, it is the role of the board of
adjustment to act as a constitutional safeguard against the unreasonable and arbitrary operation
of the Code. See Holland v. City Council of Decorah, 662 N.W.2d 681, 683 (Iowa 2003).
Applicable Law
The Code provides the specific methodology for classification of land use. Land uses are
divided into "use categories" on the basis of common functional, product, or physical
characteristics. I.C. § 14-4A-1. Use categories are broken down into "subgroups" to the extent
that further distinction is necessary. Id. In order to classify a land use into a use category, a land
use is assigned to the use category that, "most closely describes the nature of the principal use."
{01251419.DOM
I.C. § 14-4A-2(A). Categorization is aided by the inclusion of the most common uses as
examples within each use category. Id. However, for land uses not listed as examples, the Code
provides a list of factors to be considered when classifying a land use into a particular category.
Id.
IeC. § 14-4A-4 provides, "Any use that cannot be clearly classified within an existing use
category by the procedures noted above is prohibited, unless incorporated into this title by a
zoning code text amendment ..."
A separate standard is applicable to assess whether a land use constitutes an approved
accessory use. I.C. § 14-9A-I defines an "Accessory Building/Use/Structure" as follows:
ACCESSORY BUILDING/USE/STRUCTURE: A building, structure, or use which:
A. Is subordinate to the principal use of the property and contributes to the comfort,
convenience or necessity of occupants, customers, or employees of the principal use; and
B. Is under the same ownership as the principal use or uses on the property; and
C. Does not include structures, structural features, or activities inconsistent with the uses
to which they are accessory; and
D. Except for off street parking located on a separate lot as approved through a special
exception, is located on the same lot as the principal use or uses to which it is accessory.
I.C. § 14-4C-1, entitled "General Approval Criteria'' provides that, "Accessory uses,
buildings or other structures customarily incidental to and commonly associated with a permitted
use, provisional use or special exemption are permitted, provided they are operated and
maintained according to the following standards:..." The applicable standards include items A
though D of I.C. § 14-9A-1 but adds a separate requirements that, "The accessory use, building,
or structure conforms to the applicable base zone regulations and to the specific approval criteria
and development standards contained in this article."
[01251419.D0CX}
Analysis
Under the Code, an accessory use must only satisfy the definitional requirements
provided in Code § 14-9A-1. However, even if an accessory use must also satisfy the separate
requirements contained at Code § 14-4C-1, Pearson's application for a building permit should be
approved. The argument that an accessory use must be specifically contemplated by the Code to
avoid exclusion pursuant to Code § 14-4A-2A-4 is without merit. As a result, the City's denial
of Pearson's request for a building permit to install a wind turbine is unreasonable and/or
arbitrary.
Under a plain reading of the Code, a wind turbine qualifies as an accessory use.
As detailed above, the Code's definitions section clearly defines an "accessory use"
broadly as a structure which satisfies four specific criteria. See Code § 14-9A-1. This definition
conspicuously omits the "customarily incidental to and commonly associated with" language
cited by the City in the Letter and the Memorandum and contained in Code § 14-4C- L. There
has been no assertion that the proposed wind turbine fails to satisfy the requirements of Code
§ 14-9A-1.
The City requires that the wind turbine also satisfy the requirements of Code § 14-4C-1,
but § 14-4C-1 actually provides that, "Accessory uses, buildings or other structures customarily
incidental to and commonly associated with a permitted use, provisional use or special
exemption are permitted, provided they are operated and maintained according to the following
standards:..." (emphasis added). Code § 14-4C-1 on its face thus applies to a permitted use,
provisional use or special exception; not an accessory use.
In the Memorandum, the City attempts to gloss over the differences in the two provisions
in arguing that, ``[Code § 14-9A-1 ] does not stand in place of or apart from the regulations for
accessory uses." See Memorandum at 2. This argument fails to reconcile the divergent Code
(01251419.000c)
4
provisions and provides no rationale for the City's selective interpretation of the Code. The rules
of statutory interpretation adopted by Iowa courts require that each provision of a statute be read
together and that no single part be rendered insignificant or superfluous. See Miller v. Marshall
County, 641 N.W.2d 742, 749 (2002). The City's requirement that an accessory use satisfy the
definitional requirements contained in Code § 14-9A-1 and then also meet the more stringent
requirements of Code § 14-4C-1 not only gives Code § 14-4C-1 undue importance but it also
renders Code § 14-9A-1 insignificant and superfluous.
In the Memorandum, the City supports its argument that Code § 14-4C-1 should
supplement the definition provided in Code § 14-9A-1 by citing to the Iowa Supreme Court
decision in City of Emmersburg v. Mullen, 256 Iowa 885 (1964). See Memorandum at 2. In
Emmersburg, the Court considered the City's action to enjoin the use of a garage as being a
violation of the applicable ordinance. The applicable ordinance did not define "accessory use."
Accordingly, the court resorted to a treatise definition which happened to include the word
"customarily." Emmersburg. at 679, The case is thus readily distinguishable from the instant
facts where the applicable ordinance includes a stand-alone definition of "accessory use."
Much more recently, the Iowa Supreme Court specified that, "Unless an ordinance
specifies the types of accessory uses, a particular use will be accessory when it is customary and
incidental to the principal use of the property." City of Okoboii v. Okoboii Bars, Inc., 746
N. W.2d 56, 62 (2008). The Iowa Supreme Court arrived at this conclusion by citing to Simmons
v. Zoning Bd. of Appeals, 798 N.13 2d 1025 (2003), Id. at 62, In Simmons, the court was even
more clear that, "Comas consider the question whether a particular use is customary where the
zoning ordinance does not specify what types of uses are permitted." Simmons at 1028. In this
' Similarly, the City's citation to Grandview Baptist Church v. Zonin¢ Board ofAdiustment, 301 N.W.2d 704
(1981) is also unpersuasive. In that case, the applicable ordinance also failed to define an "accessory use."
10125141e.ocod
case, Code § 14-9A-1 the Code does specify the types of permitted accessory uses by imposing
four specific qualifying conditions.
Even if the definition of an "accessory use" is expanded to include the supplemental
qualification requirements contained at Code § 14-4C-1, the proposed wind turbine
satisfies these requirements as well.
The City perfunctorily concludes in the Email, Letter and Memorandum that a wind
turbine was not "customarily incidental to and commonly associated with" an office use. See
Email, Letter and Memorandum at 3. The City does not bother to provide any analysis of what it
would mean for an accessory land use to be "customarily incidental to" and "commonly
associated with" an office use. Pearson advocates the position that wind turbines are
increasingly and readily associated with buildings in this city and state wide. State and federal
policies subsidizing the practice and industry should be considered to buttress this conclusion.
In City of Okoboji v. Okoboji Bars, Inc., 746 N.W.2d 56 (2008), the Iowa Supreme Court
had the opportunity to consider the meaning of the phrase "customarily and incidental to." The
Court offered a vague standard that, "A use is customary so as to qualify as an accessory use
when it is often found in conjunction with a principal use." Id. at 62. More helpfully, the court
noted with approval that, "... proof of the manner in which other buildings in the district are
utilized is useful in `determining just what construction or interpretation the city officials, and in
fact city residents, place upon the provisions of the ordinance relative to accessory uses."' Id. If
this is the mechanism to be utilized by Iowa courts to ascertain whether an accessory use is
customary then, as described below, the board of adjustment has other City approved wind
turbines to consider in rendering its decision.
In two neighboring jurisdictions, courts have required a similar showing to find that an
accessory use is customary. In Lake County v. LaSalle Nat. Bank, 76 Ill. App, 3d 179, the court
{01251419.DOCX}
considered whether a house trailer maintained as quarters for groundskeepers was an accessory
use to a golf course. The court would not require a showing that most, or even many, golf
courses followed this practice. Instead, all that was required was a showing that the practice be
sufficiently followed as to constitute a "recognized mode of activity in the field." Id. Similarly,
in Nebraska, the court stated that when evaluating proof of an accessory use, "No doubt the
degree of use is a factor.... The practice should be sufficient to justify the observation that [it] is
not unique or rare. It should be appreciable or perhaps substantial. It should be sufficient to
constitute a recognized mode of activity in the field, but it need not be the more prevalent one."
State v. Smiley, 153 NM 2d 906, 908 (1967).
It is also worth noting that the Supreme Court of Delaware has ruled that prior
community experience is not the proper criteria for assessing whether an accessory use is
customary where the analysis relates to a small state. Since Delaware has only approximately
600,000 people, the court held that the determination of what is customary should be made by
reference to state-wide practices. Commissioners of Bellefonte v. Coppola, 453 A.2d 457 (Del.
1992). A rationale for adopting this broader geographic scope was to permit more innovative
land uses. Id.
Finally, a robust analysis of wind turbines as accessory uses should consider other court
cases involving the almost identical issue. In Hamby, et. al. v. Board of Zoning Appeals, 932
N.E.2d 1251 (Indiana, 2011), neighboring homeowners brought an action for declaratory relief
reversing the local Board of Zoning's decision to permit a wind turbine tower as an accessory
use.2 Under the applicable zoning ordinance an "accessory use or structure" was defined as a
2 See also Tink-Wit; Mountain Lake Forest Property Owners Association v. Laxkawaxen Township Zoning Hearing
Board, 986 A.2d 935 (Penn. 2009) (Affirming that a wind turbine tower is an accessory use under the applicable
ordinance which defined an accessory use or structure as "A use of land or of a building or portion thereof
customarily incidental and subordinate to the principal use of the land or building and located on the same lot with
such principal use." (emphasis added).
{01251419.DOCXI
building or use that was "incidental or subordinate to and customary in connection with the
principal building or use and which is located on the same lot with such principal building or
use." Id. at 1254.
The neighboring homeowners argued that "customary" means "usual or habitual" and
that even if a free standing wind turbine were "incidental or subordinate" that it could not under
any reasonable interpretation be construed as "customary." Id. at 1254. The county countered
that the word "customary" is to be considered in the context of the particular building or
structure and not as a general standard. In addition, the county argued that it is circular to argue
that a wind turbine must be customary before it may be a permitted accessory use because if it is
not permitted to be constructed it would never become customary.
The Indiana Court of Appeals noted that the phrase "customarily in connection with" was
not defined in the applicable ordinance and therefore decided to apply the plain, ordinary and
usual meaning. Id. at 1255. The court further framed its analysis by noting that ordinances
inhibiting the use of real property are strictly construed in favor of the free use of land .3 Id. The
court then concluded, "We do not believe that the `customary in connection with' requirement
for an accessory use structure should be construed so as to prevent the implementation of new
technologies ..." Id. The court added that to conclude otherwise would be contrary to public
policy, especially in light of state and federal incentives to renewable energy systems. Id. An
increasing number of national and international companies are considering wind turbines and
other renewable energy resources for their facilities. This city and state considers itself a leader
3 In Iowa, zoning restrictions must also be strictly construed in favor of the free use of property. See Greenawalt v.
Zoning Bd. of Adjustment of City of Davenport, 345 N.W.2d 537 (Iowa 1984); Linn Countv v. City of Hiawatha,
311 N.W.2d 95, 100 (Iowa 1981); Business Ventures, Inc. v. Iowa City, 234 N.W.2d 376,381 (Iowa 1975); Jersild
v. Sarcone, 260Iowa 288, 296, 149 N.W.2d 179, 185 (1967).
M 2st4t9.oacxl
in wind energy. For these reasons an Iowa court would be especially likely to adopt the
reasoning of the Indiana Court of Appeals.
Wind turbines are not precluded as accessory uses ,just because they are not
contemplated by the Code.
Although not addressed by the Email or the Letter, in the Memorandum the City raises a
new argument to support its denial of the wind turbine. For the first time the City audaciously
argues that since a wind turbine is not contemplated by the Code it is not permitted pursuant to
Code § 14-4A-2A-4. Memorandum at 3. This proposition fails under a simple textual analysis.
In the first place, Code § 14-4A-2A-4 modestly provides only that a use is not permitted if it,
"cannot be clearly classified within an existing use category by the procedures noted above ..."
Code § 14-4A-2(A)(1) instructs:
A number of the most common uses are listed under the `examples' subsection for
each use category.... For uses not listed as examples, the following is a list of
factors to be considered when classifying a use into a particular category, and is
also used to determine whether the activities constitute principal uses or accessory
uses.
The Building Official is statutorily obliged to utilize the sixteen factors identified in Code § 14-
4A-2(A)(1) to determine the appropriate category for a use. Code § 14-4A-2(A)(2). Thus, there
is no basis for the Memorandum's conclusion.
The City's argument must also fail in light of Iowa's clear protection of private property
interests. The City is arguing that unless a land use is specifically contemplated by the Code
such use is not permitted. In Iowa, zoning restrictions are strictly construed in favor of the free
use of property. See Greenawalt v. Zoning Bd. of Adjustment of City of Davenport, 345 N.W.2d
537 (Iowa 1984); Linn County v. City of Hiawatha, 311 N.W.2d 95, 100 (Iowa 1981); Business
{01251419.DOCX}
Ventures. Inc. v. Iowa City, 234 N.W.2d 376, 381 (Iowa 1975); Jersild v. Sareone, 260 Iowa
288, 296, 149 N.W.2d 179, 185 (1967). The City flips the applicable rule on its head. Under
Iowa law and the Code, a land use is permitted unless (and only to the extent) it is regulated by
the Code. The City has the prerogative to amend the Code going forward to regulate wind
turbines. However, the City does not have the power to preclude a wind turbine based on the
subject's current omission from the Code.
The City's argument was also expressly rejected by the Iowa Supreme Court. In City of
Okoboii v. Okoboii Barz, Inc., 746 N.W.2d .56 (2008), the City denied a liquor permit to a
restaurant owner who operated a restaurant under a legal nonconforming use. The City's
position was that under the applicable zoning ordinance the sale of alcoholic beverages was a
separate use and therefore an impermissible expansion of the nonconforming use. Id. at 60. The
court acknowledged that the zoning code countenanced the sale of alcohol for a nightclub,
cocktail lounge and tavern land use but not for a restaurant. Id. at 61. However, the court
rejected the City's argument as follows:
Yet, the interpretation by the city essentially ignores the doctrine of accessory
uses of property.
Accessory -use provisions are a common component to municipal ordinance
schemes because it is next to impossible for a zoning ordinance to express "`every
possible lawful use.. of property. Hannigan v. City of Concord, 144 N.H. 68, 738
A.2d 1262, 1266 (1999) (quoting Town of Salem v. Durrett, 125 N.H. 29, 480
A.2d 9, 10 (1994), Thus, the doctrine of accessory uses contemplates property
may be used in ways not expressly permitted under the ordinance. Id.
(emphasis added).
{01251419.DOCX}
10
Under the City's interpretation of the Code, private property owners would not be able to
install solar panels, geothermal heating and cooling systems or green roofs; none of which are
addressed by the Code. Fortunately Iowa Iaw does not support this interpretation.
The City's denial of Pearson's wind turbine is unreasonable and arbitrary.
The role of the board of adjustment is to act as a constitutional safeguard against the
unreasonable and arbitrary operation of the Code. See Holland v. City Council of Decorah, 662
N.W.2d 681, 683 (Iowa 2003). As indicated above, the Code is clear that a wind turbine is a
permitted accessory use. The City provides little analysis of why Pearson's application fails
under its shifting rationales. Yet the City's decision would not be so unreasonable or arbitrary
but for the established precedent in Iowa City for the installation of similar wind turbines. The
University of Iowa Madison Street Services Building includes a conspicuous wind turbine
featured on the front of the facility. A picture of this wind turbine is attached hereto as Exhibit
"D". In addition, the City has itself installed a wind turbine at the East Side Recycling Center.
A picture of this wind turbine is included as Exhibit "E". It would be difficult to conceive a
more unreasonable and arbitrary application of the Code than for the City to permit a wind
turbine on a City building but reject installation of the same on private property. The City has
never argued that a wind turbine is a permitted accessory use for a public zone but not for an
Office Research Park zone.
The City has permitted installation of a wind turbine at a university building and a public
building but now for the first time argues that the very same wind turbines are not permitted
under the Code. The arbitrary nature of the decision is reinforced by the fact that the City
initially indicated that a building permit would be granted before the City communicate in the
Email that this interpretation was "wrong." See Email. It may not be a coincidence that the
Email reversing the City's position was dispatched at the same time that the City was working on
{01251419.DOCXE
ti
a Traffic Impact Study for the proposed Moss Urban Village Development. The Traffic Study
recommends placement of a road through the Pearson property and through the location of the
proposed wind turbine.
The City's support for the Moss Urban Village Development and the impact of Pearson's
wind turbine on this development forms the basis of a clear conflict of interest impairing the
City's review of Pearson's wind turbine proposal. The agenda packet for the June 13, 2012
board of adjustment meeting included the Memorandum which was co-authored by Sarah Walz,
Associate Planner and from Sarah Holecek, First Assistant City Attorney. Pearson objected to
the City attorney's participation at the Board of Adjustment meeting and role in advising the
board of adjustment in a proceeding evaluating the City's denial of a building permit. Pearson
believes the City's conduct has already tainted the proceeding in violation of due process of law.
At Pearson's request the City has agreed to step down from any further representation of the
board of adjustment and that the board would retain independent counsel. The City has thus
finally conceded that it is a conflict of interest for an assistant City Attorney to counsel the board
of adjustment with respect to the appeal of a decision by the Building Official where the
Building Official relied, at least in part, on the advice of the City Attorney's office. Even though
the City participated in the selection of board of adjustment counsel, we are now confident that
the board of adjustment will have independent and objective counsel.
The board of adjustment should hold that the City acted unreasonably and arbitrarily in
denying Pearson's application for a building permit.
{01251419.DOCX}
12
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NIICHAEL J. PUGH (#AT0006474)
JEREMY S.P. HAGAN (#AT0009621)
of
BRADLEY & RILEY PC
1 South Gilbert Street
Iowa City, IA 52240
Phone: 319-466-1511
Fax: 319-358-5560
Email: mpugh@bradleyriley.com
jhagan@bradleyriley.com
Attorney for National Computer Systems, Inc. dha
NCS Pearson, Inc.
101251419.DOCXj
13
0 i
M: (319) 930-9416
E: Mart 9mWI020ma.+.
From: Loren Brurrun [mallto:Loren-Bnlmm@io%a�c ,Wg]
Sent Thursday, April 05, 2012 9:11 AM
To. Smith, Kurt
Cc Tim Hennes; Jurie Tallman; Jann Ream
subject: Fw: Pearson wind turbine
HI Kurt,
i received the building permit application for the wind turbine generator at 2510 N- Dodge St here in Iowa City.
Currently i am unable to complete the application since the use is not permitted in the zone, and have denied the permit
application. i have included below e-mail correspondence talking about this matter. Please let us know if you want any
additional information or have questions-
4nceN the use becomes allowed in the zone we would need additional project information before being able to
continue processing the building permit. This includes, but may not be limited to:
1. A major site plan review would need to be completed. The current site plan is labeled "Preliminary, not for
construction`
2. Plansfinformation on the tower construction would be needed.
3. Foundation design needs to be signed/sealed by an engineer licensed in the State of Iowa. The e-malled
foundation calculations are signed by a Minnesota engineer.
4. A special inspection form, provided by the City of Iowa City, would need to be completed. Allowable soil
bearing pressures will need to be confirmed on -site. �a
Regards, c - EI
Loren Brumm
Plans Examiner
319-356-5123
From, Jule Tallman
Send Tuesday, March 27, 2012 4:54 PM
To: 'ilrodgins@shive-hattery.own'; SLiIErHCcashive-ha p� can
CC Loren Brumm; Tim Hennes; Karen Hav ard; Bob Mlido
Subject; Pearson wind turbine
Isaac and Shaun, I was wrong In my interpretation that a wind turbine is a permitted accessory use in the CIRP Zone.
Accessory uses are, by definition, "customary incidental to and commonly associated with" a permitted use. wind
turbines are not customary or commonly utilized; therefore, our zoning ordinance does not permit wind turbines.
Planning staff had previously brought the matter before Planning and Toning, but other priorities prevailed and you now
have the opportunity to request an amendment to the zoning ordinance, In order that language might be developed to
allow wind turbines under specified conditions.
I looked on our website for the appropriate application to request a zoning Ordinance amendment and did not find a
link. Please contact the Planning Department at 319/356-5230 to get an application.
Julie
4/8t2012 A
April 12, 2012
Michael J, Pugh
Bradley and Riley, PC
Attorneys and Counselors
Tower Place
One S. Gilbert Street
Iowa City, [A 52240-3914
Dear Mike:
�.�o:a7`r
�'ll
CITY OF IOWA CITY
410 East Washington Street
Iowa City. Iowa 52240-1826
t319) 356-S000
W91 3565009 FAX
www.1cgor. or g
This Is In response to your letter of April 4, 2012, concerning Pearson's wind turbine building permit
application.
As t mentioned in our phone conversation of April 11, 20121, Loran Brumm, Building Inspector emaited
Kurt Smith, Data Center Facilities Supervisor, on April 5, 2012 advising him that Pearson's building permit
for construction of a wind turbine was denied. The building permit was denied because the wind turbine is
not considered an allowed accessory use under the Iowa City Zoning Code.
I reviewed the decision to deny the building permit with Lec at and Piannin staff and conclude that the
wind turbine is not a permitted accessory use because the w nd turbine is not ".., customarily Incidental to
and commonly associated with the permitted use,..' in this case office use. The Zoning Code language
quoted Is from Article C Accessory Use and Buildings, 144Ci, General Approval Criteria and is attached
to this letter.
Karen }coward, Associate Planner, has been communicating with Kate Mlnett from Pearsan'a and Karen
indicates that Shive-Hattery on behalf of Pearson's is going to be submitting an application to amend the
Zoning Cede to allow small wind energy systems with appropriate standards.
However, Pearson also has the right to appeal the decision to deny the building permit to the Board of
Adjustment If you wish to appeal the decision to deny the building permit you must make epplieaiian to
the Board of Adjustment and that appeal could be he as early as May, 2012. Please contact Sarah
Walz. Associate Planner, atiput scheduling an appeal with the Board.
in
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as . Boottay
Diredor Housing and inspection
cc. m Markus
en Howard
ntas&mAr Abe p„eghdac
c7_a --
EXHIBIT
Date: June 13, 2012
To: Board of Adjustment
From- Sarah Walz, Associate Planner
Sarah E. Holecek, First Assistant City Attorney
RE: APL12-00001 P An appeal of a decision made by the Building Official to
deny a building permit for a wind turbine to be located In the Office Research Park
(ORP) zone at 2510 North Dodge Street.
In an e-mail dated April 5, Building Inspector Loren Brumm informed the applicant that a
requested building permit to install a 142.9-foot' wind turbine on property located in the
Office Research Park (ORP) was being denied because the zoning code does not allow
wind turbines as an accessory use in the subject zone.
At the request of the applicant's attorney, the Director of Housing and Inspection Services,
Doug Boothroy, reviewed the denial. In a letter dated April 12, Boothroy informed the
applicant's attorney that he concurred with the inspector's determination that the use was
not permitted in the zone. Citing the zoning code, Boothroy stated that a wind turbine is not
a permitted accessory use because it is not 0... customarily incidental to and commonly
associated with the permitted use' [an office use]- He goes on to note that, at the request of
Pearson, the Planning Department would draft an amendment to the code to allow wind
turbines.
SCOPE OF REVIEW:
Iowa Code gives the Board authority to hear and decide appeals where it is alleged there is
error in any decision made by the zoning official. To that and, the Board may reverse or
affirm the official's decision, in whole or in part, or may modify the decision and may make
such decision as ought to be made, and thus has all the powers of the officer from whom the
appeal was made. In the case of a five -member board, the concurring vote of three
members is required to reverse any decision of the zoning official. Iowa Code §§414A2(1),
414,13, 414A4,
ANALYSIS:
The regulation regarding the determination of principal and accessory uses is
contained in Chapter 4 of the zoning code. Under 14-4A-2A-4„ the code states;
"Any use that cannot be clearly classified within an existing use category by the
procedures noted above is prohibited, unless incorporated into the Title by a Zoning
Code Text Amendment... , A speck use that cannot be classified into an existing use
category shall not be listed as permitted, provisional, or a special exception in any zone
without first establishing a new use category within the Article by Zoning Code Text
Amendment."
'Note that wind turbines are measured from the base of the tower to the tip of the turbine blade. In this
case the proposed tower is 115 feet. The turbine blade extends the height of the equipments l an„fij
C-
June 8, 2012
Page 2
The regulations specific to accessory uses are set forth in Article C: "Accessory Uses
and Buildings," which begins as follows (14-4C-1):
'Accessory uses, buildings or other structures customarily incidental to and commonly
associated with a permitted use, provisional use, or special exception are permitted,
provided they are operated and maintained according to the following standards:
A. The accessory use is subordinate to the principal use of the property and
contributes to the comfort, convenience or necessity of occupants, customers, or
employees of the principal use;
B. The accessory use, building, or structure is under the same ownership as the
principal use or uses on the property;
C. The accessory use, building or structure does not include structures,
structural features, or activities inconsistent with the uses to which they are
accessory;
D. Except for off-street parking located on a separate lot as approved according
to the provisions set forth in section 14-5A-4F, Alternatives to Minimum Parking
Requirements, the accessory use, building, or structure is located on the same
lot as the principal use or uses to which it is accessory; and
E. The accessory use, building, or structure conforms to the applicable base
zone regulations and to the specific approval criteria and development
standards contained in this Article.
The appeal relies on an abbreviated definition of "accessory use' from Chapter 9 of the
code: "Definitions." That definition does not stand in place of or apart from the regulations for
accessory uses. It is staffs contention that to ignore the complete definition, which includes
"customarily incidental and commonly associated with,' would allow nearly any use to be
claimed as an accessory use.
The Supreme Court of Iowa discussed language similar to that above in the case of City of
Emmetsbnura v. Mullen, 129 N.W.2d 677, 678-79 (Iowa 1964), and adopted the following
rationale from 101 C.J.S. Zoning, section 176:
°A use is `accessory' when it is customarily incident to the main use, or when it is so
necessary or so commonly to be expected in connection with the main use that it cannot be
supposed that the ordinance was intended to prevent it".
In the Emmetsburo case, the issue was whether a three stall garage constructed in a
residential zone and housing two pickup trucks for the owner's business as well as a private
automobile violated the zoning ordinance by not being an accessory use. There was
testimony that many occupants of single-family residences, scattered throughout the City,
used garages for the parking of vehicles and equipment, including heavy equipment, used in
the occupants business. In upholding the use, the court found that this common practice
was relevant to what construction or interpretation city officials and city residents placed
upon the ordinance with respect to accessory uses.
See also, Grandview Baptist Church v Zoning Board of Adjustment of the Li of t�avenoort.
Iowa, 301 N.W.2d 704, 708-709 (lava 1981)(citing the above and finding no error in Board
determination that 32' x 45` steel storage building constructed by church was not an
accessary use incidental to the church).
June 8, 2012
Page 3
The Accessory Use Regulations in the code provide a list of uses and structures considered
accessory and the spec criteria for allowing them. These criteria include measures such
as setbacks, screening, or size limitations intended to limit the scale or intensity of the use
and to minimize any negative impacts associated with the use or structure. The list of
accessory uses includes a wide range of uses, from decks and patios to pet shelters and
cages to drive -through facilities. Several accessary uses have entire code chapters devoted
to their regulation—i.e. outdoor lighting, off -sheet parking, and signs. [The Use Category
section of the code provides a list of anticipated accessory uses for each principal use
listed]
The permitted accessory uses most similar to the proposed wind turbine in height or function
are communication towers and mechanical structures. Communication towers (14-4C_2H)
are allowed by special exception only and are subject to setbacks and other regulations
intended to ensure public safety and to reduce the visual impact of the tall tower structures
Another accessory use that has some similar features is mechanical structures (14-4C_2N).
The regulations for mechanical structures contemplate only ground level and rooftop
structures and limit the size of the structure and require screening the use from public view.
In staffs view, the wind turbine cannot be classified under either of these permitted uses.
At this time, stand-alone wind turbines of the size proposed by Pearson are relatively new in
their application to non -utility uses. The use has not been cone platetd the C. s zoning
code. Therefore, in accord with 14-4A='-4 of the cite above} "a specnc use that
cannot be classified into an existing use category shall not be permitted ... without first
establishing a new use category within the Article by Zoning Code Text Amendment." As 3 noted in both the e-mail and letter denying the permit, City staff is in the process of drafting
an amendment to the zoning code to allow these sorts of wind turbines in appropriate zones
with appropriate conditions to ensure their safety and to control potential impacts on
adjacent properties.
CONCLUSION: While the 142.9-foot wind turbine proposed by Pearson would satisfy some
of the standards for an accessory use, the specific use is not `customarily incidental to or
commonly associated with" the office use. The proposed wind turbine does not fit under any
accessory use listed in the zoning code, therefore a code amendment is required in order to
allow the proposed accessory use. For these reasons, staff concurs with the decision of the
building official to deny the building permit.
ATTACHMENTS:
1. Application requesting appeal
Approved b
Senior 125Ianner
Department and Community Development
- L
s�, '• c=t'�t
5.
i
i
City of Iowa City
MEMORANDUM
Date: July 11, 2012
To: Board of Adjustment
From: Andrew Bassman, Planning Intern
RE: A request to amend EXC12-00003 in order to allow two required parking spaces
to be provided in a municipal parking facility.
Introduction
At its April 11 meeting, the Board of Adjustment granted Mark Moen a special exception to
allow above -ground structured parking for two required parking spaces for a proposed 14-
story mixed -use building in the Central Business (CB-2) zone at 114 S. Dubuque Street.'
The Board granted a simultaneous special exception to allow the remaining 12 required
parking spaces to be provided off -site at a municipal parking facility within the CB-10 zone.
The applicant is now requesting a modification to the original special exception in order to
provide all 14 required parking spaces in the municipal facility; no spaces would be provided
on site as previously approved. The applicant has provided a statement (see final
attachment) indicating that it is not possible to fit the two parking spaces on -site without
significantly diminishing the space for the ground floor retail use.
The property is located with frontage on City Plaza (the Pedestrian Mall) and is currently the
site of the Wells Fargo Bank building. At approximately 3,200 square feet (40 x 80 ft.), the
subject parcel is small and has limited vehicle access from the adjacent alley to the south.
The proposed building will have ground floor and mezzanine retail levels, and three floors of
class -A office space. Floors 5 through 14 will contain twenty-four 1-bedroom apartments and
two 2-bedroom apartments. City Code requires a total of 14 parking spaces to serve the
residential units.
Analysis
The applicant has indicated that, upon further investigation, it is not feasible to include the
two parking spaces at grade without encroaching further on ground floor retail space.
Including the two parking spaces would reduce main floor retail space to 700 square feet or
less, according to the applicant. The location of required safety equipment, including main
floor mechanical and fire command rooms, within the small ground floor area of the building
limits flexibility to accommodate the parking and retail space. In addition, the applicant has
indicated that it is not possible to provide the amount of safe clearance and recess for the
parking garage doors to safely back a vehicle onto the alley.
The Director of Planning and Parking have indicated that accommodating the additional two
parking spaces in the municipal parking facility would not be an issue. The Comprehensive
Plan generally supports high -density residential development downtown and the City
Council amended the zoning code to require parking for downtown residential development.
'The code requires on -site parking in the CB-10 zone to be underground unless a special
exception for above -ground parking.
July 6, 2012
Page 2
Because the size and configuration of some downtown lots makes it difficult or impossible to
provide underground parking, the Council included a provision that would allow required
parking to be provided in City facilities through the special exception process.
The purpose of the Zoning Ordinance is to promote the public health, safety and general
welfare, to conserve and protect the value of property throughout the city, and to encourage
the most appropriate use of land. It is the intent of the Ordinance to permit the full use and
enjoyment of property in a manner that does not intrude upon adjacent property. The Board
may grant the requested special exception if the requested action is found to be in
accordance with the regulations of the Sections 14-5A-4F-1 and Section 14-5A-3D-5e as
well as the general standards for special exceptions as set forth in Section 14-4B-3A.
Below are the criteria and findings of fact provided in the original staff report to support the
location of required parking off -site in a municipal parking facility. Staff believes that these
findings are appropriate to support the location of the two spaces being moved off -site.
The Board adopted these same findings in its original decision to approve off -site parking. If
in reviewing this request the Board decides that providing the additional two parking spaces
in the City ramp is appropriate, the amendment may be approved by summarily adopting the
original findings with regard to off -site parking. If the Board does not believe that the
amendment should be approved it should support its decision with findings that apply to the
standards below.
Specific Standards: Alternatives to Minimum Parking Requirements (14-5A-417-1):
Off-street parking may be located on a separate lot from the use served according to the
following rules. When the proposed off -site parking is located in a residential zone or in
the CB-10 zone or intended for a use in the CB-10 zone, the Board of Adjustment may
grant a special exception for the proposed parking, provided the conditions contained in
subparagraphs a through g are met.
a. Special Location Plan
A special location plan must be submitted with the application for off -site parking.
The location plan must include a map indicating the proposed location of the off -
site parking, the location of the use or uses served by the parking, and the
distance and proposed walking route between the parking and the use(s) served.
The map must be drawn to scale and include property boundaries of any
intervening properties. In addition, documentation must be submitted providing
evidence deemed necessary to comply with the requirements herein.
Staff believes that the applicant has satisfied the criterion based on the following
findings:
• The aerial view provided shows the location of 114 South Dubuque Street in relation
to the Dubuque Street parking facility.
• The pedestrian entrance to the parking facility is located approximately 450 feet from
the entrance to the proposed building.
• There is a direct walking route between the parking facility and the subject property
is through City Plaza. Residents can walk through the Sheraton Hotel or the
pedestrian passage next to the Sheraton to access the parking facility from Dubuque
July 6, 2012
Page 3
Street or can walk along City Plaza to enter the parking facility from Linn Street
without having to cross any public streets.
b. Location of Off -site Parking
In Residential and Commercial Zones, no off -site parking may be located more
than 300 feet from an entrance of the use served, except as allowed in
subparagraph e, below, for parking in a municipal parking facility.
Staff finds that this criterion is satisfied based on the following:
• The proposed off -site parking is located in a municipal parking facility. (See item e
below.)
c. Zoning
Off -site parking spaces must be located in the same zone as the principal use(s)
served, or alternatively, off-street parking may be provided on a separate lot
within the parameters of the following pairings.
Staff finds that the criterion is satisfied based on the following:
• The proposed parking is located in a municipal parking facility. (See item e below.)
d. Shared Use of Off -Site Parking
Staff finds that the criterion is satisfied based on the following:
• The applicant is not proposing to "share" parking with another use.
e. Off -Site Parking Located in a Municipally -Owned Parking Facility
In the CB-10 Zone, up to 100 percent of the required parking number of parking
spaces may be provided in a City -owned parking facility regardless of the
distance between the use and the parking facility. When an applicant requests to
provide off-street parking in a City -owned parking facility, the Director of Planning
and Community Development in consultation with the Director of Transportation
Services and the City Manager or designee must substantiate that with the
addition of the requested number parking spaces the capacity of the parking
facility will not be exceeded. In the CB-10 Zone, said parking requested to meet
minimum parking requirements for residential uses may only be approved by
special exception and only if there is capacity.
Staff believes the applicant has satisfied this requirement based on the following.
• The subject use is located in the CB-10 zone.
• The applicant has requested 14 total spaces for long term rental (12 spaces already
approved plus the two spaces requested here). In consultation with the Director of
Transportation Services, staff has determined these 14 spaces are available for long
term rental and that the capacity of the parking facility will not be exceeded.
• The Dubuque Street parking facility provides 626 parking spaces, and 325 permits
are issued annually. Nearly all regular permits expire annually and the number
available for renew or sale is based on an analysis by the Director of Transportation
Services. The Director of Transportation Services has indicated that there is
July 6, 2012
Page 4
available capacity in the ramp at this time. The Director of Planning and Community
Development and the City Manager concur with this analysis.
f. Approval Criteria
In assessing a special location plan for off -site parking, the Board of Adjustment
or Director of Planning and Community Development, as applicable, will consider
the desirability of the location of off-street parking and stacking spaces on a lot
separate from the use served in terms of pedestrian and vehicular safety; any
detrimental effects of adjacent property; the appearance of the streetscape as a
consequence of the off-street parking; and in the case of non -required parking,
the need for additional off -site parking.
Staff believes that the proposed location for off -site parking is appropriate based on the
following:
• The zoning code allows that for properties located in the CB-10 zone, up to 100% of
parking may be provided in a municipal ramp regardless of its location. The Dubuque
Street ramp is approximately 450 feet from the proposed dwelling units with
connection provided along the Pedestrian Mall.
• The proposed parking is located in a municipal parking facility, which is designed to
provide safe vehicular access. Ingress and egress from the parking facility are
designed with good visibility.
• The parking facility is already constructed, so there will be no change to the area.
g. Covenant for Off -Site Parking
A written agreement between the owners of the parking and owners of the
property for which the parking will serve must be submitted with the application
for off -site parking. The agreement must assure the retention of the parking and
stacking spaces, aisles, and drives and be properly executed, binding upon their
successors and assigns, and must be recorded as a covenant running with the
land. The agreement must provide that it cannot be released, and its terms and
conditions cannot be modified in any manner whatsoever, without prior written
consent and approval from the City. The written agreement must be reviewed and
approved by the City Attorney.
Because the off -site location being requested is a City -owned facility, the parking
agreement is subject to approval of the special exception. The applicant has submitted a
draft parking covenant as part of the redevelopment plan to the City Council for approval.
This covenant will be submitted as part of the building permit application based on the
number of spaces approved by the board. Staff recommends that the agreement indicate
that the parking permits shall only be offered to residents of 114 South Dubuque Street and
shall be offered at a rate not to exceed the market rate determined by the Director of
Transportation Services at the time of leasing. Staff recommends the agreement require
the property manager provide the Director of Transportation Services with the name,
license plate number, and address of all permit holders; and that permits be granted only to
residents with the primary address of 114 South Dubuque Street.
July 6, 2012
Page 5
General Standards: 14-4B-3, Special Exception Review Requirements
1. The specific proposed exception will not be detrimental to or endanger the
public health, safety, comfort or general welfare.
Staff believes the following findings support this criterion:
• The Dubuque Street parking facility is approximately 450 feet from the proposed
mixed use building. Pedestrian access through City Plaza is already established
between the two sites. Ingress and egress from the parking facility is designed to be
safe and has good visibility to and from adjacent streets.
2. The specific proposed exception will not be injurious to the use and enjoyment
of other property in the immediate vicinity and will not substantially diminish or
impair property values in the neighborhood.
Staff believes the following findings support this criterion.
• The proposed development devotes all ground floor and mezzanine space to retail
use, and includes three floors of Class A office space, which contribute to the
Downtown commercial vitality.
• The proposed residential units add to the diversity of Downtown housing and will not
substantially increase parking demand.
3. Establishment of the specific proposed exception will not impede the normal
and orderly development and improvement of the surrounding property for uses
permitted in the zone in which such property is located.
Staff believes the following finding supports this criterion:
• The Director of Transportation Services has reviewed the application and has
indicated to staff that presently there is adequate capacity in the Dubuque Street Ramp
to provide the additional requested spaces (2).
4. Adequate utilities, access roads, drainage and/or necessary facilities have
been or are being provided.
Staff believes the following finding supports this criterion:
All utilities, access roads, drainage and other facilities are in place to serve the
parking facility and the development of the proposed building.
5. Adequate measures have been or will betaken to provide ingress or egress
designed so as to minimize traffic congestion on public streets.
Staff believes the following finding supports this criterion.
• All municipal parking facilities are designed to provide safe ingress and egress to
adjacent public streets and to minimize congestion of public streets.
July 6, 2012
Page 6
6. Except for the specific regulations and standards applicable to the exception
being considered, the specific proposed exception, in all other respects, conforms
to the applicable regulations or standards of the zone in which it is to be located.
Staff believes the following findings support this criterion:
• Municipal parking facilities are designed to meet all applicable standards in the
zoning code and are designed to provide safe and accessible parking.
• All aspects of the residential development will be reviewed administratively by City
staff as part of the site plan and building permit process in order to ensure that all
aspects of the code not specifically considered here are in compliance with the
Zoning and Building Codes.
7. The proposed use will be consistent with the Comprehensive Plan, as amended.
The Comprehensive Plan, drafted in 1997, has the following to say about residential
parking demand in the downtown:
"Higher density housing in and around the downtown is an issue to be addressed in this
district. The logic of promoting higher density residential development in the Downtown
Planning District rests in the concept that people who live in and near downtown will
walk to work (or classes in the case of University students), will patronize downtown
businesses, will add to after-hours vitality, and create a sense of safety in the
downtown. Higher density development in the downtown also reduces pressure on the
less dense older neighborhoods surrounding the downtown. However, some downtown
merchants and business owners feel the residential population burdens the parking
system in the district to the detriment of the businesses. The issue will need to be
debated and resolved, setting a clear policy for housing, parking, and redevelopment in
the Downtown Planning District."
Prior to 2009, residential uses in the CB-10 zone were not required to provide parking.
In response to concerns regarding the growing competition for parking in the Central
Business District, the City Council approved the current minimum parking requirements
in the zoning code, including the present special exception criteria to allow off -site
parking in a municipal parking facility. At this time the Director of Transportation
Services has determined that there is adequate capacity within the Dubuque Street
parking facility to provide the requested 12 spaces.
The proposed mixed -use building will include twenty-four 1-bedroom apartments and
two 2-bedroom apartments. Staff believes the proposal for a mix of one and two -
bedroom units will add to the diversity of housing opportunities in Downtown Iowa City
for long-term renters or owners, which will in turn help support a diversity of businesses
in the Central Business District.
July 6, 2012
Page 7
STAFF RECOMMENDATION:
Staff recommends approval of this amendment to EXC12-00003 to allow 2 additional
required parking spaces in a municipal parking facility to satisfy the minimum parking
requirements for a mixed -use building to be constructed in the Central Business (CB-10)
zone at 114 S. Dubuque Street, subject to the following conditions:
The applicant must submit the required agreement for off -site parking prior to
securing a building permit. The agreement shall include the following conditions:
o The permits shall only be available to residents of 114 South Dubuque
Street at a cost not to exceed the market rate determined by the Director
of Transportation Services at the time of leasing.
o The property manager must provide the Director of Transportation the
name, license plate number, and address of all permit holders. Permits
will only be granted to residents with the primary address of 114 South
Dubuque Street.
• The final building plan is generally consistent with the plan submitted as part of this
application with regard to the design for the retail and office floors, and the residential unit
and bedroom mix and must comply with the Central Business Site Development Standards
as set forth in the Zoning Code.
ATTACHMENTS:
1. Aerial views of the proposed location.
2. Location map.
3. Applicant information regarding the amendment.
Approved by:
Robert Miklo, Senior Planner
Department of Planning and Community Development
July 3, 2012
Page 8
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PROJECT: Park9201 development / 114 S. Dubuque Street
RE: PARKING
BACKGROUND:
The Board of Adjustment has granted a special exception for 12 parking spaces in the Dubuque Street
Parking facility and a special exception for 2 parking spaces at grade. Applicant now requests that
the number of parking spaces in the Dubuque Street Parking facility be increased to 14 parking
spaces and is no longer planning to include any onsite parking.
REASON FOR MODIFICATION OF REQUESTED PARKING
As the architects and mechanical engineers have worked to accommodate all the needs of the
building it has been concluded that it is not feasible to include parking at grade without encroaching
even further on the retail space to the west of the original proposed onsite parking. The architects
and engineer have worked closely with the City on code requirements for essential elements such as
main floor fire command room, natural gas or diesel powered emergency generator, main floor
mechanical room, etc. If parking were moved even further to the West this would significantly
reduce the distance from the store front to the entry to the parking and would significantly reduce
the square footage of main floor retail space to 700 square feet or less. It is also not possible to
provide the amount of safe clearance and recess for the parking garage doors to safely back a vehicle
onto the alley.
The two (2) onsite parking spaces that were originally granted by special exception were intended
for the two (2) penthouse units. Due to the constraints of the very limited footprint, and the
competing needs for essential safety equipment within the building the architects and 1 have
concluded that it is not feasible to provide any onsite parking without severely compromising the
viability of the retail space and that moving the onsite parking to accommodate the needs of the
essential safety requirements would create a safety hazard for vehicles and pedestrians in the alley.
The Director of Planning and Community Development in consultation with the Director of
Transportation Services and the City Manager or designee have substantiated that with these
additional 2 parking spaces the capacity of the Dubuque Street parking facility will not be exceeded.
There is capacity in the subject facility for long-term parking and leases will be secured from the City.
Forthesereasons
a) applicant requests that 2 additional parking spaces be granted in the Dubuque Street
parking facility; and
b) no onsite parking be required.