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HomeMy WebLinkAbout05-14-2002 Board of AdjustmentMINUTES IOWA CITY BOARD OF ADJUSTMENT WEDNESDAY, APRIL 9, 2003 — 5:00 P.M. ��1�� �� CIVIC CENTER - COUNCIL CHAMBERS Subject to 4proval MEMBERS PRESENT: Mike Paul, Dennis Keitel, Vince Maurbi ar exan_deF;` nc idal MEMBERS ABSENT: None STAFF PRESENT: John Adam, Mitch Behr, Sarah Holecek, Doug Boothrooy OTHERS PRESENT: Jim Clark, Joe Holland, Ronald Wade, John Moreland, Marc Moen, Tim Schroeder CALL TO ORDER: Chairperson Mike Paul called the meeting to order at 5:02 P.M. ROLL CALL: Alexander, Keitel, Paul, Gidal, and Maurer present. CONSIDERATION OF THE MARCH 12 2003 BOARD MINUTES: Motion: Maurer moved to approve the March 12, 2003 minutes. Gidal seconded. Motion carried 5-0. APPEALS: AP03-00001. Public hearing regarding an application submitted by James Clark appealing a ZCIP ruling that the installation of a pass -through door between adjoining dwelling units in multi -family residential buildings would create a single dwelling unit. Adam reported that the applicant had inquired in 1996 about installing pass -through doors between side - by -side units in more than one of his multi -family properties, and was told that the presence of the doors would create a single unit. The applicant appealed to the Zoning Code Interpretation Panel, which affirmed that conclusion based on the definition of a dwelling unit as found in the Zoning Chapter. Adam said that there is nothing to prevent the applicant from installing the doors; however, once they are installed it may be problematic going backward and restoring the wall. He said that not every situation can be anticipated. He stated that the outcome of this appeal would affect the regulation of nearly every multi- family property in the City, not just those owned by the applicant. Adam reiterated that under the definition of a dwelling unit in the Zoning Chapter, the installation of pass - through doors would make the units into a single dwelling unit because they would be adjoining habitable rooms with cooking, eating, sleeping and living facilities. He said multiplying any of these facilities is immaterial from a definitional standpoint. There is no rule saying that a dwelling cannot have more than one kitchen, bathroom, living room or family room. He said that how the unit is leased is immaterial from an administrative perspective, because they can be leased bedroom -by -bedroom or as a single unit, but it remains by definition a single unit. Adam said that the problem occurs when the definition is treated as a fluid thing; flipping back and forth changes calculated density, calculation of required parking, and other zoning factors. He said that some uses exist as legally conforming uses; that is, they become nonconforming because s a zoning or ordinance change, but are allowed to continue as nonconforming uses until redevelopment occurs, or until the use changes or the use is discontinued for a year or more. The degree d nonconformity cannot be increased; you cannot go from nonconforming, to conforming, then back r nonconforming. You must comply with the current zoning requirements. Adam said that parking calculations are done on the basis of bedrooms; two 2-bedroom units would require four parking spaces, and one 4-bedroom unit would require three parking spaces. Therefore, you could have a situation where you have enough parking, but if you revert to two 2-bedroom units you might be short. He said it would depend on a case -by -case basis. He said that once the two units are made into one unit, they could not be made back into two units as though nothing had changed. Iowa City Board of Adjustment Minutes April 9, 2003 Page 2 Adam said that staff maintains that the definition of a dwelling unit can only be interpreted as it has been outlined, and it would take a substantive change to the definition in order to read it any other way. Therefore, he said that staff recommends that AP03-00001, an application to reverse the Zoning Code Interpretation Panel ruling dated 25 March 1996, and subsequent affirmation of said ruling dated 1 April 2003, be denied. In response to a question from Maurer, Doug Boothroy stated that the practical issue is enforcement. He said that when there is a wall, there are obviously two separate units, and occupancy and density are computed on a per -unit basis. He said the installation of a doorway would confuse that determination; the City would not know from one time to the next whether there are two units or one unit, and not being able to determine occupancy could lead to abuse in some of the older neighborhoods of the community. He said the City has been consistent in determining that if there is no wall separating "units", they are considered one unit. He said that this is carrying out the legislative intent of the ordinance, which approves buildings at a certain density. In response to a question from Paul, Boothroy said that, in a practical sense, the City would not know when the doors are open or closed. He said that they just spent a year with the Neighborhood Task Force dealing with the issue of occupancy, and right now they are dealing with controversial issues with regard to occupancy. He said it is a very real issue on the Northside and in other neighborhoods, and to allow the fluidity and greyness in what is a dwelling unit and what is not a dwelling unit is going to create a lot of confusion and possibly make it chaotic in the sense of enforcing occupancy standards. In response to a question from Maurer, Boothroy said that the applicant wants to install doors so that the two units can communicate. He confirmed that the two units each have separate doors. Maurer asked if the distance between the outside doors and the proposed inside door is at issue. Boothroy stated that the point is that the City cannot tell if there are two separate dwelling units anymore. He said this undermines some of the principles of the Zoning Code in terms of density. He said that once you install an opening between two units so that they can communicate as one, there is no way to regulate whether the door is closed and it is to be considered two units, or the door is open and they are one unit. He said there is no way to regulate and enforce that effectively, and it can create problems, maybe not so much with newer buildings, but in older homes where you have dwelling units in attic areas or walk -out basements and those kinds of situations. Maurer compared the current proposal to the Sheraton Hotel, which has a series of adjoining rooms. He questioned whether the apartment situation would operate the same way. Boothroy said that is regulated as a motel and is not comparable. He said that the City does not regulate density in a motel. Keitel suggested that the apartments, for zoning purposes, be defined as two units at all times, whether there is a door or not. Boothroy said that by definition, the opening that is created between two units makes them one unit. He said that once they have breached the wall, they have created the opening, which creates one unit. As an example, Boothroy stated that, in a single-family house you double the density by putting the door in. By opening or shutting that door, you double the density. Therefore, if someone complains, the City investigates and finds that they have a finished off basement and there are people living down there, the occupants may say this is a non -conforming separate dwelling unit, separated by a door. He said that the City does not buy that you can double the density, and neither do the neighbors. Keitel asked if they would have to have separate kitchen, bath, etc. to be defined as a separate unit. Boothroy said it does not make any difference. He said they issue permits where there are two fully equipped kitchens in a house, with a door separating the facilities, but it is not considered a duplex. It would have to have a separate wall. Boothroy said that the other thing to consider is that the interpretation was not made by three different points of view, not by one person. He said that the ZCIP consists of the Director of Planning, which is the department that typically writes the Code; the Director of Housing & Inspection Services, which is the body that enforces the Code; and the Legal Department, which acts as the City's legal advisor. This gives three areas of expertise looking at the definition and the common sense usage of it and coming to the conclusion that once you create that hole for the purpose of making one unit, you have created one Iowa City Board of Adjustment Minutes April 9, 2003 Page 3 dwelling unit. He said that all staff is saying is, follow the rules of the Zoning Ordinance and when you convert it back, comply fully. Paul asked if the essence of this appeal is the definition of a dwelling unit and the interpretation of that. Boothroy stated that is the issue; whether the Board feels the ZCIP made an error in the interpretation. Behr clarified that the question before the Board is whether the Zoning Code Interpretation Panel made an error in its interpretation. He said that the Board's determination as to how this particular definition is to be interpreted will apply throughout all zones and all settings. Boothroy said that if the Board feels the ZCIP's interpretation is reasonable, then the Board should support that interpretation. He said that if they don't like the interpretation for other reasons, the applicant should appeal to the Council to legislatively change it. He said the Board should not conjure up an interpretation because they don't like this one, but they should support the ZCIP or determine they made an error. Public Hearing Opened Joe Holland introduced himself as the attorney for the applicant. He said that he thinks there are some misconceptions created by Mr. Boothroy's statements, with some serious differences of opinion in interpretation of this ordinance. He said that, in his opinion, if anyone has conjured something up, it is the Zoning Code Interpretation Panel and not the applicant. Holland said that the Board of Adjustment has somewhat of a unique role in this situation because, under State law, when you are hearing appeals you are a quasi-judicial tribunal, which means they are acting somewhat like a court and interpreting this and deciding what the meaning of this zoning ordinance is. Holland said that the concept is to place a doorway with two doors between two apartments. He presented a floor plan to the Board of a representative unit in which something like this might happen. He pointed out two mirror image units with a common wall. He said they were talking about putting a doorway through this common wall, connecting two apartments. This would allow people to pass back and forth to visit. He said this will consist of two doors, with each apartment having a door that can be locked, opened and closed at their discretion. He said the doors cannot be opened from the other side; there are no knobs on the internal sides of the doors. Holland presented a diagram to the Board illustrating this concept. Holland said that the opening would be 36" wide, in a wall that is almost 24' in length. He said this would not be an archway, french doors, or any type of big connection between two apartments. He said the door would be a one -hour fire rated door on each side, on magnetic latches to automatically close if the fire alarm system in the building goes off. He said that from a building code standpoint these doors don't exist; they are a wall because they have a full one -hour fire rating. He said that he does not believe there is any issue over the legality of putting in these communicating doors. Holland said there will be no other change made in the apartments; each still has a full kitchen, all the pre-existing rooms, each has a fully separate plumbing system, separate electrical systems, all have separately metered utilities, and remain two fully independent, functional apartments. He said that an obvious question is, why would a tenant want to live in a place like this? He said that the reality is that tenants in a lot of apartment buildings want to live next door to their friends so they can regularly visit. He said they specifically request apartments next to each other but want to keep their privacy. He said the proposed doorway allows the tenants to visit one another without having to go out into the common hallway, which is probably a 20-30 foot walk. He said there are other side benefits, including a sense of additional security. Holland said there will be two leases, which is a benefit to the tenants. He said that it is harder to sublease a four -bedroom apartment than a two -bedroom unit. He said that right now, you can have five tenants in a two -bedroom apartment under the zoning ordinance if you have sufficient square footage. He said you can have five tenants in a four -bedroom apartment if you have sufficient square footage. Therefore, the density goes down from 10 people to 5 people maximum if the door creates a four - bedroom unit. He said it does not make any sense to say it permanently becomes a four -bedroom Iowa City Board of Adjustment Minutes April 9, 2003 Page 4 apartment and that becomes an issue for density. He said the applicant wants to maintain the pre-existing density, not increase it. Holland said another question would be, why would a landlord want to do this? He said that the rental market ebbs and flows and evolves as lifestyles change, as student populations change. He said it is all about trying to give tenants what they want. Holland said that if you follow the ZCIP interpretation literally, it says when those doors are unlocked it becomes one unit. Therefore, just putting the doors in does not create one unit. He said the problem in that interpretation is that, because of parking or other zoning requirements a unit may lose its grandfathered status and, instead of having two 2-bedroom units, you have an apartment that cannot be used in that fashion under the interpretation at appeal. Holland said that he feels that the interpretation is a flawed interpretation of the Zoning Ordinance. He said that the ZCIP assumed, without any explanation, that people in these apartment would essentially live together. He said, in fact, each unit is fully functional as an independent living unit and the mere ability to pass back and forth to visit does not determine that those people are living together. They could do the same thing by going down that common hallway; this doorway just makes it easier for the residents of two units to visit one another. Holland stated that the real issue for the Board is, was the interpretation correct. He said the 1996 ruling quoted three factors the panel looked at: 1) definition of dwelling unit in the zoning ordinance; 2) existence of common areas shared by both units; and 3) whether there are separate entrances. Holland said there would be separate entrances to all of these apartments. He said the panel stated in their 1996 opinion, that whether the units become one hinges on whether there are common areas shared by both units. He said they assumed there would be common areas; nowhere in the opinion is a definition or example of common area. He said that you do not assume in a decision — you look at the ordinance to see in fact if there is something there. He said he was unable to find a dictionary definition of common area, but there are some areas of the law which give definition to that. He quoted a passage from a criminal text, under the context of search and seizure law, a tenant doesn't have a reasonable expectation of privacy in a common area. He said that police essentially don't need a warrant to go in and search a common area. He said that cases that deal with common area say there is no reasonable expectation of privacy. He said that the two doors which can be locked from either side, means that no resident has a reasonable expectation they can enter the other unit or that that is a common area. He said they can be restricted by the turn of a deadbolt to their own apartment and cannot get into the other side. He stated that common area implies a right of use. He said the hallways are public areas, every tenant has a right to use those. He said there is no right to use either apartment in the situation at hand; you have a right that is controlled by the occupants of the other apartment. Holland said that the definition of a dwelling unit sounds deceptively simple. He said that Boothroy said you put in a door and create one unit, but did not give any explanation as to how that happens. He said that the 1996 panel ruling and the staff report talk about the definition being adjoining habitable rooms. He said the question is what adjoining means. He said it is not defined in the Zoning Ordinance. He said that when you are dealing with statutory interpretation, you don't go by what you think something means, you look for a definition. He said there is a provision in the Zoning Ordinance which says that if there is a term that is not defined, you go to Webster's Collegiate Dictionary. Holland presented the Webster's definition of adjoining: "Touching or bounding at a point or line." He said that in that sense, these units are already adjoining — they share the common wall. He said he has heard no explanation which says that opening a door makes these units any more or less adjoining, or that unlocking them makes them any more or less adjoining. Holland asked if opening the adjoining doors between two hotel rooms forever make that one room? He yo said you have to set aside some of the nuances of the Zoning Ordinance, but he does not believe u would think you could not close those doors, lock them from both sides and make them into two rooms. He said they would be rented again as two rooms, and these apartments are not any different. Holland asked the Board to keep in mind that this appeal is about what the ordinance says. It's not about what the City staff would like it to say. He said when courts interpret laws, they are bound by what the Iowa City Board of Adjustment Minutes April 9, 2003 Page 5 lawmakers said, whether it is the legislature, city council, or whoever it is, and not what they might have said. Holland said the staff report says the problem occurs when the definition of a dwelling unit is treated like a fluid thing. He said that what makes this fluid is the stance that the City staff and the ZCIP have taken. He said they say, if you put a door in we can't tell if it is two 2-bedrooms or one 4-bedroom. He said the easy answer is to say that door doesn't make any difference — it doesn't change anything. He said if you are looking for a logical and straightforward interpretation, the interpretation you need to follow is that it stays what it is, the door doesn't really make any difference. He said that if it were a 10' archway, it would make a difference because then you don't have the right to restrict it. Holland said he does not see this as something subject to widespread abuse. He said this two -door system would have a one -hour fire rating, a magnetic latch on it connected to a central system, and there is no real harm that needs to be prevented here. He said there would be no more occupants in these apartments than there are now. He said there may be visitors, but those visitors can come in the front door as well as they can come through a communicating door. He suggested that if you want to keep this enforceable, have the City staff know what's what — don't get into the issue of whether the door is installed, unlocked, opened. He said the easy answer is, this doesn't make any change in use, it just preserves the status quo. Holland asked that the Board look at the control, or common area, issue. He said that is what makes two dwelling units into one. He said that requires some right to use that common area — not just the ability to walk in if the door's unlocked. He said he feels the ZCIP did not look at this issue in enough depth — they didn't think through how to make it enforceable. He does not feel they thought through what the term adjoining means. He said that he thinks that when you look at the ordinance, the provisions of it, and the issue that is squarely in front of the Board, that their analysis is wrong and the Board should overturn the decision. Gidal stated that he does not feel adjoining is the key word. He said it's an odd definition, because as he reads it, a dwelling is defined as any habitable room or group of adjoining habitable rooms located within a dwelling and forming a single unit with facilities used or intended to be used for living, sleeping, cooking and eating meals. He said that what is odd to him about the definition is, it's defining a dwelling unit as a single unit. He said the word adjoining just seems to be about making the point that you wanted to have rooms in one part of the building and rooms in a different part of the building, but he does not see how the decision was based on a weird interpretation of adjoining. He questioned how Mr. Holland feels the Board is to interpret the phrase, "and forming a single unit". He said that seems the central part of the question, not the word adjoining. Holland said that was not really anything the ZCIP looked at when they analyzed. He said that in their opinion, they specifically quoted the adjoining part. He said that he thinks a single unit is a group of rooms which has all the facilities there which are legally required or practically necessary to live there, which means you have to have hot and cold running water, you have to have a water closet, you have to have a shower or tub, cooking facilities. He said that holds true if you are looking at an apartment or single-family residence. He said that you could also look at rooming houses. He said a dwelling is the entire structure which is intended for use for residential occupancy, not the apartment. He said a single unit is one which can be operated on its own without receiving services from an outside source. He said that he doesn't think it makes any difference here because you have two units that are completely functional and independent; each is a single unit. Therefore, he does not understand how putting an opening with a couple locking doors in it turns two single units into one unit. Gidal asked where in the finding the word adjoining becomes the central point. Holland stated that the ZCIP quoted the definition of adjoining habitable rooms, and on page 2 of the staff report, it states that under the definition of a dwelling unit in the zoning chapter, the installation of pass through doors between adjoining units makes them a single dwelling unit: they would constitute adjoining habitable rooms. He stated that by putting "adjoining habitable rooms" in quotes, staff is indicating that those three words indicate why the Board should support the ruling. Holland stated that the ruling seems to hinge on the creation of common areas, and he does not feel that by any stretch of the imagination you can say these doors create common areas. Holland said he prefers the term "communicating doors". Iowa City Board of Adjustment Minutes April 9, 2003 Page 6 Keitel stated that it is easier for enforcement people to police common doors in a hotel situation. He asked how the City should enforce whether both doors are in place and functioning, have not been removed by the tenants, etc. Holland said that is a problem with any Code issue. He said the tenants could knock out the walls themselves, and the City would only know it every two years. He said that it's like any Code violation — if the inspectors go in on routine inspections, they cite the landlord if the doors are not there. He said he does not see it as a material issue — it is like any Code enforcement issue. He. said the real problem lies in determining whether you have one or two units for occupancy purposes. He said that he feels the real nightmare is in the wording by the panel, that it becomes one unit when the doors are unlocked and you can't revert back to two units by locking the doors. Jim Clark, applicant, introduced himself. He said that all of their apartment units are from 1970 on. He said the two bedrooms are large, and if they were combined into one 1,800-2,000 sq.ft. apartment, they will lose control. He said that they plan to stay with a two -bedroom lease. There would be a door in between, but they are not changing the character of the apartments. Clark said that the hotel door supports their position. He said two couples get together, take rooms side by side, they may have cocktails or something then they go back to their own room, lock the door and have their privacy. He said the students like this — they need the comfort of having people, but when it comes time for bed, they like to shut the door, turn the lock and feel secure in their own apartment. Clark said this door also gives a second exit if there were a fire problem, especially if you are on the third floor. Clark said that he had just talked with Boothroy today on some issues. He said that if the City's interpretation is maintained, they would have two apartments in one apartment. He said that in the RNC- 20 area, they could possibly put in a large apartment with five efficiencies with doors in between, and this would create one apartment. He said this interpretation does not work well in some other areas. In response to a question from Gidal, Clark said that he wants the doors for a number of reasons. First, he said kids today want to socialize together, but not live together. He said this is a way of satisfying that need in the community, helping to rent apartments. He said it also gives the kids a better chance to sublet. Cost -wise, Clark said the lease would only be $600-$800 a month, whereas if it is classified as a four bedroom, the lease would be $1,20041,600. He said this proposal would have so many advantages, and will really help the students and parents out. Boothroy stated that the Board should not focus on Jim Clark's application; we need to look at the application for the City as a whole. He said the City has no control once the doors are installed; they don't know how the spaces will be used — in common or separate; they don't know what the occupancy will be. He stated that, in his experience, the highest occupancy will occur under certain circumstances with certain landlords, and there will be abuses. Boothroy stated that if the Board overrules the Zoning Code Interpretation Panel's decision in this case, they take away any kind of discreet or absolute way of determining the difference between what a dwelling unit is and what it isn't. He asked the Board to keep that as clear as possible for enforcement purposes. Boothroy said that there are no standards in looking at this interpretation. He said there is nothing in the Code that requires certain things, and the Board is not in the position to make those kinds of decisions. He said the Board is here to decide whether the ZCIP made an error — to uphold the decision or overrule it. He said this brings a lot of jeopardy because, while it sounds very idealistic with Mr. Clark, there are many out there that would not take the initiative and the City will still be enforcing and still have to deal with over -occupancy. Boothroy said he does not see any reason to cloud the issue, confuse it, or to make enforcement of occupancy in this community more difficult. He said the ZCIP interpretation is reasonable and it mirrors practice for the last 20 years. Gidal questioned whether Boothroy could imagine a legislative distinction or change being made to allow the kinds of circumstances Mr. Clark wants to follow and still give the City the enforcement power they are concerned about. Boothroy said he thinks it is possible to write legislation with specific standards built in. Iowa City Board of Adjustment Minutes April 9, 2003 Page 7 He said that was not what the ZCIP was looking at, and he suggests that if this is a good idea, that steps should maybe be taken to look at the process to amend the Code, coming up with appropriate standards. Public Hearing Closed Motion: Gidal moved for the reversal of the Zoning Code Interpretation Panel ruling, AP03-00001, on effect of pass -through doors between adjourning dwelling units in multi -family residential buildings. The motion was seconded by Alexander. Findings of Fact Maurer stated that, as he understands it, the question before the Board is whether the breaching of the wall and the installation of the doors constitutes a change in use as to the number of units. He said that, in his opinion, the installation of the doors does not per se constitute a change in use as to the number of units. He said he believes the location of the proposed doors versus the doors that are already there does not change the situation — it's a difference in distance between the current doors and the proposed doors only. Also, from a pure practical standpoint, he does not see how it makes any difference. He said the units will be rented and handled separately. He said even though it is different from a hotel situation, it operates pretty much the same way. He said it seems to him that adjoining habitable rooms means having contact. He said you already have contact — that wall runs the whole distance. He said it also says when you are touching or it's next to, and it already does that. Therefore, he doesn't see that it makes any difference. He said he does not see where it will open up a Pandora's Box as far as everyone rushing in to put in two locked doors between two different units, and if it does, he does not feel that is the Board's problem today because the issue before the "court" is this particular application. He said the Board needs to look at this application and determine if it conforms or not within the issue of that statute. Because of those reasons, he will vote in favor of the applicant. Gidal stated he will vote to deny the applicant. He said he agrees that the question of adjoining rooms is irrelevant. He feels the definition is problematic to begin with because it's a kind of circular definition, wherein a dwelling unit is defined as a single unit, and the question is what is a unit in this context. He said that, as he understands it, the Board's decision is, did the ZCIP make a reasonable interpretation of the definition that was given to the Board. He said their explanation in the third paragraph of their finding hinges on this question of do these units become one unit. He said they find that depends on a) are there common areas shared by both units, and b) are there separate entrances to each unit. Albeit the term "common" is a little odd, he feels it is quite clear that what they are after is, do these units in essence become one in terms of their actual use, and it seems quite clear that if they were not going to become one in terms of their use, there would be no point in installing the door. Therefore, he thinks the Code itself is not well written; it is very ambivalent. Nonetheless, he thinks the original finding was a reasonable interpretation of it and to make this distinction between the different concerns, between apartments and houses that are being split up, would require a change in the drawing up of the zoning. Keitel said that when he started researching this subject, he reviewed the Cedar Rapids and Marion Zoning Ordinances, and their definition of a dwelling unit is almost identical to Iowa City's with the addition of three more words: intended to be used by "one familial unit". He said his feeling is, for the Building Department to say that putting a door between these units creates one unit is a crock. Therefore, he will vote in favor of the appeal. He said that maybe the City needs to revise the definition of a dwelling unit, because finding that putting a door between two units and creating one unit is not a correct interpretation. Alexander stated that everyone has made terrific sense, though on different sides of the argument. She said that when she started, she was basing her judgment on the words in the definition. However, sitting here today the issue is not so easy. She said that, feeling constrained by the fact that the Board is just making a judgment as to whether this group made an appropriate interpretation, she does not feel she can find it was an inappropriate interpretation, so she is going to vote to deny. Paul said that, for the reasons Gidal cited, he will vote to deny as well The motion failed on a vote of 3-2, Gidal, Alexander and Paul in the negative. Iowa City Board of Adjustment Minutes April 9, 2003 Page 8 VARIANCES: EXC03-00003. Public hearing regarding an application submitted by S & M Properties for a variance to allow an additional sign along the frontage of a tract that has reached its allowable limit in the Community Commercial (CC-2) zone at 1570 S. First Avenue. Adam stated that the wording in the Agenda, "exceeded", should be changed to "reached" its allowable limit. Adam said that the applicant proposed to install a monument sign in front of his building at 1570 First Avenue, containing smaller signs for the businesses in the building. He said that the sign ordinance allows up to three signs along any single frontage if the frontage length exceeds 300 feet. He said the signs must be spaced at least 150 feet apart, and no more than four signs are allowed per lot. He said a tract is a group of lots linked by internal drives, and is considered to be a single lot for the purposes of the sign ordinance. He said that in this application, there is a tract consisting of all the businesses and the related parking lots from the DeliMart up to Eastdale Office Park, immediately east of the applicant's building. He said the frontage length of this tract is approximately 1,000 feet, and there are three free- standing signs along this frontage. Adam quoted from Section 14-6W of the Zoning Chapter. He said that the first test is whether or not the variance is not contrary to the public interest, meaning will it threaten neighborhood integrity or have a substantially adverse affect on the use or value of other properties in the area. He said that staff finds that the application does not meet this test. He said the addition of one more sign along this stretch of First Avenue will not radically alter the streetscape, but at some point one more becomes too many. He said that the City Council had determined in July 1999 that three is the limit. He said that if you have a corner lot, you can have four (three on one side and one around the corner, or two on one side and two around the corner). However, you are limited to three along any one side. Adam said a variance in this case would be tantamount to a Code change and would establish a pattern that would be difficult for the Board to ignore in future cases. Adam said that another component to this test is whether the proposed variance will be harmony with the general purpose and intent of the Zoning Chapter and not contravene the objectives of the Comprehensive Plan. He said the application does not meet this test. He said a sign could meet the 150 foot spacing requirement in that there are 311 feet between the Eastdale sign and the Eastdale Office Park sign, but the frontage already has its permitted number of signs. He said the additional sign would counter the intent of the Zoning Chapter, which is to avoid visual clutter. Adam said that the second test is, is there unnecessary hardship. The first part of that asks whether or not the property in question can yield a reasonable return if used only for a purpose allowed in the zone where the property is located. He said staff finds the application does not meet this test. The applicant has already leased some of the office space and is enjoying rental income from the dwelling units in the apartment above. He said the building design provides for the placement of facia signs visible from the roadway, and these are not currently being utilized. Therefore, he said the applicant is not disadvantaged by a restriction on signs. Adam said the owner's situation is neither unique nor peculiar to the property in question. He said the redevelopment of any of the properties in this tract would create the same situation. He said there is nothing so unique about this tract that a property owner in a similar tract would not have similar signage choices, including use of the facia signs. He said that staff feels that granting a variance in this case would convey a special privilege to the applicant. He said the hardship of the applicant's own making. He said the office agreement the applicant has with his office tenants promised space on a sign near the roadway. He said such agreements were made prematurely and are not valid reasons for granting a variance. Furthermore, he said the applicant has alternatives: facia signs, or moving the DeliMart sign around the corner onto Lower Muscatine Road. Adam said that, because the application does not meet all the tests, the Board cannot legally grant a variance in this case, so staff recommends that VAR02-00002, an application submitted by S & M Iowa City Board of Adjustment Minutes April 9, 2003 Page 9 Properties for a variance from the Zoning Ordinance to allow more than three free-standing signs along one frontage of a single tract in the Community Commercial (CC-2) Zone at 1570 First Avenue be denied. Gidal asked for clarification on what constitutes the actual property for the variance. Paul asked that the linkage of the property be clarified also. Adam stated that there are internal drives that circle around Eastdale Mall, continuing back behind apartments and parking, Eastdale Office Park, and end next to Wendy's. He clarified that the roads do not have to be in a straight line, so long as the commercial access is contiguous. Adam stated that one sign belongs to Eastdale Office Park; one sign belongs to Eastdale Mall; and the third belongs to DeliMart. However, the signs belong to the whole tract, which is considered a lot for the purposes of the sign ordinance, even though the properties within the tract are owned by different owners. Keitel said that on his review of the Ordinance, he fails to see how the City can integrate the DeliMart property with the rest of the frontage. Adam said that DeliMart has an exit south of its gas pumps directly into the parking lot of Eastdale Mall. He said that the Housing Inspection Services provided him with this determination. He said it does not exit directly onto Lower Muscatine Road, but goes into the aisles and drives of the Eastdale Mall parking lot. He said the tract is comprised by all the properties that are linked by internal drives. He reiterated that there are three signs allowed along a single frontage of a tract, no matter who owns it. Keitel stated there was a sign there previously when Papa Murphy's was there, and asked how the City explained that sign. Adam said it could have been an oversight. Keitel asked about grandfathering that sign in, and Adam said there was a complete change of use and reconstruction, so the property is subject to the current rules. Adam said he cannot speak to the issue of why there was a sign there previously in that he does not know what the circumstances were. Gidal asked Adam to clarify why the Wendy's sign is irrelevant for this application. Adam said that Wendy's has uncurbed parking spaces but no driveway opening onto the tract, so Housing Inspection said it is not counted as part of the tract; it has its own complete internal circulation pattern independent of all the other lots. In response to questions from Maurer, Adam said that the two signs there currently are free-standing. He said that a monument sign is basically shaped like a gravestone, and he said he believes they are permitted 50 square feet in signage area, 25 per side. He said the height limit could be 25 feet, depending on the zone. He said they have to be internally lit. In response to a question from Maurer, Adam said that no matter what type of building was built on the lot, there would be no free-standing or monument sign allowed due to the Zoning Ordinance. He said they would have options for facia signs. He said that the applicant could use up to 15% of the building facade in signage. Public Hearing Opened John Moreland introduced himself as the applicant. He said that he did not ask for a pole sign at the time he came before the Board regarding apartments above the commercial space because he had talked with people in the Building and Planning departments, who advised him that they were in the process of reviewing the sign and zoning ordinance, so he should wait. He said that when Eastdale was built, all the property was connected by a common frontage road because First Avenue is a very busy street. He said the City wants to restrict the amount of openings onto First Avenue. He said if all the properties were separate, they could put signs up every 150 feet without problem. He said that it flows better by connecting all the driveways, and keeps the City happier because there are very few entrances onto First Avenue. Moreland said that there are so many power poles, and he does not see how one more pole sign will upset the apple cart. Moreland said that the important thing is how far those signs are apart along the street, not whether they are connected by a driveway. He said he agrees with the City that you don't want a sign every 50 feet going down a street, but he thought the City was going to change the Code to say that you could put a sign every 150 feet regardless of whether they are connected by a driveway. Iowa City Board of Adjustment Minutes April 9, 2003 Page 10 Moreland said that he has been unable to rent about 18% of the space. He said that he felt he had a fairly good chance of getting a sign, so there are some people who may not renew if he does not get the pole sign. He said a pole sign is light years ahead of a building facia sign. He said part of the problem is, the building sits back a way so people can go by without even seeing a facia sign. However, a pole sign kind of reaches out and grabs. Moreland said he had been deferring this application for four or five months because he thought it would be solved. Moreland said that what it comes down to is if the lots were all separate with separate access, the owners could have as many signs as they wanted. He said the Code should be written so that signs are spaced for distance along First Avenue, not if they are connected by driveway. He said he does not believe a variance in this case would open it up to problems — you have to look at each application individually. In response to a question from Paul, Moreland said that he could not move the DeliMart sign around the corner because there is a canopy covering the gas pumps. In addition, he said there is no way of making one sign to advertise all these buildings — it would be so confusing no one would know where anything is. He said if it was a beautification issue, the power lines should be buried and off the street. In response to a question from Alexander, Adam said that large tracts similar to this exist along Highway 6 and Highway 1. In response to a question from Gidal regarding why a variance is tantamount to a Code change, Holecek said that the staff report argument is that if a variance is allowed here, the Board is effectively doing a bit of a Code change because they are allowing four signs within a tract. Keitel and Gidal stated that they feel that that is the definition of a variance. Public Hearing Closed Motion: Keitel moved that VAR02-00002, an application submitted by S&M Properties for a variance from the zoning ordinance to allow more than three free-standing signs along one frontage of a single tract in a Community Commercial (CC-2) zone at 1570 First Avenue be approved. Seconded by Maurer. Keitel stated that he disagrees with most of the staff findings, and agrees with Mr. Moreland that there is a hardship created, particularly with the limited number of curb cuts. In addition, he has a hard time integrating DeliMart with this tract because, to him, it does not seem like it is. Therefore, he will vote in favor of the variance. Maurer said that he will vote in favor of the variance for the same reasons. Gidal said he will vote in favor of the variance. He said he does not see how it is tantamount to a Code change; it doesn't seem to threaten neighborhood integrity since this is certainly not a pristine block. He said it does not seem to counter the intent of the Zoning Chapter to avoid visual clutter — they seem to be kind of subjective judgments. He said it does seem to constitute an unnecessary hardship, and he does not feel it conveys a special privilege any more than any variance. He said he does not believe the hardship is of the landowner or applicant's making. Alexander said she will vote to approve for the reasons set forth. She said she is particularly struck by the hardship issues because she does think there is much more of a hardship being placed on the property owner than is indicated in the staff report, and she feels that, in looking at what is before her, she cannot see that this is contrary to the public interest in this area. Paul said he would vote against. He said that he feels that granting this would counter the intent of the Zoning Chapter. The motion passed on a vote of 4-1, Paul in the negative. Iowa City Board of Adjustment Minutes April 9, 2003 Page 11 SPECIAL EXCEPTIONS: EXC03-00003. Public hearing regarding an application submitted by Ronald Wade for a special exception to allow a school of specialized private instruction in the Intensive Commercial (CI-1) zone at 1565 South Gilbert Street. Adam stated that the applicant is requesting a special exception to allow a dog obedience school to lease space in the north half of his commercial building at 1565 South Gilbert. He said that the school, Spot & Co., is operated by Sue Pearson. He said the other leasable space in the building contains a real estate office. Adam said a school of specialized private instruction is permitted without any specific requirements. He said that the owner is not anticipating a class size of over 12 or so dogs at a time. He said obedience training takes place indoors on weekends and weekday evenings. He said that the current landlord for the operation has informed staff that the operations are quiet, clean and conducted responsibly. He said there would be no changes to the parking lot as a result of the exception. He said that traffic impact would take place during off-peak hours. He said that the applicant's lot is currently deficient in right-of-way trees which were lost during the 1993 floods, and the applicant will need four trees for compliance. Adam said that staff feels the proposed use will work well in this location. He said that since this is in a controlled flight zone, FAA standards leave it to the local building official to determine if the use is safe and how many people can occupy the use. Using the former load factors as a guide, he said this space could contain 73 people. However, since there are no more than a couple dozen people at any one time in the class and since there are no plans to expand the class sizes, the lower cap would not burden the use and would also be more likely to avoid a negative scrutiny by the FAA in this case. Adam said that staff recommends that EXC03-00003, an application for a special exception to permit a school of specialized private instruction be approved subject to compliance with 14-6R, Tree Regulations, and provided the operations are solely for dog obedience classes and occupancy shall be limited to no more than 35 persons at any one time. In response to a question from Keitel, Holecek said that the City plans to articulate the use to be very specific because of the airport regulations. Therefore, the Board needs to make the exception very . particularized to avoid passing this exception to a new use. Public Hearinq Opened Ron Wade presented himself for questioning. He said this building has been vacant for a little over a year and he would like to get it rented. Public Hearing Closed Motion: Alexander moved that EXC03-00003, an application for a special exception to permit a school of specialized private instruction be approved subject to compliance with 14-6R, Tree Regulations, and provided the operations are solely for dog obedience classes and occupancy shall be limited to no more than 35 persons at any one time. Keitel seconded. Alexander said she would vote in favor of the exception. She said in no way does it violate any of the specific or general standards in any of the ways that have been reviewed. Keitel said he would vote in favor. Gidal stated he would vote in favor. He said that the specific exception will not be detrimental to or endanger the public health, safety, comfort or general welfare; it will not be injurious to the use and enjoyment of other property in the immediate vicinity and will not substantially diminish and impair property values in the neighborhood. It will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the zone in which this property is located. Adequate utilities, access road, drainage, and/or necessary facilities have been or are being provided; adequate measures have been or will be taken to provide ingress and egress designed so as to minimize Iowa City Board of Adjustment Minutes April 9, 2003 Page 12 traffic congestion on traffic streets. He said that in all other respects it conforms to the applicable regulations or standards of the Zone. Maurer said he will vote in favor. Paul said that he will vote in favor for the reasons previously stated. The motion was approved on a vote of 5-0 EXC03-00004. Public hearing regarding an application submitted by the City of Iowa City for a special exception to allow off-street parking in the Central Business District (CB-10) zone at Lot 64-1A. Adam said that the applicant was requesting a special exception to allow off-street parking at urban renewal lot 64-1A, at the southwest quadrant of Linn and College streets. He said development would contain commercial and office space on the first two floors, with 57 residential units and 54 hotel suites above. He said the property is currently used as a municipal surface parking lot. He said that as part of the joint effort between the City and Moen Development to develop this parcel, the City agreed to initiate the process to obtain a special exception. Adam said that except for hotels or motels, private off-street parking can only be provided in the CB-10 zone through the granting of a special exception. He said the applicant requests consideration of 70 underground parking spaces and 22 surface spaces. The surface spaces will be short-term only and used for customers of the grocery store should on the site plan. He said a pedestrian bridge will link to the City - owned parking ramp to the south and serve the hotel portion. He said vehicular access to both the surface and underground lots will be from Linn Street; access to the surface lot would be via a one-way entrance and exiting traffic would leave via the public access driveway between the development and the parking ramp to the south. He said that semis will still use this access driveway for deliveries, and vehicles from the parking lot will use it for exiting. Adam said the intent of the CB-10 zone says that off-street parking facilities will be publicly provided. The policy of restricting private parking is intended to provide a high -density commercial and residential development in the downtown area, to foster a pedestrian orientation along downtown streets, and reduce overall congestion in the Central Business District. He said that individual parking lots take up valuable downtown property that might otherwise be developed for more active uses. He said the City has made effort to provide adequate parking in the downtown, representing a considerable public investment. He said the Board should also consider whether the proposed private parking will be in direct competition with public parking. Adam said there are two different facilities to consider here — the underground parking lot that will be used by residents of Plaza Towers, and the 22-space surface lot will be used for the grocery store. Both are the subjects of the request, but each has unique features. He said the underground parking will help satisfy most of the long-term parking demand that is expected with this use — roughly 1-1/2 spaces per unit. As a consequence, he said this should prevent some of the parking congestion that might otherwise occur in the vicinity. Also, since this is underground the lot can be developed at nearly full density in this case. He said downtown business owners expressed concerns in the 1997 Comprehensive Plan that encouraging more housing in the CBD would place a strain as residents compete for available space that they would like to have for their customers, so this exception proposes a solution to answer those concerns. Neither will there be excess parking that the owner may use to compete directly with public parking facilities. He said that access from the facility will be from the street, but Linn Street is not a busy thoroughfare. He said traffic tends to be slow because of the presence of angled parking opposite the development. He said this is not set amid a row of restaurant and retail uses; there is not a lot to stop and look at now so it will not be encroaching much on pedestrians because there are few hanging out around this side of the block. Adam said that even when it is developed, the only thing facing the street directly will be the hotel entrance to the north, and most likely people going to and from the hotel will be pulling up in front, parking at the Dubuque St. parking ramp, or walking from it and entering from the Ped Mall. Iowa City Board of Adjustment Minutes April 9, 2003 Page 13 Adam said the Plaza Towers developer contends the only way a grocery store can survive in the downtown is if it has easily accessible parking dedicated to its use. He said this is due in part to the unique nature of grocery shopping — typically this occurs at the end of longer shopping trips, or it is the sole object of the shopping trip. He said whereas public parking ramps and metered on -street parking are fine for most types of shopping, grocery shopping is either going to be quick and light or a little more cumbersome, where you are wheeling a cart out to your car or driving up. Staff believes that until the downtown has a critical mass of residents who on their own can support a grocery store, a small amount of parking now could mean the difference between the grocery store going in or not going in and subsequently surviving in this location. Adam said that, in staffs opinion, the amount of parking is not excessive for the use. He said that, for comparison purposes, in the CB-5 zone, a maximum of one space per 500 sq. ft. is allowed. For this grocery store, this would come out to 26 spaces; they want to put in 22. Adam said that the developer is not proposing an amount of parking that will exceed demand generated by the use provided so there should be no excess available for other retail uses in the area and it will not be competing with public parking facilities. He said the developer plans to use methods of controlling the parking use to make sure the lot serves the intended users and not used as free parking. Adam stated that there are three specific standards for off-street parking in the CB-10 zone. He said the site plan indicates that a hedge and planter boxes are planned in the required location, buffering the parking lot from the street. He said that all entering vehicles would be visible from the sidewalk; vehicles exiting the underground ramp would be visible from the north by a person standing on the edge of the entrance, but from the south the required hedge may inhibit visibility of exiting vehicles. Generally, he said the City recommends that there is a vision triangle measured 10 feet along both lines of the triangle and nothing higher than 2 feet can be placed in that area. He said staff also feels it would be beneficial to have pedestrian access from Linn Street. Adam presented a view of the Dubuque Street parking lot, showing that there would be no vision by exiting vehicles of anyone who is coming alongside the building if they are close to the wall, and the person walking that close doesn't have much field of vision until the car is practically in front of them. He said that staff recommends a bump -out, or "chicane," be placed at the edge of the parking ramp that would force people to walk out closer into the vision triangle. In addition, Adam said that the concept plan does not indicate signs, but the appropriate location would be a "slow" sign from the upper slope of the underground parking. He said no sign would be required for cars exiting the south public access drive. Looking at the General Standards, Adam said that the proposed parking will add some congestion along the street, but providing long-term parking for residents will prevent the tenants for competing with on - street parking which is intended for customer parking for surrounding retail uses. He said that providing the off-street parking for the grocery store, which staff feels is a unique use, may increase the specific marketability of the retail space, making it viable for the developer to put in the grocery store. He said that the City Council concluded it would be in the best interest of the public to have a grocery store downtown; therefore, staff feels that allowing limited surface parking for a grocery store is consistent with stated policy in this case. Adam said the proposed use would be consistent with the Comprehensive Plan. He said that a grocery is one of the things the downtown needs to become a livable place, which is one of the objectives spelled out in the Plan. He said this project will add more residents to the downtown, which will increase the market base for grocery and other retail uses. He said the requested parking lot occupies a small area of the parcel and is designed into the site in such a way that the street wall has little interruption, and the plan shows a landscaping buffer along Linn Street, making for a well defined street frontage. Adam said that staff recommends that the Board condition approval on the retail space being used as a grocery store, otherwise this portion of the lot cannot be used for parking. He said the owner also has the option of developing the area as something other than parking. He amended his statement to say that staff feels that if the parking is available, they might still be able to draw someone; the City could lease the lot for public use until such time as a grocery store was put in. Holecek said that this means the surface lot will be useable only for a grocery store use. Iowa City Board of Adjustment Minutes April 9, 2003 Page 14 In response to a question from Keitel, Adam said that the City's intent is if a grocery store does not make it and is closed, the lot could revert to being leased by the City and would not be free parking. The owner could also use the lot to put up a building. Adam said that staff recommends that EXC03-00004, an application for a special exception to permit off- street parking in the Central Business (CB-10) zone in Block 64, Lot 1A, be approved subject to the following provisions: 1. Three- to five-foot high screening shall be provided along the public right-of-way in front of the surface parking lot; 2. At the southeast and northeast corners of the surface lot, the screening shall be no higher than two (2') feet within triangular areas measured 10 feet out from the intersection point of drives and the right-of-way; 3. The surface parking lot can be used by the retail space adjacent to it only if that retail space is a grocery store; and 4. The developer shall provide for a pedestrian chicane at the northeast corner of the Dubuque Street Ramp to improve sight lines between pedestrians and cars leaving via the public access drive. In response to a question from Gidal, Adam said that there are currently a lot of public spaces on this lot. He said there are probably around 100 straight -in spaces, using the entire lot. Therefore, the proposed use should not be a huge addition in terms of what the street has experienced so far, or there could be less traffic movement than there is now. Gidal said he feels the idea of a grocery store is a gamble, and he wonders what will happen to the storefront if it does not work. Holecek said that if the area of the surface lot were redeveloped, the architect would take into consideration the remaking of that storefront that would be subsumed into the next building. However, the applicant would always have the option of coming before the Board if another retail use that was just as desirable to apply for the parking use. In addition, the parking could be leased to the City for publicly controlled parking. Holecek said that, in staffs analysis, the grocery store was a vital component as identified by the Council. Therefore, being consistent with the analysis generates that condition. Gidal stated he just wanted to say that he was skeptical, but he is in favor of a grocery and would like it if it works. Public Hearing Opened Marc Moen identified himself as the applicant. He asked for clarification of something in the staff report that said you can have off-street parking without an exception if it is used for hotel use. Adam said that if you have a hotel you have to find parking somewhere it — for example, he assumes Moen has some of the parking in the Dubuque Street parking ramp set aside for the hotel use. Moen said his only concern is he does not want to be precluded from coming back before the Board trying to attract another retailer. Alexander asked what the methods are for restricting the lot. Moen explained that the Brewery Square lot is controlled mechanically with a gate, and tokens are required to get out. He said this lot will have to be monitored more strictly. He said he plans to investigate options, including using a code provided by the clerk of the store. He said that he visited a grocery in downtown Chicago to see how they did it. He said they allow one or two hour parking, with a human monitor, and if you exceed that you receive a large fine. He does feel it will have to be staffed by a human. However, he said the grocery is a huge part of the project in terms of attracting the residents they are looking for, so they will do what is necessary on the parking issue. In response to a question from Maurer, Moen said the store would be open until late evening. In response to a question from Keitel, Moen said he has a potential tenant but does not have anyone signed. He said he feels it would have to be gated off into the evening. He said the hotel entrance is adjacent to this parking lot, and the hotel will be open all night so there will be valets around. He said the underground parking is controlled with electronic doors. In response to a question from Keitel, Tim Schroeder said that the total area of the grocery store would be 14,000 feet. Iowa City Board of Adjustment Minutes April 9, 2003 Page 15 Public Hearing Closed Motion: Gidal moved that EXC03-00004, an application for a special exception to permit off-street parking in the Central Business (CB-10) zone in Block 64, Lot 1A, be approved subject to the following provisions: 1. Three- to five-foot high screening shall be provided along the public right-of-way in front of the surface parking lot; 2. At the southeast and northeast corners of the surface lot, the screening shall be no higher than two (2') feet within triangular areas measured 10 feet out from the intersection point of drives and the right-of-way; 3. The surface parking lot can be used by the retail space adjacent to it only if that retail space is a grocery store; and 4. The developer shall provide for a pedestrian chicane at the northeast corner of the Dubuque Street Ramp to improve sight lines between pedestrians and cars leaving via the public access drive. The motion was seconded by Maurer. Paul said he would vote in favor. He feels it has clearly met the specific standards in terms of screening access and signage. He said that he feels the general standards have been met, in that it will not be injurious to the use and enjoyment of other property in the immediate vicinity, nor will it impede the orderly development of surrounding property; it is consistent with the Comprehensive Plan of the City; and overall he feels it is a great idea. Gidal said he will vote to approve for the same reasons. Maurer said he will vote to approve for the same reasons. Alexander said she will vote to approve for the same reasons. Keitel said will vote vote in favor. He feels it is exemplary that the applicant is going to provide underground parking. The motion passed by a vote of 5-0. OTHER None. BOARD OF ADJUSTMENT INFORMATION Adam asked the Board to review the pamphlet from the Iowa Sate University Extension to Communities, who are having a workshop about the role of planning commissions. He said the City will pay for the workshop, and asked that anyone interested let him know by Friday so he can get the application in. He said he will be attending the workshop. Keitel stated he would be attending. ADJOURNMENT Gidal moved to adjourn, seconded by Alexander. The meeting adjourned at 7:31 PM. Board Chairperson Minutes Submitted By Neana Saylor data on citynUpcd/minutes/boa04-09-03.doc board Secretary STAFF REPORT To: Board of Adjustment Item: EXC03-00005, 1641 S. First Avenue GENERAL INFORMATION: Applicant: Contact person: Requested Action: Purpose: Location: Size: Existing Land Use and Zoning: Surrounding Land Use and Zoning: Applicable code sections: File Date: BACKGROUND INFORMATION: Prepared by: John Adam Date: 14 May 2003 Chris Carr, Big Mike's Super Subs 5585 Guilford Rd. Madison, Wisconsin 53711 Thomas McInerney, Neumann Monson PC I I I E. College St. Iowa City, Iowa 52240 338-7878 Approval of a special exception per Section 14-6E- 5D-1, auto- and truck -oriented uses. To permit a drive-through/carry-out restaurant in a CC-2 zone. North side of South First Avenue, east of Lower Muscatine Road. 2.63 acres. Parking lot, CC-2 North: Commercial, CC-2 South: Commercial, CC-2 East: Commercial, CC-2 West: Commercial, CC-2 14-6E-5D, auto- and truck -oriented uses in the CC-2 zone; 14-6W-2B, special exception review standards 17 April 2003 This site once served as the parking lot for Pla-Mor Lanes bowling alley. The property owner is currently developing a four -unit commercial building on the lot. Prospective tenants include a restaurant on the east end, a financial service and a hair salon in the two middle units, and a dry cleaner on the west end. This development received a special exception in November (EXCO2- 00019) to permit a drive -through window for the dry cleaning business. The restaurant at the 2 east end is the subject of the current application. The restaurant will conduct most of its business through carry -outs and deliveries and is devoting less than 50 percent of the floor area to seating; because of this it is defined as a drive-through/carry-out restaurant in the Zoning Chapter and is therefore an auto -oriented use. Auto- and truck -oriented uses are permitted only by special exception in Community Commercial (CC-2) zones because of possible impacts associated with increased vehicular traffic, including circulation and congestion effects, aesthetics and noise. ANALYSIS: The purpose of the Zoning Ordinance is to promote the public health, safety and general welfare, to conserve and protect the value of property throughout the City, and to encourage the most appropriate use of land. It is the intent of the Ordinance to permit the full use and enjoyment of property in a manner that does not intrude upon adjacent property. The Board may grant the requested special exception for the establishment of an auto- and truck -oriented use if the requested action is found to be in accordance with the regulations of the CC-2 zone and the general standards for special exceptions as set forth in Section 14-6W-2B. General Standards: 14-6W-2B, Special Exception Review Requirements. The applicant's statements regarding each of the general standards are attached. Staff comments are offered as needed and correspond to the standards as enumerated in the Zoning Ordinance. b. The specific proposed exception will not be injurious to the use and enjoyment of other property in the immediate vicinity and will not substantially diminish or impair property values in the neighborhood. The proposed use is not dissimilar from the surrounding commercial uses. The other auto -oriented uses in the same block are a fast-food restaurant, a lube shop, a car wash and a dry cleaning business with a drive -through window. c. Establishment of the specific proposed exception will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the zone in which such property is located. The proposed development is similar to other uses in the area and should therefore not impede further development or redevelopment in the area. e. Adequate measures have been or will be taken to provide ingress or egress designed so as to minimize traffic congestion on public streets. In the prior auto -oriented use exception for this development, the Board approved recommended internal circulation changes to improve flow within the site and enhance accessibility from First Avenue. In brief, the property owner to the west will restripe his parking lot to allow two-way traffic and the shared access will have left- and right -turn exit lanes to help relieve internal congestion. Staff does not feel that the proposed restaurant use will have an impact that warrants any further conditions. f. Except for the specific regulations and standards applicable to the exception being considered, the specific proposed exception, in all other respects, conforms to the applicable regulations or standards of the zone in which it is to be located. The proposed development conforms to requirements of the Community Commercial zone, including parking, landscaping and dimensional requirements as approved during site plan review. STAFF RECOMMENDATION: Staff recommends that EXC03-00005, an application for a special exception to establish an auto - and truck -oriented use in a Community Commercial zone at 1621 South First Avenue be approved. ATTACHMENTS: I. Location map 2. Proposed Site Plan Approved by: Robert Miklo, Senior Planner, Department of Planning and Community Development I CITY OF IOWA CITY NO I SITE LOCATION: 1621 S. First Ave. EXC03-00005 TYPICAL SMALL TREE 70 / D C O DRY CLEANER NEXISTING BUILDING- DRIVE UP i-- �-RE4R-BJILbIN6 ACCESS I'1O5 5 FIRST AVE FOR rim-S PIRST AVE N 21'01'61' W - 226.03 -- ("�O " Ov ° °` A,Y w n 1 PEDE1J•1921AN—_— ® I PATH FROM -a BUILDING TO 9 DEY�IALK .01 o I Qi BUILDINS vU m r=i I N g ® I ,4' i - TYPICAL LARGE TREE 6 4r ��.Sr I - t O'RESTAURANT, I N CARRYAMLlVERY tR�LOPED LAND m 1 F7-1 ( N 21'01_61" W - 224.9969) 0 D A— 7 i * g ;o )1- Z i 111 1 ell", SITE PLAN -SPECIAL EXCEPTION f -A I NO SCALE 0 APPEAL TO THE BOARD OF ADJUSTMENT -SPECIAL EXCEPTION TITLE 14, CHAPTER 6, ARTICLE W DATE: 4 - -7 - 0 3 PROPERTY PARCEL NO. 101 9 4 8 (0 00 2- APPEAL PROPERTY ADDRESS: I I'o Z 1 5 QurH irikSr AVEMOE- APPEAL PROPERTY ZONE: C C - 2 APPEAL PROPERTY LOT SIZE: 33, 07-7 5 F 51c'> m►<vs 60PE7R. Seas APPLICANT: Name: C 0,1 S CAR k 5585 GUILFOR.® RD Address: MAOISo/Q W IS3711 C Phone: ('o O$- 2 7 5-- 3 G 0 2- CONTACT PERSON: Name: ­'HomA S M` INEP03eY NEVMANN MONS66i C- y Address: Ill F CoLLE&F- IOUJA CITY Phone: 3 3 S - 78 78 PROPERTY OWNER: Name: GEr RY AMUZOSF- 25o /27h AQE SUITF- 150 Address: CoRAc.v���Ei IA 52241 - Phone: 3 3 7- 8 8 $S Specific Requested Special Exception; Applicable Section(s) of the Zoning Chapter: IOW A C i-I• Y Co D E. N - GE- - 5. D. l Purpose for special exception: RESTAvRAf0T CARRY-®uT/DELaV6K Date of previous application or appeal filed, if any: -2- INFORMAIION TO BE PROVIDED BY APPLICANT: A. Legal description of property: 56S AMACIA MSAT- S, *Plot plan drawn to scale showing: 1. Lot with dimensions; 2. North point and scale; 3. Existing and proposed structures with distances from property lines; 4. Abutting streets and alleys; the location and, record owner of each5. Surrounding land uses, inciuding property opposite or abutting the property in question; 6. Parking spaces and trees - existing and proposed. [*Submission of an 82" x 11" bold print plot plan is preferred.] C. Review. The Board shall review all applicable evidence regarding the site, existing and proposed structures, neighboring uses, parking areas, driveway locations, highway and street access, traffic generation and circulation, drainage, sanitary sewer and water systems, the operation of the specific proposed exception and such other evidence as deemed appropriate. (Section 14-6W-2Bl, City Code). In the space provided below or on an attached sheet, address the areas of Board review which apply to the requested special exception. In this narrative statement, set forth the grounds offered as support for the special exception. 5 E AMAC ! M SA31 t D. The applicant is required to present specific information, not just opinions, that"+e general standards for the granting of a special exception (Section 14-6W-21B2, City Code), enumerated below, will be met: 1. The specific proposed exception will not be detrimental to or endanger the public health, safety, comfort, or general welfare. 5 E E A'TtACOMEA17'-' -3- 2. The specific proposed exception will not be lnjurious to the use and enjoyment of other property in the immedlate vicinity and will. not substantially diminish and impair property values in the neighborhood. sES A-TrAc MSP3T 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. SKE A7rAcvt msxlr' 4. Adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided. Or ' > - 5. Adequate -measures have been or will be taken to provide ingress or egress designed so as to minimize traffic congestion on public streets. IGEF- f lrACHMEXYT� FUM 6. Except for the specific regulations and standards appilcabie to the exception being considered, the specific proposed exception, in ad other respects, conforms.to the applicable regulations or standards of the zone in which it is to be located. [Depending on the type of exception requested, certain specific conditions may need to be met. The applicant will demonstrate compliance with the specific conditions required for a particular use, as provided in City Code Section 14-6L-1, Special Exception Enumerated Requirements; Section 146N-1, Off -Street Parking Requirements, Sect'en 14-6a, Dimensional Requirements, or Section 14-6R, Tree Regulations, as appropriate.] SEE A'Tt A" PAE 1T- 7. The proposed use will be consistent with the short-range Comprehensive Plan of the City. . t}ITAc.R ME E. List the names and mailing addresses of the record owners of all property located within 300 feet of the exterior limits of the property involved in this appeal: NAME SEE hz ACII MEN M NOTE: Conditions. In penWtdM a special exception, the Board may impose appropriate conditions and safeguards, including but not Irnited to planting screens, fencing, construction commencement and completion deadlines, lighting, operational-, controls, improved traffic circulation requirements, highway access restrictions, increased minimum yard requirements, parking requirements, Ernittations on the duration of a use or ownership or any other requirement which the Board deems .appropriate under the circumstances upon a finding that the conditions are necessary to futfid the purpose and intent of the Zoning Chapter. (Section 14-6W-283, City Code). Orders. Uniess otherwise determined by the Board, all orders of the Board shall expire sax (6) months from the date the written decision is filed with the City Clerk, unless the- applicant shad have taken action within the six (6) month period to establish the use or construct the building permitted under the terms of the Hoard's decision, such as by obtaining a building permit and proceeding to completion in accordance with the terms of the permit. Upon written request, and for good cause shown, the Board may extend the expiration date of any order without further public hearing on the merits of the original appeal or application. (Section 14-6W-3E, City Code). Petition for writ of certiorari. Any person or persons, jointly or severally, aggrieved by any decision of the Board under the provisions of the Zoning Chapter, or any taxpayer or any officer, department or board of the City may present to a court of record a petition for writ of certiorari duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. (Section 14-6W-7, City Code). Such petition shall be presented to the court within thirty (30) days after the filing of the decision in the office of the City Cam. A Z-) Date: Date:���� 3 . 19 ppdadminiaipboase.doc Signatures) of piicant(s) Signature(s) of Property Owner(s) if Different .than Applicant(s) j 6.i --- C. As per Iowa City Code 14-6E-5.D.1, auto -oriented uses require special exception in a CC-2 zoned area. D. Specific Information 1. The purpose of the carry-out/delivery type restaurant is to provide convenient access for motorized customers who wish to pick-up sandwiches from a stand-up counter. On -site parking will be provided in numbers well over the minimum requirements. 24 parking spaces are required; however, 53 spaces will be provided. 2. The exception for a carry-out/delivery type restaurant will be consistent with the type of surrounding businesses within the CC-2 zone. 3. The proposed restaurant will be located at 1621 South 1st Ave which is on the easterly end of the Westcore Building. The Core building is 60'-2" to the northeast. Two-way traffic is provided around the entire Westcore building. 4. Adequate drainage, road access, and utilities were approved in previous submittals for the Westcore Building at 1601 South 1st Avenue. The Westcore Buildintq contains four addresses: 1621, 1641, 1661, and 1681 South 1 s Avenue. 5. Two entrances off of First Avenue will be provided to the parking area. This will allow an alternate route to parking if one entrance has traffic congestion. 6. The following nearby businesses within the CC-2 zone conform to the same proposed use: i. A drive -up window has been already approved on the opposite side of this building for a dry cleaner at 1681 South 1 st Ave. ii. A carry-out/delivery type restaurant with a kitchen larger than the dinning area has been allowed previously at Taste of China on 1705 South 1st Ave. 7. With the high volume of vehicular traffic on First Avenue, the additional parking would provide necessary parking required during excessive business peaks during noon workdays and evenings. This would be consistent with the city's Comprehension Plan, under the Economic Well -Being section on page 29. - r o LEGAL DESCRIPTION Tract of land in the Resubdivision of Lot 3, Ohl's Subdivision, according to the plat of said resubdivision recorded in Book 14, Page 45; Plat Records of Johnson County, Iowa, and more particularly described as follows: Lots 6, 7, 5 (except the southwesterly 43 feet thereof) and Lot 8, except the following described two portions thereof, all in the replat of a portion of Lot 3, Ohl's Subdivision, according to the plat thereof recorded in Book 14, Page 45, Plat Records of Johnson County, Iowa. Excepting from Lot 8: Beginning at the southwesterly comer of Lot 7 in the Resubdivision of Lot 4, Ohl's Subdivision; thence N 68'053'20" E, 102.50 feet along the northwesterly line of said Lot 3 to the westerly Right of Way line of the First Ave. Realignment; thence southwesterly along said R.O.W. line, being a curve concave westerly with a radius of 724.00 feet, for a distance of 95.45 feet; thence N 4737'40" W, 72.15 feet to the Point of Beginning. And further excepting: Commencing at the Southeast Corner of the Southeast Quarter of Section 14, Township 79 North, Range 6 West of the 5th Principal Meridian; Thence N 00000'00" W, 677.88 feet, as Recorded in Plat Book 8, Page 38 of the Records of the Johnson County Recorder's Office; Thence S 68"55'30" W, 204.46 feet to the Southeast Corner of Lot 6, of a Resubdivision of Lot 4, Ohl's Subdivision, Iowa City, Iowa, which is the Point of Beginning; Thence S 47"36'26" E, 72.31 feet, to a point on the Northwesterly Right -of -Way Line of First Avenue; thence Southwesterly, 98.60 feet, along said Northwesterly Right - of -Way Line, on a 724.00 foot radius curve, concave Northwesterly, whose 98.53 foot chord bears S 33053'33" W, Thence N 67042'44" W, 176.58 feet to a point on the Southerly line of Lot 6, of said Resubdivision of Lot 4 of Ohl's Subdivision; Thence N 68055'30" E, 176.76 feet, to the Point of Beginning., Said tract contains 114,560 s.f. or 2.63 Acres. City of Iowa City MEMORANDUM To: Board of Adjustment From: John Adam Date: 14 May 2003 Re: Work Session: Board Orientation/Training Supplementary materials In addition to the orientation/training outline provided by Sarah Holecek, the following pages contain articles on legal issues surrounding special exceptions and variances; the legislative and administrative scope of the planning process, including the powers and duties of public officials, and the intertwined roles of the Comprehensive Plan and the Zoning Ordinance. Also included are documents from one of the Board's past cases. Usually Board members don't have the chance to see cases through to the completed decisions until they are elected to chair, so these documents are included to give every member an idea of what happens following the meetings. The documents are in chronological order, beginning with the application, then the staff report and an additional memo, the minutes from the meeting where the Board considered the application, and the recorded decision. The decision details the Board's findings of fact and conclusions of law, and is the document the applicant relies on for subsequent action, whether it is to establish a use, develop property, or appeal the Board's decision. Board of Adjustment Orientation/Training Enabling legislation (Authority to Act) and Jurisdiction A. Created Pursuant to Chapter 414, Code of Iowa (Iowa's zoning enabling legislation) B. City Code Article 14-6W further "fleshes out' the skeleton C. Board rules of procedure set forth rules for members, hearings, and voting Quasi -Judicial Body Rather than Legislative Body A. The City Council, as the legislative body, establishes particular standards though legislation. The Board of Adjustment acts in a quasi-judicial capacity in applying those standards to a specific set of facts. This requires the Board to hear the factual evidence and make case specific findings of fact to draw its legal conclusions. Essentially, the Board's determination in each case is akin to a court's 'ruling', and may establish precedent. Therefore, it is important to distinguish and articulate how the facts of each case lead the Board to its conclusion. B. The purpose of removing case -specific applications of the legislative standards from the legislative body (e.g. City Council) is to maintain the separation of powers and remove the matter from the political process. C. Quasi -Judicial ethical requirements: Ex parte contacts with interested parties are strictly prohibited, as Board members must remain impartial and uninfluenced by relationships and private interests. Board members should neither initiate nor consider ex parte communications concerning a pending or impending proceeding. However, if such contacts occur or relationships exist, they must be reported on the record and a determination made as to whether a conflict exists and/or recusal is necessary to avoid the appearance of impropriety. III. Powers of the Board. A. Appeals. Both state code and city ordinance grant the Board jurisdiction to hear appeals by any person aggrieved or by any municipal officer or department affected by a decision of the zoning officer. The appeal must allege there is error in an order, requirement, decision or determination made by the administrative official in the enforcement of the zoning ordinance. In short, an interested party may appeal any zoning decision to the Board for its review of the zoning official's determination, including, for instance, the official's determination that the zoning ordinance is being violated. B. Special Exceptions. Allow uses that are permissive in a particular zone provided the use meets certain conditions set out in the zoning regulations. The zoning ordinance sets forth particular uses which must proceed through the Board's additional level of scrutiny in an effort to address potential negative externalities associated with the use. This allows the Board to review all applicable evidence regarding the site, proposed structures, neighboring uses, parking Board of Adjustment Orientation/Training Page 2 areas, driveway locations, highway access, traffic generation, traffic circulation, drainage, infrastructure and other appropriate considerations. To permit a special exception, the Board must find that the applicant meets the specific standards set forth in the zoning chapter for the specific proposed special exception/use as well as the general standards (see below). The special exception process also allows the Board to require appropriate conditions, restrictions or safeguards to address potential concerns fulfill being imposed on such use. A special exception is also known as a conditional use. 2. Standards of review. (Iowa City Code 14-6W-2(B)(2)) In addition to any specific standards for the particular proposed use, to grant a special exception, the Board must find that the applicant has met the following general standards or that the standard(s) do not apply: a. The specific proposed exception will not be detrimental to or endanger the public health, safety, comfort or general welfare. b. The 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. C. The 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. d. Adequate utilities, access roads, drainage, and/or necessary facilities have been or are being provided. e. Adequate measures have been or will be taken to provide ingress or egress design so as to minimize traffic congestion on public streets. f. The exception, in all other respects, conforms to the applicable regulations or standards of the zone in which it is to be located. e. The proposed use will be consistent with the Comprehensive Plan of the City. 3. Conditions. In permitting a special exception, the Board may impose appropriate conditions and safeguards which the Board deems appropriate under the circumstances upon a finding that the conditions are necessary to fulfill the purpose and intent of the zoning chapter. The Board must therefore articulate why a certain condition is being imposed (i.e. what potential harm will be ameliorated through the condition). C. Variances. Permit a property owner to avoid the literal requirements of the zoning ordinance when it will not be contrary to the public interest and because of a unique hardship due to special circumstances regarding the property which is not of the owner's own making. It is a waiver of the strict letter of the zoning law when it will not be contrary to the public interest, will not sacrifice the spirit and purpose of the zoning law, and will effect substantial justice. Board of Adjustment Orientation/Training Page 3 2. Standards of review. The Board shall grant no variance to the strict application of any provision of the zoning chapter unless the applicant demonstrates that all of the following elements are met: a. Not contrary to the public interest. 1.) The proposed variance will not threaten neighborhood integrity, nor have a substantially adverse affect on the use or value of other properties in the area adjacent to the property included in the variance; and 2.) The proposed variance will be in harmony with the general purpose and intent of the zoning chapter and will not contravene the objectives of the Comprehensive Plan. b. Unnecessary hardship. 1.) The property in question cannot yield a reasonable return if used only for a purpose allowed in the zone where the property is located; and 2.) The owner's situation is unique or peculiar to the property in question, and the situation is not shared with other landowners in the area nor due to general conditions in the neighborhood; and 3.) The hardship is not of the landowners or applicant's own making or that of a predecessor in title. C. Conditions. In permitting a variance, the Board may - impose appropriate conditions and safeguards which the Board deems appropriate under the circumstances, upon a finding that the conditions are necessary to fulfill the purpose and intent of the zoning chapter. The Board must therefore articulate why a certain condition is being imposed (i.e. what potential harm will be ameliorated through the condition). D. Interpretation of Zoning Provisions (See also appeals above) The Board has the duty and jurisdiction to interpret the zoning chapter in any case where it is alleged there is an error in any decision, determination or interpretation made by the Zoning Code Interpretation Panel. Interpretations rendered by the Board in this instance shall be binding upon the zoning administrator in the enforcement of the zoning chapter. IV. Procedural Due Process Requirements. Board hearings are informal. This informality helps make the proceedings non - adversarial, allowing the gathering of evidence without procedural technicalities. The informal proceeding provides a form accessible to the general community. This informality does not, however, relieve the Board from ensuring fairness by affording all applicants due process protections. A. Notice. Notice must be adequate to apprise persons interested of the intended actions. It must also be within the time period required by law and within sufficient time to allow interested individuals time to prepare. Board of Adjustment Orientation/Training Page 4 B. Opportunity to be Heard. All interested individuals must have a meaningful opportunity to be heard and to present evidence in support of their position. The Board must hold a public hearing before taking public action. Hearings must be open to the public and not held in closed sessions. C. Opportunity to Question Opponents. Because the Board is a quasi-judicial body, parties must be allowed to question opponents and opposing witnesses if they choose to do so. D. Full Disclosure of all Evidence (Ex-parte Communications). The Board must disclose all evidence and statements considered. Board members should not have private communications with the applicant or witnesses. E. Findings of Fact. The Board must articulate its findings of facts and the reasons for the decision. These findings must be sufficient to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the Board acted. Findings must include ultimate facts that support the decision and evidentiary facts that lead to the legal conclusion. For example, it is not sufficient merely to state that the applicant demonstrates unnecessary hardship. Findings must include the characteristics of the property that result in the hardship. Findings that simply recite the criteria of the ordinance will not suffice. The findings must form the basis for the Board's final decision. The decision stands or falls on the basis of the articulated reasons. The Board cannot supply additional reasons to the court later if the applicant challenges the decision. The staff reports are not the Board's findings of fact. The Board considers the staff report as evidence along with the comments and exhibits presented at the public hearing. It must then base its findings of facts on all the evidence. F. Conflicts of Interest. Board members cannot have direct or indirect financial interest in the decision. Appearance of fairness and/or the appearance of impropriety should also be considered. G. Prompt Decisions. H. Records of Proceedings. The Board must maintain complete and accurate records including the preservation of all exhibits. Those reviewing a Board's decision must be able to reconstruct the matters considered by the Board itself. 1. Rules. It is helpful for the Chairperson to briefly recite the ground rules that the Board will follow so that those appearing at a hearing before the Board will understand the procedures in advance. V. Brief Review of Procedure Rules. VI. Brief Review of Parliamentary Procedure. Sarah/boa/training ouline.doc PLANNING LAW PRIMER Basics of Variances loing regulations reflect the ment of the local governing body — typically based on recom- mendations from the planning commis- sion — on what land use regulations are needed to implement the policies set out in the local comprehensive plan. At their core, zoning regulations are designed to promote the statutory goals of protecting and promoting the "health, safety, and welfare" of the community. Given this, why do zoning codes include a mecha- nism for the issuance of variances, authorizing the use of a piece of property in a manner that would otherwise be prohibited by the zoning regulations? The answer is that variances are essential for legal reasons and for reasons of fairness. Most zoning regulations, by both necessity and practice, employ gen- eral language and are uniform in applica- tion to an often -diverse collection of properties. A zoning regulation, when strictly applied to a particular property, may have the effect of denying a property owner all reasonable use of his or her property. Without the mechanism of variances, property owners would have no method of seeking relief other than going to the courts. Variances are divided into two gener- al types: area variances (sometimes called dimensional variances) and use vari- ances. The most common variance is the area variance. Area variances authorize a deviation from the zoning regulations that govern physical location and improvement of a property, for example, setback, building height, lot width, or lot area. In contrast, a use variance authorizes a use of property that would otherwise be prohibited within the property's zone dis- trict. The effect of granting a use variance is often similar to a change in the proper- ty's zone district classification. by Robert Widner, Esq. Many states prohibit use variances, or authorize localities to prohibit them in their zoning codes. This is in recognition of the fact that: (1) allowing changes of use through variances can dramatically undermine the stability of neighbor- hoods, and (2) changes of use are much better considered by the legislative body through the zoning amendment process, not property -by -property through indi- vidual variance requests. Planning com- missioners should carefully review their state law and local ordinances to deter- mine if the granting of use variances is lawful in their jurisdiction. THE VARIANCE PROCESS In most communities, consideration of a variance request requires a public hearing, with notice given to neighbor- ing property owners. Variance applica- tions are usually reviewed by a "zoning board of adjustment" or "board of adjust- ment and appeals," typically appointed by the local governing body. In some communities (if allowed under state law) the authority to hear and decide vari- ances is conferred upon planning com- missions or reserved to the governing body itself. Regardless of the composition of the reviewing board, the board acts in a quasi-judicial manner when considering variance applications. In most circum- stances, the reviewing board's final deci- sion regarding a variance request is subject to judicial appeal in the state courts. Standards for Approval of Variances The procedures and standards applic- able to the granting of a variance vary widely among local governments. It is difficult, if not impossible, to summarize the diverse legislation and extensive body of judicial decisions governing vari- ances. Moreover, these judicial decisions are largely based upon specific factual circumstances underlying the particular variance decision. Nevertheless, some common threads can be found in most state and local variance criteria owing to the fact that variance provisions trace their origins to the same source: the model Standard Zoning Act published by the U.S. Depart- ment of Commerce in 1924. The Stan- dard Zoning Act included the following brief criteria for the issuance of a vari- ance: "To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special con- ditions, a literal enforcement of the provi- sions of the ordinance will result in unnecessary hardship, and so that the spir- it of the ordinance shall be observed and substantial justice done." The requirement that a "special (or unique) condition" exist and an "unnec- essary hardship" be demonstrated by the owner remain widely imposed require- ments in many statutes and local regula- tions governing variances. However, a variety of other standards for approval of variances have evolved. For example, some state statutes or local ordinances require the property owner demonstrate that there exist "practical difficulties" caused by the strict applica- tion of the zoning regulation that pre- cludes the owner's reasonable use of the continued on page 6 PLANNING COMMISSIONERS JOURNAL / NUMBER 50 / SPRING 2003 Basics of Variances continued from page 5 property. The practical difficulty stan- dard has evolved, in many jurisdictions, to be a lesser or more accommodating standard for variances than the unneces- sary hardship standard. Additionally, many local governments will reject a request for a variance where the need for the variance was the result of the owner's actions, often -times phrased a "self-creat- ed hardship. "'IQ Self -Created Hardship. Even given the diversity of standards applicable to variances in communities across the country, some fairly uniform principles can be culled from the wealth of judicial decisions involving variances: • Variances are most appropriate to address unique or special physical char- acteristics of the property that prevent reasonable use under the requirements of the applicable zoning regulations. These circumstances may include unique Of+� The self-created hardship standard provides that an owner cannot use his own ignorance or actions (or that of the prior owner) as a justification for the granting of a variance. Variance requests based upon self-cre- ated hardships are quite common. Property owners who make unwise or poorly planned development decisions may later find that a variance is necessary either to properly complete the projector to accom- modate some desired change in construc- tion. In some circumstances, owners either. unknowingly or intentionally construct buildings or engage in uses that violate the zoning regulations, only to later argue that the variance is necessary to prevent the expense and waste associated with the destruction of the building or cessation of the use. Denying variance applications that are based on self-created hardships is a sound practice. To grant such a variance would excuse or reward an owner's lack of reason- able diligence. Not surprisingly, owners in communities that routinely grant such variances quickly team to ask,for" forgive- ness after the fact. topography such as steep slopes, water bodies, wetlands, or other natural fea- tures that are atypical within the commu- nity or within other properties in the same zone district. • Variances are not appropriate mere- ly because the variance would permit a more profitable use of the property. • Variances are also not appropriate to accommodate the particular limita- tions, characteristics, habits, or hobbies of the owner or occupants of the proper- ty. Because variances run with the prop- erty and are not usually limited to ownership, the fact that a zoning regula- tion would effectively prevent an owner from engaging in a particular hobby would not justify the granting of a vari- ance to the regulation.' The Effect of a Variance It is important to keep in mind that the granting of a variance does not change the zone district or zoning classi- fication of the affected property. Instead, a variance is a limited change or modifi- cation of a specific standard or restriction associated with a particular property. A variance should be memorialized in writ- ten form, identifying the property affect- ed and employing clear and specific language to denote the zoning standard being modified and the extent of the per- mitted modification. Many administra- tive problems arise as the result of poorly documented variances or variances that fail to provide sufficient detail to deter- mine the permissible extent of the grant- ed modification. Zoning regulations in some commu- nities authorize the reviewing board to impose conditions upon the issuance of a variance. These conditions may enable the reviewing board to mitigate or elimi- nate potential adverse impacts upon adjacent property or the neighborhood caused by the variance. In addition, con- ditions may be authorized that would I There are, however, some limited exceptions to this general rule resulting from laws such as the federal Fair Housing Amendments Act and Americans with Disabilities Act where the variance might present an opportunity for a reasonable accommodation to a handicapped owner. Where such circumstances are present, the reviewing board should always seek legal advice. limit the duration or term of the variance where a limitation is justified based on the evidence presented to the reviewing body. One common condition to the granting of a variance is that the pro- posed development be commenced or completed within a specified time. PLANNING COMMISSION ROLE IN VARIANCES Planning commissions should recog- nize that variances are an integral part of zoning, providing a "safety valve" that allows property owners, in certain limit- ed situations (and in compliance with the strict criteria for issuance of a vari- ance), to develop their property in a manner that would not otherwise be allowed under the zoning code. On the other hand, variances should clearly be the exception, not the rule. To ensure this, planning commissions should keep abreast of the types of vari- ance requests submitted within the juris- diction, the basic circumstances underlying the request, and the final decisions on the request made by the reviewing body. The frequent granting of variances may indicate a failure on the part of the zoning board to adhere to the ordinance's criteria for approval of variance requests. However, numerous requests for vari- ances concerning the same standard or restriction of a zoning regulation may highlight a need for review of that stan- dard and its suitability within the affect- ed zone district. In contrast, relatively infrequent requests for variances and issuance of variances should signal that the process is working well. Robert Widner, Esq., is a partner with the Denver, Colorado, law firm of Gor- such Kirgis L.L.P. Widner currently serves as the City t, Attorney for Cherry Hills Village, Town Attorney for the Town of Lyons, and the Park County Attorney. His practice includes serving as special land use coun- sel fora variety of local governments and represen- tation of municipal and county planning commissions. Widner also holds a master's degree in urban and regional planning. PLANNING COMMISSIONERS JOURNAL / NUMBER 50 / SPRING 2003 Variance Review Guidelines 1. Variance is not the appropriate remedy for a general condition. 2. Self-inflicted hardships are not grounds for a variance. 3. Personal hardships are not grounds for a variance. The hardship must relate to physical character of the property. 4. Economic conditions are not sole grounds for a variance. 5. Hardships must be severe. 6. If granted, variance must not adversely affect the neighborhood. 7. All applicants must be treated equally. IOWA LAND USE PLANNING NOTEBOOK — PD03d THE PLANNING COMMISSION AT WORK Zoning Boards & Planning Commissions is article will provide an rview of the purpose and functions of boards of zoning appeals ("BZA").' All too often, planning commissioners are unfamiliar with the important role BZAs play and its rela- tionship to the planning process. THE ADVENT OF ZONING AND THE BZA Zoning can trace its roots to the 1920's and the work of then Secretary of the U.S. Department of Commerce, Her- bert Hoover. In 1922, the Commerce Department published a model "Stan- dard Zoning Enabling Act," for consider- ation by the states. The model Act outlined the rationale and methodology localities could use to designate zoning districts in which compatible uses would be allowed and incompatible uses excluded. The drafters of the model Zoning Enabling Act also realized that some "relief' mechanism would be necessary to ensure that zoning ordinances, when applied, were fair to property owners and not unconstitutional. Accordingly, the model Act set out a mechanism for grant- ing administrative relief from articulated zoning standards. This was to be through the creation of a board of adjustment (i.e., the BZA), empowered to grant vari- ances in cases when the strict applica- tions of ordinance requirements would unfairly limit or preclude a person's abili- ty to utilize their property. Following the Supreme Court ruling in the 1926 Euclid v Ambler Realty case, I While in many states, decisions on zoning variances are made by what is called the "board of zoning appeals," comparable bodies in other states may be referred to as "zoning boards of adjustment," or other like names. In most states, BZA members are appoint- ed by the local governing body, though in some states (like my home state of Virginia) members are appointed by the judiciary (reflecting, in part, the quasi-judicial functions BZAs engage in). by Michael Chandler upholding the constitutionality of local zoning, zoning ordinances were rapidly adopted across the nation — based on state zoning enabling laws typically fol- lowing the framework of the Department of Commerce's model Act. ZONING BOARD FUNCTIONS Local zoning ordinances typically set out criteria by which the zoning board is authorized to grant variances from one or more of the dimensional standards (e.g., setback requirements, minimum lot size) contained in the ordinance. The variance is limited to a specific piece of property, and does not act to amend the ordinance's dimensional standards. In other words, the ordinance standards will still apply to all other property in the zoning district — unless another property owner can make the case that he is enti- tled to a variance for his property. Editor's Note: A review of typical criteria for grant- ing a variance is included in attorney Robert Widner's companion article on page 5 of this issue. As just noted, the most significant function of most zoning boards is to act on requests for variances from the dimensional or area standards contained in the zoning ordinance. In some states, however, zoning boards are also autho- rized to grant "use variances," allowing an otherwise prohibited use, based, in part, on a showing of hardship — similar to the criteria for dimensional variances. In many states, zoning boards act on requests for "conditional uses" (also sometimes called "special uses" or "spe- cial exceptions"). These are uses which may be allowed in one or more zoning district provided they meet criteria listed in the ordinance. Conditional uses are commonly employed to allow uses which might, in certain circumstances, generate substantial amounts of noise or traffic, or otherwise be incompatible with the neighborhood. Unlike use variances, conditional uses are specifically listed in the zoning ordinance. Different zoning districts often have different lists of conditional uses. Criteria for the granting of condi- tional uses also do not involve an exami- nation of the financial "hardship" to the property owner if the use is not allowed, as is the case with use variances. Instead, as noted, the review criteria focus on ensuring that a proposed use will not have an adverse impact on neighboring uses. Given the variations, I encourage your commission to ask for a briefing on these procedures from your staff or from your municipal attorney. Editor's Note: For more on this topic, see "Special Permits: What They Are & How They Are Used," in PCJ #3 (available at: www.plannersweb. com/specialpermits.html). Zoning boards are also often respon- sible for hearing and deciding appeals from a decision made by the zoning administrator. Most commonly, these involve questions of how to interpret def- initions contained in the zoning ordi- nance. As an example, many zoning boards today review requests for home occupation permits, determining whether the applicant for a home occu- pation meets the zoning ordinance's defi- nition (and criteria) for what constitutes continued on page 8 PLANNING COMMISSIONERS JOURNAL / NUMBER 50 / SPRING 2003 Zoning Boards and Planning Commissions continued from page 7 an allowable home occupation. Many zoning boards also hear appeals where there is any uncertainty as to the location of a zoning district boundary. In exercising this authority, the zoning board, however, does not have the power to change substantially the location of district boundaries as established by ordinance. Again, bear in mind that the legal authority by which a zoning board can discharge any or all of the functions out- lined above are spelled out in your state's zoning enabling statute. THE BZA AND PLANNING So what does any of this have to do with planning and the job of the plan- ning commission? As PCJ readers know the entire planning process, beginning with the preparation of the local compre- hensive plan and ending with the adop- tion of a zoning ordinance designed to implement the plan, is the special province of the planning commission and the local governing body. The zoning board is not directly involved in this process. Nevertheless, the BZAs actions can have a significant bearing on the degree to which adopted land use poli- cies are implemented. Unfortunately, some BZAs will vote to grant virtually any variance request before them, ignoring the ordinance's strict criteria for the granting of vari- ances. In doing so, these BZAs (know- ingly or unknowingly) chip away at the integrity of their community's zoning ordinance by allowing one or more indi- viduals to function outside the purview of the adopted community zoning stan- dard. As one commentator has noted, "granting indiscriminate variances ... can eat the heart out of good zoning quicker than any other action."Z Conscientious zoning boards, in doing their job, can aid the planning commission by spotting problem areas within the community's zoning ordi- nance. For example, frequent requests 2 Herbert H. Smith, The Citizen's Guide to Planning, 3rd Ed. (APA Planners Press, 1993), p. 118. 2. Joint Work Sessions. just as the planning commission should meet with the local governing body periodically, a similar meeting might be warranted with the BZA. Such a meeting would allow the Planning commission and BZA to discuss issues of common concern as well as learn more about their respective duties and responsibilities. 3. A Planning Cominissioner on the BZA. In Virginia, it is permissible for one member of the planning commission to also sit on the BZA. This double duty has yielded many positive benefits including greater awareness on the part of both bodies regarding their particular powers and responsibilities. Check your state code to determine if such an arrange- ment is possible in your locality. The benefit could be substantial. 4. Attend BZA meetings. If your state code precludes the possibility of a com- missioner serving on the BZA, then con- sideration should be given to the idea of having one member of the planning commission attend BZA meetings as an observer. This strategy will allow the for variances from a particular provision (or provisions) of the zoning ordinance may well indicate a need to re-examine this portion of the ordinance. The zoning board and planning commission should be sharing this kind of information. Let me briefly mention several strate- gies which you might consider to strengthen the linkage between the plan- ning commission and zoning board: J. Sharing of Annual Reports. Some states or communities mandate that planning commissions and BZAs alike prepare annual reports. If reports are pre- pared they should be exchanged so each will be aware of what the other is doing. The BZA should view the annual report as a vehicle through which it can report on the type (and frequency) of variance requests and approvals. As already noted, commissioner to report and comment on numerous variance requests could mean the actions taken by the BZA at a subse- the zoning ordinance might need to be quent meeting of the planning commis - changed or modified. By sharing their sion. To ease the burden of one report with the planning commission, commissioner having to go to extra the BZA is sending an important message meetings, the BZA assignment could be the commission will hopefully respond rotated among all commissioners. to. 5. Training Upon Appointment. The idea that new planning commission appointees should receive training upon appointment has taken hold in many localities, as well as many states, over the past decade. The benefits to be gained from such an investment are multiple and far reaching. A similar commitment and training effort should be made for new BZA appointees. The training does not have to be extensive or elaborate. Even an evening work session would allow time for new, as well as veteran, BZA members to gain knowledge regard- ing their powers and duties, as well as some perspective concerning their role in the planning process. Milze Chandler is Emeritus Professor at Vir- ginia Tech. He is Education Director (or the Virginia Citizens Planning Associa- tion which conducts train- ing programs for Virginia Planning Commissioners and BZA members. Chand- ler serves on the APA National Board of Directors and presents commissioner training programs across the country in response to requests. PLANNING COMMISSIONERS JOURNAL / NUMBER 50 / SPRING 2 0 0 3 n m Zoning Administration Powers, duties, and responsibilities of elected and appointed public officials This publication sets out the responsibilities of the legislative body (City Council or County Board of Supervisors), the Zoning Commission, and the Zoning Board of Adjustment in zoning administration. Each of these bodies has differ- ent responsibilities which are discussed sepa- rately in the following paragraphs. The Legislative Body (City Council or County Board of Supervisors) The legislative body is that body elected by the people to operate the local government, be it a city or a county. This body has four basic pow- ers with respect to the administration and enforcement of zoning. These powers are as follows: 1. The power to adopt the comprehensive plan The Iowa code states that, "the (zoning) regula- tions shall be made in accordance with a com- prehensive plan..." All cities and counties that are involved in land use regulations need to have a complete, up-to-date plan to guide area development activities. 2. The power to adopt zoning Only the legislative body has the power to adopt zoning. Neither the Zoning Commission IOWA STATE UNIVERSITY University Extension nor the Board of Adjustment can adopt zoning. This power is solely in the hands of the elected representatives of government. Zoning is a local law or ordinance the same as traffic laws, building codes, and the like. Before any such law can be adopted by the local government, a public hearing must be held as required by state law. Notice of such a hearing must be advertised in accordance with state law. The notice shall include the time and place of the hearing. 3. The power to amend and make changes Even after the comprehensive plan and the zoning ordinance have been officially adopted, they can still be changed. Changes can be made in the written documents, or in the boundaries shown on the district zoning map. Changes can only be made by the legislative body (City Council or Board of Supervisors). All changes or amendments must follow the same procedures that were required when the documents were originally adopted. A public hearing must be held and notices must be published. The proposed amendment or change must be included as a part of the notice (but the zoning map need not be published in the notice for zoning amendments). PM 1037 Revised January 2000 4. The power to appoint members to the zoning commission and board of adjustment The legislative body appoints the members to both the Zoning Commission and the Zoning Board of Adjustment which are required in the Enabling Act. Summary The power to adopt the comprehensive plan and the zoning ordinance, the power to amend or change these documents, and the power to appoint the members who serve on the Zoning Commission and the Zoning Board of Adjustment are all assigned to the legislative body. This follows our governmental philosophy of placing authority in the hands of elected officials. The Zoning Commission The zoning commission (Plan and Zoning Commission, in some cases) is appointed by the legislative body and has three basic advisory responsibilities. The legislative body must solicit recommendations from the Zoning Commission, but is not required to follow such recommendations. The three basic responsibili- ties of the Zoning Commission are: 1. To prepare the comprehensive plan and the zoning ordinance. While the legislative body has the power to adopt the comprehensive plan and to adopt the zoning ordinance, it cannot prepare the original documents for adoption. That responsibility is given to the Zoning Commission. Once the comprehensive plan is prepared and put in final form, the Zoning Commission forwards it to the legislative body with its recommendation that the plan be adopted. Similarly, the Zoning Commission prepares the zoning ordinance and district map and forwards them to the city council or county board of supervisors for their review and action. The Zoning Commission can seek assistance in preparing the comprehensive plan, zoning ordinance, and district maps. They can hire planning staff or consultants, or seek assistance from a university planning department or regional planning council. Planning profession- als and students can assist, but the Zoning Commission still has the responsibility of preparing these documents. As stated previously, the legislative body is not bound by the recommendations of the Zoning Commission. The legislative body may adopt the comprehensive plan and the zoning ordi- nance as submitted, make changes before adoption, or refuse to adopt these documents. 2. Togive recommendations on proposed changes in zoning or in the comprehensive plan. Once these documents have been adopted, they may be changed from time to time. Any pro- posed change must be submitted to the Zoning Commission for consideration. The commission should study the proposed change and submit a recommendation to the legislative body, ap- proving or disapproving the proposed change. As in the original adoption of the comprehen- sive plan and the zoning ordinance, the legisla- tive body is not bound by the commission's recommendation. 3. To review and update planning and zoning documents. The Zoning Commission should conduct a review of the comprehensive plan and the zoning ordinance from time to time to assure that they still reflect the needs and desires of the commu- nity. If such review reveals a need for changes, a recommendation should be forwarded to the legislative body proposing such changes. Summary The Zoning Commission has only the power of recommendation. All decisions of the Zoning Commission require approval of the legislative body before they have any effect. The Zoning Board of Adjustment The Zoning Board of Adjustment has three basic responsibilities. The board has no power to change zoning, but does have the power to adjust the law as it applies to a specific piece of property. The board has sole and exclusive power to act, and the board's decision does not require approval of the legislative body. Re- course to a decision of the board is through the district court. Remand Provision Recent legislative changes have given boards of supervisors and city councils the power to provide for their own review of variances granted by the board of adjustment. The elected officials may either accept the decision of the board, or remand the decision back to the board for further study. If the variance is returned to the board through this remand process, "the effective date of the variance is delayed for thirty days from the date of the remand" (Code of Iowa 414.7, 368A.10). Powers of the Board of Adjustment 1. Power of interpretation If a disagreement should arise between the zoning administrator and a citizen or group of citizens, the board must determine who is right. The board, in effect, must interpret the meaning of the law as it applies to each case where differences occur. This responsibility could be described as settling arguments with respect to the application of zoning. 2. The power to grant exceptions The board has the power to "except" specific uses from the terms of zoning. An exception is just as its definition implies. In effect, the board says "everything in the community except this specific use" is zoned. In granting an exception, the board may establish conditions under which the exception will be permitted. For example, the exception may be permitted provided it is screened from view by landscape treatment of screen fences and the like. Specific setback requirements may be established or specific architectural treatment might be specified. The board may require whatever it deems appropriate to reduce the effects of the exception on surrounding property. Not everything can be "excepted" from zoning, however. In fact, the law requires that the board may legally grant only those exceptions that are specifically listed as possible exceptions in the zoning ordinance. If the proposed use is not listed in the ordinance as a permitted exception, the board has no power to grant it. Also, simply because the exception is listed in the ordinance, the board is not required to grant it. The board may deny any proposed exception if it deems it inappropriate. 3. The power to grant a variance A "variance" is simply varying the law in a specific instance in order to alleviate a hardship caused by the strict application of zoning. To vary the law means to vary, or change, required regulations such as the front yard requirements, rear yard requirements, or the permitted height of a building. In other words, the board may vary any part of zoning requirements except the use. For example, the board cannot permit a commer- cial use on a tract of land zoned for residential use. It could, however, permit a house to be located closer to the street than zoning permits. Before the board can grant a variance, it must find that a hardship would exist if the variance were not granted. In addition, the board must find that the hardship does not apply to other property in the area and that the hardship was not self-created. If other property in the general vicinity suffers the same problem, the board does not have the power to grant a variance. The solution to this situation is for the Zoning Commission to prepare a zoning classification so that all such properties can meet zoning requirements without hardship. Further, if an owner creates his own hardship, the board has no power to act. For example, if a person builds his or her house too close to the side yard and later de- cides to add a room to the house on the side which is too close, he or she has created his or her own problem and it is not a hardship. IOWA STATE UNWERSITY University Extension Helping Iowans become their best. The board is only required to permit a reason- able use of the property. It is not required to simply exempt the property from the terms of zoning. A hardship might be defined as a situation which "approaches confiscation" of the land. In other words, the literal application of the law would render the property useless and, therefore, of no value. The purpose of a variance is to alleviate this situation while permitting a reasonable use of the property. Summary The board's power to interpret, grant excep- tions, and grant variances does not require approval by the legislative body. If the appli- cant or any other citizen disagrees with a deci- sion of the board, an appeal may be filed with the District Court. The court will decide whether or not the board acted within its as- signed powers. Revised by Stuart H. Huntington, extension planning and development specialist File: Communities 2 3 ... and justice for all The U.S. Department of Agriculture (USDA) prohibits discrimina- tion in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Many materials can be made available in alternative formats for ADA clients. To file a com- plaint of discrimination, write USDA, Office of Civil Rights, Room 326-W, Whitten Building, 14th and Independence Avenue, SW, Washington, DC 20250-9410 or call 202-720-5964. Issued in furtherance of Cooperative Extension work, Acts of May 8 and June 30, 1914, in cooperation with the U.S. Department of Agriculture. Stanley R. Johnson, director, Cooperative Extension Service, Iowa State University of Science and Technology, Ames, Iowa. The Comprehensive Plan Extension to Communities College of Design What is a Comprehensive Plan? A comprehensive plan, also known as a master or general plan, is a collection of information and materials designed to guide the future development of a city or county. Such a plan can provide a community with a firm foundation for policy and action that will allow it to function more efficiently and effectively. It can strengthen communities' policies and legislation, and it also can promote a more certain future. Although a comprehensive plan can do all of this and more, many places have outdated plans that serve little function. Some cities have more current plans but fail to rely on them in making development decisions. This publication will describe what a comprehensive plan is, what it contains, and what it can do for a city or county. Characteristics of the Comprehensive Plan A comprehensive plan is general in nature. It does not call for specific action or encourage any particular legislative strategy. Rather, it provides a framework and policy context within which to make all decisions relating to land use and future development. The comprehensive plan also must be long-range. Because it deals with issues as many as thirty years down the road, the plan cannot chart a highly specific course. Instead, it points the way toward goals and objectives and acts as a reminder of the general policies that the city should consider when making development decisions. While short-term, more exact planning is important, it is not within the scope of the comprehensive plan. Finally, the comprehensive plan must be physically and functionally all -encompassing. Given that growth and change can affect every aspect of a city or county, it is important that the plan cover all aspects of the community's future. Why is a Plan Needed? Communities across Iowa are experiencing growth and change. Increasing growth and development pressure can strain local resources, damage the environment, and inconvenience homeowners and other residents. No IOWA STATE UNIVERSITY University Extension growth or slow growth also can bring problems, including stagnant or declining tax revenues and deteriorating public infrastructure. How then is a comprehensive plan important to communities? First, it must be recognized that all places, large and small, face problems and challenges that a comprehensive plan can help address. Other, more subtle reasons for a comprehensive plan also deserve attention. For instance, rural subdivisions may seem like good additions to an area's housing mix, and county officials may view such develop- ments as additions to the property tax base. However, rural subdivisions often take up at least twice as much land and cost about 40 percent more to provide with public services than do subdivisions within or adjoining existing communities. Further, this devel- opment trend leads to the loss of productive farmland and to conflicts with neighboring farmers over dust, odors, and other aspects of modern farming. A comprehensive plan that addresses where and how future development should take place can help com- munities avoid these types of problems and make sound decisions about their'growth. How is the Plan Implemented? Zoning and subdivision regulations are two methods of implementing the comprehensive plan and controlling future development. Many communities use these tools to prevent unwanted development and its undesirable side effects. The Iowa Code states that zoning and subdivision regulations should be based on the community's comprehensive plan. When a comprehensive -plan is in place, the community and potential residents or developers have advance knowledge of the intentions of the city or county. Thus, zoning and subdivision regulations are stronger and less susceptible to legal challenges when based upon a comprehensive plan. With a plan in place, a commu- nity has a better idea of how to use zoning, subdivision regulations, budgeting, capital improvements program- ming, and all other functions to achieve its goals and allow the area to grow or change in positive ways. PM 1868f February 2001 Inconsistent or unguided decisions by planners and elected officials alike can do damage in a variety of ways. While each individual decision may be reason- able, the combined effect of many different decisions may negate the expected benefit, or may cause a negative outcome not foreseeable from the standpoint of the individual case. Because each decision can have a lasting effect, it is important to try to determine, as specifically as possible, what that effect will be. A comprehensive plan makes it easier to identify and predict outcomes and to determine how they mesh with the community's overall plans. History of the Comprehensive Plan While often thought of as a modern pursuit, planning has a long history. Hippodamus of Miletus is considered the first city planner because of his efforts in several Greek cities in the fifth century B.C. These plans, and much of the collective efforts throughout history, were largely architectural in focus. Much of the consideration that goes into modern plans was of no concern, as most of the work was in designing street layouts and calling for park space and monumental government buildings. The comprehensive plan as it is known today has been around for a little more than 80 years. Planners' affilia- tion with a professional society began about the same time. The American Institute of City Planning was founded in 1917. Then, the creation of the Standard City Planning Enabling Act in 1928 touched off a flurry of planning activity across the country. State after state enacted this enabling legislation so that cities could legally undertake planning activities. However, the act was not perfect. Most critics point to four major weaknesses: • First, the act was not clear or consistent in its distinc- tion between the comprehensive plan and the zoning ordinance. The plan should provide the type of guidance needed for the creation of a zoning ordi- nance, but this ordinance is not a part of the plan. Second, the act allowed for piecemeal adoption of plan components. It was clear that all parts of the plan related to one another, but the act said there was no reason to wait for all areas to be completed before publishing those that were. The result was a rash of "master" plans for streets or public facilities that should have been only one part of the compre- hensive plan. • The third weakness of the Standard City Planning Enabling Act was that it provided no definition or outline for what technical elements the plan should contain. The next section of this publication will address this question. • Finally, the act failed to make the legislative body an important part of the planning process. As a result, the plan often lacked the power and politi- cal will needed for complete implementation. Over the past decades most of these problems have been corrected. Although the process remains imper- fect, a much more successful and accepted definition of the comprehensive plan exists today. Elements of a Comprehensive Plan A comprehensive plan is one document with many distinct sections. While these sections cover different aspects of the community, they all are related. The document will contain written text, maps, illustrations, tables, and whatever else is needed to clearly describe the city and its conditions and goals. The plan should be easy to read and easy to update so that local employ- ees, officials, and citizens can all use it comfortably. The first part of the plan is an introduction, which should include a brief description of what a plan is and why the community needs one. The resolution adopt- ing the plan usually appears here, to provide a list of reasons for its adoption. A table of contents should be included, and an explanation of how the actual plan was formulated is also helpful. The next section of the plan is often a brief history of the area and an enumeration of existing conditions. Data on those conditions also can be used to begin to make estimates about future directions. It should be apparent to the reader how the planner or author arrived at his or her conclusions based upon the past and present situation. The locality's strengths, weak- nesses, opportunities, and threats should be described and evaluated. Next are a number of different areas that need to be addressed. This is where the plan becomes comprehen- sive. Population and demography, land use, traffic circulation and transportation, parks and open space (natural resources), housing, utilities and services, urban design, community facilities, economic develop- ment, historical preservation, and other elements are all areas that may be covered in the plan. The goals and objectives for the overall plan, as well as for each of these specific areas of study, should be included. A portion describing the workings of the local political system and setting guidelines for intergovernmental cooperation might also be useful for some communities. Population and demography should be looked at in terms of existing conditions and future trends. An accurate population projection will be necessary for good planning. Ethnic makeup and age breakdowns are among the useful calculations. 2 ❖ IOWA STATE UNIVERSITY EXTENSION Land use is an important plan piece. The existing land - use map should be included along with projections of future use. These maps should be based on the goals and projections from the many other areas of the plan. The maps of future land use will be one of the most studied portions of the plan. Landowners and other citizens will carefully review the maps to learn how specific parcels of land will be treated. Accompanying text should explain the rationale behind the various land uses. Traffic circulation and transportation are increasingly important aspects of the comprehensive plan. As automobile use rises and traffic worsens, the need for roadway expansions, system improvements, and public transportation increases. All planned and potential new construction should be discussed in the plan. However, the comprehensive plan is not an exact outline of every future project. That level of detail should be left to the capital improvement program, a separate document that describes public capital expenditures over a five- year period. The park and open space element is fairly easy to grasp. Changes to the existing system should be outlined as well as projections of future need based upon forecasted growth. Conservation interests also should be discussed. Other common areas of interest are farmland, wetlands, and special habitat areas. Housing information can include provisions for affordable housing, planned residential growth, and building and density requirements. Good planning in this area will be necessary for efficient and effective growth. Utilities and services should include water, sanitary and storm sewer, and treatment information. This section also will be less specific than what is contained in the capital improvement program. Some portion of the plan should deal with urban design. Subdivision standards, neighborhood redevel- opment, and even historical preservation may be included. Community facilities include hospitals, schools and government buildings, and so forth. Theses entities are an important part of a growing community and should be considered in the comprehensive plan. Further, carefully planned public projects of this type may be used to spur redevelopment and set the standard for neighborhood renovations. Economic development will also be a necessary element of the plan for most communities. Whether geared toward serious efforts to attract major employ- ers or toward business retention and improvement, an economically strong community is a common goal. NOW Is a Comprehensive Plan Created? The creation of a useful comprehensive plan involves a great deal of research, calculation, and discussion. The development of many of the plan elements requires a high degree of technical knowledge. For this reason, the process is best guided by trained professionals. Even cities with a planning department often hire a consultant to create their comprehensive plan. Either way, the plan should include significant public participation. Numerous public meetings should be arranged and special effort should be made to encourage attendance and disseminate information about the process. The entire process can take years to complete. Once the plan is finished, the planning commission and the city council should formally approve the document. Although the comprehensive plan does not contain actual laws or regulations, this formal approval will lend strength to future legislation that is based upon the plan. Likewise, future work by any city agency or body should be compared to the comprehensive plan and should be consistent with it. Finally, it is important to realize that once in place, the comprehensive plan is not an infallible or unchange- able document. Times and conditions change, and some of the forecasts the plan was based on may prove inaccurate. The plan should not be changed out of convenience but can be updated when necessary so that it continues to provide an accurate picture of how the community wishes to progress. IOWA STATE UNIVERSITY EXTENSION :• 3 The Zoning Ordinance Extension to Communities College of Design Mention community planning, land -use planning, or the comprehensive plan, and watch people's eyes glaze over. But mention the term "zoning," and everyone has a story to tell about something that happened to him or her, to a friend, or to his or her neighborhood. Despite the plentiful supply of anecdotes and opinions, much about community zoning is not well understood. What Is Zoning? As the term implies, zoning divides the city or county into a number of different districts or zones. Different land uses are allowed in each area, and the goal is to separate those that are not compatible. Few people, for example, would like to have their home near a heavy industrial site. While both residential areas and indus- trial districts are important to the community, it is better to find a way to separate these incompatible land uses. Thus, zoning is a set of regulations adopted by the city or county to guide development. These regulations, however, do not stand alone. Zoning must be based on a comprehensive plan for the community and is one of the primary ways in which the community's comprehen- sive plan is implemented. (The comprehensive plan is discussed in another publication in this land -use series.) Traditionally, zoning involves the regulation of land in three areas. First, zoning controls how the land will beused. The use of a particular lot or piece of land — such as agricultural, commercial, industrial, or residen- tial —is stipulated in the zoning ordinance. Second, zoning usually includes height regulations. The maxi- mum height of buildings will be specified. Finally, there will normally be area regulations. The minimum lot size and the minimum open space around a structure will be set forth. Usually this is done through the specification of minimum front, side, and rear yards (see Figure 1). Purposes Served By Zoning A good planning and zoning program should help create a public dialogue about the future of the community. Citizen participation should be encouraged to allow IOWA STATE UNIVERSITY University Extension Lot Line Minimum required rear yard setback Minimum required side yard setback Minimum required front yard setback Figure I. Maximum buildable area after allowing for all required setbacks. Most zoning ordinances also stipulate a maximum building height. input at every stage. While local officials diligently seek review and comment on proposed plans, often citizens do not become engaged until some issue, such as a zoning change, affects them directly. Zoning helps establish land -use patterns that are logical and convenient. A good zoning ordinance, carefully administered, can —over time —help make the commu- nity more attractive. Cities and counties that have been well planned invariably make a better first impression than those that have not. Zoning regulations help communities use public resources efficiently. Cities and counties that direct growth can provide expensive infrastructure improve- ments only to those parts of the community that have been identified as growth areas. In this way, roads, sewers, water, and other services can be supplied on an as -needed basis. PM 1868g February 2001 Zoning also helps protect private investment by provid- ing those who purchase property with a sense of certainty about future development. Not only does a property buyer know what he or she can do with his or her land, but that buyer also knows what land uses will be allowed on adjoining parcels. To summarize, zoning can: • serve as a planning and development tool to keep down future costs of public services; • group together those land uses that are compatible and separate those that are likely to conflict with one another; • provide adequate space for each type of land use in the city or county; • help protect agricultural land by directing other types of development, residences, and businesses away from rural areas; and • Prevent congestion on roads and highways and help cities and counties minimize the costs associated with the construction and maintenance of roads and other infrastructure. Zoning cannot: • cure all of the city's or county's problems; • correct past mistakes in land use. Structures and land uses that are in place when the zoning ordi- nance is established are called nonconforming pre- existing uses and are "grandfathered in." Hence, objectionable or incompatible land uses from the past will not be corrected; or • guarantee the soundness nor regulate the physical appearance of structures built in a zoned district. What Is a Zoning Ordinance? Appointed by the city council or the county board of supervisors, the zoning commission prepares —or oversees the preparation of —both the zoning ordinance and the comprehensive plan on which it is based. The zoning ordinance consists of two parts: the zoning map and the text. The zoning map depicts the entire city or county. It clearly indicates the boundaries of all of the zoning districts within the jurisdiction. The zoning map may be in one large piece, or it may consist of numerous pages arranged as an atlas. In any case, it should be readily available for inspection by any interested person. It should also be kept up to date, reflecting any zoning changes that may have taken place. Many cities and counties now have their zoning map computerized, making the task of updating much easier. The texts of different zoning ordinances may vary in terms of length and format; however, certain elements undoubtedly will be present. Some reference will be made to the legal authority for zoning. In Iowa, this is Chapter 414 of the Code of Iowa for cities and Chapter 335 for counties. Similarly, there will be a statement of the public purpose to be achieved by the zoning regulations. The zoning ordinance should contain definitions of terms used as well as a description of the jurisdiction, the establishment of zoning districts, and the authoriza- tion for the official zoning map. Specific regulations for each of the designated zoning districts also should be indicated. These should include a statement of the district's purpose along with the types of land uses allowed in the district. These are the so-called "permit- ted uses" that a landowner may implement with no zoning permit or special authorization. For each zoning district, most ordinances also provide a list of "conditional" or "special exception" uses. These land uses are allowed only if certain conditions are met. Normally, landowners wishing to implement this type of use will need to apply to the zoning board of adjust- ment or some other body as stipulated in the ordinance. Next, dimensional standards for the district will be set forth. These will include such things as minimum setbacks from roads and lot lines, minimum lot sizes, maximum building heights, and so on. Finally, the ordinance will include information on administration and enforcement. This section will explain how the city or county will administer and enforce zoning regulations and the responsibilites of officials and departments. Residents who seek a zoning change or wish to appeal a decision should refer to this section of the ordinance to determine how to proceed. Are There Limits to Zoning Authority? The authority to zone is strictly limited. The Fifth and 14th Amendments to the United States Constitution contain language that prohibits any level of government from taking land without due process and just compen- sation. If zoning goes too far, the courts are likely to see it as a regulatory taking of land (see Extension publica- tion on property rights and land -use regulation). Cities and counties that have planning and zoning programs try to achieve a balance between the rights of the individual property owner and the needs of the community. Zoning regulations aim to allow individuals to use of their property; however, they must do so in ways that will not have a negative impact on their neighbors or their community. 2 ❖ IOWA STATE UNIVERSITY EXTENSION Criticisms of Zoning Although zoning has become increasingly common since it was authorized in the 1920s, it is not without critics. While surveys show that most people support zoning as a way to implement community planning, some still oppose it as being too restrictive. Others have attacked zoning as exclusionary. These critics believe that zoning can be implemented in ways that exclude people of moderate income —because, they argue, zoning regulations make it more difficult to build affordable housing. In this view, large lot sizes, restric- tions on manufactured housing units, prohibition of multi -family dwellings, and excessively large minimum floor -area requirements are all examples of zoning regulations that have the intended or unintended effect of being exclusionary. Finally, zoning has been criticized as too bureaucratic and parochial. An excessive emphasis may be placed on minutia at the expense of the larger picture. The approval process may become sluggish and unrespon- sive. Local officials may, at times, make zoning decisions based solely on local considerations without consider- ing regional effects or implications. Innovative Zoning Techniques To answer at least some of these criticisms, innovative techniques have been developed to introduce more flexibility into the zoning process. Traditional zoning can be rather rigid and result in a "sameness" to the look of neighborhoods. In some situations, an intermix- ing of land uses may make a community or neighbor- hood more appealing. Planned Unit Development (PUD) Probably the best known of the innovative zoning techniques is the Planned Unit Development (PUD). Under this approach, the zoning ordinance allows flexibility in the development of large areas, usually several contiguous acres at a minimum. In addition to homes, which are often clustered together, there may be appropriate commercial, public or quasi -public, or even industrial facilities. In addition to allowing this mixing of land uses, PUD regulations are usually much more flexible than conventional zoning requirements in terms of building placement and development standards. A PUD can improve site design, preserve and protect amenities such as wetlands or other open space by clustering residential and other development, and lower infrastructure costs by reducing street lengths. Features included in a planned unit development may include such varied items as commercial buildings, community centers, open space, water features, and agricultural land. In creating a PUD, local officials and developers work together to arrive at an approved plan. Planned unit developments, also referred to as planned residential developments or simply as planned developments, have been well accepted because they offer such a livable environment. In recent years, one popular variation on the PUD concept has been the Planned Industrial Develop- ment (PID). Many PIDs include retail services and recreational facilities for the convenience of employees. Overlay Zone Another innovative zoning technique involves the use of a zone of indeterminate size that can be applied to an area of the community in special circumstances. Termed an overlay zone, such a district is often used to protect historic areas. Overlay zones are imposed on top of the existing zoning and may cover all or part of several districts. They provide an additional layer of develop- ment standards so that unusual land -use needs may be addressed. Again, using the historic district example, new buildings or building additions can be subject to design standards through the use of the overlay zone. In this way, the design compatibility and appearance of the historic area can be maintained. Conclusion Zoning is simply a system for dividing a jurisdiction into a series of districts to lessen land -use -based conflicts. The zoning ordinance sets forth such regula- tions in detail so that every owner of land may know what is permitted and required not only of the uses of the land, but also setbacks, building heights, and so forth. While zoning certainly can be criticized, the careful and evenhanded administration of a thoughtfully drafted zoning ordinance remains one of the best ways to implement the community comprehensive plan. Zoning makes an important contribution to the livability, efficiency, and attractiveness of a city or county. IOWA STATE UNIVERSITY EXTENSION ❖ 3 APPEAL TO THE BOARD OF ADJUSTMENT SPECIAL EXCEPTION C--1 TITLE 14, CHAPTER 6, ARTICLE W DATE: 11-14-01 APPEAL PROPERTY ADDRESS: _ APPEAL PROPERTY ZONE: CI-1 1 APPLICANT: �� 71 PROPERTY PARCEL NO. - =4� cry } - 729 S. Capitol Street Q �p D APPEAL PROPERTY LOT SIZE: Name: Address: Phone: Kevin Kidwell Sugar Bottom Rd., Solon, IA 52333 319-644-3479 CONTACT PERSON: Name: Kevin Kidwell Address: Sugar Bottom Rd., Solon, IA 52333 Phone: 319-644-3479 PROPERTY OWNER: Name: E&S Limited Address: 729 S. Capitol St., Iowa City,.IA Phone: 319-338-1612 Specific Requested Special Exception; Applicable Section(s) of the Zoning Chapter: 14-6E-4-D3 Purpose for special exception: To allow dwelling units above the principal ground floor use. Date of previous application or appeal filed, if any: N -2- INFORMATION TO BE PROVIDED BY APPLICANT: A. Legal description of property: Lot 4 & East 1/2 Lot 5 Original town of N Iowa City. — B. *'Plot plan drawn to scale showing: 0 -< — cn �.. 1. Lot with dimensions;�� 2. North point and scale; 3. Existing and proposed structures with distances from property line 4. Abutting streets and alleys; D — 5. Surrounding land uses, including the location and record owner of each property opposite or abutting the property in question; 6. Parking spaces and trees - existing and proposed. [*Submission of an 82" x 11" bold print plot plan is preferred.] C. Review. The Board shall review all applicable evidence regarding the site, existing and proposed structures, neighboring uses, parking areas, driveway locations, highway and street access, traffic generation and circulation, drainage, sanitary sewer and water systems, the operation of the specific proposed exception and such other evidence as deemed appropriate. (Section 14-6W-2131, City Code). In the space provided below or on an attached sheet, address the areas of Board review which apply to the requested special exception. In this narrative statement, set forth the grounds offered as support for the special exception. Dwelling units are allowed in the CI-1 zone with special expections approved. There are existing dwelling units located in adjacent buildings. D. The applicant is required to present sp, general standards for the granting of a Code), enumerated below, will be met: information, not just opinions, that the iai exception (Section 14-6W-2B2, City 1. The specific proposed exception will not be detrimental to or endanger the public health, safety, comfort, or general welfare. The required parking is being provided along with existing sidewalks and access to Capitol Street shall provide for the public health and safety. -3- 2. The' specific proposed exception will not be injurious to the use and enjoyment of other property in the immediate vicinity and will not substantially diminish and impair property values in the neighborhood. The surrounding area is fully developed with commercial uses. The proposed ground level commercial and upper level dwelling units will not diminish property values. . 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. The surrounding areas are developed with: North: Johnson Co. Garage South: City Carton Recycling West: Iowa River East: Knebel Windows/Sub Station 4. Adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided. All the amenities are existing. 5. Adequate measures have been or will be taken to provide ingress or egress designed so as to minimize traffic congestion on public streets. The proposed parking will have access to Capitol Street. N C� 71 J D _ v� -4- 6. Except for the specific regulations and standards applicable to the exception being considered, the specific proposed exception, in all other respects, conforms to the applicable regulations or standards of the zone in which it is to be located. [Depending on the type of exception requested, certain specific conditions may need to be met. The applicant will (demonstrate compliance with the specific conditions required for a particular use, as provided in City Code Section 14-61-4, Special Exception Enumerated Requirements; Section 14-6N-1, Off -Street Parking Requirements; Section 14-6Q,- Dimensional Requirements, or Section 14-611, Tree Regulations, as appropriate.] The proposed structure will conform to the requirements of the CI-1 zone. 7. The proposed use will be consistent with the short-range Comprehensive Plan of the City. The proposed.use is consistent with the Comprehensive Plan. E. List the names and mailing addresses of the record owners of all property located within 300 feet of the exterior limits of the property involved in this appeal: NAME ADDRESS -� 7_1 C7 —I^ cn r-- 3- �, -5- NOTE: Conditions. In permitting a special exception, the Board may impose appropriate conditions and safeguards, including but not limited to planting screens, fencing, construction commencement and completion deadlines, lighting, operational controls, Improved traffic circulation requirements, highway access restrictions, increased minimum yard requirements, parking requirements, limitations on the duration of a use or ownership or any other requirement which the Board deems appropriate under the circumstances upon a finding that the conditions are necessary to fulfill the purpose and intent of the Zoning Chapter. (Section 14-6W-2133, City Code).. Orders. Unless otherwise determined by the Board, all orders of the Board shall expire six (6) months from the date the written decision is filed with the City Clerk, unless . the applicant shall have taken action within the six (6) month period to establish the use or construct the building permitted under the terms of the Board's decision, such as by obtaining a building permit and proceeding to completion in accordance with the terms of the permit. Upon written request, and for good cause shown, the Board may extend the expiration date of any order without further public hearing on the merits of the original appeal or application. (Section 14-6W-3E, City Code). Petition for writ of certiorari. Any person or persons, jointly or severally, aggrieved by any decision of the Board under the provisions of the Zoning Chapter, or any taxpayer or any officer, department or board of the City may present to a court of record a petition for writ of certiorari duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. (Section 14-6W-7, City Code). Such petition shall be presented to the court within thirty (30) days after the filing of the decision in the office of the City Clerk. Date: �� / , yM Date: /f z/ �_, *001 ppdadminlappboase.doc Signatures) of Applicant(s) Signature(s) of Property Owner(s) if Different than Applicant(s) _ O ^J � �� NORTH STATE OF IOWA W SURVEY REQUESTED BY: LLG08V).ERNMENT CORNER SHEETETY CORNER FOUND n�'30" W/ LS. CAP SETNEXISTING FENCE LINE PRT�IDPROPERTY LINE p � T N DAM \f9 JOHNSON COUNTY GARAGE Vol 7.5' 85.1' s 10 11 130.0' 12 PROPOSED 30.0 13 15 16 17 BUILDING �963.0' �� :S 18 192021 2 .2' 33.2' k 245.3' HEARTLAND RAIL CORP. 9.0' 160.2' 1 26 25 37.0' 2423 1 n 52.4 CITY CARTON CO. INC. NOTES: LOT 4 & E1/2 5 = 18,352 SF 1ST FLOOR WAREHOUSE = 2,437 SF 2,437 SF 0 1/1000 = 2 SPACES 2ND 3RD FLOOR = 4-4 BDRM & 6-3 BDRM APTS 4 BDRM 0 3/DU & 3 BDRM ® 2/DU = 24 REQUIRED PARKING = 26 PROVIDED PARKING = 12 COMPACTS & 14 FULL CURRENT TITLE HOLDER: SITE PLAN LOT 1 & 2 EASTDALE MALL ADDITION IOWA CITY, IOWA A D SCALE K DAM R DAM $ 11-14-01 1 "=60' Z J J W J I -'d U) oQ W W of oI oz a U ~ (� Q N U CO J =) W fn LAFAYETTE STREET Z5 r' =I c-n {___ M MMS CONSULTANTS, INC. M Iowa City, Iowa ^_,,,- 31 9-351 -8282 9 NO R NO . 0916108 STAFF REPORT To: Board of Adjustment Item: EXC01-00026, 729 S. Capitol Street GENERAL INFORMATION: Applicant: Contact Person: Requested Action: Purpose: Location: Size: Existing Land Use and Zoning: Surrounding Land Use and Zoning Comprehensive Plan: Applicable Code requirements: File Date: BACKGROUND INFORMATION: Prepared by: Karen Howard and John Adam, Planning Intern Date: December 7, 2001 Kevin Kidwell Sugar Bottom Road Solon, IA 52333 Ph. 319-644-3479 Kevin Kidwell (same address and phone) Special exception to allow a residential use in the CI- 1 zone To develop a structure with commercial uses on the ground floor and residential uses above 729 South Capitol Street: Lot 4 and E 85.1' of Lot 5 of Block 15 of the Original Town Plat 0.42 acres Capitol Oil Company, CIA North: Johnson County Garage, P South: City Carton Company, 1-1 East: Power substation, Knebel Windows, CIA West: Power substation, 1-1 Intensive commercial development Chapter 14-6E-4D, Intensive Commercial (CI-1) zone, Special Exceptions November 15, 2001 The applicant, Kevin Kidwell, is requesting a special exception to permit the replacement of an existing collection of structures at 729 South Capitol Street with a single mixed -use building containing 2,437 square feet of warehouse space on the ground floor and four 4-bedroom and six 3-bedroom dwelling units on the second and third floors. The property is zoned Intensive Commercial, CIA. Residential uses are allowed in the CIA zone by special exception provided that the residential use is located above the ground floor of another principal use permitted in the zone, the density does not exceed one (1) dwelling unit per 1,800 square feet of lot area, and if the general special exception review standards are met. ANALYSIS: The purpose of the Zoning Ordinance is to promote the public health, safety and general welfare, to conserve and protect the value of property throughout the City, and to encourage the most appropriate use of land. It is the intent of the Ordinance to permit the full use and enjoyment of property in a manner that does not intrude upon adjacent property. The Board may grant the requested special exception for dwelling units above the ground floor of a permitted use if the requested exception is found to be in accordance with the regulations of the Intensive Commercial Zone and the general standards for special exceptions as set forth in Section 14-6W-2B. Specific Standards: 14-6E-4D- 3 - Requirements for dwelling units above the ground floor of another principal use permitted in the zone. Section 14-6E-4D-3 sets a maximum density of one dwelling unit per 1,800 square feet of lot area. The lot in question is approximately 18,352 square feet, which would be adequate lot area to permit the development of 10 dwelling units provided that other zoning requirements and the general special exception standards are met. General Standards: 14-6W-213, Special Exception Review Requirements The applicants' statements regarding each of the seven general standards are included within the attached application. Staff comments on these standards are set forth below and correspond to the standards as lettered in subsection 14-6W-2B of the City Code. a. The specific proposed exception will not be detrimental to or endanger the public health, safety, comfort or general welfare — The "Intent" section of the Intensive Commercial zone states that "special attention must be directed toward buffering the negative aspects of these uses from any residential use." The proposal to insert a residential use into a CI-1 zone places the burden of protection on the developer. The Board should examine this special exception request from the perspective of protecting the general health and welfare — specifically, the health and welfare of the future residents of 729 South Capitol Street —from harmful or undesirable situations. The subject property is in area characterized by industrial uses. There is a railway directly adjacent to the subject property to the south. The property to the west and south is zoned General Industrial (1-1). City Carton, an industrial use is located across the railroad tracks to the south in the 1-1 Zone. The properties to the west and east both contain electrical substations. A warehouse is located north of the subject property. City Carton Company generates a considerable amount of large truck traffic. Large tractor -trailers are entering and exiting the company's site on a driveway adjacent to a railroad siding situated between City Carton and the site in question. In addition, the potential development site is located between two electric sub -stations, one in a field to the west and another directly across Capitol Street. Because the applicant proposes to cover most of the site with building and parking, there is no buffering proposed to make the site conducive to residential uses. The current site plan shows a total of five trees dispersed about the parking lot; most are located along Capitol Street. Where they are most needed —along the railroad siding —is where they are absent. However, no number of trees, no matter their level of maturity, will provide adequate buffer against the noise and odor of an operating railroad line, or against noise from City Carton Company. The site is undesirable for residential purposes precisely because the adjacent 1-1 zone and the CI-1 zones are where uses undesirable in residential areas are permitted. The demand for housing may be such that people with limited choice find that residing at this site is 3 acceptable, but the purposes of zoning, to separate incompatible uses, should cause the Board to find that this particular proposal is unacceptable. b. The specific proposed exception will not be injurious to the use and enjoyment of other property in the immediate vicinity and will not substantially diminish or impair property values in the neighborhood — see c., below. c. Establishment of the specific proposed exception will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the zone in which such property is located — Allowing the development of a residential use in this particular location invites potential conflict between residents and surrounding intensive commercial and industrial uses. Residents may complain about noise, litter, traffic or any other effects that one commonly expects to find in industrial and intensive commercial zones. If this special exception is granted these complaints may be reasonably directed toward the City, which approved the development of these incompatible uses. d. Adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided — The site has in the past been used for the distribution of oil products and contains at least one aboveground storage tank. To assure that there is no contamination of the site a soil study should be required if the Board decides to grant the special exception. e. Adequate measures have been or will be taken to provide ingress or egress designed so as to minimize traffic congestion on public streets — Existing access to Capitol Street is adequate. f. Except for the specific regulations and standards applicable to the exception being considered, the specific proposed exception, in all other respects, conforms to the applicable regulations or standards of the zone in which it is to be located - The proposed special exception is for the use of the site only. The applicant will still be required to meet all other City Code requirements. g. The proposed use will be consistent with the Comprehensive Plan of the City, as amended - It is important for the Board to consider some history regarding residential uses in the CI-1 Zone. In 1991 the Board of Adjustment granted a special exception (EXC91- 00014) to allow development of a mixed -use structure one block east of the site currently under scrutiny. The staff report at the time recommended approval, but warned that "the proposed development is more intensely residential than commercial and may inject a residential character into an area designated in the Comprehensive Plan for industrial and intense commercial development." There was also concern that residential uses would be located in areas that did not have amenities or environmental conditions needed for a pleasant and healthy residential setting. The matter came up again in 1996. Responding to concerns expressed by the Board of Adjustment, staff examined the possibility of changing the Zoning Code to eliminate residential uses from the CI-1 Zone altogether. The Planning and Zoning Commission considered the matter but on a split vote decided against changing the Code language. The Commission felt that through the special exception process, the Board of Adjustment could carefully consider applications for residential uses above intensive commercial uses on a case -by -case basis, each application on its own merits. It was felt that the special exception process granted the City enough latitude to deny requests for residential uses where the surrounding neighborhood was not conducive to residential living. Staff feels strongly for the reasons stated above that residential uses should not be permitted in this particular location. 4 STAFF RECOMMENDATION: Due to the industrial and intensive commercial character of this particular location and the fact that this property itself is too small to provide any buffer from industrial and intensive commercial uses, staff recommends that the Board deny EXC01-00026, a special exception to permit residential dwelling units above ground floor permitted uses in the Intensive Commercial (CI-1) Zone at 729 Capitol Street. ATTACHMENTS: 1. Location map 2. Application form and attachments. Approved by: _ e fAi Robert Miklo, Senior Planner Department of Planning and Community Development II I ':it --MY of Iowa City MEMORANDUM Date: June 20, 1996 To: Planning and Zoning Commission From: Melody Rockwell, Associate Planner Re: Permitting Residential Uses in the CI-1 Zone In the Intensive Commercial (CI-1) zone, dwelling units can be established above the ground floor of a commercial use by special exception. During the past few years, concerns have been raised from time to time about whether it is appropriate to locate residential uses in a near industrial zone. Concerns have also been expressed about residential uses becoming the principal use in a commercial zone, and thereby displacing the intended commercial uses in the CI-1 zone. The Planning and Zoning Commission requested staff to evaluate the issue; to "consider restrictin the extent of residential uses allowed in the CI-1 zone." g Intent of the CI-1 Zone. The Intensive Commercial (CI-1) zone is a commercial zone for land consumptive uses, such as wholesale businesses, contractors yards, outdoor displays of merchandise, vehicle repair and light manufacturing. Historically, zones with these types of uses have been located on the edge of town where larger, less expensive tracts of land are available. Retail trade is limited in the CI-1 zone (not more than 50% of the ground floor area shabe devoted to the retail display of merchandise). The CI-1 zone is "intended to provide areas for those sales and service functions and businesses whose operations are typically characterized by outdoor display, storage and/or sale of merchandize, by repair of motor vehicles, b outdoor commercial amusement and recreational activities, or by activities or operations conducted in buildings not completely enclosed." When residential uses are permitted to be established on a Property commercial uses that are intended to be located in the zone are often supply ted.nForh xampe of ple, the Kennedy Plaza property was located in the CI-1 zone and was the site of a farm implement business prior to residential units being permitted on the property by special exception. The Property was subsequently rezoned to Community Commercial (CC-2) zoning to allow more retail uses to be established on the ground floor. It is more appropriate to have retail uses instead of near -industrial uses associated with residential uses on the same property. But, the point is -- intended CI-1 uses were displaced, and were eliminated with the rezoning. This displacement has occurred without a rezoning in other instances when apartments were established in a newbuilding with offices located below. Offices are permitted in the CI-1 zone, but the intent of the zone to provide a location for wholesale businesses, building contractors pre-assembl outdoor displays of merchandise, etc. is not being met when a ro Y Yards, ert primarily residential use. p p y is converted to a The intent section of the CI-1 zone specifically states that "special attention must be directed It is next to toward buffering the negative aspects of these uses from any residential use." impossible to buffer residential uses from the impacts of commercial uses, such as auto bo dy kA shops, light manufacturing, cement plants and adult businesses, that are permitted in the CI-1 zone when residential uses are also permitted in the Cl-1 zone. Screening, soundproofing and distance buffering requirements have limited value when residential uses are located on the same site or adjacent to an auto body shop, a lumber yard or a building contractors yard where noise from the business and its associated truck traffic is not contained within a building. To prohibit or to require distance buffers for certain commercial uses in order to protect residential uses permitted within the CI-1 zone would obviate the commercial intent of the zone. Extent of Residential Uses in the CI-1 Zone. Staff surveyed the CI-1 zoned properties to determine the extent of residential uses within the zone. Of the 282 parcels in the CI-1 zone, 29 properties, or 10% of the properties, had dwelling units. There are a total of 104 apartments located in the CI-1 zone throughout Iowa City; an average density of 3.5 dwelling units per property in the CIA zone that contains residential uses. The residential units are not evenly scattered throughout the CI-1 zone, but are clustered largely in the CI-1 zone located east of the Iowa River and north of Highway 6. This northeast sector of CI-1 zoning contains 143 properties; 22 (15.3%) are properties containing a total of 73 dwelling units. The area of CI-1 zoning located east of the Iowa River, but south of Highway 6 contains 77 parcels; 6 (7%) of the properties contain residential uses. There are a total of 19 dwelling units in this southeast sector of the CI-1 zone. West of the Iowa River, primarily south of Highway 1, there are 62 parcels in the CI-1 zone, and only one (1.6%) of the properties contains residential units. It contains four dwelling units. Currently, the extent of residential uses in the CI-1 zone is not pervasive. However, if the Zoning Chapter is amended to eliminate further development of apartments in the CI-1 zone, the issue of legal, nonconforming uses for properties in the CI-1 zone with existing dwelling units must be addressed. This is particularly the case for the CI-1 zoned area east of the Iowa River and north of Highway 6. The land use and zoning study for the area in the vicinity of the County Administration Building (an item on the Commission's pending list for FY97) could be expanded to consider rezoning properties containing residential uses and commercial uses that are permitted in less intensive commercial zones from CI-1 (Intensive Commercial) to a less intensive commercial zone, such as CC-2 (Community Commercial) or CO-1 (Office Commercial). There are a number of properties in that area north of Lafayette Street that have become primarily residential properties with offices located below. The rezoning of residential/office properties in the CI-1 zone will not create a shortage of CI-1 zoned property. Recently, large tracts of land on the southwest side of Iowa City have been annexed and zoned CI-1. The intended uses of the CIA zone are better located on the edge of town on larger tracts of land. In the northeast sector of the CI-1 zone (east of the Iowa River and north of Highway 6), which contains few large properties, there has been a gradual transition of land uses changing from intensive, land consumptive commercial to residential/office/retail. The proposed study will facilitate planning for appropriate land uses and zoning in this area of Iowa City. STAFF RECOMMENDATION: To preserve the integrity of the CI-1 zone and reduce the conflict of uses that result when residential uses are located in an intensive commercial zone, staff recommends that the Zoning 3 Chapter be amended by repealing subsection 14-6E-4D3 so that no additional apartments can be established in the CI-1 zone: 14-6E-4D - Special Exceptions in the CI-1 Zone: ATTACHMENTS: 1 • CI-1 Zone Section of the Zoning Chapter 2. Chart of Residential Uses Permitted in Commercial Zones 3• Table of Existing Residential Uses in the CI-1 Zone, June 1996 4• Map of Existing Residential Uses in the CI-1 Zone, June 1996 Katin Franklin, Director D partment of Planning and Community Development PPdedminW1 resld.mem rMINUTES� IOWA CITY BOARD OF ADJUSTMENT WEDNESDAY, JANUARY 9, 2002 — 5:00 P.M. CIVIC CENTER - COUNCIL CHAMBERS MEMBERS PRESENT: Mike Paul, Vince Maurer, T.J. Brandt, Dennis Keitel MEMBERS ABSENT: STAFF PRESENT: Karen Howard, Shelley McCafferty, Sarah Holecek OTHERS PRESENT: Duane Musser, Kevin Kidwell, Tom Gelman, Tom Lepic, Tim Krumm, John Ockenfels, Tom Rowald, Tim Zimmerman (CRANDIC), Jim Clark, Cindy Parsons, Scott Kaeding, Ann Connors, David Chamberlain, Jim Petrain, Richard Haendel, Austin Chamberlain, Chuck Polfliet, Carol Peters, Eric Gidal CALL TO ORDER: Chairperson Brandt called the meeting to order at 5:04 P.M. ROLL CALL: Maurer, Paul, Brandt and Keitel present. CONSIDERATION OF THE DECEMBER 12 2001 BOARD MINUTES: Motion: Paul moved to approve the December 12, 2001 minutes. Maurer seconded. Motion carried 4-0. SPECIAL EXCEPTIONS: EXC01-00026. Discussion of an application submitted by Kevin Kidwell for a special exception to permit, dwellings units above a ground floor warehouse use in the Intensive Commercial (CI- 1) Zone at 729 S. Capitol Street. Howard stated that this proposal would replace the existing building on this site with use building with warehouse space on the first floor and two floors of residential above, including four 4-bedroom apartments and six 3-bedroom apartments. She said that residential uses in this zone are permitted by special exception provided they meet a density requirement of one unit per 1800 sq. ft. and the general special exception review standards. Howard said that this proposal does meet the density requirement for the property. She presented drawings of the proposed building, and stated that 26 parking spaces are required for the building. She said that a rail line runs between this property and the next zone over, which is an industrial zone containing City Carton. She said that to the west and utility substations, and there is a warehouse use directly to the north. across the street are Howard said that staff has concerns about this proposal, and do not feel it meets the general special exception review requirements. She said that residential should be carefully considered in the Intensive Commercial Zone because the intent section of this zone states that any residential use needs to be buffered from any kind of intensive commercial or manufacturing uses permitted in the zone. She stated that the small, narrow lot does not present much opportunity for any kind of buffering of residential use from surrounding industrial uses. She said that proposal is for a primarily residential use. The apartments will contain 34 bedrooms and be marketed primarily to University students. She stated staff is concerned that the noise and truck and train traffic in this location is not conducive to such an intensive residential use. Iowa City Board of Adjustm linutes January 9, 2002 ,04 Page 2 Howard said the Board should be aware that there has been a lot of discussion about whether residential uses are appropriate in the Intensive Commercial Zone. She said that a 1996 study triggered by a residential use in this particular area showed that there is pressure to develop apartments in this area due to proximity to the University. However, the CI-1 zone is intended for semi -industrial sues and this is the only CI-1 zone remaining in the city that provides opportunities for these types of businesses close to downtown. She said the 1996 study recommended to the Planning & Zoning Commission that residential uses be prohibited in this particular zone. She said the P&Z Commission, on a split vote, decided not to amend the ordinance relying on the fact that the Board of Adjustment would have the opportunity to review each case on its own merits. Howard said that due to the fact that this proposal, which is more intensely residential than commercial, would change the character of this area and due to the industrial and intensive commercial character of this location and the fact that this property is too small to provide any buffer from industrial and intensive commercial uses, staff recommends that the Board deny EXC01-00026. In response to a question from Keitel, Howard said that the railroad right-of-way is immediately adjacent to this parcel. She said that she understood that the applicant has not done a specific survey but they estimate that the railway is approximately 40 feet from the property line, and the building would set back another 20 feet from the property line. She stated that it is a spur line. Public Hearing Opened Duane Musser of MMS Consultants identified himself as the consultant for Kevin Kidwell. He said that immediately north of the project site is a Johnson County warehouse, and they see the warehouse as having little traffic, odor or noise. He said that to the east and west are electric substations, and they don't feel any staff concerns regarding odor or noise or traffic are valid. He said that the spur traffic on the south side dead ends at Moore's. He said they talked with CRANDIC and were told that they make three trips per week, one per day, on that spur line, and they don't feel this rail line would cause odor or noise with that infrequent use. Musser said that the tracks are located on an old right-of-way where Lafayette Street was vacated, providing CRANDIC with the north half and City Carton receiving the south half. He said they consider City Carton to be a light manufacturing type of industrial use. He said that adjacent is a warehouse for paper bundling. He said they have looked at the traffic coming into the City Carton site, and all that traffic travels south to Benton Street when leaving the site. In addition, he stated that on the day they took a count, there were 32 large trucks entering/exiting the site in a 9 hour period. Musser stated that there are several existing uses with commercial on first floor and residential above, especially in the area located between the two railroad tracks and to Gilbert Street. He said that Capitol Street is not a through street connecting Burlington and Benton Streets, and is limited traffic use. He said it is close to campus, downtown and the hospital, and is right across from the bike path. Kevin Kidwell introduced himself, and stated that he respectfully disagrees with the City staffs opinions. He said that allowing residential use in this zone makes perfectly good sense. He stated that the tenants, who probably will be students, will be able to walk to school, which would relieve parking congestion downtown. In addition, he said it will help to eliminate the sprawl that so many residential neighborhoods do not desire. Kidwell said that given the history of the low vacancy rates in the immediate neighborhoods and of the surrounding areas, allowing this residential use is a good fit. He said that he owns a Iowa City Board of Adjustmelinutes January 9, 2002 Page 3 property two blocks east of this site which has commercial use on the ground floor with dwelling units above, and is between two rail lines. He said that since 1992, the entire building has been 100% full, never having a vacancy. Kidwell said he agrees that the project is adjacent to an industrial zone, but the current use is not a true industrial use such as Procter & Gamble or Sheller -Globe. He said he disagrees that the apartments would be leased only by people with limited choice. He said that proximity to campus is a much higher priority for students. Kidwell referred to three letters in the Board's packets in support of this proposal. Kidwell said that to alleviate any concerns of tenants, he would erect a fence between the proposed sight and the railroad right-of-way on the south and west sides of the property. He said this would address the safety issue and would create a buffer between the uses. In response to a question from Paul, Kidwell said his other property is in a CI-1 zone, and is between two sets of tracks. In response to a question from Keitel, Kidwell stated he expects the commercial use to be cold storage warehouse. Howard stated that for warehouse use two spaces would have to be allocated for parking. In response to a question from Paul, Kidwell said that he is undecided on warehouse spaces; it depends on what the tenants want. He said that a commercial neighbor has talked about leasing the space. Tom Gelman introduced himself as legal counsel for Kevin Kidwell. He said that there are specific requirements specified in the statute for special exceptions, and there is no question that the specific requirements have been met. Gelman said that although there are comments on the seven general requirements, there really are not any significant objections raised with any other than the first requirement which relates to the general welfare, safety and health of the community. Gelman said that the City staff is focusing inward on this project, and traditionally they focus outward to determine that the project is in the best interest of the community generally and the neighboring properties specifically with less concern about the actual developer. Gelman stated that the staff did not address the potential benefits to the health, comfort, safety and welfare of our community. He said it will provide additional needed student residences in a location that is appropriate. He said Iowa City needs to encourage close -in student housing that does not encroach on existing residential neighborhoods. He stated that the project would facilitate walking and riding bicycles as opposed to traffic into the downtown area. He said it is improvement of a commercial site that desperately needs improvement, and a type of improvement that will be more intensive, allowing more tax base. Gelman stated that there are many bases upon which people will choose where they live. He said that if proximity to campus was very important, this would be is a very good very location. He said no one will be forced to live there. He stated that the requirements that the City staff is placing upon this property, such as screening from noise, odors and intensely commercial uses, are not generally the standards that are applicable to second floor/third floor residential houses in commercial neighborhoods. He cited downtown apartments and Burlington Street apartments as an example. He said that in 1999 a special exception was made on Scott & Court, which location is immediately adjacent to a 24 hour gas station & car wash, and to Scott Boulevard. He said that in a 1996 traffic count, there were 349 trucks per day and 8912 cars per day immediately adjacent to this building with no particular screening. Iowa City Board of Adjustme , inutes January 9, 2002 Page 4 Gelman stated that at the last Board meeting, a special exception was approved for housing on the second and/or third floors of an apartment on First Avenue immediately adjacent to Procter & Gamble; immediately adjacent to the railroad spur and to First Avenue, which has an extraordinary number of cars and trucks per day. Gelman stated that the railroad is not a health and safety risk. He stated that the adjacent CRANDIC spur is used three times per week and the railroad track that is north of this property is used much more frequently. He said there were a lot of people who live along that rail line with no significant buffering, particularly around the roundhouse. Gelman said that the electric substations do not create any harm for anyone. He said that there are no studies regarding noise and traffic from City Carton Company. Gelman said that not one of the semi trucks that accessed or left City Carton passed the proposed location. He said he understands that the plant is a paper bundling plant, the paper is shipped from that location, and no known odor is arising from that. He said it is not clear what the noise staff is talking about is, or that it would be any worse than downtown, Burlington Street, Procter & Gamble, or Scott Boulevard. Gelman said that the real statement from the City is that people shouldn't have to live there because it's not as desirable as other places. He said he thinks there are other undesirable places to live that are zoned residential in this community, and people would choose to live there. Gelman said that the applicant has done his task in establishing that this special exception is a reasonable and appropriate use for this property. Gelman stated that the portion of the spur running by the southerly portion of this property is not used by City Carton; they have a separate spur behind their plant. In response to a question from Paul, Gelman said that he has not investigated the zoning classification for Mr. Moreland's project on First Avenue; he was referring to the general location being near Procter & Gamble and the railroad line. Gelman said that the City has characterized the project area as heavy industrial and heavy commercial, in part because of the zoning, but he believes it is neither. He said the actual industrial activities are the City Carton recycling plant, and it is not the type of manufacturing industrial that one might think about. He said that there is not as much traffic as heavy commercial and industrial regions usually generate. Tom Lepic identified himself as a friend of Kevin Kidwell, and the realtor who has the property listed for sale. He stated that this property has been very hard to sell, and they feel fortunate that someone wants to enhance the betterment of Iowa City. He said he drives by this property every day to get downtown, and it is a popular route to downtown from the west. He said that if they want to have people continue to drive past this area, they need to enhance the area. Lepic said that Kidwell would not be building the project if he didn't think tenants would want to live there. Tim Krumm identified himself as counsel for City Carton, who are opposed to this application. Mr. Krumm passed out additional information to the Board, including a summary of issues they feel are important, a portion of the auditor's parcel plat filed in October of last year for some adjacent parcels owned by City Carton (Eagleview Properties), and photographs of the area of the project. Krumm said that the primary emphasis in the staff report has to do with protecting the general health and welfare of the future residents of the apartments, which he feels is entirely consistent with the standard that should apply. He said that there is not another property like this; it is Iowa City Board of AdjustmQ linutes January 9, 2002 Page 5 completely surrounded with commercial and industrial uses and would not be like living in an apartment downtown. He stated that, according to the company's records, 75 trucks per day (Monday -Friday and some Saturdays) on the average go past the subject property along the east -west. He said 25 employees go in and out of the property in two shifts every Monday through Friday and many Saturdays. He said 3-4 railroad cars are switched on tracks that are virtually adjacent to this property. He said it is a heavy industrial use. He said that not only may there be complaints to the City from future residents, but they believe that there will be future complaints directed to City Carton. He said they have been a good corporate citizen and want to continue in that vein, and they feel this project puts them in jeopardy. Krumm said that City Carton acquired the properties depicted on page 2 of his handout with the idea that they would be able to continue to make industrial use of that property. They feel that the adjacent residential use, if granted, would put their plans in jeopardy. Krumm pointed out a few errors in the site plan. He said that the project name was wrong (Lots 1 and 2, Eastdale Mall Addition), which he just wanted to point out for the record. He said that part of Lafayette Street farther to the west has been vacated, but about two-thirds of the property has not been vacated, even though it is not in use for public travel. He said this is a City right-of-way of Lafayette St. In addition, he said it is not City Carton who owns the property to the south and west -- it is Eagleview Properties which is owned by the same parties as City Carton. Krumm referred to page 2 of the handout to show what properties City Carton and/or Eagleview Properties owns. Krumm referred to comments by the applicants and supporters that there would be no problem getting tenants, but that is hardly the standard by which this decision should be made. He said the comment that the project would make the property look better is not the test here. He said the public safety of the individuals who will occupy the residences should be the major concern. Krumm stated that the letter from Downes contains several errors of fact. He referred to Downes' opinion that the area should not be commercial and City Carton would be better off moving to somewhere else. On the contrary, City Carton has prospered at this for a long time, has every intention of continuing to do so, and does rely on the railroad at that location. In response to a question from Keitel, John Ockenfels identified himself as the President of City Carton and said that they plan to use the property purchased in October in their long range plans. Ockenfels said that this is the only industrial area left in the central region of Iowa City without having to go out to the Industrial Park. He said they don't have the facilities City Carton needs in the Industrial Park. He said their business has to have access to railroad and to big trucks. He said they are the largest recycler in Eastern Iowa and have a lot of equipment coming and going, which is why they acquired the other properties for their future plans. Ockenfels said they ship out over 200 cars a year on CRANDIC from this site. He said that there are anywhere from 50-70 trucks, trailers, cars coming back and forth dropping material off at that recycling site to the back side of the building during the course of a day. He said they are slow right now because at the turn of the year it is always slow. He said that the City did one study and almost immediately put in the stoplights at the corner of Capitol and Benton because it is the only way to get to downtown Iowa City from the west. Ockenfels said they are an industrial site, they have industrial equipment, they will have trucks coming and going, and they use the right-of-way of Lafayette St., which is a current open City street. He said that from the center of the alleyway all the way to the river is owned by City Carton or Eagleview. He said they own the property touching the subject property on the south and on the west entirely. Iowa City Board of Adjustm inutes January 9, 2002 Page 6 Ockenfels stated that if housing is built in the area, it would put constraints on what they do as industrial. He said there is a natural buffer to the industrial zone — the Iowa Interstate Railroad overpass. He said everything to the north is apartments and commercial, and to the south is commercial and industrial. He said everything on the west side of Capitol Street is industrial and commercial. He said there are currently no living quarters there at all. He suggests the City not go around the natural buffer. Ockenfels said that, in reality, the project is residential. He said the plan has been to load as many residential units as possible on top of the ground floor warehouse space. However, this proposal is not something that is compatible with the area. In response to a question from Keitel, Ockenfels said they did not try to buy the subject parcel. He said because of the fact that their priority at the time was on the other properties they purchased. Tim Zimmerman identified himself as a representative of the Cedar Rapids and Iowa City Railway. He said this is a spur line now, but up until a year ago it was their main line. It connects down to Hills, and is also their connection to the Iowa Interstate Railroad just past Maiden Lane. He said that two days a week they come down through Iowa City/Coralville, and they do switch over 200 cars a year at City Carton. He said their biggest concern is the safety factor for the people in this area. He said there are no signals on Capitol Street; people get used to hearing the trains and don't pay attention to them. Tom Gelman said he appreciated the comments and concern about public health and safety from Mr. Zimmerman, however, he does not think it is unique to this site but everywhere along that line. In addition, he said that concern about complaints being made to the City and City Carton may be reasonable or unreasonable concerns, but should not be grounds to either deny or reject the request for special exception. He said those matters can be handled by other ways. Gelman stated that he does not understand how the industrial use of City Carton has been long established on that property and a good corporate and industrial citizen will be jeopardized by the project. He said City Carton had the opportunity to purchase the property. Gelman stated his client is willing to make a substantial investment to improve the property, is willing to provide a convenient, close -in residence for people who are likely to rent the property, and to provide an appropriate setting to do so. Gelman said that the bottom line seems to come to welfare and safety, which is a very nebulous, general and subjective standard. He said the reality is he is at a loss to see where the danger and risk is. He said that this special exception should be granted unless there is a clear and apparent demonstration that somehow the public's best interest will not be met; whether it provides a real safety risk, or not the same sort of risk that any number of property may have, but an extraordinary and special risk that is associated with this property. Public Hearing Closed Motion: Paul moved to approve item EXC01-00026, a special exception to permit dwelling units above a ground floor warehouse use in the Intensive Commercial (CI-1) Zone at 729 S. Capitol Street. The motion was seconded by Maurer. Holecek said that Mr. Gelman stated the burden is on the City staff to show detriment to the public health, safety, welfare or general welfare. She said this is a misstatement of the standards. She said that there is no right to a special exception; it is incumbent upon the applicant to meet the standards as the Board finds the facts that have been presented to them. Iowa City Board of Adjustmer�Iinutes January 9, 2002 Page 7 She said it is necessary that the Board find that there is not that type of detriment, and it is incumbent upon the applicant to make that case. Howard said that special exceptions are "special", which is why they come before the Board. She said that the intensive commercial zone is primarily intended for intensive commercial uses, and special exceptions are intended to be special and exceptions to the types of uses intended for this zone. She said that to the extent that the proposed special exception tends to supplant what is intended for the zone, it may be a detriment to the neighborhood. Findings of Fact Paul stated that the staff report refers to a similar incident in 1996 wherein the Planning & Zoning Commission considered the matter but decided on a split vote against changing the Code language. He said that the Commission felt that the Board of Adjustment could carefully consider applications for residential uses of intensive commercial uses on a case -by -case basis. He said he believes that is a good idea, and there is no doubt that Mr. Kidwell has met the specific standard as far as square footage being adequate for his project. Paul said that as far as the standard of endangering the public health, safety and comfort and general welfare and improvements of neighboring properties, and as far as being consistent with the intent of the Comprehensive Plan, he has a problem in that none of the residential properties referenced by the applicant as being similar to the subject property were located directly adjacent to an industrial use as intensive as City Carton. He said his concern is not the railroad tracks; he is concerned that if City Carton decided to sell and move and a more intense use came in, that would affect those residents to a greater degree than City Carton is presently or will in the future. In addition, given the size and orientation of the lot he said he does not see any way for Mr. Kidwell to buffer the project adequately from surrounding intensive commercial and industrial uses. Paul stated that he will vote against approval. Maurer stated he agrees with both sides to a large extent. He said one of the things that stand out is that in the commercial industrial zone there appears to be at least three other properties that have this same basic situation with commercial on the lower floor and apartments on the second floor. He said that seems to make it very difficult on the zoning issue to say that this project should not be approved. He said that safety is a factor, but is primarily a factor of the people who are going to live there. Maurer stated he will vote in favor of the application because the zoning seems to allow this to take place, even though he believes the main reason for the building may be residential versus commercial on the first floor, and it is an obvious improvement. Keitel said he can see merits on both sides. He said he is not sure it is the duty of the Board to be concemed about tax revenues. He said this property is unique and cannot be compared to the other properties highlighted in the map that Musser provided, because none of those other ones have an industrial use adjacent to it. He said the railroad tracks are not the big issue; the big issue is the industrial use of City Carton and is the exception going to be a detriment to the surrounding uses. He said the buffering issue is a concern. A fence would just hide the problem. Keitel said that he believes indications are this is primarily a residential use and the applicants are going to put a warehouse on the bottom floor just because they have to. He said that the intended use of the area is for more intensive commercial uses and the residential use really cannot be buffered nor should the area be allowed to transition into a residential area. He said if the developer wants to do this, they should look at trying to rezone this particular parcel. He said he would vote against the application. Iowa City Board of Adjustrn inutes January 9, 2002 Page 8 Brandt stated the proposed new building would be a vast improvement over the buildings that are currently on the site. He agrees the railroad is not a big concern for safety issues. He said the biggest concern is with 36 apartments above a commercial space. He said he sees a definite conflict with vehicular traffic with the residents in the apartments versus the truck traffic generated in the industrial use zone by City Carton. He said he will vote against the exception for those reasons and because of the possible conflict to the City and City Carton as this is zoned as highly intensive industrial commercial use. He said if the proposal was primarily commercial rather than residential, it may promote him to vote in favor. The motion failed on a vote of 1-3, Maurer voting in the affirmative. Ity iew artners for a s ciai ex tion to permit off-street parking in the Central Business (CB-10) Zone at 217 Iowa venue. Howar stated that except for hotels and elderly housing, private off-street p in is not permitted ' the CB-10 zone without a special exception. She said the City h s a fairly well defined par ' g policy downtown. She stated that this application is for 22 un rgoound parking spaces for a w mixed use building on Iowa Avenue which will repla he First Christian Church. Howard said the prop sed underground parking would have access ff the rear alley that runs between Dubuque and n Street. The parking facility would not viewed from Iowa Avenue, but will be totally undergro d. toward stated that the polic of restricting parking dow wn is intended to promote ensity commercial and residen ' I development in dow, own to foster pedestrian orientE long downtown streets and to r duce overall con stion in the central business dis urface parking lots take up valuable owntown prop that might otherwise be used for n ctive uses. The City has made an effo to provid adequate parking in the downtown thrc ublic parking facilities. In light of this vest nt, the Board should consider whether roposed private parking will be in direct co ition with this public parking system. 3rd said that after reviewing/kindf do staff feels that the requested parking will n rmine the City's downtown py for number of reasons. First of all, she said tt rground parking is the bestking yo can have downtown becauseyou canr it, it doesn't interrupt the environm t, and provides needed parking for ;ular use. H wever, Howard stated t t staff wanted to make sur the parking would not be to th d triment of the viability o the.ground floor commercial spa e. In order to accommodate th u erground parking th irst floor commercial space is elevate about 28 inches above grad . St ff feels that the c mmercial space is less viable if there re not clear views into th co mercial apace f m the sidewalk. In addition, staff wanted to ake sure that the frontag al ng Iowa Avenu was usable commercial space and not all entryw and steps. She said th t aft r working w' h the applicant on the design of the interior co ercial space and th en ays, th believe that the proposal is acceptable. She said that a design of the ent int the co ercial space will show that this is clearly a commercial use o he ground floor. Fin Ily, oward said that staff does not feel that the provision of 22 off street rking spaces t 217 1 a Avenue will undermine the effectiveness and viability of the public rking syste pro ' ed that it is used as long-term parking. She said that the parking requ ted will no ex d the parking demand of the building. However, staff feels that the parking hould be clear y signed as reserved for tenants of the building and not used for short-term stomer parking. The rear alley cannot accommodate the congestion that could result from short-term parking. There is a public parking facility nearby for customer parking. Prepared by: Karen Howard, Associate Planner, 410 E. Washington, Iowa City, IA 52240; 319/356-5251 DECISION IOWA CITY BOARD OF ADJUSTMENT WEDNESDAY, JANUARY 9, 2002 — 5 P.M. O EMMA J. HARVAT HALL n MEMBERS PRESENT: Mike Paul, Dennis Keitel, T.J. Brandt, Vincent Maurer ` MEMBERS ABSENT: None STAFF PRESENT: Karen Howard, Shelley McCafferty, Sarah Holecek N OTHERS PRESENT: Duane Musser, Kevin Kidwell, Tom Gelman, Tom Lepic, Tim Krumm, John Ockenfels, Tom Rowald, Tim Zimmerman (CRANDIC), Jim Clark, Cindy Parsons, Scott Kaeding, Ann Connors, David Chamberlain, Jim Petrain, Richard Haendel, Austin Chamberlain, Chuck Polfliet, Carol Peters, Eric Gidal SPECIAL EXCEPTION ITEMS: 1) EXC01-00026 —Public hearing on an application submitted by Kevin Kidwell for a special exception to permit dwellings units above a ground floor warehouse use in the Intensive Commercial (CI-1) Zone at 729 S. Capitol Street. Findings of Fact: The Board finds that the proposal for ten apartments on the subject lot, which contain .42 acres, does not exceed one dwelling unit per 1,800 square feet of lot area. The Board finds that the proposal for 10 apartments containing a total of 34 bedrooms above 2,437 square feet of undefined warehouse space is more intensively residential than commercial in nature and may supplant or discourage the use of property in the CI-1 zone for the intensive commercial uses that are intended for this zone. In addition, the Board finds that due to the industrial and intensive commercial character of this location, in particular its location directly adjacent to an active industrial zone, existing industrial uses, and the railroad tracks, makes this a potentially unsafe and unhealthy location for residential uses. The Board finds that the industrial activity, noise and considerable truck traffic from the existing industrial uses permitted on the adjacent properties create a situation that is incompatible with residential living. The subject property is too small to provide any meaningful buffer from the industrial uses that currently exist in the area as well as any that may locate there in the future. Conclusions of Law: The Board concludes that the proposed building meets the density requirement for residential uses above a permitted use in the Community Commercial (CI-1) Zone. However, the Board concludes that the general special exception review standards (14- 6W-2B) have not been met. Specifically, the Board concludes that the specific proposed exception is likely to be detrimental to or endanger the public health, safety, comfort or general welfare and will likely be injurious to the use and enjoyment of other property in the immediate vicinity. The Board also concludes that the specific proposed exception may impede the normal and orderly development and improvement of the surrounding property for uses permitted in the zone in which such property is located. Disposition: On a vote of 1-3 (Maurer), the Board denies EXC01-00026, a special exception to permit dwellings units above a ground floor warehouse use in the Intensive Commercial (CI-1) Zone at 729 S. Capitol Street. City of Iowa City 111��1y1�1-Inim Big 1I To: Board of Adjustment From: John Adam Date: 14 May 2003 Re: Opening statement for Board meetings On the 23rd of April Dennis Keitel and I attended a Planning and Zoning Workshop for Local Officials sponsored by the ISU Extension. One of the presenters, Stu Huntington, had once served on Ames' Board of Adjustment. During his discussion on Board procedures he handed out a sheet [see attachment] containing an opening statement read at the start of each meeting. Dennis and I thought it conveyed useful information and he suggested the Board may wish to adopt something similar. I've drafted a statement —not very different from Ames' —and it's included below. If you are in general agreement about using it I can make up a large -print copy for the next meeting: The Board of Adjustment is a quasi-judicial body created by the City of Iowa City according to State statutes. The Board's purpose is to decide on applications for variances from the Zoning Ordinance, appeals of decisions of City officials, and applications for special exceptions requested under the Zoning Ordinance. As one of Iowa City's boards and commissions we welcome all testimony. We base our decisions on facts and evidence allowed by City Code presented in open meeting. Concise and truthful testimony helps us a great deal in our decision making. If the proceedings become lengthy, we may ask that testimony be focused on new facts or on evidence not already presented. We ask that if you wish to speak, please come to the podium, sign in, and speak clearly into the microphone so your testimony will be recorded in the event of further litigation. We ask that the proceedings be orderly and that when you are testifying, you address your remarks to the Board. We are an independent volunteer board made up of citizens and not part of the City administration. We are served in our efforts by the City Attorney's office and Planning Department staff. The order of proceedings for each application will be: • An oral report by staff summarizing the issues of the case and staff's recommendations; • An opportunity for the applicant to speak; • An opportunity for any other interested parties to speak for or against the application; • An opportunity for final statements and arguments by the applicant and staff; • The Board will discuss the issues and evidence, state its findings, and vote on a motion; Motions are always made in the affirmative. AMES., (owA OPENING STATEMENT ZONING BOARD OF ADJUSTMENT The Zoning Board of Adjustment is a quasi-judicial board created by the City of Ames. The board's purpose is to decide on applications for variances from the Zoning Ordinance (Chapter 29 of the Municipal, Code), appeals of decisions of the Zoning Official, and applications for Special Permits and for Exceptions requested under the Zoning Ordinance. As a Board of the City, we welcome all testimony. We make our decisions based on the facts and evidence allowed under city code, presented in open meeting. Testimony before the board must be given under oath or affirmation. If the proceedings become lengthy, we may ask that testimony be focused on new facts or evidence not already presented. We ask that if you wish to speak, please come to the microphone so your testimony will be recorded in the event of further litigation, and we ask that the proceedings be orderly. When you are testifying, please address your remarks to the board. We are an independent volunteer board of citizens and not part of the city administration. We are served in our efforts by a City Attorney, staff members from the Planning and Housing Department, and from the City Clerk's Office. The order of proceedings for each application will be: an oral statement summarizing the issues and procedural steps presented by the staff, followed by testimony and evidence presented by the applicant. Any member of the audience wishing to speak for or against the appeal may testify next. The board will then give the applicant and the city staff an opportunity to present final summaries and arguments. Finally, the board will discuss the issues and evidence leading to a decision. STATEMENT FOLLOWING THE VOTE ON A MOTION The motion is declared approved (or denied). Any person desiring to appeal this decision to a court of record may do so within 30 days after the filing of this decision. City of Iowa City To: Board of Adjustment From: John Adam Date: 14 May 2003 Re: Newspaper and planning newsletter clippings Two articles are included for you read and ponder. The USA Today article is about walkable cities and health effects. The article from Downtown Idea Exchange covers the benefits of downtown grocery stores and strategies for keeping them alive. F1JIexs send Leafs home Philadelphia destroys Toronto 61 in Game 7. NHL.1, 8C ♦ By Suzy Parker. USA TODAY Fi v Byl USA H that laut of d to li earl M foal cod prof crii blat olol ant duo enq wor plan den N/z V03 of UMAk UCLWCCII Hnaith experts tunding statues Continued from 1A the country's largest health care philanthropy, is spending $70 mil- lion over five years on studies and programs to make it easier for peo- ple to walk in suburbs, cities and towns. "We want to engineer rou- tine activity back into people's daf- ty lives," says Kate Kraft, the foun- dation's senior program officer. that means we need to start cre- ating more walkable, bikeable communities. „ For decades, cities, towns and suburbs have been developed on the assumption that every trip will be made by car. That has all but eliminated walking from daily life for people in most parts of the country. Americans in fewer than 6% of their daily trips on foot according to studies by the Feder Highway Administration. Three-quarters of short trips, `Cover story Federal walk. its not necessarily for on exer- cise, but simply g from place to another. College towns and cities with militar�r bases also have high rates of wallang, Census data show. Houses and workplaces are near each other. If people don't walk to work, they often walk to public transit In November, Oakland became one of a few large cities to pass a pedestrian master plan. The city already has a walking -friendly de- sign because it was laid out at the turn of the 20th century along streetcar lines. Nevertheless, city officials want to make sure that people can walk to a new rapid - transit bus system. That will mean spending money to upgrade side- walks and intersections near the transit stops. "It's back to the future. We go ing to have this transportation sys• a tem where you don't need tc drive;' says Tom Van DemarkI di rector of Oakland's- pedestrian safety project. in newer cities, especially those h has mile or less, are made by car, feder- b al studies show. .- Children don't get much more of w a workout. Fewer than 13% of Stu- m dents walk to school. That's partly t because regulations for school h construction effectively encourage ti building schools on large sites at vi the edge of communities, beyond p walking distance for most stu- d dents, according to a National Trust s for Historic Preservation report Federal health statistics show that nearly 65% of Americans are overweight and that 31% are obese, or more than 30 pounds of over a healthy weight A big part the cause is all that driving and not enough walking. "Obesity is not just (that)ess re eating more. We're getting ac- tivity. People just don't walk that much:' says Tom Schmid, head of the CDC's' Active Community ronments program. Why you can't walk there from here: ► Spread -out neighborhoods. Bigger -houses on bigger lots mean neighborhoods stretch beyond walking distance for doing errands. ► Zoning. Residential neighbor- hoods are tar from jobs and shop- ping centers, even schools. ► Reign of cars. Roads are built big and busy. Intersections and crosswalks are rare. Shopping cen- ters and office parks are set in the middle of big parking lots, all of which have become dangerous places to walk. In many cut-d - suburbs and along shoppingstrips, sidewalks dolt exist Suddenly, the crowded city looks healthy. In old, densely built cities such is New York and Boston, people the Sun Belt where gro oomed since 1950, walking any - here is not easy. Families wanted ore space for their children, so hey moved to single-family ouses With yards in big residen- al neighborhoods. obs and ser- ces, like shopping, followed peo- le to the suburbs, away from the owntown that could easily be erved by public transit. Hopping into sUVs Half of Charlotte's streets have sidewalks: Serafin Contrearas smooths wet concrete for a new sidewalk in Charlotte in February. Even in places designed to be walkable, things have changed. Victoria Talkington, a lawyer and mother of two children, lives north of San Francisco in Mill Valley, on the slopes of Mount Tamalpais. A network of paths and steps con- nects roads that switch back along the mountainside. The footpaths lead from downtown into elevated residential neighborhoods. But in the hundred years since the paths were laid out, they had fallen into disuse. Instead, people drive down the roads. "People with SUVS and kids have moved in, and they've displaced people who knew about the paths," says Talkington, a planning commission member. Near her house is a path with a ggrreat view of the mountain. "No- body who lived within a hundred yards of it knew about it," she says. So she took a pruner and cleared the overgrown path last fall. Now, people occasionally use it Steven Gayle, director of the transportation system in Bingham- ton, N.Y., is running seminars on pedestrian improvements, paid for y the Robert Wood Johnson Foundation. "What we really need Popular cities for walking to work Where people walk most Where people walk least 1 Metropolitan areas' with the highest percentage of people who walk to work: New York Boston Philadelphia Pittsburgh Rochester, N.Y. Metropolitan areas with Lite lowest percentage of people who walk to work:. Charlotte Atlanta Memphis Orlando Kansas city West Palm Beach and Boca Raton Where pedestrians get hit The 10 most 1. orlando & ]acksonville d 7. Houston, Galveston an dangerous met- ropolitan areas' 2. Tampa, SC Petersburg and Clearwater, Fla Brazoria, Texas Mesa,nix and rhz for pedestrians 3. West Palm Beach and g Dallas and Fort (some areas in- clude more than Boca Raton 4. Memphis 10. Nashville one city): S. Miami and Ft. Lauderdale t _ With populations sources:'surrace Transportation policy Project "Mean Streets 2002" ofmote than 1 million report; 2000 census, Sur tt Transportation Policy Prolect By Marcy E. Mullins, USA TODAY to do is redesign our communities so that people walk as a matter of course, the way they used edto Sd, do:' Gayle says. "Hopping Your to drive to the park to walk on the trail for 20 minutes and hopping in the car to drive home is not what we need to see:' Public health advocates are well - funded allies for advocates of "smart growth," who criticize sub- urban sprawl and development. They have been arguing for a dec- ade that communities should be walkable. Neighborhoods should be built with shorter blocks, small- er yards and streets that connect to each other rather than dead- end. Stores and offices should be close to or mixed with residential neighborhoods, they say. The Urban Land Institute, group for developers and planner estimates that 5% to 15% of nev development follows the pried pies of "walkable" neighborhood Nearly 1.6 million homes wer built in 2001. 'There's a big awareness of th issue in the planning communit that walkable places are nicer an sometimes are more economical viable:' says Reid id Ewing. au University professor an upcoming study on sprawl al health. "rhe question is, are th healthier? Thats really the nt wrinkle." To find the answer, the CDC a the Robert Wood Johnson Founc 1 neighborhood, obesity tion are juriding studies such as the one in Atlanta. The public health experts want to find out what kind of neighborhood designs and ame- nities have a statistically y significant link to increased walking. Some metro areas are taking steps to make their cities pedestri- an -friendly, either by upgrading neighborhoods with sidewalks and crosswalks or changing the rules for building developments. Lots of people walk in Rochester, N.Y. And enough people commute by bicycle that city buses are equipped with bike racks. But "the suburbs are built without side- walks and without adequate shoulders on the -roads; says Bill. Nojay, chairman of the regional transportation authority. Last year, the region spent $5 million to upgrade walking and biking trails that connect the 19 towns in the county surrounding Rochester. 'Shocked into it' Fewer people walk to work in Atlanta and Charlotte than in any other large metro areas, according to Census data But both cities are trying to make walking easier. They want to focus development around public transit and spend money on sidewalks. In Atlanta, poor air quality from traffic congestion forced the issue. The region -could not spend federal transportation funds on new high- ways until it came up with a plan to improve air quality. "The only projects we could build were the small projects geared toward the pedestrian," says Tom Weyandt oftheAtlanta Regional Commission, the metro area's planning agency. "So in a sense, we were sort of shocked in- to it.,, The region is spending $175 mil- lion to build 385 miles of sidewalks by 2005. That's a small slice of the regi'on's 16,000 miles of roads and ho- ways. But $350 million more over 10 years will go to transportation projects tied to the development of higher -density, mixed -use areas. Those will be mostly pedestrian improvements, Weyandt says. In Charlotte, fewer people walk to work than any other metro area of more than 1 million people. The city also made the top 10 "fattest cities" list in the February issue of Men's Fitness magazine. But a master plan adopted by the city in 1998 calls for develop- ment to be clustered along light - rail and rapid -bus lines to encour- age people to walk to public tran- sit. The city now requires new subdivisions to have sidewalks and few cul-de-sacs. Also, the city is hiring a " pedestrian, coordinator" to work with developers. Voters approved a $10 million bond issue in November to build sidewalks in places that never had them. Less than half of Charlotte's 2,800 miles of streets have side- walks on one or both sides. Most of the motivation for these changes has been to cut down on traffic and pollution. 'The community health aspect of it is one that's just emerg.[�g as a topic," says Danny Pleasant, depu- ty ' director of transportation for Charlotte. Public health vs. the good life Many people, of course, get physical exercise regardless of where they live. And for good or ill, a suburban house in a bedroom community is to many people the American dream. "A large part of what some people can sprawl is what other people call affordable housing, jobs, -highways that go somewhere and get you there," says Daniel Fox, president of the Milbank Memorial Fund, a health policy research foundation based in New York. Builders of suburban neighbor- hoods and office parks often view a walkable development as expen- sive to construct, hard to get past local planning agencies and diffi- cult to finance, says Clayton Traylor of the. National Association of Home Builders. Also, ,the main component of walkable neighborhoods is densi- ty, or the number of people er square mile — but density is what many homebuyers are trying to get away from. "It's just our own definition of what the good life includes, which is a couple of cars and a house on the cul-de-sac," says Kraft of the Robert Wood Johnson Foundation. 'The good life means you can be a couch potato." That may mean Americans don't want to walk regardless of what public health experts urge. "Population health is what the population says it is," Fox says. "Why can't Americans change their values? Why can't everyone in Texas, instead of going to high school football games, spend their. Friday nights exercising? Well, that's the way it is, folks." Even so, those pushing for wal- kable developments hope that a public health approach will be more palatable than talking about smart growth and sprawl. 'Too many people just don't care at all about design or sprawl," says Adrienne Schmitz of the Urban Land Institute, based in Washing- ton, D.C. "But when you start talk- ing health, its a real hot button." Retail Downtown grocery stores contribute life, traffic to the community Grocery stores are an important part of any vibrant downtown. Residents need a place to shop, downtown employees appreciate the convenience of being able to pick up a few things before head- ing home, and grocers are one of the few types of retailers that are needed and frequented by just about every demographic. "If there's any hope to keep an active, vibrant downtown, you need a grocery store," says Bill Ryan, business development specialist at the University of Wisconsin Exten- sion Center for Community Econ- omic Development. Grocery stores are often an important anchor for downtown, bringing a significant amount of customer traffic, he explains, adding that downtown grocers often serve a sizable in - town market that includes the elder- ly and residents without cars. Big box stores crush competition But with superstores sprouting like weeds across the country, many (Continued on page 3) Town design frustrates American desire to walk A recent random poll of 800 Americans age 18 and over finds that most people would like to walk more but are stifled in that desire by poor town design and danger- ous intersections. In the poll, commissioned by the Surface Transportation Project, more than 55 percent of respon- dents said they would prefer to walk more rather than drive but don't because things are too far to get to, there's too much traffic and too few sidewalks, or there is a high rate of crime. Other reasons cited included lack of time, laziness, and physical limitations. The full study, along with an executive summary is available online at www.transact.org/library/ reports_h tml/pedpoll/pedpoll. asp Inside this issue New federal tax credit program hits the streets ... 2 Strategies for keeping a grocery store downtown ... 3 Citizens pay for murals in Lindsav.................5 More SBA -backed loans ... 7 Downtown grocery stores- continued from page 1 local downtown stores are being pushed out of business by mammoth facilities that can afford "loss lead- ers" — items priced below super- market costs — to attract customers. "I'm seeing an awful lot of Super Wal-Marts under construc- tion, and it's taking the stuffing out of small grocers," Ryan says, adding that with the rise of "super- stores" (general merchandise and food) on the edge of town, many smaller grocery stores have closed. The new stores are able to offer plenty of parking and a greater variety of products at lower prices. Some smaller grocers close their doors for fear they can't compete, while others react to the new com- petition with the wrong strategies and lose market share. In either case, their departure often leaves downtown residents underserved. Many downtowns can testify to that first hand, with large spaces that once housed a supermarket now standing empty. Richard Riesbeck, president of the 12-store grocery chain Riesbeck's in southeast Ohio, told the Columbus Dispatch that sales in his stores drop by 10 per- cent when Wal-Mart grocery stores arrive in town. New strategies keep stores downtown Some grocery stores are fight- ing back — either through alliances with the community or by rethink- ing their traditional roles. Riesbeck added that stores unaffected by Wal-Mart's arrival are those that offer different products, such as deli, bakery, and meat counters. "Those are areas we've identified as our areas of strength, and they have been virtually unaffected," Riesbeck said. Festival Foods, in New London, WI (pop. 7,000), has suc- cessfully flourished downtown, even replacing its original small grocery about three years ago with a successful new 47,000-square- foot store open 24 hours. Mike Coppersmith, owner/ president of Festival Foods, says he considered building his new store outside the downtown, but encouragement from the city and locals caused him to stay down- town. Coppersmith and his grocery supplier both did surveys to find out what residents wanted. "The feedback we got from the community encouraged us to build downtown," he says. "The city knew that if we left, the whole downtown area could potentially be a ghost town" Ryan agrees, saying Community strategies for keeping a grocery store downtown Community assistance can go a long way toward attracting and keeping a grocery store downtown. Let's Talk Business, a publication of the Center For Community Economic Development, University of Wisconsin -Extension, addresses the ways communities can help gro- cers, and how grocers can compete. "Keeping a grocery store down- town," written by Neil Loehlein and Bill Ryan and including research from numerous sources, is available online. Here are some of their tips for downtown organizations and municipalities concerned with keeping or attracting a grocery store. • Seek municipal assistance. If a grocery is recognized as a critical service for community residents, the local municipality may be able to offer a financial assistance package to help the store upgrade and commit to staying in town. Recently, $150,000 was provided to help keep a grocer in downtown Akron, OH (pop. 217,000). Similarly, the mayor of Scranton, IA (pop. 600), formed a committee to help the com- munity buy a closed grocery store through the sale of stock. • Establish a co-op. A cooperative provides employees and regular customers the ability to become paying members, giving them a say in the store's operation. Residents become shareholders with a nominal membership buy -in. Memberships allow discount purchases or end -of - year refunds, although purchases can also be made by nonmembers. Often, members donate their time running the store. • Create a marketplace. A marketplace is similar to a farmers' mar- ket, but in a permanent enclosed structure. Local vendors operate in spaces for bakery, meats, produce, wine and liquor, and other items. They rent space from a grocer who owns the building and operates the packaged goods space. If done properly and in the right market, a marketplace can provide a unique destination shopping experience. • Conduct a market analysis. To coexist with new superstores, downtown grocers should offer products and services that the super- stores do not offer. They must gain customer loyalty through consistent value and a good shopping experience. A market analysis can be very useful in developing repositioning strategies. Contact. University of Wisconsin Extension, (608) 263-4994, fax (608) 263- 4999, bill.ryan@uwex.edu, www.uwex.edu/ces/cced/BDS.htm/. May 1, 2003 • Downtown Idea Exchange • 3 that in many small towns, the avail- ability of a grocery store is a signal of a community's viability. Copper- smith's new store has even attracted other retailers, including a new hard- ware store and a national chain video rental store, to downtown. Coppersmith says he knows he's made the right choice, and it's reflected in his sales. He doesn't have to compete with nearby box retailers on price. "Downtown has been good to us thus far," he says. "Just because Wal-Mart is a mile out of town, doesn't mean Wal-Mart is the place to go" City loans improve store While Coppersmith says he's gotten little more than verbal encouragement from New London city officials, in Reedsburg, WI (pop. 7,800), the city has taken a more active role in retaining Jubilee Foods, located one block off Main Street in the historic downtown. "Reeds - burg has a history of assisting this store to remain viable for the downtown area," says Dave Waffle, city administrator in Reedsburg. The approximately 28,000-square-foot store, with its own parking lot, is one of the key anchors of downtown, he says. Jubilee serves its own community and others living west and south of the city. The immediate neighbor- hood is a low- to moderate -income area, with significant walk-in traffic. Immediately adjacent to the store are a liquor store, a dry cleaner, a Laun- dromat, and a post office. The store, which was built in 1986 to replace a smaller grocery store and other dilapidated struc- tures, was funded in part by a low -interest loan from the city's Community Development Block "The city knew that if we left, the whole downtown area could potentially be a ghost town." Grant (CDBG) Small Business Revolving Loan Program. The store was such a success that the $360,000 loan was repaid in half of the time allowed for maturity. Downtown Action Plan includes market More recently, a group of city officials and downtown businesses got together to develop a Downtown Action Plan, recognizing that rede- velopment of certain properties, like those around Jubilee, was necessary for the downtown to thrive. The action plan has led to the creation of two Tax Increment Finance (TIF) districts, one of which was spurred by Jubilee. "[The western down- town] TIF was created with the principle aim of keeping this store from `going dark,"' Waffle says. "We acquired and removed some blighted properties in the area already to spur redevelopment" The new plan calls for expansion of the store, as well as additional retail space around a plaza. Several dilapidated buildings adjacent to Jubilee Foods have been demolished and replaced with a bank and more retail space. More parking was created. Redevelopment encourages redevelopment As in New London, redevelop- ment is spurring more redevelop- ment. Elsewhere in the TIF, a historic woolen mill office has been restored, and there are improvements in sever- al other buildings. Waffle says the city, through its Community Devel- opment Authority (CDA), is ready to assist with property acquisition for parking lots, reconstruction of streets, and other public improvements. He adds that the CDA's involvement to date has consisted of planning, con- sultation, analysis of contaminated soils, and appraisals of property. "City officials are poised to assist the owners of Jubilee Foods when they are ready to proceed with their pro- ject," he adds. Jubilee Foods is thriving, despite the construction of two Super Wal- Marts, both less than 15 miles away, and a new 87,000-square-foot Viking Foods store across town. "Jubilee has met the competition by remodeling, changing wholesalers, and maintain- ing the convenience and quality for which the store is known," Waffle says. "You cannot believe the posi- tive customer reaction to a new inventory of shopping carts!" Ryan says Jubilee is a good example of a downtown grocery adapting to changing times. "This store has really focused on the local market and encouraging loyalty," Ryan says. Contacts: Dave Waffle, dwaffle@ci. reedsburg.wi.us, www.reedsburg.cont; Bill Ryan, (608) 263-4994, fax (608) 263-4999; bill.ryan@uwex.edu. 4 • Downtown Idea Exchange • May 1, 2003