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
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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
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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 --
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,4' i - TYPICAL
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I N CARRYAMLlVERY tR�LOPED LAND
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( N 21'01_61" W - 224.9969)
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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
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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.
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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
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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
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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
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NOTE: Conditions. In permitting a special exception, the Board may impose appropriate
conditions and safeguards, including but not limited to planting screens, fencing, construction
commencement and completion deadlines, lighting, operational controls, Improved traffic
circulation requirements, highway access restrictions, increased minimum yard requirements,
parking requirements, limitations on the duration of a use or ownership or any other
requirement which the Board deems appropriate under the circumstances upon a finding that
the conditions are necessary to fulfill the purpose and intent of the Zoning Chapter. (Section
14-6W-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)
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STATE OF IOWA
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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
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SITE PLAN
LOT 1 & 2 EASTDALE MALL ADDITION
IOWA CITY, IOWA
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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.
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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