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HomeMy WebLinkAbout05-12-2004 Board of AdjustmentAGENDA IOWA CITY BOARD OF ADJUSTMENT MEETING WEDNESDAY, May 12, 2004 — 5:00 PM EMMA J. HARVAT HALL A. Call to Order B. Roll Call C. Consider the March 10 and April 14, 2004 Board Minutes D. Special Exception Item: EXC04-00009 Discussion of an application submitted by Alan Boettcher for a special exception to allow the re-establishment of two lots of record to permit construction of a single-family house in the Low Density Single -Family Residential (RS-5) zone located at 1002 Friendly Avenue. E. Other F. Board of Adjustment Information G. Adjourn NEXT BOARD OF ADJUSTMENT MEETING JUNE 9, 2004 �F MINUTES PRELIMINARY ADJUSTMENT ravall IOWA CITY BOARD OF ADJUS Subject t0 l�.p}i MARCH 10, 2004 — 5:00 PM-�-_ -- EMMA J. HARVAT HALL — IOWA CITY CITY HALL MEMBERS PRESENT: Carol Alexander, Dennis Keitel, Michael Wright, Karen Leigh, Vincent Maurer MEMBERS ABSENT: None STAFF PRESENT: Robert Miklo, Sarah Holecek OTHERS PRESENT: Joe Holland, Mike Haverkamp, Lowell Brandt, Helen Buford, Jay Berry, T. J. Brandt CALL TO ORDER Chairperson Keitel called the meeting to order at 5:02 PM. CONSIDERATION OF THE FEBRUARY 11 2004 BOARD MINUTES Chairperson Keitel asked if there were any corrections or additions to the minutes. There were none. MOTION: Alexander moved to approve the February 11, 2004 minutes as submitted. Wright seconded the motion. Motion carried 5-0. APPEALS APL04-00002 Public hearing regarding an appeal submitted by Steve L. Droll of a decision of the Senior Housing Inspector regarding the maximum occupancy or number of roomers permitted at 428 E. Jefferson Street in the Residential/Office R/O zone. Miklo first reviewed various photos and layouts with the Board to familiarize them with the property in question. He then explained the nonconforming status of the duplex in terms of the zoning regulations with both lot size and parking requirements. A duplex is to have 4 off-street parking spaces, and this property contains only 1 off-street parking space. Miklo also gave a brief zoning history of this property. Prior to being zoned R/O Residential/Office in 1993, the property was zoned Central Business Service zone, or CB-2. The CB-2 zone did not allow residential uses on the ground floor. The property was, therefore, nonconforming then in terms of the previous zoning designation. Prior to being zoned CB-2 in 1983, the property was zoned R3A Multi -Family, and in 1976 when this property was converted to a duplex, it had this zoning. The R3A zone requires 2,500 square feet of lot area, per dwelling unit of a duplex, or 5,000 square feet. The property only had 3,320 square feet at that time so it did not have the 5,000 square feet necessary for a duplex. The Senior Housing Inspector is recognizing this property as a nonconforming duplex in the current R/O zone. However, because the property does not contain sufficient lot area or parking spaces, it is the Inspector's position that roomers are not allowed. Roomers would not be considered a legally nonconforming use because they are provisional use, which was never legally The established on this property under the current RIO zone, or the previous zones which applied. Inspector has determined that the applicant has the right to rent each unit of the duplex to a family, which may include two unrelated persons. However, because the right to have roomers, a provisional use, was never legally established on this property, roomers are not permitted, according to the Inspector's determination. In order for the property to take advantage of the provisional use, allowing of roomers, it would need to comply with the lot area and off-street parking requirements. The issue of over -occupancy of this particular property has come to light because of a recent directive by the City Council to improve enforcement of zoning ordinances. The City Council passed an ordinance requiring an Information Disclosure and Acknowledgement Form for each property. On this form the number of legal occupants is noted. The Council directed Housing and Inspection Service Department to establish the maximum permitted occupancy for rental units, based on building, zoning, and housing codes. Iowa City Board of Adjustment Minutes March 10, 2004 Page 2 Section 14-6W-2A of the Zoning Code grants the Board of Adjustment the power to hear and decide appeals, where it is alleged there is error in any order, requirement, decision or determination made by the City Manager or designee, in the enforcement of the Zoning Chapter or any ordinance adopted pursuant thereto. In this case the designee is the Senior Housing Inspector. Appeal cases differ from Special Exceptions, which the Board often hears, in that you are not being asked to allow a use based on compatibility with the neighborhood or subjective considerations, but rather the question before the Board is whether the Housing Inspector made a mistake when applying the law. In making his decision, the Inspector relied on Section 14-6T-2A of the Zoning Ordinance, the Regulation of Nonconforming Uses. This section of the ordinance and the subsection Continuation of Unlawful Uses states: nothing in this chapter shall be interpreted as authorization for the continuation of the use of a structure or land established unlawfully in violation of the zoning regulations in effect prior to the effective date hereof. In this case the Inspector has determined that the provisional use of roomers on this property was never legally established. The property currently lacks, as well as previously lacked, lot area and the required number of parking spaces in order to have roomers. In order to find the Inspector made an error, the Board would have to find that the roomers were legally established on this property, under a previous zoning designation. The Inspector has determined that at no time in the past did this property contain the required number of parking spaces, or sufficient lot area to permit roomers. The Inspector also relied on the Section 14-6T-3A, Regulation of Nonconforming Uses, Enlargement or Alteration. This section states that no nonconforming use shall be enlarged, nor shall a structure for a nonconforming use be constructed, reconstructed, structurally altered or relocated on the lot. In order to get at the issue of enlargement, the Inspector relied on the definitions in the Zoning Ordinance, which define enlargement as "an increase in volume of building, an increase in the area of land or building occupied by a use, or an increase in the number of occupants or dwelling units." In this case it's the increased number of occupants that applies. Based on these laws, the Inspector has determined that the roomers at 428 E. Jefferson Street, would be an enlargement, or an expansion, of a nonconforming use. As stated previously, the single family home on this property was converted to a duplex in 1976 when the property was zoned R3A. At that time the property did not contain, nor does it contain today, sufficient lot area or parking spaces to allow roomers. Although there is some question as whether even a duplex would be allowed under the R3A zone, the Inspector is recognizing this as a duplex and is permitting each unit of the duplex to be occupied by a family, which may include two unrelated persons, but would not include roomers. In order to an or an expansion find a nonconforming property uses theduplex, oard with wou d have to findroomers, thatsthenot roomers werenlargementlegally established. The applicant's position seems to be that this property has a history of being rented to five unrelated occupants, two in the second floor unit, and three in the first floor unit; and that the City should continue to allow the five unrelated occupants. Allowing the five unrelated occupants would only be possible legally if the use of the property as a duplex with roomers was legally established. Although the actual occupancy over the years may have exceeded what was permitted by zoning, the excess occupancy is not permitted by the nonconforming provisions of the Zoning Code. To allow roomers in this case would be an expansion of the nonconforming use, contrary to the Zoning Code, under the sections previously cited. Maximum densities are set by the zoning ordinance to prevent overcrowding, to assure that each dwelling unit has sufficient open space, and to control the level of demand on City services and infrastructure. The Residential/Office zone allows a relatively high density when compared to other parts of Iowa City. It allows 24 housing units per acre. The current use at 428 E. Jefferson Street has a density equivalent of 26 housing units per acre. It is important in nonconforming situations that the limit on the number of roomers is upheld. To allow additional roomers would compound the nonconforming density in this situation. Although allowing roomers at 428 E. Jefferson Street may appear insignificant, to do so would grant this property special privileges that other property owners do not have. With the recent establishment of the Informational Disclosure and Acknowledgement Form, the City and many property owners are discovering that properties have been exceeding the number of occupants legally permitted by codes. Such properties are being required to come into conformance with the current Iowa City Board of Adjustment Minutes March 10, 2004 Page 3 codes, rather than continue at a level of occupancy that is not allowed by the zoning law. To allow properties to exceed these maximums undermines of the zoning ordinance. In summarizing the staff's findings, Miklo states that the property at 428 E. Jefferson Street is nonconforming with respect to the density requirements of the Residential/Office zone. The property is nonconforming with respect to the minimum number of parking spaces. A duplex is required to have 4 parking spaces, and this property has only 1. The provisional use of allowing roomers was never legally established on this property. Adding the provisional use at this time would be the expansion of a nonconforming use, which is clearly not allowed by the Zoning Code. After considerable deliberation, the City Council adopted the Informational Disclosure and Acknowledgement Form, and instructed the Housing and Inspection Department to enforce existing zoning, building, and housing codes. Uniform enforcement of these codes has lead to the identification of properties such as this, which are over - occupied and are now being required to comply with City ordinances. Special rights should not be granted to certain property owners merely due to the fact that they or previous property owners exceeded the number of lawfully permitted occupants. Based on these findings, staff concludes that in making the determination of occupancy at 428 E. Jefferson Street, roomers are not permitted. The Inspector correctly applied Section 14-6T-2A, Regulation of Nonconforming Uses, General Provisions and Restrictions, and the Continuance of Unlawful Uses. The Inspector also properly applied Section 14-6T-3A, Regulation of Nonconforming Uses, Enlargement or Alteration, which states "no nonconforming use shall be enlarged nor shall a structure with a nonconforming use be constructed, reconstructed, structurally altered or relocated on a lot", and in making this determination, the Inspector relied on the definition of enlargement which includes no expansion of number of occupants. Based on these findings and conclusions, staff recommends that this appeal of the decision of the Senior Housing Inspector for the property at 428 E. Jefferson Street be denied. In concluding, Miklo stated that Norm Cate, the Senior Housing Inspector, is present this evening to answer questions as well. Maurer asked for a legal description of a roomer. Miklo read from the Zoning Code: "Roomer, an occupant of a rooming house, or a rooming unit, who is not a member of the family of the rooming house operator. A roomer shall also mean an occupant of a dwelling unit who is not a member of the family occupying the dwelling unit." Holecek suggested Miklo also define family. Miklo again read from the Zoning Code: a family is defined as "one person, or two or more persons related by blood, marriage, adoption, or placement by a government or social service agency, occupying a dwelling unit as a single household, housekeeping organization. A family may also be two, but not more than two persons, not related by blood, marriage, or adoption." Leigh asked for clarification of the distinction between a roomer and an unrelated person to the family who is living with that family in that unit. Miklo explained that "family" may consist of two unrelated persons, and they are able to occupy a dwelling unit." Once a third unrelated person moves into that dwelling unit, they are considered a roomer. Keitel then asked Cate, Housing Inspector, how this particular property was discovered as being nonconforming. Cate explained the background of the situation, stating that every two to three years they are out doing inspections for rental permits. With the directive from the City Council on determining maximum occupancies, this property came up for inspection and this became an issue. Discussion then turned to whether or not a possible variance could be done on this property, and the various legalities involved. Holecek concluded that the applicant could apply for a variance and they would have to show that they met the three tests for a variance in order for the Board to approve a variance. Public Hearing Opened Joe Holland, legal representative for Mr. Droll and his partner, stated that there were many nuances in the zoning ordinances from 1976 and earlier. He said Board of Adjustment is a common sense body, which is intended to put a buffer between the technical rigidity of the zoning ordinance the public and the manner in which the ordinance is enforced. He said he hoped that this is the perspective of the Board. He asked that the Board put itself in the position of those in the audience. He said that he finds it troubling about these proceedings that the Board receives the staff report before the meeting. He said the Board should not take the report as gospel. He said the applicant is at a disadvantage because at this point no one has advocated for the applicant. Iowa City Board of Adjustment Minutes March 10, 2004 Page 4 He addressed the Board on the validity of the staff report, and the history of this particular property. The City has no records prior to 1976. According to records, the owner in 1976 was George Sondag. Holland gave the Board Chair a copy of a building permit application from 1976 (Exhibit 1). He said this permit was for an alteration on the property, which he said was already a duplex at this time. The work was converting a porch into a bedroom. A lot of the facts surrounding this property are missing due to the passage of time. Prior to 1976, the property was occupied; part of it was occupied by the owner and part of it was occupied by her family, in two separate units. He said that the building permit indicates this property was a duplex at the time, and also indicates the property was R3B, and not R3A as staff has noted in their report. Holland pointed this out to show that records are very sketchy from that time frame. Holland gave a second item to the Board Chair (Exhibit 2), which is a copy of a letter dated 1977 from a housing inspector, with a Certificate of Compliance attached. This meant that the property in question had met or exceeded the minimum housing standards established by Chapter 9.30 of the City Code. Holland stated that what's really driving this appeal is the issue of parking, not the issue of occupancy. There is plenty of room for four people in this duplex. Unfortunately, Exhibit 2 indicates it meets Housing Code. Zoning enforcement was not done by Housing Inspection at that time. He goes on to state that on the 1976 building permit (Exhibit 1), item 9, number of off-street parking spaces required, is blank, so we really don't know what parking was required at that time as far as the Building Department was concerned. Holland next gave copies of specific pages from the zoning ordinance, pertaining to 1976 and 1977, to show what was in effect during the time period they are looking at for this property. He said he understands that the Board members are volunteers and may not be well versed in statutory interpretations. Therefore, he would try to simplify it. He pointed out again the discrepancy between the staff report showing this property in an R3A zone, versus his findings of an R313 zone. He said as he reads it, you could have a duplex with up to five unrelated persons per dwelling unit, provided parking is provided (or up to ten persons per duplex). He stated that if the garage were torn down, this would free up space for another, possibly two more, parking spaces. He said that he thinks staff is mistaken about the lot area. He then addressed the issue of lot area, stating that the requirement in 1975 was a minimum lot area of 500 square feet per dwelling unit, and this property has approximately 3,300 square feet. He said for a duplex you would only need 2,500 square feet of lot area. According to current standards however, this property clearly does not meet the lot size. In looking at the R3A and R313 parking requirements, he pointed out that this requirement is to take place .'at the time the use is created, or structurally altered". There have not been any major structural alterations on this property, so this should not be an issue. Holland then discussed conforming uses versus nonconforming uses, and the major changes in the City's zoning changes over the years. He went on to express the desire for the Board to review this appeal carefully, based on the facts as they know them to be, and how that fits into the scheme of the current ordinances versus the historic zoning ordinances. He said although this property does not have required parking spaces, the Code says that at the time a use is created or structurally altered it has to comply with parking requirements. It could be argued that enclosing the porch was a structural alteration, but that is debatable. He said it is the applicant's position that this property was legally created as a duplex and that it should be allowed to continue as a legal nonconforming use. The city may say it is not legally conforming. But he said he had tried to show the Board from the admittedly vague information that this was a duplex. He said that the Board of Adjustment should apply common sense. He said he thought that it would be difficult to prove one way or another when this property was converted to a duplex. Reasonable people can disagree, but he did not think that one could take the staff report or Mr. Cate's letter as gospel. Holland repeated that historically this property has had 5 occupants. He said the City Housing Inspectors in the past had told the applicant orally that you could have 5 occupants. He said that he also had represented someone who put an offer on this property but who latter withdrew it when the City said you could not occupy this property with 5 people. That offer was for $215,000. There currently is an offer for $192,000. This interpretation results in a very real loss in value of this property. Iowa City Board of Adjustment Minutes March 10, 2004 Page 5 Holland said he is asking what is a fair and logical interpretation of the facts and how this fits in with the scheme of the current zoning ordinance and previous zoning ordinances. He said what this comes down to is what fair to the applicant and the City. Maurer asked for clarification on when the current owner purchased the property, and what its use has been. Holland explained the series of owners since Sondag in 1976, and stated the property has always been a duplex, as it is now. He stated that Mr. Droll purchased the property in 2001. Wright asked if the property is currently for sale, and Holland stated there is a pending offer. Leigh asked about the zoning status in 2001, and Holland stated it was R/O. Keitel asked for clarification on the bedroom in the basement, and the compliance issues surrounding the window size. Holland said there was a Notice of Violation and evidence that it was corrected based on a letter from the Building Official. Keitel then asked about putting in more parking spaces, and whether or not the current owner is willing to improve upon the situation. Holland replied that they would be but have been held up due to the issues at hand. The new owner, he states, would most likely want to improve the situation. Keitel asked if there was an alley to provide access to the parking. Holland said that there is but that there is an intervening property with an easement between this property and the alley. Alexander then questioned Section 14-6T-2A, which the Housing Inspector cited, and asked Holland to clarify his stance on this issue. She asked if this application of this section was incorrect. He said yes. Holland stated that it comes down to when this property was converted to a duplex. Miklo stated he had some information in that regard. He said that on March 4`h he spoke with Barb Sondag, a previous owner, and she related that she and her husband bought this property as investment property from a woman who lived there with her son, giving more background to the 1976 time frame. Holland said he spoke with George Sondag who indicated in 1976 it was a duplex with one woman living in one unit and her son and daughter-in-law living in the other. Holecek questioned that the issue here is not whether or not the property is a duplex, but whether the roomer has been legally established. Holland disagreed, saying the issue is parking and whether or not there was lawful parking, and if it was legally established parking at the time that a roomer could live in the property. He said since they don't know when this became a duplex, that they then don't know what the parking requirements were at that time. Keitel asked where the tenants park. Holland said some don't have cars or park on the street or on this property. Miklo said he had additional information regarding questions Mr. Holland had raised. Miklo stated that on the building permit it does show this was zoned R315, and in checking the zoning maps from the 1970's it does in fact show this as R3A in 1976. He said the building permit apparently had an error, but noted that both R3A and R3B required 2,500 square feet per family for a two-family dwelling so even then the property did not conform in 1976, regardless of whether it was zoned R3A or R3B. He then discussed the copy of the letter from a previous housing inspector that stated the property complied with city housing codes. He said this is not an indication that it conformed with zoning codes, and that only recently did the City housing inspectors go back and check properties for conformance with zoning codes. Holland agreed. Maurer questioned whether or not the sale of a property triggered an inspection by the City, especially in a rental unit. Cate responded that only the rental permit itself triggers an inspection to the property, changing ownership does not affect this. Mike Haverkamp of 109 N. Van Buren addressed the Board, and stated that he had talked to Anita Cochran of 430 Jefferson. He said that Cochran and he are both neighbors of this property. He asked if she had any concerns she wanted him to raise with the Board. Cochran is 97 years old, and he is bringing her list of concerns to the Board. He himself does encourage the Board to support the City staff in allowing this to remain a duplex, but not allow the additional roomers. He said that Cochran mentions several concerns she's had, and he has had the same concerns himself. He said this year's tenants have been good, but previous tenants were not, and Cochran had mentioned she had had to call the police frequently due to loud noises and parties, and even her renters have had to call the police because of problems. He said Cochran said the last family to live there was the Ricky's, who sold it to Sondag. Haverkamp stated that he has lived at 109 N. Van Buren for 18 years. He said 428 Jefferson has been a duplex that entire time, and that he has no problem with that. He said the issue is extra roomers, which Iowa City Board of Adjustment Minutes March 10, 2004 Page 6 means more people on the property. He said parking is a huge problem, and he gave a copy of the easement, from 1985, to the Board. The easement allows vehicles to cross over his property to access the garage at 428 Jefferson Street. He then explained the property lines, and his fence line. He stated that two years ago the tenants were a real problem. He said they were very loud, and police gave out 140 tickets that year for illegal parking in the area of question. He said parking is a big problem. He asked the Board to support the City's decision to allow the property to remain a duplex, but to deny the application for the additional roomers. He said the properties are very dense in this neighborhood, and he has a problem with allowing it to be even denser. Cate stated that in regards to this property, what has never been established is the necessary parking, nor the provisional use of roomers. He then responded to questions from the Board regarding the fact that with or without roomers, there is still a parking problem as this property only has one parking space. Maurer said if this reverts back to a duplex without roomers, this property still has a parking problem. Lowell Brandt of 824 N. Gilbert spoke in favor of the City's recommendation. He said he was in an older neighborhood and supported enforcement of the zoning ordinance. Having been on the Board in the.past, he stated that he realizes the seriousness of issues such as this, and asks that they use objectivity in making their decision. H said he knows the Board does not rubber stamp the staffs recommendation. He said he realizes that this may be a precedent as many people may appeal the decisions of the City to enforce the law. He said there is no question about the application of the laws pertaining to roomers. He said he hopes that the Board does not determine that just because the ordinance has not been enforced in the past is a reason to allow a violation to continue. He said he works in the criminal justice system and he often hears people say it is not wrong as long as you don't get caught. Helen Burford of 604 Ronald Street expressed her support of the City's decision, stating that the North Side has seen many changes over the years, mainly due to the zoning changes. She said the neighborhood is fragile, and she feels that enforcing occupancies is becoming more and more important in order to have livable neighborhoods. She said higher densities may lead to nuisance problems. Jay Berry of 430 Church Street also spoke in support of the City staff's recommendation. His biggest concern is density issues, and he feels that enforcement of the zoning regulations are helping to bring this and the parking issues more into line. Nothing he has heard from the applicant has lead him to believe the appeal should be granted. Holland stated that in his opinion emotional comments from the public have no relevance in this hearing. He said the issue is whether or not the inspector made an error, not density or parking; and he asked that they keep that in mind, as the real issue is an interpretation of the zoning ordinance and the facts specific to this property. Holecek responded to Holland's statement, and stated that it is the opinion of the City Attorney's office that the public does have standing to participate in an appeal hearing. As far as relevance of emotional appeals, she agrees with Mr. Holland, that the Board is charged with applying the facts, and to determine whether or not the housing official has made an error in applying the law to the facts. She reiterated that the issue is not whether or not this property will continue to be allowed as a duplex, but rather the issue is the roomer, and whether or not the roomer has been established as a legally nonconforming use. They have to look at whether the facts before them show that the housing official has made an error in determining that the roomer was never established as a legally nonconforming use. Miklo added that statements from an adjacent neighbor as well as from Holland himself indicate that a mother lived on one floor, and the son and daughter-in-law lived on the other floor as late as 1976, so even if it was a duplex in 1976 there is no evidence that roomers lived there prior to 1976. He also said roomers are a provisional use —provided parking is provided. In 1976 a duplex with roomers would have had to have four parking spaces. It is clear that there are not four parking spaces today, nor were there in 1976. Maurer asked if anyone knew when roomers did start living on this property. Miklo said as late as 1976 a family occupied this building. Holland responded that nobody really knows. Holland stated that the issue of roomers being a provisional use has to do with the regulation now, but in 1976 it wasn't an issue. Holecek stated that the determination of the housing official is that there has not been a legally established provisional use of the roomer for a number of reasons, one of which is the parking, and the absence of parking. She said she does not agree that once a duplex is established you automatically get roomers. Holland stated again that in 1976 it was not a provisional use issue. Iowa City Board of Adjustment Minutes March 10, 2004 Page 7 Miklo stated that the 1976 ordinance reads as follows: "two family dwellings provided, however, that no more than three persons not members of the family may room in each living unit, provided that off-street parking is provided." Miklo also said that once a nonconforming use is abandoned, even if it had been established legally as a duplex with roomers prior to 1976, it appears that in 1976 a family lived there without roomers, and they would have lost any nonconformity at that time. No one has brought forward evidence to indicate that roomers were ever legally established. From the records the building inspector relied on, roomers were never legally established. Alexander asked for clarification on Miklo's statement, and he replied that yes, the duplex would have been required to have four parking spaces in 1976, as well as 5,000 square feet of lot area. Holecek noted that since it doesn't appear during the continuum of time between '76 and today that a roomer was present, it seems incumbent that in order to say that the housing official has made an error, there needs to be some showing that the roomer was indeed legally established and continued. She said there's the absence of parking, which we know today would be a nonconforming use, so there needs to be a continuation of that established use. Public Hearina Closed MOTION: Leigh moved that regarding an appeal submitted by Steve. L. Droll of a decision of the Senior Housing Inspector regarding the maximum occupancy or number of roomers permitted at 428 E. Jefferson Street in the Residential/Office R/O zone, to uphold the decision of the Senior Housing Inspector and to deny the appeal. Alexander seconded. Maurer asked a question of Holecek concerning the outcome if the Board were to overrule the Inspector's decision, and he wanted clarification on the parking issue. Holecek said if the Board upholds the decision of the Inspector, there would fewer occupants and less need for parking. Maurer asked what if they overturn the decision. Cate said they would still need to provide parking. Keitel asked that the motion be amended to include the clause: provided the appellant provides at least one additional parking space, then a roomer would be allowed in the unit with 3 bedrooms. Wright asked that they vote on what's on the floor. Holecek stated that the motion was to uphold the decision and deny the appeal. Keitel asked for her clarification on how they could add this wording. She stated they could phrase the motion as: to approve the appeal, provided that the owner provide one additional parking space, off-street parking on the property, or a special exception for off-street parking in order to get the roomer. Cate next addressed parking requirements questions from the Board. He stated that there have to be 4 off-street parking spaces on the property in order to be in compliance. Keitel said unless there is a variance given for parking elsewhere. Alexander asked if it was in their purview to deal with the parking. Keitel said the Board could do what it wants. Holecek said the parking issue was not on the agenda. Holecek noted that the motion on the floor at present is: to uphold the decision of the housing official and deny the appeal. Alexander said she would vote in favor of the motion as stated. She said that as best as can be determined by the evidence before the Board, she feels the housing inspector made a correct determination on the roomer issue. Wright stated that he also will vote in favor of the motion. The history is certainly hazy, he stated, and he feels this has been a nonconforming use for some time. This would be an extension of a questionable non -conformity. Leigh said she will also vote in favor of the motion. She said she does not believe there is evidence that a roomer has been legally established, and she feels there is a responsibility of any property owner to use the property within the confines of the zoning law. Maurer stated that in looking at this situation, the roomer issue would never have come up if the parking wasn't a problem to begin with. Although roomers have existed for a long time the parking has not been provided, as it is not possible to provide more parking here. He will also vote in favor. Keitel stated that he is voting to not uphold the decision of the Senior Housing Inspector, as he believes that the exhibits presented by Mr. Holland do establish precedence that when this property was expanded with the third bedroom in the basement, the intent was clear that it was for three unrelated individuals. He feels the use was established. He did state that the owner should try to make some effort to add parking. Iowa City Board of Adjustment Minutes March 10, 2004 Page 8 The appeal was denied and the decision of the Senior Housing Inspector was upheld on APL04- 00002, by a 4 to 1 vote. SPECIAL EXCEPTION Public hearing regarding an application submitted by Regina Catholic Education Center for a special exception to permit expansion of a religious institution, specifically a school, for property located in the Low -Density Single -Family (RS-5) zone at 2140 Rochester Avenue. Keitel stated that for the record, he is a Roman Catholic, but does not feel there is any conflict of interest under this from his standpoint. Miklo then presented the staff report on this application. He pointed out the existing school in photos, and explained the planned expansion project, which will consist of a 48' x 82' one-story addition to the current west wing of the facility. This one-story addition will contain 4 classrooms. In addition, the applicant wishes to construct a 100' x 175' two-story addition to the northwest corner of the building in an area currently occupied by a parking lot. The addition will consist of a kitchen, a multi -purpose room, restrooms, and classrooms. There are three requirements that religious institutions must meet in order to proceed with this project, including a minimum lot size of 40,000 square feet, a setback requirement, and access to a collector or arterial street. Miklo stated that all three are being met, as well as the general standards that must be met. He highlighted Item d. Adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided, stating there have been concerns about drainage in the general neighborhood west of this property. Staff is recommending that all drainage be directed to the north to Ralston Creek so that it does not add to the existing problem in this neighborhood. Before issuance of a building permit, the applicant must show how they will handle the drainage. Item e. asks that adequate measures have been or will be taken to provide ingress or egress designed so as to minimize traffic congestion on public streets. As noted in the staff report, the City has received many complaints about the traffic in this area, and there have been some improvements made — a center turn lane in front of the school, and improvements to the traffic signal at First and Rochester. These changes have improved some of the traffic congestion, but there still are concerns about peak traffic times. Because of these continuing traffic concerns, staff has raised the issue of another entrance off of First Avenue. Miklo pointed out on the map where this area is, and questioned if there is an easement there that would allow another driveway to the school. He did follow up with the point that this exception may not create any increase in traffic, but in the future if there are applications for further expansions, these concerns would need to be addressed. At that time a traffic study should be conducted. He next addressed Item f., which deals with the application meeting the standards of the code, and stated that the parking issue is explained in detail in the staff report. Another concern is fire access. A fire access road is required unless the Fire Marshall approves an alternate fire safety plan. The Fire Marshal is working with Regina to design such an alternative plan, which may include a requirement that portions of the building be served with a fire suppression system. He added that this would be a second condition which would need to be met before building permits are approved. Staff is recommending this special exception for an expansion of a religious use in the low -density single- family zone at 2140 Rochester Avenue. They recommend approval subject to two conditions: 1) the Fire Marshal's approval of an emergency vehicle access drive or alternative fire safety plan; and 2) the site plan illustrate how storm water will be directed north to Ralston Creek. He reiterated that staff is not recommending that a driveway to First Avenue be required at this time, but they are emphasizing that any future additions to the school that would result in an increase in traffic should not be approved unless the applicant provides a traffic study that demonstrates how the additional traffic can be adequately accommodated, and that traffic study should address the feasibility of the First Avenue connection. Public Hearing Opened Iowa City Board of Adjustment Minutes March 10, 2004 Page 9 T. J. Brandt appeared before the Board to represent Regina Education Center. He stated he is the Chairman of the Building & Grounds Committee at Regina, and they are in the process of finalizing plans for a $3.1 million addition, classroom addition, cafeteria addition, to better serve their student population. He then discussed the parking issues, and some of the history surrounding the building and grounds, as well as the parking. He detailed the changes to the driveway and parking areas, and the one-way traffic pattern that is hoped to alleviate some of the congestion. Brandt stated that the Fire Marshal said they could put in a fire hydrant to deal with the issue of fire protection, as well as put in sprinkler systems. In reference to the drainage problem he stated they are working on that and will be having another meeting soon. Maurer asked Brandt if there were any limitations on parking, to which Brandt replied there were no limitations. He then pointed out in the photos just how they will address the issue of parking, and showed the fence line where the track is. Maurer then asked when they hoped to break ground, to which Brandt replied either late April or early May. Public Hearing Closed Keitel commented about the detention pond, stating that at the time the track and soccer complex were built down behind Regina Education Center, he worked for a company that did all of the consulting work for the detention basin, the future parking lot drainage, and all of the drainage issues at that time. He said they did everything at that time with the expansion in mind, and had City approval on this with the master plan, and that the detention pond does have to stay the way it is in order to handle the drainage appropriately. With regard to an access road down along the track, they looked into this at the same time, and additional easements would be needed before anything could really be done. MOTION: Leigh made the motion to approve a special exception to permit the expansion of a religious institution in the RS-5 zone, conditioned upon the Fire Marshal's approval of an emergency vehicle access drive or alternative fire safety plan, and a site plan that will illustrate how storm water will be directed north to Ralston Creek. Alexander seconded. Maurer stated that he would vote in favor of the motion before the Board. He sees no reason to vote against this move forward. Alexander stated she would also vote in favor as it meets the conditions set forth for a religious institution, and that with the provision for the drainage being set forth, that she agrees with the exception. Keitel stated he would also vote in favor, and feels it will improve property values in the neighborhood. Wright stated he had nothing to add to the statements already made and said he will also vote in favor. Leigh stated she is agreeing with the previous comments as well. The motion passed with a vote of 5 to 0. OTHER None. BOARD OF ADJUSTMENT INFORMATION None. ADJOURNMENT Maurer moved to adjourn; seconded by Wright. The meeting adjourned at 7:00 PM. Board Chairperson data on citynt/pcd/minutes/boa/2004/boa03-10-04.doc Board Secretary MINUTES E&$nb!Jew':cttoIN IOWA CITY BOARD OF ADJUSTMENT APRIL 14, 2004 Approvall EMMA J. HARVAT HALL MEMBERS PRESENT: Karen Leigh, Carol Alexander, Michael Wright, Dennis Keitel (arrived @ 5:32pm) MEMBERS ABSENT: Vincent Maurer (Absent / Excused) STAFF PRESENT: Robert Miklo, Karen Howard, Mitch Behr, Sarah Holecek OTHERS PRESENT: Duane Brenneman, Mark Russo, Allan Berger, Ralph Stoffer, Jack Lester, Sue Nelson, Jennifer Brown, Jenn Berger, John Roffman CALL TO ORDER: Alexander called the meeting to order at 5:11 pm. CONSIDERATION OF 3/10/04 MEETING MINUTES: Miklo said the minutes would be available for the Board's next meeting. OTHER: Motion: Wright made a motion to elect Alexander as temporary chairperson of this meeting until Keitel arrived. Leigh seconded the motion. The motion passed on a vote of 3-0. Motion: Leigh made a motion to amend the Agenda. Special Exception Items F-1 then F-3 would be considered first. (Item F-2. EXC04-00006 had been deferred until the next meeting at the request of the applicant.) Wright seconded the motion. The motion passed on a vote of 3-0. SPECIAL EXCEPTION ITEMS: EXC04-00004, discussion of an application submitted by Duane Brenneman on behalf of The Church in Iowa City for a special exception to allow a Religious Institution in the Commercial Office Zone (CO-1) at 2040 Keokuk Street. Miklo said the property contained an existing building and parking lot. There were no significant changes proposed in the layout of the property. The applicant had recently asked City Council to amend the CO-1 zone to allow religious institutions by special exception on properties of less than one -acre in size. That amendment had been reviewed by the Planning and Zoning Commission and City Council and was approved. The applicant was currently applying for a special exception to allow a religious institution on this property. Miklo said there were a number of General Standards that applied to special exceptions. With the recent amendment to the Zoning Code, there were not Specific Standards required for religious institutions in the CO-1 zone, but it did require that applications be reviewed by the Board of Adjustment. For religious institutions in a CO-1 zone, the applications were reviewed on a case -by -case basis using the General Standards used for special exceptions. He reviewed the General Standards as listed and commented on by staff in the Staff Report dated April 14, 2004. Miklo said based on Staff's opinion this application met the General Standards necessary for approval of a special exception and Staff recommended approval of EXC04-00004. Public discussion was opened. Duane Brenneman, The Church in Iowa City, thanked Staff and the Board for their efforts. Public discussion was closed. Board of Adjustment Minutes April 14, 2004 Page 2 Motion: Leigh made a motion to approve EXC04-00004, an application for a special exception to allow a religious institution in the Commercial Office Zone (CO-1) at 2040 Keokuk Street. Wright seconded the motion. Leigh said the application met all the General Standards and the existing property conformed to the application regulations and standards so there was no reason not to approve it. Wright said he agreed with Leigh for the reasons stated by her. Alexander said she would also vote in favor of the motion. It would not be injurious to the use and enjoyment of other property in the area and didn't appear that it would impede the normal and orderly development and improvement of the surrounding property. Staff had indicated that there would be adequate utilities, access roads, drainage, and that the hours this facility would be open seemed such that there would not be difficulties with ingress or egress. The motion passed on a vote of 3-0. EXC04-00008, an application submitted by Mark and Diana Russo for a special exception to reduce the front setback from 20 feet to 14 feet for a distance of 14 feet, measured from the southeast corner of the house, for the addition of a screened -porch to the historic church building located at 614 Clark Street subject to approval of the porch construction drawings by the Historic Preservation Commission. Miklo said this was a corner lot property. The underlying zone was RS-8, Medium Density Single -Family with an overlay Conservation District zone which required review and approval by the Historic Preservation Commission of major alterations to a building. The area where the reduction in setback had been requested was in the area of the existing stoop/entry way. The applicant had requested a modification of the front yard to allow a screened -in front porch. The existing building was located 22-feet back from Seymour Street. The required setback was 20-feet which would allow for only a two -foot addition if the existing setback were followed. The applicant had requested that a portion of the front yard be reduced to allow an 8' x 12' screened -porch which would require a reduction of the front yard setback from 20-feet to 12-feet on the south side of the property. Miklo said when special exceptions for yard reductions were reviewed, the Board looked to the language in the Code which indicated that in order for a special exception to be approved there should be some factors such as a unique situation and practical difficulty. This property was unique in that it was a religious institution or church that was built in a residential zone therefore its structure and position on the lot were somewhat unique. There was very little room left for additions to the property and there was a unique architectural feature, an aspe, on the east side of the property that the Historic Preservation Commission had indicated should be preserved which would prevent the addition of a porch to that side of the structure. Miklo said in terms of practical difficulty, given the aspe of the church which was located on the east side of the structure, there really was no practical way to add on to the building to make it more residential in nature. Miklo said in addition to the two previously cited considerations, the Board should also consider if this was a significant, moderate, or minor reduction in the yard. In Staff's view, this was a fairly minor alteration of the yard. Miklo reviewed the Specific and General Standards and Staffs comments listed on pages 3 and 4 of the Staff Report dated April 14, 2004. Miklo said in general, Staff found that this application met the Comprehensive Plan's desire to preserve historic neighborhoods and at the same time would allow this existing structure to be used as a residential property. Staff recommended approval of EXC04-00008, an application for a special exception to reduce the front setback from 20 feet to 12 feet for a distance of 14 feet, measured from the southeast corner of the church, for the addition of a screened -porch to the historic church building located at 614 Clark Street subject to approval of the porch construction drawings by the Historic Preservation Commission. Public discussion was opened. Mark Russo, 614 Clark Street, said he and his wife had purchased the building approximately two years ago. Prior to purchasing the church, they had decided that it was a building worth saving. He had been Board of Adjustment Minutes April 14, 2004 Page 3 working on the restoration for the past two years. The entry stoop in question was quite heavy, had not been properly footed and was literally falling off. A structural renovation was necessary. After speaking with Staff and members of the Historic Preservation Committee, it had been decided that a structure that essentially matched the mass and proportions of the existing structure would have minimum impact on the building. Russo said he didn't wish to damage the building and there really was no where else to go without damaging the visual construction of the building. The porch would not actually be 14-feet, the distance from the edge of the building to the first window would be 14-feet, allowing for overhangs, etc. The porch would actually be between 12- to 13-feet long and only 7-feet deep. Russo had asked for 8- feet in order to be able to adequately deal with all requirements. Public discussion was closed. Motion: Alexander made a motion to approve EXC04-00008. Leigh seconded the motion. Keitel said he would vote in favor of the motion. The proposed front yard setback would not be detrimental to the property in question; the Stipulations of the Guidelines had not been violated. Alexander said she would also vote in favor of the motion. This truly appeared to be a unique situation, converting a church building into a single-family residence; there was practical difficulty because of the historic preservation concerns; there didn't seem to be any feasible alternatives in lieu of the special exception. Wright said he would vote in favor of the motion for the previously stated reasons. It certainly was a unique situation and the proposed setback would not alter appearances radically from others in the neighborhood. Leigh said she would also vote in favor of the motion. She agreed with the points made in the Staff report that this was not inconsistent with other neighborhood buildings and represented a substantial investment in the neighborhood. The motion passed on a vote of 4-0. APPEAL: AP04-00003, an appeal submitted by Allan L. Berger of the written interpretation issued by the Iowa City Zoning Code Interpretation Panel on March 1, 2004 regarding animal clinics in the Highway Commercial (CH-1) Zone and of his appeal that veterinary establishments be considered auto- and truck -oriented uses.. Howard said Berger had posed two questions to the City: 1. Are small animal clinics allowed in the Highway Commercial Zone (CH-1)? 2. Are emergency veterinary establishments auto- and truck -oriented uses as defined in the Iowa City Zoning Ordinance? Howard said the City had responded both verbally and in writing to Berger. The Staff Report provided additional evidence and support of the City's position that small animal clinics were not allowed in the Highway Commercial Zone and that emergency veterinary establishments were not considered auto- and truck -oriented uses such that they would be a permitted use in the CH-1 zone. Howard said Berger had relied to some extent on an analysis done by Ralph Stoffer, his consultant, in trying to figure out a way to allow his proposed veterinary establishment on a particular property along Highway 1. Howard reminded the Board that this appeal was not about a particular property, it was about the Zoning Ordinance and how it was interpreted for all properties in the Highway Commercial zone and for all commercial development in all commercial zones. Howard said Berger had carefully crafted his case, the language in the Zoning Code could be interpreted in his favor, the question before the Board is whether the City made an error in its interpretation and application of the Zoning Ordinance. The Zoning Code was written over 20 years ago and has been amended many times, so the language of the current version could be confusing in some cases. She said some of the confusion in this case was between the words 'allowed' and 'permitted'. It was the case with the Zoning Ordinance that sometimes the word 'allowed' and the word 'permitted' were meant to be a specific thing and sometimes they were meant to be interpreted generally. In some cases, it is necessary Board of Adjustment Minutes April 14, 2004 Page 4 to look at the whole structure of the Code to figure out how it should be interpreted. Howard said Berger had made a case to interpret the Code a certain way. Staff and the City felt that the way Berger had interpreted the Code would undermine the very structure of how the Commercial Zone sections of the Zoning Code. That is out of Staffs primary concerns. Howard said it was not enough for Berger to show that the Code could be interpreted differently. He must convince the Board that the City had actually made an error in interpreting the Code in the way that it had. If the Board was going to find for Berger, they needed to state in their findings why and how the City had made an error in their interpretation of the Code. Howard said the language in the Code was intended to provide rules for all development in all zones so it was important to look at the structure of the Code, "Would the particular interpretation undermine the structure of the Code?" She said the argument in this case centered around the fact that CH-1 zone listed office uses allowed in the CO-1 in its Permitted Use section of the CH-1 zone. The actual language in the Commercial Office zone section, "Offices which do not carry on retail trade activities and do not maintain a stock of goods for sale to customers except for those retail establishments specifically allowed in this zone. Any office use shall be permitted excepting the following, (A) Drive -In facilities and (B) Small Animal Clinics." Howard said that language was referred to in many of the other commercial zones including the Community Commercial zone and the Intensive Commercial zone. Howard said this was essentially where the City felt that Berger's argument fell down. The Code very specifically states which zones small animal clinics are allowed in. She said, for example, in the Community Commercial zone it had the same language that referred to office uses allowed in the Commercial Office zone, but also specifically stated that small animal clinics were allowed as a provisional use. There are three types of uses, Permitted, Provisional, and Special Exceptions. The Board most often reviews cases regarding special exceptions. Howard said it would not make sense for the Code, as Berger had implied, to allow small animal clinics as a special exception whenever that language occurs in the commercial zone sections and also specifically allow small animal clinics as provisional uses in the same zone. That clearly showed that it really was not the intent of that reference to the CO-1 zone. Howard said another thing that has been pointed out in the Staff Report was that there was a timing issue involved which may have caused some of the confusion with the existing Code language. It was not until 1996 that the Commercial Office zone was amended to allow small animal clinics as a special exception. Prior to that, this reference from other commercial zones to the CO-1 zone was already present in the Code and it was not until 1996 that small animal clinics were added as a special exception to that zone. Howard said that was another piece of evidence that would point to the fact that the intent was to very specifically cite where small animal clinics were allowed and where they were not. Howard said with regard to the second question, "Are emergency veterinary establishments auto- and truck -oriented uses as defined in the Iowa City Zoning Ordinance?", auto and truck oriented uses have always been considered uses that either served persons while they were in their cars such as drive- throughs or they were uses that provide services for vehicles such as providing services for trucks or automobiles such as gas stations, auto repair shops or auto rental places. Emergency veterinary establishments did not fall into either one of these types of auto and truck oriented uses. Berger had stated that he intended his clinic to draw traffic from outside the City. However that was true of a lot of commercial establishments in Iowa City, such as the hospitals and clinics that drew from a larger region. Most of the City's commercial zones are specifically located along arterial streets with good access to the City's street network. Many commercial uses would consider a location at a highway interchange to be advantageous to drawing customers. However, Howard said to consider any use that drew customers from a larger region to be auto and truck oriented uses would render the term 'auto and truck oriented use' in the Zoning Code essentially meaningless. Almost any commercial use would fall into that category. Howard said, in summary, granting the appeal would not serve the interest of justice in this case because neither the letter nor the intent of the City's Zoning Ordinance would be upheld by such a decision. Granting the appeal in this case would not clarify the language of the Zoning Code but would in fact erode the structure of the Code, not only for the properties in the Highway Commercial zone but for properties in other commercial zones where the same language was used to distinguish when and how certain uses were allowed. Board of Adjustment Minutes April 14, 2004 Page 5 Howard said Staff had been working with Berger over the last one and one-half years trying to help him find appropriate zones and places. He had also submitted a letter to the Planning and Zoning Commission with ideas and suggestions as to how to amend the Code to make it easier to locate veterinary establishments. Staff and the Planning and Zoning Commission have carefully considered those suggestions and have recommended some changes Berger has suggested. Staff would like to work with Berger to try to find a location for his veterinary clinic, but the Highway Commercial zone is not a place that veterinary clinics are allowed in Iowa City. Therefore Staff recommends that the Board of Adjustment deny AP04-00003, an appeal by Allan L. Berger of the written interpretation issued by the Iowa City Zoning Code Interpretation Panel on March 1, 2004 regarding animal clinics in the Highway Commercial (CH-1) zone and of his appeal that veterinary establishments be considered auto- and truck - oriented uses. Alexander said pages 2542 and 2543 of the Code had been included in the Board's information package. She asked Staff to walk the Board through the actual language of the Code in order to facilitate her finding of the exact wording Howard was referring to. Howard said those pages had actually been submitted by the appellant. Howard used the actual Code itself to provide the information Alexander had requested. Behr reiterated the Board's scope of review. He said to grant this appeal and overturn the decision of the ZCIP panel, the Board must determine that the decision was in error, either an error in interpretation of the law or an error in application of the law to the facts of this case. In deciding the matter, Behr said the Board should carefully articulate whether they believed there was an error and why or why not. In the written materials that had been submitted to the Board, there was discussion of Code Section 14-6E-3B sub 5 and discussion of a footnote shown in the text of the ordinance. Behr said that footnote was not in the actual ordinance, it did not have the status of law and therefore was not binding in the sense of status of law. Typically footnotes were added by a codifier or as a cross reference. Behr said he was pointing this out simply to advise the Board that the footnote should not serve alone as the basis for their decision in this appeal. Their decision should be based on interpretation of the Zoning Ordinance, of this or other provisions they felt were relevant as they fit into the entire ordinance. Public discussion was opened. Allan Berger, 3005 Hwy 1 NE, said he had provided handouts to the Board for their review. Berger stated he was a veterinarian and had been looking to move his existing veterinary practice into Iowa City for a few years. Due to conflicts between veterinary clinics and residential uses, there were very few locations where a veterinary clinic could be built. Berger said in the Staff Report the City had stated, "In this case, the Zoning Code Interpretation Panel considers the language quite clear and specific." Berger said he could not disagree more with that statement. Berger presented a PowerPoint presentation detailing what he hoped to construct on the site. The mixed use facility would contain a basement, ground floor for the veterinary clinic and a second story with access from the other side which would be used for more traditional office uses and "less controversial things". Berger said the CH-1 zone permitted uses that included office uses allowed in the CO-1 zone. The CO-1 zone text under special exceptions said small animal clinics were allowed provided they followed certain rules. Berger said he planned to follow those rules. He said the Creature Comfort Veterinary Clinic, located in a CO-1 zone, was considered to be conforming and that proved that veterinary clinics were allowed in the CO-1 zone and considered to be conforming Berger said the Zoning Code Interpretation Panel's opinion actually said that the footnote was a part of the law and that was what made veterinary clinics not allowed in a CO-1 zone, because they were not in 14-6 E1 b rather they were in 14-6 E1 d. Berger said Behr's statement that the footnote was not a part of the Code was actually contrary to the determination of the Zoning Code Interpretation Panel. Berger said the footnote preceded allowing veterinary clinics in the CO-1 zone. Howard had provided an accurate timeline: first the footnote had been written then veterinary clinics had. been added to the allowed use of the CO-1 zone. He said, "To say the intent of the footnote had been to proscribe veterinary clinics from the CO-1 zone could not be, there was no reason to think that." Board of Adjustment Minutes April 14, 2004 Page 6 Berger said the second question that needed to be asked was, did the footnote take precedence over the main text of the Code? He said Behr had essentially contradicted the opinion of the Panel, who'd said the footnote was an important part of the Code. Behr had said it was more for reference. Berger said The Staff Report dated April 9 actually differed from the Zoning Code Interpretation Panel in two important ways: 1) There was a four -page 1996 Staff Report which Staff pointed to as conclusive proof that veterinary clinics were not intended in the CH-1 zone. 2) The structure of the Code. Berger said the June 20, 1996 memo cited by the recent Staff report as conclusive proof that veterinary clinics were not intended in the CH-1 zone was written just before veterinary clinics/small animal clinics were added to the allowed use of the CO-1 zone. The opinion had been written by Scott Kugler, an Associate Planner, who was analyzing the R/O (Residential Office) zone. Berger said Kugler had been concerned that the R/O zone, as a residential zone, might be inappropriate to have veterinary clinics near a residential zone. Kugler had analyzed the R/O zone as it had existed in 1996, that it allowed all uses permitted in the CO-1 zone and it would permit a small animal clinic upon approval of a special exception through the reference of adding veterinary clinics to the CO-1 zone. There was a footnote that said see Subsection 14-6 E1 b of this chapter. Berger said the CH-1 zone as it existed today said, "Permitted uses, office uses allowed in the CO-1 zone." with a footnote that said see Subsection 14-6 E1 b of this article. Berger said he felt 'office uses allowed in the CO-1 zone' actually allowed more uses than just the permitted uses of the CO-1 zone. He said they were very similar statements except for the last use of the word [chapter / article]. He said in his analysis Kugler had concluded that an R/O zone would permit a small animal clinic upon approval of a special exception through this reference. Berger said since the Code was nearly identical in a CH-1 zone today, he did not understand why this memo was conclusive proof that veterinary clinics were not allowed in the CH-1 zone. Berger said he thought it was the exact opposite, the memo said veterinary clinics should be allowed. The reason why they had been concerned about veterinary clinics in the R/O zone was because it was a residential zone. There were no residences anywhere near any of the CH zones. Berger said the second point he wanted to touch on was if veterinary clinics could be considered an auto - and truck -oriented use. He said the definition of auto- and truck -oriented uses included 'uses catering to the convenience of drivers of motor vehicles, including convenience groceries, service shops, dry- cleaning centers, photo developing drop centers.' Berger said one of the reasons he was interested in this site was because it was right along 1-80. He was looking to expand and relocate his practice. His veterinary practice was actually different from any other veterinary practice in Iowa City as they were staffed 24-hours a day because they saw emergencies. They saw emergencies that were referred to them from most veterinary practices in Iowa City and the Johnson County area. Most of their activity was from the north part of Iowa City and Johnson County so persons had to be able to find them quickly. He said a location that was easy to find was critical as they were dealing with persons who had an emergency, who were upset and who had not been to his practice before. Berger said he felt part of the definition of auto- and truck -oriented uses, was that it catered to the convenience of persons who were driving to it. Berger said one of the criticisms of his arguments was that as a consequence of what he was proposing, veterinary clinics could be allowed as both a permitted and a provisional use in two zones. He said it happened all the time. Berger cited examples of dry-cleaning establishments and convenience grocery stores stating he did not see why it would be a problem for his use but not for the other uses. Berger said the specific CH-1 zone that they proposed to build their clinic in was located just off North Dodge Street. The area could support the traffic of an emergency veterinary clinic; there were no near -by residences. Immediately on the other side of 1-80 was a veterinary clinic directly adjacent to a hotel and gasoline station. The site he proposed to locate on was also directly adjacent to a hotel and a small gasoline station. Berger said within the same subdivision was a precedent for clinic use, Steindler Medical Clinic had located there within the past two years. Berger said Staff would now probably say the medical clinic was not appropriate in a highway zone as it did not serve people in cars nor did it have a drive through. No one had raised any concerns when a medical facility had located in the very same CH-1 zone. He was planning to use the same builder for his two structures as had designed and built Steindler Orthopedic Clinic. Board of Adjustment Minutes April 14, 2004 Page 7 Berger said he had written a letter to the Planning and Zoning Commission in August, 2002. To date, he had not received a reply from them nor had they had given him any meaningful help in the past two years. Berger said the question could arise as to if a special exception were even needed to establish a veterinary clinic in a CH-1 zone. If an emergency veterinary clinic was accepted as an auto- and truck - oriented use, then a special exception would not be needed. If the Board decided that a veterinary clinic would be allowed because it was a use that was also allowed in a CO-1 zone, then it became unclear. Veterinary clinics were allowed in the CO-1 zone, but only with a special exception. Berger said the question then came up, should a veterinary clinic in a CH-1 have the same requirements as if it were in the CO-1 zone. Kugler had analyzed this exact issue in the context of the residential office zone in the memo from 1996. Kugler had concluded that if the Code persisted as it was in 1996, that a veterinary clinic would require a special exception. Berger said he was comfortable with that, the Board had his application before them. Berger said he was struck by the differences in the standard of review that the City had used in evaluating the issue of veterinary clinics. The Panel had said that during a review, every single word including a footnote had to be looked at. The City Attorney's Office now said that a footnote was not actually a part of the Code. Berger said when they had evaluated the auto -and truck -oriented use definition, they had refused to acknowledge the very words that had been in the definition, "uses catering to the convenience of drivers of motor vehicles, including but not limited to convenience groceries and service shops and dry cleaning centers." The Staff report and Howard had said that the factor that distinguished an auto- and truck -oriented use from one that was not, was the presence or absence of drive through facilities. Berger said he felt that was a blatant distortion of the Code. The Code didn't say those facilities had to have a drive through. Berger said the Staff report stated that in this case, the Zoning Code Interpretation Panel considered the language quite clear and specific. He did not see how any person could reasonably come to the same conclusion. When considering the arbitrariness of the City's point of view was amplified when a person noted how closely situated another veterinary clinic was and how close a medical clinic was. Berger said those locations were so close, their sites could not be rationally distinguished from his proposed site. Berger said he was going to be listening very carefully to hear how the Board addressed the interpretation of the Code. Additionally, he would be listening even more closely to hear what the Board thought of his project, was a veterinary clinic appropriate in that type of a location, was his use going to cause problems; was the site plan appropriate; was a mixed use building that would house a veterinary clinic and some other uses appropriate. Ralph Stoffer, 535 Southgate Avenue, said he was a civil engineer who specialized in site plans and similar types of stuff. He had sat through the 1983 re -write of the Code. The vet clinics and drive ins had been a hot issue at the time. They had just started doing drive -up types and pick up and there had been some really bad ones. At the same time, they had had some real problems with veterinary clinics that were not operated very nicely. They had had outdoor kennels that were in a residential neighborhood. Stoffer said that was why they had pulled those two items as a permitted use from the office uses and moved them over into the special exception. Stoffer said his analysis of this was in the legal things, of specific words that might be used interchangeability became very specific. A permitted use was an allowed use and if approved by the Board a special exception was also allowed. They were very different words in the Code. In the RIO zone, the CO-1 zone permitted uses, every office use except a drive through or veterinary clinic was a permitted use. In the Highway Commercial zone, it was all of the uses that were allowed. Stoffer said he would contend that a veterinary clinic was an allowed use with a special exception. He said Behr's comment made about the footnote was key to the Panel's decision and therefore was a mistake. He had written out the reasons he felt this was an allowed use and had submitted them as part of the Boards information packet. He said they were simply asking permission to build a veterinary clinic on that particular lot. Jack Lester said thirty years ago he'd been involved in developing the Interstate. He'd purchased the Jones, Harriet, Stephens oil company in the early 1970's and opened the location at the corner. It had been a tough opening, he'd learned a lot about what made up the Interstate and what attracted consumers off the Interstate. He said that immediate corner had always been difficult to develop. He felt Berger's was an innovative project. He said he had introduced food products to convenience locations which at the time had been considered to be "nuts". Berger's proposal was not being recognized for having its potential interstate use. Many persons traveled with pets. He'd been working with Berger and Board of Adjustment Minutes April 14, 2004 Page 8 his wife, both from New York, both with PhDs, for nearly two years to try and find a site for their proposed clinic in Iowa City. It had been very difficult, the community had done a very good job at frustrating the Berger's. The City and State was running a lot of young couples out of the State, he hoped the City would not run the Berger's out. Sue Nelson, 924 Summit Street, said a year ago one of her son's cats had begun seizing at 3:00 am on Sunday morning. Her veterinary clinic had hooked her up with Dr. Berger. Nelson was appreciative that she could find his location and Berger had compassionately euthanized the cat. She said location was very important, especially during emergencies. She said she would be very appreciative of any thing the Board could do to help Berger's situation. Jennifer Brown, Popl's Ave NE, said she owned Kolder Pet Hospital in West Branch. As a local practicing veterinarian, a veterinary emergency clinic was desperately needed in this area. They had many things to offer to improve the healthcare of pets, first and foremost being that they were open at all hours. They had overnight care and monitoring of pets available, plasma for transfusions for animals and would have emergency equipment available that regular clinics could not afford or have the ability to run. In the past veterinarians had sent -these animals and their neurotically frightened drivers an hour's drive away to hopefully save their animal. Previously there had been no other options available. Brown said she hoped the Board could see the importance of the proposed emergency veterinary clinic, they should try to imagine not having an emergency room available for humans. An emergency veterinary clinic needed to be in a location in order to see enough clients from all the different referring entities that they could afford all equipment and the overnight care. Brown said the other vital consideration that had been brought up was that the clinic needed to be in an easily accessible location. There was no ambulance for pets. Many couples were not having children and their pets were their babies. The owners of an injured pet would be panicked and would need a clinic that they could find quickly on a main street that was quite visible. Jenn Berger, 3005 Hwy 1 NE, said she was the other -half of the Berger's. She felt it was very important for her to attend in that for her and her husband, being veterinarians was pretty much their life. Berger said the City report stated, "That the approval of their use would not serve the interest of justice." She felt to deny it would be an injustice. It was a family owned and operated business, she was an equal partner. After having been told verbally that this location was accepted by City Staff, they had invested quite a bit of time and money on this project to date. As had been previously stated, it would be a disservice to pet owners in this area to not allow them to build a day and emergency veterinary clinic in this location. She said the City report had stated that the current Iowa City hospitals were not located at highway interchanges, making the assumption that that was okay for everything. Berger said she felt their particular location would actually be an excellent location for a human emergency hospital. All three of the Iowa City hospitals were hard to find and took a long time to get to, especially during football season. The majority of true human emergencies traveled to hospitals in ambulances driven by ambulance drivers who knew exactly where they were going and had lights and sirens to assist them in getting there quickly. Stressed owners of sick pets had a very difficult time with the most simple of directions. Easy access to their clinic, either day or night, was of the utmost importance. Berger said she believed the city and surrounding communities would be better served by their multi -use building than that of a fourth gas station at this intersection. Alan Berger, said there was a City Staff report that had been authored on June 6, 1996 which was different from the June 20, 1996 report that the City Staff had included with their filing. On Monday he had requested a copy of the memorandum and had been told Staff could not find it. Just prior to this meeting, Howard had provided him with a copy of the requested memo authored by Kugler. Berger read an except from the memorandum and requested that the document be added into the legal record. Howard said Stoffer was correct when he'd stated that there had been much interest in figuring out the best way to allow veterinary establishments in Iowa City. One of those instances had been in 1996 when a party had gone to the Planning and Zoning Commission to request an amendment to the Zoning Ordinance to allow veterinary clinics in the Highway Commercial zone. The party had also requested that their property be rezoned from CO-1 to CH-1, thinking that the CH-1 zoning would be a better zone for an amendment to the Zoning Ordinance. That had been the context that the Kugler memorandums had been written in that Berger had referred to in his testimony. Howard said in that particular case, while some of the language in the memos was deliberation about amending the Code, not all of it got in the Code for various reasons. What had been decided at that time was that it really was more appropriate to have veterinary clinics allowed in a CO-1 zone and not in a CH-1 zone. The discussion very specifically had Board of Adjustment Minutes April 14, 2004 Page 9 been that the City had deliberated on this and "had decided that it wasn't best to rezone the property to CH-1, it wasn't best to amend the Zoning Ordinance to allow small animal clinics in the CH-1 zone, it was best to amend the Zoning Ordinance to allow small animal clinics in the CO-1 zone and keep the zoning the way it was for this particular property." Howard said it was noteworthy that the Code wasn't amended as Kugler had talked about. When the Code was amended the R/O zone was not amended and it could be surmised that it was determined to be unnecessary because it was very clear that small animal clinics were not intended to be allowed in the CH-1 zone at that time. Howard said there is no doubt that an emergency vet clinic is a needed use in Iowa City. There are a number of zones that allow this type of establishment. There is very little CH-1 zoning in Iowa City, it is mainly around the highway interchanges. The Commercial Office zone is much more prevalent, and in the Community Commercial zones veterinary clinics are allowed as a provisional use. They don't require a special exception. All of that type of zoning had direct access to the arterial street network in Iowa City. Howard said there was no doubt that this particular location was attractive to the Bergers. It might be the case that the City would consider it a good idea to amend the CH-1 zone to allow veterinary clinics based on some evidence that Berger and other persons submit. However, Howard said this was not the City body that could amend the Zoning Ordinance, that argument would need to be made in front of the P&Z Commission and the City Council. The Board of Adjustment was charged with deciding if the City had made an error in interpreting the Code the way it had. Public discussion was closed. Behr said given the discussion that had occurred, what was before the Board was the appeal of the conclusion reached by the ZCIP Panel. The question before the Board was whether the Panel had made an error in interpreting the law or applying the law. The question was not whether the Board felt that this or another small animal clinic would be good at this particular location nor was it a question for the Board as to if they thought small animal clinics were good in CH-1 zones. Behr said only after the appeal decision, if the appeal was granted, only then did the special exception come before the Board. He said there had been a lot of discussion regarding the special exception, but it would come before the Board only if and when the Board granted the appeal and decided to hear the special exception. If the appeal was not granted, then they as a body would have ruled that they didn't have jurisdiction over the special exception. Behr said his comments at the outset were not meant to characterize the ZCIP Panel decision in any way. What was before the Board was the conclusion reached by that Panel. The Board's decision should be based on the entire Zoning Code and the provisions of it that they felt applied. Miklo said there had been several references from and regarding the 1996 memos from Staff, he wanted to be sure that the context was clear. Those memorandums had been written in response to a veterinarian who had asked that the CH-1 zone be amended to allow veterinary clinics. That request had been rejected at that time, a legislative decision not to amend the CH-1 Highway Commercial zone had been made. Miklo said that was why it was Staffs position that it was clear that there was a decision not to allow veterinary clinics as either a permitted use or as a special exception. What had been done at that time was that the CO-1 zone had been amended on Staff's and the P&Z Commission's recommendation and was amended by City Council to allow small animal clinics to be considered by special exception. Miklo said in 1996 it had been a very lengthily process where this had been debated and the conclusion at that time had been that small animal clinics should not be permitted in the CH-1 zone. He said circumstances might change, but that was a decision for the P&Z Commission and City Council, not for the Board of Adjustment. Behr said the Board had heard discussion of what had been characterized as various interpretations over time. The interpretation at issue before the Board was.that of the ZCIP Panel, whether or not the Panel had interpreted and/or applied the provision of the Zoning Ordinance correctly or not. Howard said the question about the auto- and truck -oriented use had also been considered in this appeal, which had not been addressed by the ZCIP Panel but had been addressed by the Staff Report. Behr said also before the Board was the decision of Staff that the small animal clinic was not allowed as an auto - and truck -oriented use. They were also to decide if there had been an error in Staff's determination. Board of Adjustment Minutes April 14, 2004 Page 10 A. Berger, speaking after public discussion had been closed, said he wished to rise to an issue of fact. He said Miklo had stated that in 1996 the amendment of the CH-1 zone had been rejected as a legislative decision, the minutes indicated that the application had been withdrawn. It had never been voted on. Miklo said that was correct, it had not been voted on. The direction had been that it was not recommended and the Commission had found another avenue to permit that particular veterinary clinic. Alexander asked for a clarification regarding the general intention of a CH-1 zone. Miklo said a CH-1 zone was a Highway Commercial zone. The general intention was that it should provide space for businesses serving motorists, people traveling over the interstate highway system or the major highways through the community. It encouraged things such as hotels, motels, gas stations, truck stops, restaurants and things that provided a service or convenience to interstate motorists. Howard read the intent from the Intent Section of the Zoning Ordinance Code. In response to an inquiry from Alexander, Howard said in general the way they distinguished between the different commercial zones was by trying to make different places for different types of uses. Berger said the Steindler Orthopedic Clinic existed within the CH-1 zone and its use was no different than his proposed facility in terms of the type of traffic it would draw. In the past the City had made the determination that medical office space was appropriate in the CH-1 zone, he didn't understand why his project was receiving a different level of review. Behr reminded the chairperson that the public discussion section had been closed. Motion: Alexander moved that the appeal submitted by Allan L. Berger of the written interpretation issued by the Iowa City Zoning Code Interpretation Panel on March 1, 2004 regarding animal clinics in the Highway Commercial (CH-1) Zone and of his appeal that veterinary establishments be considered auto - and truck -oriented uses be granted. Leigh seconded the motion. Alexander said this was the most complicated item that had come before the Board since she had been there. It could certainly appear to be a case of splitting hairs in a lot of directions. She saw the Berger's proposal as a wonderful project and would fully support it. However, in terms of what was before the Board, reading the Code and not even necessarily relying on the City's interpretation, she would have to vote to deny the appeal. Alexander said she could not find that the City had made an error. She encouraged the Bergers to go to Zoning and try to have it altered. The Board had no legislative ability, all they were allowed to do was to look at the letter of what was written and make a judgment as to whether they saw that an error had been made, and she could not find that. Leigh said it was not a question of whether this was a needed project. There had been times in the past when she had been in need of services such as those Bergers were proposing to offer. It would have been wonderful to have known that they were available. She understood why the location appealed to the Bergers, the aesthetics of the proposed building were beautiful, but she could not find that a mistake had been made in the interpretation. Leigh said to say that a use that was permitted by special exception under CO-1 could be extrapolated that it was blanketly approved under CH-1 was not correct. Leigh said she also did not see the Berger's proposed clinic as an auto- and truck -oriented use. She understood the urgency and the need to be able to be found, but under CH-1 they were talking about 'in and out' services. She had spent many hours at a veterinarian's office for a pet's treatment or surgery, it was not exactly an 'in and out'. She could find that no misinterpretation had been made. Wright said he had to say sorrowfully that he agreed with his colleagues for the reasons that had been stated. He did not see that any errors had been made by the City or Zoning Code Interpretation Panel. The intent of the wording in Section 6 was relatively clear. He would vote to deny the appeal. Keitel said as stated by the Attorney for the Board, they were looking at two issues. As to the issue of whether or not a small animal clinic could be defined as an auto- and truck -oriented use, he agreed with Staff. He didn't feel that a small animal clinic was considered such a use. They were talking about automobile uses not people uses. He did not feel the definition could be stretched enough to include a small animal clinic as an auto- and truck -oriented use. Keitel said from that standpoint, the Zoning Code Interpretation Panel had the correct interpretation. Keitel said he had a harder time agreeing with whether this was a permitted use in a CH-1 zone. Looking at the Zoning Ordinance, they were hanging a lot of their hat on the footnote. He didn't think it was real Board of Adjustment Minutes April 14, 2004 Page 11 clear what the intent for the footnote had been, the footnote did not appear in the City Code. He felt the ZCIP panel had been trying to rely on the footnote. Keitel said in the end, he agreed with his colleagues that the use of a small animal clinic in a CH-1 zone was not an appropriate use. Looking at the zoning map of that area, he could see where it was unfortunate that it was not adjacent to a CO-1 zone where it would possibly be easier to have the area rezoned and then ask for a special exception in order to have their small animal clinic. He was going to vote in favor of the ZCIP Panel's interpretation of the Code. Keitel asked that Staff, during the re -write of the Zoning Code take another look at this issue. Alexander said what was being described here was something different than the typical small animal clinic and suggested that it be considered to create a special category for this particular use. The motion failed on a vote of 0-4. Stoffer requested that it be stated for the record why the Board was not or would not give consideration to EXC04-00005. Behr said due to the Board's decision on AP04-00003, their decision meant that the Board did not have jurisdiction to consider EXC04-00005. VARIANCE VAR04-00001, discussion of an application submitted by John Roffmann for a variance from the zoning ordinance to allow 4 roomers (a total of 6 unrelated occupants) in a High -Density (RM-44) zone at 622 S. Johnson Street. Miklo said at the time this property had been built in 1964, it had been zoned Multi -Family Residential, R3A, the equivalent of RM-44 zoning of the current zoning ordinance. At the time the R3A zone permitted this dwelling to be occupied by a family which might include two unrelated persons and a maximum of three roomers or a maximum of 5 unrelated persons. The zoning ordinance never legally allowed this property to be occupied by more than 5 unrelated occupants. As a result of a recent directive of the City Council to improve enforcement of City ordinances, the over occupancy of this dwelling had come to light. The Council had passed an ordinance requiring an Information Disclosure and Acknowledgement Form which meant that each time a rental permit was issued, the City Housing Inspector was to verify how many persons could occupy a dwelling based on zoning, housing code and other city codes. Miklo said the Board might grant the requested variance to allow six unrelated occupants only if the requested relief was found to meet all the tests of a variance as set forth in the Zoning Code. Miklo highlighted the tests as documented in the Staff Report of April 14, 2004. He said granting a special privilege not enjoyed by the neighbors could result in other land owners seeking similar variances to increase the number of occupants on their properties. Miklo said as early as 1962 the City Council had determined that at most 5 unrelated occupants should occupy any one dwelling in the R3A zone. This property was located in one of the highest density areas of the City. Staff felt granting a variance would be contrary to the Zoning Ordinance and to the Comprehensive Plan as well as could potentially lead to other variance requests from other property owners in the area. Miklo said the applicant had submitted no financial records to indicate that the application of the Zoning Ordinance to this property would not result in a reasonable return on this property. The owner may have enjoyed more rental income from this property than they were entitled to if it had been rented to 6 unrelated persons for all these years. The value of a property should be based on the maximum legal occupancy and not an illegal use of a property. Miklo said nothing had changed in the Zoning Code since this building had been built in 1964. City Council had made major amendments to the Zoning Ordinance in 1976 and in 1983, but had never increased the limit of unrelated occupants permitted in a dwelling unit to more than 5 persons. Miklo said the applicant had not met any of the tests required for granting a variance. An applicant was required to meet all of the tests and not just any one of them, so Staff recommended that particular application should be denied. Public discussion was opened. John Roffman, 1314 Burry Drive, said he had been in the rental business for 35-years. After listening to Staffs presentation he was probably in the wrong place at the wrong time. The reason he was there was Board of Adjustment Minutes April 14, 2004 Page 12 because there was a bigger issue at hand. Only recently had Council directed Staff to more rigidly enforce codes that were in place, which had come out of the Neighborhood Action Committee. That had occurred because of noise, parties, parking, etc and typically not high density neighborhoods. Roffman said a variance request to the Board was where he had been directed to go to, but he was not sure it was actually the right venue. He had several other units located in the same zoning area but based on bedroom square footage and parking he was able to legally rent to 5 persons. He also had a one bedroom unit with a legal occupancy of one. Two weeks ago he'd had a young couple who were trying to get out of the shelter inquire about the one -bedroom unit. One of the predications for enrolling their child in a pre-school was that they have a permanent address. They could afford the one -bedroom apartment, but they could not live there because of the legal occupancy limits placed on it due to the size of the bedroom. Roffmann said he had a problem with that. In the late 1960's when he'd been in college, he and two others had shared a one -bedroom apartment using a set of bunk beds and a single bed. The room had been no more than 13 feet long and they had all survived. Roffman said people lived according to what the budget allowed. The couple's credit score wouldn't have allowed them to obtain the apartment unless they had put a double deposit on it, but the current tenants were trying to break the lease and had offered free month's rent. Roffman said what he was trying to say was that there were a lot of inequities as far as occupancy and rating, how it was determined and what people could afford. Roffman said it had no affect on the public health, safety and welfare in that the City was regulated to provide whether there were six people in a six bedroom apartment or 5 people in a three bedroom apartment with one bathroom. He requested that the Board or proper entity would direct Staff to reevaluate occupancy, numbers, and etc. Up until the last two years until landlords had begun to be inspected, they had not had a clue as to how many people could reside in a residence. It had been well stated that five unrelated was the maximum. He said each time an inspection was made and the calculations as to occupancy came back, it was sometimes inconceivable that the occupancy numbers were correct. For instance in a one bedroom there could be one person, but in a little efficiency that had no bedroom but had a little kitchen and bath, due to the size of the room, two persons could legally reside there. Roffman said what he felt needed to be done was to reevaluate the whole living arrangement situation, how it was rated and what was appropriate. Roffman said he looked to the Board for assistance in how to address this situation. His was a small issue in comparison to all the others that were an inappropriate rating of space and how many persons could live there. There were a lot of issues that needed to be resolved and addressed. Norm Cate, Senior Housing Inspector, said what Roffmann had brought up regarding the floor space issue was something through the Housing Code that the Board of Adjustment didn't have any jurisdiction over in terms of square footage and how many persons could be in a unit. There were those inequities such as situations in which 4-persons as the maximum occupancy being granted to a one bedroom unit because there was more than 440 square feet within the unit and the bedroom had more than 190 square feet in the bedroom. Per the Building, Housing and Zoning codes, if the dwelling were in the appropriate zone, that unit could have 4-persons in one bedroom. It was a Housing Code issue. Public hearing was closed Motion: Wright moved that VAR04-00001, an application submitted by John Roffmann for a variance from the zoning ordinance to allow 4 roomers (a total of 6 unrelated occupants) in a High -Density (RM-44) zone at 622 S. Johnson Street be approved. Alexander seconded the motion. Alexander asked for a brief review of the Board's responsibilities. Sara said as stated by Miklo and in the Staff Report, in order to grant a variance legally the Board had to find that the property or the applicant had proven all of the tests that had been outlined. Ultimately if those tests were not met, it was an illegal action by the Board in granting a variance. Keitel said he was in sympathy with Roffman and the rental landlords in the town with respect to the recent vendetta of City Council but the Board had to go by the tests as outlined in Staffs Report. He had not found any overall mitigating circumstances to allow the Board to consider granting this variance. This would be the second of many applications that would come before the Board until some changes could be made in the Zoning Code and the way that Housing Inspection Services evaluated rental properties. All they could do was to go by the rules that were set. He would have to vote to deny the variance. Board of Adjustment Minutes April 14, 2004 Page 13 Alexander said she too would have to vote to deny the variance based on the items that the Board was allowed to consider. Leigh said she too had lived in a very small apartment when she was a student, but agreed the Board could not grant the applicant special privileges not enjoyed by his neighbors' if the Board said yes to this application then they would have to say yes to other places that were over occupied and were problematic because of that. She would have to vote to deny. Wright said he concurred with the comments made by his colleagues. The structure didn't meet the tests for granting a variance and apparently never had met the zoning regulations. He would have to vote no. The motion failed on a vote of 0-4. EXC04-00006 Miklo said the applicant had requested that this item be deferred to the May 12, 2004 meeting while she investigated parking options. Motion: Alexander made a motion to defer EXC04-00006, an application for a special exception to permit a nonresidential child care center in the Low Density Single -Family Residential (RS-5) zone located at 735 Westgate Street. Wright seconded the motion. The motion passed on a vote of 4-0. OTHER: BOARD OF ADJUSTMENT INFORMATION: ADJOURNMENT: Alexander made a motion to adjourn the meeting at 7:27 pm. Leigh seconded the motion. The motion passed on a vote of 4-0. Board Chairperson Minutes submitted by Candy Barnhill data on citynt/pcd/minutes/boa/2004/boa04.14.04.doc Board Secretary To: Board of Adjustment Item: EX04-00009. 1002 Friendly Ave. GENERAL INFORMATION: Applicant: Requested Action: Purpose: Location: Size: Existing Land Use and Zoning: Surrounding Land Use and Zoning: Comprehensive Plan: Applicable Code requirements: File Date: BACKGROUND INFORMATION: STAFF REPORT Prepared by: Robert Miklo Date: May 12, 2004 Alan Boettcher 913 Webster Street Iowa City, IA 52240 Phone: 337-4979 Approval of a special exception to divide an existing lot of record off from an adjacent parcel To allow the construction of a single family home on a lot of record previously combined with an adjacent property due to single ownership. 1002 Friendly Avenue 6,250 square feet Residential; RS-5 North: Residential; RS-5 South: Residential; RS-5 East: Residential; RS-5 West: Residential; RS-5 Residential, 2-8 dwelling units per acre. 14-6T-5, Regulation of Nonconforming Lots. April 14, 2004 The applicant, Alan Boettcher, owns a single-family dwelling located at 1002 Friendly Avenue. The property consists of two nonconforming lots of record. Both lots measure 50 feet by 125 feet and contain 6,250 square feet. However, both parcels are located within the RS-5, Low Density Single - Family Residential Zone, which requires a minimum of 60 feet of lot width and 8,000 square feet of lot area. The lots do not meet the dimensional requirements of the RS-5 zone. City Code section 14-6T-5C states that when a nonconforming lot of record becomes in single ownership with an adjacent parcel, both parcels are considered to be a single parcel in terms of the enforcement of the Zoning Chapter, and they cannot again be legally split or sold unless both 1► remaining parcels meet the dimensional requirements of their respective zones. Since the applicant owns the adjacent lot it is not a buildable lot as the two lots of record are now considered to be one 12,500 square foot lot for zoning purposes. The intent of this provision is to discourage the development of lots that do not meet the dimensional requirements of their respective zones and are not large enough to accommodate development. There is a provision within the nonconforming lot regulations (14-6T-5D) by which the two lots could again be split into separate parcels to allow the construction of a single-family home, if approved by the Board by special exception. The applicant is requesting approval of a special exception to split the nonconforming lots of record located at 1002 Friendly Avenue to re-establish two lots and to allow the construction of a single-family home on the vacant parcel. The exiting home at 1002 Friendly Avenue would remain. ANALYSIS: The Board may grant a special exception only upon finding that the request meets the general special exception standards contained in City Code section 14-413-4B, as well as any specific standards contained within the Zoning Chapter for the proposed use. 14-6T-5, Regulation of Nonconforming Lots: As discussed above, the property located at 1002 Friendly Avenue is a nonconforming lot of record which fails to meet the current requirements of the RS-5 zone in terms of lot width and lot area. Since it is held in single ownership with the adjacent parcel, the two lots are considered to be one parcel in terms of enforcement of the Zoning Chapter, and cannot be sold or built upon as if they are separate parcels. This is due to section 14-6T-5C, which applies to nonconforming lots and reads as follows: If two (2) or more abutting lots or portions thereof become in single ownership, the land involved shall be deemed a single parcel for the purposes of this Chapter, and no portion of said parcel shall be sold or used in a manner which diminishes compliance with lot frontage, width and area requirements. The next provision of the nonconforming lot regulations (14-6T-5D) then provides for the possibility of re-establishing a lot of record through the approval of a special exception, as follows: In cases where a lot of record has become a single parcel as set forth in subsection C of this Section, the Board of Adjustment may grant a special exception to permit a single- family dwelling and accessory buildings to be installed on the lot of record, notwithstanding a failure to meet the requirements of the zone for lot area or lot width, provided the granting of the specific requested exception results in appropriate, compatible development with surrounding residential development, the lot of record is at least forty feet (40') in width, and the request meets all of the requirements of this Chapter, including set -back and frontage requirements. (Ord. 98-3834, 6-16-1998). Therefore, according to this provision the special exception is limited to the construction of single- family dwellings, the Board must find that the development will be compatible with the surrounding neighborhood, and all zoning requirements other than lot area and lot width must be met. The applicant must meet the specific standards contained within Section 14-6T-5D: 1) the special exception applies only to the construction of a single-family dwelling and accessory buildings; 2) the applicant must demonstrate that the resultant development will be appropriate and compatible with its surrounding neighborhood; and 3) the applicant must demonstrate that all other requirements of the zoning Chapter can be met on the lot. 3 1) Single -Family Dwelling: The applicant has indicated that he intends to build a new single-family home on the new lot if it is approved. The existing home at 1002 Friendly Avenue would be retained by the applicant as a rental property. 2) Appropriate, Compatible Development: The applicant has submitted building plans with elevations to demonstrate how a single-family dwelling could be designed to fit within this neighborhood. These plans are included in the attached special exception application. While each of the proposed building elevations illustrates a building with more detail and ornamentation than many of the surrounding structures, staff feels that the scale of the buildings is appropriate within this neighborhood. The Board could condition its approval on one of these plans, which would apply if the applicant decides to build on the lot. To allow more flexibility in the event that the lot is sold to another party, the Board's approval could be subject to staff review of alternative plans to ensure neighborhood compatibility. Staff recommends that if one of the submitted plans is not built, that alternative building plans be reviewed and approved by the Director of Planning and Community Development prior to the issuance of a building permit to ensure that the new single- family residence is appropriate and compatible within this neighborhood. The existing houses on this block are all set back approximately 20 feet from the front lot line. The minimum front set back in the RS-5 zone is 20 feet but there is no maximum setback required. To help insure that a new house on this lot is compatible with the existing neighborhood, staff recommends the new front yard setback be no greater the 25 feet. 3) Other Zoning Chapter Requirements. The applicant has submitted sample building plans which indicate that a single-family home can be constructed on this lot while still meeting the required setbacks. Adequate frontage is provided along Friendly Avenue. It appears that all other requirements can be met on the property. 14-4B-4B, General Special Exception Standards: As stated above, before granting a special exception, the Board must be satisfied that the general special exception standards contained in City Code Section 14-413413 will be met. The applicant's statements regarding this standards are contained in the attached special exception application. Staff generally agrees with the applicant's statements, and offers the following comments: 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 and impair property values in the neighborhood. The addition of one single-family dwelling in this neighborhood should have little or no impact on nearby properties. There are a number of other lots in the area of a similar size. e. Adequate measures have been or will be taken to provide ingress or egress designed so as to minimize traffic congestion on public streets. Like the other properties in this neighborhood, the new lot would have access to the alley north of Friendly Avenue. A curb cut onto Friendly Avenue is not needed. Staff recommends that as a condition of approval, vehicular access to this lot be restricted to the alley. SUMMARY: The intent of the City's nonconforming lot regulations is to discourage the development of lots that do not meet the dimensional requirements of the Zoning Chapter and would not accommodate development in a manner appropriate for the surrounding neighborhood. However, the Zoning 4 Chapter also recognizes that some of these existing lots could be developed in a manner that is compatible with the surrounding neighborhood and provides a process for that to occur. Staff feels that this may be one of those situations. STAFF RECOMMENDATION: Staff recommends the approval of EXC04-0009, a special exception to allow the re-establishment of two 50 x 125 foot lots of record located at 1002 Friendly Avenue subject to the following conditions: 1) The single-family dwelling constructed on the lot substantially conforming with the attached plans provided by the applicant in association with this application, or, in the event that alternative plans are submitted, the plans being subject to review and approval by the Director of Planning and Community Development to ensure development that is appropriate and compatible with the surrounding neighborhood; and 2) The front setback shall be a maximum of 25 feet; and 3) That vehicular access to the two lots be restricted to the alley north of Friendly Avenue and no driveways be permitted onto Friendly Avenue. ATTACHMENTS: 1. Location map. 2. Special exception application. Approved by: Karir Franklin, Director, Department of Planning and Community Development ppdad m in\stfrep\exc04-0 0009. doc CITY OF IOWA CITY J J W S� 0 FLORENCE ST _ cn a 75 I.l GINTER AVE -7- U� -M -- - - FRIENDLY AVE Y J HIGHLAND AVE SITE LOCATION: 1002 Friendly Ave. JRT J J l,J r F-XC04-00009 Pc D APPEAL TO THE BOARD OF ADJUSTMEN SPECIAL EXCEPTION TITLE 14, CHAPTER 6, ARTICLE W C J DATE: �-f 4PRl4, a00 f PROPERTY PARCEL NO. ICH .Mod APPEAL PROPERTY ADDRESS: / 002 /Ifl eND 0' 414C 1 • C- APPEAL PROPERTY ZONE: _ APPEAL PROPERTY LOT SIZE: 50 X 195 625-OSa��. APPLICANT: Name: 4G.¢N �O6-rrGIdEQ Address: 9 o Cc as rc iL Sr �- �' • S'�a y o Phone: 997 Y%79 CONTACT PERSON: Name: A oy LgoEfl &me Address: 913 GtJmzrs Cr_- L C• �22yo Phone: 337 `f9 7 PROPERTY OWNER: Name: ,&A/- &6rTz1& FIC n Address: 913 C(%EBST.rR lJ r • �' �' • SzZ �a Phone: 337 49 7 9 Specific Requested Special Exception; Applicable Section(s) of the Zoning Chapter: Purpose for special exception: —Jo .3P�GZ�Cc T� U�tl ce Go¢s /5 /( aA41 r o Date of previous application or appeal filed, if any: ult l'c b )s tvQGAlf� -2- INFORMATION TO BE PROVIDED BY APPLICANT: A. Legal description of property: LOfS '�'�I fo loa/� C� o U B. *Plot plan drawn to scale showing: 0 1. Lot with dimensions; 2. 3. North point and scale; Existing and proposed structures with distances from propertylines;-,',.— _... -. 7 -, i 4. Abutting streets and alleys; including the location and record owr �f �a each 5. Surrounding land uses, property opposite or abutting the property in question; y� N 6. Parking spaces and trees - existing and proposed. vo �� [*Submission of an A" 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-261, 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, -mat fnrth the arounds offered as support for the special exception. 's1i14 I D. The applicant is required to present spec general standards for the granting of a s 0f/lzeV. information, not just opinions, that the al 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. ffC11 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. 6-me wovU +o coke �orv�plemen� }b Ii knlcs r ii�e h-ic1ktx;cboaJ . A view/ dome wb�Id 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. 's PnnrA, tG iA /1A-VA-HAM 060JO6A0 4. Adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided. �I CcUgitiorlcl� vii�i�i� pClr ci�,�S, or 4Lil will nee e� C//7 �ra'y 5. ' ' re GCcC�S� l� a e s�fn /Owa �Pseloll ocat a�1 .c o�r��++ S Ade a a measures have been or will be taken to provi a ingress or egress i n blic streets. designed so as to minimize traffic congest on o pu X �- �"I w 0 -4- — 6. Except for the specific regulations and standards applicable to the exception being considered, the specific proposed exception, in all other respects, conforms to the applicable regulations or standards of the zone in which it Is to be located. (Depending on the type of exception requested, certain specific conditions may need to be met. The applicant will demonstrate compliance with the specific conditions required for a particular use, as provided in City Code Section 14-61- 1, Special Exception Enumerated Requirements; Section 14-6N-1, Off -Street Parking Requirements; Sect,(,n 14-60., Dimensional Requirements, or Section 14-6R, Tree Regulations, as appropriate.] 7' e4 s/ l ee-l_ �-Ohi � ons 7. The proposed use will be consistent with the short-range Comprehensive Plan of the Citv. 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 n� na Q7-1 1=' _ J .c- - CA) O -5- NOTE: Conditions. In permitting a special exception, the Board may impose appropriate conditions and safeguards, including but not limited to planting screens, fencing, construction commencement and completion deadlines, lighting, operational controls, improved traffic circulation requirements, highway access restrictions, increased minimum yard requirements, parking requirements, limitations on the duration of a use or ownership or any other requirement which the Board deems appropriate under the circumstances upon a finding that the conditions are necessary to fulfill the purpose and intent of the Zoning Chapter. (Section 14-6W-2B3, 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: Date: • 19— p p d ad m i n\ a p p bo a se . d o c Signature(s) of Applicant(s) Signature(s) of Property Owner(s) if Different than Applicant(s) CO PH4 3 0 A PORCH KITCHEN DINING WCWI LIVING ROOM w PORCH First Floor Plan Plan NO. 146 First Floor Plan Frederick L. Ackerman, Architect Second Floor Plan 18,945 Cubic. Feet .Second Floor Plan Plan No. 171 Frederick L. Ackerman, Architect 20,400 Cubic Feet i IIII i; �� \`�I' �hh.� � iw �, x}vy `�Y "�5`L`I �y F1 � B �,�. � �� �x.�= ,.�:: �' .s — — II, �.. � � � o .. ��i �� W ,. II '! I ' ' 4 °O IIIA of a� � n � 111�1� 1� � �� � � � a.A e y,d � II ' � '_' � i Ali ��, _ _. ` r �_ ,�,,.-... ��� • , Bob Miklo From: jackie loesche [dulcevitas@yahoo.corn] Sent: Friday, May 07, 2004 12:32 PM To: bob-miklo@iowa-city.org Subject: Special Exception@1002 Friendly Ave. To Members of the Board of Adjustment: I am writing in response to Special Exception EXC04-0009, which would allow an additional house to be built on the vacant parcel of 1002 Friendly Ave. This parcel is the only buffer of green space left in the 1000 block of Friendly Ave. It is also situated between five rental properties. The transient nature of these residencies already impacts the character of the neighborhood. The following are several examples: 1)Furniture and empty beer keg abandoned for several months in the front yard of 1002 Friendly Ave. until the most recent tenants left. 2)Liberal pet policies at 1002 Friendly Ave. that allow the dogs to outnumber the renters. 3)Music from 1022 Friendly Ave. that has been loud enough to warrant notifying police at 2am last fall. 4)Abandoned and illegally parked vehicles in the backyard of 1014 and 1018 Friendly Ave.,belonging to the landlord. In response to the removal of two of these vehicles at the city's expense last December, the landlord parked a third vehicle there the following day, which still remains. I feel that allowing this parcel to remain undeveloped is the last opportunity to help preserve the quality and character of this area. It is not merely a "vacant parcel"; rather it offers a necessary haven from the existing residences. Please consider this as a plea to keep the area "low density", rather than transforming it into one of "high impact" on one of the oldest neighborhoods in Iowa City. Regards, Jackie Loesche 1019 Ginter Ave. Do you Yahoo!? Win a $20,000 Career Makeover at Yahoo! HotJobs http://hotjobs.sweepstakes.yahoo.com/careermakeover