HomeMy WebLinkAbout12-12-2007 Board of AdjustmentAGENDA
IOWA CITY BOARD OF ADJUSTMENT MEETING
Wednesday, December 12, 2007 — 5:00 PM
Emma J. Harvat Hall
A. Call to Order
B. Roll Call
C. Consider the November 14, 2007 minutes.
D. Special Exception:
EXC07-00009: Discussion of an application submitted by Iowa Wireless Services,
LLC for a special exception to allow a cell phone tower in the CC-2 zone at 640 Hwy
1 West.
E. Other
F. Board of Adjustment Information
G. Adjournment
NEXT BOARD OF ADJUSTMENT MEETING — January 9, 2008
STAFF REPORT
To: Board of Adjustment Prepared by: Sarah Walz
Item: EXC07-00009 Date: December 12, 2007
GENERAL INFORMATION:
Applicant: Iowa Wireless Services, LC
4135 NW Urbandale Drive
Urbandale, IA 50322
515-258-7507
Contact: William McNally
1722 Spring Street
Grinnell, IA 50112
641-236-3322
Property Owner: First American Bank
12333 University Bank
Clive, IA 50325
515-226-9998
Requested Action: Special exception to allow a communications tower
in the CC-2 zone.
Purpose: To construct a 50-foot cell phone tower
(monopole).
Location: 640 Hwy 1, West (Behind First American Bank)
Size: 1.5 acres (approx.)
Existing Land Use and Zoning: Commercial (CC-2)
Surrounding Land Use and Zoning: North: Residential/Undeveloped (RS-8)
South: Commercial (CI-1)
East: Commercial (CC-2)
West: Residential (RM-20)
Applicable code sections: 14-4B-3A, (General Criteria)
14-4B-4E-5 (Specific Criteria for
Communication Transmission Facilities
in Commercial Zones)
File Date: November 9, 2007
z
BACKGROUND INFORMATION:
The applicant, Iowa Wireless, is requesting a special exception to locate a cell phone monopole
tower in the Community Commercial (CC-2) zone at 640 Highway 1, West, behind the First
American Bank, which is currently under construction. The abutting lot directly to the west in the
CC-2 zone is currently undeveloped as is the larger parcel to the north, which is zoned Medium
Density Single -Family Residential (RS-8). The applicant proposes to build a 50 foot monopole cell
phone tower using materials that will complement the surrounding light poles for the bank lot.
The monopole structure will include a light to match others on the lot. All equipment associated
with the cell phones structure will be housed in a 13-foot x 18-foot enclosure.
ANALYSIS:
The purpose of the Zoning Ordinance is to promote the public health, safety and general
welfare, to conserve and protect the value of property throughout the City, and to encourage
the most appropriate use of land. It is the intent of the Ordinance to permit the full use and
enjoyment of property in a manner that does not intrude upon adjacent property. The Board
may grant the requested special exception if the requested action is found to be in accordance
with the specific criteria included for Section 14-4B-4E-5 (attached) pertaining to
communication transmission facilities in a commercial zone and the general approval criteria for
special exceptions as set forth in Section 14-4113-3A .
The applicants comments regarding each of the specific and general standards are included on
the attached application form. Staff comments related to the specific and general approval criteria
are set forth below.
b(2). The proposed tower serves an area that cannot be served by an existing tower
or industrial property or by locating antennae on existing structures in the area. The
applicant must document attempts to utilize existing structures, towers, or industrial
properties within one-half mile of the proposed tower.
The area to be served by the proposed tower is located in a depression beginning south of
Benton Street and extending south between Highway 218 and Riverside Drive. The applicant
has provided a coverage map showing the level of transmission currently provided within the
area and the change in those services with the proposed tower. (Note: On the coverage map,
the light gray reflects a coverage signal that is less intense and may not penetrate most
buildings or vehicles. The dark gray indicates a coverage signal that is generally strong enough
to allow a wireless phone call while located in a building in a suburban area.)
There are no existing towers or industrial properties located in this area that are of sufficient
height to serve as a site for the antennas, and, according to the applicant, none of the
commercial structures in the vicinity are tall enough to mount antennas that would provide
service to the entire area. The applicant has indicated that a tower must be approximately 50
feet high in order to provide service to the general area. Additionally, a lightening rod
measuring 3 feet will be mounted to the top of the pole.
b(3). The proposed tower will be constructed in a manner that will camouflage the
structure and reduce its visual impact on the surrounding area. Examples of
camouflage design include towers camouflaged as flag poles, monuments, steeples,
or the integration of rooftop towers onto existing buildings, water towers, etc.
Rooftop towers must use materials similar to or that blend in with the structure to
which it is attached. Other camouflaged tower structures must be of similar height
and appearance as other such poles.
The proposed tower is designed to be inconspicuous. The 50-foot pole will match the color
(black) of the existing light poles for the bank parking lot. The proposed monopole has no guy
wires or trusses, which are sometimes associated with cell towers. The first 25 feet of the tower
will look and function as a light pole this is the same height as the surrounding light poles and
will have downcast lighting to match the existing light poles. The light fixtures on the pole will be
required to meet all lighting standards in the code and will be reviewed as part of the site plan
review process through the Building Inspection Department. The proposed tower is 50 feet high
with a lighting rod extending the height to 53 feet.
Staff believes that the design of the cell tower is appropriate given the surrounding uses and
sloping terrain. The residential properties to the north and west are both at a significantly higher
grade than the subject commercial lot, which should help to mitigate the height of the proposed
tower. Surrounding commercial properties are at a lower grade, but are separated by some
distance from the monopole location. While the height of the structure will most certainly be
distinguishable from a light pole, staff believes that the proposed design and color is unobtrusive
and should not detract from the
surrounding residential and
commercial properties.
A comparable example is the
recently constructed USCOC
monopole that was approved by
the Board of Adjustment for
Olympic Court. This pole is 60 feet
tall and is located in a level area
within the CI-1 zone. The cell
phone tower is a monopole design
similar to what the applicant has
proposed for this location. Despite
its taller height, the pole does not
attract attention from surrounding
streets (Keokuk, Boyru m, Hwy 6,
and Stevens Drive).
60-foot monopole tower located at 612 Olympic Ct, just west of
Pepperwood Plaza
b(4). The proposed tower will be no taller than is necessary to provide the service
intended. In the CC-2 zone ... communications towers are exempt from the from
the maximum height standards in the base zone, but under no circumstance may the
tower be taller than 120 feet from grade... .
The applicant has proposed a 50-foot tower with an additional 3-foot lightning rod mounted to
the top of the pole. The applicant indicated that a shorter mounting height would substantially
diminish the quality of the tower's performance. As stated above, the cell tower structure is
significantly taller than the 25-foot light poles that it is designed to complement, however Staff
believes that the monopole design, which has no trusses or guy wires, and which has antennas
mounted flush with the pole is inconspicuous and will not detract from the surrounding uses.
4
b(S). The proposed tower will be setback at least a distance equal to the height of
the tower from any Residential Zone, ID-RS Zone, and ID-RM Zone.
The proposed tower would be approximately 50 feet in height. The proposed cell phone tower
would be set back exactly 50 feet from the adjacent residential zone to the north.
b(6). Any equipment associated with the tower facility will be enclosed in an
equipment shed or building, which must be adequately screened from view of the
public right-of-way and any adjacent residential or commercial property.
All equipment associated with the communications facility will be enclosed in cabinets placed on
a 12-foot x 12-foot concrete pad. The pad will be surrounded by a 6-foot high chain link fence.
This enclosure will be screened from the surrounding commercial uses by a brick wall on the
south (toward the bank lot) and a concrete block wall to the east. The pole itself will be located
out side of the enclosure. The applicant indicates that the general area will be landscaped by the
bank according to its landscape plan.
Given that the vacant property to the north is zoned for residential use, Staff recommends that
the screening of the enclosure be given more careful attention. Any residential development will
be at a higher grade and thus residents may have a view into the enclosure. Staff recommends
that the chain link fence be black to make it less conspicuous and that the chain link portion of
the enclosure be surrounding by additional S3 landscape screening. The S3 standard is a
buffering treatment that uses dense landscaping to provide a visual and physical separation
between uses and zones. It is commonly applied between residential uses and commercial and
industrial uses and to outdoor work and storage area. The standard requires enough shrubs and
small evergreens to form a continuous screen or edge at least 5-6 feet in height and more than
50 percent solid year round. Screening materials must be at least 3 feet high when planted. At
least half the shrubs must be evergreens. Staff recommends that the plants for this location be
chosen to achieve a minimum height of 8 to 10 feet when mature and that the landscaping
complement the landscaping for the bank lot.
b(7). The proposed tower will not utilize a back-up generator as a principal power
source. Back-up generators may only be used in the event of a power outage.
The applicant will comply with this standard and has proposed a back up generator only.
b(8). In the CN-1 and CO-1 Zones and in any ID-C Zone that is intended for a future
CN-1 Zone, strobe lighting is prohibited.
The applicant has indicated that no strobe lighting will be used.
b(9). The proposed tower may be designed and constructed to accommodate up to
two additional users, provided this additional capacity does not prevent the applicant
from adequately screening or camouflaging the use
At the 50-foot height it is unlikely that co -location could occur since a lower height would have
only a limited service area. Staff considered recommending a slightly taller tower to provide
space for co -location, however, the zoning code requires that cell towers be set back at least a
distance equal to the height of the tower from neighboring residential zones —the proposed
tower is set back exactly 50 feet from the residential property line. Given the location of the
parking area and the design of the commercial site, it would be difficult to find another location
with sufficient setback from the residential zone to allow for a taller tower.
b(10.) If use of the tower is discontinued, the tower and any associated equipment
must be removed by the owner of the tower or the owner of the property within one
year of discontinuance of use.
The applicant has agreed to remove the equipment if use of the tower is discontinued
ANALYSIS: General Standards: 14-4113-3, Special Exception Review Requirements
1. The specific proposed exception will not be detrimental to or endanger the public
health, safety, comfort or general welfare. The proposed exception meets the specific
criteria, which were established to allow such communications facilities while still maintaining a
safe and healthy environment. The tower will provide improved cellular service to the area.
The monopole will be a special order (due to the light fixture at 25'and antenna mounting) and
the applicant does not have a structural representation of its actual strength at this time. The
applicant has indicated that the final tower will be designed to collapse by folding rather than
falling its entire length. The final design will be reviewed by the building department to insure
structural safety.
2. The specific proposed exception will not be injurious to the use and enjoyment of
other property in the immediate vicinity and will not substantially diminish or impair
property values in the neighborhood. The proposed tower will increase the level of cellular
service for residents and businesses in the area thereby improving the use and enjoyment of the
surrounding property. Given that the area in which the proposed cell tower structure is to be
located is at a lower grade from the adjacent undeveloped residential zone to the north, staff
feels the proposed design and height is appropriate provided that the equipment enclosure is
screened to the S3 standard. The proposed tower will provide some lighting for the parking lot,
which provides a public safety benefit. The inconspicuous design of the tower, which has no guy
wires or trusses nor strobe lighting, as well as the screening of the equipment and enclosure will
not detract from the surrounding uses nor impair property values.
3. Establishment of the specific proposed exception will not impede the normal and
orderly development and improvement of the surrounding property for uses
permitted in the zone in which such property is located. In Staffs opinion, the
inconspicuous design of the tower along with appropriate S3 screening of the equipment area
should not detract form the development of the adjacent commercial areas nor the residential
property to the north.
4. Adequate utilities, access roads, drainage and/or necessary facilities have been
or are being provided. Adequate electrical and phone service will be provided by the
applicant. No improvement is required in the road or other utilities to serve this use.
S. Adequate measures have been or will be taken to provide ingress or egress
designed so as to minimize traffic congestion on public streets. The use will not
generate additional traffic other than for maintenance of the facility.
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. The
lighting elements for the proposed tower will be reviewed by the building department to insure
that they meet all lighting standards in the code. Likewise, the final design of the tower is
reviewed by the building department to ensure its structural safety.
7. The proposed use will be consistent with the Comprehensive Plan, as amended.
The proposed structure will not detract from the commercial uses at this location as contemplated
by the Comprehensive Plan.
STAFF RECOMMENDATION:
Staff recommends that EXC07-00009, an application for a communication transmission facility in
the CC-2 zone located at 640 Highway One West be approved subject to compliance with the
site plan and specifications regarding the tower design submitted as part of this application and
the following conditions:
1. The west and north portions of the enclosure will be constructed of black chain link
fence.
2. The north and west sides of the enclosure will be screened according to the S3standard
with vegetation that will reach a minimum height of 8-10 feet when mature. The
landscape plan should complement landscaping for the bank and is subject to planning
staff approval.
ATTACHMENTS:
1. Photos and aerial views of the proposed location.
2. Location map
3. Application materials
Approved by:
Robert Miklo, Senior Planner,
Department of Planning and Community Development
View looking north at the equipment enclosure. The tower and enclosure are located in the
northeast corner of the bank property.
PAGE Q-35
14-4B
Minor Modifications, Variances, Special
5. Communication Transmission Facilities in Co mcercial Zones and the ID-C
Zone; Privately -Owned Communication Transmission Facilities in Public
Zones.
a. Communications antennae are permitted in all Commercial Zones, the ID-C
Zone, and in Public Zones provided the following conditions are met:
(i) The antenna must be mounted on another structure allowed in the zone,
such as a rooftop, light pole, or utility pole.
(2) In the CN-1 and CO-1 Zones and in any ID-C Zone that is intended for a
future CN-1 Zone, strobe lighting is prohibited. Therefore, any antenna
that requires such Illumination is prohibited in these zones.
(3) In Public Zones and in the CC-2, CH-1, CI-1, CB-2, CB-5, and CB-10 Zones
and in any ID-C Zone not intended for a future CN-1 Zone, antennae may
not be illuminated by strobe lights unless required by federal regulations.
If alternatives are allowed under federal guidelines, strobe lights may not
be used.
(4) Any equipment associated with an antenna must be located within the
exterior walls of the building to which the antenna is attached or screened
from view of the public right-of-way and any adjacent property to at least
to the S3 standard (See Article 14-5F, Screening and Buffering Standards).
If the equipment is located on the roof it must be set back and screened so
that it is not within public view or appears to be part of the building.
b. Communications towers are allowed by special exception in Public Zones, the
ID-C, CO-1, CN-1, CH-1, CI-1, CC-2, CB-2, CB-5, and CB-10 Zones and must
comply with the following approval criteria:
(1) If the proposed tower will be located in an ID-C Zone that is intended for a
future Neighborhood Commercial Zone according to the Comprehensive
Plan, as amended, then it must comply with any specific standards listed
below for CN-1 Zones.
(2) The proposed tower serves an area that cannot be served by an existing
tower or industrial property or by locating antennae on existing structures
in the 'area. The applicant must document attempts to utilize existing
structures, towers, or industrial properties within one-half mile of the
proposed tower.
(3) The proposed tower will be constructed in a manner that will camouflage
the structure and reduce its visual impact on the surrounding area.
Examples of camouflage design include towers camouflaged as flag poles,
monuments, steeples, or the integration of rooftop tovvers onto existing
buildings, water towers, etc. Rooftop towers must use materials similar to
or that blend in with the structure to which it is attached. Other
camouflaged tower structures must be of similar height and appearance as
other similar structures allowed in the zone, e.g. towers camouflaged as
light poles or utility poles must be of similar height and appearance as
other such poles.
Title.14: Iowa City Zoning Code
Revised 2-20-07
PAGE 4B-36 144B
Minor Modifications, Variances, Special
Exceptions, and Provisional Uses
(4) The proposed tower will be no taller than is necessary to provide the
service intended. In the ID-C (except areas intended for CN-1), CH-1, CC-
2, CI-1, CB-2, CB-5 and CB-10 Zones, communications towers are exempt
from the maximum height standards of the base zone, but under no
circumstance may the tower be taller than 120 feet from grade. In the CO-
1, CN-1, and any ID-C Zone intended for CN-1, communications towers
must comply with the same height standards that would apply to the type
of structure to which they are attached. For example, if the tower is
camouflaged as a light pole, flag pole, or utility pole it must not exceed the
height limitation for such structures as specified in the base zone. If no
height standard exists in the code for such a structure, it must be designed
to be of similar height and appearance to other similar or typical
structures. If the tower is camouflaged as a chimney or other similar
rooftop structure, the Board may exempt it from the base zone height
standards if it is designed as if it were an integral part of the building and
is not out of scale or proportion to other similar rooftop structures.
(5) The proposed tower will be setback at least a distance equal to the height
of the tower from any Residential Zone, ID-RS Zone, and ID-RM Zone.
(6) Any equipment associated with the tower facility will be enclosed in an
equipment shed or building, which must be adequately screened from view
of the public right-of-way and any adjacent residential or commercial
property.
(7) The proposed tower will not utilize a back-up generator as a principal
power source. Back-up generators may only be used in the event of a
power outage.
(8) In the CN-1 and CO-1 Zones and in any ID-C Zone that is intended for a
future CN-1 Zone, strobe lighting is prohibited. Therefore, any tower that
requires such illumination is prohibited in these zones. The tower will not
be illuminated by strobe lights unless required by federal regulations. If
alternatives are allowed under federal guidelines, strobe lights may not be
used.
(9) The proposed tower may be designed and constructed to accommodate up
to two additional users, provided this additional capacity does not prevent
the applicant from adequately screening or camouflaging the use.
(1o) If use of the tower is discontinued, the tower and any associated
equipment must be removed by the owner of the tower or the owner of
the property within one year of discontinuance of use.,
6. Communication Transmission Facilities in Industrial and Research Park
Zones and the ID -RP and ID -I Zones
a. Communications antennae are permitted in all Industrial and Research Park
Zones and in the ID -I and ID -RP Zones, provided the antenna is mounted on
another structure allowed in the zone, such as a rooftop, light pole, or utility
pole.
Title 14: Iowa City Zoning Code Revised 2-20-07
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1S 83833M
APPLICATION TO THE
BOARD OF ADJUSTMENT
- SPECIAL EXCEPTION
DATE- Nov 9, 2007 1016432001
PROPERTY PARCEL NO,
PROPERTY ADDRESS: 640 Hwy 1 West, Iowa City
. .. . ..... . ...... ...........
PROPERTY ZONE:. CIC.2 1-111 PROPERTY LOT SIZE: S e e plan
.................
APPLICANT: Name: Iowa Wireless Services LLC
4135 NW Urbandale Dr. ��
Address-, Urbandale . ........I --A- 5,0322,
Phone: (515) 258-7507
CONTACT PERSOW Name: William McNally
(if other than applicant)
Address: 1722 Spring St.
Grinnell, IA 50112
Phone:
PROPERTY OWNER: Narne: First American Bank
(if other than applicant) 12333 University Bank
Address:
Phone: (515) 226-9998
Specific Requested Special Exception; please list the description and section number !n
the zoning code that addresses the specific special exception you are seeking, If you
cannot find this information or do not know which section of the code to look in, please
contact Sarah Walz at 356-5239 or e-mail s,?0h-Wa1z@0wa-6tyorg,
Purpose for special exception: Section 14-43-4-E5b Special exceptions for
- - - — -- - - - - -
communication towers in CC-2 zones.
Date of previous application or appeal filed, if any: None
Pagel of 2
Sarah Walz
From: William McNally [wmcnally@iowatelecom.net]
Sent: Sunday, November 18, 2007 7:21 PM
To: Sarah Walz
Subject: RE: Special Exception Application
Sarah:
Re 1. We have ordered a rendering as requested.
Re: 2. I will have that shortly.
Re:3. Shortly.
Re 4. Page A-4 og the Landmark Engineering site plan is a rendering of the monopole (sans
lightning rod) at 50'. Page A-2 site plan shows the tower base to be 50' from the North line of Lot 2,
next to the residential lot. It also describes the West and North enclosing material to be a 6' chain link
fence. The last page of the site plan is a rendering of the First Bank Trash/Equipment Enclosure. The
enclosing material to be used around our ground equipment pad will be an extension of the same brick
as that used by the Bank: the South wall will be the same architectural brick as that of the Bank's and
the shared East wall of our enclosure will be cement block. When I provide this other information, I
will repeat what I have said here, if that is enough information. If not, let me know and I will expand
per your directions.
Re 5. See page A-2 of the site plan.
-----Original Message -----
From: Sarah Walz [mailto:Sarah-Walz@iowa-city.org]
Sent: Friday, November 16, 2007 4:55 PM
To: William McNally
Subject: Special Exception Application
M
What follows is a list of additional items that we will need for your application.
1. A realistic rendering of what the cell phone tower will look like in its location as viewed from Hwy.
6. Other applicants have simply Photo Shopped images of the location with surrounding
landscape and building and then inserted some version of the tower to scale.
2. Exact measurement of the height of the tower and any lightning rods attached.
3. A service area map showing towers in that area of the city and the coverage range for each. This
should, in part, demonstrate for the board the quality of the coverage as well as the area which
the tower is intended to serve.
4. A more detailed description of the enclosure —materials and size —as well as the area occupied
by the equipment.
5. Precise setback of tower from adjacent residential zone.
We look forward to receiving this information and will begin reviewing the application promptly.
Best,
Sarah
11 / 19/2007
Attachment 1
Application to Board of Adjustment
Special Exception
Information to be Provided by Applicant
A. Legal description of property:
Lot 2 in First American Bank Addition, a resubdivision of Lot 2 Ruppert Hills,
an Addition to the City of Iowa City, Johnson County, Iowa according to the Plat
thereof recorded in Plat Book 51, Page 358, of the records of Johnson County, Iowa
r�
Parcel # 1016432002
B. Plot Plan/Site Plan
See Attachment IA.
C. Specific Approval Criteria
Section 14-14B-4-E5-a specifies that communication antennas are permit in CC2, subject
to the following conditions, which are met:
1. The antenna is mounted on a pole located and designed to blend with other
parking lights poles used in the associated commercial bank.
2. No illumination associated with the antenna is required. The pole does
serve as a parking lot light.
3. No illumination is to be used for the antenna other than may be required by
FAA guidelines.
4. The equipment associate with the antenna is contained with a brick and other
screening material, blended with other screening material used by commercial
bank and should not be visible for adjacent property or public right of way.
Section 14-14B-4-E5-b specifies that communication towers are allowed by special
exception in CC2 zones, subject to certain criteria, which are met:
1. N/A
2. There are no existing towers, industrial property or structures in the area on for
which the intended service is to be provided, nor within %2 mile of the proposed
location.
3. The proposed tower site plan will be constructed so to camouflage the ground
equipment. The pole (tower) on which the antenna are located will be of a
material to match parking light poles to be used otherwise in the commercial bank
parking lot.
4. The proposed pole (tower) will be less than 120' feet above grade and designed
to be similar to other light poles (but not of the same height.
5. N/A
6. See comment at paragraph 3 above.
7. The proposed tower will not use a backup generator as its principal source of
electrical power.
8. N/A
9. Additional users must be confined within the currently planned screened
enclosure.
... ,
10. N/A
Federal Aviation Administration: Determination of No Hazard to Air Navigation
See Attachment 1 B.
D. General Approval Criteria
1. The specific proposed exception will not be detrimental to or endanger the public
health, safety, comfort or general welfare.
Response: The proposed exception will not be detrimental to nor endanger the
health, safety, comfort or general welfare of the public.
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
values in the neighborhood.
Response: The proposed exception is designed to integrate, as much as possible,
with the existing uses in the immediate vicinity and will not diminish nor impair
the values of the same.
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 district in which such property is located.
Response: The proposed exception is designed to serve both as a
telecommunication facility and parking lot light pole and designed to be
compatible as possible with the existing, permitted use of the leasehold
(commercial bank).
4. Adequate utilities, access, roads, drainage and/or necessary facilities have been or are
being provided.
Response: The proposed facility uses, by way of easement within the leasehold,
existing roads, drainage and utilities of the existing commercial bank.
5. Adequate measures have been or will be taken to provide ingress or egress designed to
minimize traffic congestion on public streets.
Response: The proposed facility will create no additional traffic to the area other
than for routine maintenance. Ingress and egress to the area is across existing,
parking areas of the landlord.
6. Except for the specific regulations and standards applicable to the special 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.
Response: The proposed exception does so conform.
7. The proposed use is an anticipated use, by special exception, and should not conflict
with the Comprehensive Plan of the City.
E. List the names and mailing addresses of the record title owners of all property located within
300 feet of the exterior limits of the property involved in the appeal:
Raycol Iowa Ltd. Parcel # 1016431001
% Bretta Miller
100 Hawk Road
Iowa City, IA 52246 -�
Jim F. McFall; Jimmie F. McFall Parcel #1016428003 ".
951 Miller St.
c.
Iowa City, IA 522246
Roy C. Browning
961 Miller Rd.
Iowa City, IA 52246
Parcel #1016428004
MEHMCB Properties LLC; DJBMCB Properties LLC
DGOMCB Properties, LLC; DVHMCB Properties LLC Parcel # 1016428005
560 Hwy 1 West
Iowa City, IA 50112
Joe Sobaski; Angela Sobaski Parcel # 1016428002
600 Highway 1 West
Iowa City, IA 5246
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 14-8C-2C-4, City Code).
Orders. Unless otherwise determined by the Board, all orders of the Board shall
expire six (6) months from the date the written decision is filed with the City Clerk,
unless the applicant shall have taken action within the six (6) month period to
establish the use or construct the building permitted under the terms of the
Board's decision, such as by obtaining a building permit and proceeding to
completion in accordance with the terms of the permit. Upon written request, and
for good cause shown, the Board may extend the expiration date of any order
without further public hearing on the merits of the original appeal or application.
(Section 14-8C-1 E, City Code).
Petition for writ of certiorari. Any person or persons, jointly or severally, aggrieved
by any decision of the Board under the provisions of the Zoning Chapter, or any
taxpayer or any officer, department or board of the City may present to a court of
record a petition for writ of certiorari duly verified, setting forth that such decision
is illegal, in whole or in part, and specifying the grounds of the illegality. (Section
14-8C-1 F, City Code). Such petition shall be presented to the court within thirty (30)
days after the filing of the decision in the office of the City Clerk.
Date: k-%y14 2fls biv� t � ��f w�
`14�
t i Signature(s) of Applican )
Date: �. 20 c" r'r ! Amf";CA r B Ad
ppdadmin\application-boase.doc
Signature(s) of P operty Owner(s)
if Different than Applicant(s)
November 29, 2007
Sarah Walz
City of Iowa City
Supplemental Material to Application to Board of Adjustment / Special Exception
re: iWireless / Application to Board of Adjustment / Special Exception
Pursuant to your request of November 16, 2007, permit us to provided the following:
1. A realistic rendering of what the cell phone tower will look like in its location as viewed from
Hwy 6. (To be submitted Tuesday, December 4.
2. Exact measurement of the height of the tower and any lighting rods attached.
The monopole will be 50 feet in height and rod less than 3 feet. See page A-4 of the
Site plan. The pole will be of the same color as other parking lot light poles used by the
Bank. A light will be mounted on the monopole at the same height as other lights used in
the Bank parking lot, which we understand to be 25 feet above the parking surface.
3. A service map showing towers in that area of the city and the coverage range for each. This
should in part demonstrate the quality of coverage as well as the area which the tower is intended
to service.
See attached maps. Each tower on which it has antennas are shown. One map is without
the proposed site and the other with the proposed site. The darkest areas indicated the
greatest or most intense service, able to penetrate buildings of most materials. Lighter
shades indicated less intense signals that may be lost in buildings and automobiles.
4. A more detailed description of the enclosure- materials and size - as well as the area occupied
by the equipment.
See page captioned "Preliminary Proposed Changes." The enclosure will be within a area
measuring 13 x 18 feet. The front or South side of the enclosure will be of brick to match
the brick used by the First American Bank to enclose it dumpster area. A chain link fence
will be used to enclose the West and North sides. The East side will be the Bank's West
side of its dumpster enclosure which would use cement block. The general area will be
landscaped by the Bank per its plan. Within the fenced enclosure will be a 12x12 foot
concrete pad on which iWireless will place it equipment cabinets as shown on page A-4 of
the site plan.
5. Precise setback of the tower from adjacent residential zone.
See page A-2 of the site plan. The residential zone would be to the North of the site. The
monopole will located 50 feet South the North line of Lot 2.
Without Proposed Site
With Proposed Site
ATTACHMENT 1A
Plot Plan / Site Plan
(12 pages)
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Federal Aviation Administration
Air Traffic Airspace Branch, ASW-520
2601 Meacham Blvd.
Fort Worth, TX 76137-0520
Issued Date: 04/13/2007
Janean Amundson
Iowa Wireless
4135 Urbandale Dr
Urbandale, IA 50322
Aeronautical Study No.
2007-ACE-455-OE
ATTACHMENT IB
FAA Determination Letter
(3 pages)
** DETERMINATION OF NO HAZARD TO AIR NAVIGATION **
The Federal Aviation Administration has conducted an aeronautical study under the provisions of 49 U.S.C.,
Section 44718 and if applicable Title 14 of the Code of Federal Regulations, part 77, concerning:
Structure:
Stealth type
Location:
Iowa City, IA
Latitude:
41-38-53.63 N NAD 83
Longitude: 91-32-53.51 W f
Heights: 50 feet above ground level (AGL)
731 feet above mean sea level (AMSL)
This aeronautical study revealed that the structure does not exceed obstruction standards aid would,.,not be a
hazard to air navigation provided the following condition(s), if any, is(are) met: L...
Based on this evaluation, marking and lighting are not necessary for aviation safety. However, if marking
and/or lighting are accomplished on a voluntary basis, we recommend it be installed and maintained in
accordance with FAA Advisory circular 70/7460-1 K Change 2.
This determination expires on 10/13/2008 unless:
(a) extended, revised or terminated by the issuing office.
(b) the construction is subject to the licensing authority of the Federal Communications Commission
(FCC) and an application for a construction permit has been filed, as required by the FCC, within
6 months of the date of this determination. In. such case, the determination expires on the date
prescribed'by the FCC for completion of construction, or the date the FCC denies the application.
NOTE: REQUEST FOR EXTENSION OF THE EFFECTIVE PERIOD OF THIS DETERMINATION
MUST BE POSTMARKED OR DELIVERED TO THIS OFFICE AT LEAST 15 DAYS PRIOR TO THE
EXPIRATION DATE.
This determination is based, in part, on the foregoing description which includes specific coordinates, heights,
frequency(ies) and power. Any changes in coordinates, heights, and frequencies or use of greater power will
void this determination. Any future construction or alteration, including increase to heights, power, or the
addition of other transmitters, requires separate notice to the FAA.
Pagel of 3
This determination does include temporary construction equipment such as cranes, derricks, etc., which may be
used during actual construction of the structure. However, this equipment shall not exceed the overall heights as
indicated above. Equipment which has a height greater than the studied structure requires separate notice to the
FAA.
This determination concerns the effect of this structure on the safe and efficient use of navigable airspace
by aircraft and does not relieve the sponsor of compliance responsibilities relating to any law, ordinance, or
regulation of any Federal, State, or local government body.
A copy of this determination will be forwarded to the Federal Communications Commission if the structure is
subject to their licensing authority.
If we can be of further assistance, please contact our office at (816) 329-2524. On any future correspondence
concerning this matter, please refer to Aeronautical Study :Number 2007-ACE-455-OE.
Signature Control No: 503732-100015729
Brenda Mumper
Specialist
Attachment(s)
Frequency Data
Page 2 of 3
(DNE)
Frequency Data for ASN 2007-ACE-455-OE
LOW HIGH FREQUENCY ERP
FREQUENCY FREQUENCY UNIT ERP UNIT
1850 1910 MHz 1640 W
1930 1990 MHz 1640 W
Page 3 of 3
MINUTES
IOWA CITY BOARD OF ADJUSTMENT
NOVEMBER 14, 2007 — 5:00 PM
EMMA J HARVAT HALL — IOWA CITY/CITY HALL
DRAFT
CALL TO ORDER: Carol Alexander called the meeting to order at 5:05 PM.
MEMBERS PRESENT: Carol Alexander, Michael Wright, Edgar Thornton,
Michele Payne
MEMBERS ABSENT: Ned Wood
STAFF PRESENT: Sarah Walz, Norm Cate, Scott Peterson
OTHERS PRESENT: Joe Younkers, Rob Phipps, James Estin, Bu Wilson, Meg
Baron, John Morrison, Esther Baker, Jim Walters, Brian
Mitchell
RECOMMENDATION TO COUNCIL (becomes effective only after separate
Council action):
NOTE: Carol Alexander noted that Ned Wood had recused himself from consideration
of the item on tonight's agenda, due to a conflict of interest. She then read the Board of
Adjustment's standard opening statement.
CONSIDERATION OF THE OCTOBER 10, 2007 MINUTES:
Alexander asked if there were any changes or additions to the above -named minutes.
Hearing none, she asked for a motion to approve.
MOTION: Thornton moved to approve the October 10, 2007 minutes as presented.
Wright seconded the motion.
The motion was approved 4:0.
APPEAL:
APL07-00002: Discussion of an application submitted by Leighton House for an
appeal on a decision made by the building official not to renew a rental permit for
property at 923 East College Street.
Walz began with a correction, stating that on the memo she issued to the Board Members
it stated to "Joint Staff," when it was meant to be addressed to the "Board of
Adjustment." Walz then began the Staff Report, stating that this property, in its current
Board of Adjustment
November 14, 2007
Page 2
configuration, is allowed by right thirteen roomers. In September 1997, the Board of
Adjustment granted a variance to this property, subject to a number of conditions in the
plan. One of the main issues was that the Leighton House would provide resident
management for the rooming house. Walz noted that the Board Members have a copy of
the Leighton House Business Plan, which lays out what the owners were to provide and
that the findings of the board that approved the variance had cited the upscale, controlled
business operation as being in the public interest. In April 2006, a new concept for this
property was discussed with City staff. Walz stated that this proposal was for housing the
men's track team and that resident management would be provided by a fellow member
of the track team. The Members also have a copy of this proposal, according to Walz.
Staff at that time noted that this proposal would not meet standards set by the Leighton
House Business Plan, but that a variance could be applied for.
Walz stated that the rental permit expired on August 31, 2006, and was being reviewed
by the Housing Inspection Department when an inspector visited the property. Walz
stated that at that time, an anonymous neighbor notified the building official of an article
in the Daily Iowan that basically suggested that the Leighton House was not being
operated under the terms of the variance —that there was no professional management
service, nor meal service, being provided. The rental permit was held due to this.
In October 2006, a variance was applied for by the Leighton House, asking for up to
twenty roomers. This was ultimately denied. However, prior to this, staff was taken on a
tour of this property, and staff observed during that tour that there was evidence that the
residents in the house were not complying with the Leighton House Plan, nor did the
applicants for the variance or the residents give any indication that the residents were
living in accordance with the terms of variance. The Housing Inspector then notified the
owner that the house was considered to be over -occupied. On November 8, Walz stated
that a letter was sent to the owner about this.
Walz noted that during the hearing for the October 2006 variance, applicants and
residents of this property, both verbally and in writing, defined their living arrangement
as "an intentional community" that was "without supervision" and "transportation, off -
site parking, meal plans" —conditions of 1997 plan, were not in place. Walz provided
copies of those letters, and also portions of the transcript from this meeting, for the Board
of Adjustment Members' review.
Walz then noted that in considering the appeal, the Members need to look at: Did the
Building Official make an error in his determination not to renew the building permit;
and was his decision based on sufficient and substantial evidence. Walz indicated that
the board should consider the information that formed the basis of the building official's
decision.
Norm Cate, Senior Housing Inspector, addressed the Members, reviewing the
information that Walz had presented, citing the specific Codes involved in this case, and
explaining how he arrived at his decision to deny the permit. The rental permit expired in
August 2006 and inspection took place in September for continuation of the rental permit.
Board of Adjustment
November 14, 2007
Page 3
The hosuing inspector found a few building items that needed improvement. A re -
inspection in October showed that all items with regard to the building itself had been
addressed. In the interim an article that appeared in the Daily Iowan was given to him,
which suggested that the Leighton House Plan was not being adhered to. The article
suggested that there was no on -site management, meal plan, or housekeeping services
provided. These did not match with the conditions of the business plan. Cate stated that
he took the article under advisement and talked to zoning officials regarding the issue and
at joint staff reviewed with staff what they had seen on their visit. Cate stated that it was
clear that the property was not operating according to the conditions of the plan. He sent
a letter to the owners indicating that the property was considered over -occupied because
the Leighton House plan was not being adhered to and gave them until the end of the
semester to reduce occupancy to 13 residents —the number allowed by right. Cate
reiterated that the article and staff observations formed the basis of his opinion and that
there was no other enforcement avenue but to deny renewal of the permit. Cate read from
the housing code (chapter 17-5-19X-1) indicating that any property that is over occupied
is in violation of the housing code and that the rental permit states that property must be
in compliance with that section of the housing code. The permit has not been renewed.
The property continues to be rented and occupied but the permit has not been renewed.
In reponse to a question from Alexander, Walz indicated that the conditions of the
variance were somewhat unusual and were not things that would be easily opbserved
from the outside. Wright noted that this is an unusual situation, and asked questions of
Cate regarding his determination. Cate indicated that he had not contacted the property
owner in advance of denying the permit to see if professional management was provided
but had relied on information from staff provided at a staff meeting. Walz stated that the
variance was officially applied for on October 12, and that the planning staff review was
happening simultaneously with the rental permit review —the BOA considered the
application in November.
Thornton asked Cate whether he had interviewed residents of the property. Cate
explained the inspection process that would have taken place on this property. Thornton
asked for more clarification on the inspection and the ensuing tour that staff took at 923
East College Street, and whether or not Cate was actually part of the on -site inspection.
Cate responded that he was not, that he reviewed the information from his inspector, the
Daily Iowan and staff. Cate did not verify the issue with tenants or ownership/ Members
continued to ask relevant questions of Cate and Walz, in order to determine their standing
on this matter. Cate indicated that it would not be normal part of the inspection process
to seek out the residents or the owner for additional information prior to reaching his
decision. Cate stated that he had relied on his inspector's observation, the observation of
staff who visited the property and the newspaper article. Cate confirmed that the on -site
inspection happened first and the evidence suggesting non-compliance happened later.
Walz further explained what took place during the staff tour, stating that it was obvious
that the residents were living in accordance with the Iowa Men's Track House plan and
that the residents made not attempt during discussions with staff to suggest that they were
living according to the Leighton House plan. Everything the residents presented to staff
Board of Adjustment
November 14, 2007
Page 4
indicated that they were not living according to the Leighton House Plan but rather
according to the Track House Plan. Thornton asked whether the Track House Plan
offered to have meal service. Walz responded that it did not. Thornton asked whether it
was normal for the inspection staff to use the media as evidence. Cate responded that they
would use any kind information but would corroborate it with other evidence or
information. Wright asked whether the residents had offered information about their
cooking arrangements. Walz responded that the residents indicated that they would
occasionally cook or eat together as a group.
Alexander asked if the applicant wished to address the Board.
Joe Younker, as Counsel for Leighton House, spoke to the Members, along with Rob
Phipps of Leighton House. Younker stated that this appeal really deals with a narrow
issue —whether HIS has a proper reason to withhold the permit. First of all, Younker
stated that the Housing Inspector (Anderson) initially found the property to be in
compliance with the housing code. He further stated that the reason for withholding the
rental permit appears to be based on a zoning issue. The applicant has sought an
explanation from HIS for 6 months. Younker stated that the Housing Inspection Services
(HIS) does not have the authority to determine whether or not the property is in
compliance with the terms of the 1997 variance, that this is a zoning matter and,
therefore, not under HIS authority. He stated that before such a determination may be
made, Leighton House must be offered a due process opportunity to show that they are in
compliance with the conditions of the variance. Younker stated that the Leighton House
is requesting the Board to take one of two actions — either order HIS to issue the rental
permit for the property; or, if the Board will not order the permit to be issued, that the
Board schedule an evidentiary hearing before the Board to determine whether or not
Leighton House operated the property pursuant to the terms of the 1997 variance. He
further stated that before such a hearing take place, Leighton House requests that the
Board require staff to provide Leighton House with specific notice of any alleged
violations. Younker noted that he outlined Leighton House's position in a brief that was
distributed to Board Members and staff previously and that federal and state laws require
that Leighton House be provided with due process.
Younker then proceeded to give the Board a brief history of the property at 923 East
College Street. The Board of Adjustment granted a variance in 1997 to Leighton House,
and denied two variances, requested in 2005 and 2006. He stated that today's hearing is
in regards to the 1997 variance. This variance allows the property to be used as a
rooming house for up to thirty roomers, subject to three conditions. Younker added that
only one of these issues is relevant to this matter, and that is the issue of resident
management of the rooming house consistent with the principles outlined in the business
plan for Lieghton House LC date July 1997. Younker stated that this variance
established a use right, as long as the property is being operated with those principles.
Regarding the rental permit, Younker stated that the City issued a rental permit allowing
up to thirty roomers on December 21, 2004, and that permit expired the end of August
2006. The City Inspector Art Anderson inspected the property in 2006 and stated that
the permit would be mailed shortly, as everything passed inspection. The rental permit
Board of Adjustment
November 14, 2007
Page 5
was not received after several weeks, and after a subsequent phone call, Leighton House
was told they would be receiving said permit. Throughout September and October 2006,
Younker stated that Anderson continued to state that the permit would be issued. In late
October or early November, HIS told Leighton House that a rental permit would not be
issued. Younker then pointed out Mr. Cate's letters from this time, stating that they do
not provide any explanation, analysis, or argument to support these assertions that 923
East College Street did not pass its inspection. As 2007 began, Mr. Younker stated that
Leighton House did not receive any further information from HIS, and subsequently as
Counsel, he followed up with a letter in April of 2007. A response did not arrive until
May 2007 from HIS. Mr. Cate alleged in this May letter that Leighton House had failed
to comply with the 1997 variance in the following ways: failing to have professional on -
site, adult management; full on -site meal plan; and transportation and shuttle service, and
reserved off-street parking. He said that Cate had indicated that the zoning official made
the interpretation but did not identify the zoning official that made the determination.
Younker stated that Leighton House maintains that it is in fact consistent with the
principles set forth in its 1997 Business Plan and is entitled to a permit for up to 30
residents. He stated again that HIS does not have the authority to interpret the zoning
code.
Younker continued, summarizing the information presented to the Board, stating that if
there is a concern that the property is not in compliance, then federal and state law
require that Leighton House be provided with a notice and a hearing, before any such
determination can be made. It is unfair and illegal, Younker continued, to determine that
the occupancy granted under the 1997 variance no longer applies, without first providing
Leighton House with due process protections. Younker stated that the determination by
HIS is invalid for three reasons: HIS lacks the authority to make such a determination;
the determination was made without adequate due process protections; and the City, in
claiming that Leighton House is not in compliance with the variance conditions, bares the
burden of establishment of compliance. Leighton House does not have the burden of
establishing that they are in fact in compliance.
Regarding the authority issue, Younker stated that the Board of Adjustment needs to
make this decision, that HIS does not have the authority to determine compliance with
the zoning ordinance, and therefore, Mr. Cate's determination is invalid. HIS does not
have the right to revoke the variance. He stated that the rental permit itself states that it is
not a determination of compliance with the zoning code. Any determination of non-
compliance must be made by the Board of Adjustment. He stated that HIS never
identified the zoning official or the process by which the determination was made. He
reiterated what Cate had stated in his letters, stating that he does not provide any
information in these letters as to what the issues are, nor did they provide Leighton House
a chance to address these issues. Again, Younker stated that Leighton House should
receive due process protection. Younker briefly discussed the state provisions of due
process requirements for bodies such as the Board of Adjustment. Leighton House was
never given an opportunity to address any concerns before the rental permit was denied
by HIS. He stated that Iowa law requires an evidentiary hearing before such a
determination can be made. Zoning boards of adjustment function as reviewing boards
Board of Adjustment
November 14, 2007
Page 6
and make administrative adjudications. A decision that the variance no longer applies
because of non-compliance with the variance is a revocation of the variance and triggers
due process protections. Younker referred to Iowa Administrative Procedures Act for
appropriate due process procedures and particularly revocation of licenses with notice of
revocation or allegations of non-compliance and an opportunity for a hearing to
determine non-compliance.
Younker continued, stating the HIS reports refer to the Daily Iowan article, but that Mr.
Cate's letters do not. He stated that the determination should be made on something
more than an article in a local newspaper. Younker referred to the timeline again of when
the rental permit expired in 2006. He stated that he wanted to further review the October
2006 timeframe. Mr. Cate's initial letters made no reference to specific issues of non-
compliance —those did not come forth until six months later when the specifics were
spelled out by Mr. Cate. Younker stated that the staff report seemed to indicate that the
Leighton House was provided due process based on the staff tour of the property in
October 2006. This visit was centered on whether or not to issue the 2006 variance that
Leighton House had requested — not to address the re -issuance of a rental permit.
Younker further stated that even if this visit was a "fact-finding" one regarding issuance
of the rental permit, staff did not ask any questions pertinent to this, nor did they give
Leighton House a chance to address these allegations.
Younker returned to requesting the Board to authorize issuance of the rental permit for
Leighton House, or, again, in the event they do not do this, to schedule an evidentiary
hearing, require staff to provide Leighton House with specific allegations of
noncompliance, and then allow Leighton House to address these issues of alleged
noncompliance.
Thornton asked Younker how many residents were living at the subject property during
either the inspection or the staff visit. Younker noted there have been between eighteen
and nineteen residents consistently living here since fall 2006.
Alexander asked Younker under what conditions is the City able to make a determination
that a property is not complying with the conditions of a variance. Younker stated that
after an evidentiary hearing, if the City feels that Leighton House is not complying with a
certain principle in its Business Plan, then Leighton House should be provided with
notice of that fact, and a hearing should be scheduled so Leighton House can demonstrate
compliance. Wright then asked if the determining factor here is the lack of compliance
with the Business Plan as opposed to just over -occupancy. Younker stated that there are
two levels — one being that HIS determined this and that it is outside of its authority, and
that before this determination can even be made, that Leighton House needs to be
provided with a notice of hearing to address such allegations. Wright then asked if the
key to the argument is the existence of this variance, to which Younker replied that the
fact that HIS does not have the authority to make this determination, and the fact that the
variance is in place grants a use right— before it can be removed from Leighton House,
they must receive due process. Wright stated that HIS makes zoning determinations
every day. Younker said that HIS does not make determinations with regard to variances.
Board of Adjustment
November 14, 2007
Page 7
Payne stated that almost every resident of Leighton House was present at the variance
meeting last November, telling the City how they lived, and that it did not comply with
the terms of the variance in question. Younker maintained that the variance hearing was
not to determine whether the business was being run according to the terms of the
variance, and the evidence presented by the then applicant did not address those
concerns. He indicated that Leighton House should be able to show compliance with any
violations. Payne reiterated that the residents had explained their living arrangements.
Younker stated that the condition associated with the variance is consistent with the 1997
business plan. He asked in what way the evidence collected at that hearing shows that
business is not in accord with the principles of the variance. Also that the evidence was
presented in a different context.
The discussion turned to the variances applied for in 2005 and 2006 that were not
approved. Wright stated that the board had decided twice that the business was not
operating in compliance with the variance. Younker disagreed saying that the earlier
hearings were to determine whether a new variance should be granted. He stated that the
Business Plan did not change, due to the fact that the variance was not granted. In
response to a question from Alexander, Younker stated that the variance applied for in
2006 was for a different use —the applicants had asked for 20 roomers with no conditions
attached. Their business model was different. That is a separate issue from whether the
current owner is in compliance with the plan. Younker insisted that these were discreet
and separate issues.
Payne reiterated Younker's request for Leighton House, to which he replied that there are
some overlapping issues, but that specific allegations of noncompliance need to be
addressed by Leighton House before any determinations are made.
Alexander stated that she has questions of staff next. She asked Walz to explain how
such determinations are made. Walz stated that Cate would be better able to respond to
such questions, due to his experience. She reiterated that it is the opinion of staff that this
is the due process, that the permit was withheld and not renewed, and the opportunity for
due process is a 90-day period during which an appeal can be filed. She stated that they
used the May 2007 letter as the start of the 90-day period for appeal. Walz also stated
that she wanted to add some clarification to the staff visit in 2006 — stating that staff was
invited by the applicants and residents to this visit. They were asked to observe that the
interior of the building was in good condition, and worthy of contributing toward the
variance they were applying for at that time. However, Walz added that staff was also
present to observe how the residents were living, because the applicants had presented to
staff that they needed the variance in order to continue living in the way they were at that
time. She stated that the Board's decision, at that time (2006), was not about whether or
not Leighton House was operating according to the variance, but whether or not to grant a
variance for twenty roomers. However, the residents and applicants presented their living
situation as the way the house would operate under a new variance as requested by the
Hudson's.
Board of Adjustment
November 14, 2007
Page 8
Alexander then asked Scott Peterson to remind everyone what their purview is in an
appeal, as the Board hears very few of them. Peterson stated that the City's ordinance is
consistent with the State's, in that basically the Board is put into the position of the
administrative official. They can either uphold the position, grant the appeal, or find a
common middle ground. Payne asked if the Building Inspector has the right to determine
if someone is following a variance. Cate responded that the housing officials are the
enforcement tool for the code, including on issues related to variances. He explained
what the inspectors look for and what the HIS department can include in its
determinations, citing various City codes. He stated that occupancy is an issue that HIS
enforces. Petersen explained that the board of adjustment is the board that hears cases in
which someone is appealing a zoning determination made by staff. It was also reiterated
that the May 23, 2007 letter set out the 90-day appeal period, and that this hearing is in
reference to the appeal. Payne noted that Cate's letter does not cite occupancy, just the
variance issues. Cate responded, explaining how his two letters covered all issues,
including occupancy.
Wright asked Peterson about the due process issue, and whether or not this hearing is that
due process established in the code, to which Peterson stated it is. This led to questioning
of when the variance would be considered expired. He stated that the variance continues
so long as the conditions are met and now is the time for Leighton House to make their
case on whether or not they are in substantial compliance with the variance. If they are
not in substantial compliance than the variance is not valid. Alexander asked if anyone
else wanted to speak to the Board.
Younker then addressed the Board, stating that he disagrees with Peterson regarding
whether or not HIS has authority to make this type of zoning determination, and that this
is distinct from a normal occupancy issue. They are appealing the refusal to issue the
permit. They have had no notice as to why they were determined to be in non-
compliance. HIS is taking away a right. He reiterated that they are in front of the Board
asking for them to allow the rental permit to be issued, and that this is not a building code
issue. He again stated that the City needs to satisfy the burden of proof, not Leighton
House, for this so -stated noncompliance. Alexander asked if Younker didn't consider the
various letters to the Board from residents has as evidence. Younker continued, restating
his argument for Leighton House that the letters were evidence in a separate hearing on a
different issue. He stated that a variance does not just disappear the moment non-
compliance occurs, it must move through a process.
Board Members asked for more clarification on what their determination needs to
include, and Peterson gave further detail of such determinations from state law describing
the Board's authority in an appeal. Alexander noted that they could vote to uphold the
original decision, or they could grant the permit, or the board could vote to not uphold the
decision but then make the decision based on their own interpretation. Peterson
responded to the affirmative. Payne clarified that it was the opinion of staff that the
present hearing was the applicants due process and their opportunity to show that the
business is operating according to the principles of the business plan. Discussion
Board of Adjustment
November 14, 2007
Page 9
continued with Petersen advising the board on the specifics of what they need to decide,
what evidence can be used and the various options available to them.
It was reiterated that tonight is Leighton House's due process, and also the time for HIS
to present their evidence. Some of the various correspondence was briefly touched upon,
showing the timeframe for when Leighton House first received correspondence, to the
current time and tonight's hearing. The evidence is all of this correspondence and
materials that have been presented to the Board, which is for them to review and make
their decision. This is what Walz presented to the Board at the beginning of the evening.
Alexander asked whether the applicant wanted to address the issues raised in the May 3rd
letter.
Younker brought up again that the burden of proof is on the City, and that this evidence
from the 2006 variance is not necessarily pertinent to this issue. Payne asked whether the
residents of the house are currently living in the same manner that they claimed to be
living a year ago. Younker responded that he did not know but that Mr. Phipps could
respond. He stated again that the burden was on the city to set forth allegations of non-
compliance. The burden is not on Leighton House to establish compliance. Walz again
gave further detail on the letter from Ms. Franklin regarding Iowa Track House. She
explained that the idea for the track house was presented to staff by an individual before
the variance was ever applied for and that staff had indicated that the track house plan did
not meet the standard of the 2006 conditions. Staff had advised that individual that a
variance would be needed in order for the track house to be allowed more than 13
roomers. The Hudson's applied for a variance later in the fall to allow something similar,
if not identical, to the conditions set forth in the track house plan. Walz explained the
earlier variances that were requested in 2005 and 2006, trying to clarify for the Board the
lengthy time period being discussed, and also the change in people over the years.
Alexander asked what documents were received by the applicant. Walz confirmed that
the two letters from Norm Cate were the only documents sent to the applicant. Alexander
read the issues of non-compliance summarized in the HIS letter of May 2007. Younker
stated that the issue has to due with the phrase "consistent with the principles in the 1997
plan." He asked how they are inconsistent.
The Board again reviewed the specifics of this case, and Younker noted that the
noncompliance has to do with the Business Plan, not the variance. He stated that Davis
Linden is in fact the on -site manager of Leighton House, and that this part of the variance
did not mean that the original requestors had to remain as the managers. Members asked
specific questions of Younker about this on -site manager, and whether or not the original
concept was still being followed. He stated that this is why an evidentiary hearing is
needed, for Leighton House to address specific issues of noncompliance. Younker then
explained exactly what "evidentiary hearing" means for his client, giving them a chance
to respond to allegations. As Mr. Linden is the on -site manager, and compensation is
paid to him, the Leighton House believes it is meeting this part of the variance and their
Business Plan, which is what they are following. Younker read from the business plan
Board of Adjustment
November 14, 2007
Page 10
that language used in the plan that referred to on -site adult manager. Alexander referred
to the plan and the background and skills of the proposed managers. Payne asked whether
the on -site manager was a student and whether he had skills similar to what the proposed
managers would provide. Younker explained that he is a student.
Alexander asked for an explanation of evidentiary hearing. Younker explained the
applicant would need notice of the non -compliant aspects and why they are interpreted to
be non -compliant. The applicant is struggling with the City's definition of "consistent
with the principles "put forward in the Leighton House Plan and then have an opportunity
to show compliance. Payne referred to the term professional. Younker responded that
professional is not part of the business plan language.
Thornton asked that Younker review the evidence again, the various letters between
Leighton House and HIS, and to show the Board where he feels due process was not
given. Younker explained how in these letters, specifics were not addressed by Mr. Cate,
until the May 2007 letter after the decision had been made. Due process should take place
prior to the decision. A review of the Leighton House Business Plan began next, with
Younker pointing out the specific issues in question. As for dining services, he reviewed
what the Business Plan states and how the need of a professional cook was not needed,
that the residents have different schedules and so a meal plan is not practical. The
residents prepare food in the kitchen. As for parking, Younker stated there are two spots
in the Chauncey Swan ramp available to residents, as has offered transportation to that
ramp, if needed. The business plan anticipates that students may not need cars and the
current situation finds that most residents do not use cars. He again asked how the
Leighton House is not in compliance with their Business Plan, which is what the variance
was based on in 1997.
The discussion turned to Younker stating that, again, the City needs to present specific
evidence of noncompliance on each of these issues, as stated above, in accordance with
their Business Plan. Thornton stated that he feels they need more specific information as
to exactly how this determination was made.
Alexander noted that they have others present who would like to speak, and she asked
that everyone be given a chance to speak this evening.
Jim Estin of 1039 East College spoke to the Board asking them to uphold the HIS
determination, until such time as the owners come into compliance. He noted the
thirteen -occupants level, and stated that as neighbors, they have been asked repeatedly to
appear before the Board about the issue of higher occupancy, and that this is inconsistent
with zoning and the area, with increased parking problems being created, among other
things. He also noted that if you walk in this neighborhood in the evenings, you can see
the increased volume in vehicles parked on the street. He noted that when he invested in
property in 2005, he was under the belief that this neighborhood was geared toward
renovating single-family properties and that he expected the zoning regulations to keep
these investments strong. He feels that the owners of 923 East College Street are
Board of Adjustment
November 14, 2007
Page 11
noncompliant, and until they come under compliance, they should not receive a rental
permit.
Meg Barren of 115 South Summit stated that every year they come before the Board and
review this property, and that they would like to see their neighborhood remain a
comfortable one, where residents can walk around and feel safe. Jim Walters of 1033
East Washington next spoke to the Board. He stated that they like their mixed
neighborhood of students and single-family homes, and that he lives next door to the
property in question. He states that the big issue in the neighborhood is parking, that
what goes on inside is not their concern, as long as they are not disturbing the
neighborhood. He reiterated that parking is extremely tight in this neighborhood, and
that having company is often difficult with parking blocks away. He stated that if
Leighton House is only providing two off-street parking spaces, then having thirty
residents would definitely put them under noncompliance. Bu Wilson spoke next, stating
that she has also sent correspondence regarding this matter. She asked for some
clarification from Peterson, and then stated that her impression as a resident of this
neighborhood, and in talking with other residents, is that Leighton House is wanting the
City to tell them exactly what they're not doing right as they are not doing anything. She
further reviewed the evidence presented, reading directly from various aspects of the
variance and subsequent Business Plan. She stated that the variance for the thirty
occupancy rate being granted was based on the list of professional positions and
education components that were to go along with that occupancy rate — i.e. the safety
issue, food, transportation, management, etc. She further stated that the Leighton House
has consistently treated the neighborhood with contempt. She then read from a prepared
statement.
Esther Baker addressed the Board next. She brought up the issue of the Leighton House
Business Plan, and how things change and how can the compliance stay within the rules,
if things are always changing. The idea that constant, adult supervision of the tenants
would be provided, and that by having a student provide that supervision, Ms. Baker
stated, does not meet this stipulation. She noted that during the summer a swimming
pool was set up on the front lawn, as an example, with no fencing around it. She stated
that she also submitted a letter to this issue.
Brian Mitchell addressed the Board. He stated that he worked on renovating Leighton
House with his father, and stated that the neighbors of this property don't understand
what this property used to be, prior to their extensive renovation. He stated that by
performing this renovation, it has increased the value of this neighborhood. He feels
Leighton House is performing a good service to the community. John Morrison spoke
next, stating that he has lived in this area since 76. He agreed that this property was at
one time in extremely poor condition. He also reiterated the parking problems that have
been ongoing in this neighborhood.
Paybe then asked Mr.Younker about the concrete "basketball" area of this property and if
it had not been removed. He stated that this is where they park the motorcycles and
mopeds. RobPhipps, one of the owners of Leighton House spoke next. He stated that the
Board of Adjustment
November 14, 2007
Page 12
basketball hoop was to be removed, not the concrete slab. He said they talked to the City
about using this as a patio, and they were told that if they landscaped around it, it could
be a patio area. He stated that they did do this. Walz stated that this occurred before she
was part of this situation. Payne again stated that she thought this was actually a
condition of the variance.
John Morrison returned to state that the motorcycles are also ridden on the sidewalk, and
he stated that landscaping isn't motorcycles. Phipps returned to the microphone to state
that in regard to parking, only a few of the Leighton House residents have vehicles, and
that just because there are cars on this corner, they are not necessarily from those at
Leighton House. He stated there are other rental properties in the area where these
vehicles could be from. He stated that there are two spots on the property, and then the
two spots at Chauncey Swan, totaling four available spots for residents.
Members asked questions of Walz about the other properties in this neighborhood, and
how many are rental versus single-family. Walz stated that there were other multi -family
buildings in the immediate vicinity. Alexander then asked if there were any other
comments before she closed the public hearing. Hearing none, she closed the hearing.
The Board then entered into discussion, with Thornton stating that he has some concerns
about the issue of the inspection process, that he would like to hear more from City staff
at how they arrived at their decisions, and that he feels he does not have enough
information at the current time. He would like to hear more from HIS especially, and that
he feels they should review further and reconvene to make an adequate decision. Wright
asked about deferment, and if they would have to open the public hearing again in order
to do that. Peterson responded to such legal questions, stating that they could reopen at
the next meeting and continue with the hearing.
Discussion continued, with Thornton stating his concerns further. He again stated that he
would like for Mr. Cate to provide more information, as well as the Leighton House
owners. Alexander stated that if they were to reopen the hearing, she would want to hear
further from Leighton House. She noted what the 1997 Board of Adjustment was
granting, and in keeping with that Business Plan as was stated at that time. Payne stated
that if the Board feels they do not have enough information to render a decision, then
they need to defer. Wright stated that he feels he has enough information to go forward.
Alexander then stated that their concern as a Board is to give the citizens every
opportunity to present their side.
MOTION: Thornton made the motion to table this matter until the December 12, 2007,
meeting to allow the applicant and the Inspection Services enough time to provide
information, based upon the Business Plan, and also based upon the information provided
in the May 23, 2007, letter, as well as from the HIS in order to provide information on
their findings, and how they arrived at their determination to deny the renewal of the
permit. No second was heard for this motion.
Board of Adjustment
November 14, 2007
Page 13
The discussion then turned to the various aspects of voting on a motion, and affirmative
voting and what it is that upholds this decision, or grants the permit.
MOTION: Wright moved to uphold Appeal 07-00002 and to issue the rental
permit; seconded by Payne.
Wright started the conversation, saying that he is having difficulty with the logic that was
presented by the appellants. He spoke of the May 23, 2007 letter that states that the
permit is denied due to "not operating under the condition of the 1997 variance". The
rental permit occupancy limit is based on compliance with the conditions of the variance
agreement. Failure to meet this was based on lack of professional on -site, adult
management. Wright noted that just paying someone to live at Leighton House does not
fit the "professional on -site management" that was described in the business plan. He
noted that the plan describes the manager's background and ability to provide academic
support. The current manager is a student and there is no evidence of academic support
being provided, nor on -site food preparation, as was in the 1997 variance conditions.
Wright stated that there were possibly two off-street parking spaces on site and two
provided in the ramp. There has not been an effort to provide adequate parking for the
current number of residents nor the 30 potential residents. There are other issues that had
not been addressed: housekeeping and complaints about noise. He stated that he does not
see any reason to not uphold the decision of the Building Official and to deny the appeal,
based on the evidence presented to them this evening. The issues that have been raised,
he stated, have been technicalities. Wright indicated that this hearing is an evidentiary
hearing and that it provides due process.
Payne stated that she agrees with Wright's statements, and she briefly addressed her
concerns with the issues that have been raised. May 23 letter used the word
"professional" stands in place of the experience of the proposed managers. Payne stated
that the building official has the same responsibilities as the board and that he did have
the right to consider the terms of the variance as part of his job. Should his interpretation
be questioned, the Board decides whether there has been an error. She stated what her
interpretations are of the case. The current situation is not in the spirit of the plan. She
noted that both sides need to remember to watch what they ask for in cases like this.
Thornton stated that he does not have the same background knowledge of this case, and
that his concern was that both parties had an opportunity to speak to the case. He stated
that he believes the case could have progressed in a more timely manner, and that some
more facts would be helpful, but that in looking at the Business Plan, it's obvious that the
current situation does not meet the spirit of the plan. He also reviewed the "professional
staff' issue, and that he agrees the current setup is not in the original spirit. As for the
on -site meals, he stated that it appears this is also not happening, and he agreed with the
other members of the board on the parking issues. He stated that as the applicants are not
operating in the spirit of the continual plan, he would have to agree with those before
him.
Board of Adjustment
November 14, 2007
Page 14
Alexander stated that she would make this a unanimous decision with her vote. She
reviewed the past correspondence and findings on this case briefly. In reviewing the
business plan and findings of the 1997 BOA that referred to upscale, controlled business
operation, she said that all of the details contributed to an overall tone of what the
business was supposed to be and that was what led to that prior decision. Without all the
pieces that the business loses its meaning. The Building Inspector made his decision
based on the conditions of the business plan.
The motion was declared denied 4:0.
OTHER:
None.
BOARD OF ADJUSTMENT INFORMATION:
Alexander stated that she spoke with Holecek on Thursday, and there still is no decision
on the Shelter House issue.
ADJOURNMENT:
MOTION: Wright moved to adjourn, seconded by Payne.
Alexander adjourned the meeting at 7:30 PM.
Board of Adjustment
Attendance Record
2007
NAME
TERM
EXP.
1/10
3/28
4/11
4/28
5/9
6/13
7/11
8/8
9/12
10/10
11/14
12/12
Carol Alexander
01/01/08
X
X
O/E
X
X
NM
X
X
NM
X
X
Michael Wright
01/01/09
X
X
X
X
X
NM
X
X
NM
X
X
Ned Wood
01/01/10
X
X
X
X
X
NM
O/E
X
NM
O/E
O/E
Michelle Payne
01/01/11
X
X
X
X
X
NM
X
X
NM
O/E
X
Edgar Thornton
01/01/12
X
X
X
X
X
NM
O/E
X
NM
X
X
KEY: X = Present
O = Absent
O/E = Absent/Excused
NM = No Meeting
--- = Not a Member