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HomeMy WebLinkAbout06-09-2010 Board of Adjustment.R 1 CITY OF IOWA CITY IOWA CITY BOARD OF ADJUSTMENT Wednesday, June 9, 2010 5: 15 P.M. Emma J. Harvat Hall AGENDA & STAFF REPORTS CITY OF I O WA CITY Department of Planning & Community Development AGENDA IOWA CITY BOARD OF ADJUSTMENT MEETING Wednesday, June 9, 2010 - 5:15 PM CITY HALL - EMMA J. HARVAT HALL A. Call to Order B. Roll Call C. Consider the May 12, 2010 Board Minutes D. Special Exception: EXC10-00004: Discussion of an application submitted by Nila Haug and Dennis Nowotny for a special exception to allow a bed and breakfast inn to operate in the Central Business Service (CB-2) zone at 511 E. Washington Street. E. Board of Adjustment Information F. Adjourn NEXT BOARD OF ADJUSTMENT MEETING: July 14, 2010 City of Iowa City MEMORANDUM Date: 4 June 2010 To: Board of Adjustment From: Sarah Walz, Associate Planner RE: Special Exception application for 511 East Washington Street At the May 12 meeting, the Board voted to defer a decision regarding the application for a special exception to allow a Bed and Breakfast Inn at 511 East Washington Street in order to allow the applicant to resolve outstanding building permit issues. In reviewing the case at your June 9 meeting you have the previously submitted staff report and application materials along with the minutes of the May meeting (see attached). Also included here is a memo from Stan Laverman, Senior Housing Inspector for the City of Iowa City. Mr. Laverman's memo summarizes his re -inspection of the property as well as the progress on completing the permit review. At this time required improvements to the property remain outstanding (exterior landings). In addition the building department has requested additional information from the applicant in order to complete the permit review. As of this date the applicants have not provided the requested information. If the applicant can show that they intend to provide the requested information and complete the required landings, staff would recommend deferring the decision to the July meeting, by which time the building permit issues could be resolved. If the applicant does not indicate an intention to complete the landings or to provide the requested information to complete the permit process, staff would recommend denial of the requested special exception for noncompliance with City codes. '= 1 CITY OF IOWA CITY = �l' cqq -T4, " MEMORANDUM Date: June 4, 2010 To: Board of Adjustment From: Stan Laverman, Senior Housing Inspector Re: EXC10-00004: 511 E Washington Street There are unresolved issues that prevent the issuance of the bed and breakfast rental permit for 511 E Washington Street. Those issues include the lack of landings at two exit doors, the incomplete building permit application, and the possible work associated with the building permits. These are health and safety concerns for Housing Inspection Services. The lack of landings is a trip and fall hazard. Additionally, when work is done without a permit, and not inspected, there are concerns that the work was not completed in a safe and code compliant manner. On May 20, 2010 Mr. Dennis Nowotny applied for a building permit as I requested in the April 7tn 2010 Notice of Violation. That same day Loren Brum, plans examiner for the City of Iowa City, requested more information from the applicant to complete the review of the application. Again on May 26, 2010 Mr. Brum called the applicant to request additional information to complete the review of the application. The dwelling has been altered with the addition of multiple plumbing fixtures, and the attic finished. The building permit application only lists the work done in the attic; with a permit value of $800.00. The additional information requested includes a set of building plans showing the rooms that have been converted to bedrooms, the areas that have been converted to bathrooms, the work that was completed in the attic, and the names of the licensed professionals who completed the plumbing, electrical, and mechanical work. As of June 4, 2010 the additional information has not been provided to the Housing Inspection Department to complete the building permit application review. On May 24, 2010 1 completed the re -inspection for the bed & breakfast rental permit. At that time Mr. Nowotny contested the need for landings at the exit doors. I explained the code, including the exceptions, to Mr. Nowotny. Another re -inspection was not scheduled because the items remaining involved the building permit application and the exterior landings for the exit doors. On June 3, 2010 Mr. Nowotny once again called to contest the need for landings at the exit doors. I again explained to him the decision and the building code associated with the decision. I encouraged Mr. Nowotny to submit the additional information requested for the building permit application so we could address all code issues at the same time. Mr. Nowotny also questioned why the bed and breakfast rental permit would not be issued with an open building permit. Section 17-5-16-C-3 of the Iowa City Housing Code addresses this specific question. This section states that unless the director of Housing Inspection Services determines there is good cause, the rental permit shall not be issued if there are any open building permits. In conclusion, the bed and breakfast rental permit for 511 E. Washington Street will not be issued until the exit door landings have been installed, the building permit application is completed, all work associated with the building permits have been completed, and final inspections have been passed. Therefore I cannot recommend that a special exception to allow a bed & breakfast inn be granted. MINUTES PRELIMINARY IOWA CITY BOARD OF ADJUSTMENT MAY 12, 2010 — 5:15 PM EMMA J. HARVAT HALL MEMBERS PRESENT: Robert Anderson, Barbara Eckstein, Will Jennings, Le Ann Tyson MEMBERS EXCUSED: Caroline Sheerin STAFF PRESENT: Sarah Walz, Sara Greenwood Hektoen, Stan Laverman OTHERS PRESENT: Nila Haug, Dennis Nowotny, Mark McCallum, Pam Michaud RECOMMENDATIONS TO CITY COUNCIL: None. CALL TO ORDER: The meeting was called to order by Vice -Chairperson Barbara Eckstein at 5:18 p.m. An opening statement was read by the Chair outlining the role and purpose of the Board and the procedures governing the proceedings. ROLL CALL: Anderson, Eckstein, Jennings, Tyson (Sheerin absent). CONSIDERATION OF THE MINUTES FOR APRIL 14T" 2010: Tyson motioned to approve the minutes. Anderson seconded. Eckstein invited discussion. Iowa City Board of Adjustment May 12, 2010 Page 2 of 11 Eckstein offered three typographical corrections. Eckstein and Walz discussed whether or not Eckstein had been on the Board at the time of the decision referenced in the "Board of Adjustment Information" section of the minutes. Walz said she would look into it. Tyson noted that her first name is spelled incorrectly. A vote was taken and the minutes were approved 4-0 (Sheerin absent). SPECIAL EXCEPTIONS: EXC10-00004: An application submitted by Nila Haug and Dennis Nowotny for a special exception to allow a Bed and Breakfast Inn to operate in the Central Business Service (CB-2) zone at 511 E. Washington Street. Walz explained that the zoning code allows two different types of bed and breakfasts: 1) a Bed and Breakfast Homestay, and 2) a Bed and Breakfast Inn. Walz said that both of these are considered accessory uses to the principle use of single-family owner -occupied housing. Walz said that a Bed and Breakfast Homestay allows three rooms for rent, and is reviewed administratively by the Building Department. A Bed and Breakfast Inn allows up to five bedrooms for rent, and is allowed by special exception only. Walz stated that the subject property at 511 East Washington Street is located in the CB-2 zone, a commercial zone located just outside the Central Business zone. The applicants have operated a bed and breakfast at the adjacent property, 517 East Washington Street, since 1990. In 2009, the applicant was issued a citation for renting rooms at the subject property without a rental permit. Upon inspection, it was discovered that rooms had been created and bedrooms added without the necessary building permits. Walz said there are currently five bedrooms in the house. The Building Official has provided the applicant with a list of items that must be brought into compliance with code, and a new inspection is scheduled for May 24, 2010. Walz said that the applicant is court -ordered not to rent more than three bedrooms under the provisions of the Bed and Breakfast Homestay use. The applicant is requesting the special exception to increase the number of bedrooms that can be rented out from three to five. Walz reviewed the requirement of the Specific Standards for this special exception. She said that Bed and Breakfast Inns are allowed in owner -occupied, detached single-family dwellings subject to the approval of the Board of Adjustment. Walz said that the first criteria states that the principal use of the property must be as an owner -occupied single family dwelling, the definition of which has been outlined in the staff report. Walz said that the applicant maintains that the principal use of the property is as a single-family, owner -occupied dwelling; however, no evidence has been provided to support this. Walz noted that the applicant has requested that all five of the bedrooms be made available for rent. She said that staff believes that the application cannot satisfy the requirement that the principal use of the property is owner - occupied single-family if all five bedrooms are available for rent; the owner -occupied, single- family use would be subordinate to the rental use if that was the case. Walz said that staff is in agreement with the applicant for most of the other specific criteria, and that the property is otherwise suited to be a Bed and Breakfast Inn, because: 1) they cannot rent Iowa City Board of Adjustment May 12, 2010 Page 3 of 11 more than five bedrooms; 2) there is sufficient off-street parking; 3) there are no resident employees; and, 4) there are no rooming units on -site. In terms of the required rental permit, the applicant does have a scheduled re -inspection for the code violations found on the initial inspection. Walz next addressed the General Standards. Walz stated that the first standard states that the specific proposed exception will not be detrimental to or endanger the public health, safety, comfort or general welfare. She said that staff believes this criteria cannot be satisfied until the Building Official has inspected the property to ensure that all items meet code. The second standard requires that the 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. Walz said that the intensity of the use would be appropriate for the neighborhood, as the area contains a mix of residential and commercial uses. She said that for this reason, the proposed exception also will not impede the normal and orderly development and improvement of the surrounding area. Walz noted that because the subject property is in a fully developed neighborhood, all of the required drainage, access roads, utilities and necessary facilities are already in place. Walz said that ingress and egress would typically be from the alleyway and are adequate for the proposed use. Walz said that it is staff's belief that the Building Official must re -inspect the property before it can be determined whether or not the exception conforms to all other aspects of the applicable regulations and standards of the zone. Staff further believes that if all five bedrooms are made available for rent, the application cannot satisfy the code requirement that the principal use of the property is owner -occupied single-family. Walz stated that the Comprehensive Plan does not specifically address bed and breakfast uses; however, it clearly supports a diversity of businesses and uses to serve the community. The Plan does directly address public safety and includes goals to "continue to maintain the prevention of fire as the primary objective of the fire department" and to "actively participate in the enforcement of building and fire codes." Before staff could make a recommendation on this application, the Building Inspector must verify compliance with all fire protection, wiring, plumbing and building codes. Additionally, there is the outlying issue of whether or not this property meets the requirement of being principally a single-family owner -occupied use. Given that the building has five bedrooms and that the application requests the use of all five bedrooms for rental purposes, the principal use of the property is called into question. Staff believes that making all five bedrooms available for rent would make the owner -occupied use a secondary use for the property, thereby making it impossible for the property to meet the first specific criteria of the special exception requested. Walz said that staff recommends the denial of EXC10-00004, an application for a special exception to establish a Bed and Breakfast Inn at 511 East Washington Street. Eckstein invited the Board to ask questions of staff. Anderson said that he assumed that a hotel or motel use could be approved in that zone, and asked if that use would allow the property owner to operate the facility as they wished to under a different title. Walz said that a Guest House would be permitted in the zone, but that she would Iowa City Board of Adjustment May 12, 2010 Page 4 of 11 have to check on whether or not a hotel or motel could be. Walz explained that a Guest House can be non -owner occupied, and permits up to nine bedrooms to be rented. Walz said that a Guest House requires a license from the state in addition to compliance with city code. Walz noted that Stan Laverman from the Building Department was present and available for questions. Laverman conducted the inspection referenced in the staff report. Walz confirmed that a hotel use would be permitted in the CB-2 zone. Eckstein opened the public hearing. Nila Haug, 517 East Washington Street, said that she had been successfully operating the Golden Haug Bed and Breakfast for 20 years. Haug said that she and her partner had acquired the home next door, 511 East Washington Street, and that they live in both residences at some time or another. She said that they have no resident employees, but that her 89-year old mother, her brother, and her son all have come to live with her, and help out around the bed and breakfast. She said that at one time she herself had to go stay at the Brown Street Inn because there were not enough rooms available in her homes. She said that they live in the rooms that are not occupied. Haug said that the rooms at 511 East Washington are quite expensive by some standards because it is a newer facility, and that there are not a lot of guests that stay there. She said she would like to be able to increase her income since there are so many people now living in her home. Haug said that if all five bedrooms were ever needed for rental, then they would give up their bedroom and rent it out to guests. Haug said that when she opened her bed and breakfast 20 years ago, there were no codes concerning bed and breakfasts in the CB-2 zone. In 1998, she was informed that she would be required to have a permit to operate her bed and breakfast, and to submit to inspection. She said that the more rooms she can rent out, the more hotel/motel tax she can charge and collect for the City. Haug said that they would like permission to rent all five bedrooms, noting that they are hardly ever occupied. She said she could not really provide evidence that they reside at 511 East Washington other than utility bills, unless she was to invite staff over to witness them sleeping in the residence. Jennings asked if there was a reason that Haug did not pursue Guest House status if in fact the idea was to have a separate property with available rooms. Jennings noted that there was no special exception required for a Guest House. Haug said she had originally requested Guest House status, and was told by Jan Ream, Code Enforcement Specialist, that she would need to apply to the State of Iowa for that permit. Haug said that when she applied to the State for the permit, the State said the City had said she could not do it. Haug said she did not know who the State spoke with regarding that. Walz deferred to Laverman on that issue. Laverman, Senior Housing Inspector, said that a Bed and Breakfast Inn or Homestay would be considered a residential use, and a Guest House is a commercial use. A commercial use would require compliance with current commercial building code regarding separation, stairways, ingress/egress, etc. Laverman said it is difficult from a building standpoint to make an older home comply with the commercial building regulations required for a Guest House. Haug asked what Laverman meant by "separation." Laverman explained that each unit would be considered a separate unit, and the owner would have to provide documentation that there was clear separation, with no shared utilities, and the required fire separation. Tyson said she understood Laverman to be saying that separation between each bedroom unit would be required. Greenwood Hektoen said she believed the focus should stay on what the Iowa City Board of Adjustment May 12, 2010 Page 5 of 11 application is actually requesting. She said there is a lot of history with this property, and the Board needs to consider on what is being requested on the present application. Anderson said that it seems the primary issue is one of occupancy. He asked if there was not one of the five members of the family that could claim to reside for 90 days at the subject property. Dennis Nowotny, 517 East Washington Street, said that approximately 85% of his belongings have been at 511 East Washington Street for three years. He said that other than a bed check, he did not know what else it would take to show he was a resident there. Tyson asked how the applicant had fallen into the situation where they were not complying with code at the property at 511 East Washington Street, when they had successfully operated an identical business next door for 20 years. Nowotny said that city code allows three unrelated people to live in your home without having to mess with inspections and rental permits, etc. Nowotny said they had owned the 511 East Washington Street property for about four years, and have been operating it on the premise of having roomers under those guidelines since that time. Haug said that last autumn she began replacing basement windows. At that time, an inspector stopped by asking if she had a permit to do so, as changing the size of the windows had made acquiring a permit necessary. Haug said she had been unaware that a permit was necessary and had asked if she could apply for one the following business day. When she applied, she was told she could not get a building permit until she applied for a rental permit because she was putting egress windows in the basement. She said she was simply trying to get more light into the basement by enlarging the windows. She said that ultimately they went to court with the City because she did not need a rental permit and they were attempting to force her to apply for one. She said that it was determined that it was not enough for the family to live in the house, it had to be the deed -holder. She said this is how the whole mess got started. Eckstein asked if it was the case that the 511 East Washington Street property has, up to this point, been operating as a bed and breakfast, renting three rooms with one or more members of the applicant's family living in the other two rooms. Haug noted that only one bedroom was occupied by family members, but that it was not always the same bedroom because specific rooms were sometimes requested. Haug said that it was not a traditional bed and breakfast, because breakfast is not eaten there. She said the rooms are large and have living rooms that form suites; a lot of people do not eat breakfast, which was one reason why they originally called it an inn. Eckstein said her understanding is that there were two unresolved issues with the application: one concerning occupancy, and a second issue concerning code compliance for the rental/building permits. Walz said that was correct. Jennings asked staff if there had been additional evidence regarding owner -occupancy that had been requested but not submitted. Greenwood Hektoen said that she regarded the oral testimony given at the meeting to be the additional evidence. Greenwood Hektoen said that the burden is on the applicant to establish that they meet the necessary criteria, and that in staff's opinion that burden has not been met. Tyson asked what the applicant had presented in terms of establishing owner -occupancy. Greenwood Hektoen said that only the testimony given before the Board. She said it is up to the Board to weigh the testimony. Jennings asked if it is correct that the applicant is asserting that at any given time one or more of the family members Iowa City Board of Adjustment May 12, 2010 Page 6 of 11 is occupying one or more of the five bedrooms at the subject property for a minimum of 90 days. Jennings said that his understanding is that while the bedroom the applicant is living in may change, they are asserting that they remain residents of the property. Walz said that the issue of the applicant's occupancy is unclear in two ways. First, there is the issue of "owner -occupancy," in which the deed -holder is an occupant of the property. The second question is: what the principal use of the property? Staff believes that if all five bedrooms are made available for rent, then the principle use cannot be owner -occupied, single- family housing. She said that it sounds as though the principal use would be rental property with the owners occupying the property from time to time. Anderson said that while he is troubled by the same question, the 90-day threshold is so low as to contradict the idea of owner -occupancy. Walz said that the 90-day threshold defines who is an owner -occupant, it does not define the principal use of the property. Haug asked what the difference between owner -occupancy and principal use was. Walz said that principal use would be the primary use of the property. Haug said that if the principal use of the property is that it must be owner -occupied, and if the definition of owner occupied is 90-days, then the principal use requirement is fulfilled by their arrangement. Greenwood Hektoen noted that the principal use needs to be as a single-family dwelling. Anderson said that his understanding is that there are two thresholds that need to be met: the owner occupancy and the primary use of the property. He said that if the applicant were to live in the property 90 days a year but to rent out all of the rooms the other 275 days, then the primary use would not be as a single-family residence, but as a rental unit. Haug assured Anderson said that she would be retired if the rooms were occupied 275 days a year; she said that her occupancy at 511 East Washington Street was quite low. She said the reason she runs the bed and breakfast is because she likes to decorate, and she likes the lifestyle, and she likes the fact that she is offering choices to visitors to the area. She stated that she and her family live in the home more than they have guests there. Tyson noted that the testimony has been that there are five bedrooms, but not how many kitchens/baths are in the unit. Haug said that the home has five bedrooms, five bathrooms and three living rooms. Tyson said her question is how does the applicant actually do their living in the home if it is a single-family dwelling; how much and what space do they occupy? Haug said there is a bathroom for each bedroom and they use the bathroom for the suite they happen to be occupying. Haug said that for 20 years her family has lived out of a damp basement, and that they like to live in a nice space, which is why they live in 511 East Washington Street primarily. Haug said that since her 89-year old mother came to live with them, they use the rooms in the 511 East Washington Street home when they do not have guests at the bed and breakfast next door. Anderson asked if the rental permit specifies which bedrooms will be occupied by renters and which by the owner -occupants. Laverman said that under the current agreement the City cannot specify which rooms can be made available for rent so long as all rooms meet requirements and are habitable. He said that the Board may be able to do so, but the inspection office cannot. Greenwood Hektoen noted that the rental permit is for the whole dwelling. Eckstein invited other members of the public to speak. Iowa City Board of Adjustment May 12, 2010 Page 7 of 11 Mark McCallum, 932 East College Street, said that he used to own the Brown Street Inn. He said that he had applied for this same special exception in 1994, and that to his knowledge his is the only one that has been granted in an RS-5 zone. McCallum said that he sold the Brown Street Inn approximately seven years ago, and that it remains in operation. McCallum said that the primary concern expressed by neighbors when he purchased the home was that it would become a rooming house. He said that as people came to understand him and his business, they came to view the inn as an asset to the north side neighborhood. McCallum said that it can be difficult for some people to understand innkeepers, and that they often fall between the cracks when it comes to zoning matters. McCallum said that as a commercial real estate agent he understood that the "highest and best use" for all three of Haug's properties would be to tear them down and develop apartments in their stead. McCallum said that the proposed use, an inn with five guest rooms, would be less than half that of an apartment building in terms of density, and significantly less in terms of income potential. McCallum said that whether it is called a Guest House, a Bed and Breakfast, or a Hotel, the property would provide lodging, or "Hospitality -Oriented Retail" as the zoning code calls it. McCallum said that Haug is bringing something very vital to this CB-2 neighborhood. McCallum said that the definition of the zone in the zoning code is to provide a transition between residential and commercial. He asked the Board to consider the uses that could be allowed in the place of this bed and breakfast. He said that South Gilbert Street could easily be replicated in just those three lots. McCallum said that if Haug was focused on money, she would hire a realtor, sell the lots for development, and could easily walk away with a million dollars. He said that, instead, Haug is all about lifestyle, and that he is asking the Board to consider that aspect of this application. He said her goals are in keeping with the Comprehensive Plan and she is trying to bring some unique transitioning between the residential areas and the intensely commercial downtown areas. McCallum noted that it is very common for innkeepers to move from room to room in their house. He said he does the same thing in his apartment building as he is renovating it, and did it at the Brown Street Inn as well. McCallum said that when he was renovating the Brown Street Inn he really appreciated how the City worked with him, even though he may not have met every criteria for doing so. He said that he hopes the Board takes those issues into consideration. Eckstein thanked McCallum for the useful context he had provided. She asked if McCallum had applied for the entirety of the sleeping areas to be rentable when he applied for his special exception for the Brown Street Inn. McCallum noted that the Brown Street Inn actually had six sleeping areas. He said that innkeepers move around to accommodate their guests, often based on pricing and marketing to individual customers. McCallum said that Haug actually has themed rooms that are very specific to individual taste. He said having the flexibility to offer different rooms at different prices is necessary for innkeepers. He also noted that there are peak times that need to be taken advantage of, such as weekends with home football games and other special events. McCallum said that it is not uncommon to have an occupancy rate of less than 50%. If Haug were to put an apartment building on the lot, it could have 13 apartments with three bedrooms each, which would mean at least 39 occupants on the same parcel. On a busy night, McCallum said, Haug likely has no more than five or six people in that space. Greenwood Hektoen redirected McCallum to the question of whether or not the Brown Street Inn's special exception retained a room for the owner to occupy even at maximum rental occupancy. McCallum said that was correct. Iowa City Board of Adjustment May 12, 2010 Page 8 of 11 Eckstein asked why the applicant chose to come before the Board at this time, given the fact that there would be another meeting in June and that there was an outstanding inspection. Haug said that the permit has been paid for, the inspection was held, and all but one of the outstanding inspection issues has been resolved. Haug said that she had asked Laverman and Ream a question about the outstanding issue and that they had told her to go the library and research the matter. Haug said that they had told her the zoning code requires a landing (rather than the step that is there presently) at the exit of the home. She said she asked Ream to provide her with a copy of the code and Ream told her it was proprietary information and she needed to go to the library and look it up. Haug said she wants to see the code prior to spending $1,000 for stones that she may not even really need. Laverman said that all outstanding issues from the initial inspection have not been addressed. He said that all plumbing fixtures that have been added need permits, and the permits have not yet been applied for. The renovations that were done to the property also require permits, and none of those have been applied for either. Haug offered a counter -argument to Laverman's comments, however, she did not speak into the microphone so the comments were lost to the record. Greenwood Hektoen advised that the details of the inspection were for the applicant and the Housing Inspections Department to resolve in another forum. Pam Michaud, 109 South Johnson, said she had been neighbors with Haug since 1990. She said that she and the other neighbors present have been intensely involved with historic preservation in Iowa City. Michaud said that she owns rental properties, which she furnishes and rents primarily to international scholars. She said that such places are a tremendous asset to the area, and that their neighborhood is a well -kept, active, trendy neighborhood. She said she supports the use of codes and that she believes the code violations are resolvable, but that she wanted to reiterate what McCallum had said about the unique service Haug's property provided. She said that she hopes Haug retires after she herself does, because she does not want to have to look at yet another under -occupied, under -taxed apartment building. She said that she knows it is not an issue for this Board, but that it is a painful fact that small landlords pay 100% taxes, whereas huge landlord operations like the Clark family pay 50% taxes because they can take the steps necessary to have their apartments zoned as condos. Michaud said that historic properties maintain the character of their settings. She said that the City has poured a lot of time and resources into historic properties, specifically in that neighborhood, and she would like to see Haug's properties stay in the neighborhood. There were no further comments from the public and Eckstein closed the public hearing. Eckstein invited a motion. Tyson moved to approve EXC10-00004, an application for a special exception to allow a Bed and Breakfast Inn to operate in the Central Business Service (CB-2) zone at 511 East Washington Street. Anderson seconded. Jennings said that he is hesitant to vote for this application with so much of the inspection information still outstanding. He said he is not able to support the motion at this time. Anderson said he too is torn, because he can appreciate the benefit to the neighborhood that the inn provides. He said that he has, in fact, been charmed by the houses each time he walks by; he thinks they are a great addition to the neighborhood, and he can absolutely understand why people would want to stay there. Nonetheless, the fact that the occupancy is so much in Iowa City Board of Adjustment May 12, 2010 Page 9 of 11 question is problematic for him. He said it is not difficult for him to imagine that someone would transition between bedrooms to facilitate the requests of guests; however, it is a question as to whether the principal use of the home is as the single-family, primary residence of the deed - holder. Anderson said that having the outstanding questions surrounding the permits resolved would have been helpful. However, he is having difficulty supporting the application. He said that he could more easily support the application if it was for the renting of four bedrooms, retaining one for owner -occupied living space. Tyson said that she has trouble supporting the application as presented. She said that as much as she would like to support it, more evidence is needed regarding owner -occupancy, and she would like to have seen the inspection issues resolved prior to voting on the matter. She said she hates to vote it down without having those issues resolved. Greenwood Hektoen noted that the applicant was informed of staff's concerns about the application but opted to move forward with it anyway. Jennings said that he is very supportive of this type of use. He said he is very much aware of what the alternative might be, and that it is not necessarily an attractive one for him. He said that he is constrained by a narrow range of criteria upon which he can act. He said that of primary concern to him at this point is the violation of building and other codes. Jennings said that he cannot in good conscience vote in favor of a facility when there are outstanding code violations. He said this was not a statement about the intent of the violations, or how the violations came to be, or a comment on any of the parties involved. Jennings said he lives in a neighborhood where over -occupancy and code violations are rampant, and he finds that unacceptable. He said that he believes hospitality is an area where it is critical that basic code issues are addressed. Jennings said that he understands the frustrations and difficulties that sometimes arise between the City and homeowners in these cases, but that it is not his role to resolve those difficulties. Jennings said that he would like to offer a friendly amendment to allow the applicant to defer the application until the June meeting so that the May 24`h inspection can have taken place prior to the Board voting on the matter, which would give the Board more information regarding the inspection issues. Jennings said that this would also give the property owners the chance to restate or present their evidence regarding owner -occupancy. Jennings said that at present he is being asked to judge on the basis of "he said -she said" and that is not conducive to good decision making. Greenwood Hektoen repeated that the applicant had chosen to move forward with the application in spite of the deficiencies staff had pointed out. She said she did not believe there was anything that would prevent the Board from deferring; however, the applicant had been given that option and had chosen to proceed. Jennings noted that there is an existing motion on the floor that would first have to be resolved before a deferral could be considered. Tyson said that if the motion was to be amended then she would need to see concrete owner - occupancy information submitted and the inspections resolved before she could consider supporting the application. Anderson said that the code and permit violations are secondary in his mind at this point, as he has no doubt those will be resolved at some point in the future. The greater issue for him is the issue of owner -occupancy and the principal use. He said he did not wish to provide false optimism to the applicant that a deferral would necessarily result in a different outcome. Iowa City Board of Adjustment May 12, 2010 Page 10 of 11 Eckstein asked if the Board needed to do findings of fact and vote on the motion on the floor before considering any other options. Walz said that if the Board wished to defer, the best course of action might be to withdraw the motion and defer until such time as the inspection has taken place. Walz said that this would allow the applicant to come back the following month to show inspection issues had been resolved. Greenwood Hektoen said that the Board would not have to do findings of fact to defer. Tyson withdrew her original motion. Tyson motioned to defer the application until the June meeting, and asked that the applicant provide substantial proof of occupancy and proof of inspection results. Greenwood Hektoen stated that if the Board had found any other issues in the staff report that they felt needed to be further addressed, now would be the time to make those known. Jennings seconded. A vote was taken and the motion to defer carried on a 4-0 vote (Sheerin absent). Walz stated that the next meeting is on June 9, 2010, and this will be the first item on that agenda. She said she anticipated at least one other item on that agenda. She asked if all Board members would be present for that meeting, and they indicated that they believed they would be. Anderson asked if he could offer a general observation to the applicant about the case, and Greenwood Hektoen said that he could. He said that he believed there was still an outstanding question as to what qualifies as evidence of occupancy. Anderson said that to his mind, given the fact that there are five members of the family, if there were multiple deed -holders residing there or receiving mail there that would suggest to him that the property was their primary residence. Tyson said that for her that would involve a history of mail, not just mail delivered in the next 30 days. BOARD OF ADJUSTMENT INFORMATION: None. ADJOURNMENT: Tyson motioned to adjourn. Anderson seconded. A vote was taken and the motion carried 4-0 (Sheerin not present). 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