HomeMy WebLinkAbout09-12-2012 Board of AdjustmentCITY OF IOWA CITY
IOWA CITY BOARD OF ADJUSTMENT
Wednesday, September 12, 2012
5: 15 P.M.
Emma J. Harvat Hall
STAFF REPORT
CITY OF IOWA CITY
Department of Planning & Community Development
IOWA CITY BOARD OF ADJUSTMENT MEETING
Wednesday, September 12, 2012 - 5:15 PM
City Hall - Emma J. Harvat Hall
AGENDA
A. Call to Order
B. Roll Call
C. Consider the July 11, 2012 Minutes
D. Appeal Item
APL12-00002: Discussion of an appeal submitted by Justin Mulford to overturn a decision made by
Iowa City's Historic Preservation Commission that denied a Certificate of Appropriateness for the
demolition of 111 & 115 S. Governor Street in the College Hill Conservation District.
E. Board of Adjustment Information
F. Adjourn
NEXT BOARD OF ADJUSTMENT MEETING: October 10, 2012
City of Iowa City
MEMORANDUM
Date: September 12, 2012
To: Board of Adjustment
From: Sarah Walz
RE: Appeal of the denial of a Certificate of Appropriateness to demolish
houses at 111 and 115 South Governor Street.
BACKGROUND:
At its June 14 meeting, the Historic Preservation Commission (HPC) considered an
application for a Certificate of Appropriateness to demolish two contributing
structures located in the College Hill Historic Conservation District in the order to
construct a fraternity house. The HPC's 0-8 denied Justin Mulford's (applicant)
request to demolish these properties. Mr. Mulford is now appealing that decision.
ANALYSIS:
Iowa City's Historic Preservation Guidelines state that:
"A Certificate of Appropriateness for the demolition of any primary building on a
contributing property within a conservation or historic district, or any landmark,
will be denied unless the applicant can demonstrate that the building is
structurally unsound and irretrievable."
and
"Before a Certificate of Appropriateness for demolition will be approved for a
primary building, the Iowa City Historic Preservation Commission must approve
a Certificate of Appropriateness for the building that will replace the one being
demolished."
While an inspection by an engineering firm indicated the presence of structural
defects in the foundations of both houses, the report of a professional building
inspector and the consulting architect indicate that the defects are not uncommon in
houses of this age and that the defects are reparable. (See HPC packet, attached.)
The minutes of the Historic Preservation Commission meeting (attached) indicate
that the Commission members reviewed this information and cited it in support of
their unanimous decision to deny the Certificate of Appropriateness to demolish the
two structures. The Commission also noted the absence of a design for the building
proposed to replace the structures.
Similarly, the Denial of Certificate of Appropriateness document (attached) includes
the following statement in support of the denial:
"The Commission found that the proposal was unable to pass the three -
pronged test used as guidelines for making decisions on demolition projects.
For the demolition proceed: 1) The building must be structurally unsound; 2)
September 5, 2012
Page 2
If the building is found to be structurally unsound, the building must be
irretrievable; 3) If the building is found to be structurally unsound and
irretrievable, the replacement building must meet design guidelines. The
Commision stated that there are some features of the buildings that need to
be repaired. However, the Commission determined that, based on a report by
City staff from a visit to the buildings with a consulting housing inspector the
buildings are repairable."
In his appeal of the decision to deny a Certificate of Appropriateness for demolition
(attached), Mr. Mulford does not dispute that the defects to the foundation of the
house are reparable. He indicates instead that repaired buildings will not last as long
as a new structure.
CONCLUSION:
In deciding this appeal, the Zoning Code states that "the Board of Adjustment shall
consider whether the Commission has exercised its powers and followed the
guidelines established according to this Title, and whether the Commission's action
was patently arbitrary or capricious."
At issue is not whether the Board of Adjustment agrees with the Historic
Preservation Guidelines as written, rather the Board must decide whether the
Commission applied the guidelines as written. Mr. Mulford has not provided any
evidence indicating that the Commission was in error in interpreting the guidelines.
Staff believes that the meeting minutes and its written decision (the Denial of
Certificate of Appropriateness statement) show that the decision was not in error but
in accordance with the Historic Preservation Guidelines.
ATTACHMENTS:
1. Memo from the City Attorney
2. Application requesting appeal.
3. Denial of Certificate of Appropriateness.
4. HPC Guidelines for demolition.
5. Minutes of the June 14 HPC meeting.
6. Documents submitted to the HPC for consideration on June 14.
Approved by:
Jeff Davidson, Director
Department of Planning and Community Development
City of Iowa City
MEMORANDUM
TO: Board of Adjustment
FROM: Sarah E. Holecek, First Assistant City Attorney
DATE: September 5, 2012
RE: Appeal from Historic Preservation Commission's denial of application for
Certificate of Appropriateness; 111 and 115 South Governor Street
The purpose of this memorandum is to set forth the rules that govern your consideration of
the above -referenced appeal. In deciding the appeal you must first determine:
Whether the Commission exercised its powers and followed the guidelines
established by law and the Historic Preservation regulations of the City Code;
and
2. Whether the Commission's action was patently arbitrary or capricious.
You will receive a memo from Planning staff on the background of the appeal, the record
produced by the Historic Preservation Commission (HPC), and the applicable guidelines
that govern the HPC's decision. Element No. 1 above requires you to determine whether
the Commission properly followed (used/relied on) the relevant historic preservation
guidelines. Element No. 2 requires you to determine whether the Commission's decision to
deny the application was patently arbitrary and capricious. A decision is "arbitrary" or
"capricious" when it is made without regard to the law or the underlying facts of the case.
Arora v. Iowa Board of Medical Examiners, 564 N.W. 2d 4, 7 (Iowa 1997). A decision is also
"arbitrary" or "capricious" when it involves an "abuse of discretion". An "abuse of discretion"
occurs when the action rests on grounds or reasons clearly untenable, unreasonable, or
lacking rationality in light of the actors' authority. Dico Inc. v. Iowa Employment Appeal Bd.,
576 N.W.2d 352, 355, (Iowa 1998).
The above -stated "standard of review" is a narrow one. The Board is not entitled to simply
substitute its judgment for that of the Commission. In other words, you may not reverse the
Commission's decision merely because you disagree with it. Rather, if you find that the
Commission exercised its powers and followed the guidelines established by law, and that
its decision was not patently arbitrary or capricious then you must affirm the Commission's
decision.
If you find that the Commission did not exercise its powers and follow the guidelines
established by law, abused its discretion or acted patently arbitrarily and capriciously you
may, in conformity with the provisions of the Historic Preservation regulations, affirm (for a
different reason), wholly or partly; reverse, wholly or partly; or, modify the decision of the
Commission to deny the application. You may make such decision as ought to have been
made, and to that end you will have the powers of the Commission. In other words, you will
stand in the shoes of the Commission and are bound by all the guidelines and rules that
govern the Commission's decisions on applications for certificates of appropriateness and
may make a decision in accordance with those guidelines and rules. HOWEVER, as noted
in the staff report, no plan for the replacement building was submitted for review and
September 5, 2012
Page 2
approval by the Commission under the district design guidelines, which is the third
requirement to be met for obtaining a Certificate of Appropriateness for Demolition. Thus, if
you find that the Commission abused its discretion or acted patently arbitrarily or
capriciously, I suggest that you make that finding and then remand (return) the matter to the
HPC for the review of any such plan submitted by the applicant, as the Commission is the
appropriate body to determine whether any such plan is in compliance with the guidelines.
With respect to your deliberations in connection with the above, it is essential that you read
the entire record of the proceedings before the Commission and all information submitted to
you as part of the public hearing process. You are required to decide the appeal within a
"reasonable time." If, during Wednesday's meeting, you are in need of any additional
information in order to make a decision, then you may defer your decision. The agenda is
only intended to give notice that a motion to decide the appeal may be made. The
substance of that motion is, of course, unknown at this point. If, on Wednesday night, you
decide that you have all the information you need and no further time for deliberation is
necessary you should close the public hearing and decide the appeal. The motion to decide
the appeal will be in the form of a motion to affirm, wholly or partly, or modify the decision of
the Commission concerning the application, taking into consideration the potential for
remand to the Commission for review of a replacement building plan. Again, in making your
decision, you step into the shoes of and have all the powers of the Historic Preservation
Commission. The reasons for your decision must be clearly articulated.
APPLICATION TO THE
BOARD OF ADJUSTMENT
APPEAL
DATE: + J Z PROPERTY PARCrrE/L� NO,
PROPERTY ADDRESS: IIJ iIS SL�trniefno, 1�.
PROPERTY ZONE: K__g�t--Za p�'D PROPERTY LOT SIZE:
APPLICANT: Name: J-j5tivy K"gj
Address:
Phone: 3 LI - L3 (- oil l
CONTACT PERSON:
Name:
(if other than applicant)
Address:
Phone:
PROPERTY OWNER:
Name:
(if other than applicant)
Address:
Phone:
5Z2g1
The Board of Adjustment is empowered to hear and decide appeals where it is alleged there is
error in any order, requirement, decision or determination made by the City Manager or
designee in the enforcement of the Zoning Code or of any ordinance adopted pursuant thereto.
Please see 14-BC-3 in the Zoning Code for detailed information on the appeal procedure.
Planning staff are available to assist applicants with questions about the appeal process or
regulations and standards in the code.
Decision being appealed: The applicant alleges that an error hag bee ade b th following
administrative official (list title)g=6,.,,, Gd }lsiov�� `'on `f I 0
in enforcing the Zoning Ordinance in rela ion to the property listed above . Please indicate the
section of the Zoning Ordinance cited in the official's decision,
Purpose of the Appeal: The applicant wishes to challenge the above decision based on the
interpretation of the following section(s) of the Iowa City Zoning Ordinance. (This section of the
code may or may not be different from the section cited in the decision being challenged,)
Summary: In the space provided below, or on a separate sheet, summarize the basis for your
appeal referring to the code sections listed above and providing sound reason(s) for overturning
the decision. (Provide evidence demonstrating that the decision was based on an improper or
erroneous interpretation of the Zoning Codel.
r..
DENIAL OF CERTIFICATE OF APPROPRIATENESS
lrc,: �i C:itt
0111i:"1.' y 3i(>Y't
t Lli 1 ui.Ata , nn?+I; t
DENIAL OF CERTIFICATE OF APPROPRIATENESS
111 and 115 S. Governor Street
A meeting of the Iowa City Historic Preservation Commission was held at City Hall on June 14, 2012, at 5:95 p.m.
The following members were present: Kent Ackerson, Esther Baker, Thomas Batdridge, William Downing,
Andrew Fitton, Pamela Michaud, Cinalie Swaim and Frank Wagner.
A motion to approve a Certificate of Appropriateness for a demolition project at 'Ill and 115 S. Governor Sri ect
failed by it vote of 0-8. The project would have demolished the structures at Ill and 115 S, Clovemor Street,
cone nbuting properties in the College I Iid Conservation District, and replaced them with a fraternity house. 1'Ine
application was denied due to the following reasons:
The Comrnussiou found that the proposal was unable to pass the three -pronged test used as guidelines for
making decisions on demolition projects. For the demolition project to proceed: 1) The building must be
structurally unsound; 2) If the building is fowid to be structurally unsound, the building must he
irretrievable; 3) If the building is found to be structurally unsound and irretrievable, the replacement
building must meet design guidelines. The Commission stated that there are some features of the
buildings- that need to be repaired. IIowever, the Commission determined that, based on a report by City
staff from a visit to the buildings with a consulting mouse inspector the buildnags are repairable.
Also at the June 14 meeting, the Commission raised concerns about the possibility of demolition by neglect. As a
result, the Comnussion approved a motion, by a vote of 8-0, to request that the Iowa City Housing Department
inspect the buildings- for repairs and defects. Section 7.2 of the Iowa City Historic Preservation Handbook states
that all buildings and structures that contribute to a Conservation or Historic District must be preserved against
decay, deterioration, and kept free from structural defects. t%ccordingly, all such buildings and structures must be
maintained in accordance with the provisions of Section 17-5-19 of the Housing Code. Based on the investigation,
the Building Official may take any enforcement action necessary to correct or prevent further violation.
The decision may be appealed to the Board of Adjustment, which will consider whether the Historic Preservation
Commission has exercised its powers, and followed the guidelines established according to this Title (Title M of
Iowa City Zoning Code), and whether the Commission's action was patently arbitrary or capricious (Iowa City
Zoning Code, Article 14-8.12-21)). To appeal, a written letter requesting the appeal must be filed with the City Clerk
no later than 10 business days after the date of the filing of this certificate.
Ginalie Swain, Chan
Iowa City Historic Preservation Conurrission
it
Robert Mildo, Senior Planner
Iowa City Planning & Commurrity Development
<<7
Date
Iowa City Historic Preservation Handbook HPC GUIDELINES
7.0 Guidelines for Demolition,
Demolition involves the complete removal of a building or a portion of a building. Removal of
dormers, decorative trim, porches, balusters, chimneys and other significant features requires a
permit for demolition, and therefore historic review. The Historic Preservation Commission will act
to ensure the prevention of demolition by neglect and to ensure historically appropriate steps are
taken during the remediation of dangerous conditions.
7.1 Demolition of Whole Structures or Significant Features
A Certificate of Appropriateness for the demolition of any primary building on a contributing prop-
erty within a conservation or historic district, or any landmark, will be denied unless the applicant
can demonstrate that thebuildingis structurally unsound and irretrievable. A d_ecision_to_apprgye.a
Certificate of Appropriateness for the demolition of outbuildings on contributing and noncontribut-
ing properties, and primary buildings on noncontributing and non -historic properties, will be made
on a case -by -case basis. For these cases, the Commission will consider the condition, integrity
and architectural significance of the outbuilding or noncontributing building.
A Certificate of Appropriateness is also required for the removal of any portion of a building, such
as a porch, porch balustrade, decorative brackets and trim, dormers, chimney or other architectur-
ally significant components on any structure within a district, or on any landmark.
Before a Certificate of Appropriateness for demolition will be approved for a primary building, the
Iowa City Historic Preservation Commission must approve a Certificate of Appropriateness for the
building that will replace the one being demolished. These projects will also be evaluated using 6.0
Guidelines for New Construction and 8.0 Neighborhood District Guidelines
Recommended: Designing replacement garages to be
compatible in design with the primary
• Removing additions or alterations that structure and/or other outbuildings in the
are not historic and that significantly neighborhood. See 6.0 Guidelines for
detract from the building's historic New Construction.
character or that are structurally unsound
and are a safety hazard Disallowed:
• Removing non -historic buildings and Demolishing any primary building on a
structures that detract from the historic contributing property within a conserva-
40
character of a district. Such buildings tion or historic district, or any Iowa City
should be replaced with buildings that Historic Landmark.
60
are more compatible with the district.
to,
Removing any historic architectural fea-
• Saving and storing on site any historic ture, such as a porch, chimney, bay win-
40
architectural features such as windows, dow, dormer, brackets or decorative trim,
doors and trim that are removed from a that is significant to the architectural
40
building or structure. character and style of the building.
40
• Retaining historic garages. If the period Not Recommended:
40
garage is insufficient for modern-day ve-
hicles, efforts should be made to con- Removing significant historic site fea -
410
struct a new garage on another portion of tures on the property such as brick drive -
the site. ways and iron fences.
7.2 Prevention of Demolition by Neglect
40
All buildings and structures that contribute to a Conservation or Historic District; or that are
60
listed or are eligible for listing on the National Register of Historic Places, regardless of whether
`c
they are in a designated Historic or Conservation District, must be preserved against decay,
deterioration, and kept free from structural defects. Accordingly, all such buildings and
structures must be maintained in accordance with the provisions of Section 17-5-19 of the
6
Housing Code, Responsibilities of Owners Relating to the Maintenance and Occupancy of
Premises.
6,
The Historic Preservation Commission may file a petition with the Building Official requesting
6
investigation of any applicable building or structure suspected of neglect or deterioration. The
00
Building Official will proceed with investigation and may take any enforcement action necessary
to correct or prevent further violation. Failure to comply with the stated corrective action may
0
result in penalties and/or legal action.
48
HISTORIC PRLSHRVATION C AMISSION
JUNH 14, 2012
page 5 of 9
HPC MINUTES
Downing said that a shorter window would have a higher sill. W ch7cl said Peterson thought that might work better,
although he did not know if it was for loug-term adaptability or because they are smaller windows.
Michaud asked if tlne door would have a half light on top. Weitzel said that is the plan, instead of a full glass door.
He said it will probably be a fiberglass door for ease of rise and security.
MOTION: Litton moved to approve a certificate of appropriateness for an application for 523 Grant Street,
as presented in the application but with either window design, with the following condition: provide final
design details at the column and door, 1'or review and approval by Chair and staff. Baldridge seconded the
motion. The motion carried of it vote of 8-0 (McMahon and Thomann absent).
1 I I K 115 South Governor Street -
Swaim said these two properties are in the College Hill Conservation District. Miklo showed the location of the
properties on a map. He said they are between College and Washington Streets on the west side of Governor Street.
Miklo said I I I S. Governor is a classic foursquare house, and 115 S. Governor is a craftsman style house, built in
the first quarter ofthe last century. He stated that both of these houses are contributing struchues in tine district.
Miklo said the proposal is to remove both structures and replace them wish a fi aternity house.
Miklo stated that the Commission had received sketches of how that might look but not full, detailed plans. He
showed an illustration of the back of the property. Miklo said the application proposal states that there are problems
With the foundations of Tile two houses, and there was a report from an engineer indicating that there are some
defects with the foundations. Ile said that star ,f and a consulting housing inspector viewed the houses with the
applicant.
Miklo said that for the most part, the foundations are not exposed, so that it is diffictilt to see. He said that in some
locations, such as under the porch where the foundations are exposed, there is some slight deterim'ation but nothing
unexpected in buildings of this age. Miklo said staff feels that although there has been some neglect to these
properties in terms of maintenance and there are some issncs with some of the additions that could be fixed, the
main structures are still sound and repairable.
Miklo stated that, according to tine guidelines and what the Commission needs to follow in making a decision like
this, there are basically tivee tests to determine if the application meets the guidelines. He said that one test is that
the buildings are structurally unsound. Miklo said there is a report indicating that there are some defects. He added
that the consulting architect, Peterson, and the consulting housing inspector agree that there are some defect's but that
the buildings are not structurally unsound.
Miklo said, if the Commission answers yes to the first question, the second test is, are they irretrievable or
irreparable. He said that again staff finds that the answer to that question is no — that the problems with the
foundations and some of the other deterioration of these buildings could certainly be repaired. Miklo said there
would be some expense involved, but that would be maintenance of the property
Miklo said the third question is whether the replacement building meets the design guidelines. He said that staff
cannot really answer that question at this point, as the applicant did not want to spend the money to come up with a
design if there was not a possibility of removing the existing buildings.
Miklo said that staff is therefore recommending that this application be denied, because it does not meet the
guidelines in terms of two of the key tests, with the third test as yet unknown. He added that there is something
called demolition by neglect, which would indicate that if the Commission does not approve this, there should be
some repair taken. Miklo said that is something that the City's Inspection Department would look at before issuing
new rental permits for these properties.
Male asked Mulford, the applicant, if it is his opinion that these properties are structurally deficient. Mulford
answered that he had an engineer come through, and the footings on both of the front porches have basically
HISTORIC PRESERVAI [ON C,-_vIMISSION
JUNE 14, 2012
Page 6 of 9
decayed. He said when they laid all the supporting members of the strictures, they laid them lengthwise across the
entire house; they didn't take them from the house, lag them to the house, and then run them out to supporting
structures in the front. Mulford said the porches actually ]rind of swale and puddle; they puddle water whenever rain
comes in from the side. He said the porches need a lot of work, and one of the porohes has a crack up where it
meets the house, and the siding is pulling away from the house, because the footing structures of the porches are
deteriorating a lot faster than the actual foundation.
Mulford said that on the back of 115 South Govemor, the far left corner has actually settled two to three inches. He
said it was an old deck converted into a kitchen. Mulford said the floor system needs some significant work. It
needs to be jacked up. He said there is a good amount of foundation work, outside of the fact that they are not
waterproofed. Mulford said they are all clay tile. Mulford said there is a significant amount of work that a
foundation company would need to do to make these buildings last fo more than five years. IIe said that at the rate
they are going, five to ten years down the road they are going to start to have extreme amounts of damage.
Ackerson asked about the clay tile. Mulford said there is a crawl space underneath the other side of it, but then that
ends where it juts out a little bit, and then it is just open to air. He said there is a lattice that is just open.
Michaud asked if the deterioration was just the corner piers or the entire porch. Mulford responded that just the
corner piers where they are exposed to the elements.
Downing said that periodic maintenance and repair are necessary for any building. The defects do not rise to the
level requiring the demolition of the entire structure. He said the Commission sees a lot of porch repair. Downing
added that a five-year life span on a 90-year-old clay the foundation is probably an exaggeration. IIe said that a
large percentage of houses in this area have clay tile foundations, and he wouldn't say that they are going to collapse
in the next five years.
Mulford said he does not mean the entire foundation but just certain areas. He said the clay tiles in the back corner
and some of the clay tiles in the front porches have deteriorated.
Michaud asked how the houses are classified for rent. Mulford said they have been grandfathered in as rooming
houses, which are allowed one person per bedroom. He said one house has seven bedrooms, and the other has eight.
Wagner said this was discussed at a previous Commission meeting, and he asked what had changed. Miklo
responded that this involves all actual application, whereas that was just an informational discussion.
Mulford said that if this is approved for a certificate of appropriateness for demolition, he would like to construct a
building to be consistent with the neighborhood. IIe said there are at least four sororities in that neighborhood, and
this neighborhood is there to preserve the Greek society. Mulford said he would basically be adding to the Greek
society by putting a new structure here, something similar to the Alpha Chi house that was demolished in the
tornado and then redone.
Swaim said the commission will evaluate this based oil the guidelines contained in the Historic Preservation
Iandbook. Laurian asked if there is a requirement that an owner keep up his property, or if an owner taut let it go for
another tell years and then say that it needs to be demolished. Miklo answered that the City's requirements do have
a provision regarding demolition by neglect. He said that the Historic Preservation Commission can certainly ask
the Housing Inspection Department to take a closer look at these properties, in terms of what needs to be done to
stabilize the porches, etc. Michaud said it was crucial to repair the kitchen deck area.
MOTION: Downing moved to approve a certificate of appropriateness for an application for Ill and 115
South Governor Street. Litton seconded the motion.
Baker stated that the guidelines seem very clear in this type of situation. Looking at section T I of the Historic
Preservation Handbook, she said that removing any primary building is disallowed unless it meets the criteria.
HISTORIC PRESERVATION Cam— (MISSION
UNE 14, 2012
Page 7 of 9
Regarding whether the buildings are unsound, Bakersaid there are clearly some things that need to be repaired.
Regarding whether' the buildings are irreparable, she stated that there arc enough people at the table with experience
in this who would say that it will cost some money, but the porches and kitchen and those kinds of things are
reparable, and we have not seen a replacement plan.
Regarding demolition by neglect, Baker said the guidelines in point two require that all sh-uchtres in conservation
and historic districts must be preserved against decay and deterioration to prevent demolition by neglect. She said
that because die problems are not insurmountable, she does not think there is justification to make an allowance
here. Baker said the Commission has disallowed the demolition of houses that are in worse repair than these two
houses. She said there is no precedent to make an exception here.
Ackerson asked how the City would guarantee there would not be demolish by neglect. Miklo commented that the
City has a couple of tools in this regard. He said the City could cite the owne'(s) for violating this clause, and there
is also the passibility that the City might not renew or might pull the rental permits if inspectors find that this repair
w'or'k is not done.
The motion failed on a vote of 0-8 (McMahon and Thomann absent
MOTION: Baker moved that the Commission request that the Iowa City Housing Department inspect these
properties for repairs and defects. Michaud seconded the motion. The motion carried on a vote of 8-0
(McMahon and Thomann absent).
REPORT ON CERTIFICATES ISSUED BY CHAIR AND STAFF:
Miklo said there wee a number of certificates of no material affect for which repahs were approved. He said he
would answer any questions from Commission members.
SLBCOMMITTEE_REPORT ON POTENTIAL LOCAL HIS ORIC DISTRICTS.
Miklo said that the Commission is exploring both Jefferson Street and the Melrose Neighborhood as historic
districts and is doing some of the research and legwork at this point, before going public with the proposals.
Jefferson Street National Historic District.
Swaim said the subcommittee has not discussed this district further but has focused on the Melrose historic district.
Melrose National Historic District.
Swaim stated that Walker had volunteered to give the Commission members a walling tour of the Melrose
Neighborhood. Swaim said that four or five Commission member went on the tour and that it was very
educational.
Swaim said that she and Miklo recently met with several members of the Melrose Neighborhood Executive Board
for about two hours. She said the members wanted to have some basic questions answered, and it was a very helpful
discussion. Swaim said there will be a neighborhood -wide meeting at some point to discuss the proposal and what it
will mean.
Walker thanked Swaim and Miklo for their presentation and said it was excellent. Walker commented that
neighborhood member would be, happy to do walking tours with member of the City Council as well as with
University officials.
CONSIDERATION Oh MINUTES FOR MAY 10. 2012:
HPC PACKET
Staff Report June S, 2012
Historic Review for Ill & 115 S. Governor Street
District: College Hill Conservation District
Classification: Contributing
The applicant, Justin Mulford, is requesung approval for demolition of the houses at 111 and 115 S.
Governor Street, both contributing properties in the College. Hill Conservation District. The applicant is
proposing construction of a new fraternity house on these two Lots.
Applicable Regulations and Guidelines:
70 Iowa City Historic Preservationi Guidelines for DCBlolitiori
7.1 Demolition of Whole Strictures or Significant Features
7.2 Prevention of Demolition by Neglect
Staff Comments
These adjacent houses on South Governor Street ate both two-story, wood framed, with clay file foundations,
wood clapboard siding, and asphalt shingles. 111 S. Governor is a typical foursquare; the hip roof has swept
caves, and there are matching hip dormers. 'Phis house has narrow sidling, mitered at the corners; windows are
double -hung, with a fixed sash `picture' window on the front. The fullwidthfront porch has large paneled
columns, a solid wall tailing, and the porch roof is supported by a wide elliptical arch. The Iowa City Assessor
lists 1922 as the date of construction. The Iowa Site Inventory Form prepared in '1994, when the College Hill
neighborhood was surveyed, lists the construction as c.1900/1922. It was also noted on the Inventory Norm
that this house had become a multi -family residence, `intact and well maintained,' original with the exception
of a metal fire escape added on the front fa4ade.
115 S. Governor was built in 1927, according to the Iowa City Assessor; the Iowa Site Inventory Form lists
a1910 — 1915. This is a Craftsman style house, with side gabled roof, shed roofed dormer, and frill -width
front porch with shed roof. 'Nindows are double hung, and on the front there are two large multi -paned
windows with leaded glass transom. Classic features of the Craftsman style include wide, unenclosed eave
overhang; exposed roof rafters; and front porch with square columns. At the time of the 1994 survey, this
house was also a multi -family residence, owned by the same property owner as 111 S. Governor. It was also
noted as `intact and well maintained.'
Side by side, these two houses are prominent on the 100 block of South Governor Street; they are both multi-
family rental properties; and they have a history of being sold together.
The applicant is proposing to demolish both houses and in their place build a new fraternity house.
The proposed new fraternity house would be two stories, approximately 50 feet deep x 80 feet wide, with a
total of 24 bedrooms — eight down and sixteen up.
The guidelines for demolition (7.1) state that a Certificate of Appropriateness (COA) for the demolition of
any primary building on a contributing property will be denied unless the applicant can demonstrate that the
building is structurally unsound and irretrievable.
The guidelines also state that before a COA for demolition will be approved for a primary building, the
Historic Preservation Commission must approve a COA for the building that will replace the one being
demolished. Historic Review for a new fraternity house in this location would require that the applicant meet
the guidelines for new construction (6.1 New Primary Structures), and the guidelines specific to the
neighborhood (8.2 College Hill Neighborhood), and the guidelines for a multi -family building (9.0 Design
Guidelines for Multi -family Buildings). Furthermore, a COA for a new multi -family building cannot be issued
until the design has been reviewed for compliance with site development standards defined by the Iowa City
Zoning Code. At this tine, the applicant's proposed plans are not sufficiently developed to begin any of these
reviews.
Regarding prevention of demolition by neglect (7.3), the owners of buildings that contribute to a designated
Historic or Conservation District must preserve those buildings against decay and deterioration, and the
buildings must be kept free from structural defects. The Historic Preservation Comm scion may file a petition
with the Building Official requesting investigation of any applicable building suspected of neglect or
deterioration.
In Staffs opinion, these two houses appear reasonably stable and functional, in spite of obvious deferred
maintenance and lack of repair, and at this time they do not meet the definition of structurally unsound and
irretrievable. The construction methods and materials are similar to other houses of the time, which remain
indefinitely serviceable with proper care and maintenance. This assessment is supported by a building
inspection conducted by Stephen Burns, whose report is attached.
In both houses the basements are finished to provide living spaces, and the foundation walls are for the most
part covered by plaster or furred out and paneled. yWherc the foundation walls are exposed they appear intact
and stable, and overall the walls do not show signs of significant braving, cracking, or settlement. Viewed
from the exterior, the walls do not appear to be failing, and observed areas of broken tile and missing mortar
appear repairable.
Overall the structural frarning in both houses appears to be reasonably stable, and deficiencies seem
repairable. There is significant settling of the northwest corner of the kitchen addition at 115 S. Governor,
where the foundation is not original and may not be sufficiently deep. The front porches on both houses are
also in need of significant repair, especially at the support piers, floor supports, and steps, yet overall these
porches ate still salvageable.
As there is not sufficient evidence that either of these houses is unsound and irretrievable, it is staffs opinion
that a Certificate of Appropriateness for demolition should be denied.
Recommended Motion
Move to deny a Certificate of Appropriateness for the project at 111 and 115 S. Governor Street.
Stephen R. Burns, Inc. Home & Building Inspection
P.O. Box 943 Iowa City, IA 52244 Tel: 319-400-4844 Fax: 319-358-9284 Finail: sr burnsinc@ginaitcom
MEMO INSPECTION REPORT
TO: Bob Miklo, Cheryl Peterson, et al.
FROM: Stephen R. Burns
RE: Brief Overview Structural Inspection of 111 and 115 S. Governor Street
INSPECTION DATE: 5-5-12 with Bob Miklo, Chery Peterson, and Justin Mulford
INTRODUCTION
As discussed and per Client request, this was a brief visual overview of the general structural and
repair condition of the 2 buildings rather than a typical detailed real estate inspection.
GENERAL COMMENTS
Bath buildings appear in similar physical condition. Both appear generally stable, functional and overall
repairable. However, repair and maintenance needs are significant with many areas of neglect or
deferred maintenance observed.
The primary focus of the inspection was structural stability and general viability. The structure can be
considered to have 4 main components, 1) the main house foundation and 2) the main house framing
including floors, walls and roof structure and 3) the additions and 4) the entry porches. A garage is
present at 111 Governor, considered as a separate 5" component. The components and
characteristics are addressed as follows:
FOUNDATIONS
Foundations of both buildings are clay tile, as was typical of era. Clay tile foundations are known to
have less lateral strength than concrete block or poured concrete foundations. Nevertheless, a clay tile
foundation is not inherently deficient and can serve indefinitely with proper care and maintenance.
While the inspection was very limited by interior wall coverings and the normal limited view of any
exterior foundation wall due to ground cover, the overall impression of is that the foundations in both
houses are generally intact and stable. The foundations appear in similar condition to others of the
same type and era that remain in service.
• Isolated areas need repair. See, for example, below the window in the window well on south
side of #115. Also some isolated block repair/replacement on interior.
• Most other visible interior areas did not show a need for significant repair, other than some
possible tuck pointing. Wall coverings would need removal to fully determine extent of all
maintenance or repair needs.
• Lateral movement or bowing did not appear significant, based on surface view at exterior and
general impression of interior as visible.
• In all foundations, but especially with clay tile, the grading and gutter system need to be
maintained to direct water away from the foundation, preventing damage from frost action.
FRAMING STRUCTURE
Framing structure appears intact and functional overall. Some deflections observed as typically
associated with age and settling. These deflections appear well within expected norm for age of
structure. Specific repair needs not immediately apparent. Limited inspection. But some isolated
support is advised for long term performance. See, e.g. header and joists at fireplace. Joist hangers
advised where they would be helpful.
111 & 115 S. Governor St
ADDITIONS
Each building has rear additions on separate footings. As follows:
Building 111: Rear porch addition has had poured concrete pier foundations added some years ago.
These appear intact and stable and likely at frost footing level. Verify as possible. The framing above is
somewhat deflected or irregular configuration. The framing support might be adequate but in need of
straightening and possible strengthening. Irregularity could be largely eliminated by lifting and replacing
main post supports.
Building 115: Rear addition is partially from original era with original foundation. Later addition
northwest portion of this foundation has open joist with corner pier support using concrete blocks.
Blocks are intact but deflection/settling in framing structure above indicates probable lack of frost footing
at this pier. Frost footing could be added. Deflection could be largely eliminated by raising structure
back to level following pier repair.
ENTRY PORCHES
Front porches on both buildings appear salvageable but with significant repairs needed for long term
performance. Repair needs include: one or more pier replacements, step replacement, if floor
support, and probable flooring replacement. Upper structure, roof, and posts/columns appear largely
intact, functional, and salvageable.
GARAGE
The garage at Building 111 does not appear likely savable in a cost-effective manner. North wall would
need full rebuild. Southwest corner also would need rebuild. Cost of repair could exceed cost of
replacement. Replacement thus more advisable.
CONCLUSIONS
The houses are judged overall viable as structures. Structural condition is similar to other houses of the
era that remain in satisfactory service and were built with similar materials. Maintenance and repairs
are needed for general livability and to preserve the buildings over the long term.
END OF REPORT
AGREEMENT:
The Inspection Company agrees to conscientiously apply its experience and knowledge to provide an objective visual inspection
and warrants that it has no financial interest in the Property. No other warranty or liability is expressed or implied by this A reeme
In using this report, the Client agrees and under stands that this Report is not a buildino warranty nor is there any assurance that
items found functional shall remain so for any specified length of time.
Client understands that this was a very limited general visual inspection, as requested, and that further technical inspection of any
component is available at additional cost. Client agrees to not hold Inspector or Inspection Company liable for any unintentional
oversight, and agrees that Inspection Company liability shall in no case exceed the inspection tee.
Stephen R. Burns, Inc.
ASHI Certified Inspector#252076
111 & 115 S. Governor St
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Application for alterations to the historic landinarks or For Staff TJse:
properties located in a historic district or conservation district Date submitted: pursuant to Iowa City Code Section 144C. Guidelines for
the Historic Review process, explanation of the process and ❑ Certificate of No material Effect
regulations can be found in the Iowa City Historic ❑ Certificate of Appropriateness
❑ Major review
Preservation Handbook, which is available in the PCD office ❑ Intermediate review
at City Hall or online at: www.icgov.org/HP]iandbook ❑ Minor review
The HPC does not review applications foi compliance with building and zoning codes. Work must
comply with all appropriate codes and be reviewed by the building division prior to the issuance of a
building permit.
Meeting Schedule: The HPC meets the second Thursday of each month. Applications are due in the PCD
office by noon on Wednesday three weeks prior to the meeting. See attached document for application
deadlines and meeting dates.
Property O,ivuer/Applicagt Information
(Please cbe4k primarvcontact person)'
.—W Property Owner Name: I w
Email: �r..L-_,. Y'�wii'a- ��{-y..., (_ cm,,,r„ Phone Number:
Address: L�7.
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City: �mrexVu��z. State: s.�-/+ Zip Code: S'2-7_44 d
❑ Contractor / Consultant Name:
Email: Phone Number:
Address:
City: State: Zip Code:
gg PCroposedProjectInfoircm�ation .
Address:
Use of Property: _LV�,VAA" rr�_S Date Constructed (if known)
❑ This property is a local historic landmark.
OR
This Property is within a historic or conservation district (choose location):
❑
Brown Street Historic District
❑
College Green Historic District
❑
Bast College Street Historic District
❑
Longfellow Historic District
❑
Northside Historic District
❑
Summit Street Historic District
❑
woodlawn Historic District
❑
Clark Street Conservation District
&
College Hill Conservation District
❑
Dearborn Street Conservation District
❑
Governor -Lucas Street Conservation
District
Within the district, this property is classified as:
;�- Contributing ❑ Noncontributing 11 Nonhistoric
Choose appropriate project type. In order to ensure application can be processed, please include all listed materials.
Applications without necessary materials may be rejected.
❑ Addition
(Typically projects emoting an addition to the building footprint such as a room, porch, deck, etc.)
❑ Building Elevations ❑ Floor Plans ❑ Photographs
❑ Product Information ❑ Site Plans
❑ Alteration
(Typically projects entailing work such as siding and window replacement, skylights, window opening alterations, deck or porch
replacement/construction, baluster repair, or similar. If the project is a minor alteration, photographs and drawings to describe the
scope of the project are sufficient.)
❑ Building Elevations ❑ Photographs ❑ Product information
❑ Construction of new building
❑ Building Elevations ❑ Floor Plans ❑ Photographs
❑ Product Information ❑ Site Plans
Demolition
(Projects entailing the demolition of a primary structure or outbuilding, or any portion of a building, such as porch, chimney,
decorative trim, baluster, etc.)
❑ Photographs
Ill— Proposal of Future Plans
❑ Repair or restoration of an existing structure that will not change its appearance.
❑ Photographs ❑ Product Information
❑ Other:
Please contact the Preservation Planner at 356-5243 for materials which need to be included with application.
Proposed Project Details.
Project Description:
i2
Materials to be Used:
Rxterior Appearance Changes:
ppladmin/lustpres/app_for histoncrevier¢doc 12/11
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VJ engineering
2570 holiday road, suite 10
Coralville, Iowa 52241
Ph: (319) 338-4939 fax: (319) 338-9457
Engineering — surneying
May 10, 2012
Ralston Creek Holdings
Attn: Justin Mulford
2972 Ash Ct
Coralvilte, IA 52241
Re: 11 1 & 115 S Governor St, Iowa City, IA
Dear Mr. Mulford:
At your request, we conducted a structural inspection of the two referenced buildings. Both
buildings are two-story, wood framed residential structures with basements. The inspections were limited
to exposed structural elements with no Finishes removed or destructive testing.
115 S Governor
The following structural defects were noted:
1. The exposed basement/foundation walls were composed of structural clay tile with a thin cementious
coating applied to the exposed exterior portion. The exposed walls were bowing inward from lateral earth
pressure. These non -reinforced walls do not have adequate lateral strength to resist the applied earth
pressures_ There were also numerous broken or deteriorated clay tiles that further compromised the
foundation capacity.
2. The northwest kitchen addition is experiencing settlement of the CMU piers and decay of the wood
framing bearing on these piers. This combination is resulting in the rotation of the addition and it is
palling away from the original structure.
3. The Gant porch foundation is settling and severely deteriorated. Additional shoring was added but it is
also settling and no longer effective.
4. Numerous cracks in the plaster finishes could indicate deficiencies in the wood training. Wood decay of
roof fascia and soffits was observed.
VJ Engineering
VJ engineering
2570 holiday toad, suite 10
Coralville, iowa 52241
11h: (319) 338-4939 fax: (.319) 338-9457
Engincering— surveying
Ill S Governor
The following structural defects were noted:
l . The basement walls were again composed of structural clay tile. The majority of the inside surface was
furred out and flnished. Large areas of mortar loss were observed on the west exterior surface. These
masonry routs again the not adequate for the imposed ]Literal earth loads.
2. The header over the basement hallway was inadequately framed.
3. The western two story addition is inadequately supported.
4. The front porch has severely settled and deteriorated.
5. Numerous cracks in the plaster finishes could indicate deficiencies in the wood framing. A first floor
bearing wall was removed and it is unknown whether adequate headers were installed.
6. The garage structure west of the house is heavily damaged and deteriorated. This structure is unsafe and
should be removed.
If you have any questions, please give me a call,
Sincerely,
9wit
C. Jacob
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MINUTES PRELIMINARY
BOARD OF ADJUSTMENT
JULY 11, 2012 — 5:15 PM
CITY HALL, EMMA HARVAT HALL
MEMBERS PRESENT: Larry Baker, T. Gene Crischilles, Brock Grenis, Caroline
Sheerin
MEMBERS ABSENT: Will Jennings
STAFF PRESENT: Sarah Walz, Doug Boothroy, Gerald Denning, Sarah
Holecek
OTHERS PRESENT: Robert Wetherell, Michael Pugh, Marc Moen
RECOMMENDATIONS TO CITY COUNCIL:
None.
CALL TO ORDER:
The meeting was called to order at 5:15 PM.
ROLL CALL: All were present.
A brief opening statement was read by the Chair outlining the role and purpose of the Board and
the procedures that would be followed in the meeting.
CONSIDERATION OF THE JUNE 13TH MEETING MINUTES:
Grenis moved to approve the minutes for June 13th, 2012.
Baker seconded.
A vote was taken and the motion carried 4.0.
APPEAL
APL12-00001: An application submitted by NCS Pearson to appeal a decision of the Iowa City
Housing & Inspection Services Director denying a building permit on the grounds that a
proposed 145-foot wind turbine is not an accessory use in the Office Research Park (ORP)
zone.
Walz said that the most recent brief from the appellant suggests that Pearson has been singled
out for denial of the use. She said she wanted to make clear that this is not true. She said over
the past three or four years the Planning and Zoning Department has received occasional
inquiries about wind turbines for both residential and commercial and industrial zones. She said
Board of Adjustment
July 11, 2012
Page 2 of 14
they had requests from Proctor and Gamble and United Foods to install large turbines on their
properties, and in each case they were informed that staff did not believe this was allowed by
the Zoning Code, and they would need to seek an amendment to the Code. She said in this
case there was an error communicated by a Building Inspector who said a turbine would be
allowed. She said the appellant was subsequently denied a permit by the Director of the
Building Department. She said staff is now drafting an ordinance to allow wind turbines at this
scale.
Walz said the question at the heart of this appeal is not whether or not Iowa City should support
wind energy systems, but rather a reasonable interpretation of the Zoning Code as it is currently
written indicates that this is already permitted. She said the Genera Criteria referring to
accessory use in the Code say: accessory uses, buildings or structures, customarily incidental
to and commonly associated with a permitted use, provisional use or special exception, are
permitted PROVIDED they are operated and maintained to the following standards:" She noted
that the appellant refers to standards A-E. She said that in staff's interpretation Criteria A-E do
not stand apart from the first part of the paragraph. An accessory use must first be customarily
incidental to and commonly associated with the principal permitted use and then must also meet
the criteria listed in A-E. She said the Accessory Use chapter in the Code goes on to enumerate
all kinds of uses that are accessory uses and conditions that go along with them and provides
regulations on how they are sited and maintained.
Walz explained that in evaluating whether a use is accessory or not, staff first asks if the
proposed use is commonly associated with an office use or other comparable uses in the zone,
and in staff's opinion, in this case it is not. She said staff then goes on to ask whether there is
another use in the accessory use category that the structure or use could reasonably be
categorized under. She said probably the closest in use in this case is the mechanical
structures, but the regulations limit the size and require screening such that a 145 foot tower
doesn't fit into that category. She explained that the wind helix at the City's environmental
education center does fit into that category and abides by those regulations. She said the 37-
foot wind turbine on the University of Iowa campus was not permitted by the City because that is
a State institution and not governed by City code. She referred to other green building elements
that the appellant had mentioned in the appeal and explained how those are either allowed by
code or not subject to the zoning code but regulated as elements of the building code.
Walz said that while wind turbines have become common in some parts of Iowa, they are not
common in all areas of Iowa nor are they common within city limits. She said that while some a
communities in the state do allow wind energy systems within city limits, those cities have
specific ordinances that regulate them, including distance limits, setbacks, the colors and
materials of the wind turbine, the lighting, fencing, a noise and shadow flicker study, speed
controls for blades and an agreement for removal of the turbine should its use be discontinued.
Walz said the Zoning Code chapter concerning accessory uses carefully regulates both uses
that are "commonly associated" (i.e. garages, fences, decks) as well as those uses that are "not
commonly" associated (i.e. roadside stands, cell towers) with a principal/permitted because
such uses may, if not carefully regulated, have negative effects on neighboring properties. She
said that in the opinion of staff, the assertion that a 140' wind energy system with a spinning
blade is an accessory use so common and incidental to an office building as to be allowed
under the general accessory use provisions without any regulations addressing height, setback,
location, noise, light flicker, etc., is absurd, and staff does not think it is a reasonable
interpretation of the code.
Board of Adjustment
July 11, 2012
Page 3 of 14
Doug Boothroy, Director of the City's Housing and Inspection Department, said he was the
person who decided to deny the permit based on the grounds that it could not clearly be
classified as an accessory use because it is not customarily or reasonably associated with
offices. He said he was involved in drafting the 2005 Code, and it was not an oversight to not
include wind turbines. He said staff did not feel at that time that wind turbines were an
appropriate use in an urban environment. He said had he interpreted that the subject 140-foot
tower is allowed as an accessory use for any office use in an ORP zone, that would open the
door to allowing these structures in ORP zones without any standards except for construction
standards. He said that decision would have been irresponsible.
Baker asked about the City allowing a wind turbine on its own property, implicitly endorsing the
idea of wind turbines in comparable zones. He asked Boothroy if he had been involved in that
decision and how high that tower is.
Boothroy stated that he wasn't involved in that decision, and he believes the turbine to be about
23 feet tall and is behind and shielded by the building.
Baker stated that although he realizes the 37-foot tall tower on the University property is outside
the jurisdiction of the City, the legal brief talks about similar or the same as established wind
turbines, and he wants to get some idea of comparisons.
Boothroy explained that if he interprets that this is a permitted accessory use for any office there
are no height requirements or performance standards in the ORP zone. He said the setback
requirements are minimal. He said that to open the door to allow this type of structure without
any kind of regulation is irresponsible.
Baker said he understands Boothroy's position. He asked if the Board allows this as of now, are
there are no guidelines.
Boothroy said that was correct.
Sheerin said that one of the arguments is that if something isn't an accessory use commonly
associated, if they don't allow it, it will never become commonly associated. She said because
wind turbines are becoming more common, they should allow them. She asked if the City's
response is that once the ordinance is in place, wind turbines should be allowed.
Walz said yes, in certain zones in conjunction with certain uses at certain heights and setbacks
She suggested that a comparable situation to think about would be the regulations for cell
towers.
Boothroy said that if they adopt ordinances to allow wind turbines, it would only be in certain
zones.
Sheerin said she found the argument that if it's not allowed how can it ever become commonly
used to be persuasive, but if the staff response is that they are creating an ordinance so it can
be used...
Boothroy declared that it was not only his opinion that this wind turbine was not an accessory
use, but that legal staff and planning staff agreed with him without debate that it is not allowed.
Board of Adjustment
July 11, 2012
Page 4 of 14
Grenis asked the reason why the wind turbine on City property doesn't violate 14-4A-2A-4 of the
Code.
Walz replied that in this case the wind turbines limited size allows it to fit into the category of
mechanical structures, and mechanical structures have to be screened either by the building or
other methods. She said the wind turbine on City property can't be seen from the street, and
there are trees to add screening. She said that you can't screen a 140 foot wind turbine, so it
seems to be beyond the scope contemplated for mechanical structures.
Grenis asked if the City's argument under 14-4A-2A-4 was that you could not have wind
turbines if they didn't already exist in the Code.
Walz said staff's interpretation is that it's allowed if you can look to a category in the Code and
make what is specifically being proposed fit in that category, but there is a point at which it goes
beyond the allowable scale and becomes another entity altogether. She cited an example of
when a garden shed becomes so large that it's no longer a shed, or a garden no longer a
garden but a farm.
Grenis asked who gave the okay in December to Shive-Hattery that it was alright to go ahead.
Walz said it was Julie Tallman in the Building Department who indicated that she thought they
could have a wind turbine. She said when the application was received by the City in March, it
was seen by other staff, and the error was pointed out.
Grenis asked if the error resulted in substantial financial investment by the applicant.
Walz said it did
Boothroy explained that Tallman and Shive-Hattery exchanged emails before the application
was submitted, and once it was received, it came to his attention and was denied. He stated
that just because she made an error doesn't justify making a decision that's not compliant with
the Code.
Grenis asked about the cost
Boothroy said he didn't think that was relevant because the Board's concern is whether or not
he erred in terms of his decision that it is not a permitted accessory use. He said the money
issue should be worked out through other venues.
Walz said they are attempting to work out that issue through the development of a new
ordinance.
Sheerin asked if the Board's decision in this case, one way or the other, affects such a claim.
Denning said the Board's purpose is the specific zoning question and how to enforce this
ordinance. He said they should disregard the financial aspect. He explained that it would be
unusual for a company to commit itself to that kind of expense without making it contingent upon
the ultimate approval of the applicant. He suggested that the Board might want to ask a
question of the appellant in that regard.
Board of Adjustment
July 11, 2012
Page 5 of 14
Baker said they are dealing with an interpretive issue here, and whether or not staff made a
mistake is a separate legal issue that the appellant can seek recourse for secondary to the main
issue of whether or not this is a valid interpretation of the ordinance.
Denning agreed that zoning should be the focus for the Board.
Grenis said it seemed that each side had a different definition of accessory use that they are
using. He said the City seems to be leaning toward 14-4C-1 while Pearson is leaning toward 14-
9A-1. He said 14-4C-1 is more inclusive. He asked how the Board is to decide which is the valid
part of the Code that they are to be evaluating.
Denning said that comes down to a question of statutory interpretation, in other words, how you
read these together. He said there is a way of reconciling the two under standard Iowa law. He
said the City wants to get to the point of being able to consider this with the words "commonly
associated". He said Pugh's argument is that you never get to that point.
Walz explained that in the Code itself states that when two things are in conflict the more
specific applies. She said where the appellant is citing A-D is from the definition section of the
Code and 14-4C-1 is the regulation and is the more specific, in the view of the City.
Grenis asked if one of the City's concerns was that if this was approved there were no building
standards in place for it.
Boothroy said his concern was that it was not a legitimate accessory use for an office. He said
had he come to a different conclusion he would open the door to allowing these without
regulation.
Grenis referred to an email from Loren Brumm dated April 5`" which did outline some things that
would need to be completed in order for the building permit to be approved and asked if those
would satisfy any regulations about how it should be built.
Boothroy replied that Brumm was referring to structural standards only. He reiterated that his
decision was based on whether they can reasonably connect the turbine as an accessory use to
an office use.
Walz said she thinks what Brumm refers to in his email is what would be required for a building
permit if it was an allowed use.
Sheerin invited the applicant to speak
Robert Wetherell, Director of Real Estate and Facilities for NCS Pearson gave a synopsis of the
history of Pearson in Iowa City and their current facilities and their uses. He said that the
corporation has long supported energy conservation and use of alternative energy sources as a
normal course of conducting business. He said in December 2011 City officials first informed
their engineers, Shive-Hattery, that the only municipal approval required was the application for
a building permit together with the site plan showing location of the proposed turbine. He
showed the Board pictures of where the proposed turbine would be located on their property.
He said during the first quarter of 2012 they received approval for funding of the wind turbine
project, and based on what their engineers had been told by City staff, they issued a $314,000
Board of Adjustment
July 11, 2012
Page 6 of 14
purchase order with a vendor for the construction of the proposed turbine. He said on March 27,
Tallman informed Tallman via email that the City's previous conclusion was wrong, and a wind
turbine was not a permitted accessory use. He said their formal application was turned down in
April. He said they received a portion of the traffic report in May for the Moss Development
which is west of their property. He said the study proposed a connector street located in the
same area as planned for the turbine.
Mike Pugh of Bradley and Riley, as counsel for Pearson, said the City's primary argument is
that the Code does not specifically list a wind turbine as a permitted accessory use in an Office
Research Zone, but must first be legislated before it can be permitted. He said that argument
fails because under Iowa law an ordinance need not articulate a specific use before it may be
considered an accessory use to a primary use and in light of Iowa's protection of private
property interests. He said in Iowa a land use is permitted unless it is regulated by code. He
said using the City's interpretation, private property owners could not install solar panels and
other alternative energy systems, which Walz identified as mechanical uses, because none of
them are mentioned in the Code. He stated that you could make the argument that wind
turbines could also come under the section of the Code that permits mechanical uses, as they
are not mentioned either.
Pugh said that the law contemplates that it isn't possible for a zoning ordinance to express
every possible use, which is why the doctrine of accessory use allows property to be used in
ways not expressly permitted under the ordinance. He said the City is using the wrong section
of the Code upon which to base their denial. He said the Code specifically defines accessory
use in section14-9A-1, and what Pearson proposes to do would qualify based on that provision.
He said this definition does not include the "customarily incidental to and commonly associated
with" language. He referred to the definition preferred by the City and said that standards a-d
are essentially the same standards that are articulated in 14-9A-1. He said there has been no
dispute between Pearson and the City that their application would not meet either 1-4 of 14-9A-
1 or a-e of 14-4C-1. Pugh said they strongly disagree with the City's assertion that if their
definition is ignored then nearly any use could be claimed as an accessory use because to the
extent an accessory use implicates the specific approval criteria set forth in 14-4C-2, there are
heightened compliance requirements, and other uses that concern the City are addressed in the
Code.
Pugh said in this case the purpose of the Board is to act as a safeguard against the
unreasonable and arbitrary application of the Code. He said the City s decision would not be so
defined were it not for the established precedence in Iowa City for the installation of a wind
turbine, specifically at the City's Eastside Recycling Center. He said the denial of the permit did
not articulate specific differences between why it may be an accessory use in Public zone but
not in OPR zone. He said the denial of the application is suspicious due to the City Planning
Department's support of the Moss Development and the timing surrounding the events
described by Wetherell previously in these minutes.
Pugh said they believe that the City should develop an ordinance regulating wind turbines and
other green technology, and he blamed the Planning and Zoning Department for not making this
a priority before now. He said until a regulation appears, the installation of wind turbines should
be governed by the installation, operation and maintenance provisions already found in the
Code, including the requirements for accessory uses. He said he wanted to clarify what could
be misconstrued in his brief concerning the response from the City Attorney's office, and said
that both Ms. Holecek and Ms. Dikes responded in a timely and professional manner.
Board of Adjustment
July 11, 2012
Page 7 of 14
Baker asked for clarification about Pugh's reference in a letter to Pearson's wind turbine being
26 times smaller than the turbine on the Kirkwood Campus.
Wetherell explained that refers to electrical output.
Baker asked Pugh if one of his arguments is that once the use of a wind turbine is approved on
City property, Pearson's is legally justified.
Pugh said they denied Pearson's use for wind turbines as not an accessory use in ORP zones,
but the denial did not address why it is an accessory use in a Public Zone.
Baker asked if it Pugh's view that without it being clear up front what the City expects in terms of
size, location, set back and other parameters, Pearson has the right to put this 140-foot tower
where it wants.
Pugh said yes, under the accessory use guidelines. He said it's contrary to well settled
principles in Iowa law to say it's not specifically permitted under the Code so you can't do it.
Baker asked what is to prevent them from saying that it's okay to put the same tower that
Kirkwood has in this location.
Pugh said under the City Zoning Code there would be no prohibition to doing that.
Grenis excused himself from the meeting at 6:20 p.m.
Baker asked Pugh if the City's prior approval of its own 23-foot wind turbine is proof that the
denial of the appellant's application is arbitrary.
Pugh agreed.
Baker asked Pugh if according to his argument the size made any difference.
Pugh responded that the size of the wind turbine was not a factor in the denial, and Boothroy's
denial was based solely on the fact that he didn't believe wind turbines were a permitted
accessory use in an OPR zone.
Baker asked Pugh if he thinks it is clear that just by the definition of customary use a wind
turbine could be considered a customary use.
Pugh said he does, for an OPR zone in today's age.
Baker alluded to 14-9-A, a section of the Code that Pugh had referenced in his arguments, and
asked Pugh if the comfort, convenience and necessity of customers and employees will be
affected whether or not the wind turbine is not there.
Pugh responded that several studies indicate that using green technology has a tremendous
impact on the productivity of employees.
Baker asked if there is an arrangement to sell energy generated by the wind turbine.
Board of Adjustment
July 11, 2012
Page 8 of 14
Wetherell said they have no intention of connecting it to the grid and plan to use it only to help
offset the energy cost from their data center.
Sheerin said she wanted to confirm Pugh's interpretation of the language in 14-4C-1. She asked
if he is saying that this section refers to accessory uses and buildings or other structures, so if
the City's interpretation were correct in his estimation, it would have to read accessory uses
which are buildings or other structures customarily incidental to...
Pugh said that is correct.
Walz explained that this section refers to accessory uses, accessory buildings, and other
accessory structures and within that you'll see uses such as a daycare, which may not always
be an accessory use but can be. She said it refers to all three.
Sheerin asked if she is saying that accessory modifies uses, buildings and other structures.
Walz said that's what she is saying.
Pugh said accessory uses is defined elsewhere in the Code and this Code section deals
primarily with operation and maintenance standard.
Denning said he thinks the City is on solid ground to interpret the ordinance using the
definitional section and then reading it together with this section. He said the City is on solid
ground to assert that commonly associated is perfectly appropriate for the Board to consider. He
said the question is what's the appropriate legal method of statutory analysis for the Board.
Baker asked what he meant by his previous comments about something being well settled in
Iowa law.
Pugh replied he meant that an ordinance need not articulate a specific use, such as a wind
turbine, before it may be considered an accessory use to a primary use.
Denning said he would agree with that because it's impossible to list every possible scenario,
but the Code sets out a very clear, logical process of analysis with use categories, sub -groups,
examples and factors. He said he doesn't think there's any problem reading together 14-4C-1
and the definitional section. He said it's very common and favored in Iowa law as a matter of
statutory interpretation to take the definitional sections and start using them elsewhere in the
Code.
Sheerin asked if there is anything wrong with the interpretation that it's accessory uses and then
separately, in addition, buildings or other structures customarily incidental to or commonly
associated with.
Denning said he thinks customarily incidental to is modifying accessory uses.
Sheerin said she believes it is Pugh's position that it is not, that accessory uses is its own thing
and then there are these other buildings or other structures customarily incidental to a permitted
use, provisional use or special exception
Board of Adjustment
July 11, 2012
Page 9 of 14
Pugh said they believe that is a reasonable interpretation of the Code.
Denning said he would respectfully disagree with Pugh.
Crischilles said the way he reads that is that accessory uses are permitted and there are three
opportunities to make it be permitted and those are if it's commonly associated with the
permitted use or provisional use or special exception. He asked if, for example, they said that
this is special exception they could say that it is an accessory use that is permitted.
Denning responded that they need go no further than permitted use because there is no
question that Pearson's facility in this office zone is permitted and legal. He said the question is
if the wind turbine as proposed is an accessory use, and to be that it has to be customarily
incidental to and commonly associated with an office park like Pearson's.
Pugh said he thinks the issue before the Board is if the zoning official's interpretation is arbitrary
because of denying it without articulating why it's allowed in a public zone but not in an office
research park zone or why they do not believe that a wind turbine is customarily incidental to or
commonly associated with a permitted use.
Sheerin opened public hearing.
Sheerin closed public hearing.
Baker moved to approve APL12-00001, an application submitted by NCS Pearson to
appeal a decision of the Iowa City Housing & Inspection Services Director denying a
building permit on the grounds that a proposed 145-foot wind turbine is not an accessory
use.
Crischilles seconded.
Sheerin invited discussion
Baker said it's very obvious that when we talk about an office research park we are dealing with
the abstract but when we are talking about Pearson's we are talking about a particular company
that has a proven track record of concerns for the environment. He said he thinks they have
done an extraordinarily good job in this area and their business. He said, though, that they are
not writing regulations for Pearson, but for office parks. He said there is relief for Pearson on the
issue of whether or not a City decision that was rescinded made them incur costs that they feel
they have some grounds to recover. He said there is a separate remedy for that, and this is not
the issue before the Board.
Baker said he's having a hard time seeing that you could automatically look at these definitions
and say that very clearly a wind turbine fits this definition. He said he thinks the City has been
remiss in not making that clear, and maybe this will expedite that process. He said if this were a
special exception request under a code that's already written with guidelines it would be very
easy to approve. He said this issue is based upon an interpretation by one side that says we
read the Code this way and think we are allowed to do what we want to do. He said the problem
with that is that it seems open ended beyond this particular applicant, that indeed we are talking
about a specific project but following the logic of the applicant and the attorney, it would say not
only that you cannot prohibit this, you can't prohibit a bigger or different project. He said in lieu
Board of Adjustment
July 11, 2012
Page 10 of 14
of guidelines, that would seem to be one of the consequences of approving this application. He
said for that reason he cannot bring himself to agree with the applicant that indeed their
interpretation is self -evidently correct. He said it is a matter of interpretation, and the staff
interprets it one way. He said he tends to agree with the staff's interpretation.
Crischilles said that Pugh's arguments are the stronger and there is some arbitrariness to the
City's decision in the fact that the City has a wind turbine in existence and that was never made
a part of the denial. He said that the City made a mistake and then went searching for reasons
to fix the mistake and came up with a small part of the Code on which to base their argument.
Sheerin asked again why it was a mistake in the first place. She said she is kind of leaning
toward the applicant's arguments, but she doesn't understand the logic of what Crischilles is
saying.
Crischilles said he is mostly persuaded because of Pugh's arguments that the denial didn't
address any specific matters of size, scale, that there was already a wind turbine in place and it
wasn't part of the Code.
Sheerin said she thinks this a poorly drafted ordinance. She said a comma after the word
"buildings" would have really helped. She said this becomes a question of whether this is
commonly associated with permitted use, and the way to do that is to look at whether or not
wind turbines are used in this way in this area. She said she doesn't think the height is relevant,
because that is not the standard that's been presented. She said the standard is whether it's
customarily incident to or commonly associated with, and she agrees with that standard, as
there are two in Iowa City and one in Cedar Rapids and are becoming more common
throughout Iowa. She said if the City wants to regulate wind turbines, that's fine, but it seems to
her that the reason this person in the Building Department made the mistake in the first place is
because she thought these are commonly associated with these uses.
Baker asked Sheerin if her thinking is that because we already allow wind turbines establishes a
common use.
Sheerin said that would be her understanding. She said there are multiple wind turbines in use
in Iowa.
Baker asked about restrictions regarding use on public versus private property.
Sheerin said she doesn't see anything in the Code that talks about a distinction between private
property and public property or how high it has to be or how it has to be screened.
Baker asked if a coal -burning power generation plant on university would allow private coal -
burning energy.
Sheerin replied it would if that's the way the statute is written and it's not otherwise regulated.
Baker he understands, although he doesn't agree.
Baker submitted his general and specific findings as recorded above.
A vote was taken and the motion was denied 2-1 (Baker voting no).
Board of Adjustment
July 11, 2012
Page 11 of 14
Walz said in order for the motion to pass, it would need a vote of three.
Sheerin declared the motion denied, noting that anyone wishing to appeal the decision to a
court of record may do so within 30 days after the decision is filed with the City Clerk's Office.
SPECIAL EXCEPTION
EXC12-00003: A request by Marc Moen to modify a previously approved special exception in
order to provide two required parking spaces off -site in a municipal ramp for a proposed mixed
use development in the CB-10 zone at 114 South Dubuque Street. A special exception
approved in April allowed the two required spaces to be provided at grade within the proposed
building.
Walz said that a number of years ago it was decided that there should be some accounting for
parking for residential uses. She explained that the City Council wanted to provide some relief
for the small parcels that would have trouble providing parking on -site. She said that parking
can only be provided underground. She said to provide parking at grade requires a special
exception. She said Council also mandated that properties that couldn't provide the parking
could request a special exception to provide the parking in a municipal ramp. She explained that
when the applicant came in two months ago he required 14 spaces and provided two of them
on -site at grade and was approved for a special exception to do that. She said he was approved
for a special exception to provide the other 12 spaces in a nearby ramp. She said that
subsequently the applicant discovered that given the small size of the site and the equipment
required to be housed in the ground floor, he could not provide those two parking spaces at
grade without negating the terms of the special exception he had been granted. She said the
question is whether it is reasonable to add those two spaces under the same conditions as the
Board approved the original twelve in the municipal ramp.
Crischilles asked why the special exception was granted.
Walz explained that it met all the conditions for the special exception and elucidated them to
Crischilles. She said that part of that special exception to provide the parking at grade is that
you don't so encroach on the retail space as to severely limit it. She said the applicant also
thinks that the visibility in the alley would make those two parking spaces problematic. She said
that the two parking spaces in question were required parking spaces for the residents, so they
would unlikely be available for the commercial uses. She said that virtually none of the
businesses on the ped mall have any vehicle access in terms of customers.
Marc Moen of 221 East College Street said as they got further into the project, the space
needed for required fire and safety equipment and mechanical apparatus that has to be housed
on the ground floor started to encroach on the commercial space in the building and
necessitated moving the parking spaces to an unsafe location nearer the ped mall contrary to
the conditions of the special exception that was previously granted. He said they have sold the
retail space and over thirty percent of the apartments already.
Sheerin opened public hearing
Board of Adjustment
July 11, 2012
Page 12 of 14
Sheerin closed public hearing.
Baker moved to approve a request to amend EXC12-00003, in order to allow two required
parking spaces to be provided in a municipal parking facility subject to the following
conditions:
1. The applicant must submit the required agreement for off -site parking prior to
securing a building permit. The agreement shall include the following conditions:
a. The permits shall only be available to residents of 114 South Dubuque Street at a
cost not to exceed the market rate determined by the Director of Transportation
Services.
b. At the time of leasing, the property manager must provide the Department of
Transportation the name, license plate number and address of all permanent
holders.
c. Permits will only be granted to residents at the primary address of 114 South
Dubuque Street.
2. The final building plan is generally consistent with the plan submitted as part of the
application with regard to the design of the retail and office floors
3. The residential unit and bedroom mix must comply with the central business site
development standards as set forth in the Zoning Code.
Crischilles seconded.
Sheerin invited discussion on the motion.
Baker said he finds that regarding agenda item EXC12-00003 he concurs with the findings set
forth in staff report of July 111h and concludes that the general and specific criteria are satisfied
unless amended or opposed by another Board member. He recommended that the Board adopt
the findings in the staff report as are findings for the acceptance of this proposal.
Sheerin said she would also recommend that they adopt the findings.
Crischilles agreed.
A vote was taken and the amendment carried 3-0.
Sheerin declared the motion denied, noting that anyone wishing to appeal the decision to a
court of record may do so within 30 days after the decision is filed with the City Clerk's Office.
BOARD OF ADJUSTMENT INFORMATION:
Walz reminded the Board to let her know in advance if they have to miss a meeting. Though a
quorum consists of three, she thinks that additional eyes on the items before the Board is
healthy. She said she had notified the appellant tonight that it was likely that only three
members would be present for the decision, and they decided to go ahead instead of deferring
until the August meeting.
The Board discussed possible alternative meeting dates for August.
Board of Adjustment
July 11, 2012
Page 13 of 14
ADJOURNMENT:
Crischilles moved to adjourn.
Bakerseconded.
The meeting was adjourned on a 3-0 vote.
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