HomeMy WebLinkAbout08-21-2013 Board of AdjustmentIOWA CITY BOARD OF ADJUSTMENT MEETING
Wednesday, August 21, 2013 — 5:15 PM
City Hall — Emma J. Harvat Hall
AGENDA
A. Call to Order
B. Roil Call
C. Consider the July 10, 2013 Minutes
D. Special Exception Item:
APL13-00001: Discussion of an application submitted by TSB Holdings LLC appealing a decision made by
City of Iowa City's Development and Regulations Specialist for denial of a site plan at 902 & 906 N. Dodge
Street & 911 N. Governor Street.
E. Other
F. Board of Adjustment Information
G. Adjourn
NEXT BOARD OF ADJUSTMENT MEETING: September 11, 2013
City of Iowa City
MEMORANDUM
Date: August 21, 2013
To: Board of Adjustment
From: Sarah E. Holecek, First Assistant City Attorney
RE: AP13-0001—An appeal submitted by TSB Holdings of a decision of the
development regulations specialist regarding denial of a site plan in the RS-,12
zone.
In noting that this matter was pending, the City Attorney's Office considered
whether it had a conflict of interest that could dilute Mr. Barkalow's due process
right to fairness and impartiality if the City Attorney's Office participated in the
consideration of this appeal by advising the Board. While there is always a
presumption of honesty and integrity in those serving as adjudicators, the City
Attorney's Office has had significant contact with both staff and Mr. Barkalow
regarding the subject property, and, is presently defending pending litigation
concerning this property. As a result, the City Attorney's Office has recused itself
from this matter before the Board.
If the Board wishes to have legal representation during the hearing on this
matter, it should so state and the defer the application to the next meeting so
outside counsel may be retained. If, however, the Board feels comfortable with
making a determination of the issues in the appeal without legal assistance, the
Board should proceed to make their decision at this time.
r
-._.p CITY OF IOWA CITY
MEMORAND"'UM
Date: August 21, 2013
To: Board of Adjustment
From: Sarah Walz, Associate Planner
Re: Appeal filed by TSB Holdings to overturn a denial of a site plan submitted for
property located at 902 and 906 North Dodge Street and 911 North Governor Street.
BACKGROUND: The applicant, TSB Holdings, is appealing a denial of a site plan for multi-
family buildings on property that is currently zoned High Density Single -Family Residential (RS-
12). The zoning code does not list multi -family residential as a permitted use in the RS-12 zone
(see table 2A-1: Principal Uses Allowed in the Single -Family Zones).
In the fall of 2012, City Council directed staff to initiate a Comprehensive Plan Amendment and
re -zoning for the properties listed in this appeal. Pursuant to the Zoning Code, once a public
hearing has been set for a rezoning, a moratorium is in effect prohibiting any development that
is not in compliance with the proposed zoning. (See attached resolution for the Comprehensive
Plan amendment, signed November 13, 2012, and ordinance rezoning the property, signed
March 28, 2013.)
On January 22, City Council set a public hearing to rezone a group properties from CO-1 and
R3B to RM20 and RS-12. On January 23, the applicant submitted a site plan for development of
multi -family buildings on property proposed for RS-12 zoning. The letter of denial for the
development was issued by Julie Tallman, Development Regulations Specialist, on February 7,
2013 (see Letter 1, attached). At the time the site plan was submitted there was a moratorium in
place on the property requiring compliance with the proposed RS-12 rezoning under
consideration. The reason for denial of the January site plan indicated that multi -family uses are
not permitted in the proposed RS-12 zone.
The properties proposed for development were re -zoned RS-12 on March 28, 2013.
On April 18, 2013, the applicant submitted a new site plan for the development of multi -family
buildings. Ms. Tallman judged the site plan to be materially identical to the previous site plan
denied in February due to the inclusion of multi -family buildings and noted this in her letter to the
applicant dated April 29 (see Letter 2, attached).
ANALYSIS: On May 24, 2013, TSB Holdings filed an appeal seeking to overturn the denial of
the site plan. Pursuant to the rules of the Board of Adjustment, an appeal must be filed in a
timely manner, within 30 days of the denial. City Staff believes the appeal is untimely given that
the denial on the basis that multi -family structures are not allowed in the RS-12 zone was
determined with the first site plan application —the denial dated February 7, 2013. In short, the
appeal to the board should have been filed within 30 days of the February 7, which would have
been March 9, 2013. (Please note that this appeal was originally scheduled for the BOA
hearing in May. The appellant deferred to the August meeting in order to consider a purchase
offer on the property. That purchase did not materialize, and so the appeal comes before you
now.)
The appellant states in his appeal that the subject property is zoned R313. The appellant
indicates that the purpose of the appeal is for the Board of Adjustment to recognize the R313
zone as legally binding per a court order issued in 1978.
August 16, 2013
Page 2
As explained above, the R3B zoning designation is no longer recognized by the City of Iowa
City due to the legislative actions of the City Council in amending the Comprehensive Plan and
rezoning the property.
Chapter 414 of the code of Iowa grants the Board of Adjustment the authority to consider
appeals where it is alleged there is an error in any order, requirement, decision, or
determination made by an administrative officer in the enforcement of the zoning code. Neither
City staff nor the Board of Adjustment has the legal authority to repeal or ignore the City
Council's legislative action, in this case the decision to amend the Comprehensive Plan and
rezone the subject property to RS-12. Only a court of law has the authority to address the
appellant's grievance regarding the change in zoning. The applicant has, in fact, filed a lawsuit
arising from the rezoning.
RECOMMENDATION:
Timeliness: Staff recommends that the appeal be dismissed because it was not filed within 30
days of the determination made by Ms. Tallman (February 7, 2013) that multi -family uses are
not permitted in the RS-12 zone.
Error: If the Board does not believe the applicant is late in filing the appeal, but rather
determines that the April 29 letter was a separate and distinct denial that gave the appellant a
new opportunity for appeal to you, the Board must determine whether Ms. Tallman was in error
in her determination that multi -family structures are not permitted in the RS-12 zone.
In this case staff recommends upholding a denial of the April 18 site plan for the following
reasons:
The zoning for the subject was property was changed to High Density Single -Family
Residential (RS-12) effective March 28, 2013.
Multi -family uses are not permitted in the RS-12 zone.
ATTACHMENTS:
1. Location map.
2. Principal Uses Allowed in Single Family Zones.
3. Resolution Amending the Comprehensive Plan (Central District Plan).
4. February 7 letter denying the site plan.
5. Ordinance rezoning the property to RS-12.
6. April 18 letter noting no material change to the site plan.
7. Site plans.
8. Application materials.
Approved by:
Jeff Davidson, Directdr
Department of Planning and Community Development
io
IH 31ViS
K
NOSNHOP.
CL
2. Principal Uses Allowed in Single Family Zones.
Household Uft Uses
Detadxel Single Family
Dwellings
P
P
P
P
P
Detadied Zero Lot Line
Dwellings
PR
PR
PR
PR
AtiadW Single Family
Dweftin s
PR
PFr
PR
Two-Tamily Uses axes
PR
PR
PR
PR
Group Households
PR
PR
PR
PR
PR
MuhFFami Uaes
See Note
Group Uving Uses
AseMed O LIvi
-Independent Gmu
See Note
Fraternal Group Living
See Note
USE CATEGORIES ISUBGROUPS
I
RR-1 1RSd
RS-S
RS-12
RNS-12
Da re Uses
S
S
S
1 S
S
Educational Facilities
General
PR
S
S
S
S
Specialized
Parks and Open Space
Uses
PR
PR
PR
PR
PR
Rellglous/Prfvate Group
AssemblyUses
PR
S
S
3
3
USE CATEGORIES
SUBGROUPS
RR-1
R&s
R34
R842
RNS-12
umer uses
Agricultural Uses
Plant -related
P
Animal -related
Communication
Transmission Facility Uses
PR
PR
I PR
PR
PR
P = Permitted PR - Provisional S = Special Exception (See 14-4B for requirements for provisional uses and
special exceptions)
Notes:
'Multi -Family and Group Living Uses in the RNS-12 zone must comply with the special provisions Contained in Section
14.2A-7.
' Special provisions may apply to existing Two Family Uses and Attached Single Family Dwellings located on Interior
lots in the RS-S Zone. See 14-2A-7D.
14-2A-3 General provision
Ali principal and accessory uses allowed In this Zone, whether allowed as a permitted,
provisional or special exception use, are subject to the Use Regulations and Site Development
Standards contained in Chapters 4 and 5 of this title and, If applicable, the overlay Zone
provisions of Chapter 14-3. Said Chapters are indicated as follows:
A. Overlay Zones
1. Planned Development Overlay
See Article 14-3A.
2. Historic District and Conservation District Overlay
See Article 14-3B.
3. Design Review
See Article 14-3C.
Title 14: Iowa City Zoning Code Revised 2-20-07
3. Resolution Amending the Comprehensive Plan
Prepared by: Andrew Baseman, Planning Intern, 410 E. Washington St, Iowa City, IA; 319-356-5240
RESOLUTION NO. 1y-4fu
A RESOLUTION AMENDING THE CENTRAL DISTRICT PLAN MAP TO CHANGE THE LAND -USE
DESIGNATION FROM LOW- TO MEDIUM -DENSITY MULTI -FAMILY TO SINGLE-FAMILY AND
DUPLEX RESIDENTIAL FOR PROPERTIES LOCATED AT 905, 909 AND 911 NORTH GOVERNOR
STREET AND A PROPERTY BETWEEN 906 NORTH DODGE STREET AND 910 NORTH DODGE
STREET (CPA12-00004).
WHEREAS, the Iowa City Comprehensive Plan serves as a land -use planning guide by illustrating and
describing the location and configuration of appropriate land uses throughout the city, provides notification to
the public regarding intended uses of land; and illustrates the long-range growth area limit for the city; and
WHEREAS, if circumstances change and/or additional information or factors come to light, a change to
the. Comprehensive Plan may be in the public interest; and
WHEREAS, the current land use designations shown on the Central District Plan Map, a component of
the Comprehensive Plan, reflect outdated policies from the 1960s that encouraged redevelopment of older
neighborhoods at higher densities; and
WHEREAS, City policies, including the Comprehensive and Strategic Plan, have changed considerably
in the last 50 years, and now contain policies promoting neighborhood stabilization rather than high -density
redevelopment, which has proven to have a destabilizing effect on single-family residential neighborhoods;
and
WHEREAS, one of the goals of the Central District Plan is to work to achieve a healthier balance of
rental and owner -occupied housing in the district's older neighborhoods to promote long-term investment,
affordable housing opportunities, and preservation of historic homes and neighborhoods; and
WHEREAS, an amendment to the Central District Plan Map to reflect the current Central District Plan
policies and stated City Council goals by changing the plan map designation to single-family and duplex
residential at a density of 2-13 dwelling units per acre for the below -described land would ensure compatibility
of future redevelopment with the surrounding neighborhoods and promote neighborhood stabilization; and
WHEREAS, the Planning and Zoning Commission has reviewed this amendment and determined that
circumstances have changed to the extent that an amendment to the comprehensive plan map is warranted.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA,
THAT:
The Central District Plan Map designation for property located at 905, 909 and 911 North Govemor
Street and the parcel between 906 and 910 North Dodge Street be changed to Single-family and Duplex
Residential.
Passed and approved this 13th day of November , 2012.
i
Approved by:
ATTEST:
ClTftLERK
City Attorneys Office //y
Resolution No. 12-484
Page 7
It was moved by Payne and seconded by nohyn A the
Resolution be adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
--1L_ Champion
—_ Dickens
— x _ Dobyns
x Hayek
-Y Mims
x Payne
% Thmgraorton
February 7, 2013
Tracy Barkalow,
TSB Holdings LLC
PO Box 1490
Iowa City, Iowa 52244-1490
Dear Mr. Barkalow:
4. February 7 letter denying the site plan.
CITY OF IOWA CITY
410 East Washington Street
Iowa City, Iowa 52240-1826
(319) 356-5000
(319) 356-5009 FAX
www.icgoy.org
The site plan for three, 24-unit buildings on property between North Dodge and North Governor
streets has been denied.
The reason for denial is that multi -family dwellings are not allowed in either the existing zoning
or the proposed zoning. The existing CO-1 zone does not allow multi -family dwellings unless
they are above a commercial use. The proposed RS-12 zone does not allow multi -family
dwellings.
Respectfully,
,Julie Tallm`ah, CFM, CPESC
Development Regulations Specialist
319/356-5132
319/471-2051
julie-taliman@iowa-city.org
C: Sara Greenwood-Hektoen
A.
5. Ordinance rezoning the subject property to RS-12.
Prepared by: Karen Howard, 410 E. Washington Street, Iowa CRY, IA 52240; 319-&%-5234 (REZ12-00016,18, & 19)
ORDINANCE NO. 13-4518
ORDINANCE REZONING APPROXIMATELY 0.47 ACRES OF LAND LOCATED AT
906 N. DODGE STREET FROM MULTI -FAMILY (R313) ZONE TO HIGH DENSITY SINGLE
FAMILY RESIDENTIAL (IRS-12) ZONE AND APPROXIMATELY 1,15 ACRES OF LAND
LOCATED AT 911 N. GOVERNOR STREET FROM COMMERCIAL OFFICE (CO-1) ZONE TO
HIGH DENSITY SINGLE FAMILY RESIDENTIAL (IRS-12) ZONE AND APPROXIMATELY 1.78
ACRES OF LAND LOCATED AT 902 AND 906 N. DODGE STREET FROM MULTI -FAMILY
(R313) ZONE TO MEDIUM DENSITY MULTI -FAMILY RESIDENTIAL (RM-20) ZONE. (REZ12-
000016,18 & 19)
WHEREAS, the City of Iowa City has initiated a rezoning of property located of 906 North Dodge Street
from Mufti -family (R38) to High -Density Single -Family Residential (RS-12); property located at 911 North
Governor Street from Commercial Office (CO-1) to High -Density Single -Family Residential (IRS-12); property
located at 902 and 906 North Dodge Street from Multi -family (R38) to Medium -Density Multi -Family
Residential (RM-20) in order to bring the properties into compliance with the City's Comprehensive Plan; and
WHEREAS, City plans and policies, including the Comprehensive and Strategic Plan, have changed
considerably in the last 40 years, with the current Comprehensive Plan and Historic Preservation Plan
containing policies to encourage preservation of the single family character of the Guys older single family
neighborhoods and policies that serve to stabilize these neighborhoods by encouraging a healthier balance of
rental and owner -occupied housing rather than redevelopment for housing that serves primarily short-term
residents; and
WHEREAS, the Central District Plan indicates that R3B zoning Is obsolete and the properties with this
designation should be rezoned to a valid zoning designation;
WHEREAS, the Central District Plan, an element of the Iowa City Comprehensive Plan, indicates that the
vacant property located immediately north of 906 North Dodge Street and the property at 911 North Govemor
Street are appropriate for single-family and duplex residential development (2-13 dwelling units per acre); and
WHEREAS, the current office development and Commercial Office zoning at 911 North Governor Street
is inconsistent with the Comprehensive Plan and is not well -suited for modem office uses due to its location
on a sloping, one-way street with poor visibility and access; and
WHEREAS, the Central District Plan indicates that the properties at 902 and 906 North Dodge Street are
appropriate for low- to medium -density multi -family development; this designation is intended to acknowledge
the density of the existing multi -family buildings, but not allow further redevelopment or densification; and
WHEREAS, the multi -family buildings at 902 and 906 North Dodge Street were originally developed
under R3B zoning, a high -density multi -family zoning designation that is obsolete; and
WHEREAS, R38 zoning allowed development up to a density of approximately 58 dwelling units per acre
and under this zoning designation the properties at 902 and 606 North Dodge Street were developed at a unit
density of approximately 20 units per acre; and
WHEREAS, the Comprehensive Plan policies in place during the 1960s that led to the R3B zoning on
Dodge Street encouraged demolition and redevelopment of older neighborhoods at higher densities; and
WHEREAS, the City's Zoning Code no longer includes the R3B zoning designation due to its
inconsistency with the City's current comprehensive planning goals and policies; and
WHEREAS, rezoning the subject properties to appropriate and valid zoning designations will
acknowledge the existing multi -family uses located on the properties at 902 and 906 North Dodge Street,
while ensuring that any future development of the vacant parcel located north of 906 North Dodge Street or
any future redevelopment of 911 North Governor Street provides a transition to a density that is more
compatible with the residential character and lower density of the surrounding neighborhood and is consistent
with the goals of the Comprehensive Plan, Central District Plan, and Historic Preservation Plan; and
WHEREAS, the Planning and Zoning Commission reviewed the proposed rezoning and recommend
approval; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA:
SECTION I APPROVAL Property described below is hereby reclassified from its current zoning
designations as indicated below:
Ordinance No. 13-4518
Page 2
LEGAL DESCRIPTION
The property located north of 906 North Dodge Street, as described below, is hereby reclassified
from R313 to High Density Single Family Residential (RS-12):
Commencing at the iron stake in the Southeast corner of Lot 49 in the Subdivision of the BE % of Section
3, Township 79 North, Range 6 West of the 5" P.M., as per the recorded plat thereof; thence North 84.5
feet; thence West 210.0 feet on a line parallel with the South line of Lot 49; thence South 84.5 feet on a
line parallel with the East line of said Lot 49; thence East on the South line of said Lot 49, 210.0 feet to the
place of beginning.
Properties at 902 and 906 North Dodge Street, described below, are hereby reclassified from R38
to Medium Density Multi -Family Residential (RM-20):
All of lot 50 except the South 186 feet thereof, in the Subdivision of the BE %of Section 3, Township 79
North, Range 6 West of the 5th P.M., according to the recorded plat thereof recorded in Plat Book 1, Page
1, Plat Records of Johnson County, Iowa.
The property located 911 North Governor Street, described below, is hereby reclassified from
Commercial Office (CO-1) to High Density Single Family Residential (RS-12):
Lots 8, 9 and 10, Bacon's Subdivision in the south part of Block 1, D.A. Dewey Addition to Iowa City, Iowa,
according to the recorded Plat thereof, recorded in Plat Book 1, Page 5, Plat Records of Johnson County,
Iowa.
SECTION 11. ZONING MAP. The Building Inspector is hereby authorized and directed to change the
zoning map of the City of Iowa City, Iowa, to conform to this amendment upon the final passage, approval
and publication of this ordinance by law.
SECTION III. CERTIFICATION AND RECORDING. Upon passage and approval of the Ordinance, the
City Clerk is hereby authorized and directed to certify a copy of this ordinance and to record the same, at the
office of the County Recorder of Johnson County, Iowa, at the owner's expense, all as provided by law.
SECTION IV. REPEALER. All ordinances and parts of ordinances In conflict with the provisions of this
Ordinance are hereby repealed.
SECTION V BEVERABILITY. If any section, provision or part of the Ordinance shall be adjudged to be
invalid or unconstitutional, such adjudication shall not affect the validity of the Ordinance as a whole or any
section, provision or part thereof not adjudged invalid or unconstitutional.
SECTION VI EFFECTIVE DATE. This Ordinance shall be in effect after its final passage, approval and
publication, as provided by law.
Pass d and approved this 19th day of March 20^,
7 ye aJ
AYOR Pro tau
ATTEST: /��fie./
CI CLERK
Ordinance No. -4 18
Page 3
It was moved by Champion and seconded by _ Dobyns that the
Ordinance as read be adopted, and upon roll call there were:
AYES: NAYS: ABSENT: ABSTAIN:
— x Champion
x Dickens
— x Dobyns
Hayek x
_x_ Mims
x Payne
—x Throgmorton
First Consideration 2/5/2013
VOtefOrpassagc: AYES: Throgmorton, Champion, Dickens, Dobyns, Hayek, Mims,
Payne. NAYS: None. ASSENT: None.
Second Consideration 2/19/2013
Vote for passage: AYES: Dickens, Dobyns, Mims, Payne, Throgmorton, Champion.
NAYS: None. ABSENT: N6ne. ABSTAIN. Hayek.
Date published 3/28/2011
6. April 18 letter noting no material change to the site plan
April 29, 2013
Tracy Barkalow
250 12th Avenue, Ste. 150
Coralville, Iowa 52241
Re: April 18, 2013 Site Plan Submission
Dear Tracy,
cc iD i
S&t+
t i t
°1 IM
CITY OF IOWA CITY
410 East Washington Street
Iowa City, Iowa 52240-1826
(3 19) 3 56-5 000
(319) 356-5009 FAX
www.icgov.org
On April 18, 2013, the City received a site plan (dated April 19) for the properties owned by TSB
Holdings, LLC and/or 911.N. Governor, LLC along Governor and Dodge Streets in Iowa City. This
site plan Was denied on February 7, 2013, as it is identical in every material way to the site plan you
submitted on January 31, 2013. That site plan was denied because multi -family dwellings are not
allowed in the RS-12 zone. I have attached a copy of the February 7, 2013, denial letter for your
reference. Additionally, I note that while the subject land was rezoned effective March 28, 2013,
there was a moratorium in effect at the time the January 31, 2013 site plan was submitted. The
moratorium required compliance with the proposed rezoning. The passage of the rezoning ordinance
does not, therefore, constitute a change in circumstances justifying reconsideration of the site plans
submitted.
We stand by ready to examine a site plan that addresses the deficiencies stated in said letter.
Respectfully,
4lie"Tallma&FMCCOPE�SC
Development Regulations Specialist
319/356-5132
319/471-2051
julle-tallman@jowa-city.org
Attachment
cc: Jim Affelt, Attorney for Applicant
Duane Musser, MMS
Tom Markus, City Manager
Eleanor Dilkes, City Attorney
Sara Hektoen, Assistant City Attorney
Doug Boothroy, HIS Director
Jann Ream, HIS Code Enforcement Assistant
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, 7 January site pan
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8. April site plan
(ylt.4°
APPLICATION TO THE '-tyo
BOAR® OF ADJUSTMENT
APPEAL tw3u�3o, o
�poSK�
1 po �,,� Ss2o 13
DATE: MIRY Zq Zo,3 PROPERTY PARCE .O.lea; s
PROPERTY ADDRESS:._ f foT Ltq t �iMT of LaT 4M /tr✓O I-aTS SveD OF
6f of SECUO D3-7 .-4 ^-Nh LOTS FS,9,/D grtCcd-%SVaPSAo"4:mr
PROPERTY ZONE: 9 '5 R PROPERTY LOT SIZE: 4. o 3 ( Co rc b$*W)
APPLICANT:
Name:,
753 FiaL D4N,.S LL G
Address:
f0saX 1440 TwtrtC*Th aft
522yq
Phone:
CONTACT PERSON:
Name:
Irtrt«( ittftcALo"",
(if other than applicant)
Address;
Pa box I4RD X4p0 CSz7 jA5jz'
Phone:
PROPERTY OWNER:
Name:
_TS a MO L Prole) LL G
(if other than applicant)
Address:
I (tg o c��
Wn-
Phone:
31lip- fo31— 3Z 6 g
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. 14-8C-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.
// nfYL�6PeRfAJT iiU6U4rtTsoN� `4Ee7�tjz,
Decision being appealed: The applicant alleges thaYan error has been made by the following
administrative official (list title)Ju%%.c_ T1RNNtQnr — / on (date) flQpyL R 7013
in enforcing the Zoning Ordinance in relation to the property listed above .Please indicate the
section of the Zoning Ordinance cited in the official's decision:
�(WYE
Purpose of the Appeal: The applicant wishes to challenge the above decision based on the
interpretation of the following section(s) of the Jowa City Zoning Ordinance. (This section of the
code may or may not be different from the section cited in the decision being challenged.)
Coanr t)�t�Ed art Pdot6rt�
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 Code).
521: INSA ttkSo S VMAlirro- 4,:
Remedy desired:
SzTL Pteo s„em-ormo au &#xL * ton pr-me hP+xi�II zor3
Bz RPB4ayso fir, t.vtiti- atacx- 1W 7& ?w0ee n
Arwr asvb_eCd ffl rT • T SW80 n '/Y-6 /-Idt Qfk &s 41-G
City of Iowa City
City Clerk's Office
C/O Board of Adjustments Appeal
410 E Washington Street
Iowa City IA 52240
Dear Board Members,
On April 18, 2013 in the late afternoon TSB Holdings LLC submitted a site plan to the Iowa City Building
Department for the property located on Part of Lot 49, Part of Lot 50 and Lot 51 Subdivision of SE 14 Section 03-
79-06 and Lots 8,9,10 Bacons Subdivision Iowa City IA. The properties in question today currently have an Iowa
Supreme Court Order Case 443611 Kempf vs. City of Iowa City protecting the property zoning as follows:
1. The owner or owners of said properties, and their successors and assigns, shall be permitted to
develop those properties with multiple dwellings (apartments) in accordance with the provisions
applicab)e to the R3B zone in effect on May 30,1978, priorto the rezoning of said real estate which
was finalized on June 28,1978.
2. The City is and shall be enjoined from interfering with development of those properties as herein
provided.
Attached you will find a copy of the courts supplemental order and a copy of a Cityof Iowa City -City
Attorney's Memo supporting the R35 zone on this property for future development of it as a matter of law in the
Courts Decision. you will further see that all the lots listed above with the exception of 8 & 9 & part of 50 are
protected at the R30 zone. Further when reviewing our site plari our structures pre all shown on the Lots that are
protected by the court order and the entire site plan meets all other requirements of the R3B zone in effect on
May 30,1978.
So with that basic information in hand TSB Holdings LLC requests a formal hearing before the Board of
Adjustments so that they have an opportunity to produce for the record an accurate accountof What has
happened regarding the attempt to develop this property per the court order and the City's continued resistance
or interference with this development process. Again our site plan meets the requirehient of the Court Order
attached to this letter.
It is our opinion and the opinion of our companies many attorney's that have review this situation
excessively that the court order protecting the R36 zone is still legally binding on the property today same as it was
before spot'downzoning on March 28, 2013 as an attempt to stop and interfere with the development of the
property by the City of Iowa City. With that said we look forward to presenting our information regarding this
matter and look forward to the members of the boards review of this situation.
Thankyou
Tracy Barkalow, Manager
TSB Holdings LLC
PO Box 2490
Iowa City IA 52244
319-531-3268
4'
Clty of tows City
MEMORANDUM
DATE. 26 August 1987
To, Douglas Boothroy, Director of H.I.S. and Donald SchRmAe.�i�ser,
Director of P.P.D. U
fROMe Richard J. Boyta, First Assistant City Attorney R
U, Kempf at al v. City
Attached fqr your records is s copy of the final Court
Order in the devernor - Dodge property litigation. The order
implements the decisions invalidating the reaonings of the
still undeveloped portions of the land by -
1. Providing that residential dmvplopwat may take place
at Rag density (7SO square feat ;per dwelling unit) and
otherwide as would have been alluded underthe zoning
ordinances in effect on May 30, 1979. It probably would
be a good idea to put a copy of the 1970 ordinances In the
Property file for reference when development plane are
submitted. I have copies of the Zoning Code as amended
through 1983 and will furnish than if you need then.
2. The City cannot renuire compliance with the large
scale development regulations.
3. The Order does not apply to the Yoder apartment
building or the Hunan Services Department building or Lots
8 and 9 of Bacon's Subdivision. it does apply to lot 10
Of Bacon's Subdivision.
If you have questions let me know.
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�4 ci
IN THE IOwA DISTRICT COURT IN AND FOR JOIINSUN COUNTY
NAYNE KEMPF, KENNETH L, ALBRECHT,
GOVERNOR -DODGE STREET RENTALS, )
and EARL YODER CONSTRUCTION CO., )
Plaintiffs, NO. 43611
}
vs. �
CITY OF IDNA CITY, IONA, 1 SUPPLEMENTARY ORDERS
ON REMAND
Defendant. j
The Court entered its original Findings of Fact, Conclusions of
Law, and Decision in this case on November 13. 1985, the same having
been filed on November 20, 1985. Thereafter, the Defendant, City of
Iowa City, Iowa, appealed to the Iowa Supreme Court, and in its
Opinion filed March 18, 1987, the Supreme Court affirmed in part,
reversed in part, and remanded this case to the District Court for
disposition in conformance with the Supreme Court Opinion.
In accordance with the aforesaid Opinion of the Supreme Court,
the following portion of the Decision of the Court, as set out in the
Findings of Fact, Conclusions of Law and Decision, page 28, is de-
leted and is of no further force and effect:
"IT 15 FURTHER ORDERED, ADJUDGED AND DECREED by the Court
that Defendant's Ordinance No. 78-2900 (rezoning Plain-
tiffs' premises which are the subject of this action)
should be, and hereby is declared to be illegal, null, and
void as to such premises, and Said Ordinance is set aside
and held for naught as to those premises. IT IS FURTHER
ORDERED that these premises be returned to the R38 zoning
in effect at the time of enactment of said amended zoning
ordinance."
In conformance with the Supreme Court Opinion herein, the Court
eenters the following Orders which shall be construed to be a part of
this Court's Findings of Fact, Conclusions of Law, and Decision
herein.
The 1978 rezoning of the following undeveloped properties in
( Iowa City, Johnson County, Iowa, was unreasonable, arbitrary and
capricious:
Lot 10, Bacon's Subdivision in the south part of Block 1,
D.A. Dewey's Addition to Iowa City, Iowa, according to the
recorded Plat thereof, recorded in Plat Book 1, Page 5,
Plat Records of Johnson County, Iowa.
-2-
4:e
BY
Ir . Ir,� I: UI:UTFu
All of Lot 51, and all of Lot 50 except the South 186 feet
thereof, in the Subdivision of the SE 1/4 of Section 3,
Township 79 North, Range 6 West of the 5th P.M., according
to the recorded plat thereof recorded in Plat Book 1, Page
1, Plat Records of Johnson County, Iowa.
Also, commencing at an iron stake in the Southeast corner
of Lot 49 in the Subdivision of the SE 1/4 of Section 3,
Township 79 North, Range 6 West of the 5th P.M., as per the
recorded plat thereof; thence North 84.5 feet; thence West
210.0 feet on a line parallel with the South line of Lot
49; thence South 84.5 feet on a line parallel with the East
line of said Lot 49; thence East on the South line of said
Lot 49, 210.0 feet to the place of beginning.
Also, commencing at the Southwest corner of Lot 49 in the
Subdivision of the SE 114 of Section 3, Township 79 North,
Range 6 West of the 5th P.M., as per the recorded plat
thereof; thence Northerly along the Westerly line of said
Lot 49, 16.0 feet; thence East on a line parallel with the
South line of said Lot 49 to the west line of the parcel of
real estate hereinabove described; thence South 16.0 feet
on the West line of the parcel of real estate hereinabove
described to the South line of said Lot 49; thence West on
the south line of said Lot 49 to the place of beginning.
The owner or owners of said properties, and their successors and
assigns, shall be permitted to develop those properties with multiple
dwei;ings (apartments) in accordance with the provisions appj1rablL
to the R38 zone in effect on May 30, 1978, prior to ttfe ng'
`r
said real estate which was finalized on June 28, 1976. Evil
m
It is further ORDERED that the City's Large Scale Re antia
Development Ordinance shall not apply to development of thus pert/
s to
ties.. The City is and shall be enjoined frwa interfering with Bevel-'o
opment of those properties as herein provided.
rr
Once a use has been developed or established on any of the
above -described properties, further development or redevelopment of
that vooerty shall be subject to the zoning ordinances in effert at
the time such further development or redevelopment is undertaken.
Dated this $V-d day of August, 1907.
Haro i es, Judge
SiW Judicial District of Iowa
'!e
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Approved:
�irifJ1',NLny � �LLt �(.
First Assistant City Attorney
City of Iowa City, Iowa
ATTORNEY FOR DEFENDANT
Jew JaK
Roral� IL. Wen'itt
ATTORNEY FOR PLAINTIFFS
cc: Ronald W. Wendt
200 First Street S.W.
Cedar Rapids, Iowa 52404
Richard J. Boyle
First Assistant City Attorney
410 E. Washington Street
Iowa City, Iowa 52240
BY
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for Manmg Ljuc=,"I He3UUnslhle
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MINUTES PRELIMINARY
BOARD OF ADJUSTMENT
JULY 10, 2013 — 5:15 PM
CITY HALL, EMMA HARVAT HALL
MEMBERS PRESENT: Larry Baker, Gene Chrischilles, Brock Grenis, Becky
Soglin
MEMBERS ABSENT: None.
STAFF PRESENT: Sarah Walz, Tim Hennes, Sarah Holecek
OTHERS PRESENT: Mark McCallum, Pam Michaud, Steve Kohli, Doug Ferr,
Randy Kurk
RECOMMENDATIONS TO CITY COUNCIL:
None.
CALL TO ORDER:
The meeting was called to order at 5:15 PM.
ROLL CALL:
A brief opening statement was read by Grenis outlining the role and purpose of the Board and
the procedures that would be followed in the meeting.
CONSIDERATION OF June 12, 2013 MEETING MINUTES
Soglin moved to approve the minutes.
Baker seconded the motion.
A vote was taken and the motion carried 4-0.
SPECIAL EXCEPTION ITEMS
EXC13-00010: Discussion of an application submitted by Mark McCallum for a special
exception in the Low Density Multi -family Residential (RM-12) zone at 113 S. Johnson
Street.
Walz showed on a location map how this is a transitional zone, and that this property is zoned
Low Density Multi -family Residential (RM-12), as are most of the properties surrounding the
College Green Park. She said this is a historic property. She said there is a list of criteria you
have to meet for this application, including it being owner -occupied housing and living as part of
Board of Adjustment
July 10, 2013
Page 2 of 14
the dwelling unit, meaning you don't have a separate kitchen. Walz said the applicant will be
required to meet all of the building code requirements including the fire protection requirements.
She explained the number of permits that will be required of the owner.
Walz said for the owner to be allowed to rent up to five rooms as well as having his own space,
he's required to have three parking spaces on the property for the bed and breakfast and one
space for the owner occupant. She said he can provide that one space off the alley. She said
he is proposing that he can provide the four other spaces in a driveway that he will extend
toward the back of the yard. She said he could provide parking for five cars, but staff thought it
important to preserve some of the green space. She said in addition, a public parking ramp is
just one block away. She said staff is recommending approval of the application subject to the
site plan that the applicant has provided.
Soglin asked what would happen to a property like this if the owner doesn't or can't live in it.
Walz said then it would then revert to single family home. Soglin asked if the permit limited the
number of people per room. Walz said a family could stay in a room but they are limited in how
long they can stay there.
Mark McCallum, the applicant, said he is also the listing agent for the property and was the
owner of the Brown Street Inn for seven years. He said they were initially trying to sell this
property as a single family home, but there wasn't even enough parking or bathrooms for that
use. He explained his plans for modifying the interior of the home. He said when he owned the
Brown Street Inn, there were never more than two people in a room, and if a couple did want
children in their room, it is for a limited stay.
Baker asked about non-resident employees. Walz said he can have one non-resident
employee. She said that is true for all in -home occupations and that regulation sets a threshold
beyond which you don't have a fully commercial use operating out of a residential zone. Walz
said the applicant would have to apply for the non-resident employee. She said in this case, that
would be someone who would manage or run the business, not an employee like a cleaner or
housekeeper.
Baker asked if any signage would have to go through the Historic Preservation Committee,
since the property is in an historic overlay zone. Walz said it would, as would any changes to
the building's fagade.
Soglin asked if the four parking spaces would be parallel parking. McCallum said those would
be stacked spaces. He said most people will probably not even have cars since it's so close to
downtown. He said it's also very close to a public parking ramp. Soglin said she would still like
to hear more specifically what his plan is if there are four vehicles and someone needs to get
out in the middle of the night or day. McCallum said he was thinking about using electronic
communication or having the guests' telephone numbers posted on a board so everyone can be
contacted if needed. Soglin said her concern is that the parking not be a disturbance to the
people to the south or to adjoining buildings. McCallum said there is generally available parking
on the street at night as well as the parking ramp.
Chrischilles asked if any modifications that the applicant makes including bringing it up to code
as far as fire protection have to occur before he is granted the permit to rent. Walz said that is
correct.
Board of Adjustment
July 10, 2013
Page 3 of 14
Grenis opened public hearing.
Pam Michaud of 109 S. Johnson St. said she would rather see a patio and landscaping in the
back than more cement. She said there are two parking spaces on the alley that they have been
using for decades. Walz said one of those spaces doesn't technically meet the standards, so
someone could park there, but the City can't count it as meeting the standards required.
Michaud said she would be happy to rent her parking spaces to the applicant so there wouldn't
have to be more pavement. Holecek explained that the City would then consider that
commercial use. Michaud said her concerns are the amount of pavement to be laid down for
parking, and competing with another sign. She said there are two other bed and breakfasts in
town that have been for sale for years, and she sees more of a need for a duplex in this
neighborhood that's sustainable long-term rental than for a bed and breakfast. She said there
are already a lot of extended stay facilities in the area.
Baker asked if the signs for the applicant's and Michaud's property have the same
requirements. Michaud said they do.
Soglin asked Michaud to clarify who her clientele is. Michaud said her requirements are a one
month minimum for a guest house. Walz said the bed and breakfast has a two week maximum.
McCallum reasserted that he will be living on the property. He said all his projects over the past
twenty years have been owner occupied.
Grenis closed public hearing.
Baker moved to approve EXC13-00010 an application submitted by Mark McCallum for a
special exception in the Low Density Multi -family Residential (RM-12) zone at 113 S.
Johnson Street subject to substantial compliance with a submitted site plan and a
building permit required in order to establish the use.
Chrischilles seconded.
Chrischilles said that he is fine with the arrangement of the four parking spaces.
Soglin said she's not that happy about the parking but doesn't know if there's any real solution.
She said she doesn't know if Staff can recommend permeable pavement during their final
review.
Baker said he found the overall proposal very compatible with the zone and the neighborhood
and the development in the area. He said the applicant has a very good bed and breakfast
record, so he's comfortable with what he's going to do in the future.
Soglin said she largely agrees with it for short-term but has some concerns about the bed and
breakfasts that have gone unsold. Walz explained how those were different from this property.
Baker said that regarding EX13-00010 he concurs with the findings set forth in the staff report of
July 10, 2013 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 their findings for the acceptance of this proposal.
Board of Adjustment
July 10, 2013
Page 4 of 14
Grenis and Chrischilles agreed.
A vote was taken and the motion carried 4-0.
Grenis declared the motion for the special exception approved, 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.
EXC13-00011: Discussion of an application submitted by Faith Academy for a special
exception to allow a General Education Facility on property located in the Community
Commercial (CC-2) zone at 1030 Cross Park Avenue.
Walz said there is an amendment to the Zoning Code that will go before Council soon. She said
in the past the City hasn't allowed general education facilities in the CC-2 zone but looking at
some areas that have CC-2 they can see where that might be an appropriate use. She showed
the Board views of the property and the drop-off and parking areas. She said staff looks to see if
schools in the CC-2 area aren't in conflict with the commercial area, and in this case the school
is on the backside of the commercial area. She said that the site plan shows that the school can
get the cars associated with teachers or with dropping off students in and out of the site with
little conflict with the loading dock.
Walz said this applicant has been operating as an after -school drop-off program and now wants
to transition to a school encompassing Kindergarten through First Grade with 30 students. Walz
said staff has limited it to 50 students, and at such time as they go over 50 students or need to
increase the interior space beyond 500 square feet, they would have to come forward for a new
special exception to see if a larger school would fit on this site.
Chrischilles asked what business uses the loading dock and what times the deliveries are. Walz
said it's Slumberland and they would probably be making deliveries during school times, but
staff didn't find that in conflict because there are trucks that make deliveries to other schools.
She said this is also a small school and the amount of pedestrian traffic would not be in conflict
with the deliveries.
Walz showed an aerial view of the property and pointed out the loading dock and the drive
Baker had questions about an adjacent business called The Spot.
Steve Kohli of 3125 Dubuque Street said that The Spot is Faith Academy and that is the
entrance to the academy. He said it's about 8,000 square feet inside.
Baker asked if they owned the green space and if they are renting. Kohli said Southgate is the
landlord and they are working with them on renovations. Baker asked if they have a guarantee
that the green space will be theirs' to use for the length of their occupancy. Kohli said they are
working on that right now.
Baker asked staff what would make a higher number of students acceptable in the future. Walz
said with any school, daycare or church staff usually sets an upward limit at which they would
like to re-evaluate if it's working, if they need new safety precautions or additional parking. She
said what they are saying is that a small school looks like it works here, but they are not sure
about a larger school. Baker said it seems that for a larger school to work there would almost
Board of Adjustment
July 10, 2013
Page 5 of 14
mean that there would have to be a corresponding decrease in activity around the school if they
are basing the current limit on the activity that's there now.
Walz said staff wanted to set a threshold for re-evaluation, and if everything is going smoothly
and there are no conflicts, the staff would be inclined to recommend it becoming larger. Baker
said they are leading the applicant to believe they can expand in the future. Walz said they
aren't saying that a larger school won't work, but they want the chance to re-evaluate in the
future.
Baker asked about bike parking standards. Walz said it's based on the square footage
Baker asked Walz to expand on the staff concerns about pedestrian access from the north due
to the high traffic volume on Highway 6 and the fact that it could be an issue for students
crossing the highway on foot or bike. Walz said that in this case, the population for this private
school will come from the same side of the street that the school is on, not from across Highway
6. Baker said his concern is that statement sort of implies that the City has a monitoring role.
Walz said that doesn't speak to what the school is intended for or the likelihood that children
would be crossing Highway 6. Baker asked if the school reached the point of having 50 or more
students and came back for re-evaluation, would one of the factors then be how many of the
students come from across Highway 6. Walz said it would.
Grenis opened public hearing.
Soglin asked how many children are currently attending each day.
Doug Farr of 621 N. Johnson St. said the program varies from 30-120. Soglin asked if they
would continue some of that programming. Farr said now its function is specifically as an
outreach center so they do evening programming.
Chrischilles asked if they plan to suspend the after -school program. Ferr said there will be an
after -school component, and the school day will be from 8:00 a.m. — 3:30 p.m. and there will be
an extended after -school program from 3:30 — 5:00 for the children who are enrolled in the
school, and possibility of some who aren't enrolled in the school.
Soglin asked about the timing of deliveries. Ferr said it's hard to predict. He said they have been
in that space for eight years and there has never been an issue with traffic at the loading dock.
Baker asked if there was any plan to have the walkway between the school and the grassy area
buffered. Ferr said they have precast curbing. He said they plan to put five more feet of grass in
between the parking and the sidewalk. Baker asked if it would be a school policy that children
would not be unescorted from that door to the playground. Ferr said absolutely yes.
Grenis closed public hearing.
Soglin said she still had concerns about waiting to re-evaluate when the enrollment reaches 50.
She asked the Board if they want to lower that number or consider adding some other
qualification that if something manifested when they are at 40, an intervention could occur
before it gets up to 50. She said she presumes that most of the children will come from different
families, and she's concerned about the addition of more cars as the enrollment climbs. She
wants to find a balance as these are such young children and this deals with personal safety.
Board of Adjustment
July 10, 2013
Page 6 of 14
Ferr explained that they have set a cap of 15 students per grade level, so what changing the
number to 40 would do is keep them from adding that additional grade level next year.
Walz said to the staff it doesn't matter how the enrollment is broken out. She said what they
were concerned with was the overall number of children on the site.
Grenis said 45 would seem like a reasonable number, because it gives them the ability to add
another class.
The other Board members agreed that this seemed like a good compromise.
Soglin suggested making it a condition that the applicant would have to report any incidents in
the parking lot when they next appeared for re-evaluation. Holecek said it would be in their best
interests to do that for a number of reasons. Walz said at the point the applicant had something
to report, they may be losing interest in the site as well.
Baker asked if the City had talked to the adjacent commercial users. Walz said they gotten no
feedback from the letters they sent out to them.
Baker moved to approve EXC13-00011, to allow a general education facility for up to 45
students in a Community Commercial (CC-2) zone on property located at 1030 Cross
Park Avenue subject to the following conditions:
1. City Council approval of a zoning code amendment establishing a special
exception to allow General Education Facilities in the CC-2 zone.
2. Enclosure of the outdoor recreation area by fencing of a minimum height of 4 feet
to be approved by staff.
3. Establishment of pedestrian routes to school entrances and bicycle parking, the
site plan to be approved by staff.
4. An enrollment of more than 45 students or an addition of more than 500 square
feet of floor area will be considered an expansion of the use that requires a new
special exception.
Chrischilles seconded.
Chrischilles said that regarding EX13-00011 he concurs with the findings set forth in the staff
report of July 10, 2013 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 their findings for the acceptance of this proposal.
Baker said he is comfortable with these findings as long as the number of allowable students is
reduced to 45 based upon possible future growth and having a lower threshold for the City to
start monitoring any possible problems or other expansion plans.
Grenis said he agrees with what's been said and added that the treatments to the parking lot
seem to be adequate for the safety of the children and this use should support the
Comprehensive Plan being that it improves the neighborhood's diversity with the school and the
human development component of that.
Board of Adjustment
July 10, 2013
Page 7 of 14
A vote was taken and the motion carried 4-0.
Grenis declared the motion for the special exception approved, 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.
APPEAL ITEM
APL13-00002: Discussion of an application submitted by Sandy Beck appealing a
decision made by Iowa City's Senior Building Inspector to deny a permit for 24 x 48 foot
accessory building to be constructed at 2230 Russell Drive.
Walz showed the Board an aerial view of the subject property, a picture of the house, and an
elevation for the proposed building. She said the first version with overhead doors was denied in
2012. She explained that the back of the attached garage in the current proposal would be
opened up to create a driveway to go to the back of the property where the larger structure
would be built. Walz said that in reviewing this appeal, staff feels that it hinges on a subjective
interpretation of the definition of accessory uses. She said the definition in the City Code reads
"accessory uses, buildings, or other structures customarily incidental to and commonly
associated with a permitted use, provisional use or special exception". Walz said in this case the
permitted use is a residential, or the principle, use on the property, and the accessory use is
also subordinate to that principle use and contributes to the comfort, convenience or necessity
of the occupants. She said in this case the use, which is a storage use, is customarily incidental
to properties. She said the question here is whether the size and scope of what's being
proposed on the property would be incidental to.
Chrischilles asked about a permitted use. Walz replied that garages and workshops are
accessory uses in the residential zone, but the question is whether at the scale proposed it
becomes such that it is not subordinate.
Grenis asked about the limit of accessory uses. Walz said the limit on the coverage of all
accessory detached structures taken together can't take up more than 15% of a property. She
said in this case, it would not.
Baker asked what would happen if this were a smaller version of the same, exact building. Walz
said the building official is saying that if it were a smaller version they would interpret it as both
subordinate and customarily and incidental to. Baker asked if the only issue here is size.
Hennes said that the size is the issue. He said they do not find that it is customarily and
incidental to due to its size.
Chrischilles asked what the size limit is.
Hennes said they proposed to the applicant allowing a 24'x24' garage in the back yard. He said
they got no response and there was no negotiation. Chrischilles asked if there was anything in
the Code about a certain percentage of property or a certain size of building. Hennes said that
more than 15% can't be covered by an accessory structure. He said where their interpretation of
customarily and incidental comes -is that it's too large for the footprint of the house. He said the
livable footprint of the house would be smaller than the proposed accessory building. He said if
Board of Adjustment
July 10, 2013
Page 8 of 14
you then add the attached accessory use of a garage and the new accessory structure, it was
getting to be too large.
Baker asked how an applicant knows what the limit is when they have something that doesn't
cover 15% yet the official says that's still too big. Hennes says that's through the review
process.
Chrischilles said to him that sounds arbitrary. He said if it qualifies under the City's rules and yet
it's being denied, that seems to be an arbitrary decision. Hennes said if you look at it at that
level, he's right.
Baker asked if there have been other comparable buildings that have been approved. Hennes
said there had. Baker said there had been one that had been issued in error. Hennes said after
further research, he determined that it was issued with consistency of other permits issued for
accessory structures during that time period.
Hennes said from 1984 to 2005 it was specific in the Code that one of the criteria for accessory
use was that it was subordinate in area. He said in 2005 when the Code was amended that
phrase was taken out so it allowed some discretion, because they were getting some small
houses that wanted to put a garage on. He said in some cases, the garage on a small house will
be larger than the house. He said in the subject neighborhood this is not customarily incidental
to the size of the other garages in the area. He said he had been given some addresses to look
at and out of the nine, five were prior to 1984, three were between 1984 and 2005, and one was
after 2005. He said all of them were smaller in size based on the square footage that they were
analyzing them with so that's why he's saying they aren't being arbitrary in their decision. He
said they were consistent in comparing the size of the garage with the house size. He said there
are some large detached garages on Muscatine Avenue but the house square footage is larger
than the garage.
Baker asked if the same building on a larger piece of property or a bigger house on the small
property would be acceptable. Hennes showed a picture of 132 Dartmouth. He said he thought
if that was reviewed today, they would be in front of this Board with the same question. He said
in 2002 when it was reviewed for a building permit it met the criteria because the accessory
building was smaller in size than the principle structure.
Baker asked what size the Building Department had asked for in this case. Hennes said they
asked for a 24'x24' structure because that's the typical size of a double car garage. Baker asked
if they would be willing to split the difference on size and Hennes said they would be willing to
do that. Baker said he is concerned that too much is being left to personal negotiation. Hennes
said the ordinance was intentionally written that way. Baker asked why that hasn't been
addressed before. Hennes said it's come up in reverse of its intention, which was to enable
smaller houses to build garages. Baker said regardless of what they do in this case, the
situation will come up again and both Hennes and the applicant will be both in an unfair
subjective position. Hennes said that he thinks staff agrees after discussion of this this case that
the ordinance could be improved.
Walz said it is complicated and it is subjective and at a certain size, which would vary by
property and its relation to the principle use, there becomes a question if the property is serving
the house or the accessory use. She said there have been many instances of people storing so
many cars or other things on the site that it becomes a question of what the property is serving.
Board of Adjustment
July 10, 2013
Page 9 of 14
She said it's difficult to write a zoning code that has a clear mark for when you have crossed the
line. She said she thinks what the Building Department has tried to do is to say that everybody
should be allowed to have a two car garage, and when it goes beyond that is when you have to
look at size of property and relationship to the house.
Baker said the bigger the accessory use, the more the potential for it turning into a home
business.
Hennes said the accessory building is one of the issues but over time they have found through
nuisance enforcements that there's a potential for that use to migrate out into the concrete
driveway, and the whole area then becomes an accessory use.
Chrischilles said that would be even more likely to occur with a smaller building. He said the
only concrete thing he's heard so far is 15% of the property and everything else is up to the
discretion of the building inspector. Hennes said that's correct. Chrischilles said that until the
15% limit is changed, it seems logical that will be the point that the Board needs to operate
from, and anything else is telling someone they don't have the right to use their property as they
see fit and just because we think it's too big, it's not allowed.
Hennes said he would like to support staff's decision that they are not being arbitrary or
capricious because they did look at the law and the underlying facts of the case, and he referred
to Sarah Holecek's memo where it states that a decision is also "arbitrary" or "capricious" when
it involves an "abuse of discretion". Hennes said they based their decision on the 1984 to 2013
history and enforcement of the Zoning Ordinance through size of principle structure when
compared to the accessory structure. He added that in the charging language it says that the
structures are customarily incidental to. He said it's not incidental in size. He said that it is
incidental in use.
Chrischilles said that is Hennes' opinion. Chrischilles asked if there had been any negative
responses from the neighbors. Walz said she received three phone calls from neighbors who
had questions. She said she doesn't report anything unless someone goes on record saying
what their concern is.
Chrischilles said if this building were to be allowed at the 24'x48' size, is there anything to
prohibit the applicant from operating any sort of retail business. Walz said they are allowed
whatever is allowed by zoning code. She said she thinks home occupations are allowable.
Hennes said there are examples of when a business gets too big to be a home business and
has to find another site for it. Chrischilles asked if that is based on complaints. Hennes replied
that it was.
Baker asked if the City had any control over design. Hennes said they do not. He said they do
have control over the height, which is 15' high.
Chrischilles asked if a 24'x48' swimming pool would be too big. Hennes said he would have to
look at the Code. Walz said you do have to have a fence around it.
Grenis asked Hennes to describe the process the building department used to come to this
decision. Hennes said it was well discussed and thought-out throughout the Building and
Board of Adjustment
July 10, 2013
Page 10 of 14
Housing Office but ultimately the decision comes back to the director of the department, Doug
Boothroy.
Baker asked what the notification process is. Walz explained that the City sends letters to every
property owner within 300 feet of the subject property and posts a sign in their yard.
Grenis asked Holecek to explain the framework for how the Board will decide this case. Holecek
said the first question to answer is whether they feel that the building official has exercised the
powers and followed the regulations in the Zoning Code with regard to accessory uses and
structures and then whether the action was patently arbitrary or capricious. She said just
because a Board member may not agree with the decision, they can't supplant their disagree or
agree but have to find one of those things to be true in order to overturn it and be able to
articulate why they think it was an inappropriate decision.
Grenis invited the applicant to speak.
Randy Kurk of 2230 Russell Drive handed out some exhibits to the Board. He said when the
building official told him and Sandy Beck that they would be allowed a 24'x24' building and that
a 24'x48' structure could not be built, the applicants took that as non-negotiable. He said that all
through the process, the applicants consulted with the Code Enforcement Assistant on the
specifics of their structure and were assured that they were going by the Code — size, location
and other specifics.
Kurk showed pictures of single family properties in their neighborhood and at other locations
where there are structures larger than the one they are proposing. He said he found many
accessory buildings comparable to his proposed structure within single family neighborhoods
and most of them also had an attached garage. He read sizes, locations and dates built from his
short list of such properties. Kurk said the building he proposed is deemed to be not commonly
associated with or customarily incidental to a single family dwelling. He said with the samples he
just cited, it can't be said that it's uncommon. He said one of the explanations for denial from the
building official was noise and disruption to the flow of the neighborhood. He said the building
won't even be visible from the street, and they have always respected the noise ordinance
control within their neighborhood. He said their structure was modeled after the one at 132
Dartmouth except theirs doesn't have a driveway going around their house. He said there are
many examples in town of a single family house with an attached garage and an accessory
building, and they are examples of the arbitrary ways in which the decisions are made by the
building official and the department. He said there is no consistency when it comes to Code
enforcement, explanation or permit allowance.
Chrischilles asked what the applicant planned to use this building for. Kurk said a woodworking
shop and a two car garage. Chrischilles asked if this will be an additional garage. The applicant
said it would be. Chrischilles asked if the woodworking is a hobby. The applicant said it will be
when he retires.
Baker asked what happened in 2005 with the Code. Hennes said the City adopted a revised
version of the Code which changed the accessory structure language and removed the words
"subordinate in area". Baker asked if Hennes would characterize the change in 2005 as a
relaxing of the rules. Hennes said he would. Baker asked if Hennes was on City Staff in 2002.
Hennes said he was. Baker asked if he was involved in the 1811 Muscatine Avenue project.
Hennes said he agreed with Baker that the accessory structure is a monstrosity but that it was
Board of Adjustment
July 10, 2013
Page 11 of 14
approved based on the square footage of the house. Baker said the applicant stated that his
interpretation of his discussion with the building department about the alternative proposal was
a maximum that was not up for negotiation. Hennes said that wasn't personally his
conversation. Baker asked what guidelines were used to decide that 24'x24' would be the
acceptable size. Hennes said it was based on a standard double car garage.
Soglin asked about the example built in 2012 that was 24"x32' on a smaller lot. Hennes said it
was a carry- over of the subordinate in area language in the ordinance. Hennes said he doesn't
think that the initial applicant with the 24'x32' tripped anyone's thought process that this is
getting too big, where the subject application has tripped that tipping point. Soglin said so it's
possible that if this applicant had originally asked for 24'x32'...Hennes said in that case the
Board might not be here deciding on this.
Baker asked Hennes if they have denied any other accessory uses based on size. Hennes said
not. Baker asked if there had been other applications. Hennes said he didn't know, but he thinks
this one hits that size where it begs the question if it's too large for the neighborhood.
Soglin asked if the Board upheld the denial of the application could the applicants go out
tomorrow and submit a new application for a smaller structure. Holecek said they could submit a
new building permit application. She said they could find that there was a different reason or
different rationale that would support what the applicant wanted to do.
Chrischilles said they can't do that because the only standard they have is 15%. Walz said the
Board can uphold the appeal, deny the appeal and grant the applicant the building he proposed
on a different set of criteria or say that there is another size that is supported by the Zoning
Code.
Baker said he doesn't feel that the Board should be getting into negotiating sizes. He said the
Code needs to be worked on, and that is not the Board's job. Chrischilles said the only thing
that's in the Code that's concrete is 15% of the lot size. Baker said he came to this meeting fully
expecting to support the staff, but in this case he supports the appeal.
Grenis moved to take a five minute recess
Bakerseconded.
Grenis called the meeting back to order.
Holecek explained the criteria for upholding this appeal to the applicant.
Kurk asked why it was his building that flipped some kind of switch, instead of a 1200 sq. foot
building from his list that was granted a permit.
Grenis closed public hearing.
Walz clarified to the Board that they always vote yes on an application and explained what a yes
or a no vote means in this case.
Board of Adjustment
July 10, 2013
Page 12 of 14
Baker moved to support APL13-00002 requesting an overturning of the denial of a
building permit for an accessory structure in the RS-5 zone at 2230 Russell Drive.
Chrischilles seconded.
Baker said that the nature of the Code sets building officials up for arbitrary decisions, which is
unfair to them. He said there has to be a better way the Code can be written to achieve a
reasonable goal of controlling accessory use size. He said he personally thinks this particular
project is too big but that's an arbitrary decision because he can't point to anything that justifies
his decision in law. He urged the Board to support this appeal and the staff to quickly reconsider
how the Code can work for the benefit of the public and the staff because he doesn't want them
put in this position again of coming before the Board to justify what seems to be an arbitrary
decision.
Chrischilles said he agrees 100% with what Baker said. He said 15% is the only standard that
has been cited as a concrete standard, and this application satisfies that standard. He said
there are no neighbor complaints other than one, who said she doesn't want it used for a
business, and the owner says he's not planning on doing that, so you have to take him at his
word. He said according to the decision Arora vs. Iowa Board of Medical Examiners abuse of
discretion occurs when the action rests on grounds or reasons clearly untenable, unreasonable
or lacking rationality in light of the actor's authority. He said that fits this situation. He said this
decision screams arbitrariness from the fact that many other similar buildings have been
granted and have been built in residential areas. He said the year that these buildings were built
doesn't seem to be important because in 2005 the standard was actually lessened and no
standard was created other than the 15% at that time, and that's really all the Board has to work
from.
Soglin said she agrees with much of what Chrischilles said. She said lot size seems to have
something to do with a trend toward a different size of accessory structures, but there is nothing
codified regarding that. She said perhaps future revision should include something about how
footprint size is going to matter as much, not just the 15%, but footprint relative to the square
footage of the house. She said lot size seems to matter. Soglin said some size between 24'x24'
and 24'x48' seems to be more reasonable but there's nothing for the Board to base that on.
Grenis said he agrees with what's been said. He said in looking at the two criteria the Board
decides on, the building official did exercise his powers and followed the regulations established
in the Zoning Code, but there's that grey area that allowed this to be denied. He said, though,
that in light of the second criteria, whether the building official's actions were patently arbitrary or
capricious, in light of that he has to agree with the Board's decision to support the appeal. He
said he thinks it's wise to let the building permit as presented go forward because it's not in the
Board's capacity to try and set a size.
Walz and Holecek agreed that the Board has said constitutes findings for this case.
A vote was taken and the motion carried 4-0.
Walz said that vote upholds the appeal of the applicants.
Board of Adjustment
July 10, 2013
Page 13 of 14
Baker said he would recommend changes to this ordinance such as access to the accessory
use, design, size, neighborhood, screening, and sooner rather than later.
Chrischilles said rather than have it based on something that's a moveable target, perhaps
come up with the maximum size an accessory building can be no matter how big the lot or the
house.
BOARD OF ADJUSTMENT INFORMATION:
The Board discussed dates for the next meeting.
ADJOURNMENT:
Chrischilles moved to adjourn.
Baker seconded.
The meeting was adjourned on a 4-0 vote.
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