HomeMy WebLinkAbout11-13-2013 Board of AdjustmentIOWA CITY BOARD OF ADJUSTMENT MEETING
Wednesday, November 13, 2013 — 5:15 PM
City Hall — Emma J. Harvat Hall
AGENDA
A. Call to Order
B. Roll Call
C. Consider the September 18, 2013 Minutes
D. Special Exception Items:
1. Discussion of an application submitted Tom Kemmerer for a special exception to allow
conversion of a non -conforming use that is located in a structure designed for a use that is
prohibited in the zone to allow conversion to another non -conforming use of the same or
lesser intensity; and a historic preservation exception to modify the site development
standards (parking) to allow re -use of the historic property located in the High Density Multi -
Family (RM-44) zone at 518 Bowery Street.
E. Other
F. Board of Adjustment Information
G. Adjourn
NEXT BOARD OF ADJUSTMENT MEETING: December 11, 2013
To: Board of Adjustment
Item: EXC13-00015
518 Bowery Street
GENERAL INFORMATION:
Applicant:
STAFF REPORT
Tom Kemmerer
848 South Summit
Iowa City, IA 52245
Prepared by: Sarah Walz
Date: November 13, 2013
Requested Action: A special exception for a non -conforming use that
is located in a structure designed for a use that is
prohibited in the zone to allow conversion to
another non -conforming use of the same or lesser
intensity; and a Historic Preservation Exception to
modify the site development standards (parking) to
allow re -use of the property.
Purpose:
Location:
Size:
Existing Land Use and Zoning:
Surrounding Land Use and Zoning:
Applicable code sections:
File Date:
BACKGROUND:
To establish an Eating Establishment in the RM-44
zone.
518 Bowery Street
1,470 square feet
Historic District Overlay Zone, High -Density Multi -
Family Residential (OHD-RM-44); approved for
Sales -Oriented Retail.
North: Residential (RM-44)
South: Residential (RM-44)
East: Residential (RM-44)
West: Residential (RM-44)
14-4E-5B-2, specific criteria for change to a non-
conforming use; 14-2B-8A Historic Preservation
Exception criteria;14-4B-3A, General Criteria for
special exceptions.
October 15, 2013
In September, 2012, the City Council approved a Historic Landmark designation for the subject
property establishing a Historic District Overlay Zone for the property, the underlying zoning for
which is High -Density Multi -Family Residential (RM-44). The historic designation protects the
building from demolition as well as exterior modifications that would diminish its historic integrity.
History of the Property
The property at 518 East Bowery Street is an isolated remnant of Iowa City history dating back to
at least the 1860s. The existing 720-foot building was originally used as a grocery store, and historic
records show continued use as a grocery from 1895 until the early 1970s when it served as the first
home of the New Pioneer Cooperative Society. A retail establishment, the House of Jade, moved in
when the New Pioneer moved out in 1975. Records show a brief tenancy by Helen Caldicott
Community School in 1983. Since then the use of the building has been unrecorded, though in recent
years it was illegally used as rental housing.
In October, 2012, the Board of Adjustment approved a special exception for 518 Bowery Street
to allow the property to convert from one non -conforming use to another nonconforming use of
equal or lesser intensity. The Board approved a Sales -Oriented Retail Use with a number of
conditions, including limits on the hours of operation and restrictions on the sale/use of tobacco
or alcohol on site, intended to minimize potential negative effects associated with the approved
the use.
In reaching its decision, the Board discussed the possibility that there might be other
appropriate commercial uses for the site, including a coffee shop or small cafe. However, the
Board chose to limit its approval to one use category, rather than a range of 2 or 3 uses, in
order to reduce the likelihood that a new business would move in without some awareness of
the restrictions under which the property may operate under the special exception. The Board
chose the Sales -Oriented Retail designation because it represented the most intense use
proposed by the applicant that would be appropriate for the site.
Since the approval of the special exception, the property was sold and the new owner has
undertaken renovations to prepare the building for commercial use, including removal of a non -
historic garage from the site, construction of an ADA accessible bathroom, and alterations to the
mechanicals. Exterior improvements, including the replacement of storefront windows, were
made in compliance with the Historic Preservation guidelines, and the property has been listed
as available for lease.
The Non -Conforming Use Regulations (Chapter E) in the zoning code, contains a provision
allows a building constructed for a use that is no longer permitted in the zone to be converted to
another non -conforming use in a different use category or subgroup through the special
exception process. The Board of Adjustment may also grant a special exception to waive or
modify any dimensional or site development standards, including parking requirements, that
would prevent use or occupancy of a property designated as an Iowa City Landmark so long as
the modification or waiver helps to preserve the historic, aesthetic, or cultural attributes of a
property.
An application has now been submitted for a special exception to establish a coffee shop.
Coffee shops are classified as Eating Establishments (not Sales -Oriented Retail) and therefore
a special exception is required. The Applicant has indicated that the coffee shop would require a
maximum of three staff at one time. Hours of operation would be 7 AM to 7 PM daily. The
majority of the food sales will consist of grab -and -go or carry out items, with a seating area for
up to 12 people.
Sales -oriented retail establishments require 1 parking space per 350 square feet. Eating
Establishments require 1 space per 150 square feet or 1/3 the occupant load, whichever is less.
Depending on the floor plan, which is yet to be determined, the proposed use could require a
maximum of 4 off-street parking spaces. The property is able to provide just two, to the rear of
the building. On -street parking is prohibited on Bowery Street during most of the business day
(between 8:00 AM and 5:00 PM).
ANALYSIS:
The purpose of the Zoning Ordinance is to promote the public health, safety and general
welfare, to conserve and protect the value of property throughout the city, and to encourage the
most appropriate use of land. It is the intent of the Ordinance to permit the full use and
enjoyment of property in a manner that does not intrude upon adjacent property. The Board may
grant the requested special exception if the requested action is found to be in accordance with
the specific criteria included in 14-4E-5B pertaining to the conversion of non -conforming uses
and 14-2B-8A-1 in relation to a waiver of the site development standard for required parking in
addition to the general approval criteria for special exceptions as set forth in 14-4B-3A.
The applicant's comments regarding each of the specific and general standards are included on
the attached application form. Staff comments related to the specific and general approval criteria
are set forth below.
Specific Standards (14-E-513)
The Board of Adjustment may grant a special exception to allow a nonconforming use that is
located in a structure not designed for a use allowed in the zone to be converted to another non-
conforming use in a different use category or subgroup that is of the same or lesser intensity as
the existing use, provided the following conditions are met:
a. The proposed use will be located in a structure that was designed for a use that is
currently not allowed in the zone, for example a storefront commercial building located in
a single-family residential zone.
FINDINGS:
• The subject building was originally constructed as a grocery store.
• The first floor interior of the building is still arranged with the open floor plan —it is one
large room with an ADA accessible bathroom at the rear of the building. The large,
front windows are the only windows on the first floor other than a small window on the
west side of the building. The building is set at the front property line, which is typical
of older commercial buildings, and just inches off the east property line (public alley).
b. The proposed use is of the same or lesser intensity and impact than the existing use.
The Board of Adjustment will make a determination regarding the relative intensity of the
proposed use by weighing evidence presented by the applicant with regard to such
factors as anticipated traffic generation, parking demand, hours of operation, residential
occupancy, noise, dust, and customer and/resident activity. The Board of Adjustment may
also consider qualitative factors such as whether a proposed use will serve an identified
need in the surrounding neighborhood.
FINDINGS:
• The applicant has indicated that the coffee shop would require a maximum of three staff
at one time. Hours of operation would be 7 AM to 7 PM daily. This is within the range
approved with the previous special exception.
• The majority of the food and beverage sales will consist of grab -and -go or carry out
items, with a seating area for up to 12 people. Staff believes the proposed use in similar
in intensity to a Sales -oriented Retail uses such as a convenience store.
Any re -use of the property is severely restricted by the size of the lot (1,500 square feet)
and building (720 square feet) and the lack of available parking. The lot provides minimal
parking —only two parking spaces and on -street parking along this portion of Bowery
Street is prohibited during daytime business hours. Moreover the high demand for on —
street parking in the surrounding neighborhood makes on -street parking practically
unavailable. Given these significant constraints any proposed use must, by necessity, be
limited in intensity and cannot rely on significant vehicle access or parking.
Staff recommends maintaining the previously approved conditions that control the
intensity of the use on the site, including a prohibition on alcohol and tobacco; restricting
hours of operation; and limiting lighting and signage to the standards for non-residential
uses in residential zones. These recommended conditions are explained under the
general criteria below.
c. The proposed use is suitable for the subject structure and site.
FINDINGS:
• The structure was originally designed as a grocery store and its interior floor plan
remains almost unchanged —the first floor is one large room.
• The building abuts the Bowery Street right-of-way (there is no front setback) and has
large front windows giving it the appearance of a retail use.
• The surrounding High Density Multi -Family Residential (RM-44) neighborhood
represents the highest density residential area outside the Central Business District
and PRM zones.
• As noted above, the limited size of the property (less than 1,500 square feet) and the
building (720 square feet) place significant constraints upon the potential re -use of the
building such that the market for the property is quite limited. A small-scale eating
establishment seems appropriate for the structure.
d. The structure will not be structurally enlarged in such a way as to enlarge the non-
conforming use. Ordinary repair and maintenance and installation or relocation of walls,
partitions, fixtures, wiring, and plumbing is allowed as long as the use is not enlarged.
FINDING:
The building may not be enlarged without approval of the Historic Preservation � Commission.
Moreover the size of the building and its non -conforming setbacks and limited space for
parking practically eliminate the opportunity for any enlargement of the structure and impose
considerable constraints upon its re -use.
Specific Standards (14-213-11II.4-1)
The Board of Adjustment may grant a special exception to waive or modify any dimensional or
site development standards listed in this Article or in Chapter 14-5 or any approval criteria listed
in Article 14-413 of this Title that would prevent the use or occupancy of a property designated as
an Iowa City Landmark or registered on the National Register of Historic Places. In addition to
the general criteria set forth in 14-4B, the following criteria must be met:
a. The modification or waiver will help preserve the historic, aesthetic, or cultural
attributes of the property.
FINDING:
The property was originally designed and constructed for a commercial use, with an open
floor plan and storefront windows, and is set at the front property line. This along with the
limited size of the property make it less desirable for conversion to a residential use,
especially given the surrounding multi -family uses. Staff believes that reducing the parking
requirement in order to allow the property to serve a small-scale neighborhood commercial
use will help to ensure that the property is maintained with its historic appearance.
b. The applicant must obtain a certificate of appropriateness from the Historic
Preservation Commission.
FINDING:
In September, 2012, the City Council approved a Historic Landmark designation for the
subject property. The Commission approved the exterior renovations for the building.
General Standards (14-413-3)
1. The specific proposed exception will not be detrimental to or endanger the public
health, safety, comfort or general welfare.
FINDINGS:
• The limited size of the lot and structure along with the restrictions placed on it due to its
Historic Landmark status, effectively limit the intensity of the use or enlargement
thereof.
• Two off-street parking spaces can be provided behind the building with access from the
public alley.
• A building permit will be required in order to establish the new use.
The owner is in the process of bringing the building into compliance with the building up
to code standard for a commercial use.
2. The specific proposed exception will not be injurious to the use and enjoyment of other
property in the immediate vicinity and will not substantially diminish or impair property
values in the neighborhood.
FINDINGS:
The proposed retail use of the property must be limited in scale due to the size of the lot and
building and the lack of available on or off-street parking. Staff recommends the following
conditions to further ensure that the use does not negatively impact the surrounding high
density multi -family residential neighborhood.
• Limited hours of operation: 7 AM to 7 PM weekdays, 7 AM to 10 PM Friday and
Saturday.
Outdoor storage or display and outdoor seating are prohibited without a temporary use
permit.
• Signage should be limited to a fascia or awning sign in compliance with the zoning code
standard for non-residential uses located in residential zone and in compliance with Iowa
City's Historic Preservation Guidelines.
• All outdoor lighting should comply with the zoning code standards for residential zones
and with Historic Preservation Guidelines.
• Sale of alcohol or tobacco products of any kind is prohibited on this property.
• The alley will not be used for drive -up or drive -through service.
• No amplified sound is permitted on the exterior of the building.
3. Establishment of the specific proposed exception will not impede the normal and orderly
development and improvement of the surrounding property for uses permitted in the zone
in which such property is located.
FINDINGS:
Again, any commercial use of the property may Include aspects tnat nave the potential to
detract from the surrounding residential neighborhood. The recommended conditions outlined
above, including limits for the hours of operation, signs, and outdoor seating and lighting and
restrictions on the sale of alcohol and tobacco, will reduce the potential for conflicts with the
surrounding residential uses. As stated above, the limited availability of on or off-street parking
creates a situation that will be an obstacle to any business that relies on customers coming to
the site by car.
4. Adequate utilities, access roads, drainage and/or necessary facilities have been or
are being provided.
FINDING:
This neighborhood is fully developed with all roads and drainage —Bowery Street is adequate
to serve a small-scale commercial use as the one being proposed.
5. Adequate measures have been or will betaken to provide ingress or egress designed
so as to minimize traffic congestion on public streets.
FINDINGS:
• Limited on or off-street parking and high pedestrian traffic in the neighborhood make it
most likely that the business will rely on a customer base that travels by foot or on bike:
o The property provides just two off-street parking spaces with access from the
alley.
o On -street parking is prohibited along Bowery Street until after 5:00 PM.
• The conditions for approval restrict use of the public alley for drive -up service.
6. Except for the specific regulations and standards applicable to the exception being
considered, the specific proposed exception, in all other respects, conforms to the
applicable regulations or standards of the zone in which it is to be located.
FINDING:
• This criterion is not applicable since the proposed use is one not permitted in the
zone.
7. The proposed use will be consistent with the Comprehensive Plan, as amended.
FINDING:
The Comprehensive Plan encourages the re -use of existing buildings so long as their use does
not interfere with the function and character of the neighborhood in which they are located.
The Comprehensive Plan also encourages the preservation of historic buildings.
STAFF RECOMMENDATION:
Staff recommends approval of EXC13-00015, a special exception to allow a non -conforming
use that is located in a structure designed for a use that is prohibited in the zone to be
converted to another non -conforming use of the same or lesser intensity; and a Historic
Preservation Exception to modify the required parking to allow re -use of the property at 518
Bowery Street, subject to the following conditions:
• The special exception grants the right to an Eating Establishment only. Any change from
the permitted use, including reverting to the previously approved Sales -Oriented Retail
Use, must be approved through another special exception.
• A building permit is required in order to establish the Eating Establishment.
• The use shall required to provide two off-street parking spaces at the rear of the
property.
• Hours of operation are limited to 7 AM to 7 PM weekdays and 7 AM to 10 PM on Fridays
and Saturdays.
• Outdoor seating and display of products within the public right-of-way are prohibited
unless a temporary use permit is granted.
• Signage is limited to a fascia or awning sign in compliance with the zoning code
standard for non-residential uses located in residential zones and in compliance with
Iowa City's Historic Preservation Guidelines.
• All outdoor lighting should comply with the zoning code standards for residential zones
and with the Historic Preservation Guidelines.
• The sale of tobacco or alcohol on the property is prohibited.
• The alley may not be used for drive -up or drive -through or parking.
• No amplified sound is permitted on the exterior of the building.
• The building may not be expanded without a special exception.
• Any alterations to the exterior of the building must comply with the Historic Preservation
Guidelines.
ATTACHMENTS:
1. Location map
2. Aerial views of the site
3. Photos of the site
4. Application materials
Approved by:
Robert Miklo, Senior Planner,
Department of Planning and Community Development
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518 Bowery prior to renovation.
APPLICAiI I®N O THE
BOARD OF ADJUSTMENT
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DATE:
PROPERTY PARCEL NO.
PROPERTY ADDRESS: r. p/r/ 1-1&4
PROPERTY ZONE: X& —I/-/
PROPERTY LOT SIZE: . 2be :70
APPLICANT: Name: 76-; 1 //. &ImoRie✓
Address: �' &galA . CooWi/
Phone: ?/R- O 3 /C)
CONTACT PERSON: Name:
(if other than applicant) o
Address:
Phone:
PROPERTY OWNER: Name:
(if other than applicant)
Address:
Phone: S/D
Specific Requested Special Exception; please list the description and section number in
the zoning code that addresses the specific special exception you are seeking. If you
cannot find this information or do not know which section of the code to look in, please
contact Sarah Walz at 356-5239 or e-mail Sarah-walz@iowacity.org.
Purpose for special exception:
Date of previous application or appeal filed, if any:
October 15ei, 2013
Dear Ms. Walz,
My plan for the property at 518 Bowery Street is to develop the space for a coffee house. Currently,
I would like the hours of operation to be from 7 am to 5 pm, Monday through Friday. After business
practices have been established, I plan to expand the hours to 7 pm, seven days per week. The coffee
house will require a maximum of eight staff with 3 staff available to work during peak hours. This will
allow seating for 12 customers. The majority of business will consist of grab and go or carry out. I was
informed by the realtor that there are 4,000 University of Iowa students living in the surrounding
apartments which will lead to substantial foot traffic.
Products for sale will include coffee and espresso -based beverages and bottled beverages such as juices,
energy drinks, and water. Food items will include muffins, scones, and quick breads and whole fruits
such as apples, bananas, and oranges.
Because of the many restrictions on the property, I believe a coffee house is a good use of the space.
Based on current foot traffic, I predict this will be a profitable and viable business that will be a welcome
service to the neighborhood.
Sincerely,
Tom Kemmerer
(319) 855-0310
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5
MINUTES PRELIMINARY
BOARD OF ADJUSTMENT
SEPTEMBER 18, 2013 — 5:15 PM
CITY HALL, EMMA HARVAT HALL
MEMBERS PRESENT: Larry Baker, Gene Chrischilles, Connie Goeb, Brock
Grenis, Becky Soglin
MEMBERS ABSENT: None.
STAFF PRESENT: Sarah Walz, Julie Tallman, Sarah Holecek, Bailee
McClellan
OTHERS PRESENT: Gerry Denning, Jim Affeldt, Jennifer Baum, Mike Hartley,
Adam Brantman, Mike Manville
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 AUGUST 21, 2013 MEETING MINUTES
Chrischilles moved to approve.
Soglin seconded the motion.
A vote was taken and the motion carried 5-0.
SPECIAL EXCEPTION ITEMS
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.
Walz reminded the Board that at their last meeting, they had voted to have outside counsel to
assist them with this agenda item, and Mr. Denning was in attendance to serve as counsel. She
said during the last meeting there was an error where it was stated "denial of a building permit"
when it was actually meant to be "denial of a site plan. She said she sent to all the Board
members a series of email exchanges between her and the appellant at his request.
Board of Adjustment
September 18, 2013
Page 2 of 13
Gerry Denning introduced rnmselt as an attorney primarily practicing in Muscatine County. He
said he received a call from the City of Iowa City's Attorneys' office to serve on this case. He
said he listened to the recording of the Board's last meeting and looked at the minutes as well
as researched as much as he could of the history of this case. He said he prepared a legal
overview of the questions the Board had at their last meeting. He said he wants to provide legal
advice and guidance but not to try to steer the Board in any particular direction.
Walz said there were two issues for the Board to consider. She said in the first staff report it said
that Mr. Barkalow's appeal was not filed in a timely manner, so the Board needs to render a
decision about timeliness. Secondly, the appellant is arguing that he's entitled to the R3-B
zoning.
She explained the site plan process and said that the first site plan is rarely accepted because
an applicant would be permanently altering the land, so everything has to be legal and that the
applicant has to abide by all the zoning regulations and any other requirements. She said the
staff has twenty-one days to review and deny, review and approve, or review and approve it
with some changes.
Chrischilles asked when the clock starts regarding an ability to appeal the staffs decision. Walz
said if a site plan is denied, the applicant has thirty days from the point that site plan is denied to
file an appeal based on the reason for denial. She said bringing in a new site plan restarts the
appeal clock unless the plan is unchanged. Otherwise an applicant could just continually reset
the clock by submitting a plan with same error.
Walz said in the information she provided to the Board it explains that once a moratorium is
issued, in this case on January 22, 2013, everything comes to a stop, unless something' is in the
ground and already being built. She said in this case the City Council rezoned the subject
property, so anything that was in review or anything not in the ground would then have to abide
by the proposed rezoning. Walz said the appellant had submitted two site plans prior to the
moratorium that didn't meet with all requirements. She said all staff is required to abide by City
Council's decision so Julie Tallman reviewed the subsequent plans based on the RS-12 zoning
and rejected them because multifamily buildings are not allowed in the RS-12 zone or in the, at
that time, CO-1 zone. She said it is incumbent upon the appellant to show that Tallman's
decision was in error.
Baker said he wants to make sure he understands the process of denial in regard to those
earlier applications submitted under the R3B zone. He asked Tallman if the conditions are a
negotiable part of the process. Tallman said they aren't except in the case of very old utilities
that have been abandoned. Baker asked how often she denies initial site plans. Tallman said in
the seventeen years that she's been looking at site plans, she has approved one on first
submittal. Baker asked how many of the site plans not approved on the first submittal have been
appealed. Tallman said this is the only time she's been involved in an appeal. Baker asked her
about the plans submitted in January and the fact that they were denied because no required
information was provided yet many of the boxes on the check list were checked. Tallman said
the check list was completed by the applicant, and it may have been that there was a north
arrow on the plan, but she recalls the rest of the submittal being very sketchy, and it was not
enough to review.
Board of Adjustment
September 18, 2013
Page 3 of 13
Chrischilles asked if the applicant is appealing that the property should be zoned R3-13 right
now. Walz said he did indicate that any error made in issues such as information required,
among other things. She said he believes the R3-B zoning is still valid.
Baker said the Board's confusion at the last meeting came when they found out about these
January applications when the R3-B zoning was still in effect. Chrischilles said what they didn't
know at their last meeting was that the two earlier submittals were denied.
Soglin said the decision the applicant is appealing is the one made by Tallman on April 29,
2013. She said the remedy he desires is that the site plan he submitted on April 18th and dated
April 19th be revisited. She said as she sees it, the January cases are not material to the Board's
decision. She said she thinks the Board's decision is whether the April 18th plan was materially
identical to the earlier plan. She said the Board makes that judgment and based on that, they
don't render any decision if the 30 day deadline is missed or they decide if Tallman made an
error in denying. Soglin asked Denning if she is correct in this thinking.
Denning responded that Soglin is essentially right, but that there are bigger legal issues that
surround this situation. He said he has identified four major issues. He said the first is the
rezoning and the site plan. He said the rezoning is in District Court and asked if that removes
the Board's jurisdiction completely. He said his inclination is to say that it doesn't because the
site plan application is still ongoing. He said he gathers that one of the concerns of the appellant
is exhaustion of administrative remedies, and how will he be able to do that if the Board says
that they have no power. Denning said that even though the rezoning is in District Court, the site
plan is still in front of the Board.
Denning said the second issue is, with the site plan is front of the Board, where are their powers
defined? He read from a relevant portion of the Iowa Code Chapter 414.12 which says that this
Board can decide administrative appeals. He said Tallman did make an administrative decision
on the April application, and it was appealed.
Chrischilles said the way he reads that is after the appellant's initial appeal application he didn't
appeal it on the basis of timeliness but rather on the basis of the Iowa Supreme Court decision,
and that Court's decision was only valid until the moratorium went into play. Denning said he
would like to come back later to the timeliness argument.
Denning said if the Board can go past the timeliness argument then they have reached the
merits of the case, i.e., is the site plan denial correct or not? He said to him the salient point on
that is effective March 28, 2013, the City Council rezoned this area to RS-12. He said the
presumption of legality is the important thing here. He said the City Council rezoned this, and
the Board must presume they were correct until a court says otherwise. He said if the Board can
"reach the merits", the question they have is if the site plan, which calls for approximately sixty
units, possibly be permitted given RS-12. Denning said he believes that Barkalow wants to say
that the Board is in effect like a district court in dealing with the precedent set by the Supreme
Court, and it's not.
Denning said the timeliness issue may never let the Board get to the merits.
Goeb asked how the timeliness issue related to the moratorium. Denning said two of the
January site plans were before the moratorium started on January 22, 2013. He said because
those plans were never appealed, those plans are done. He said the January 23`' and April 18th
Board of Adjustment
September 18, 2013
Page 4 of 13
site plan submissions both had far too many units for what is allowed in the RS-12. He said the
appellant will argue that the Supreme Court decision governs the Board. He said he disagrees
because he feels that question is not for this Board but for the district court.
Baker said that after the last meeting the Board wasn't sure what the issue was to be decided or
if they were the ones to decide it. Denning said if the Board can get past timeliness and reach
the merits, one issue the Board needs to keep in mind is presumption that the City Council did
the legal thing. Baker asked if the January applications are irrelevant to this decision. Denning
said he thinks the first two are.
Grenis invited the applicant to speak.
Jim Affeldt said he is here representing Mr. Barkalow. He said they are not asking the Board to
void the City ordinance or void anything City Council has done. He said they are here tonight
about the denial of the site plan. He gave the Board a history of the property and the legal
decisions rendered. He said what the Supreme Court said was that this property was to be
retained at R3-B, and the City is enjoined from doing anything to prohibit that. He said they are
asking the Board to look at the City ordinance and the Supreme Court decision together and
determine whether the City staff made a correct decision in rezoning the property.
Affeldt said the City has a remedy in that they can try and get the injunction lifted. Chrischilles
asked what would happen if they did that. Affeldt said it would dissolve the injunction.
Chrischilles asked if it would change the zoning back to what it was. Affeldt said it would still be
zoned R3-B and lift the restriction on the City where the decision said it can't limit Barkalow's
use of the property in a manner other than what would have been allowed under R3-B.
Baker asked if it's true that Barkalow bought the property in March of 2012 and was notified in
August of 2012 that the City intended to rezone in the future. He asked if Barkalow, requested
that his January applications be reviewed under the R3-B standards. Walz said he did on at
least one of them. Baker said the application was still denied because regardless of the zoning
there are still rules that have to be complied with. Baker asked Affeldt what specific thing City
staff did that they are asking to be overturned. Affeldt said the denial of the April site plan. Baker
said when the April site plan was denied was it Affeldt's understanding that no appeal was filed
within thirty days of that. Affeldt said it was his understanding that it was filed within thirty days.
He said the application was filed on the 18th, it was denied on the 29th and the appeal was filed
on May 24th. Baker asked if that appeal was based on the presumption that it be evaluated on
the R3-B zone. Affeldt said that was correct.
Affeldt said the City's right to rezone the property is not inconsistent with what the Supreme
Court said. He said what the Supreme Court enjoined them from was doing something that
would in any way affect adversely Barkalow's use of the property in a manner other than what
would have been allowed under R3-B. Baker asked if the Board were to agree with the
applicant, is it Affeldt's understanding that they would be making a decision based on the
underlying zoning, not the administrative process. Affeldt said he would disagree with that and
said he doesn't believe the City ever had the right to do what they did. Baker asked if Affeldt
wants the Board to make a decision saying that the City did not have the power to make that
zoning change. Affeldt said they are appealing the administrative decision, not the rezoning.
Baker asked if Affeldt agrees that this Board has no power to change a zoning decision: that's
not the administrative decision the Board has some review over. Affeldt said he agreed that this
Board does not have the right to change the zoning. Baker said but Affeldt wants the Board to
Board of Adjustment
September 18, 2013
Page 5 of 13
make the administrative change based upon the zoning. Affeldt said they don't challenge the
Council's right to change the zoning, but they do challenge the City's right to limit the way
Barkalow uses the property.
Chrischilles said they did have the right to rezone the property that had been improved or had
something built on it, which were two of the five lots. He said what they didn't have the right to
do was rezone the three remaining ones. Affeldt said they had the right to rezone it, but they
didn't have the right to restrict Barkalow's use of that property. Chrischilles argued that by
rezoning it, they are restricting it, because it sets up new standards of what can be built on
those three properties, and he doesn't think the Board has the power to nullify that.
Chrischilles said he doesn't think this is a matter for the district court simply because the critical
point is if the City had the right to rezone that property, and in his mind, everything beyond that
is a moot point. Walz said the City clearly disagrees with Barkalow's attorney. She said she
thinks what the Board is being asked is what a reasonable interpretation is — did Tallman make
a reasonable interpretation that when City Council did this, it was her requirement as a City
Administrator to follow the legislative process.
Walz showed a map of the subject properties. She said prior to the RS-12 rezoning, the
property on Governor Street was zoned CO-1 and had been for many years. The appellant had
purchased the property after another property owner had failed in his attempts to change the
property from CO-1 to a multi -family zone. She said that the failed rezoning of that property had
prompted the City Council to undertake the larger study of the area. She indicated another
parcel to the south of the established apartment complex was already RS-12. She said that the
appellant was asking to go back beyond zoning that's been in place on these properties for
more than ten years to get back to the R3-B. She questioned whether staff could be reasonably
expected to take such an action administratively. She said the history of these properties is
complicated. She said when City Council went ahead with full knowledge of Barkalow's
objections and chose to rezone the property, it was perfectly reasonable for Ms. Tallman to
comply with the moratorium and the rezoning to RS-12. She said staffs view is that the rest is
for the court to decide.
Chrischilles said that's just where they started at the last meeting
Baker said what is being appealed is Tallman's authority to make that decision. He told Affeldt
he's not sure what he wants the Board to do administratively in terms of that decision. Affeldt
asked any lawyer present to disagree that an order once entered by the Supreme Court and
then implemented by the district court have a time limit as to the enforceability of that order. He
said he would also ask if once an injunction is ordered to be issued by the Supreme Court and
by the district court does that go away or is it in place. He said he doesn't think that Tallman had
the authority to make a decision, as it had already been made by the Supreme Court.
Chrischilles said he doesn't agree with that.
Baker said he's having a hard time seeing the Board making a decision based on the guidelines
they have and the parameters they have to work within. He said he thinks that administratively,
Tallman did what she was supposed to do as far as the merits of the application based upon the
RS-12 zone. He said Affeldt might be right about the zoning issues in the long run, but he
doesn't think the Board is in the position to legitimize that position here.
Board of Adjustment
September 18, 2013
Page 6 of 13
Denning said in his opinion, once the property was rezoned, Tallman had to follow that
rezoning. He said Affeldt's argument that there's this over-riding injunction does not comport
with the limited power of this Board to do that. He said this Board does not have the power to
over -rule the rezoning by the City Council.
Baker asked if they are obligated to have a formal decision. Denning said he thinks they have
the power to rule on the appeal if they consider it timely. He said the Board must presume the
Council was correct in the rezoning, and if they do that and it goes against Barkalow, and if he
wishes to appeal whatever the Board decides, it will go to the district court and it's likely that the
rezoning and this issue would all be joined together and be before a district judge and then that
judge is going to pay much attention to the precedent issue.
Baker said then it's better for the Board to vote yes or no to clean up one area of this process.
Denning said it's somewhat helpful to Barkalow because he gets a decision that can be argued
in court. He said they could just this once skip past the timeliness issue and go straight to the
merits.
Soglin asked how they could dismiss the timeliness issue and not set themselves up for a
problem in future cases. Denning said the Board could make this one-time exception. He told
the Board they could decide on timeliness or on merits.
Chrischilles asked if the Board could refuse to make any ruling on this appeal. Denning said
because the jurisdiction doesn't cut them off, he thinks they have an obligation to make a ruling
on either timeliness or the merits. Chrischilles asked how to handle it if they decide this is a
matter for district court and not for the Board. Denning said if the Board decided to waive the
timeliness question and get to the merits, they would have to look at Tallman's decision of April
29th and they are required by the presumption of legality to assume that the March 28th rezoning
is correct.
Sarah Holecek from the City Attorney's office said she was speaking on behalf of staff. She said
it's clear that City Staff does not have the authority to ignore the legislation that was correctly
passed by City Council. She said if the Board's issue is that Tallman made an error in denying
site plan based on RS-12 zoning, they need to remember that she didn't have the discretion not
to do that. She said Affeldt is arguing that the site plan should go back to the court order, so the
appellant had to follow the court order rather than the legislation of the Council. She said that's
what's in district court, as to whether there was authority or not. She said Soglin was correct in
not wanting to set a precedent by skipping the timeliness and going to the merits. She said the
Board could say that for this particular issue the Board will suspend the rules and vote to do
that.
Denning said he leans toward the notion of the Board saying they are going to disregard
timeliness in the circumstances of this case. Holecek said staff does want a decision on this.
Chrischilles asked for clarification on the timeliness issue. Walz said she raised that issue
because staff felt that if you have two site plans set apart by time that are being rejected for the
very same thing, the appeal should have been raised with the first site plan.
Soglin asked if Holecek's opinion is that it would be acceptable to suspend the timeliness issue
and make the decision on the merits using some very distinct wording. Holecek said a decision
on timeliness would be valuable for guiding future appeals.
Board of Adjustment
September 18, 2013
Page 7 of 13
Grenis opened public hearing.
Jennifer Baum of 814 Dewey Street said she guesses that she's opposed to the appeal, but that
she really doesn't understand anymore. She thanked the Board for their time and work.
Affeldt said he thinks if they decide it on the timeliness issue they may be opening new areas
they don't want to, as the word "materially" is not defined in the City Ordinance, and there's no
provision in the Ordinance that restricts the refiling.
Grenis closed public hearing.
The Board was divided on what issue they should decide on.
Baker moved that in the matter of APL13-00001 to overturn the decision made by the City
of Iowa City's Development and Regulations Specialist for denial of a site plan at 902 and
906 N. Dodge Street and 911 N. Governor Street, the appeal filed by TSB Holdings LLC.
Chrischilles seconded.
Baker said he suggests that they set aside the issue of timeliness as not being relevant to this
particular case, and base this decision on the merits of the decision that the site plans do not
conform to the regulations of RS-12 in place at the time.
Grenis said he would agree that he would not vote to overturn it based on the merits that
Tallman was making a decision based on the authority of City Council.
Goeb asked if they didn't think the timeliness issue was the simplest way to exit this.
Baker said he thinks timeliness would be the harder issue to defend for the reasons the
applicant's attorney stated, but they are very clearly correct on the merits of the denial based
upon the zoning that was in place at the time.
Soglin said she thinks it's appropriate to put aside the timeliness issue based on the extremely
complex history of the property, and the Board needs to focus on the administrative and
legislative issues here, and by disregarding the timeliness issue in this particular situation, they
can do that.
A vote was taken and the motion was denied 0-5.
Grenis declared the motion for the appeal 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.
The Board took a short break.
Grenis called the meeting to order.
Board of Adjustment
September 18, 2013
Page 8 of 13
EXC13-00013: Discussion of an application submitted by Mike Hartley for a special
exception to allow a dental laboratory, a non -conforming use, that has been destroyed to
be rebuilt in the Medium Density Single Family (RS-8) zone at 1515 Jackson Avenue.
McClellan said there was an amendment to the Zoning Code that states that nonconforming
uses that have been in establishment for over twenty-five years that were damaged by more
than 75% could be rebuilt if they meet certain conditions and get a special exception.
McClellan said staff is recommending approval with the conditions.
Baker asked why the City is requiring that the applicant provide a plan showing that the interior
of the building could be converted to a residential use. Walz said staff didn't want to create a
situation in which if the business went away that there would be a great impediment to coming
into full compliance with the residential zoning. For example, a situation in which the property
owner would incur a great loss in value in converting from a business to residential use. Walz
said that, over time, if the use goes away it will have more opportunities for conforming uses if it
is set up to be converted. Baker asked why not re-establish the accessory apartment. Walz
replied that the idea of the amendment is to bring back a building that is more in compliance
with the neighborhood. She said an accessory apartment is legal in this neighborhood only in
owner -occupied property. Baker asked if the applicant would be living there. Walz said he would
not, and this will be operated as a commercial use.
Soglin asked Walz to clarify where the garage will be. ,Walz showed the garage to the rear of the
house.
Grenis asked if this is the first time this type of exception has been used. Walz said it is
Grenis invited the applicant to speak.
Mike Hartley, the applicant, said he doesn't care if there's an apartment on the new building. He
said he's anxious to get back into production. He said they have no arguments or
disappointments with what is planned and appealed to the Board —he just wants to make it
happen.
Baker asked about production waste in the form of plaster. Hartley explained that the plaster
goes into a 35 gallon trash can underneath the work benches, and is then taken to the landfill.
Goeb asked if the mature trees will be affected by his building. Hartley said one is on his
property, but the new building will be far enough from the property line that it won't affect the
tree.
Grenis asked if there will be signage. Hartley said there would not, because they do not wish for
customers to come to the facility. Their work is done through dental offices.
Grenis opened public hearing.
Grenis closed public hearing.
Chrischilles said it sounds like a good project.
Board of Adjustment
September 18, 2013
Page 9 of 13
Chrischilles moved to approve EXC13-00013 for the property located at 1516 .Jackson
Avenue currently zoned for Medium Density Single Family (RS-8) with an overlay
conservation district to allow for the restoration of a non -conforming use of a dental lab
subject to the following conditions:
• Substantial compliance with the site plan submitted.
• A Certificate of Appropriateness from Historic Preservation.
The applicant will provide a floor planning showing how the interior of the
building could be converted to a single family residence.
The building floor area will not exceed the floor are of the dental lab that
previously existed on the property.
• The use will provide all required off-street parking in a garage or paved are to be
located to the rear of the building. Four spaces are to be located in the garage and
on the paved drive.
• The property will meet all dimensional and residential site design standards in the
Zoning Code and all building code standards.
• Change from the specific use of light manufacturing of dental components with no
on -site sales will require a special exception otherwise the building must convert
to a conforming use for the RS-8 zone.
• Normal hours of operation will be limited to 8:00 am to 6:00 pm.
Baker seconded.
Baker presented his statement of findings. He said that regarding item EXC13-00013 he
concurs with the findings set forth in the staff report of September 18, 2013, and concludes that
the general and specific criteria are satisfied. Unless amended or opposed by another Board
member he recommends that the Board adopt the findings in the staff report for the approval of
this proposal and in particular, he feels that this is a plan that will facilitate the eventual long-
term conversion back to residential.
Grenis said he would agree and thinks that it's good for the neighborhood in that the use is low
in intensity and compatible with the surrounding homes. It complies with the Comprehensive
Plan, and adds some diversity to the area. `
Soglin said she supports that and agrees that the applicant has done a good job working with
neighbors and the City processes to develop this project in a way that is compatible with the
neighborhood.
A vote was taken and the motion carried 5-0.
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.
EXC13-00014: Discussion of an application submitted by Prime Ventures Construction
I I r for a special exception to allow reduction in minimum rear set back requirement for
Board of Adjustment
September 18, 2013
Page 10 of 13
a principal building in the Low Density Single Family (RS-5) zone to accommodate
screened in porch at 838 Sugar Loaf Circle.
Walz showed the location map. She said that a porch, given that it has a roof, becomes part of
the principal structure and is subject to the setback standards for the house, while a deck is an
accessory use, and is allowed to project into the rear setback. She said she thinks that the
Board was uncomfortable with a similar item that came before them recently from this same
development where they built the house first and then came in to ask forgiveness, rather than,
as in this case, coming to the Board before they build. She said what's relevant here is that a
number of these lots are smaller than normal, which was approved through the Planned Overlay
Development process. Walz explained that for this subdivision the developer set aside a lot of
land as permanent open space in order to preserve woodlands and slopes. In exchange the
development was allowed to have lots that are a bit smaller than the minimum required in the
RS-5 zone.
Walz said there are a number of reasons for setbacks. She said one is to maintain light, air, and
separation, for fire protection and access for firefighting. She indicated that the request is to
reduce the setback from the rear property line. In this case, the reduction will not result in the
house being located any closer adjacent homes, moreover the land on the other side of the rear
property line is permanent open space. She said given the sloped typography, the backyard is
not very useable, and the porch would allow the residents more opportunity to enjoy the private
rear yard space. Other houses have constructed screened porches in order to have the same
enjoyment of their property. She said a setback should promote a reasonable physical
relationship between residences, and in this case the setback will not reducing space between
buildings.
Walz said the developers have provided examples of the property disclosures assuring that the
future homeowner understands that this must be maintained as a screened porch, not an
enclosed one.
Soglin said the specific standards say the situation is peculiar to the property. She said it was
also peculiar to the previous property in this development that came before the Board. She
appreciates the fact that these properties are a little smaller because the land was set aside for
open space, but she is also wondering why they aren't designing these homes in a way that fits
the lot. She noted that there are several other empty lots and wondered if the Board is expected
to continue making exceptions.
Holecek said in staffs view it's peculiar because of the small size of the lot and the fact that you
don't have any disruption to neighbors by reducing the setback due to the preserved open
space.
Walz said Soglin is asking if the peculiarity is true to a portion of the neighborhood, does that
make it peculiar to the property.
Soglin said if every lot in the neighborhood is like that, then the house should be designed to fit
the lot or the developer should build this house in a different neighborhood.
Chrischilles said as long as there is property behind the houses that is never going to be
developed, and you're not impinging on any other house so it doesn't really matter. He said
probably the other four houses will want it too.
Board of Adjustment
September 18, 2013
Page 11 of 13
Grenis asked if that's something they could change at the OPD level. Walz said the developer
could request a change at the OPD level to reduce the setbacks. They had been advised of this,
but it is a lengthier process, although it would address all lots in one process.
Grenis invited the applicant to speak.
Adam Brantman of Prime Ventures said they agree to the conditions that were stated in the staff
report. He said if all the lots in the neighborhood were requesting a special exception then
maybe they aren't peculiar, but it's possible for lots 96, 97 and 95 to be peculiar although they
are all similar when compared to the other lots in the neighborhood.
Grenis asked if the subject house was presold. Brantman said it was not.
Baker asked if the developer is making the decision that the porch will make the house more
attractive for sale. Brantman agreed. Baker asked if they could expect a lot more of these
requests for adjacent properties.
Mike Manville of Prime Ventures said the only other opportunity they will have to ask for a
special exception will be on Lot 95, and they haven't decided on a design plan yet. He said he
doesn't think it's necessarily true that all the remaining lots that abut the permanent open space
will be seeking to reduce their setbacks. Most have the space needed to provide a porch within
the required setback.
Goeb asked if these are two story porches. Walz said the previous one asked for a screened
porch at the upper level and an open deck below. She said this one will be screened porch at
the upper level.
Grenis closed public hearing.
Baker moved to approve EXC13-00014, a special exception to reduce the rear principal
building setback from twenty feet to twelve feet in order to allow a 12'x12' screened in
porch for the property located at 838 Sugar Loaf Circle subject to the following
conditions:
1. The applicant must secure a building permit for the 12 x 12-foot screened porch.
2. The porch must be un-enclosed. The installation of windows or solid walls would
constitute an extension of the principal structure, which would not be permitted.
3. The applicant must disclose the restrictions on enclosing the porch in materials
provided to the homebuyer.
Goeb seconded.
Soglin said regarding EXC13-00014 she concurs with the findings set forth in the staff report of
September 18'', 2013, and concludes that the general and specific criteria are satisfied. Unless
amended or opposed by another Board member she recommends that the Board adopt the
findings in the staff report for approval of this proposal. She said she finds that the situation is
indeed peculiar to this to this home, and it does add a function for the home -owners who would
not otherwise be able to enjoy their backyard space, and the purpose of the setback regulations
will not be compromised.
Board of Adjustment
September 18, 2013
Page 12 of 13
The other Board members concurred with Soglin's findings.
A vote was taken and the motion carried 5-0.
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.
OTHER:
The Board briefly discussed a recent Court decision upholding a Board decision regarding a wet
batch concrete plant in the 11 zone.
ADJOURNMENT:
Baker moved to adjourn.
Chrischilles seconded.
The meeting was adjourned on a 5-0 vote.
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