HomeMy WebLinkAbout01-11-2017 Board of Adjustmenti
CITY OF IOWA CITY
IOWA CITY BOARD OF ADJUSTMENT
January 11, 2017
5: 15 P.M.
Emma Harvat Hall
STAFF REPORT
CITY OF IOWA CITY
Department of Neighborhood & Development Services
IOWA CITY BOARD OF ADJUSTMENT MEETING
Wednesday, January 11, 2017 — 5:15 PM
City Hall, 410 East Washington Street
Emma Harvat Hall
AGENDA
A. Call to Order
B. Roll Call
C. Consider the December 14, 2016 minutes
D. Nomination and selection of Board Chair and Vice Chair
E. Review Board Procedures
F. Board discussion
This is an opportunity for the Board to ask any general questions about its role or
issues related to review of applications.
H. Adjourn
NEXT BOARD OF ADJUSTMENT MEETING:
Wednesday, February 8, 2017
PROCEDURAL RULES
Iowa City Board of Adjustment
December 2016
ARTICLE I. AUTHORITY:
The Iowa City Board of Adjustment shall have that authority which is conferred by
Chapter 414 of the Code of Iowa; City Code Title 14, Chapter 7, entitled "Administration,"
Article A, entitled "Board of Adjustment," and through the adoption of these procedural
rules stated herein.
ARTICLE II. MEMBERSHIP:
Section 1. Qualifications. The Board of Adjustment shall consist of five (5) members
appointed by the City Council. All members of the Board shall be qualified electors of the
city of Iowa City, Iowa. A majority of the members of the Board shall be persons
representing the public at large and shall not be involved in the business of purchasing
or selling real estate.
Section 2. Compensation. Members shall serve without compensation, but may be
reimbursed for expenses incurred for travel outside the city on designated Board
business. Such expenses must be submitted to the City Manager.
Section 3. Orientation for New Members. Prior to the first regular meeting following
their appointment, each new member shall be shall be given an orientation briefing by
City staff and be provided with the Board's procedural rules and other information that
may be useful to Board members in carrying out their duties. The City Zoning Chapter
and the Comprehensive Plan are available on line.
Section 4. Absences. Three consecutive unexplained absences of a Board member
from regular Board meetings may result in a recommendation to the City Council from
the Board to discharge said member and appoint a new Board member. Members shall
be removable for cause by the City Council upon written charges after a public hearing.
Section 5. Vacancies. Any vacancy on the Board because of death, resignation, long-
term illness, disqualification, or removal shall be filled for the unexpired term by the City
Council after at least thirty (30) calendar days of public notice of the vacancy as required
by law.
Section 6. Terms. Members shall be appointed for terms of five years. No members
shall be appointed to succeed themselves. However, a member appointed to fill an
unexpired term with one year or less remaining may also be appointed concurrently for
one full five (5) year term.
Section 7. Resignations. Resignation should be submitted in writing to the Board
Secretary, who will transmit the resignation to the City Council with copies to the City
Manager, the Director of Neighborhood and Development Services, and the Board
Chairperson, preferably at least sixty (60) days prior to the date of intended departure.
ARTICLE III. OFFICERS:
Section 1. Number. The officers of the Board shall be a Chairperson and a Vice -
Chairperson, each of whom shall be elected by a majority vote of the members of the
Board. The Board Secretary shall be a staff person, who is appointed by the Director of
Planning and Community Development.
Section 2. Election and Term of Office. The Chairperson and Vice -Chairperson shall
be elected annually at the first regular meeting of the Board each ;rear.
Section 3, Vacancies. A vacancy in the office of Chairperson or Vice -Chairperson
because of death, resignation, removal, disqualification, or other cause shall be filled by
election from the members of the Board for the unexpired portion of the term.
Section 4. Chairperson. The Chairperson shall, when present, preside at all meetings,
call special meetings, and in general perform all duties incident to the office of a
Chairperson, and such other duties as may be prescribed by the members from time to
time. Such Chairperson may administer oaths and compel the attendance of witnesses.
Section 5. Vice -Chairperson. When the Chairperson is absent or abstaining, the Vice -
Chairperson shall perform the duties of the Chairperson and shall have all the powers of
and be subject to all the restrictions upon the Chairperson.
Section 6. Acting Chairperson. In the absence and/or due to the abstention of both the
Chairperson and Vice -Chairperson, the remaining three -member Board may elect a
member to serve as Acting Chairperson. The Acting Chairperson shall perform the
duties of the Chairperson and when so acting shall have all the powers of and be subject
to all the restrictions upon the Chairperson.
Section 7. Secretary. The appointed staff person, who serves as the Board's Secretary,
shall be responsible for maintaining the office of the Board, receiving and filing Board
decisions and orders, posting and publishing notices as required by law, and for
maintaining minutes and other records of the Board's proceedings.
ARTICLE IV. APPLICATIONS:
Section 1. Application Forms. Any application for a request or appeal to the Board of
Adjustment shall be filed with the City Clerk on forms provided by the Secretary of the
Board. The Secretary's office is located in the Department of Neighborhood and
Development Services. Forms are available in the office of the City Clerk and on the
City's website. In the appropriate cases, the Building Inspector shall transmit to the
Secretary all documents constituting a record, upon which the Board shall act.
Section 2. Application Submittal. Appeals to the Board shall be filed with the City Clerk
within a reasonable time period, not to exceed thirty (30) calendar days after the action
appealed from, and shall specify the grounds for such appeal. An appeal from a decision
by the Building Inspector to issue a building permit shall not be deemed to have been
filed within a reasonable time if such appeal is filed more than ten (10) business days
after construction work pursuant to such permit is observable from adjacent properties of
the public right-of-way or ten (10) business days after an alleged violation of the zoning
code is similarly observable. Applicants may appeal an approval or a denial of a
Certificate of Appropriateness from the Historic Preservation Commission within a
conservation district by filing a letter with the City Clerk within ten (10) business days
after a Resolution of Denial is filed by the Commission.
Section 3. Application Filing Fee. The applicant shall complete the required forms,
providing all information requested on the form, and any additional information as
requested by the Secretary of the Board. A filing fee shall be paid upon presentation of
the application. Application fees are established by resolution of the City Council.
Section 4. Party of Interest. Requests for a variance or special exception must be filed
on behalf of the real party in interest, such as the owner or contract purchaser.
Section 5. Case Number. An application filed according to the above procedure shall be
given a case number within five (5) business days of the filing date. Case numbers will
be assigned according to the order in which applications are received.
ARTICLE V. NOTICE:
Section 1. Notice Letters. No less than seven (7) business days prior to the public
hearing, the Secretary of the Board shall send notice by mail to all property owners of
record within 300 feet of the subject property. Such notice shall include a description of
the action requested along with the time and location of the meeting. The applicant shall
be formally notified of the time and place of the hearing, in writing, by the Secretary of
the Board.
Section 2. Newspaper Notice. Notice of the time and place of public hearings shall be
published in a newspaper of general circulation not more than twenty (20) calendar day
nor less than seven (7) business days prior to the hearing. It shall contain the street
address or location of the property and a brief description of the nature of the application
or appeal.
Section 3. Notice Sign. No less than seven (7) business days prior to the public hearing,
the Applicant shall post a sign on or near the property upon which the application is
being made, and shall remove the sign immediately following the public hearing on the
application. The sign will be provided to the applicant(s) by the Board Secretary.
ARTICLE VI. HEARING:
Section 1. Regular Hearings. Hearings will be held as needed at a regular time and
place to be set by the members of the Board.
Section 2. Special Hearings. Special hearings or meetings of the Board may be called
by the Chairperson and shall be called by the Chairperson or Vice -Chairperson at the
request of three (3) or more members of the Board.
Section 3. Place of Hearings. All hearings and meetings of the Board shall be open to
the public and shall be in a place accessible to people with disabilities.
Section 4. Quorum. Three members of the Board shall constitute a quorum.
Section 5. Applicant Representation. The applicant may, at the time of the public
hearing, appear on their own behalf and be represented by agent and/or counsel. The
applicant or their representative may present oral argument and testimony; witnesses,
including experts; and may submit written evidence and exhibits in the form of
statements, photos, charts, or other relevant evidence. In the absence of the applicant or
their representative(s), the Board may proceed to act on the matter based on the
information provided.
Section 6. Briefs. The Board may request written briefs for legal argument. Applicants
may submit written briefs if they so choose.
Section 7. Conduct of Hearing. Order and decorum shall be maintained at the hearing
by the Chairperson of the Board of Adjustment, so as to allow an orderly presentation of
evidence wherever possible. The Chair may swear witnesses and direct order of
testimony. The Chair shall avoid testimony that is overly redundant. The Chair may
provide for recesses during the deliberation, as appropriate.
Any Board member who has a legal conflict of interest shall recuse him/ herself from the
decision -making process. A member who has a legal conflict of interest or otherwise
elects to recuse him/herself due to a perceived conflict of interest shall state the reason
for recusal prior to discussion of the matter under consideration and may choose to
leave the meeting room for the duration of the proceedings for that application.
Section 8. Hearing Order. The order of hearing shall be as follows:
1. Staff presentation of the facts of the case and recommendation to the board.
2. Statement by proponents of the application.
3. Statement by opponents of the application.
4. Rebuttal by proponents and then by opponents.
5. General discussion by the Board.
Section 9. Board Deliberation. After all parties have been heard, the public hearing will
be declared closed so that the Board may deliberate the case. The Board must state
findings of fact and conclusions of law. These facts and legal conclusions must be set
forth in writing as required by Iowa Law. The Board may request additional comments
from the participants. An application may be deferred or withdrawn at the request of the
applicant at any time before a decision is made by the Board.
Section 10. Board Motions. Motions may be made and seconded by any member of the
Board other than the Chair. Motions are always made in the affirmative, approving the
requested action.
Section 11. Board Voting. After a motion and discussion, the Board shall be polled for
votes. A board member may abstain from voting, which is a non -vote. The concurring
vote of three (3) members of the Board shall be required to uphold an appeal, to decide
in favor of a special exception, or to grant a variance.
Voting on Board decisions will be by roll call and will be recorded by yeas and nays.
Proxy votes are not allowed.
Section 12. Legal Advisor. The City Attorney or a designated representative shall act as
legal counsel to the Board.
Section 13. Conduct of Meetings. Except as otherwise provided herein, Roberts Rules
of Order Newly Revised shall be used to conduct Board hearings and meetings.
ARTICLE VII. RECORDS:
Section 1. Record of Hearings. Audio recordings shall be made for all hearings and
such recordings shall be kept for a period of no less than six (6) weeks. Minutes shall be
produced from such recordings, and forwarded to the City Council after approval by the
Board or the Secretary of the Board. All minutes shall be maintained by the Secretary of
the Board, and shall also be on file at the City Clerk's office. The applicant may request
a court reporter at the applicant's own expense.
Section 2. Case Files. The Secretary of the Board shall keep a file of all cases, including
forms and additional information. Said file shall be a public record and available for
public inspection during business hours. Copies may be made available upon request, at
cost.
Section 3. Transcript. Upon request, a transcript or the audio recording of the Board's
deliberation will be made, at cost to the requestor. In the case of an appeal to district
court there is no charge for the transcript.
ARTICLE Vill. DECISIONS:
Section 1. Whenever possible, decisions by the Board shall be made at the same
hearing wherein the testimony and presentation of evidence are considered.
Section 2. Formal decisions shall be made in writing, setting forth findings of fact and
conclusions of law as required by Iowa law.
Section 3. Each decision shall be filed with the City Clerk within a reasonable time after
the Board hearing, and shall be stamped by the Clerk to indicate the date and time of
filing. The Clerk will forward the decision to the Johnson County Recorder's Office, for
recording at the city's expense.
Section 4.
A copy of said decision shall be forwarded by the Secretary of the Board to the
applicant, the Building Inspector, the City Attorney's Office, and any Attorney of Record
within a reasonable time after filing with the City Clerk.
Section 5.
Reconsideration: Upon written request, the Board may reconsider a decision on a
special exception or variance application. A request for reconsideration must be made
within ten (10) business days of the meeting at which a vote on the application was
originally taken and shall articulate and be based on evidence that was not presented or
was unavailable at the time of the original hearing. A motion to reconsider must be made
at the subsequent meeting by a member of the Board who voted on the prevailing side.
If a motion to reconsider is approved, the application will be placed on the agenda of the
next meeting in order to satisfy the requirement for public notice and hearing. No
decision may be reconsidered more than once. Appeals to the Board may not be
reconsidered.
ARTICLE IX. AMENDMENTS TO THE PROCECURAL RULES.
Section 1. A concurring vote of three (3) of the members of the Board shall be necessary
to amend these procedural rules. Such proposed amendments shall be presented in
writing at any regular meeting or at any special meeting called for that purpose.
Amendments shall go into effect upon approval by the City Council.
MINUTES PRELIMINARY
BOARD OF ADJUSTMENT
DECEMBER 14, 2016 — 5:15 PM
EMMA J. HARVAT HALL, CITY HALL
MEMBERS PRESENT: Larry Baker, Gene Chrischilles, Connie Goeb, Becky Soglin, Tim
Weitzel
MEMBERS ABSENT:
STAFF PRESENT: Doug Boothroy, Susan Dulek, Sarah Walz
OTHERS PRESENT: Jeff Clark, Adam Brantman, Greg Buehner
CALL TO ORDER:
The meeting was called to order at 5:15 PM.
ROLL CALL:
A brief opening statement was read by Baker outlining the role and purpose of the Board and
the procedures that would be followed the meeting.
CONSIDER ACCEPTING THE TRANSCRIPTS OF THE SEPTEMBER 14, 21, AND 30
HEARINGS AS THE MINUTES:
Weitzel moved to approve the transcripts of the September 14, 21, and 30 hearings with
corrections as the minutes. Chrischilles seconded the motion.
A vote was taken and the motion carried 5-0.
CONSIDER THE NOVEMBER 9, 2016 MINUTES:
Goeb moved to approve the minutes of November 9, 2016. Soglin seconded the motion.
A vote was taken and the motion carried 5-0.
APPEAL ITEM APL12:00002:
Discussion of an appeal submitted by 324 & 326 N Dubuque LLC regarding the classification of
a use/structure located in the High Density Multi -Family Residential (RM-44) zone located at
324 North Dubuque Street.
Boothroy began the staff report and stated that the appeal is on a determination the he made to
deny a building permit at 324 North Dubuque Street. He stated the issue revolves around what
a nonconforming single family use can do and how that particular paragraph is to be read.
Boothroy explained that his decision was based on the reasoning that this particular home was
nonconforming with terms to occupancy it is not allowed to increase to that particular occupancy
in the Zoning Code. Boothroy showed a location map of the area, the house is in the middle of
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December 14, 2016
Page 2 of 12
the block and does not have driveway access nor any parking. The home is nonconforming for
a number of reasons. (1) It is a single family house located in a multi -family zone and under the
Zoning Code single family uses are not permitted in this particular multi -family zone. (2) There
is no parking and (3) it is nonconforming with regards to occupancy. Boothroy stated the
language that was used at the time of the building permit denial from 14-4E-4 Nonconforming
Single Family Uses "Except with regard to the occupancy...." If the occupancy is non-
conforming, then the conforming rights granted to non -conforming single-family uses do not
apply. The property cannot be expanded". Boothroy explained that this particular provision (14.
4E-4) was added to the Zoning Code in 1984 to single family uses that were being used as
single family the right to continue as conforming even if not permitted in a large multi -family,
industrial, or commercial zone. Boothroy explained that existing house is a four bedroom house
with a bath on the second level. It is a small house and the proposal was to add an addition
onto the back of the house for a fifth bedroom, a laundry area, and a couple baths. The house
is nonconforming in terms of occupancy, at the time the 2005 Zoning Code was being
considered (prior to its adoption) there was a provision of time that was allowed for existing
rental properties to document the occupancy that they had in place. If they documented that
occupancy and it was recorded on the rental permit by a specific date that occupancy would be
grandfathered. In this case the occupancy was five unrelated individuals and at the time of the
2005 Code adoption single family uses in a RM-44 zone were allowed a family, two unrelated
individuals plus three roomers. Subsequently the City has changed the definition of household
(in this situation) to allow only three unrelated individuals, two as a family and one unrelated
roomer.
Boothroy shared the section of the Code that is being discussed, and noted this is the only issue
in contention this evening, they are not debating the occupancy or that it is a nonconforming
single family use, they are debating how this particular section of the Code is applied and
whether or not his reading of it is the correct reading.
Except with regard to the occupancy [bold added], any single-family use, structure for a
single- family use, including any accessory structures, and any lot on which a single-family use
is located, that was established lawfully prior to the establishment of the currently applicable
development regulations and, due to a change in the regulations, is no longer in conformance
with the provisions of this title, will generally be treated as conforming for as long as the
dwelling is used for a single-family use (City Code Section 14-4E-4)
Boothroy explained that the discussion he had with the owner of the property is that because it
is a nonconforming property and because the way the Code is written this particular paragraph
(in his opinion) states if there is a nonconforming occupancy then they are not to be treated as
conforming. The owner was given the option of reducing the occupancy to three unrelated and
if so then this paragraph would apply. Boothroy acknowledges that the paragraph is not artfully
drafted and perhaps is confusing in how it is stated. It could be stated "any single family use
that was lawfully established prior to the applicable regulations and is no longer in conformance
with this provision of this chapter, except with regards to occupancy, should be generally treated
as conforming for as long as the dwelling is used as a single family use'.
Chrischilles asked if this particular house was grandfathered in. Boothroy acknowledged that
for a number of reasons it was. Chrischilles asked if in a RM-44 Zone is multi -family and ideally
apartments. Boothroy conformed that is correct and if this house was removed, or if it were a
vacant lot, a single family structure would not be allowed, only a multi -family use structure could
be built. Chrischilles asked what the intent was behind adding the verbiage "except with
regards to occupancy" in this rule. Boothroy said it was meant that occupancy was
Board of Adjustment
December 14, 2016
Page 3 of 12
grandfathered only before the adoption of the 2005 code, but that does not give the owner the
right to expand the single family use with a nonconforming occupancy. This was done to try to
control some of the occupancies in the University impact areas and student housing, so they
reduced the occupancy throughout the area and added this phrase to the Code to control that
particular issue. Chrischilles asked if it were a family in this home, could they then add the
addition. Boothroy said that it would comply then, or even if it were only three unrelated
individuals, it would comply.
Sogiin asked about the definitions of household that Boothroy shared with the Board and if
household and family were synonymous. Boothroy stated that a single household is considered
a single family.
Baker asked if there were any historical preservation issues with this property. Boothroy
confirmed that this structure is not in a historical district.
Baker asked if the issue regarding the expansion is if the assumption was if they expand the
size of the house (and add a bedroom) that they would expand the occupancy of the house.
Boothroy said by adding the bedroom, baths, and laundry area it makes the property more
attractive for renting and makes it easier to rent to five unrelated individuals than the way it is
configured right now.
Jeff Clark (representative for the applicants) stated he disagrees with the interpretation of the
zoning ordinance, in particular this section. The property was built around 1925, one bathroom
and four bedrooms which is basically functionally obsolete so he is trying to make the home
more functional and up to today's standards. Clark stated he has worked with the Building
Department for over 20 years and generally they get along and often do agree to disagree such
as in this situation. Clark noted that the Code generally changes with controversial issues but
this section of the Code has been around for a very long time. Lots of times there are Code
clarifications that are needed and one can sit down with Staff and Legal and things can be
resolved but this time it was unable to be resolved. Clark contends that the reason the building
permit was denied was because of those first five or six words. His disagreement is that there
really never has been this interpretation on single family dwellings, it actually states "Except with
regard to the occupancy' and the occupancy is generally stated as maximum occupancy or
unrelated roomers. Occupancy is more of what type of use the structure is, and that is what has
been presented to him over many years. Clark stated he has utilized this specific ordinance
several times over the years and has been allowed to add bedrooms and bathrooms to updated
properties and take them out of obsolete states. Clark noted that the 1999 Zoning Ordinance
has a very similar section (Article T-14-16-2-6) which states "notwithstanding any provisions of
this Chapter any single family use a single family dwelling, accessory structure, or lot with a
single family dwelling should generally be treated as conforming for as long as the dwelling is
used for a single family use". Clark said the ordinance has been in effect for about 45 years
and there have been several zones that have been downzoned to only three or four people and
the maximum occupancy that was allowed was five and the City honored that. He stated that
the property in question was purchased with the idea to upgrade it, and to make the house as
only three unrelated is not viable, it was purchased as a four bedroom five occupant house.
The living room actually has egress windows so if people really wanted to push the limits it
could be counted as another bedroom. Single family are based on occupancy and not number
of bedrooms and the occupancy allowed is five.
Clark stated that currently the single family dwelling at 324 North Dubuque allows five
occupants but there are only four bedrooms on the rental permit. As far as the upgrade, Clark
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December 14, 2016
Page 4 of 12
maintains that everyone knows how hard it is to have to wait to use a bathroom, and it has
become a norm to have laundry facilities in a home so adding a little more room to
accommodate more amenities is a good thing. Clark contends to take an older home out of the
functionally obsolete is what is right and how the Code reads. Updates will allow for keeping
these older homes around for a longer time and also keeping downtown more historic. For
years, decades, and possibly centuries many others will benefit from the update to this property.
Clark is requesting that the Board find error in the Building Official for denying this building
permit and allow the issuance of permits that have always been allowed on nonconforming
single family dwellings. Clark noted there is no definition in the Zoning Ordinance or Housing
Ordinance regarding occupancy. When one looks up occupancy in the International Building
Code it talks about a type of use (industrial, commercial, etc.) or defined as how much is rented
in a particular area versus vacancy.
Weitzel asked if Clark has specific examples of the situation where there is a nonconforming
single family house in a larger zone (where the single family use in now not allowed by right, just
by grandfathering in) and he's received a building permit to expand the occupancy of that
property. Clark gave the example of 208 Davenport Street several years ago and 608 South
Johnson Street last year. Clark said both examples were the exact same situation as this and
the Code was interpreted in a different way.
Soglin asked if the zone was the same for the other two examples. Clark said the Davenport
Street house was not in the same zone, but it was the same situation where only three
maximum occupancy was allowed and there was a four maximum occupancy on the rental
permit. 608 South Johnson was the same zone and it was an enlargement and expansion of
that property adding bathrooms, laundry room, and bedrooms.
Weitzel asked if four was the occupancy listed on the rental permit that was issued this year for
the subject property. Clark replied that the rental permit states an occupancy of five.
Goeb asked how long Clark has owned the subject property. Clark responded that he has
owned the property for a little over a year. Goeb asked if Clark was allowed to do the expansion
on the property would the occupancy still be a maximum of five and Clark replied that was
correct.
Soglin stated that she wish the Board had the details of the other two cases Clark mentioned so
they could compare the situations. Clark stated that the 208 Davenport Street situation was in
2011 and is likely in a RS-8 or RS-12 zone. The rental permit showed a maximum occupancy
of four. The home originally had three bedrooms so they did the addition to add a fourth
bedroom and a remodel of the existing structure to add a second bathroom. For the property at
608 South Johnson (in 2015) the rental permit has a maximum occupancy of five and had five
existing bedrooms and they added two bedrooms and two bathrooms and a laundry room and a
garage.
Chrischilles asked why they made it into a seven bedroom house and Clark noted that they
abandoned the basement bedrooms, so it remained a five bedroom house after the addition.
Baker asked if the examples that Clark is stating now were part of his discussions with City
Staff. Clark said he had talked to Boothrcy about having been allowed to do this type of
expansion in the past, but doesn't remember if he raised these exact examples with Staff.
Board of Adjustment
December 14, 2016
Page 5 of 12
Boothroy stated that he and Clark did not discuss any specific examples but Clark had
mentioned he had been allowed to do these expansions in the past. Boothroy pointed out that
the property can continue to rent as a nonconforming occupancy (with up to five renters) what is
being denied is the rental permit for the addition.. Additionally Boothroy acknowledged even if a
mistake was made previously that doesn't necessarily justify continuing to make mistakes.
Boothroy noted he was not involved in those other two decisions so he is not familiar with those
two project.
Goeb asked then what roie does consistency play in making these decisions. Boothroy says it
plays no role if the decision was not legal. It can play a role in decisions when the interpretation
is a reasonable interpretation, but if the decision is that it is not allowed under the law (and it
happens from time to time with regards to enforcement) the mistake in and of itself does not
justify it again just for sake of consistency. Goeb asked if Boothroy feels that the decisions he
has made have been consistent and Boothroy confirmed his decisions are consistent. He
acknowledged that having been in the business for 41 years mistakes are made.
Chrischilles asked if within the course of discussions with Mr. Clark when he stated that the City
has let him do this before why specific examples were not inquired about at that time. Boothroy
stated that he was focusing on the language of the Code and he felt the Code was clearly
obvious. Chrischilles noted that he is concerned that there may have been a lack of
consistency and the fairness. Boothroy stated that what is fair is that the property can still be
rented to up to five unrelated individuals. Chrischilles asked what the harm is for the addition
then, if five are allowed now and only five will be allowed in the future. Boothroy stated that the
whole idea of nonconforming uses is that at some point they go away. So if allowed to make
the property more usable and more profitable then it wouldn't ever likely convert back to a single
family use nor purchased and redeveloped with other properties.
Baker asked Dulek about the sense on the Board regarding consistency, with the applicant
stating that the City has allowed this in the past, so if the Board is going to uphold the applicant
based on consistency shouldn't the Board continue this meeting after verification of all the facts
and other examples. Dulek acknowledged that certainly would be a reasonable response.
Baker opened up the public hearing.
Seeing no one, Baker closed the public hearing.
Goeb noted that the perceived inconsistency is of a concern to her, but recognizes what Mr.
Boothroy stated about the idea of nonconforming is that the use will go away at some time and
the property would then come into a conforming status and that makes her support the City's
view.
Chrischilles stated that if this were the only example or instance where this was called into
question he would agree with the City because it Is clearly stated in the Code about the
occupancy. However the issue of inconsistency puts him in a grey area and is unsure what to
think about that. He questions what the Board of City's responsibilities are regarding how things
were handled in the past and maybe having the specific detail informant about examples is
necessary.
Weitzel stated his is sympathetic to a situation where the property owner or developer has been
allowed to do something in the past and made a financial decision on this property based on
past situations but ultimately believes the Board needs to go back to the Code, look at how it is
written, and enforce it consistently even if it has not been so in the past.
Board of Adjustment
December 14, 2016
Page 6 of 12
Soglin agrees with all statements made and noted that the Board is to deal with preponderance
of evidence. Dulek noted that this is a legal matter and is not necessarily evidentiary. Soglin
believes there was an opportunity to bring more evidence and data to this meeting and that was
not presented.
Baker stated that even if the Board consented that the examples cited were consistent with the
issue before us tonight then there are only two decisions. Either they were right to be allowed in
the past or it was wrong and if they were wrong that is irrelevant to the issue this evening. Staff
is stating that the way the Code is interpreted now is the application should be denied. That
being said one of the options for the Board is to accept, reject, or amend the appeal and is
curious if there is any desire of the Board to amend this appeal.
Weitzel believes the Board would have to find an error in judgement first before amending the
appeal.
Baker asked if there had to be an error in judgement to amend the appeal. For example,
hypothetically, an additional bathroom seems to be appropriate if the idea is to make the
structure more livable for five occupants. Goeb noted that the idea is to not keep the structure
as desirable to be nonconformitive so eventually it may not exist.
Dulek noted that reading from Section 14-8C-3B(4) it states "In exercising the above mentioned
powers, the board of adjustment may, in conformity with the provisions of this title or
ordinances adopted pursuant thereto, affirm, or upon finding error (italics added), reverse or
modify, wholly or partly, the order, requirement, decision or determination appealed from and
may make such order, requirement, decision or determination as ought to be made, and to that
end, shall have all the powers of the officer from whom the appeal is taken". Therefore the
Board will need to find error if they wish to modify the appeal.
Weitzel moves to approve APL16-00002 an appeal submitted by 324 & 326 N Dubuque
LLC regarding the classification of a use/structure located in the High Density Multi -
Family Residential (RM-44) zone located at 324 North Dubuque Street.
Soglin seconded the motion.
A vote was taken and the motion failed 0-5.
Baker stated the motion declared denied, any person who wishes to appeal this decision to a
court of record may do so within 30 days after this decision is filed with the City Clerk's Office.
SPECIAL EXCEPTION ITEM EXC16-00012
Discussion of an application submitted on behalf of Ellis Ave LLC, for a special exception to
allow the establishment of a fraternity house on property located in the Neighborhood
Stabilization Residential (RNS-20) zone at 332 Ellis Avenue.
Walz showed an aerial view of the property and it is surrounded by the RNS-20 zone and the
shift to the single family zone begins at the next block over. The property is surrounded by
multi -family uses, there is a fraternity next door and has frontage on two public streets (although
Ridgeland Avenue functions more like an alley). There is also a public alley that runs between
Ridgeland and Ellis Avenues and is used by both the fraternity to the south and the current
Board of Adjustment
December 14, 2016
Page 7 of 12
property (currently a rooming house). Walz explained that he RNS-20 zone is a mix of different
uses (multi -family and fraternity houses), it is a stabilization zone so there are special
recuirements within that zone. The property is currently nonconforming with regards to the
required off-street parking, a rooming house with 25 rooms is required to provide 19 parking
spaces and this location is not able to provide those 19 spaces. Walz also noted that the
parking area layout is problematic as it doesn't meet the current zoning code standards.
Parking is provided along the back and the front, typically according to the Zoning Code once
you have parking area of more than four cars it is not allowed to have them back into the street
or into the public alley as it is along this area. If this building were to redevelop altogether there
would be more ways to address the issues, as the situation is now the current structure is set far
back in the lot.
With regards to the specific criteria Walz explained that the subject property consists of 15,145
square feet of lot area. The applicant is seeking to acquire an additional 2,600 square feet of
property by acquiring the alley directly to the south. If the applicant is successful in acquiring all
of the adjacent alley right-of-way to the south of the house, the lot area will increase to 17,745
square feet, which will allow for the 19 roomers and the City would allow the 20 residents in the
fraternity. Right-of-way vacations are reviewed by the Planning and Zoning Commission, which
provides a recommendation to the City Council. The City Council makes the final decision on
vacation requests. On top of the requirement for the lot area is the requirement of the maximum
occupancy which is one per 300 square feet floor area in the building. The applicant has
indicated 5,952 square feet of living are on floors one -three of the structure. This also would
allow 19 roomers.
The next criteria is that the group living use must have bath and toilet facilities available for use
by roomers in such numbers as specified in title 17, "Building and Housing", of this code. In
addition, the occupants shall have access to kitchen facilities, a dining room, and other shared
living spaces and common facilities related to the use. The applicant has provided floor plans
showing 20 bedrooms along with bathroom facilities on floors one through three of the house.
The floor plan shows 2 bedrooms along with a lounge and large common area on the first floor
with the remaining 18 bedrooms to be located on floors two and three. The basement level of
the house shows a second lounge along with kitchen, dining, and laundry facilities. Staff
recommends that a condition of approval limit the number of bedrooms to match the density of
roomers. For example, if the lot area is 17,745 square feet, the applicant would be allowed 19
roomers. In this case, staff would recommend that one bedroom be removed from the first floor
level of the house in order to discourage over -occupancy of the property. Changes to the
ground level plan should be designed to discourage over -occupancy and should be subject to
approval by the by the Building Official. Shared shower facilities should be limited to floors 2 and
3 for the same reason. The building code requires 1 shower for every 8 roomers. Floors two and
three each have 9 rooms and three showers. The resident manager's room, which is on the first
floor, includes a private bathroom with shower.
Additional Approval Criteria for Special Exceptions states the proposed use must be designed to
be compatible with adjacent uses. The board of adjustment will consider aspects of the
proposed use, such as the location, site size, types of accessory uses, anticipated traffic,
building scale, setbacks, landscaping and amount of paved areas to ensure that the proposed
use is compatible with other residential uses in the neighborhood. The board may prohibit
certain aspects of a use or impose conditions or restrictions to mitigate any incompatibilities.
These conditions or restrictions may include, but are not limited to, additional screening,
landscaping, pedestrian facilities, setbacks, location and design of parking facilities, location and
design of buildings, establishment of a facilities management plan, and similar. The applicant
Board of Adjustment
December 14, 2016
Page 8 of 12
has indicated that there will be substantial investment in the property and one of the important
things they are going to do is sprinkler the building (which is not required) but is vital as safety
for the functions of a fraternity house. Walz notes the nonconformities with parking in the Staff
Report and acknowledges that Staff knows it is unreasonable for the location to become
completely compliant but feels it is important to come as close to conformity as possible while
still allowing the property to function. The proposed improvements that bring the property
closer to conformance with current parking area standards are:
1. The parking area on the south side of the property will be paved and set back from the
front plane of the building. Landscape screening will be installed at the west and east
ends of this parking area. The setback from the east property line, adjacent to
Ridgeland, appears to be 5 feet; 10 feet is required.
2. Both parking areas are served by a sidewalk that provides access to building
entrances.
3. A condition for the right-of-way vacation requires paving of the east -west alley.
Pavement for the parking area off of Ridgeland extends up to the building wall. The Code
requires a 10-foot setback. In this area, pavement should be removed and landscaping (lawn)
should be installed between the building and the private sidewalk.
The applicant has submitted a management plan that shows various levels of supervision and
maintenance for the site and the fraternal use, most notable of which is a live-in graduate
student manager. Staff recommends that a resident manager who is not an undergraduate
student, should be a condition of the special exception.
Walz stated with regards to the general standards there is no doubt that reinvestment into the
property will improve the property. The maintenance on this property has been deferred for
many years so reinvestment will be a good thing. The proposed modifications bring the
property closer to Code standards. The second criteria, it will not be injurious to the use and
enjoyment of other property in the immediate vicinity. Walz explained that this is an area that is
surrounded by multi -family and there are other fraternity houses in the area. Walz showed a
map from The University of Iowa website that showed the cluster of fraternities that are around
this area. Fraternities are allowed in the Zoning Code so it makes sense to have them close to
campus and in an area that is served by other fraternities and other multi -family areas. Walz
noted that she handed out to the Board before the meeting started a recommendation that was
made for the fraternity that was approved last year on Dubuque Street regarding social
functions and fraternity houses which states that more than three convictions and or findings or
pleas of guilt or civil judgement for "disorderly house" within an 18-month period will result in a
loss of the special exception.
Walz noted this property is not in an historic district now but that is something that is being
looked at in Manville Heights. A survey that was done in Manville Heights some years ago did
note that the fraternity houses are an important feature of the neighborhood so Staff is
recommending that any modifications to the exterior of the building be reviewed to be in
compliance with historic standards.
Staff recommends approval of EXC16-00012, an application to allow a Fraternal Group Living
Use to be established at 232 Ellis Avenue in the RNS-20 zone subject to the following
conditions:
1. The occupancy of the converted use is limited to the maximum number of rooms based on
the requirement of the zone (currently 19 roomers based on a lot area of 17,745 square
feet). The maximum number of bedrooms allowed is limited to this same number.
Board of Adjustment
December 14, 2016
Page 9 of 12
[NOTE: if the applicant does not acquire additional lot area, the maximum density is limited
to the code requirement and the number of bedrooms should not exceed the maximum
number of roomers.]
2. All changes to the exterior of the structure must meet Historic Preservation guidelines.
3. Substantial compliance with the floor plans submitted. Adjustments to reduce the number of
bedrooms on the first floor in a manner that discourages over -occupancy to be approved by
the Building Official.
4. installation of sprinkler system and waterproofing and tiling of the basement level to ensure
a safe iiving environment for residents.
5. Substantial compliance with the site plan submitted with modifications to the parking areas
as indicated by staff. All drives and parking spaces to be paved.
6. In order to establish the conversion, the applicant must apply for a rental permit.
7. More than three convictions and or findings or pleas of guilt or civil judgement for "disorderly
house" within an 18-month period will result in a loss of the special exception.
Chrischilles asked if the property remains as it is right now and they are not allowed any
additional lot space by purchase of the alley what would be the maximum occupancy. Walz
said they would be limited to 18 or fewer. Chrischilles asked if they are allowed the 19
occupants what would the parking requirement be and Walz replied it would be the 15 spaces.
Soglin noted that in the Staff Report it states if they only acquire half the alley they will be limited
to 18 occupants and if they acquire none of the alley the occupancy would then be even less,
only 16. Walz agreed and said that becomes difficult because then the house is too big for the
lot size. Soglin then asked about the other fraternity and what the vacation of the alley would
mean to them if they wanted to increase their space at some point. Walz confirmed that the
other fraternity would not be able to do so, but the way vacations work is that half of the property
is always offered to the owner on each side so the fraternity to the south would have to agree
and not be interested in their half and so far as the City knows, they are amenable to that so
long as there is an easement so they can access the parking on the side of their building.
Soglin asked if there was a space for bikes or mopeds and Walz said they will be required to
provide bike parking.
Baker asked the applicant to come forward to speak.
Adam Brantman (member of Ellis Avenue LLC) stated that Walz did a good job summarizing
what the application is for and they are proposing to renovate the property with connection to
the sale of property to Pi Kappa Phi Fraternity. The vacation of the alley did go before the
Planning and Zoning Commission two weeks ago and was approved so next it will go before
City Council.
Baker opened the public hearing.
Greg Buehner (Pi Kappa Phi Properties) from the national housing corporation is very excited
about the potential of offering this to their membership here at The University of Iowa and want
to be a good partner not only to The University of Iowa but to the City. Unique within the
fraternity world as one of only 10 within the 75 that have a housing arm and will be the
owners/operators of this property with full-time staff members and good management plans.
With regards to the 20 occupants on the property, The University of Iowa requires fraternities to
have alive -in house director so the 20`" resident would be anon -revenue occupant and would
be providing management services.
Board of Adjustment
December 14, 2016
Page 10 of 12
Soglin asked if there was a reason they would only be allowed the 19 roomers what that would
mean. Buehner said it would impact their financial structure but the of course would follow what
is approved.
Baker closed the public hearing.
Goeb noted it will be an improvement over the property right now and seems like a perfect use
for the property.
Soglin stated that the letter from the engineering firm that is involved notes that four of the
nearby property owners have voiced their support of the project.
Walz made a correction to the staff recommendation regarding the last condition: More than
three convictions and or findings or pleas of guilt and/or civil judgement for "disorderly house"
within an 18-month period will result in the denial of a rental permit.
Soglin moved to approve EXC16-00012 an application submitted on behalf of Ellis Ave
LLC, for a special exception to allow the establishment of a fraternity house on property
located in the Neighborhood Stabilization Residential (RNS-20) zone at 332 Ellis Avenue
subject to the following conditions:
1. The occupancy of the converted use is limited to the maximum number of rooms
based on the requirement of the zone (currently 19 roomers based on a lot area of
17,745 square feet). The maximum number of bedrooms allowed is limited to this
same number.
[NOTE: If the applicant does not acquire additional lot area, the maximum density is
limited to the code requirement and the number of bedrooms should not exceed the
maximum number of roomers.]
2. All changes to the exterior of the structure must meet Historic Preservation
guidelines.
3. Substantial compliance with the floor plans submitted. Adjustments to reduce the
number of bedrooms on the first floor in a manner that discourages over -occupancy
to be approved by the Building Official.
4. Installation of sprinkler system and waterproofing and tiling of the basement level to
ensure a safe living environment for residents.
5. Substantial compliance with the site plan submitted with modifications to the parking
areas as indicated by staff. All drives and parking spaces to be paved.
6. In order to establish the conversion, the applicant must apply for a rental permit.
7. More than three convictions and or findings or pleas of guilt and/or civil judgement
for "disorderly house" within an 18-month period will result in the denial of a rental
permit.
Chrischilles seconded the motion.
Weitzel stated that regarding agenda item EXC16-00012 he concurs with the findings set forth
in the Staff report of December 14, 2016, and conclude the general and specific criteria are
satisfied, specifically the surrounding properties are multi -family as well and the proposed
changes will make the building more safe and the reinvestment will help stabilize possible
decline in property value in the area. So unless amended or opposed by another Board
member he recommends that the Board adopt the findings in the Staff Report as our findings
with acceptance of this proposal.
A vote was taken and the motion carried 5-0.
Board of Adjustment
December 14, 2016
Page 11 of 12
Baker stated the motion declared approved, any person who wishes to appeal this decision to a
court of record may do so within 30 days after this decision is filed with the City Clerk's Office.
BOARD OF ADJUSTMENT INFORMATION:
Walz announced that this is Baker's last meeting, he has served five years, and next month they
will welcome onto the Board a new appointment, Bryce Parker, and will also nominate for roles
on the Board at that meeting.
Baker thanked everyone noting it has been a pleasure to serve on the Board.
ADJOURNMENT:
Weitzel moved to adjourn this meeting.
A vote was taken and the motion passed 5-0
BOARD OF ADJUSTMENT
ATTENDANCE RECORD
NAME
TERM EXP.
1/13
2/17
3/9
4/13
6/15
7/13
8/10
9/14
9/21
9130
10112
1119
12114
BAKER, LARRY
1/l/2017
X
O/E
X
X
X
X
X
X
X
X
X
X
X
GOEB, CONNIE
1/112020
X
X
X
X
X
X
X
X
X
O/E
X
X
X
CHRISCHILLES, T. GENE
1/l/2019
X
X
X
X
O/E
X
X
X
X
X
X
X
X
SOGLIN, BECKY
1/l/2018
X
X
X
O/E
X
X
X
X
X
X
X
X
X
WEITZEL, TIM
1/l/2021
--
X
X
X
X
X
X
X
X
X
X
X
X
KEY: X = Present
O = Absent
O/E = AbsenNExcused
-- = Not a Member