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HomeMy WebLinkAbout1.8.25 BOA Agenda PacketIOWA CITY BOARD OF ADJUSTMENT Wednesday, January 8, 2025 – 5:15 PM City Hall, 410 East Washington Street Emma Harvat Hall Agenda: 1. Call to Order 2. Roll Call 3. Appeal Item a. APL24-0001: An application submitted by David Moore requesting to overturn a decision of the Building Official to issue a building permit for a single-family home at 319 N. Van Buren Street: alleging that minimum lot size, setback, building bulk and maximum lot coverage requirements of City Code are not met and his sewer line runs underneath the proposed structure interfering with his easement rights. 4. Discussion on General Criterion – Substantially Diminish or Impair Property Values 5. Election of Officers 6. Consideration of Meeting Minutes: November 13, 2024 7. Adjournment If you need disability-related accommodations in order to participate in this meeting, please contact Parker Walsh, Urban Planning at 319-356-5238 or at pwalsh@iowa-city.org. Early requests are strongly encouraged to allow sufficient time to meet your access needs. Upcoming Board of Adjustment Meetings Formal: February 12 / March 12 / April 9 Informal: Scheduled as needed. January 8, 2025 Board of Adjustment Meeting APL24-0001 ITEM 3A ON THE AGENDA Staff Materials 1 Date: To: From: Re: January 8, 2024 Board of Adjustment Danielle Sitzman, Development Services Coordinator, Building Official Case APL24-0001- An appeal of a decision of the Building Official regarding the decision to issue a building permit at 319 N. Van Buren Street. Introduction This memo is to provide the Board information regarding the subject property, 319 N. Van Buren Street. The property is currently zoned Neighborhood Stabilization Residential Zone “RNS-12” and a building permit for the construction of a detached single-family dwelling was issued by the City under permit BLDR24-0483 on November 22, 2024. [Attachment 2]. Mr. Dave Moore of 425 E Davenport St, Iowa City, IA filed a notice of appeal on December 10, 2024. Grounds for the Appeal Underlined text is added by staff to emphasize applicant noted Zoning Code deficiencies. Per Section 14-8C-3B the appellant must specify the grounds for the appeal. In the notice of appeal application to the Board of Adjustment filed December 10, 2024 the appellant stated, “Building official improperly granted a building permit” and ”The lot does not meet minimum size requirements and the building permit was issued even though my sewer line runs underneath the proposed structure and interferes with my easement rights”. In a subsequent email from Mr. Gregg Geerdes [Attachment 3], representing Mr. Moore, to staff on December 13, 2024, Mr. Geerdes stated as follows: You requested more information about why we are appealing the grant of the building permit and I am therefore responding to your request. Please consider this as a supplement to Mr. Moore's appeal. There are multiple illegalities associated with the grant of the building permit. The first problem is that the minimum lot size, setback, building bulk and maximum lot coverage requirements as contained in Table 2A under City Code Section 14 2(a) have not been satisfied. It is our belief that a building permit cannot properly be issued if these requirements are not met. The second problem is that Mr. Moore's sewer line for which he has a prescriptive easement crosses directly under the setbacks and the "footprint" of the building which is being proposed. It is a violation of City Code and Mr. Moore's property rights to allow the features of any building (including Mr. Moore's) to encroach upon a setback and/or 2 "footprint) other than for services directly associated with the property applying for a permit. Because Mr. Moore has an easement for his sewer line the proposed structure must therefore be relocated so that no encroachments on Mr. Moore's line and easement exist. This issue has been addressed by the Iowa Supreme Court. Please see the attached case. Indeed, City code directly prohibits in 14-1B-1(B) any abrogation or interference with Mr. Moore's easement rights. Finally, it is our belief that any building rights that otherwise would be "grandfathered in " regarding 319 North Van Buren Street were lost when the former building on the site was voluntarily demolished over five years ago and that the new building must therefore meet all current requirements. See City Code Section 14 (4) E.” Staff Zoning Analysis & Decision In support of the appealed action, staff is providing the following information regarding all of the dimensional code requirements underlined in the appellants statements above. The key Zoning Code provisions at issue are set forth below. Relevant definitions can be found at the end of the memo. 1) 14-2A-4 Dimensional Requirements [Attachment 4]: Table 2A-2 Dimensional Requirements In The Single-Family Residential Zones Minimum Lot Requirements - Lot Area The document submitted for BLDR24-0483 titled “Site Plan” shows a lot size of 2,842 square feet. The minimum lot size and area per unit as noted in Table 2A-2 above is 5,000 square feet. Per footnote 8, “If the single family density bonus options have been applied, the minimum lot area, lot area per unit, lot width and lot frontage requirements may be reduced accordingly. (See section 14-2A-7 of this article.)”. Section 14-2A-7: Special Provisions notes the following: A. Single-Family Density Bonus Options: For detached single-family dwellings and detached zero lot line dwellings, the following density bonuses are allowed in the following zones and under the following conditions: … 3. RS-12 and RNS-12 zones: If vehicular access to garages and off street parking spaces is restricted to an alley or private rear lane, then the following modifications to dimensional requirements are allowed: a. The minimum lot width may be reduced to thirty feet (30') and the minimum frontage to twenty feet (20'); 3 b. The minimum lot size and lot area per unit may be reduced to three thousand (3,000) square feet; and Although the property qualifies for the special provisions and therefore the reduced minimum lot size and minimum lot area per unit to 3,000 square feet, the lot remains nonconforming. A "nonconforming lot" is a lot of record that was established in conformance with the minimum lot area, width, and frontage requirement of the Zoning Code, but which subsequently, due to a change in the zone or the requirements of the Zoning Code, is no longer in conformance with one or more of these requirements. Section 14-4E-7C Regulation of Nonconforming Lots specifically regulates this circumstance. It states, “In any zone in which single-family uses are permitted, a single-family use and accessory structures may be established on any lot of record, notwithstanding failure to meet the minimum lot area requirement of the zone in which the lot is located.” The subject property is zoned to allow single-family uses, therefore, in spite of the failure to meet the minimum lot area requirements of 14-2A-4, the establishment of a single-family use on the lot is permitted. Minimum Lot Requirements - Lot Width Lot width is not provided in the documents submitted for BLDR24-0483. However, the scaled document submitted for BLDR24-0483 titled “Site Plan” shows a lot frontage of 35.74’. As lot width is the length of the front setback line and the front setback line is a line drawn parallel to the street and as far back from the street as specified for the principal building, and since the lot is roughly rectangular in shape it can be inferred using geometry that the lot width is at least that much. The minimum lot width as noted in Table 2A-2 above is 45 feet. Per footnote 8 and the Single Family Density Bonus Provisions outlined above, if the property is zoned RNS-12 and if vehicular access to garage or off street parking spaces is restricted to an alley or private rear lane, then the following modification to dimension requirements is allowed, per 14-2A-7A(3): a. The minimum lot width may be reduced to thirty feet (30') and the minimum frontage to twenty feet (20'); The subject property is zoned to allow single-family uses and the vehicular access to the proposed dwelling will be restricted to the alley. Therefore, the applicable lot width standard for the subject property is 30’ and the standard is met. Minimum Lot Requirements - Lot Frontage The document submitted for BLDR24-0483 titled “Site Plan” shows a lot frontage of 35.74 feet. The minimum lot frontage as noted in Table 2A-2 above is 25 feet. Per footnote 8 and the Single Family Density Bonus Provisions outlined above, if the property is zoned RNS-12 and if vehicular access to garage or off street parking spaces is restricted to an alley or private rear lane, then the following modification to dimension requirements is allowed per 14-2A-7A(3): a. The minimum lot width may be reduced to thirty feet (30') and the minimum frontage to twenty feet (20'); The subject property is zoned to allow single-family uses and the vehicular access to the proposed dwelling will be restricted to the alley. Therefore, the applicable lot frontage 4 standard for the subject property is 20’ and the standard is met. Even without the density bonus, the minimum lot frontage of 25’ is met. Minimum Setbacks – Front The document submitted for BLDR24-0483 titled “Site Plan” shows a front setback of 10 feet. A front setback line is a line drawn parallel to the street and as far back from the street as specified for the principal building. The minimum front setback as noted in Table 2A-2 above is 15 feet. Per Section 14-2A-4B-3e (2) Where at least fifty percent (50%) of the lots along a frontage are occupied by principal buildings that are located closer to the street than the required front setback, the front setback may be reduced to the average of the respective setbacks on the abutting lots. Only the setbacks on the lots that abut each side of the subject property along the same street may be used to calculate the average. When one abutting lot is vacant or if the lot is a corner lot, then the average is based on the setback of the nonvacant lot and the required setback for the zone in which the lot is located. The subject property qualified for setback averaging and the calculated average setback is 9.8 feet. The site plan shows a front setback of 10’, therefore the required front setback is met. Minimum Setbacks – Side The document submitted for BLDR24-0483 titled “Site Plan” shows side setbacks of 5.14 and 5.12 feet. The minimum side setback as noted in Table 2A-2 above is 5 feet for the first 2 stories plus 2 feet for each additional story. Therefore, minimum side setbacks for the proposed dwelling which is not more than two stories is met. Minimum Setbacks – Rear Rear setback is not provided in the documents submitted for BLDR24-0483. However, the scaled document submitted for BLDR24-0483 titled “Site Plan” shows dimensions from the rear lot line of the green space of at least 20.55 feet and staff measured approximately 25’9” to the building. Per footnote 9, the principal building rear setback is 20 feet, except in the Central Planning District and Downtown Planning District, where the rear setback is dependent on the depth of the lot. For lots equal to or less than 100 feet in depth: minimum rear setback is equal to 20 feet. The subject property is located within the Central Planning District and has a lot depth of 80’, requiring a 20’ rear setback. The site plan shows a rear setback of approximately 25’ 9”. Therefore, rear setback for the proposed dwelling is meet. Building Bulk The document submitted for BLDR24-0483 titled “Site Plan” shows the building height of 24’10”. Height for a gable roof is measured from the site average grade to the roof midpoint. The site plan notes the average grade as 682.77’. The maximum height as noted in Table 2A-2 above is 27 feet. The standard was amended in 2023. Therefore, maximum height for the proposed dwelling is met. 5 Maximum Lot Coverage The document submitted for BLDR24-0483 titled “Site Plan” shows the lot coverage of 39.3%. Lot coverage is determined using the existing lot area and the building area (building footprint). The lot coverage is: 1,117sf (building footprint) / 2,842sf (lot area) = 39.3%. The maximum lot coverage as noted in Table 2A-2 above is 40%. Therefore, maximum lot coverage for the proposed building is met. 2) 14-1B Interpretation and Scope 14-1B-1 Interpretation and Application of Provisions: B. This title is not intended to interfere with, abrogate or annul any easements, covenants or other agreements between parties, except if this title imposes a greater restriction, this title shall control. The Board of Adjustment has jurisdiction to hear appeals of the Zoning Code, not the Building Code. 14-8C-3A(1): A. Initiation Of Appeal: 1. Where it is alleged there is error in any order, requirement, decision, or determination made by the city manager or designee in the enforcement of this title or of any ordinance adopted pursuant thereto, any person aggrieved by such order, requirement, decision, or determination may appeal same to the board of adjustment. Issuance of a building permit over a private sanitary service line easement is not a violation of Zoning Code (“this title”), and thus the Board of Adjustment does not have jurisdiction over the easement issue. Appeals over Building Code issues go to the Board of Appeals. Mr. Moore has filed a separate appeal to the Board of Appeals. 3) Loss of rights to an unspecified non-conforming situation As discussed above, Section 14-4E-7C Regulation of Nonconforming Lots specifically regulates the circumstance of a vacant lot in a zone which allows for single-family uses. It states, “In any zone in which single-family uses are permitted, a single-family use and accessory structures may be established on any lot of record, notwithstanding failure to meet the minimum lot area requirement of the zone in which the lot is located. The subject property is zoned to allow single-family uses, therefore, in spite of the failure to meet the minimum lot area, the establishment of a single-family use on the lot is permitted and not tied to the previous structure. City Code References Title 14 Zoning Code, Chapter 9 Definitions (14-9A-1) ABUT/ABUTTING: Contiguous; having a common boundary, wall, or property line. ALLEY: An open public way intended for use as a means of vehicular access to abutting property. BUILDING: Any structure with a roof and designed or intended to support, enclose, shelter or protect persons, animals or property. BUILDING AREA: Sometimes referred to as building footprint. The area of a building within its 6 largest outside dimensions, computed on a horizontal plane at the first floor level, exclusive of open porches, breezeways, terraces and exterior stairways. BUILDING HEIGHT: 1. General: The vertical distance from grade to the roofline. (See definition of grade and roofline.) DWELLING: A building wholly or partially used or intended to be used for residential occupancy. DWELLING, DETACHED SINGLE-FAMILY: A single-family use that is not attached to any other dwelling unit. DWELLING UNIT: Any habitable room or group of adjoining habitable rooms located within a dwelling and forming a single unit with facilities used or intended to be used by one household for living, sleeping, cooking and eating meals. Multiple dwelling units exist if there is more than one meter for any utility, more than one address to the property, more than one kitchen, and/or if there is a lockable, physical separation between rooms within the dwelling unit such that a room or rooms on each side of the separation could be used as a dwelling unit. FRONTAGE: The distance as measured along a right of way line from one intersecting street to another, from one intersecting street to the end of a dead end street or from one intersecting street to the end of a cul-de-sac. GRADE (Adjacent Ground Elevation): The average point of elevation of the finished surface of the ground, paving or sidewalk within the area between the building and the property line or, when the property line is more than five feet (5') from the building, between the building and a line five feet (5') from the building. When the finished surface of the ground has been raised by adding fill to create a higher grade around a building, the slope of the fill within twenty feet (20') of the building shall not exceed four (4) horizontal to one vertical or twenty five percent (25%). LOT AREA: The total area within the lot lines of a lot, excluding any public or private street rights of way. LOT FRONTATE: The continuous width of a lot measured along the street right of way line. LOT WIDTH: The length of the front setback line. On corner and double frontage lots, the "lot width" is measured along the shortest street frontage, unless the lot is square or almost square, having dimensions at a ratio between three to two (3:2) and three to three (3:3). In that case, the lot width may be measured along either street. LOT LINE, STREET-SIDE: Any lot line that separates a lot from a public or private street (not including alleys or private rear lanes). PUBLIC RIGHT OF WAY: Property dedicated to public use and intended for the movement of the public. PRINCIPAL BUILDING: A building containing the principal use. PRINCIPAL USE: The primary use of land or a structure as distinguished from an accessory use, e.g., a dwelling is a principal use on a lot in a residential zone, while a garage or pool is an accessory use. 7 ROOFLINE: The highest point of the coping of a flat roof, the deck line of a mansard roof or the midpoint between the eaves and ridge of a saddle, hip, gable, gambrel or ogee roof. SETBACK: The distance between a specified object, such as a building, and another point. "Setbacks" are usually measured from lot lines to a specified object. Unless otherwise indicated, an unspecified setback refers to a building setback. SETBACK (AREA), FRONT: The area on a lot between the street-side lot line(s) and the front setback line. SETBACK LINE: The line beyond which a specified use, object, building or structure shall not project, except as specified in this title. SETBACK LINE, FRONT: A line drawn parallel to the street and as far back from the street as specified for the principal building, front setback. STREET, PUBLIC: A right of way, dedicated to and accepted for public use, which affords a means of access to abutting property and a means of vehicular travel. A public street is owned or controlled by a government entity. Attachments: 1. Location & Zoning Maps 2. Approved Building Plans and Site Plan 3. Application Materials 4. Section 14-2A-4: Dimensional Requirements January 8, 2025 Board of Adjustment Meeting APL24-0001 ATTACHMENT 1 Location & Zoning Maps N G i l b e r t S t N V a n B u r e n S t E Bloomington St E Davenport St  ƒ’’Ž‹…ƒ–‹‘ •—„‹––‡† „› ƒ˜‹† ‘‘”‡ ˆ‘” ƒ ƒ’’‡ƒŽ ”‡‰ƒ”†‹‰ ƒ „—‹Ž†‹‰ ’‡”‹– ‹••—‡† ˆ‘” ƒ •‹‰Ž‡ ˆƒ‹Ž› Š‘‡ ƒ– ͵ͳͻ . ƒ —”‡ –”‡‡–Ǥ q APL24-0001 319 N Van Buren Street Prepared By: 2ƒ…Šƒ‡Ž …Šƒ‡ˆ‡” Date Prepared: ‡…‡„‡” ʹͲʹͶ 0 0.01 0.020.01 Miles N G i l b e r t S t N V a n B u r e n S t E Bloomington St E Davenport St CO1 CO1 RNS12  ƒ’’Ž‹…ƒ–‹‘ •—„‹––‡† „› ƒ˜‡ ‘‘”‡ ˆ‘” ƒ ƒ’’‡ƒŽ ”‡‰ƒ”†‹‰ ƒ „—‹Ž†‹‰ ’‡”‹– ‡š–‡•‹‘ ˆ‘” ƒ ’”‘Œ‡…– ƒ– ͵ͳͻ . ƒ —”‡ –”‡‡– µAPL24-0001 319 N Van Buren Street 0”‡’ƒ”‡† ›ǣ ƒ”‡”ƒŽ•Š ƒ–‡ 0”‡’ƒ”‡†ǣ ƒ—ƒ”›ʹͲʹͷ 0 0.01 0.020.01 Miles January 8, 2025 Board of Adjustment Meeting APL24-0001 ATTACHMENT 2 Approved Building Plans and Site Plan Scale Project number Date Drawn by Checked by design DL D E S I G N I S N O T A N A R C H I T E C T O R EN G I N E E R A N D C O N S T R U C T I O N F R O M TH E S E P L A N S S H O U L D F I R S T B E R E V I E W E D BY A C O N S T R U C T I O N P R O F E S S I O N A L . T H E CL I E N T A N D B U I L D E R O F T H I S P L A N RE L E A S E S D L D E S I G N F R O M A N Y C L A I M S O R LA W S U I T S T H A T C O U L D A R I S E D U R I N G O R AF T E R T H E C O N S T R U C T I O N O F T H I S H O M E OR B U I L D I N G . I N C O N C L U S I O N A L L ST R U C T U R A L M E M B E R S , D I M E N S I O N S , A N D DE T A I L S M U S T B E C A R E F U L L Y R E V I E W E D B Y A S T R U C T U R A L D E S I G N P R O F E S S I O N A L . REVISIONS DL 12" = 1'-0" 11 / 1 1 / 2 0 2 4 2 : 2 7 : 5 1 P M A000 COVER J& r H O M E S I O W A C I T Y L O T 31 9 N V A N B U R E N S T I O W A C I T Y , I A 11/11/2024 Author Checker WHREF. W D UP WH UP 3' - 3 " 9' - 7" 48 " x 4 8 " ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: REC ROOM 8'-0" CARPET VARIES 5' - 0 " 5' - 4" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: MECHANICAL 8'-0" CONCRETE 5'-4"x5'-0" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: BATH 8'-0" TILE 7'-2"x6'-10" 7' - 2" 6' - 1 0 " 5' - 0 " 48 " x 4 8 " 36 " x 8 0 " 32 " x 8 0 " 5' - 1 1 " 6' - 1 1 " WET BAR CO/SD RADON CONTROL UNEXCAVATED TYPICAL BASEMENT FLOOR: 4" CONCRETE SLAB c/w FIBER MESH REINFORCEMENT 6 mil POLY VAPOR BARRIER 2" RIDGID INSULATION COMPACT GRANULAR FILL TYPICAL GARAGE FLOOR: 4" CONCRETE SLAB c/w FIBER MESH REINFORCEMENT 6 mill POLY VAPOR BARRIER COMPACTED GRANULAR FILL SLOPE TOWARD OH DOOR OR FLOOR DRAIN 8"X 96" CONCRETE WALL OVER 16"X12" CONCRETE FOOTING 8" x 42" (MIN.) CONCRETE FROST WALL OVER 16"X12" CONCRETE FOOTING 25' - 0" 44 ' - 8 " BASEMENT 20 ' - 6 " 24 ' - 2 " 8" x 42" (MIN.) CONCRETE FROST WALL OVER 16"X12" CONCRETE FOOTING TJI JOIST ORIENTATION 16" O.C. CERTIFIED MFG TO DETERMIND SIZE NEEDED KNOTCH OPENINGS FOR GARAGE DOOR AND SLAB KNOTCH OPENINGS FOR DOOR AND SLAB 6' - 1 1 " 5' - 4 " EG R E S S 48 " x 4 8 " EG R E S S 48 " x 4 8 " 8"X 96" CONCRETE WALL OVER 16"X12" CONCRETE FOOTING 10 ' - 0 " 6' - 10" 3' - 2" 16 ' - 2 " Basement Level -9' -0" Main Level 0' -0" Second Level 10' -0" Second Level Ceiling 18' -0" 8' - 0 " TOP OF FOUNDATION WALL NOTES: 1. GENERAL CONTRACTOR SHALL BUILD TO LOCAL BUILDING CODES IN THE AREA OF CONSTRUCTION. 2. 8'-0" CONCRETE WALL HEIGHT UNLESS NOTED. 3. SINGLE HUNG WINDOWS ARE TO BE USED THROUGH OUT UNLESS NOTED. 4. USE TEMPERED GLASS WHERE NEEDED TO MEET CODE REQUIREMENTS. 5. ALL DIMENSIONS ARE FRAME TO FRAME. 6. ROOF TRUSSES ARE TO BE DESIGNED AND CERTIFIED BY A LICENSED ENGINEER IN THE STATE ON OF CONSTRUCTION. 7. ALL EXTERIOR WALLS ARE 2X6'S AT 16" OC. 8. ALL INTERIOR WALLS ARE 2X4'S AT 16" OC. 9. GARAGE WALLS ARE 2X6'S AT 16" OC. 10. GARAGE WALLS REQUIRE 1/2" GYPSUM. 11. GARAGE CEILING REQUIRE 5/8" TYPE X GYPSUM. 12. BEAM SIZES AND POST SPACING ARE TO BE DETERMINED BY OTHERS. 13. ACTUAL TJI FLOOR LAYOUT AND SPACING BY MFG. 14. 24" CLEARANCE IN FRONT OF OPENING TO SHOWER. 15. 21" CLEARANCE IN FRONT OF WATER CLOSET. 16. STAIRS -MIN. RUN: 10" -MAX RISE: 7 3/4" 17. KICHEN LAYOUT TO BE FINIALIZED BY GENERAL CONTACTOR AND OWNER WITH THE KITCHEN CONSULTANT. 18. EXTERIOR SIDING AND ROOF FINISHES-GENERAL CONTRACTOR SHALL PROVIDE OWNER WITH RECOMENDATIONS. ABBREVIATIONS: CO/SD -CARBON MONOXIDE AND SMOKE DECTOR SD -SMOKE DECTOR FOUNDATION NOTES: 1. 1500 PSF SOIL BEARING PRESSURE ASSUMED FOR FOOTING DESIGN MODIFY AS NEEDED IF DIFFERENT CONDITIONS ARE ENCOUNTERED. 2. DO NOT BACKFILL BASEMENT WALLS UNTIL FIRST FLOOR IS IN PLACE. 3. 3000 PSI CONCRETE (TYPICAL) 4. DO NOT PLACE ANY FOOTING ON DISTURBED SOIL -IF ENCOUNTERED, OVER EXCAVATE AND EXTEND FOOTING DEPTH. 5. FOOTINGS ARE TO MEET LOCAL FROST FOORING REQUIREMENTS Scale Project number Date Drawn by Checked by design DL D E S I G N I S N O T A N A R C H I T E C T O R EN G I N E E R A N D C O N S T R U C T I O N F R O M TH E S E P L A N S S H O U L D F I R S T B E R E V I E W E D BY A C O N S T R U C T I O N P R O F E S S I O N A L . T H E CL I E N T A N D B U I L D E R O F T H I S P L A N RE L E A S E S D L D E S I G N F R O M A N Y C L A I M S O R LA W S U I T S T H A T C O U L D A R I S E D U R I N G O R AF T E R T H E C O N S T R U C T I O N O F T H I S H O M E OR B U I L D I N G . I N C O N C L U S I O N A L L ST R U C T U R A L M E M B E R S , D I M E N S I O N S , A N D DE T A I L S M U S T B E C A R E F U L L Y R E V I E W E D B Y A S T R U C T U R A L D E S I G N P R O F E S S I O N A L . REVISIONS DL As indicated 11 / 1 1 / 2 0 2 4 2 : 2 9 : 5 3 P M A100 BASEMENT AND FOUNDATION FLOOR PLANS J& r H O M E S I O W A C I T Y L O T 31 9 N V A N B U R E N S T I O W A C I T Y , I A 11/11/2024 Author Checker 1/4" = 1'-0"1 BASEMENT LEVEL FLOOR PLAN - 523 SQ' 1/4" = 1'-0"2 FOUNDATION PLAN 1/4" = 1'-0"3 FRONT ELEVATION UP DW DN REF. DN DN W D DN DN 20 ' - 0 " 20' - 0" 3' - 6" 44 ' - 8 " 25' - 0" 1 A104 2' - 1 0 " ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: LIVING ROOM 9'-0" HARDWOOD 19'-7"x14'-0" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: KITCHEN 9'-0" HARDWOOD 8'-11"x9'-0" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: BATH 9'-0" HARDWOOD 3'-0"x6'-2" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: GARAGE 10'-0" CONCRETE 20'-0"x20'-0" 9' - 2 " 7' - 10" 19' - 7" 3' - 0 " 2 A104 ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: MUDROOM 9'-0" HARDWOOD 7'-10"x6'-5" 6' - 10" 10 ' - 0 " 14 ' - 0 " 36 " x 6 2 " 6' - 5 " 3' - 0" 7' - 1" 36 " x 8 0 " 36" x 80" 36 " x 8 0 " 36 " x 8 0 " 36" x 80" 19 2 " x 9 6 " 10 ' - 6 " A101 3 a 4 b 3' - 6 " 19 ' - 6 " 1' - 0" 5' - 0 " 5' - 0 " ELECTRICAL FIRE PLACE 96" x 62" 7' - 0" 36 " x 8 0 " 2' - 4" 5' - 6"3' - 0" 28" x 80" CLOSET 4' - 0 " 2' - 6" CO/SD 11' - 0" 10 ' - 1 0 " 2' - 4 " 10 ' - 1 0 " 10 ' - 1 0 " 2' - 4 " 10 ' - 6 " 3' - 6" 6' - 1 0 " 12' - 7" 5' - 0" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: PRIMARY BATH 8'-0" HARDWOOD 8'-8"x6'-10" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: BATH 8'-0" HARDWOOD 8'-8"x6'-10" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: PRIMARY BEDROOM 8'-0" CARPET 12'-7"x10'-6" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: WALK-IN CLOSET 8'-0" CARPET VARIES ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: BEDROOM 2 8'-0" CARPET 11'-0"x10-10" ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: BEDROOM 3 8'-0" CARPET 11'-0"x10'-10" CLOSET CLOSET ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: OFFICE 8'-0" CARPET 11'-0"x10'-10" LAUNDRY ROOM SIZE: CEILING HEIGHT: FLOOR TYPE: HALLWAY 8'-0" HARDWOOD VARIES CLOSET 6' - 1 0 " 8' - 8" 7' - 3 " 3' - 6" 12' - 7" 11' - 0" 7' - 2 " EG R E S S 40 " x 6 2 " EG R E S S 40 " x 6 2 " EG R E S S 40 " x 6 2 " EGRESS 40" x 62" 24 " x 1 8 " 24 " x 1 8 " 0' - 6" 9' - 9" 30" x 62" 8' - 0" 6' - 0 " 14 ' - 0 " 13 ' - 6 " 14 ' - 9 " 7' - 8 " 32" x 80" 32" x 80" 32 " x 8 0 " 48" x 80" 32 " x 8 0 " 32" x 80" 48" x 80" 48" x 80" 60 " x 8 0 " 32" x 80" 5' - 8 " 3' - 0" 32 " x 8 0 " 4' - 0 " 4' - 3"4' - 3" 9' - 9" 30" x 62"30" x 62"30" x 62" 5' - 3" 5' - 3"5' - 3" 9' - 3 " EG R E S S 36 " x 6 2 " CEILING ACCESS 1' - 8 " 2' - 8" SD SD SD SD CO/SD CO/SD 1' - 2 " NOTES: 1.GENERAL CONTRACTOR SHALL BUILD TO LOCAL BUILDING CODES IN THE AREA OF CONSTRUCTION. 2.8'-0" CONCRETE WALL HEIGHT UNLESS NOTED. 3.SINGLE HUNG WINDOWS ARE TO BE USED THROUGH OUT UNLESS NOTED. 4.USE TEMPERED GLASS WHERE NEEDED TO MEET CODE REQUIREMENTS. 5.ALL DIMENSIONS ARE FRAME TO FRAME. 6.ROOF TRUSSES ARE TO BE DESIGNED AND CERTIFIED BY A LICENSED ENGINEER IN THE STATE ON OF CONSTRUCTION. 7.ALL EXTERIOR WALLS ARE 2X6'S AT 16" OC. 8.ALL INTERIOR WALLS ARE 2X4'S AT 16" OC. 9.GARAGE WALLS ARE 2X6'S AT 16" OC. 10.GARAGE WALLS REQUIRE 1/2" GYPSUM. 11.GARAGE CEILING REQUIRE 5/8" TYPE X GYPSUM. 12.BEAM SIZES AND POST SPACING ARE TO BE DETERMINED BY OTHERS. 13.ACTUAL TJI FLOOR LAYOUT AND SPACING BY MFG. 14.24" CLEARANCE IN FRONT OF OPENING TO SHOWER. 15.21" CLEARANCE IN FRONT OF WATER CLOSET. 16.STAIRS -MIN. RUN: 10" -MAX RISE: 7 3/4" 17.KICHEN LAYOUT TO BE FINIALIZED BY GENERAL CONTACTOR AND OWNER WITH THE KITCHEN CONSULTANT. 18.EXTERIOR SIDING AND ROOF FINISHES-GENERAL CONTRACTOR SHALL PROVIDE OWNER WITH RECOMENDATIONS. ABBREVIATIONS: CO/SD -CARBON MONOXIDE AND SMOKE DECTOR SD -SMOKE DECTOR Main Level 0' -0" Main Level 0' -0" 3' - 0" 36 " x 8 0 " 36 " x 8 0 " 4' - 0 " 3' - 6" 7' - 1" 36 " x 8 0 " 3' - 6 " 2' - 4" 5' - 6" 3' - 0 " 9' - 6 " 13' - 9" 28" x 80" CLOSET 5' - 0" Scale Project number Date Drawn by Checked by design DL D E S I G N I S N O T A N A R C H I T E C T O R EN G I N E E R A N D C O N S T R U C T I O N F R O M TH E S E P L A N S S H O U L D F I R S T B E R E V I E W E D BY A C O N S T R U C T I O N P R O F E S S I O N A L . T H E CL I E N T A N D B U I L D E R O F T H I S P L A N RE L E A S E S D L D E S I G N F R O M A N Y C L A I M S O R LA W S U I T S T H A T C O U L D A R I S E D U R I N G O R AF T E R T H E C O N S T R U C T I O N O F T H I S H O M E OR B U I L D I N G . I N C O N C L U S I O N A L L ST R U C T U R A L M E M B E R S , D I M E N S I O N S , A N D DE T A I L S M U S T B E C A R E F U L L Y R E V I E W E D B Y A S T R U C T U R A L D E S I G N P R O F E S S I O N A L . REVISIONS DL As indicated 11 / 1 1 / 2 0 2 4 2 : 3 1 : 0 1 P M A101 MAIN AND SECOND LEVEL FLOOR PLANS J& r H O M E S I O W A C I T Y L O T 31 9 N V A N B U R E N S T I O W A C I T Y , I A 11/11/2024 Author Checker 1/4" = 1'-0"1 MAIN LEVEL FLOOR PLAN - 648 SQ' 1/4" = 1'-0"2 SECOND LEVEL FLOOR PLAN - 1116 SQ' 1/2" = 1'-0"3 KITCHEN ELEVATION A 1/2" = 1'-0"4 KITCHEN ELEVATION B Door Schedule QTY Width Height TYPE 1 28" 80" INTERIOR 7 32" 80" INTERIOR 1 32" 80" POCKET DOOR 2 36" 80" EXTERIOR METAL DOOR 2 36" 80" EXTERIOR WITH GLASS 2 36" 80" INTERIOR 1 36" 80" POCKET DOOR 3 48" 80" SLIDING CLOSET 1 60" 80" BIFOLD DOORS 1 192" 96" GARAGE DOOR Window Schedule QTY Width Height TYPE 2 24" 18" FIXED TRANSOM 4 30" 62" SINGLE HUNG 1 36" 36" SINGLE HUNG 2 36" 62" SINGLE HUNG 4 40" 62" SINGLE HUNG 2 48" 48" SLIDING EGRESS 1 96" 62" SINGLE HUNG 1/4" = 1'-0"5 MAIN LEVEL FLOOR PLAN SHOWER LOCATION FOR HANDICAP ACCESS 1/4" = 1'-0"6 MAIN LEVEL FLOOR PLAN RAMP FOR HANDICAP ACCESS Main Level 0' -0" Second Level 10' -0" Second Level Ceiling 18' -0" 1' - 0" 1' - 0" 8 12 8 12 6' - 8 " 2' - 2"2' - 2" 3' - 0" 6' - 0" 8 12 8 12 7' - 0 " 6' - 8 " 5' - 2 " 12' - 6" 36" x 36" 24 ' - 7 " 2' - 0 " ROOF MIDPOINT GRADE LEVEL Main Level 0' -0" Second Level 10' -0" Second Level Ceiling 18' -0" 8 12 8 12 1' - 0" 1' - 0" 6' - 8 " Main Level 0' -0" Second Level 10' -0" Second Level Ceiling 18' -0" 6' - 8 " 6' - 8 " 1' - 0" 1' - 0" 2' - 8" Main Level 0' -0" Second Level 10' -0" Second Level Ceiling 18' -0" 6' - 8 " 1' - 0"1' - 0" NOTES: 1.GENERAL CONTRACTOR SHALL BUILD TO LOCAL BUILDING CODES IN THE AREA OF CONSTRUCTION. 2.8'-0" CONCRETE WALL HEIGHT UNLESS NOTED. 3.SINGLE HUNG WINDOWS ARE TO BE USED THROUGH OUT UNLESS NOTED. 4.USE TEMPERED GLASS WHERE NEEDED TO MEET CODE REQUIREMENTS. 5.ALL DIMENSIONS ARE FRAME TO FRAME. 6.ROOF TRUSSES ARE TO BE DESIGNED AND CERTIFIED BY A LICENSED ENGINEER IN THE STATE ON OF CONSTRUCTION. 7.ALL EXTERIOR WALLS ARE 2X6'S AT 16" OC. 8.ALL INTERIOR WALLS ARE 2X4'S AT 16" OC. 9.GARAGE WALLS ARE 2X6'S AT 16" OC. 10.GARAGE WALLS REQUIRE 1/2" GYPSUM. 11.GARAGE CEILING REQUIRE 5/8" TYPE X GYPSUM. 12.BEAM SIZES AND POST SPACING ARE TO BE DETERMINED BY OTHERS. 13.ACTUAL TJI FLOOR LAYOUT AND SPACING BY MFG. 14.24" CLEARANCE IN FRONT OF OPENING TO SHOWER. 15.21" CLEARANCE IN FRONT OF WATER CLOSET. 16.STAIRS -MIN. RUN: 10" -MAX RISE: 7 3/4" 17.KICHEN LAYOUT TO BE FINIALIZED BY GENERAL CONTACTOR AND OWNER WITH THE KITCHEN CONSULTANT. 18.EXTERIOR SIDING AND ROOF FINISHES-GENERAL CONTRACTOR SHALL PROVIDE OWNER WITH RECOMENDATIONS. ABBREVIATIONS: CO/SD -CARBON MONOXIDE AND SMOKE DECTOR SD -SMOKE DECTOR Scale Project number Date Drawn by Checked by design DL D E S I G N I S N O T A N A R C H I T E C T O R EN G I N E E R A N D C O N S T R U C T I O N F R O M TH E S E P L A N S S H O U L D F I R S T B E R E V I E W E D BY A C O N S T R U C T I O N P R O F E S S I O N A L . T H E CL I E N T A N D B U I L D E R O F T H I S P L A N RE L E A S E S D L D E S I G N F R O M A N Y C L A I M S O R LA W S U I T S T H A T C O U L D A R I S E D U R I N G O R AF T E R T H E C O N S T R U C T I O N O F T H I S H O M E OR B U I L D I N G . I N C O N C L U S I O N A L L ST R U C T U R A L M E M B E R S , D I M E N S I O N S , A N D DE T A I L S M U S T B E C A R E F U L L Y R E V I E W E D B Y A S T R U C T U R A L D E S I G N P R O F E S S I O N A L . REVISIONS DL As indicated 11 / 1 3 / 2 0 2 4 1 1 : 4 1 : 2 5 A M A103 ELEVATIONS J& r H O M E S I O W A C I T Y L O T 31 9 N V A N B U R E N S T I O W A C I T Y , I A 11/11/2024 Author Checker 1/4" = 1'-0"1 FRONT ELE4VATION 1/4" = 1'-0"2 BACK ELEVATION 1/4" = 1'-0"3 RIGHT SIDE ELEVATION 1/4" = 1'-0"4 LEFT SIDE ELEVATION Basement Level -9' -0" Main Level 0' -0" Second Level 10' -0" Second Level Ceiling 18' -0" 10 ' - 0 " 9' - 0 " 8' - 0 " 8' - 0 " HALLWAY PRIMARY BEDROOM LIVING ROOM KITCHEN GARAGE REC ROOM ATTIC WET BAR ELECTRICAL FIRE PLACE TV Basement Level -9' -0" Main Level 0' -0" Second Level 10' -0" Second Level Ceiling 18' -0" MECHANICAL REC ROOM KITCHEN BATH MUDROOM BEDROOM 3 HALLWAYBATH ATTIC NOTES: 1.GENERAL CONTRACTOR SHALL BUILD TO LOCAL BUILDING CODES IN THE AREA OF CONSTRUCTION. 2.8'-0" CONCRETE WALL HEIGHT UNLESS NOTED. 3.SINGLE HUNG WINDOWS ARE TO BE USED THROUGH OUT UNLESS NOTED. 4.USE TEMPERED GLASS WHERE NEEDED TO MEET CODE REQUIREMENTS. 5.ALL DIMENSIONS ARE FRAME TO FRAME. 6.ROOF TRUSSES ARE TO BE DESIGNED AND CERTIFIED BY A LICENSED ENGINEER IN THE STATE ON OF CONSTRUCTION. 7.ALL EXTERIOR WALLS ARE 2X6'S AT 16" OC. 8.ALL INTERIOR WALLS ARE 2X4'S AT 16" OC. 9.GARAGE WALLS ARE 2X6'S AT 16" OC. 10.GARAGE WALLS REQUIRE 1/2" GYPSUM. 11.GARAGE CEILING REQUIRE 5/8" TYPE X GYPSUM. 12.BEAM SIZES AND POST SPACING ARE TO BE DETERMINED BY OTHERS. 13.ACTUAL TJI FLOOR LAYOUT AND SPACING BY MFG. 14.24" CLEARANCE IN FRONT OF OPENING TO SHOWER. 15.21" CLEARANCE IN FRONT OF WATER CLOSET. 16.STAIRS -MIN. RUN: 10" -MAX RISE: 7 3/4" 17.KICHEN LAYOUT TO BE FINIALIZED BY GENERAL CONTACTOR AND OWNER WITH THE KITCHEN CONSULTANT. 18.EXTERIOR SIDING AND ROOF FINISHES-GENERAL CONTRACTOR SHALL PROVIDE OWNER WITH RECOMENDATIONS. ABBREVIATIONS: CO/SD -CARBON MONOXIDE AND SMOKE DECTOR SD -SMOKE DECTOR . FLOOR JOIST . 36" MIN LANDING 36" MIN. LANDING . . 6'-8" MIN HEAD CLEARANCE HANDRAIL 34" MIN. 38" MAX 7 3/4" MAX. RISE 10" MIN. RUN TYP. STAIR SECTION NOT TO SCALE VERIFY NUMBER OF RISERS 8" CONCRETE WALL WITH #4 REBAR @ 32" BOTH DIRECTIONS FORMADRAIN 4" CONCRETE SLAB WITH VAPOR BARRIER OVER 4" COMPACT FILL SIDING WITH WEATHER BARRIER EXTERIOR SHEATHING 2x6 STUDS @ 16" O.C. WALL INSULATION (PER CODE REQ.) INTERIOR VAPOR BARRIER WITH GYPSUM WALL BOARD. WATERPROOFING CO N C R E T E W A L L H E I G H T O N L Y A D D S I L L P L A T E 8' - 0 " 8' - 0 " S T A N D A R D VARYING G R A D E 6" MIN. COVERED CLEAN ROCK KEYWAY 16" x 8" REINFORCED CONCRETE FOOTING WITH #4 REBAR 6 TO 12 MIN. TREATED SILL PLATE WITH ANCHOR BOLT SPACING BY OTHERS. VARYING 12 "I" FLOOR JOIST 3/4" T&G SUBFLOOR SOFFIT WITH VENTS WA L L H E I G H T M A Y V A R Y D U E T O 9 ' - 0 " O R 1 0 ' - 0 " CE I L I N G H E I G H T V A R I A T I O N LEDGER FACIA BOARD ROOF SHEATHING SHINGLES ROOF RAFTER AND TRUSS WITH CEILING JOIST (DESIGN BY OTHERS) ROOF INSULATION ( PER CODE REQ.) DOUBLE TOP PLATE GYPSUM WALL BOARD CEILING Scale Project number Date Drawn by Checked by design DL D E S I G N I S N O T A N A R C H I T E C T O R EN G I N E E R A N D C O N S T R U C T I O N F R O M TH E S E P L A N S S H O U L D F I R S T B E R E V I E W E D BY A C O N S T R U C T I O N P R O F E S S I O N A L . T H E CL I E N T A N D B U I L D E R O F T H I S P L A N RE L E A S E S D L D E S I G N F R O M A N Y C L A I M S O R LA W S U I T S T H A T C O U L D A R I S E D U R I N G O R AF T E R T H E C O N S T R U C T I O N O F T H I S H O M E OR B U I L D I N G . I N C O N C L U S I O N A L L ST R U C T U R A L M E M B E R S , D I M E N S I O N S , A N D DE T A I L S M U S T B E C A R E F U L L Y R E V I E W E D B Y A S T R U C T U R A L D E S I G N P R O F E S S I O N A L . REVISIONS DL As indicated 11 / 1 1 / 2 0 2 4 2 : 3 3 : 0 8 P M A104 SECTIONS AND DETAILS J& r H O M E S I O W A C I T Y L O T 31 9 N V A N B U R E N S T I O W A C I T Y , I A 11/11/2024 Author Checker 1/4" = 1'-0"1 SECTION 1 1/4" = 1'-0"2 SECTION 2 1/2" = 1'-0"4 TYPICAL WALL SECTION January 8, 2025 Board of Adjustment Meeting APL24-0001 ATTACHMENT 3 Application Materials First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) 142 N.W. 87 162 Iowa 389 FIRST UNITARIAN SOCIETY OF IOWA CITY, IOWA, Appellant, v. CITIZENS SAVINGS & TRUST COMPANY, IOWA CITY, IOWA, Appellee Supreme Court of Iowa, Des Moines June 7, 1913 Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge. THIS is an action for damages for breach of covenant in warranty deed. The case was tried to the court without a jury upon an agreed statement of facts. There was a judgment for the defendant, and plaintiff appeals. Affirmed. Henry Negus and H. H. Griffiths, for appellant. O. A. Byington, for appellee. EVANS, J. DEEMER, J., GAYNOR, J., (dissenting). OPINION EVANS, J. The plaintiff holds its cause of action by assignment. Its assignor was the grantee in a warranty deed executed to it by the defendant on December 14, 1907, and which conveyed to it a certain lot 4 in Iowa City. The deed [162 Iowa 390] contains covenants of warranty which will be hereinafter set out. It was averred that the covenants were breached by the existence of a public sewer traversing said lot to a depth of six feet beneath the surface, which sewer had been used and maintained by the public for more than forty years and was still so used and maintained. It was averred that the plaintiff's assignor was damaged thereby to the sum of $ 1,500. The answer admitted the assignment of the cause of action and the existence of the warranty deed and the existence of the public sewer, and denied all other allegations, and especially denied that the existence of said sewer damaged plaintiff's assignor or was in any way detrimental to the value of the lot. In the court below, the parties submitted the case to the court without a jury upon the following agreed statement of facts: It is agreed as follows: That the defendant was the owner of lot four in block forty-four of Iowa City, Iowa and that on the 14th day of December, 1907, by its authorized officers it conveyed said above-described property by a warranty deed to the plaintiff. The said covenants of warranty being as follows: 'And we do hereby covenant with the Iowa Association of the Unitarian and other independent churches that we are lawfully seized of said premises, that they are free from incumbrances, that we have good right and lawful authority to sell and convey the same, and we do hereby covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever, and the grantors aforesaid hereby [142 N.W. 88] relinquish all contingent right including rights of dower, which they have in and to said last described premises.' That at the time of executing said deed and of the conveyance of the said property, there extended across said lot a certain public sewer, which sewer entered the lot about sixteen feet west of the northeast corner thereof and extended diagonally southeast, passed out of said lot at a point about sixty-four feet south of said northeast corner. That said sewer had been in existence for many years and was a public sewer of such a character that the public had rights therein and the same could not be removed. That the top of said sewer is from five feet to five feet six inches [162 Iowa 391] below the surface of the ground, and said sewer is about three feet wide and four feet deep on the inside and five feet and six inches wide on top. It is agreed that the court shall determine from the said above facts whether the defendant is liable to the plaintiff for breach of warranty. First Unitarian Society of Iowa City. Citizens' Savings & Trust Co. First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) We think appellant's discussion in the briefs goes quite beyond the facts appearing of record. Our consideration and discussion of the question presented must necessarily be circumscribed by the agreed statement of facts. The incumbrance charged in this case is the public easement incident to the use and maintenance of the public sewer. An easement may or may not be an incumbrance. An "incumbrance" has been defined as "a burden upon the land depreciative of its value; such as any lien, easement, or servitude which though adverse to the interest of the landowner does not conflict with the conveyance of the land in fee." 10 Am. & Eng. Encyc. of Law, 361. In Barlow v. McKinley, 24 Iowa 69, it was defined as "right in a third person in the land in question, to the diminution of the value of the land, though consistent with the passing of the fee by deed of conveyance." The trial court found that the easement in question was not an incumbrance within the meaning of the law. This holding was concededly based upon our previous cases. Harrison v. Railway Co., 91 Iowa 114; Stuhr v. Butterfield, 151 Iowa 736, 130 N.W. 897. The real question before us is therefore whether, under the stipulated facts, the doctrine of the cited cases warranted the judgment of the lower court in favor of the defendant. Some of the authorities classify incumbrances as falling naturally into two general classes: (1) such as affect or relate to the title or to the record thereof; (2) such as affect or relate to the actual physical conditions upon the realty. The first class is illustrated by lien of taxes, judgments, or mortgages. [162 Iowa 392] As to such it is uniformly held that they are included in the covenant against incumbrances regardless of knowledge of the grantee. Those relating to physical conditions of the realty may come under a somewhat different rule. Whenever the actual physical conditions are apparent and are in their nature permanent and irremediable, they are sometimes held to have been within the contemplation of the parties in fixing the price and are deemed not to be included in a general covenant against incumbrances. The distinction in the two classes of incumbrances is recognized by many courts. In Memmert v. McKeen, 112 Pa. 315, this distinction is discussed as follows: Where incumbrances of the former class exist, the covenants referred to, under all the authorities, are broken the instant they are made, and it is of no importance that the grantee had notice of them when he took the title. Cathcart v. Bowman, 5 Pa. 317; Funk v. Voneida, 11 Serge. & Rawle 109 (14 Am. Dec. 617). Such incumbrances are usually of a temporary character and capable of removal; the very object of the covenant is to protect the vendee against them. Hence knowledge, actual or constructive, of their existence, is no answer to an action for a breach of such covenant. Where, however, there is a servitude imposed upon the land which is visible to the eye, and which affects, not title, but the physical condition of the property, a different rule prevails. Thus it was held in Patterson v. Arthurs, 9 Watts 152, that, where the owner had covenanted to convey certain lots free from all incumbrances, a public road, which occupied a portion of such lots, was not an incumbrance within the meaning of the covenant. This is not because of any rights acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance, and possibly an injury to the property, was there when the purchaser bought, and he is presumed to have had knowledge of it. In such and similar cases there is further presumption that, if the incumbrance is really an injury, such injury was in the contemplation of the parties, and that the price was regulated accordingly. [162 Iowa 393] To the same effect, see Desvergers v. Willis, 56 Ga. 515 (21 Am. Rep. 289); Whitbeck v. Cook, 15 Johns. 483 (8 Am. Dec. 272); Clark v. Mossman, 58 Neb. 87 (78 N.W. 399); Weller v. Trust Company (Ky.), 64 S.W. 843; Kutz v. McCune, 22 Wis. 628 (99 Am. Dec. 85); Scribner v. Holmes, 16 Ind. 142; Wilson v. Cochran, 46 Pa. 229; Huyck v. Andrews, 113 N.Y. 81 (20 N.E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432); Railway Co. v. Beeson, 36 Neb. 361 First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) (54 N.W. 557); Railway Company v. Shepherd, 39 Neb. 523 (58 N.W. 189). To the foregoing must be added the further proposition that, where public improvements are adopted for the betterment of real estate within a district, such new physical conditions as are necessary and usually incident to such improvement are deemed ordinarily within the contemplation of purchaser and seller and are not deemed a breach of [142 N.W. 89] covenant against incumbrances. Such doctrine has been expressly applied by this court to highways and drainage ditches. Harrison v. Railway Co., supra; Stuhr v. Butterfield, supra. All public improvement involves a certain community of interest in all real estate within its district. Such improvement is not available to one piece of property alone, and yet it is essential to its appropriate use and enjoyment. From its very nature it can not benefit one without benefiting many; and, as an incident to the mutual benefit, it lays also a mutual servitude upon all. The highways carved out of a farm bring such farm into connection with the entire highway system of the state. The drainage ditch cut through a farm confers upon such farm the benefit of a complete drainage system furnishing to it an outlet below for its own surface waters and subjecting it to incident servitude from above. Is a public sewer such an improvement and betterment to real estate that it comes fairly within the operation of the doctrine announced? City property has need of sewer facilities. Abutting property is taxed therefor as for benefits received. These facilities can be acquired only by inclusion [162 Iowa 394] in a sewer system. To become a part of such system is to receive its benefits and to be subject likewise to some degree of servitude. Can such incident servitude be deemed a breach of covenant against incumbrances? It is argued by appellant that the doctrine of our cases above cited does not apply because the sewer was underground and not apparent to observation. This distinction might meet the argument of some of the cases. The doctrine of our own cases, however, has not been made to rest upon the fact that the incumbrance was apparent or known. This court had previously held, in Barlow v. McKinley, 24 Iowa 69, that a railroad right of way operated as a breach of covenant though its existence was apparent and known. The Harrison case was put upon the broad and practical ground that public improvement and betterment which so benefits abutting property as to render it liable to assessment for the improvement ought not to be deemed ordinarily as depreciating its value. It recognized the fact that such betterment imposed, nevertheless, upon the benefited property a certain mutual servitude, and to that extent created an easement in a legal sense against all property within the benefited district. The holding was that such easement, however, was not ordinarily an incumbrance, because in its entirety it was beneficial and not detrimental to the value. The following excerpts are from the opinion in that case: It will be observed that we are to meet a delicate question, and also one of great and very general importance to all parts of the state, from the fact that conveyances of land are generally with covenants against incumbrances, and very few of the number, which is immense, contain exceptions as to public highways. If the rule is to obtain in this state that such highways are incumbrances, against covenants of warranty, the effect will be to create almost numberless liabilities where none were thought to exist; for, with few exceptions, if any, conveyances have been made without an apprehension of such a rule, by either of the parties; and, as has been said in other states that have denied the rule, it 'would produce a [162 Iowa 395] crop of litigation . . . that would be almost interminable.' Such considerations should not influence us to override an established rule of law, and to deny to any party a vested right; but they are important where a rule of law for the state is to be settled upon authority, and is so doubtful that parties acquiring rights may have done so under mistaken apprehensions of what the rule should be. It is conceded that the authorities are not First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) uniform on the question. In Prichard v. Atkinson, 3 N.H. 335; Kellogg v. Ingersoll, 2 Mass. 97; Haynes v. Young, 36 Me. 557, and Burk v. Hill, 48 Ind. 52 (17 Am. Rep. 731), it is held that such highways are incumbrances and a breach of such covenants. In Desvergers v. Willis, 56 Ga. 515 (21 Am. Rep. 289); Whitbeck v. Cook, 15 Johns. 483 (8 Am. Dec. 272); Patterson v. Arthurs, 9 Watts 152, and Memmert v. McKeen, 112 Pa. 315 (4 A. 542), the opposite rule is held. Both lines of authorities have support from rulings on kindred questions, and nothing less can be said, on authority, than that the question is one of grave doubt. It should be said that some of the authorities cited against the rule that such an incumbrance constitutes a breach base the conclusion on a broader doctrine than that of the rule applying simply to public highways, and hold that it applies to other easements, where they are open, notorious, and are, or may be presumed to have been, known to the vendee when the purchase was made; as in the case of a right of way for a railroad, when the road was in operation, and the easement created by it known to the grantee. In view of the rule adopted in this state--that knowledge of the easements will not exclude it from the operations of the warranty--if we are to make a public highway an exception to the rule, it must be on other grounds, or at least the conclusion should be aided by other reasons. . . In general, easements are of such nature that they become incumbrances, in the sense that they are a burden or detriment to the servient estate; because there is nothing in their nature from which the law will presume that they were created in the interest, or for the betterment, of the estate. It is in this view that it has sometimes been said that all easements are incumbrances, and this, as we think, has led, in some cases, to the statement of a broader rule than either public or private interests [142 N.W. 90] demand. No easement should be regarded as an incumbrance to an estate, which is essential to its enjoyment, and by which its value is presumably enhanced. Nothing in the record indicates that the highways in [162 Iowa 396] question do not bear the relation to the land conveyed to the plaintiff that public highways generally do to agricultural lands; and we have no hesitancy in saying that public highways are not depreciative, but, on the contrary, they are highly appreciative, of the value of the lands on which they constitute an easement, and are a means without which such lands are not available for use, nor sought after in the markets. . . . By this system of highways the landed estates become mutually servient, and in such a way that the easements are mutually advantageous and the respective land values enhanced thereby. Such an easement is not an incumbrance. . . . We may say that we make the distinction on the line of what the law will presume to be an incumbrance, in the sense that it is a damage to the estate made servient to the easement. Other easements to which our attention has been called, or which we have been able to consider, are not such that the law will presume them as attaching to an estate, at the instance of the owner, and for its advantage. The consequences of a rule that would hold to a technical liability at law in such cases, and remand parties to proceedings in equity to reform the thousands of conveyances that would fall within its operation, can be better imagined than expressed; and we feel that the announcement of a rule of law decisive of the rights of parties, without such litigation, is correct in principle and in accord with public and private interests. In the Stuhr case, supra, the same doctrine of mutuality of benefit and burden was applied to a drainage ditch. The ditch in question had not been cut nor the land appropriated in a physical sense at the time of the execution of the warranty sued on in that case. The doctrine of the Harrison case is there fully discussed and reaffirmed, and we need not repeat the discussion. It will be noted, also, that the discussion in the Stuhr case is made to apply not only to open ditches, but also to covered tile drains. Nothing less would be consistent. In a practical sense, it is hardly conceivable that a purchaser of real estate underlaid with covered title drains could deem himself damaged thereby as for breach of covenant against incumbrances. Such tile drains are usually laid at great expense and to the great improvement of the property. [162 Iowa 397] Necessarily such First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) benefit has its incident servitude and perhaps inconvenience. The landowner must necessarily adapt his use of the land to the use and location of the tile drains. He can not sink a well or dig a post hole over such drain. If he put a structure upon such ground, he must protect his tile against undue weight. And if he excavate a basement he must take account of, and make provision for, his tile drain. This is a burden incident to benefit. Is this argument fairly applicable to a public sewer? It is urged that a public sewer is not a benefit to the particular land through which it passes. But it is a matter of common knowledge that proximity to a sewer is one of the first requisites of city property and one of the first conditions to city value. It is true, as argued by appellant, that public sewers are usually laid in streets and alleys. It is also true that it is sometimes a practical necessity to lay them along the course of the ravines because of the topography of the ground, and because their expense might otherwise be prohibitive. The very selection of the cheaper course is in itself in the interest of the property owner who has need of sewer connection and must needs pay for the improvement. It is further argued that the sewer should be deemed an incumbrance because of the statutory provisions for the condemnation of land for such purposes and for the assessment of damages therefor. But similar statutory provisions are made for condemnation of land for public highways and for public ditches and tile drains. In all such cases the constitutional prohibition against the consideration of benefits is applicable, as well as the prohibition against the taking of private property without compensation. Turning to the stipulation of facts before us, we discover nothing therein to take the case out of the operation of the doctrine of the cases here considered. No facts of a special nature are made to appear. Nor does it appear that the plaintiff suffered any damage in fact, unless damage is to be presumed from the mere existence of the sewer. No question of deceit or false representation or mutual mistake is involved. We have before us only the cold [162 Iowa 398] question whether the mere existence of a sewer five or six feet under ground necessarily constitutes a breach of covenant against incumbrance. We think the holding of the trial court is in accordance with our previous cases here considered, and its judgment is therefore-- Affirmed. DISSENT BY: DEEMER DEEMER, J. (dissenting). In view of the importance of the legal principle involved, it is unfortunate that the case has been submitted in the manner it has, for I fear that this has unconsciously led to an announcement of legal doctrines which might not otherwise have been pronounced--doctrines which I think are a wide departure from previous cases, and from well-settled rules and principles of law formerly imbedded not only in the jurisprudence of this country but of England as well. I am led to believe that the case was submitted to the district court simply to secure an opinion as to whether or not a public or private sewer, running across private property, is or may be [142 N.W. 91] an incumbrance, which will constitute a breach of warranty against incumbrances, or for the quiet enjoyment of the property conveyed. The covenant in plaintiff's deed is as broad as it could be made, and the deed contains no reservation or exceptions. It will be observed that, after giving the description of the sewer which crosses the lot, it is expressly provided in the stipulation of facts that the question to be decided was whether or not defendant is liable to the plaintiff for breach of covenant or warranty. Mark, the court was not to determine the amount of the damages, but whether or not there was any liability to the plaintiff for breach of warranty. If we find that the district court erroneously decided this question, then, in my opinion, we should reverse the case and remand it for a determination as to the amount of damages and not assume as a matter of law, as the majority do, that no damages could arise to plaintiff by reason of the presence of the sewer which would be sufficient to sustain an action for breach of covenant. First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) The rule that we do not reverse for failure to award nominal [162 Iowa 399] damages is not applicable to the case; for the parties did not submit the question as to the amount of damages at all, and nothing is said in the stipulation regarding that matter. Plaintiff did not attempt to state the amount of damages claimed to have been suffered by it, and defendant did not claim that the sewer was a benefit to the property, save as any sewer may be so considered. The nature of the sewer is not shown, save that it is a public one, of large size, set five feet to five feet and six inches in the ground, five feet and six inches wide on top, and three feet wide, and four feet deep, on the inside. It is evidently not the ordinary round sewer; and, whether a sanitary or storm sewer, or one to carry off the water from the streets and buildings, does not appear, save by the merest inference. . . . It was not built in the street, as most sewers are, and was evidently an outlet, over the land in question, for some kind of a system of drainage or sewerage, procured either by purchase or condemnation under section 795 of the Code or some similar section of previous Codes. No one would contend that private property could be entered and taken, even for public use, without compensation to the owner. Ordinarily sewers are laid in the city streets, and, as no additional servitude is created thereby, adjoining or abutting property owners may not complain of them. Indeed, in such cases they are thought to be a benefit to the property, and assessments may be made to meet the cost thereof. But, in finding an outlet over private property, no such rule exists, no matter what the nature of the sewer. Indeed, the cost of making this outlet can not be taxed against the property taken, but is added to the cost of the improvement and taxed up against property abutting on the streets in which the sewer is laid. Code, section 795. The fair inference from the description of this sewer is that it is a storm sewer, although, to my mind, this makes no difference with the legal principle involved. Again it does not appear how the right to pass over the [162 Iowa 400] property was obtained, that is, whether through purchase or by condemnation; but, however acquired, it is conceded that the same is public in character, that the public have rights therein, and that the same can not be removed. Conceding, then, that the city either owns the property upon which the sewer lies, or that it has a permanent easement over the lot for the sewer, it follows that the city authorities had the right, at any time, to go upon the lot to make repairs to the sewer, to clean it out, and to see that it was properly maintained. This right followed as of law, even though nothing but an easement was created over the lot. Such is the universal holding of the authorities: Prescott v. White, 38 Mass. 341 (32 Am. Dec. 266); Prescott v. Williams, 46 Mass. 429 (39 Am. Dec. 688); Doane v. Badger, 12 Mass. 65; Morrison v. Marquardt, 24 Iowa 35. That the right of the third person to pass upon or over land, to dig thereon, or to, in any manner, remove the soil, constitutes a breach of a covenant of warranty in a deed for quiet enjoyment, is, to my mind, too clear for argument, and it is so held in many cases. See McGowen v. Myers, 60 Iowa 256, 14 N.W. 788; Mitchell v. Warner, 5 Conn. 497; Blake v. Everett, 83 Mass. 248; Wetherbee v. Bennett, 84 Mass. 428; Swift v. Crocker, 38 Mass. 241; Johnson v. Knapp, 146 Mass. 70 (15 N.E. 134); Cotting v. Commonwealth, 205 Mass. 523 (91 N.E. 900); Patterson v. Freihofer, 215 Pa. 47 (64 A. 326). The majority give a definition of an incumbrance with which I do not disagree; but, after giving the definition they proceed to hold, as I understand it, that there is an easement, which ordinarily would be an incumbrance upon and over plaintiff's property; but that this easement is, as a matter of law, a benefit rather than an injury, and that, no matter what the testimony may show, as to actual damages, the law conclusively assumes that there were no damages to the property by reason of the presence of the sewer. First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) [162 Iowa 401] In this connection, I can not do better than quote from a leading case, upon this subject, as applied to easements of the character mentioned in Wetherbee v. Bennett, 84 Mass. 428, 429, the Supreme Court of Massachusetts said: These exceptions can not be sustained. The action is upon the breach of a covenant against incumbrances in a conveyance of land. The incumbrance was a right of way over the land, which subsisted at the [142 N.W. 92] time of the conveyance and for some time after. The defendant contended that the evidence showed that the plaintiff had never been disturbed in the enjoyment of his estate by any user of the way, and that the right of way had been extinguished without expense, and asked that the jury should be instructed to return a verdict for nominal damages only; but the judge declined to give these instructions. It does not follow from these facts that no actual damages had been sustained. While the right of way lasted, the plaintiff was precluded from using the part of the land covered by the way as fully as he otherwise might have done. He could not set a tree, or a post, or a building upon it; or inclose or cultivate it; or sell or lease it to any person to whom such an incumbrance would be objectionable. It was an apparently permanent subtraction from the substance of the estate. In Butler v. Gale, 27 Vt. 739, Chief Justice Redfield said: . . . In this country, where our tenures are strictly allodial, we are very much accustomed to consider that, if another really possesses any rights in our land, it is so far forth an incumbrance upon our title. Whether it be small or large in amount, whether it be a mortgage or a right to flow a portion or all of the land, for a shorter or longer period during the year, or to draw water from a well or spring, or to water cattle at a brook, or to pass across the land on foot, or with teams, or to draw wood in winter only across the land, or to build and maintain a railway perpetually, or a highway, is certainly of no importance in determining the mere technical question of incumbrance or no incumbrance. And it can make [162 Iowa 402] no difference whether his right is notorious or not. If the question of an incumbrance were to be determined by its notoriety, or, what is the same thing, by its being known to the purchaser, it must, to preserve consistency, be extended to all incumbrances. And, in that view, the grantee could not recover upon his covenant for paying a mortgage which he knew existed at the time of his purchase. But the contrary is perfectly well established. And in regard to these rights of way, if they existed only in prior grant, and were not known to the grantee at the time of purchase, no one could claim that they did not constitute a breach of the covenant against incumbrances. Indeed, according to all the cases at my command, the most that can be said is that, in cases of incumbrance by easements over land, the question is not one of law for the court, but of fact for a jury. They may be of considerable damage, or very inconsiderable in character, and the amount thereof is for a jury. See Opinion by Parsons, Chief Justice, in Kellogg v. Ingersoll, 2 Mass. 97. Also, Hubbard v. Norton, 10 Conn. 422; Gilbert v. Bulkley, 5 Conn. 262 (13 Am. Dec. 57); Morgan v. Smith, 11 Ill. 194; Richmond v. Ames, 164 Mass. 467 (41 N.E. 671); Mackey v. Harmon, 34 Minn. 168 (24 N.W. 702); Kellogg v. Malin, 62 Mo. 429. It is hornbook law that an owner of real estate owns from the highest heavens to the center of the earth and our fee-simple titles are allodial in character. That is to say, they are free and absolute and held of no superior. Suppose, now, that the owner of this lot wished to bore for coal or oil upon his lot, to dig a well over this sewer, or to erect a building or a church, and that he wished to excavate below the sewer for his foundation walls, or to make a basement; would any one contend that his absolute right to do so would not be interfered with by the presence of this sewer? As the property was purchased by a church, it is evident that this sewer may be a decided disadvantage, rather than a benefit to the owner of the land. Not only has another a right to enter upon its premises for repairing, cleaning, or maintaining [162 Iowa 403] the sewer, but First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) plaintiff must not, in any way, interfere with or destroy that sewer on penalty of paying damages therefor, if not of being restrained by injunction from in any way interfering therewith. These illustrations are not forced or strained, but, to my mind, perfectly legitimate in arriving at a proper solution of the case. Although the rule for this state is that knowledge on the part of the grantee of an incumbrance against the property does not deprive him of the right to recover for breach of covenant, the majority quote the Pennsylvania rule as if it had some applicability to the case. The so-called Pennsylvania rule has not only been distinctly repudiated by this court in many cases, but it has been departed from by the Pennsylvania court itself in recent cases. In Patterson v. Freihofer, 215 Pa. 47 (64 A. 326), decided in 1906, that court said. "When one protects himself against an incumbrance by a positive covenant that the property is to be conveyed to him clear of all such incumbrance, he is entitled to the benefit of his contract, whether he had knowledge of the existence of the incumbrance or not." This was said with reference to the use of cesspools and privy wells. Again, in Evans v. Taylor, 177 Pa. 286 (35 A. 635, 69 L. R. A. 790), the same court announced the same rule. There is no room for dispute as to what our own cases hold. I here cite them without quotation: Billingham v. Bryan, 10 Iowa 317; Van Wagner v. Van Nostrand, 19 Iowa 422; Barlow v. McKinley, 24 Iowa 69; Gerald v. Elley, 45 Iowa 322; McGowen v. Myers, 60 Iowa 256, 14 N.W. 788; Specht v. Spangenberg, 70 Iowa 488, 30 N.W. 875; Flynn v. Coal Co., 72 Iowa 738, 32 N.W. 471; Yancey v. Tatlock, 93 Iowa 386, 61 N.W. 997; Pierce v. Houghton, 122 Iowa 477, 98 N.W. 306; Doyle v. Emerson, 145 Iowa 358, 124 N.W. 176; Harwood v. Lee, 85 Iowa 622, [142 N.W. 93] 52 N.W. 521; Kostendader v. Pierce, 37 Iowa 645. There has been no departure from this rule, so many times maintained. I can not myself see any distinction between an incumbrance which is of record, of which all persons must take notice, and one which is visible to the naked eye, but which [162 Iowa 404] the parties may or may not have seen. Will the next step be to say that a covenant of warranty does not cover an incumbrance of record? Much confusion will be introduced by a rule which makes the right of action depend upon knowledge. One holding title against which there is an incumbrance may resort to any warranty in his chain of title made after the incumbrance arose. Now, suppose some remote grantor was chosen as a defendant and he could show that, while plaintiff did not know of the incumbrance, his immediate grantee, or some more remote grantee, did; would this be a defense to suit? I have always understood that the reason why one is so tenacious in insisting upon a warranty deed is for the reason there may be, or he thinks there is, some incumbrance against the land, and often he takes it for the very reason that there is an apparent incumbrance. Is he to be defeated in his action of covenant because he knows of this incumbrance? I think not. Moreover, this question of knowledge of a physical incumbrance defeating an action for breach of covenant has been distinctly negatived in many of our cases where the easement was known to both grantor and grantee. See Flynn v. Coal Co., 72 Iowa 738, 32 N.W. 471; Barlow v. McKinley, 24 Iowa 69; McGowen v. Myers, 60 Iowa 256, 14 N.W. 788; Van Wagner v. Van Nostrand, 19 Iowa 422. In each of these cases there was an open and apparent easement on the land, and we expressly disapproved of the Pennsylvania and Wisconsin rule--the rule adopted by the minority of the courts--and expressly and definitely held that knowledge of such easements would not defeat the action. Courts and text writers generally disapprove of the rule announced by the majority upon this proposition. See Jones on Real Property, sections 861 et seq., 873, 882, 886, 910; Rawle on Covenants for Title, sections 79, 88, 191; Tiffany on Real Property, section 397; Tiedeman on Real Property, section 853; 2 Warvelle on Vendor, pages 992-998; 8 Am. & Eng. Ency., pages 123, 124, 125; 11 Cyc., page 1066. If our previous cases are to be [162 Iowa 405] overruled, we should do so squarely, and not leave the matter to mere inference. First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) Coming now to the question of sewers, drains, etc., the cases, without exception, so far as I have been able to discover, hold that they are incumbrances, and the English courts have recently established the same rule. In Pemsel v. Tucker (1907) 2 Ch. 191 (97 L. T. N. S. 71 P. J. 547), it was held that a public sewer, running under property sold, constituted a defect in the title as it was vested in the public authorities. In the instant case, it is conceded that the sewer in question is a public sewer, and it must have been acquired either by grant or condemnation. In Cotting v. Commonwealth, 205 Mass. 523 (91 N.E. 900), the Supreme Court of Massachusetts held that a sewer constitutes an incumbrance on the land; and in Johnson v. Knapp, 146 Mass. 70 (15 N.E. 134), the same court held that a pipe to convey water across land is an incumbrance. In Smith v. Sprague, 40 Vt. 43, the court of that state held that a private drain and the accompanying right to enter and clean the same constituted a breach of covenant against incumbrances. The principle for which I contend was laid down in an early case in Massachusetts. Kellogg v. Ingersoll, 2 Mass. 97, from which I quote the following words of Parsons, C. J.: If the public town road, described by the plaintiff in his assignment, is no legal incumbrance of the land sold, the breach is not well assigned. But the court is well satisfied that the road, as there described, is an incumbrance of the land sold. It is legal obstruction to the purchaser to exercise that dominion over the land to which the lawful owner is entitled. An incumbrance of this nature may be a great damage to the purchaser, or the damage may be very inconsiderable, or merely nominal. The amount of damages is a proper subject of consideration for the jury who may assess them, but it can not affect the question whether a public town road is, in legal contemplation, an incumbrance of the land over which it is laid. [162 Iowa 406] In Huyck v. Andrews, 113 N.Y. 81 (20 N.E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432), the Supreme Court of New York said: . . . . We think the safer rule is to hold that the covenants in a deed protect the grantee against every adverse right, interest, or dominion over the land, and that he may rely upon them for his security. If open, visible, and notorious easements are to be excepted from the operation of covenants, it should be the duty of the grantor to except them, and the burden should not be cast upon the grantee to show that he was not aware of them. The security of titles demands that a grant made without fraud or mutual mistake shall bind the grantor according to its written terms. It should not be incumbent upon the grantee to take special and particular covenants against visible and apparent defects in the title, or incumbrances upon the land, but it should be incumbent upon the grantor, if he does not intend to covenant against such defects and incumbrances, to except them from the operation of his covenants. The distinction which is attempted to be made between incumbrances which affect the title and those which affect the physical condition of the land conveyed is quite illusory and unsatisfactory. [142 N.W. 94] Easements not only affect the physical condition of the land, but they affect and impair the title. The owners of them have an interest in and dominion over the servient tenement which frequently may largely impair its usefulness and value. In Prescott v. Trueman, 4 Mass. 627 (3 Am. Dec. 246), it is said: On these principles we are of opinion that every right to, or interest in, the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance, must be deemed in law an incumbrance. We say consistent with the passing of the fee of the land by the conveyance, because, if nothing passed by the deed, the grantee can not hold the estate under the grantor. Thus a right to an easement of any kind in the land is an incumbrance. So is a mortgage. So also is a claim of dower, which may partially defeat the plaintiff's First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) title, by taking [162 Iowa 407] a freehold in one- third out of it. And for the same reason, a paramount right, which may wholly defeat the plaintiff's title, is an incumbrance. It is a weight on his land, which must lessen the value of it. In DeMars v. Koehler, 62 N.J.L. 203 (41 A. 720, 72 Am. St. Rep. 642), the Supreme Court of New Jersey said: Prof. Greenleaf declares that a breach of the covenant against incumbrances is shown when the proofs establish that a 'third person has a right to or an interest in the land conveyed, to the diminution of the value of the land, though consistent with the passing of the fee by the deed of conveyance.' 2 Greenl. Ev., sec. 242. This definition of 'incumbrance' is substantially that given by Chief Justice Parsons in Prescott v. Trueman, 4 Mass. 627 (3 Am. Dec. 246). It was approved in Mitchell v. Warner, 5 Conn. 497, and adopted by Chief Justice Green in Carter v. Denman, 23 N.J.L. 260 at 260-272. The diminution of value which is thus made a test of an incumbrance is not, however, to be understood as limited to cases where the thing granted is, by reason of some outstanding right or interest in a third person, of less pecuniary worth, but also extends to and embraces cases where the grantee, by reason of such an outstanding right or interest, does not acquire . . . the thing granted which the grant apparently gives, but is or may be deprived thereby of the whole or some part of its use or possession. The diminution of pecuniary value is important in the admeasurement of damages for the breach of this covenant, but does not form the test whether an outstanding right or interest is an incumbrance or not. If the thing granted be, or be liable to be, diminished by the existence of an outstanding right or interest, so that the grantee does not acquire the complete dominion which the grant purports to convey, then, although the diminution of pecuniary worth may not appear, and the damages may be only nominal, such right or interest is an incumbrance. . . . Knowledge of its existence can not alter its character as an incumbrance. The land granted is or may be thereby diminished so that the grantee does not acquire that use and possession which the deed purported to grant. Mr. Rawle, conceding that, if there be a real incumbrance, the purchaser's knowledge [162 Iowa 408] of its existence will furnish no defense to an action on this covenant, ingeniously suggests that such knowledge may have a material bearing in determining what was the subject-matter of the contract. Rawle, Cov. 95, 96. With equal ingenuity the opinion below denies the right to recover upon this covenant because such an incumbrance, known to the grantee, is not within its terms, and consequently no breach of the covenant. With great respect, I deem the reasoning specious and the conclusion insupportable; for knowledge of the existence of an incumbrance not only does not destroy its inherent character as an incumbrance, but may and often does lead to the purchaser's requiring the grantor to protect him by covenants. Smith v. Lloyd, 29 Mich. 382. When a covenant is made against all incumbrances, without exception, knowledge of the existence of one incumbrances, can not take that incumbrance out of the general terms of the covenant, unless such was the intent of the parties. But knowledge alone does not prove such intent, for a contrary intent is consistent with it. Proof of knowledge, or other proof of the intent of the parties, that a particular incumbrance should be excepted from the general terms of the covenant, could only be admitted by a violation of the canon of evidence which forbids parol proof to vary the terms of a written contract. It results that a grantor who fails to except from his covenant against incumbrances one which is known to the grantee can not defeat recovery upon that covenant by proof of such knowledge. The grantee is not compelled to require for his protection a special covenant against the known incumbrance, but may rely on the general and unrestricted covenant against all incumbrances. . . . The general rule is that the right of action on the covenant against incumbrances arises upon the evidence of the incumbrance, irrespective of any knowledge on the part of the grantee, or of any eviction of him, or of any actual injury it has occasioned him, so that if he has not paid off or bought in the incumbrance, he is entitled at least to nominal damages. 2 Greenl. Evidence, sec. 242; 2 Washb. Real Prop. 707; Carter v. Denman, supra; Townsend v. Weld, 8 Mass. 146; Hovey v. First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) Newton, 24 Mass. 29; Harlow v. Thomas, 32 Mass. 66; Batchelder v. Sturgis, 57 Mass. 201; Spurr v. Andrew, 88 Mass. 420; Flynn v. Bourneuf, 143 Mass. 277 (9 N.E. 650, 58 Am. Rep. 135); Rickert v. Snyder, 9 Wend. 416; [142 N.W. 95] Smith v. Lloyd, supra; Edwards v. Clark, 83 Mich. 246 (47 N.W. 112, 10 L. R. A. 659); [162 Iowa 409] Hubbard v. Norton, 10 Comm. 431; Prichard v. Atkinson, 3 N.H. 335; Van Wagner v. Van Nostrand, 19 Iowa 422; Barlow v. McKinley, 24 Iowa 69; Long v. Moler, 5 Ohio St. 271. In De Rochemont v. B. & M. R. R. Co., 64 N.H. 500 (15 A. 131), the Supreme Court of New Hampshire said: . . . A way, whether public or private, is an incumbrance upon land. Prichard v. Atkinson, 3 N.H. 335; Haynes v. Stevens, 11 N.H. 28. It is a legal obstruction to the exercise of that dominion over the land to which the lawful owner is entitled. Kellogg v. Ingersoll, 2 Mass. 97; Blake v. Everett, 83 Mass. 248; Wetherbee v. Bennett, 84 Mass. 428; Butler v. Gale, 27 Vt. 739; Hubbard v. Norton, 10 Conn. 422. The plaintiffs, having conveyed to the railroad with covenants of warranty against incumbrances, are estopped to deny the truth of the covenants that the premises are free from any incumbrances except what are reserved in the deed, and consequently they are estopped to claim damages for the obstruction of a way which they have covenanted does not exist. Wark v. Willard, 13 N.H. 389, 395; Gotham v. Gotham, 55 N.H. 440; Fletcher v. Chamberlin, 61 N.H. 438, 447, 478. In appeal of Edmunds, Ex'r, 8 A. 31, the Supreme Court of Pennsylvania held a party wall an incumbrance, and the same rule obtains in many other states. In Johnson v. Knapp, 146 Mass. 70 (15 N.E. 134), water pipes, running across a lot of land, were held to be incumbrances. Stuhr v. Butterfield, 151 Iowa 736, 130 N.W. 897, is not an authority against the propositions for which I contend. The drainage ditch which, in that case, was held not to be an incumbrance, was over land which was within a drainage district, and by reason of that fact it had already been adjudicated that the lands were benefited by the improvement. In the case at bar, there is no showing that the sewer in question was any part of any system of drainage, was ever included in any [162 Iowa 410] sewerage district, that it was a sanitary sewer, or that any part of the cost thereof had been taxed against abutting property. There never was any finding that the lot, which it crossed, was benefited thereby, and nothing in this record to show that plaintiff could, or would be permitted to, use it for any purpose whatever. It may have been a storm sewer, which plaintiff would not have been permitted to use for sanitary purposes, or it may have been a sanitary sewer, but, if the latter, it is not shown to be a part of any sewer system constructed by the city. Prima facie, such an easement, over plaintiff's lot, is an incumbrance, and this prima facie showing is not overcome by any testimony in the case. It is assumed, without proof, that it was a benefit to the property, upon the theory that it drained it out in some manner, without any showing that it needed any kind of drainage or that it was a sanitary sewer, with which plaintiff might make connection, should it see fit to do so. There is no proof that it is a sanitary sewer; and, if it was, there is no showing that plaintiff may not reach the sewer in the street in front of its lot, where such sewers are usually laid, with less trouble and expense than on its lot. The sewer could not have been laid across plaintiff's lot without compensation, and, if a private sewer, the land could not have been condemned for such an improvement. The sewer may manifestly interfere with building operations, for, if a heavy wall is to be constructed over it, the wall must have support, and this will cause extra expense; and, in the end, it may not be in such position that it can be used for drainage or sewerage purposes. When sewers are laid in the street, as they usually are, they do not interfere with building operations, and in no way interfere with the unrestricted dominion which the owner has over his property. That a sewer laid across a private lot does interfere with such dominion is too clear for argument, and we are not justified, I think, in First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) assuming that this restriction, instead of being a damage, is a real benefit to the lot. [162 Iowa 411] It should not be forgotten, in this connection, that the right to locate underground drains through the land of another, except when the public health requires it, is denied in previous cases decided by this court. Fleming v. Hull, 73 Iowa 598, 35 N.W. 673; Patterson v. Baumer, 43 Iowa 477. And this is true, notwithstanding such drain may be of benefit to the land in giving it drainage which it did not have before. Save as the law authorizes the establishment of drainage districts, one man has no right to force his neighbor to put in a drain or tile for the mutual advantage of both, or to go upon his neighbor's land, without his consent, to put in a tile line to connect with his own, in order that both places may be benefited. On the question of benefits, I can not refrain from referring to two of our cases, which seem to me to be analogous. In McGowen v. Myers, 60 Iowa 256, 14 N.W. 788, the owner of a lot conveyed a part of it, reserving a stairway, which was to be built and used in common between the building erected on his part of the lot and the part conveyed and for the mutual benefit of the owners of both lots. Afterwards defendant in the case became the owner of the adjoining building and conveyed it, by deed of general warranty, to the plaintiff. Plaintiff brought action for breach of covenant, and it was held that the right to use the stairway in common was an easement and an incumbrance and that defendant was liable on his covenants. The same rule was also announced [142 N.W. 96] in Myers v. Munson, 65 Iowa 423, 21 N.W. 759. These cases are authority for several propositions in the case. The first is that parol evidence is not admissible to show that the parties did not regard the easement as an incumbrance; second, that knowledge of the physical easement on the part of the grantee was no defense; and, third, that even though the easement was for the joint benefit of grantor and grantee, still there was a breach of covenant for which damages might be recovered. All that could possibly be claimed in the instant case is that the easement might be for the joint benefit of the [162 Iowa 412] original parties or their grantees--that is, that it was for the benefit of the city, as well as to the lot owner-- but, under the rule heretofore announced, and never since departed from, such benefit will not defeat an action for breach of covenant of warranty. I can not subscribe to the doctrine that knowledge on the part of the grantee of an incumbrance which relates to the physical condition of the realty conveyed deprives him of a right of action for breach of covenant of warranty. Such rule is contrary to the great weight of authority and in conflict with so many of our own cases that they should not be overruled by indirection. The text writers generally condemn the doctrine as wrong on principle and without general support. Again, the announcement of such doctrine will tend toward uncertainty and confusion. Suppose the grantee is a nonresident and has not seen the property, or, if a resident, has never been upon the property, or suppose that, as in this case, the sewer is five or six feet underground with nothing to indicate that a sewer runs across the lot; must he grantee dig down to see if the sewer runs across the lot, instead of out in the street, where he may well suppose it to be? What are the rules for such cases? And suppose a remote grantor is selected as a party defendant and he can show that although plaintiff, a remote grantee, did not know of the incumbrance, his defendant's immediate grantee did. Will this be a defense to the suit? Again, suppose a purchaser never learns of the sewer across his lot and makes his connections with one in the street and never gets any benefit from the one across his lot; must he bear the burden of the one across his lot? Harrison v. Railroad Co., 91 Iowa 114, relied upon by the majority, is not in point. In that case it is said: . . . In view of the rule adopted in this state-- that knowledge of the easement will not exclude it from the operations of the warranty--if we are to make a public highway an exception to the rule, it must be on other grounds, or at least [162 Iowa 413] the conclusion should be aided by other First Unitarian Society of Iowa City v. Citizens Sav. & Trust Co., Iowa City, 142 N.W. 87, 162 Iowa 389 (Iowa 1913) reasons. . . . An 'incumbrance' is defined to be 'a burden upon land depreciative of its value, such as a lien, easement, or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee.' 10 Am. & Eng. Encyclopedia of Law, 361; 2 Greenl. Evidence, sec. 242; Chapman v. Kimball, 7 Neb. 399; Carter v. Denman, 23 N.J.L. 260. In Prescott v. Trueman, 4 Mass. 627 (3 Am. Dec. 246), the foregoing definition is given in substance, and it is there said: 'It is a weight on land, which must lessen the value of it.' It will perhaps be well for us to treat these definitions as not casting the burden on a grantee to show affirmatively, in addition to the easement, that it is an incumbrance, in the sense of its being depreciative of the value of the land, and, instead, to give him the advantage of what the law will assume from the existence of an easement. This case announces two propositions: First, that knowledge of the incumbrance is no defense; and second, that it is not incumbent on the grantee to show affirmatively that, in addition to the easement, it is an incumbrance in the sense of being depreciate of the value of the land. Assuming these rules to be true, I find nothing in the statement of facts, on which the instant case was tried and determined, which shows or tends to show that the sewer was made to benefit the lot in question or that it is in fact any benefit thereto. It is assumed that because it is called a public sewer it is some benefit to the property. But that fact depends, not upon the name given the easement, but upon whether or not it was a benefit to the property across which it passed. Ordinarily sewers are not so constructed, and, when they are, compensation must be made the owner. There must be some proof, as I think that this sewer was constructed pursuant to some plan to benefit the lot through which it passed, before any presumption will arise that it did so benefit the land. I can conceive how all property within a drainage district may be presumed to have been benefited, as in Stuhr v. Butterfield, supra. But I am not convinced that a public sewer, running across a private lot, [162 Iowa 414] not shown to have been a part of any sewer system, and not constructed to benefit the lot itself, is presumptively a benefit to the lot. A private drain running from my land, through the land of my neighbor, may benefit both; but I doubt if the law would compel my neighbor to let me run a tile across his land on the theory that it will be beneficial to him, when done. For a much stronger reason, one can not construct a tile or sewer or tile and is in no manner benefited thereby, even with express authority from the Legislature. The only excuse for this dissent is due to the thought that we are introducing new doctrines, which may arise to trouble us in the future, and I especially dissent from the propositions that knowledge of an incumbrance, whether it be physical or of record, [142 N.W. 97] is any defense to an action for breach of covenant; that a large public sewer, no matter whether storm or sanitary, running across a private lot, is presumptively beneficial, and from the thought that without any proof it will be presumed that such a sewer, although not shown to be a part of any system or necessary in any way to the enjoyment of the property through which it runs, is a benefit thereto rather than injury. On the whole, I think the trial court was in error in dismissing the case, and I would reverse, with instructions to take testimony on the question of damages. GAYNOR, J., joins in dissent. January 8, 2025 Board of Adjustment Meeting APL24-0001 ATTACHMENT 4 Section 14-2A-4: Dimensional Requirements 14-2A-4: DIMENSIONAL REQUIREMENTS: The dimensional requirements for the single-family residential zones are stated in table 2A-2, located at the end of this section. Each of the following subsections describes in more detail the regulations for each of the dimensional requirements listed in the table. Provisional uses and uses allowed by special exception may have specific dimensional requirements not specified in table 2A-2, located at the end of this section. Approval criteria for these uses are addressed in chapter 4, article B of this title. Dimensional requirements may be waived or modified for developments approved through the planned development (see chapter 3, article A, "Planned Development Overlay Zone (OPD)", of this title) or through the historic preservation exception as outlined in section 14-2A-7, "Special Provisions", of this article. A. Minimum Lot Requirements: 1. Purpose: The minimum lot area and width requirements are intended to ensure that a lot is of a size, width, and frontage that is appropriate for the uses permitted in the subject zone and will ensure, in most cases, that the other site development standards of this title can be met. The lot area per dwelling unit standards control the intensity of use on a lot to ensure consistency and compatibility of new dwellings with the surrounding development. 2. Standards: Generally, the minimum lot area and width standards for the various single-family residential zones and for specific residential uses are stated in table 2A-2, located at the end of this section. 3. Minimum Lot Sizes For Specific Land Uses: a. Provisional uses and uses allowed by special exception may have specific lot size requirements not specified in table 2A-2, located at the end of this section. Approval criteria for these uses are addressed in chapter 4, article B, "Minor Modifications, Variances, Special Exceptions, And Provisional Uses", of this title. b. If a minimum lot size is specified within a zone for a particular land use or dwelling type, whether permitted, provisional or a special exception, that use or dwelling type may not be established on a smaller lot, even if smaller lots are permitted in the subject base zone, except as permitted under chapter 4, article E, "Nonconforming Situations", of this title. B. Minimum Setback Requirements For Principal Buildings: 1. Purpose: The minimum setback requirements are intended to: a. Maintain light, air, separation for fire protection, and access for firefighting; b. Provide opportunities for privacy between dwellings; c. Reflect the general building scale and placement of structures in the city's neighborhoods; d. Promote a reasonable physical relationship between buildings and between residences; and e. Provide flexibility to site a building so that it is compatible with buildings in the vicinity. 2. General Setback Requirements: Generally, the minimum required setbacks for principal buildings in residential zones are stated in table 2A-2, located at the end of this section. The minimum setbacks for principal buildings create required setback areas within which principal buildings are not allowed, except for certain building features as specified in this subsection. 3. Specific Setback Requirements: The following provisions contain setback requirements that apply in specific situations: a. Setbacks Along Arterial Streets: (1) On lots platted after December 31, 1983, a minimum forty foot (40') front setback is required along any lot line that abuts an arterial street or future arterial street as shown on the Iowa City arterial street map, located in chapter 5, article C, "Access Management Standards", of this title. (2) If a lot is located along an arterial street that is substandard with regard to the width of the public right of way as specified in title 15, "Land Subdivisions", of this code, then the minimum forty foot (40') front setback along said street is increased by the number of additional feet that will be required for future upgrade of said street to city standards. Lots platted prior to December 31, 1983, are exempt from this requirement. In addition, setback averaging may apply in certain circumstances. (See subsection B3e of this section.) b. Lots With Multiple Frontages: (1) On corner lots, no building, structure or planting, unless specifically exempted, may be located within the vision triangle, as set forth in chapter 5, article D, "Intersection Visibility Standards", of this title. (2) If a lot fronting on two (2) or more streets is required to have a front setback, a minimum setback equal to the required front setback must be provided along all streets, and such setback will be considered a front setback for purposes of this title. c. Lots With Multiple Buildings: The principal buildings on the lot must be separated by a horizontal distance of at least ten feet (10'). Proximity of building walls will be subject to all current building code fire protection requirements. d. Overlay Zones And Special Districts: If specific setbacks have been established in a historic or conservation district, a planned development, or in the central planning district, those setbacks supersede the setback requirements of the base zone. For properties located in a historic or conservation district, refer to chapter 3, article B of this title and also the applicable setback provisions in the Iowa City historic preservation handbook. For a property located in a planned development overlay zone, refer to the approved planned development overlay plan for the subject property. For two-family uses, multi-family uses, group living uses, and institutional/civic uses located on property in the Central Planning District, refer to the applicable setback provisions in section 14-2B-6, "Multi-Family Site Development Standards", of this chapter. (Ord. 05-4186, 12-15-2005) e. Setback Averaging: (1) Where at least fifty percent (50%) of the lots along a frontage have been developed and all of these developed lots are occupied by principal buildings that are located at least five feet (5') further from the street than the required front setback, the required front setback along the frontage is increased to the equivalent of the setback of the building closest to the street. However, this averaging provision does not apply to frontages that contain three (3) or fewer lots. (Ord. 12-4488, 8-21-2012) 20 Figure 2A.1 - Setback Averaging (1) (2) Where at least fifty percent (50%) of the lots along a frontage are occupied by principal buildings that are located closer to the street than the required front setback, the front setback may be reduced to the average of the respective setbacks on the abutting lots. Only the setbacks on the lots that abut each side of the subject property along the same street may be used to calculate the average. Setbacks across the street or along a different street frontage may not be used. When one abutting lot is vacant or if the lot is a corner lot, then the average is based on the setback of the nonvacant lot and the required setback for the zone in which the lot is located. (See figure 2A.2 of this section.) Figure 2A.2 - Setback Averaging (2) 4. Building Features Permitted Within Required Setback Area: The following building features may extend into the required principal building setback area, subject to the conditions indicated and provided that location of such a feature does not violate the provisions of chapter 5, article D, "Intersection Visibility Standards", of this title. The setback regulations for detached accessory structures and structures not considered part of the principal building are addressed in chapter 4, article C, "Accessory Uses And Buildings", of this title. a. Awnings, uncovered balconies, bay windows, belt courses, buttresses, canopies, chimneys, cornices, sills, and other similar features that extend beyond the wall of a principal building may project up to six feet (6') into the required front or rear setbacks. Except for balconies, bay windows, and chimneys, all such projecting building features may extend up to three feet (3') into the required side setback. Balconies and bay windows may not extend into the required side setback. Chimneys may extend up to two feet (2') into the required side setback. Projections from the principal building must in all cases be at least two feet (2') from any side lot line. (Ord. 05- 4186, 12-15-2005) b. Enclosed porches, covered decks, and covered patios that are attached to the principal building must comply with the principal building setbacks of the base zone and may not extend into the required setback area. Unenclosed and screened-in porches (non- habitable space) may extend up to fifteen feet (15') into the rear setback, provided they are set back at least twenty feet (20') from the rear lot line. The standards for uncovered decks and patios are specified in chapter 4, article C, "Accessory Uses And Buildings", of this title. Enclosed porches, covered decks, and covered patios that are attached to an accessory building must comply with the standards for accessory buildings as specified in chapter 4, article C, "Accessory Uses And Buildings", of this title. (Ord. 18-4744, 4-2-2018) c. Fire escapes may extend into any setback, provided they do not extend more than three feet (3') into any side setback. d. Stairways that function as the principal means of access to dwelling units located above the ground or first floor of a building may not extend into any required setback. (Ord. 05-4186, 12-15-2005) e. Stoops and wheelchair ramps that function as a means of access to the ground or first floor of a building may extend into the rear setback, up to eight feet (8') into the required front setback, and into the side setback, provided they are set back at least three feet (3') from any side lot line. In cases where, due to topography or other site characteristics, a wheelchair ramp cannot meet this standard, a minor modification may be requested according to the approval criteria and procedures for minor modifications contained in chapter 4, 21 article B of this title. (Ord. 09-4365, 12-1-2009) 5. Adjustments To Principal Building Setback Requirements: a. A minor modification to reduce principal building setback requirements may be requested according to the approval criteria and procedures for minor modifications contained in chapter 4, article B of this title. b. A special exception may be requested to reduce principal building setback requirements beyond what is allowed by minor modification. The Board of Adjustment may adjust setback requirements if the owner or lawful occupant of a property demonstrates that the general special exception approval criteria and the following specific approval criteria have been satisfied: (1) The situation is peculiar to the property in question; (2) There is practical difficulty in complying with the setback requirements; (3) Granting the exception will not be contrary to the purpose of the setback regulations; and (4) Any potential negative effects resulting from the setback exception are mitigated to the extent practical. (5) The subject building will be located no closer than three feet (3') to a side or rear property line, unless the side or rear property line abuts a public right-of-way or permanent open space. C. Building Bulk Standards: 1. Maximum Height: a. Purpose: The height regulations are intended to promote a reasonable building scale and relationship between buildings; provide options for light, air, and privacy; and discourage buildings that visually dominate other buildings in the vicinity. b. Standards: Generally, the maximum height standards for structures in single-family residential zones are stated in table 2A-2, located at the end of this section. Height standards for accessory buildings are addressed in chapter 4, article C, "Accessory Uses And Buildings", of this title. c. Exemptions: If allowed in the subject zone, the following structures or parts thereof are exempt from the height limitations set forth in the zones indicated, provided an increase in height does not conflict with chapter 6, "Airport Zoning", of this title: (1) Chimneys or flues. (2) Spires on religious or other institutional buildings. (3) Cupolas, domes, skylights and other similar roof protrusions not used for the purpose of obtaining habitable floor space. (4) Farm structures, including barns, silos, storage bins and similar structures when accessory to an allowed agriculture use. (5) Flagpoles that extend not more than ten feet (10') above the height limit or not more than five feet (5') above the highest point of the roof, whichever is less. (6) Parapet or fire walls extending not more than three feet (3') above the limiting height of the building. (7) Poles, towers and other structures accessory to a basic utility use, such as street lights and utility poles. (8) If allowed in the subject zone, basic utilities and communication transmission facilities are exempt from the base zone height standards, but are subject to any limitations placed by the Board of Adjustment. (9) Roof structures, including elevator bulkheads, stairways, ventilating fans, cooling towers and similar necessary mechanical and electrical appurtenances required to operate and maintain the building. (10) Television antennas and similar apparatus. d. Adjustment Of Height Standards: (1) The maximum height for a principal building may be increased; provided, that for each foot of height increase above the height standard, the front, side, and rear setbacks are each increased by an additional two feet (2'); and provided, that an increase in height does not conflict with the provisions of chapter 6, "Airport Zoning", of this title. (2) A minor modification may also be requested to adjust the maximum height for a particular building or property according to the procedures and approval criteria for minor modifications contained in chapter 4, article B of this title. 2. Minimum Building Width: a. Purpose: The minimum building width requirements promote a reasonable building scale and relationship between dwellings in a neighborhood. b. Standards: The minimum building width requirements for principal structures in single-family residential zones are stated in table 2A-2, located at the end of this section. A principal building must be in compliance with the specified minimum building width for at least seventy five percent (75%) of the building's length. (See figure 2A.3 below.) Figure 2A.3 - Minimum Building Width 22 D. Maximum Lot Coverage Standards: 1. Total Building Coverage: a. Purpose: The total building coverage standard helps to define the character of single-family residential zones by limiting the land area that can be covered by buildings. These standards work in conjunction with the minimum lot requirements and building bulk standards to determine how built up a neighborhood appears. b. Standards: The total building coverage standards for the various single-family residential zones are stated in table 2A-2, located at the end of this section. The maximum building coverage standard establishes the percentage of the total area of a lot that can be covered by buildings. The total building area of all buildings on the property, including both principal and accessory buildings, is used to calculate the building coverage. 2. Front Setback Coverage: a. Purpose: The front setback coverage standard ensures that a certain portion of the front setback area remains free of impervious surface, which helps to maintain a consistent and pleasant environment along neighborhood streets. These standards increase public safety by preventing excessive front yard paving and vehicular storage that may obscure the principal dwelling and the main entrance from view of the street. In addition, this standard helps to prevent neighborhood streets that are dominated by front yard pavement, particularly along frontages with narrow residential lots. b. Standard: The maximum front setback coverage standard for the single-family residential zones is stated in table 2A-2, located at the end of this section. The table lists the maximum percentage of the required front setback that may be covered by impervious surface, including driveways, walkways, patios, decks, and other paved areas. Front setback coverage may not exceed the percentage indicated in said table 2A-2. c. Exception: A special exception may be requested to increase the allowed front setback coverage. The Board of Adjustment may adjust the front setback coverage standard if the owner or lawful occupant of a property demonstrates that the general special exception approval criteria set forth in chapter 4, article B of this title, and the following specific approval criteria have been satisfied: (1) The lot is of an irregular shape or contains severe topography, such that there is practical difficulty meeting the front setback coverage standard. (2) The applicant has demonstrated that every effort has been made to design buildings, paved areas, and vehicular use areas to meet the front setback coverage standard. Such efforts include reducing the width of driveways, reducing paved areas and size of garages and providing alternative means of vehicular access to the property. If vehicular access to an alley or private rear lane is available, the front setback coverage standard may not be increased. (3) Granting the exception will not be contrary to the purpose of the front setback coverage regulations. (4) Any potential negative effects resulting from the exception are mitigated to the extent practical. (Ord. 05-4186, 12-15-2005) E. Minimum Open Space Requirements: 1. Purpose: The minimum open space requirements are intended to ensure a minimum amount of private, usable open space is provided to support the health, well-being and enjoyment of the residents of the dwelling. The intent of the open space is to support passive recreation, leisure activities, informal gathering, and opportunities for interaction with nature. 2. Minimum Requirements: a. On lots that contain multi-family uses or group living uses, usable open space shall be provided on each lot at a ratio of ten (10) square feet per bedroom, but not less than four hundred (400) square feet, located in one or more clearly defined, compact areas, with each area not less than two hundred twenty five (225) square feet with no dimension less than fifteen feet (15'). b. On lots that contain detached single family uses, a minimum of five hundred (500) square feet of usable open space shall be provided, located in the rear yard with no dimension less than twenty feet (20'). c. On lots that contain attached single family uses, a minimum of one hundred fifty (150) square feet of usable open space shall be provided, located in the rear yard with no dimension less than ten feet (10'). d. On lots that contain two family uses, a minimum of three hundred (300) square feet of usable open space per dwelling unit shall be provided, located in one or more clearly defined, compact areas, with each area not less than three hundred (300) square feet with no23 dimension less than twelve feet (12'). 3. Standards: a. For multi-family uses and group living uses, open space shall meet the standards as set forth in subsections 14-2G-7E1 through E7 of this chapter. b. For single family uses and two family uses open space shall be located behind the principal dwelling in an area visible and easily accessible from the principal dwelling and shall consist of open planted green space, which may include trees, planters, gardens, and other amenities that support passive recreation or leisure activities. Paved areas shall not be counted toward usable open space. For attached single family uses, rooftop or upper floor open air terraces or rear yard-facing porches, including screened-in porches (non- habitable space only) may count toward the open space requirement. 4. Minor Modification: A minor modification may be requested according to the provisions and approval criteria of section 14-4B-1, "Minor Modifications", of this title, to reduce the required open space for single family and two family uses in the following circumstances, provided the additional approval criteria stated in subsection E4e of this section, are satisfied. Note that reducing the open space may reduce the allowed occupancy of a rental property (see title 17, chapter 5, "Housing Code", of this Code): a. In order to establish up to two (2) off-street parking spaces (surface parking or in a garage) on a lot that currently has fewer than two (2) off-street parking spaces; or b. If the lot is a corner lot, is irregular in shape, substandard in size, or contains severe topography, or other unique circumstance, such that there is practical difficulty meeting the standard; or c. The lot contains a manufactured home, where due to the shape/dimensions of the home there is practical difficulty meeting the standard; or d. The lot contains a detached zero lot line dwelling, where the side yard is designed to serve as usable open space for the dwelling; e. Approval criteria: (1) The applicant has demonstrated that every effort has been made to design buildings, paved areas, and vehicular use areas to meet the open space requirement. Such efforts may include but are not limited to reducing the width of driveways, reducing paved areas and size of new buildings or additions, and providing alternative means of vehicular access to the property; and (2) The open space requirement will be satisfied to the extent possible in another location on the lot, such as a side yard; and (3) Any potential negative effects resulting from the exception are mitigated to the extent possible. Table 2A-2: Dimensional Requirements In The Single-Family Residential Zones Zone/Use Minimum Lot Requirements Minimum Setbacks Building Bulk Maximum Lot Coverage Maximum Number Of Bedrooms Per Unit11 Minimum Open Space (Sq. Ft.)10 Lot Size (Sq. Ft.) Area/Unit (Sq. Ft.) Lot Width (Ft.) Frontage (Ft.) Front (Ft.) Side (Ft.) Rear (Ft.) Maximum Height (Ft.) Minimum Building Width (Ft.) Total Building Coverage Front Setback Coverage Zone/Use Minimum Lot Requirements Minimum Setbacks Building Bulk Maximum Lot Coverage Maximum Number Of Bedrooms Per Unit11 Minimum Open Space (Sq. Ft.)10 Lot Size (Sq. Ft.) Area/Unit (Sq. Ft.) Lot Width (Ft.) Frontage (Ft.) Front (Ft.) Side (Ft.) Rear (Ft.) Maximum Height (Ft.) Minimum Building Width (Ft.) Total Building Coverage Front Setback Coverage RR-1 Detached single- family, including zero lot line 40,000 40,000 80 50 156 5+22 20 35 203 40%50%n/a 500 Other uses1 40,000 n/a 80 50 20 5+22 20 35 203 40%50%n/a n/a RS-5 Detached single- family, including zero lot line 8,0008 8,000 608 458 156 5+22 20 35 203 45%50%n/a 500 Duplexes 12,000 6,000 80 80 156 5+22 20 35 203 45%50%4 300/unit Attached single- family 6,000 6,000 40 40 156 0 or 105 20 35 203 45%50%4 150 Other uses1 8,000 n/a 60 45 20 5+22 20 35 203 45%50%n/a n/a Detached single- family, including zero lot line 5,0008 5,000 458 408 156 5+22 See note 9 35 203 45%50%n/a 500 24 RS-8 Duplex 8,700 4,350 70 70 156 5+22 See note 9 35 203 45% 50% 4 300/unit Attached single- family 4,350 4,350 35 35 156 0 or 105 20 35 203 45% 50% 4 150 Other uses1 5,000 n/a 45 40 20 5+22 20 35 203 45% 50% n/a n/a RS- 12 Detached single- family, including zero lot line 5,0008 5,000 458 408 156 5+22 See note 9 35 203 50% 50% n/a 500 Duplex 6,000 3,000 55 40 156 5+22 See note 9 35 203 50% 50% 4 300/unit Attached single- family 3,000 3,000 20/287 20 156 0 or 105 20 35 183 50% 50% 4 150 Other uses1 5,000 n/a 45 40 20 5+22 20 35 203 50% 50% n/a n/a RNS- 12 Detached single- family 5,000 5,000 45 25 156 5+22 See note 9 35 203 40% 50% n/a 500 Duplex 6,000 3,000 45 25 156 5+22 See note 9 35 203 40% 50% 4 300/unit Multi- family uses 5,000 Existing4 45 25 156 5+22 20 35 203 40% 50% 3 10/bedroom, but no less than 400 Other uses1 5,000 n/a 45 25 20 5+22 20 35 203 40% 50% n/a n/a n/a = not applicable Notes: 1. Other uses must comply with the standards listed in this table unless specified otherwise in chapter 4, article B of this title. 2. Minimum side setback is 5 feet for the first 2 stories plus 2 feet for each additional story. Detached zero lot line dwellings must comply with the applicable side setback standards in chapter 4, article B of this title. 3. A building must be in compliance with the specified minimum building width for at least 75 percent of the building's length. 4. See the special provisions of this article regarding multi-family uses. 5. See applicable side setbacks for attached single-family as provided in chapter 4, article B, "Minor Modifications, Variances, Special Exceptions, And Provisional Uses", of this title. 6. The principal dwelling must be set back at least 15 feet, except on lots located around the bulb of a cul-de-sac; on such lots the principal dwelling must be set back at least 25 feet. On all lots, garages, both attached and detached, must be set back as specified in chapter 4, article C, "Accessory Uses And Buildings", of this title. 7. Minimum lot width is 20 feet for attached units on interior lots and 28 feet for end lots in a row of attached units. When only 2 units are attached, lots must be 28 feet wide. 8. If the single family density bonus options have been applied, the minimum lot area, lot area per unit, lot width and lot frontage requirements may be reduced accordingly. (See section 14-2A-7 of this article.) 9. The principal building rear setback is 20 feet, except in the Central Planning District and Downtown Planning District, where the rear setback is dependent on the depth of the lot. For lots equal to or less than 100 feet in depth: minimum rear setback = 20 feet. For lots greater than 100 feet in depth: minimum rear setback = lot depth less 80 feet. For purposes of this provision, garages located in the rear yard and attached to the principal dwelling with a (non-habitable) breezeway (8 feet or narrower in width) will be considered detached accessory buildings and, therefore, are subject to the setback requirements for detached accessory buildings, rather than principal building setback requirements. Similarly, subject breezeways shall be treated as detached accessory structures/buildings. 10. Open space must meet standards set forth in subsection 14-2A-4E of this section. 11. Any bedroom within a multi-family, attached single family or duplex that exceeds 225 square feet in size or has any horizontal dimension greater than 16 feet shall count as 2 or more bedrooms, as determined by the City. The maximum number of bedrooms may be further constrained by the provisions of title 17, chapter 5, "Housing Code", of this Code. (Ord. 18-4744, 4-2-2018) 25 January 8, 2025 Board of Adjustment Meeting Discussion on General Criterion – Substantially Diminish or Impair Property Values ITEM 4 ON THE AGENDA January 8, 2025 Board of Adjustment Meeting PRELIMINARY MEETING MINUTES ITEM 6 ON THE AGENDA MINUTES PRELIMINARY BOARD OF ADJUSTMENT FORMAL MEETING EMMA HARVAT HALL NOVEMBER 13, 2024 – 5:15 PM MEMBERS PRESENT: Larry Baker, Nancy Carlson, Mark Russo, Paula Swygard MEMBERS ABSENT: Bryce Parker STAFF PRESENT: Sue Dulek, Parker Walsh OTHERS PRESENT: Ross Nusser, Josh Woolums, Deb Wollard, Bryce Achen, Kyle Martin, Tim Ruth 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 in the meeting. SPECIAL EXCEPTION ITEM EXC24-0004: An application submitted by Staci Humiston of Reach For Your Potential requesting a special exception to allow a daycare use in a Low Density Single-Family Residential (RS-5) zone for the property located at 1839 B Street. (EXC24-0004). Baker opened the public hearing. Walsh began the staff report showing aerial and zoning maps of the property. Reach For Your Potential has an offer to purchase this subject property for use as a daycare for up to 100 children. This property was built in 1960 as a church and has since been used as a fraternal lodge by the Independent Order of the Odd Fellows since 1974. Walsh noted the property was developed prior to its current zoning designation of Low Density Single-Family Residential so there are several legal non-conformities ongoing. The applicant is proposing several site improvements, such as converting the existing drive to one directional, adding a pedestrian connection through the site, adding some landscaping buffers to the parking area, and also adding a new parking area and outdoor play area south of the alley. Walsh next presented the site plan noting the pedestrian connection, the parking area south of the alley, and the screening along the parking and north of the alley. He shared a photo of the property as for what it looks like today pointing out that pedestrian connection that does connect to the entryway and the right of way. The Board of Adjustment is charged with approving, approving with conditions, or denying this application based on the facts presented. To approve the special exception, the Board must find that it meets all applicable approval criteria. The first specific standard criteria required for daycare uses (a) states interior activity areas for Board of Adjustment November 13, 2024 Page 2 of 14 child daycare centers must obtain at least 35 square feet of usable interior floor space per child. There are some exceptions of areas that aren't included, such as reception areas, kitchens, storage areas, offices, bathrooms and hallways. The subject property has about 5,552 square feet of interior floor space use for daycare purposes which could accommodate up to 158 children and the applicant proposes using the subject property for daycare use with up to 100 children. Additionally, the applicant does intend to begin the daycare operations with around 40 children and increase that number over time. Therefore, the proposed use is well below the maximum allowed based on the usable interior floor space. Second, (b) child daycare uses must provide a fenced outdoor play area of not less than 100 square feet per child based on the maximum number of children that will be using the outdoor play area at any given time and the outdoor play area must meet the following standards: (1) playground equipment is not permitted within the front or side setbacks, and (2) outdoor play areas must be well drained, free of hazards and readily accessible to the daycare center. In residential zones, the outdoor play areas must also be enclosed with a four-foot-high fence. Walsh stated the subject property is zoned Low Density Single-Family Residential and all the playground equipment proposed is outside of the front and side setback. The site plan also includes an outdoor play area of around 3,795 square feet, which could accommodate up to 37 children at any one time. The outdoor play area is also enclosed with the required four-foot-tall fence and it's free from hazards. Additionally, this daycare is also within walking distance of the Chadek Green Park. Criteria (c) states the use must provide a drop off/pickup area in a location that is convenient to or has good pedestrian access to the entrance to the facility. This drop off/pick up area must contain sufficient stacking spaces and/or parking spaces to ensure that traffic does not stack into adjacent streets or public rights of way and to promote safe vehicular circulation one-way drives are encouraged. Walsh explained most of the traffic is expected to flow in one direction coming off of B Street, continuing south through the property and then exiting through the alley towards 5th Avenue. He noted the alley is currently unimproved and since the proposed use of a daycare accommodating up to 100 children, which will significantly increase the daily traffic within the alley beyond what is typically expected in a residential alley, staff does recommend a condition that Reach For Your Potential improve the alley to City standards from the west property line to 5th Avenue, which is the shortest improvement route to a street prior to occupancy to ensure safe and sufficient travel through the site. Walsh noted the applicant has reached out to Public Works for cost sharing request and Public Works is willing to grant this request into a 50/50 split on cost sharing and Public Works estimates these improvements to cost around $80,000. Adjacent property owners will also be responsible for all snow clearance, but the City would maintain the paved alleyway surface if it's improved to the City standards. The subject property also has 24 parking spaces, 11 of these being located south of the alley in the new parking area and 13 existing non-conforming spaces that are located along the building, the site also has seven stacking spaces west of the building on a 9-foot wide one direction drive. Walsh stated the stacking and parking spaces are adequate to accommodate the proposed 100 children and 14 staff members, however the final number of spaces will be determined by the staff to children ratios, which could vary over time. The site plan also shows the minimum four bike parking spaces, and the parking and stacking spaces are connected to the building through pedestrian routes. Walsh shared some photos of the existing alley conditions. Criteria (d) states a sidewalk must be constructed connecting the main entrance of the center to Board of Adjustment November 13, 2024 Page 3 of 14 the adjacent public rights of way, pedestrian access must be clearly separated from vehicular circulation areas to minimize the extent to which users are required to walk across drives or aisles to gain access to the daycare center. Walsh stated the subject property has a sidewalk from the main entrance to the public right of way however, there's currently no sidewalk along the B Street right of way near the subject property. The site plan does propose new pedestrian paths with raised curbs through the property along the west and south sides of the building that will help minimize the extent to which users must walk across drives or aisles. Staff does recommend a condition that any new pedestrian routes through the site have a raised curb to help ensure pedestrian safety and separation. Staff also recommends the condition that the outdoor play areas be made accessible by a pedestrian route with a demarcated crossing over the alley. Criteria (e) states if the proposed use is located in a residential zone or in the Central Planning District, it must comply with the multifamily site development standards. Daycare facilities that are accessory uses are exempt from this provision, but this is a primary use daycare, so these standards do apply and this property is located within the Central Planning District. Walsh noted the building and site meet some of the multifamily site development standards, but they don't comply with all standards related to parking lot location and design, parking screening, mechanical equipment locations, and some additional standards laid out in the Central Planning District. However, all existing non-compliant features are considered elements of non- conforming structure or non-conforming development, which does allow a change in use provided the change does not increase or extend the non-conformity. Walsh stated all changes to the site being proposed as part of this special exception do not increase or extend the degree of any non-conformities on site and new site elements will comply with current zoning requirements. Walsh next reviewed the general standards required for all special exceptions. Criteria one is that the specific proposed exception will not be detrimental to or endanger the public health, safety, comfort or general welfare. He stated this is an existing building and site characteristics are well suited for daycare use. Any potential negative impacts due to increase traffic are mitigated, and the proposed use will provide services that are beneficial to the neighborhood. Criteria two states the specific proposed exception will not be injurious to the use and enjoyment of other property in the immediate vicinity, nor will it not substantially diminish or impair property values in the neighborhood. Walsh explained the proposed daycare use will primarily be in the existing building and the outdoor play areas are relatively small and set back and screened from the adjacent properties, which will help mitigate some of these noise impacts. Additional traffic is likely to be generated by the proposed use during business hours but the proposed traffic flow, site layout and recommended conditions will help to mitigate any potential negative impacts. The new parking area south of the alley is adequately set back and screened from abutting uses and staff does recommend that the new S2 screening be required along the property lines of the existing parking areas, as well as a condition of approval to align the property with the current zoning standards. Third, 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 district which such property is located. The surrounding neighborhood is already a fully developed residential neighborhood and this building has been in place since 1960. Additionally, it will provide beneficial services that will not substantially impact the development or improvement of Board of Adjustment November 13, 2024 Page 4 of 14 surrounding property, and conditions are intended to mitigate any potential negative effects on surrounding properties. Fourth is that adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided. Walsh stated all utilities, access roads and necessary facilities are already established. However, since it is also anticipated that the alley will have a significant increase in vehicle use, and the increased traffic through the alley is expected to accelerate alleyway deterioration without improvements, a condition of improving the alley to City standards is recommended. This would provide a paved surface maintained by the City for the life of the pavement that is capable of accommodating the additional traffic volumes. If this alley is left unimproved, the alley would require significant ongoing maintenance from the adjacent property owners and an alley that is not adequately maintained can result in surfaces that are difficult to use or even cause vehicle damage due to potholes, uneven surfaces and other unmaintained situations. The conditions proposed are intended to help infrastructure that can handle the increase in traffic volumes. Criteria five is that adequate measures have been or will be taken to provide ingress or egress designed to minimize traffic congestion on public streets. The front of the site is accessed from B Street and the rear is accessed from the alley that enters and exits on to Garden Street or 5th Avenue. Most traffic is expected to flow in one direction, coming from B Street, continuing through the property and exiting east through the alley towards 5th Avenue. Some staff and drop off traffic will utilize the alley though to access the parking located south of the alley and north of the alley so staff does recommend a condition of approval that "Do Not Enter" signage and one way pavement markings be placed to direct traffic through the site. These conditions will ensure that the alley is improved to accommodate the increased traffic and can handle the anticipated future traffic volumes prior to occupancy of the site. No changes are proposed to the existing street or drive on the portion of the property north of the alley, other than adding the pedestrian routes to this site and new landscaping buffers. The new parking area on the portion south of the alley does comply with the current standards as proposed. Criteria six states 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. Walsh stated this subject property is in a single-family zone and some of the elements that do not meet current standards may continue as legal non-conformities. Other elements of the site will be brought into compliance with current standards due to the proposed conditions such as landscape buffers along property lines. Staff will ensure that all new elements and any future changes comply with relevant standards during the building permit and site plan reviews. Lastly, criteria seven states the proposed exception will be consistent with the Comprehensive Plan. Walsh noted the Future Land Use Map of the Comprehensive Plan does designate this area as residential and the Central Planning District designates this area as private institutional. The Comprehensive Plan generally supports providing goods and services within convenient walking distance for residents in the immediate area. The proposed exception would convert a religious/private group assembly use to a daycare use, both of which are classified as private institutional uses and are consistent with the City's Comprehensive Plan. Staff recommends approval of EXC24-0004, with an expiration timeline of 12 months to allow enough time to receive approval of the site plan, alley improvements, and secure a building permit, Board of Adjustment November 13, 2024 Page 5 of 14 to allow a daycare use in a Low Density Single-Family Residential (RS-5) zone for the property located at 1839 B Street, subject to the following conditions: 1. Prior to issuance of a certificate of occupancy: a. Improvement of the alley to City standards from the western property line east to 5th Avenue. b. Development of a pedestrian path with a demarcated crossing over the alley from the building to the play area, subject to review and approval by the City Engineer. 2. Any new pedestrian routes through the site that directly abut parking areas shall be separated by a raised curb or barrier that is a minimum of five inches (5") in height. 3. Provide screening to the S2 standard between parking areas and adjacent properties along the east and west property lines as shown in the site plan. 4. Provide "Do Not Enter" signage and one way pavement markings to direct traffic through the site. Swygard asked about the staff report which talks about existing site development that's currently non-conforming, which is legally allowed to continue and he noted there are unshielded outdoor flood lights on the building that do not conform to current Iowa City standards, and that those would be allowed to remain under this proposal. Walsh confirmed that was correct unless the Board made a condition that they be brought into compliance. Baker noted the Board sent a letter last December to Council regarding the sidewalk paving, did Council respond to this or act on that letter. Walsh noted that yes, Public Works surveyed the neighborhood and they were opposed to a sidewalk along B Street, so the City has focused their efforts now along Friendship Street, where there are a few remaining gaps on the north side. Friendship Street is located just south of B Street, but there are no plans for a sidewalk along B Street at this time. Therefore, it is not part of this review as Public Works determined that the neighborhood did not want a sidewalk there, but the parts of the sidewalk that they are putting in on Friendship Street the City is paying for. Ross Nusser, (Urban Acres Real Estate) is representing Reach For Your Potential and they are requesting that the Board of Adjustment approve the special exception without being subject to the conditions 1A and 1B, as well as 4, as recommended by the city of Iowa City for the following reasons. The first reason is the improvements to the alleyway are a source of controversy within the neighborhood, as evidenced by the Good Neighbor meeting, as well as communication between the civil engineers and Iowa City Council member Josh Moe. Reach For Your Potential is exploring other circulation options for the front of the building that would eliminate the need to improve the alleyway but needs more time than contractually possible to further explore this option. Reach For Your Potential needs approval of the special exception tonight to stay within the bounds of their contract to purchase the property located at 1839 B Street and if the front of the building circulation is not possible, Reach For Your Potential will install the alleyway as proposed by the City Engineer as the alternative demarcated paths included. Reach For Your Potential learned some information tonight staff was sharing so some of their presentation is a little outdated but Reach For Your Potential had started discussions with the City Engineer regarding potential a cost sharing agreement for the alleyway however, the City Engineer at previous point would not commit to any agreement prior to this special exception being approved, which is in part why Reach For Your Potential is exploring the front Board of Adjustment November 13, 2024 Page 6 of 14 loaded circulation as an option. Nusser noted there is no code justification for requesting the improvements to the alleyway, rather it is being recommended per engineer’s judgment. Reach For Your Potential is appealing to the Board of Adjustment for pragmatic and common-sense judgment. Reach For Your Potential and the city of Iowa City are both benevolent organizations who will be able to reach a mutually agreeable solution to this issue, but this project could potentially be needlessly hindered by attaching conditions 1A and 1B and 4 to the special exception. Carlson asked if the City was the one who said that they needed to do the exit on the alleyway and entrances on B Street. Nusser confirmed that was the City's idea. Carlson asked if they discussed what a residential alley usually means and how many residential alleys are there in Iowa City that are paved. Nusser replied that was not discussed and he is not aware of any other residential alleys in Iowa City that are paved. Carlson wondered how much traffic a neighbor can expect to have on an alleyway. Nusser replied in general he is not sure how much traffic a neighbor would be able to expect to have on an alleyway but to elaborate a little bit of the concern that occurred during the Good Neighbor meeting is this property is located very close to City High School and the concern was that improving the alleyway could result in it becoming a speedway, particularly if the alleyway was improved the entire duration. The alleyway is not being proposed to be improved the entire duration, but those were concerns from the neighbors at the meeting, as well as someone who reached out to council member Moe. Carlson noted the childcare center would use the alleyway as a means of egress to get out. Nusser explained the childcare center could do one of two things, they would either work with the City to figure out how a front loaded circulation would work out, in which case the alleyway would not be used as that primary route, or if the front loaded circulation did not work, then they would go to the alleyway and they would work with Public Works to improve that alleyway condition. Carlson noted it states that the neighbors on the alleyway will be responsible for clearing the snow in the wintertime and it will be a joint cost for all the people on the alleyway. Nusser will let Josh Woolums with Reach For Your Potential speak to that but although that may be what is expected practically if Reach For Your Potential must improve the alleyway then they would maintain the snow path because they're the primary users of that alleyway. Carlson stated probably up until this time that alleyway has not been clear to snow in the wintertime, as oftentimes residential alleyways are not cleared in the wintertime. Nusser agreed noting it would be onerous to the people who have lived there to take on an additional improvement without having consent on it. Carlson noted it was stated that “Do Not Enter” signage and one-way permanent markings would be on the alleyway from the edge of the property to 5th Avenue. Nusser believes so, but that is one of the conditions that they're asking that the Board not to include. Carlson stated then in that case the landowners on the alleyway could only get to their property by driving through the Reach For Your Potential property from B Street and turning and going down to 5th Avenue if it's all one way. Currently there is one house on the very corner of the exit of the alley right now on 5th Avenue that has this garage behind it and with this type of setup, in order to use their garage, would they have to enter the parking lot on B Street, drive through the Reach For Your Potential parking lot, drive all the way down the alley just so they could park in their garage. Nusser stated they could also enter through Garden Street as the alleyway connects to both 5th Avenue as well as Garden Street. Carlson stated that would still require them to start at the other end of the alley and drive a whole block to get to their garage. She noted there is another Board of Adjustment November 13, 2024 Page 7 of 14 property on Friendship, although there is a fence behind it and a grassy area that's probably 10 feet wide, where there are cars parked and those people would also have to do the same thing. They would not be able to go into the driveway from 5th Avenue they would either have to go through the Reach For Your Potential parking lot or start at the other end of the street and drive one block down to where they want to park. Walsh clarified the proposed condition, the one-way pavement markings and “Do Not Enter” signage are for the Reach For Your Potential property only, other users of the alley could go up and down that alley either direction, it's two way traffic, only on the Reach For Your Potential lot would it one-way traffic, staff is not proposing a condition to make that alley one way. It would be on the Reach For Your Potential parking lot where one would drive in from B Street to unload the children and then would go on to the alley way behind the building. Once they got onto that section of the alley between the building and the play area there could be traffic coming from the either direction or they could go in either direction. The condition is proposing to improve the alley on the shortest distance to a street which would be towards 5th Avenue, but a person can continue to drive either way. Swygard asked for clarification on what front loading is. Nusser explained right now the alleyway is fairly unimproved. Front loading would be the addition of some sort of circular drive where they wouldn't need the alleyway for circulation. They had just sent a plan out earlier today to the City, and there was not enough time for them to circulate because it was earlier today, but it would essentially allow people to not have to access that alleyway as a means of egress out from the site, except for the rear parking spaces. So when people are coming to drop off their children they would be dropping them off in the front of the property, as opposed to the rear of the property. Swygard asked if then the stacking spaces along the side of the building, along current drive, would not be used as stacking spaces. Nusser confirmed that was correct. Carlson noted they stated they were going to start with 40 kids, what is the probability of each of those children being dropped off one at a time in one car, therefore having 40 cars at the location. Josh Woolums (Financial Director, Reach For Your Potential) stated they're starting off right now with employee only, so most employees will have maybe two to three kids. For the first year they are anticipating just being open to staff and then growing it from there but will work the kinks out. Therefore, he would assume probably in the beginning no more than five cars at a time. The staff using the facility will have different shift needs and so the drop off times would vary between 8:00 to 10:00 in the morning, and the next time wouldn't be until probably after school hours about 3:00pm. Pickups would also depend on shifts, but he anticipates most people being dropped off in the morning between that 7:30 to 8:00 window, and then probably picked up by 5:00 to 6:00 in the evening but are thinking at this point being open to 8:30pm as some shifts might end at 8:00pm. Again, they're trying to accommodate their staff more than anything else at the moment and it would probably be two or three families, maybe four families, there at that single time. Baker asked for clarification why they are requesting to delete the conditions 1A, 1B and 4. Nusser stated if they are able to get the front-loading proposal approved with the City they would not need the alley for access, just for the rear parking. He stated there are a couple things going on right now. One is that for Reach For Your Potential’s contract on this building and tonight is the deadline for approval or disapproval, but that's not to say that an extension Board of Adjustment November 13, 2024 Page 8 of 14 couldn't be requested. They have gone back and forth with the City over the past month on this but hadn’t quite worked everything out, but what they are saying is they will make sure any scenario will work for everyone, including the neighbors, they just want to be able to explore if the front-loading option is the best option for the neighborhood, if that's not the best option and it seems appropriate to do the alleyway, they would do that. Baker noted the Board has to be very specific in their approvals that either Reach For Your Potential is going to reach an agreement with City staff on front loading within a certain period of time, or are obligated to improve that alley. Dulek noted ideally they'd want to defer it but understands the legal constraints and it's difficult when they don't have a site plan present to review regarding what the front-loading looks like and what that will that do with traffic and with the entrance and the parking and so on and so forth. Baker asked what if they worded this prior to issuance of certificate of occupancy they added a C, negotiation with City staff for front loading option must be achieved or settled, or else A and B kick in. Dulek stated they really have to ask themselves if they don't have a site plan in front of them that they can review with regard to parking or with regard to traffic, is that acceptable. That is the Board’s decision, but they certainly have the option of continuing the public hearing. Baker doesn’t know how that affects the negotiations for their contract, but he doesn’t sense the Board being comfortable approving just a blanket removal of the alley option and not having the opportunity to see the alternative. Nusser agrees and doesn’t think that the removal of the alley option is something that they're wanting altogether, it’s just something that could easily happen here. If it were to be continued, it might not be continued and might be the stop of the project as a whole. A similar application, for a different daycare facility, came before the Board of Adjustment last year around this time. He noted they held the Good Neighbor meeting and were trying to be responsive to public comments on this as well, and to be good neighbors to this neighborhood. This building has existed since 1960 here, and tonight's the first night that they've heard that Public Works will commit dollars to this alleyway, prior to this the whole cost of the alleyway was going to be on Reach For Your Potential, which is why they were looking at other options. This is a daycare facility for employees so that they can serve the community at Reach For Your Potential and prior to getting a commitment from them it was very difficult to make any sort of decision and they were having to look at cost saving measures to make this project a practical reality. If they had known prior to tonight that the City Engineer was indeed willing to contribute in the cost sharing, they would have been able to have that discussion, but as recently as Monday when they last spoke with the City they were non-committal, which is why they are asking for this other option. Dulek noted certainly the Board doesn't have to continue it for a month, they could try to do it for a shorter period of time. She certainly can't speak for the seller, but presumably there would be an extension for a shorter period of time. So if the Board wants to continue the public hearing and defer the hearing, they don't have to wait for the December meeting, they could decide on another evening that they would be available if that's what the Board chose to do. Nusser stated he would imagine that if they were forced into the decision tonight, they would probably go with the City recommendation for the alleyway but he doesn’t think the neighborhood wants that so allowing the opportunity to explore the other option and not put Board of Adjustment November 13, 2024 Page 9 of 14 Reach For Your Potential or the neighborhood in a difficult position is what they're trying to achieve. Baker is sympathetic to that but wondered if they approve this tonight with the conditions suggested by the staff, is the applicant allowed to come back and ask for another variance or exception to reevaluate this decision after they've figured out the front-loading issue. Dulek replied they could. Russo noted the conditions stated prior to issuance of a certificate of occupancy, which is way down the road, so are they a little premature here in all of this. Deb Wollard (513 5th Avenue) lives right on the alley and has two issues, the traffic was one of them as the traffic down the alley is really busy every day already. She would like to see the roundy round thing where they drop people off. She is just concerned about turning the alley into a one-way thing because kids ride their bikes down the alley. Also, 5th Avenue is the City High speedway, not the alley. She has been wanting something to happen with that building and it would be nice to see a tenant in there or an owner using that space. She has been in there for soup kitchen dinners and it's a nice space, but the traffic issue is something that she is a little concerned about. Baker asked if her concerns would mitigate if the paved alley had a couple of speed bumps to slow down the traffic. Wollard questioned if that really helps. Russo noted the entire alley is not changing to one-way correct, it'll be two way, just the people entering from the daycare can only come from one direction. Wollard noted from the Odd Fellows building to Garden Street, the alley is a mess, it's full of potholes and ruts, and it is really in bad shape. Russo noted by statute that's property owners’ responsibility. Wollard doesn’t know the rules, she doesn’t even use the alley and wouldn't want to take responsibility for the little bit of alley that's next to her house. Walsh stated the City will only maintain the surface if it is improved to City standards. Wollard wishes they go down there and look at that last part of the alley. But she just wanted to stress the traffic is a concern for her because the neighborhood has a lot of kids. Russo asked if they do their due diligence and investigate all the possibilities of a different access point, some sort of a loop drop off from the front side of the building, and it proves impossible, and they purchased the property, they then have to develop the alleyway. Is the Board putting people in a further bind here because of this. Wollard doesn’t know because she doesn’t use the alley, she wishes that the people who do use the alley would have shown up today so they could give their say. She wasn't even aware of the neighborhood meeting, but she did get the letter for this meeting so she came. Carlson asked how long she has lived in her house. Wollard replied she bought her house in 2005 so almost 20 years, and this is the major investment for her lifetime, unless she moves someplace else. She did want to reiterate that she would like to see a tenant in that building and have that building be put to good use as it’s just sitting there. Russo asked when they developed this concept was any consideration given to front loading Board of Adjustment November 13, 2024 Page 10 of 14 this or was that developed after they discovered there might be difficulties with the alleyway. Nusser stated last year when the Board of Adjustment approved this application, they approved it with the improvements of the alleyway so they were going under that assumption when they had spoken to City staff. They talked with staff about how that standard and the different types of surfacing for the alleyway and the 7-inch concrete for the alley. They then held the Good Neighbor meeting and it was at that Good Neighbor meeting, maybe two weeks ago, where they heard concerns similar to what was being voiced today about the alley. So in their original submission they had shown that alleyway being improved but it was after the Good Neighbor meeting that they changed the site plan on the application to remove the alleyway improvement. Russo asked when the Board approved it last year did it include a requirement to approve the alleyway and bring it up to City standards. Walsh replied it did, it has the same conditions that are here tonight. Walsh reviewed the minutes and there was no discussion of an alternative surface at that time. Baker noted the front-loading option seems just in terms of safety and convenience, more logical for a project like this. Walsh stated he did review what the applicant sent over this morning and there are some notable concerns, mainly the multifamily site development standards apply to this property and that does not allow any parking between the front of the building and the street, so that loop does not meet the standards. Because the loop drive is required to have stacking spaces those are considered parking spots and cannot be between the front of the building and the street. They can also not extend into the right of way, which again just looking off what he saw this morning, the stacking spaces were within the right of way and did not meet City Code. Carlson stated they’re already dealing with a special exception and just because that's not what is done in other places they are here to try to figure out how to get something that will work for all the people in the neighborhood. The applicant wants to put in a childcare center, which is a wonderful thing, but also the neighbors have their concerns. Dulek reminded the Board that they are to look at the standards and the question is whether the specific and the general standards have been met, that's what they need to concentrate on. Baker noted they cannot determine whether some sort of front-loading option meets any standards, because they don't have the option in front of them. Dulek stated that was correct. Russo asked if they could extend the purchasing contact a week out with this seller to get some of these things resolved. Nusser stated it is certainly something that they could request from the seller but it is not something that they could have a guarantee of getting granted from the seller. He stated again the preference would be if they aren't afforded the time to look into this option, they'd like to go ahead with City staff recommendation. Baker stated the Board appears very amenable to a different option, but it's not in front of them, except in a concept. Therefore, what they have to do is either accept, reject or amend this proposal. He is not averse to amending this proposal right now and changing them in the future if they had an alternative he is amenable to but they don't have an alternative right now. Walsh stated he does have the concept the applicant submitted this morning he could share with the Board if that information could be shared at this time. Dulek stated the Board just has Board of Adjustment November 13, 2024 Page 11 of 14 to decide whether that's sufficient. All they have is initial staff comments on something that was submitted this morning, so whether they want to make a decision tonight, want to hold the public hearing open and defer it for a short period of time on the hope that they can get an extension on the purchase agreement, or go forward this evening, those are the options. Baker noted again the Board could approve this based on the staff recommendation and then could amend this in the future if they come back and make an application. Dulek confirmed that was correct. Swygard has a question that's not related to these conditions about the outdoor lighting that's currently unshielded with flood lights, are there are any plans to bring those up to code. Bryce Achen (McClure Engineering) is the civil engineer that's assisting the applicant. He stated there's been no research done into the existing exterior lighting but that could be a condition that's put on this but currently for this application there were no standards that needed to be met in regard to exterior lighting. Kyle Martin (President and Principal Architect, Martin Gardner Architecture) is the architect for this project and with regards to the lighting they are adding a variety of additional egress exiting out of the building, which will require new emergency lighting and things like that would have to comply with zoning code. They are also likely to replace the older flood lights as well to comply with any local zoning codes and also to match whatever new lighting is placed on the building. Swygard asked however if there are plans to replace the lighting that is currently there along the eaves that are not egress lights, for example the one on the park side of the building, there's a flood light that shines down into the house right next door. Martin confirmed all site lighting will be addressed, particularly if due to pick up and drop off of children and youth at potentially dark hours so they will certainly look at that as they move forward. Baker stated the Board needs to decide whether or not they want to defer this or vote on it as presented. His preference would be to vote on it as presented but is open to any other discussion. Carlson stated she is really nervous about this, she has asked a lot of questions but she went over and drove around that alleyway and those streets yesterday afternoon. She spent an hour over there, and because their job is to make sure any potential negative impacts due to increased traffic is mitigated, she would hope there's a better solution and doesn’t feel comfortable with this. She lives in a neighborhood where they have an alleyway that is used as a street so she knows what it's like when there is lots of traffic on an alleyway. She is hoping they can find a way to deal with this in a way that they have more winners than losers, so she doesn’t want to vote on this, and if she did vote on it, she probably would not vote for it. Baker stated the question right now is do they have a consensus on the Board to defer or to go ahead and vote on the application as presented. Swygard noted the applicant has stated that rather than defer, they would rather go ahead and have us approve the current staff recommendation and the conditions so she would not be in favor of deferring. Board of Adjustment November 13, 2024 Page 12 of 14 Russo noted the applicant went through all the motions to educate the public, and held a Good Neighbor meeting, etc., and there's only one party here tonight to voice exceptions so this has been announced, it's been legally advertised, and if an abutting property owner were really concerned about it, they would be here tonight. Tim Ruth (910 Willow and 1748 Dickinson) owns all the empty lots on Dickinson Street down on the south end that he leases to Reach For Your Potential, he has a daughter that is a client of Reach For Your Potential and his wife is on the board of directors, so they are connected. He would like to stress the need for this facility. They get calls in the evening that there's no staff at their daughter's house because they can't get daycare, there’s an immense need for this facility so they can draw a better quality of staff, because they offer daycare as a benefit. This is a really needed thing, and they keep kicking the can down the road, and not going to get it done. With the immense need of special needs adults having safe housing, comes staff, and the lack of staff, everybody knows how hard it is to hire anyone. This will benefit so many of the staff members and they'll get better staff and more staff. The need is very immense, and yes, it's going to take time to develop this, but he would much rather, as a property owner in Iowa City, see a business that wants to do something for their employees, be able to put in a daycare center in an empty building that frankly is an eyesore, and knowing what Reach For Your Potential will do to this building, it's going to be a very good addition to the community. So that's something that really needs to be talked about. As for the alley, maybe somebody ought to talk to the City about why do they need a 7-inch concrete alley on 6-inches of rock serving the back of a building that is a daycare. And the cost from the City was $80,000 but he can put a cost on it of under $30,000 if it was done by a private business. What he is getting at is please approve this so they can move forward and get this going because every day they don't have a daycare, they might lose a good staff person and that's it's so important right now. Reach For Your Potential is a pillar in this community, his daughter has lived there since she was 21 years old and she is now 41. Baker closed the public hearing. Russo moved for approval of EXC24-0004, with an expiration timeline of 12 months to allow enough time to receive approval of the site plan, alley improvements, and secure a building permit, to allow a daycare use in a Low Density Single-Family Residential (RS-5) zone for the property located at 1839 B Street, subject to the following conditions: 1. Prior to issuance of a certificate of occupancy: a. Improvement of the alley to City standards from the western property line east to 5th Avenue. b. Development of a pedestrian path with a demarcated crossing over the alley from the building to the play area, subject to review and approval by the City Engineer. 2. Any new pedestrian routes through the site that directly abut parking areas shall be separated by a raised curb or barrier that is a minimum of five inches (5") in height. 3. Provide screening to the S2 standard between parking areas and adjacent properties along the east and west property lines as shown in the site plan. 4. Provide "Do Not Enter" signage and one way pavement markings to direct traffic through the site. 5. Outdoor lighting is brought up to City of Iowa City lighting standards. Board of Adjustment November 13, 2024 Page 13 of 14 Swygard seconded the motion. Swygard noted this is obviously difficult, but she strongly believes that the flood lights need to be addressed, just as in the previous application, and would like to add that to the conditions that the outdoor lighting must comply with current Iowa City lighting standards. Russo amended the motion to add a condition, Swygard seconded. Swygard stated regarding agenda item EXC24-0004 she does concur with the findings and conditions set forth in the staff report of meeting date, November 13, 2024, and concludes that the general and specific criteria are satisfied, including the required indoor and outdoor spaces, the stacking spaces, the parking spaces, construction of the sidewalk from the main entrance to the public right of way. She does find that there is an exception in that the outdoor lighting is not up to current standards, which has been added as a condition. So unless amended or opposed by another Board member she recommends that the Board adopt the findings and conditions in the staff report for the approval of this exception. Russo seconded the findings. Carlson is concerned about whether the City has dealt with the negative effects of the increased traffic as well as could be done. A vote was taken and the motion passed 3-1 (Carlson dissenting). 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. CONSIDER AUGUST 22, 2024 MINUTES: Swygard moved to approve the minutes of August 22, 2024. Russo seconded. A vote was taken and the motion carried 4-0. CONSIDER OCTOBER 10, 2024 MINUTES: Swygard moved to approve the minutes of October 10, 2024. Russo seconded. A vote was taken and the motion carried 4-0. BOARD OF ADJUSTMENT INFORMATION: Walsh stated the resolution to amend the bylaw procedures was adopted by City Council and was included in the agenda packet. ADJOURNMENT: Carlson moved to adjourn this meeting, Russo seconded, a vote was taken and all approved. Board of Adjustment November 13, 2024 Page 14 of 14 BOARD OF ADJUSTMENT ATTENDANCE RECORD 2023-2024 NAME TERM EXP. 4/12 4/19 5/10 6/14 7/12 11/8 12/13 3/13 4/10 8/22 10/10 11/13 BAKER, LARRY 12/31/2027 X O/E X X X X X X X X X X PARKER, BRYCE 12/31/2024 X O/E X X X X X X X X O/E O/E SWYGARD, PAULA 12/31/2028 X X X X X X X O/E X X X X CARLSON, NANCY 12/31/2025 X X X X X O/E X X X O/E X X RUSSO, MARK 12/31/2026 X X O/E O/E X O/E X X X X X X Key: X = Present O = Absent O/E = Absent/Excused -- -- = Not a Member