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HomeMy WebLinkAbout2012-08-09 Info PacketCITY COUNCIL INFORMATION PACKET CITY OF IOWA CITY August 9, 2012 Au www.icgov.org 9 IN Council Tentative Meeting Schedule MISCELLANEOUS I132 Copy of memo from Water Supt. to Public Works Dir.: Drought — Iowa City's Water System DRAFT MINUTES IP3 Board of Adjustment — July 11, 2012 r .-� - City Council Tentative Meeting Schedule IP1 August 9, 2012 CITY OF IOWA CITY Subject to change Date Time Meeting Location l I� r 75- �Ilmti ' nl�i����ii i�i�� i�I) ,� ( a i�� , �p "�" .? _ �`-�r a,i "- °� .') �I a) II it it iiii�i� ti qq r."-.N D Tn E xh'm1. Monday, August 13, 2012 12:30 PM Special Formal Meeting Emma J. Harvat Hall Tuesday, August 21, 2012 5:00 PM Work Session Meeting Emma J. Harvat Hall Tuesday, August 21, 2012 7:OO13M Regular Formal Meeting Emma J. Harvat Hall 4§W"1'N+ Ip II II Ind fl °I ICJ =r n% IM" I ,,r 1 WI4T "i VIII, �1.p;t1, N ;�� IIII IIh �I III F4LgreA'" -nJl pI 4a aIp�I1 s � l iIM II�a11�I ➢ ill w II IU,a�h " Tuesday, September 4, 2012 5:00 PM Work Session Meeting Emma J. Harvat Hall Tuesday, September 4, 2012 7:OO13M Regular Formal Meeting Emma J. Harvat Hall Tuesday, September 18, 2012 5:00 PM Work Session Meeting Emma J. Harvat Hall Tuesday, September 18, 2012 7:OOPM Regular Formal Meeting Emma J. Harvat Hall ' -# I �1 1'�'����� � �N °� ;, 7 ti ss i( � 14�I I����io m y ( b q �� ��y ' x�1hti�I(llar �� G "�Io.i . � ._;�., Tuesday, October 2, 2012 5:00 PM Work Session Meeting Emma J. Harvat Hall Tuesday, October 2, 2012 7:OOPM Regular Formal Meeting Emma J. Harvat Hall Tuesday, October 23, 2012 5:00 PM Work Session Meeting Emma J. Harvat Hall Tuesday, October 23, 2012 7:OO13M Special Formal Meeting Emma J. Harvat Hall ili 1 Ix L�y1'IfF (i�tl�i �d;1 lil iI, Tuesday, November 13, 2012 5:00 PM Work Session Meeting Emma J. Harvat Hall Tuesday, November 13, 2012 7:OO13M Special Formal Meeting Emma J. Harvat Hall Tuesday, November 27, 2012 5:00 PM Work Session Meeting Emma J. Harvat Hall Tuesday, November 27, 2012 7:0013M Special Formal Meeting Emma J. Harvat Hall 7 ( (!'� Y 't V,. "III) AN, " " "�"��I °. (���!I�i I��i --N r I9 I`r'+(I k," "Vi N1 "I�`" ' ` _ Tuesday, December 4, 2012 5:00 PM Work Session Meeting Emma J. Harvat Hall Tuesday, December 4, 2012 7:OO13M Regular Formal Meeting Emma J Harvat Hall Tuesday, December 18, 2012 5:00 PM Work Session Meeting Emma J Harvat Hall Tuesday, December 18, 2012 7:OO13M Regular Formal Meeting Emma J Harvat Hall CITY OF IOWA CITY M MEMORANDUM Date: August 9, 2012 To: Rick Fosse, Public Works Director From: Ed Moreno, Water Superintendent Re: Drought — Iowa City's Water System Introduction The intent of this memo is to share the current and potential impact of the drought with respect to the Iowa City water system. History /Background The last memorable drought experience in Iowa City occurred in 1988 and 1989. At that time the Iowa City water system was comprised of an antiquated water treatment plant, whose primary source was the Iowa River. Due to the heavy organic load from algal blooms in the Iowa River, treatment was challenging as water demands were high. The Corps of Engineers reduced the flow from the Coralville Reservoir to 150 cubic feet per second (cfs) and then eventually to 75 cfs. The difficulty meeting the demands and water quality standards required that water conservation requests be made of the Iowa City users. The drought conditions were the source of water quality violations in 1990 and 1991 for nitrates, total trihalomethanes, and turbidity as well as taste and odor complaints. Impact of the Drought of 2012 Lessons from the 1988 -1989 drought and the flood of 1993 were incorporated into the design and construction of the new water treatment plant, which went on line in 2003. Our water system has multiple raw water sources which include the Iowa River, alluvial collector wells, Silurian aquifer wells and Jordan aquifer wells- as well as the sand pit in the Water Works Prairie Park site. The new plant is designed for treating these different sources of water blended together and /or individually through lime softening and granular activated carbon filtration. The water system's distribution system was also improved in conjunction with the 2003 upgrade. The overall capacity of both the raw water sources and treatment plant capability was also increased. Community water demands increased from early May to the present. The attached graph shows the 5 -year average daily pumpage comparison with that experienced this year. The highest pumpage ever recorded since the new plant was put on line occurred on July 24th at 8.6+ million gallons. At this time we are operating comfortably within our treatment capacity. Our water treatment plant process is performing well. Our primary source water is from collector wells. The Iowa River and a Jordan aquifer well are contributing 15% to 20 %, depending on the demands. We are not using Silurian aquifer well water. August 9, 2012 Page 2 Outlook for the Iowa City Water System A July report from FEMA Region VII: Drought Analysis — Summer /Early Fall 2012, projects drought conditions to persist or intensify for our region through early to mid -Fall. The Corps of Engineers has reduced the flow from the Coralville Reservoir to 140 cfs. With continued drought conditions inflow to the reservoir will continue to decrease. Well levels are 18 ft. to 25 ft. less in the Silurian aquifer, 20 ft. less in the Jordan aquifer, and 3 to 8 ft. less in the alluvial aquifer, as compared to last year. Many communities, including Des Moines, Coralville and several rural water districts have initiated voluntary conservation requests with mandatory planned if necessary. An Iowa Homeland Security and Disaster Management, Drought Coordination meeting was held on Friday, August 3rd, to discuss the impact of the drought on water supplies in Iowa. Professional water associations are organizing similar initiatives to help communicate the situation in Iowa and facilitate planning for water system aid and conservation education. We will continue to monitor aquifer levels and river flows for our raw water sources and adjust our blend and treatment process to meet the demands of Iowa City. An increase in demand is expected when the University of Iowa school year begins in late August. Due to the lack of moisture in our soil and subsequent ground shifting, we experienced a record number of main breaks in July, 13 breaks versus the previous high of 5 breaks. If the drought persists as predicted we are anticipating more main breaks this year than in the recent past. Past records show the number of main breaks increased significantly during the 1988 - 1989 drought. Water quality is good and only minor changes have been experienced due to the different sources being used. The good planning and designed water system improvements that went on line in 2003 have been very beneficial during the drought thus far. cc: City Council i 2012 Daily Pumpage Comparision 12.0 11.0 10.0 9.0 = -- 8.0 rr. -. To Distribution 7.0 — - It - — 5- YearAve. 6.0 — Raw Water 5.0 —Previous Record 8/22/2011 4.0 3.0 CL a a CL m ns a a g g c 3 bn a 0o a a a CU a) d a En Ln 0) Cn OC N N Ln (n Ln 0) N lD O r-i rI N r r-I M 30 25 0 a20 D CL 15 c� aD op 10 c .0 5 L Main Breaks 2004 -2012 (2012 Jan - Aug) +2004 -A 2005 + 2006 X 2007 W 2008 -0-2009 -0-2010 —2011 —2012 IP3 MINUTES PRELIMINARY BOARD OF ADJUSTMENT JULY 11, 2012 — 5:15 PM CITY HALL, EMMA HARVAT HALL MEMBERS PRESENT: Larry Baker, T. Gene Crischilles, Brock Grenis, Caroline Sheerin MEMBERS ABSENT: Will Jennings STAFF PRESENT: Sarah Walz, Doug Boothroy, Gerald Denning, Sarah Holecek OTHERS PRESENT: Robert Wetherell, Michael Pugh, Marc Moen RECOMMENDATIONS TO CITY COUNCIL: None. CALL TO ORDER: The meeting was called to order at 5:15 PM. ROLL CALL: All were present. A brief opening statement was read by the Chair outlining the role and purpose of the Board and the procedures that would be followed in the meeting. CONSIDERATION OF THE JUNE 13TH MEETING MINUTES: Grenis moved to approve the minutes for June 13th, 2012. Baker seconded. A vote was taken and the motion carried 4 -0. APPEAL APL12- 00001: An application submitted by NCS Pearson to appeal a decision of the Iowa City Housing & Inspection Services Director denying a building permit on the grounds that a proposed 145 -foot wind turbine is not an accessory use in the Office Research Park (ORP) zone. Walz said that the most recent brief from the appellant suggests that Pearson has been singled out for denial of the use. She said she wanted to make clear that this is not true. She said over the past three or four years the Planning and Zoning Department has received occasional inquiries about wind turbines for both residential and commercial and industrial zones. She said Board of Adjustment July 11, 2012 Page 2 of 14 they had requests from Proctor and Gamble and United Foods to install large turbines on their properties, and in each case they were informed that staff did not believe this was allowed by the Zoning Code, and they would need to seek an amendment to the Code. She said in this case there was an error communicated by a Building Inspector who said a turbine would be allowed. She said the appellant was subsequently denied a permit by the Director of the Building Department. She said staff is now drafting an ordinance to allow wind turbines at this scale. Walz said the question at the heart of this appeal is not whether or not Iowa City should support wind energy systems, but rather a reasonable interpretation of the Zoning Code as it is currently written indicates that this is already permitted. She said the Genera Criteria referring to accessory use in the Code say: accessory uses, buildings or structures, customarily incidental to and commonly associated with a permitted use, provisional use or special exception, are permitted PROVIDED they are operated and maintained to the following standards:" She noted that the appellant refers to standards A -E. She said that in staffs interpretation Criteria A -E do not stand apart from the first part of the paragraph. An accessory use must first be customarily incidental to and commonly associated with the principal permitted use and then must also meet the criteria listed in A -E. She said the Accessory Use chapter in the Code goes on to enumerate all kinds of uses that are accessory uses and conditions that go along with them and provides regulations on how they are sited and maintained. Walz explained that in evaluating whether a use is accessory or not, staff first asks if the proposed use is commonly associated with an office use or other comparable uses in the zone, and in staff's opinion, in this case it is not. She said staff then goes on to ask whether there is another use in the accessory use category that the structure or use could reasonably be categorized under. She said probably the closest in use in this case is the mechanical structures, but the regulations limit the size and require screening such that a 145 foot tower doesn't fit into that category. She explained that the wind helix at the City's environmental education center does fit into that category and abides by those regulations. She said the 37- foot wind turbine on the University of Iowa campus was not permitted by the City because that is a State institution and not governed by City code. She referred to other green building elements that the appellant had mentioned in the appeal and explained how those are either allowed by code or not subject to the zoning code but regulated as elements of the building code. Walz said that while wind turbines have become common in some parts of Iowa, they are not common in all areas of Iowa nor are they common within city limits. She said that while some a communities in the state do allow wind energy systems within city limits, those cities have specific ordinances that regulate them, including distance limits, setbacks, the colors and materials of the wind turbine, the lighting, fencing, a noise and shadow flicker study, speed controls for blades and an agreement for removal of the turbine should its use be discontinued. Walz said the Zoning Code chapter concerning accessory uses carefully regulates both uses that are "commonly associated" (i.e. garages, fences, decks) as well as those uses that are "not commonly" associated (i.e. roadside stands, cell towers) with a principal /permitted because such uses may, if not carefully regulated, have negative effects on neighboring properties. She said that in the opinion of staff, the assertion that a 140' wind energy system with a spinning blade is an accessory use so common and incidental to an office building as to be allowed under the general accessory use provisions without any regulations addressing height, setback, location, noise, light flicker, etc., is absurd, and staff does not think it is a reasonable interpretation of the code. Board of Adjustment July 11, 2012 Page 3 of 14 Doug Boothroy, Director of the City's Housing and Inspection Department, said he was the person who decided to deny the permit based on the grounds that it could not clearly be classified as an accessory use because it is not customarily or reasonably associated with offices. He said he was involved in drafting the 2005 Code, and it was not an oversight to not include wind turbines. He said staff did not feel at that time that wind turbines were an appropriate use in an urban environment. He said had he interpreted that the subject 140 -foot tower is allowed as an accessory use for any office use in an ORP zone, that would open the door to allowing these structures in ORP zones without any standards except for construction standards. He said that decision would have been irresponsible. Baker asked about the City allowing a wind turbine on its own property, implicitly endorsing the idea of wind turbines in comparable zones. He asked Boothroy if he had been involved in that decision and how high that tower is. Boothroy stated that he wasn't involved in that decision, and he believes the turbine to be about 23 feet tall and is behind and shielded by the building. Baker stated that although he realizes the 37 -foot tall tower on the University property is outside the jurisdiction of the City, the legal brief talks about similar or the same as established wind turbines, and he wants to get some idea of comparisons. Boothroy explained that if he interprets that this is a permitted accessory use for any office there are no height requirements or performance standards in the ORP zone. He said the setback requirements are minimal. He said that to open the door to allow this type of structure without any kind of regulation is irresponsible. Baker said he understands Boothroy's position. He asked if the Board allows this as of now, are there are no guidelines. Boothroy said that was correct. Sheerin said that one of the arguments is that if something isn't an accessory use commonly associated, if they don't allow it, it will never become commonly associated. She said because wind turbines are becoming more common, they should allow them. She asked if the City's response is that once the ordinance is in place, wind turbines should be allowed. Walz said yes, in certain zones in conjunction with certain uses at certain heights and setbacks. She suggested that a comparable situation to think about would be the regulations for cell towers. Boothroy said that if they adopt ordinances to allow wind turbines, it would only be in certain zones. Sheerin said she found the argument that if it's not allowed how can it ever become commonly used to be persuasive, but if the staff response is that they are creating an ordinance so it can be used... Boothroy declared that it was not only his opinion that this wind turbine was not an accessory use, but that legal staff and planning staff agreed with him without debate that it is not allowed. Board of Adjustment July 11, 2012 Page 4 of 14 Grenis asked the reason why the wind turbine on City property doesn't violate 14- 4A -2A -4 of the Code. Walz replied that in this case the wind turbines limited size allows it to fit into the category of mechanical structures, and mechanical structures have to be screened either by the building or other methods. She said the wind turbine on City property can't be seen from the street, and there are trees to add screening. She said that you can't screen a 140 foot wind turbine, so it seems to be beyond the scope contemplated for mechanical structures. Grenis asked if the City's argument under 14- 4A -2A -4 was that you could not have wind turbines if they didn't already exist in the Code. Walz said staff's interpretation is that it's allowed if you can look to a category in the Code and make what is specifically being proposed fit in that category, but there is a point at which it goes beyond the allowable scale and becomes another entity altogether. She cited an example of when a garden shed becomes so large that it's no longer a shed, or a garden no longer a garden but a farm. Grenis asked who gave the okay in December to Shive - Hattery that it was alright to go ahead. Walz said it was Julie Tallman in the Building Department who indicated that she thought they could have a wind turbine. She said when the application was received by the City in March, it was seen by other staff, and the error was pointed out. Grenis asked if the error resulted in substantial financial investment by the applicant. Walz said it did. Boothroy explained that Tallman and Shive - Hattery exchanged emails before the application was submitted, and once it was received, it came to his attention and was denied. He stated that just because she made an error doesn't justify making a decision that's not compliant with the Code. Grenis asked about the cost. Boothroy said he didn't think that was relevant because the Board's concern is whether or not he erred in terms of his decision that it is not a permitted accessory use. He said the money issue should be worked out through other venues. Walz said they are attempting to work out that issue through the development of a new ordinance. Sheerin asked if the Board's decision in this case, one way or the other, affects such a claim. Denning said the Board's purpose is the specific zoning question and how to enforce this ordinance. He said they should disregard the financial aspect. He explained that it would be unusual for a company to commit itself to that kind of expense without making it contingent upon the ultimate approval of the applicant. He suggested that the Board might want to ask a question of the appellant in that regard. Board of Adjustment July 11, 2012 Page 5 of 14 Baker said they are dealing with an interpretive issue here, and whether or not staff made a mistake is a separate legal issue that the appellant can seek recourse for secondary to the main issue of whether or not this is a valid interpretation of the ordinance. Denning agreed that zoning should be the focus for the Board. Grenis said it seemed that each side had a different definition of accessory use that they are using. He said the City seems to be leaning toward 14 -4C -1 while Pearson is leaning toward 14- 9A -1. He said 14 -4C -1 is more inclusive. He asked how the Board is to decide which is the valid part of the Code that they are to be evaluating. Denning said that comes down to a question of statutory interpretation, in other words, how you read these together. He said there is a way of reconciling the two under standard Iowa law. He said the City wants to get to the point of being able to consider this with the words "commonly associated ". He said Pugh's argument is that you never get to that point. Walz explained that in the Code itself states that when two things are in conflict the more specific applies. She said where the appellant is citing A -D is from the definition section of the Code and 14 -4C -1 is the regulation and is the more specific, in the view of the City. Grenis asked if one of the City's concerns was that if this was approved there were no building standards in place for it. Boothroy said his concern was that it was not a legitimate accessory use for an office. He said had he come to a different conclusion he would open the door to allowing these without regulation. Grenis referred to an email from Loren Brumm dated April 5th which did outline some things that would need to be completed in order for the building permit to be approved and asked if those would satisfy any regulations about how it should be built. Boothroy replied that Brumm was referring to structural standards only. He reiterated that his decision was based on whether they can reasonably connect the turbine as an accessory use to an office use. Walz said she thinks what Brumm refers to in his email is what would be required for a building permit if it was an allowed use. Sheerin invited the applicant to speak. Robert Wetherell, Director of Real Estate and Facilities for NCS Pearson gave a synopsis of the history of Pearson in Iowa City and their current facilities and their uses. He said that the corporation has long supported energy conservation and use of alternative energy sources as a normal course of conducting business. He said in December 2011 City officials first informed their engineers, Shive - Hattery, that the only municipal approval required was the application for a building permit together with the site plan showing location of the proposed turbine. He showed the Board pictures of where the proposed turbine would be located on their property. He said during the first quarter of 2012 they received approval for funding of the wind turbine project, and based on what their engineers had been told by City staff, they issued a $314,000 Board of Adjustment July 11, 2012 Page 6 of 14 purchase order with a vendor for the construction of the proposed turbine. He said on March 27, Tallman informed Tallman via email that the City's previous conclusion was wrong, and a wind turbine was not a permitted accessory use. He said their formal application was turned down in April. He said they received a portion of the traffic report in May for the Moss Development which is west of their property. He said the study proposed a connector street located in the same area as planned for the turbine. Mike Pugh of Bradley and Riley, as counsel for Pearson, said the City's primary argument is that the Code does not specifically list a wind turbine as a permitted accessory use in an Office Research Zone, but must first be legislated before it can be permitted. He said that argument fails because under Iowa law an ordinance need not articulate a specific use before it may be considered an accessory use to a primary use and in light of Iowa's protection of private property interests. He said in Iowa a land use is permitted unless it is regulated by code. He said using the City's interpretation, private property owners could not install solar panels and other alternative energy systems, which Walz identified as mechanical uses, because none of them are mentioned in the Code. He stated that you could make the argument that wind turbines could also come under the section of the Code that permits mechanical uses, as they are not mentioned either. Pugh said that the law contemplates that it isn't possible for a zoning ordinance to express every possible use, which is why the doctrine of accessory use allows property to be used in ways not expressly permitted under the ordinance. He said the City is using the wrong section of the Code upon which to base their denial. He said the Code specifically defines accessory use in section14 -9A -1, and what Pearson proposes to do would qualify based on that provision. He said this definition does not include the "customarily incidental to and commonly associated with" language. He referred to the definition preferred by the City and said that standards a -d are essentially the same standards that are articulated in 14 -9A -1. He said there has been no dispute between Pearson and the City that their application would not meet either 1 -4 of 14 -9A- 1 or a -e of 14 -4C -1. Pugh said they strongly disagree with the City's assertion that if their definition is ignored then nearly any use could be claimed as an accessory use because to the extent an accessory use implicates the specific approval criteria set forth in 14 -4C -2, there are heightened compliance requirements, and other uses that concern the City are addressed in the Code. Pugh said in this case the purpose of the Board is to act as a safeguard against the unreasonable and arbitrary application of the Code. He said the City s decision would not be so defined were it not for the established precedence in Iowa City for the installation of a wind turbine, specifically at the City's Eastside Recycling Center. He said the denial of the permit did not articulate specific differences between why it may be an accessory use in Public zone but not in OPR zone. He said the denial of the application is suspicious due to the City Planning Department's support of the Moss Development and the timing surrounding the events described by Wetherell previously in these minutes. Pugh said they believe that the City should develop an ordinance regulating wind turbines and other green technology, and he blamed the Planning and Zoning Department for not making this a priority before now. He said until a regulation appears, the installation of wind turbines should be governed by the installation, operation and maintenance provisions already found in the Code, including the requirements for accessory uses. He said he wanted to clarify what could be misconstrued in his brief concerning the response from the City Attorney's office, and said that both Ms. Holecek and Ms. Dilkes responded in a timely and professional manner. Board of Adjustment July 11, 2012 Page 7 of 14 Baker asked for clarification about Pugh's reference in a letter to Pearson's wind turbine being 26 times smaller than the turbine on the Kirkwood Campus. Wetherell explained that refers to electrical output. Baker asked Pugh if one of his arguments is that once the use of a wind turbine is approved on City property, Pearson's is legally justified. Pugh said they denied Pearson's use for wind turbines as not an accessory use in ORP zones, but the denial did not address why it is an accessory use in a Public Zone. Baker asked if it Pugh's view that without it being clear up front what the City expects in terms of size, location, set back and other parameters, Pearson has the right to put this 140 -foot tower where it wants. Pugh said yes, under the accessory use guidelines. He said it's contrary to well settled principles in Iowa law to say it's not specifically permitted under the Code so you can't do it. Baker asked what is to prevent them from saying that it's okay to put the same tower that Kirkwood has in this location. Pugh said under the City Zoning Code there would be no prohibition to doing that. Grenis excused himself from the meeting at 6:20 p.m. Baker asked Pugh if the City's prior approval of its own 23 -foot wind turbine is proof that the denial of the appellant's application is arbitrary. Pugh agreed. Baker asked Pugh if according to his argument the size made any difference. Pugh responded that the size of the wind turbine was not a factor in the denial, and Boothroy's denial was based solely on the fact that he didn't believe wind turbines were a permitted accessory use in an OPR zone. Baker asked Pugh if he thinks it is clear that just by the definition of customary use a wind turbine could be considered a customary use. Pugh said he does, for an OPR zone in today's age. Baker alluded to 14 -9 -A, a section of the Code that Pugh had referenced in his arguments, and asked Pugh if the comfort, convenience and necessity of customers and employees will be affected whether or not the wind turbine is not there. Pugh responded that several studies indicate that using green technology has a tremendous impact on the productivity of employees. Baker asked if there is an arrangement to sell energy generated by the wind turbine. Board of Adjustment July 11, 2012 Page 8 of 14 Wetherell said they have no intention of connecting it to the grid and plan to use it only to help offset the energy cost from their data center. Sheerin said she wanted to confirm Pugh's interpretation of the language in 14 -4C -1. She asked if he is saying that this section refers to accessory uses and buildings or other structures, so if the City's interpretation were correct in his estimation, it would have to read accessory uses which are buildings or other structures customarily incidental to... Pugh said that is correct. Walz explained that this section refers to accessory uses, accessory buildings, and other accessory structures and within that you'll see uses such as a daycare, which may not always be an accessory use but can be. She said it refers to all three. Sheerin asked if she is saying that accessory modifies uses, buildings and other structures. Walz said that's what she is saying. Pugh said accessory uses is defined elsewhere in the Code and this Code section deals primarily with operation and maintenance standard. Denning said he thinks the City is on solid ground to interpret the ordinance using the definitional section and then reading it together with this section. He said the City is on solid ground to assert that commonly associated is perfectly appropriate for the Board to consider. He said the question is what's the appropriate legal method of statutory analysis for the Board. Baker asked what he meant by his previous comments about something being well settled in Iowa law. Pugh replied he meant that an ordinance need not articulate a specific use, such as a wind turbine, before it may be considered an accessory use to a primary use. Denning said he would agree with that because it's impossible to list every possible scenario, but the Code sets out a very clear, logical process of analysis with use categories, sub - groups, examples and factors. He said he doesn't think there's any problem reading together 14 -4C -1 and the definitional section. He said it's very common and favored in Iowa law as a matter of statutory interpretation to take the definitional sections and start using them elsewhere in the Code. Sheerin asked if there is anything wrong with the interpretation that it's accessory uses and then separately, in addition, buildings or other structures customarily incidental to or commonly associated with. Denning said he thinks customarily incidental to is modifying accessory uses. Sheerin said she believes it is Pugh's position that it is not, that accessory uses is its own thing and then there are these other buildings or other structures customarily incidental to a permitted use, provisional use or special exception Board of Adjustment July 11, 2012 Page 9 of 14 Pugh said they believe that is a reasonable interpretation of the Code. Denning said he would respectfully disagree with Pugh. Crischilles said the way he reads that is that accessory uses are permitted and there are three opportunities to make it be permitted and those are if it's commonly associated with the permitted use or provisional use or special exception. He asked if, for example, they said that this is special exception they could say that it is an accessory use that is permitted. Denning responded that they need go no further than permitted use because there is no question that Pearson's facility in this office zone is permitted and legal. He said the question is if the wind turbine as proposed is an accessory use, and to be that it has to be customarily incidental to and commonly associated with an office park like Pearson's. Pugh said he thinks the issue before the Board is if the zoning official's interpretation is arbitrary because of denying it without articulating why it's allowed in a public zone but not in an office research park zone or why they do not believe that a wind turbine is customarily incidental to or commonly associated with a permitted use. Sheerin opened public hearing. Sheerin closed public hearing. Baker moved to approve APL12- 00001, an application submitted by NCS Pearson to appeal a decision of the Iowa City Housing & Inspection Services Director denying a building permit on the grounds that a proposed 145 -foot wind turbine is not an accessory use. Crischilles seconded. Sheerin invited discussion. Baker said it's very obvious that when we talk about an office research park we are dealing with the abstract but when we are talking about Pearson's we are talking about a particular company that has a proven track record of concerns for the environment. He said he thinks they have done an extraordinarily good job in this area and their business. He said, though, that they are not writing regulations for Pearson, but for office parks. He said there is relief for Pearson on the issue of whether or not a City decision that was rescinded made them incur costs that they feel they have some grounds to recover. He said there is a separate remedy for that, and this is not the issue before the Board. Baker said he's having a hard time seeing that you could automatically look at these definitions and say that very clearly a wind turbine fits this definition. He said he thinks the City has been remiss in not making that clear, and maybe this will expedite that process. He said if this were a special exception request under a code that's already written with guidelines it would be very easy to approve. He said this issue is based upon an interpretation by one side that says we read the Code this way and think we are allowed to do what we want to do. He said the problem with that is that it seems open ended beyond this particular applicant, that indeed we are talking about a specific project but following the logic of the applicant and the attorney, it would say not only that you cannot prohibit this, you can't prohibit a bigger or different project. He said in lieu Board of Adjustment July 11, 2012 Page 10 of 14 of guidelines, that would seem to be one of the consequences of approving this application. He said for that reason he cannot bring himself to agree with the applicant that indeed their interpretation is self - evidently correct. He said it is a matter of interpretation, and the staff interprets it one way. He said he tends to agree with the staff's interpretation. Crischilles said that Pugh's arguments are the stronger and there is some arbitrariness to the City's decision in the fact that the City has a wind turbine in existence and that was never made a part of the denial. He said that the City made a mistake and then went searching for reasons to fix the mistake and came up with a small part of the Code on which to base their argument. Sheerin asked again why it was a mistake in the first place. She said she is kind of leaning toward the applicant's arguments, but she doesn't understand the logic of what Crischilles is saying. Crischilles said he is mostly persuaded because of Pugh's arguments that the denial didn't address any specific matters of size, scale, that there was already a wind turbine in place and it wasn't part of the Code. Sheerin said she thinks this a poorly drafted ordinance. She said a comma after the word "buildings" would have really helped. She said this becomes a question of whether this is commonly associated with permitted use, and the way to do that is to look at whether or not wind turbines are used in this way in this area. She said she doesn't think the height is relevant, because that is not the standard that's been presented. She said the standard is whether it's customarily incident to or commonly associated with, and she agrees with that standard, as there are two in Iowa City and one in Cedar Rapids and are becoming more common throughout Iowa. She said if the City wants to regulate wind turbines, that's fine, but it seems to her that the reason this person in the Building Department made the mistake in the first place is because she thought these are commonly associated with these uses. Baker asked Sheerin if her thinking is that because we already allow wind turbines establishes a common use. Sheerin said that would be her understanding. She said there are multiple wind turbines in use in Iowa. Baker asked about restrictions regarding use on public versus private property. Sheerin said she doesn't see anything in the Code that talks about a distinction between private property and public property or how high it has to be or how it has to be screened. Baker asked if a coal- burning power generation plant on university would allow private coal - burning energy. Sheerin replied it would if that's the way the statute is written and it's not otherwise regulated. Baker he understands, although he doesn't agree. Baker submitted his general and specific findings as recorded above. A vote was taken and the motion was denied 2 -1 (Baker voting no). Board of Adjustment July 11, 2012 Page 11 of 14 Walz said in order for the motion to pass, it would need a vote of three. Sheerin declared the motion denied, noting that anyone wishing to appeal the decision to a court of record may do so within 30 days after the decision is filed with the City Clerk's Office. SPECIAL EXCEPTION EXC12- 00003: A request by Marc Moen to modify a previously approved special exception in order to provide two required parking spaces off -site in a municipal ramp for a proposed mixed use development in the CB -10 zone at 114 South Dubuque Street. A special exception approved in April allowed the two required spaces to be provided at grade within the proposed building. Walz said that a number of years ago it was decided that there should be some accounting for parking for residential uses. She explained that the City Council wanted to provide some relief for the small parcels that would have trouble providing parking on -site. She said that parking can only be provided underground. She said to provide parking at grade requires a special exception. She said Council also mandated that properties that couldn't provide the parking could request a special exception to provide the parking in a municipal ramp. She explained that when the applicant came in two months ago he required 14 spaces and provided two of them on -site at grade and was approved for a special exception to do that. She said he was approved for a special exception to provide the other 12 spaces in a nearby ramp. She said that subsequently the applicant discovered that given the small size of the site and the equipment required to be housed in the ground floor, he could not provide those two parking spaces at grade without negating the terms of the special exception he had been granted. She said the question is whether it is reasonable to add those two spaces under the same conditions as the Board approved the original twelve in the municipal ramp. Crischilles asked why the special exception was granted. Walz explained that it met all the conditions for the special exception and elucidated them to Crischilles. She said that part of that special exception to provide the parking at grade is that you don't so encroach on the retail space as to severely limit it. She said the applicant also thinks that the visibility in the alley would make those two parking spaces problematic. She said that the two parking spaces in question were required parking spaces for the residents, so they would unlikely be available for the commercial uses. She said that virtually none of the businesses on the ped mall have any vehicle access in terms of customers. Marc Moen of 221 East College Street said as they got further into the project, the space needed for required fire and safety equipment and mechanical apparatus that has to be housed on the ground floor started to encroach on the commercial space in the building and necessitated moving the parking spaces to an unsafe location nearer the ped mall contrary to the conditions of the special exception that was previously granted. He said they have sold the retail space and over thirty percent of the apartments already. Sheerin opened public hearing. Board of Adjustment July 11, 2012 Page 12 of 14 Sheerin closed public hearing. Baker moved to approve a request to amend EXC12- 00003, in order to allow two required parking spaces to be provided in a municipal parking facility subject to the following conditions: 1. The applicant must submit the required agreement for off -site parking prior to securing a building permit. The agreement shall include the following conditions: a. The permits shall only be available to residents of 114 South Dubuque Street at a cost not to exceed the market rate determined by the Director of Transportation Services. b. At the time of leasing, the property manager must provide the Department of Transportation the name, license plate number and address of all permanent holders. c. Permits will only be granted to residents at the primary address of 114 South Dubuque Street. 2. The final building plan is generally consistent with the plan submitted as part of the application with regard to the design of the retail and office floors 3. The residential unit and bedroom mix must comply with the central business site development standards as set forth in the Zoning Code. Crischilles seconded. Sheerin invited discussion on the motion. Baker said he finds that regarding agenda item EXC12 -00003 he concurs with the findings set forth in staff report of July 11th and concludes that the general and specific criteria are satisfied unless amended or opposed by another Board member. He recommended that the Board adopt the findings in the staff report as are findings for the acceptance of this proposal. Sheerin said she would also recommend that they adopt the findings. Crischilles agreed. A vote was taken and the amendment carried 3 -0. Sheerin declared the motion denied, noting that anyone wishing to appeal the decision to a court of record may do so within 30 days after the decision is filed with the City Clerk's Office. BOARD OF ADJUSTMENT INFORMATION: Walz reminded the Board to let her know in advance if they have to miss a meeting. Though a quorum consists of three, she thinks that additional eyes on the items before the Board is healthy. She said she had notified the appellant tonight that it was likely that only three members would be present for the decision, and they decided to go ahead instead of deferring until the August meeting. The Board discussed possible alternative meeting dates for August. Board of Adjustment July 11, 2012 Page 13 of 14 ADJOURNMENT: Crischilles moved to adjourn. Baker seconded. The meeting was adjourned on a 3 -0 vote. 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