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HomeMy WebLinkAbout2012-10-02 Bd Comm minutes1� Ad Hoc Diversity Committee, September 10, 2012 1 3b(1) I MINUTES APPROVED CITY COUNCIL AD HOC DIVERSITY COMMITTEE SEPTEMBER 10, 2012 HARVAT HALL /CITY HALL, 4:00 P.M. Members Present: Bakhit Bakhit, Cindy Roberts, Joe Dan Coulter, Orville Townsend, Sr., Kingsley Botchway II, Joan Vanden Berg, Donna Henry Staff Present: Eleanor Dilkes, Geoff Fruin, Marian Karr Others Present: Charlie Eastham WELCOME AND INTRODUCTIONS: The meeting began with Marian Karr introducing Member Donna Henry to the group and also noting that Geoff Fruin is present from the City Manager's office. Others then introduced themselves. APPROVAL OF MEETING MINUTES: Chairperson Botchway began the meeting by asking if Members had had the chance to review the minutes of the August 29, 2012, meeting. Vanden Berg moved to approve the minutes of the August 29, 2012, meeting as presented; seconded by Coulter. Motion carried 7 -0. DISCUSSION: a. Review materials provided by Council — Coulter noted that he would like more time to review the data provided by Council, and that perhaps the group could discuss some of the salient points. Botchway stated that they could discuss some of this information at their next meeting, noting that the Police Chief will be at their meeting on the 17th. Roberts noted that as she reviewed the information they were given she tried to pull out information that seemed applicable to their two charges. She asked if others saw information related to this, or if they should table this for now. Botchway noted that this meeting is for each of them to voice their viewpoint and that that, coupled with the information received, could help bring some cohesiveness to the committee. Vanden Berg stated that after reviewing the information received she questions if there isn't some dissatisfaction with how the Police Citizens Review Board operates, and that this is one reason this committee was formed. Others agreed that they also noticed this. Botchway noted that some of these issues were brought up at the recent PCRB forum, at which he and Townsend were both present. He expressed his view of the PCRB and noted that educating the public on how they can voice their complaints about the police is a primary concern. Attorney Dilkes stated that the impediment to complaints not going through the Police Department for the initial investigation centers on the fact that the Police Chief and the City Manager are the only people with authorization to compel the officer in question to speak with them. Dilkes continued, noting that if the PCRB or its chosen representative were to conduct the initial investigation, they would not have the authority to receive the officer's statement. Karr added that it appears Botchway is responding to the other issue here — does the PCRB routinely receive information on complaints filed directly Ad Hoc Diversity Committee, September 10, 2012 with the Police Department and not with the PCRB. This has been a concern, especially if the complaints are on the same officer or on similar incidents. Townsend then spoke to perceptions, especially that the Police Department is policing itself. He added that one of the things he would like to see this committee do is recommend a new process for complaints, one where the Police Department is not investigating its own officers. Bakhit also weighed in on this issue, stating that he believes the City is committed to reviewing these issues, hence the formation of the Ad Hoc Diversity Committee. Knowing what their limitations are, according to Bakhit, will be crucial to what they can accomplish. Dilkes noted that the most concise summary in the documentation received by the Committee can be found on the two -page summary put together by the PCRB's counsel. Karr added that the PCRB's counsel can further detail this when she meets with the Committee in the near future. Bakhit noted that in addition to the PCRB he thought that transportation would be part of this information as well. Karr stated that the information received is that which the City Council identified as background information — information that they received and felt was important for this Committee's review. She added that staff can provide any further information needed, such as Vanden Berg's request for more statistics and Bakhit's for transportation information. Botchway again noted the importance of perceptions — that negative perceptions can be just as damaging as positive truths. An example of this is the fact that there are 177 complaints, of which only six have been sustained. Karr suggested that she provide Members with a blank complaint form and the education piece from the PCRB for the next meeting. This would allow Members to see first -hand how the complaint process unfolds. Botchway then spoke to how state and local laws can tie the hands of boards and commissions, especially in situations such as this. He added that one of his questions for the Police Chief would be regarding first responders: when the police arrive at an altercation, what policies do they follow? In the 'initial incident,' how is the officer instructed to proceed? Members continued the discussion, with Townsend asking if all officers follow the same procedures for every incident they encounter, or if some situations are handled differently. Coulter then spoke to how he views the complaint mechanism as negative, that the whole picture needs to be looked at. Without positive inputs, the whole situation is somewhat one - sided. Roberts agreed, stating that there does need to be a balance. She then asked for some clarification on the existing code that the PCRB must follow, and whether changing this code would be beneficial to the PCRB. Townsend reminded Members that they do need to proceed with caution when it comes to changing such codes. They would be dealing with personnel matters, and things can become quite complicated when handling these types of issues. He stated that instead of looking at what they can change, perhaps they need to look at what is already in place and how it can be used to accomplish their goals. Another question that Members would like to pose to the Police Chief deals with the lack of trust between the African American community and the Police Department. Members would like to know what strategies are currently in place to help foster this relationship. Townsend suggested obtaining information regarding staff training over the last three years in diversity training. This would help to clarify current standards and procedures. Ad Hoc Diversity Committee, September 10, 2012 Coulter stated that he would assume the Police Department, like many others, would have to provide an annual report and an internal review on such matters. He asked if such information is available for public review. Fruin noted that there is not a formal report submitted for public review, but that the City Manager's office does evaluate such matters in each department when necessary. Members agreed that they would like to hear the Police Chief's vision and strategy for the Department — how does he plan to build relationships within the community. Townsend pointed out ways to curb some of the perceptions — such as having someone else present with the Police Chief when a complaint against an officer is taken. Knowing how the Chief would handle these situations can go a long way in shedding light on how the Department handles such matters. Dilkes then brought up code issues, stating that the City code is not an obstacle as it can be changed. There are restrictions to this, of course, depending on federal and state codes in place. The discussion then turned to statistics, with Members agreeing that number of traffic stops, arrests, etc., would be good to know. Bakhit added that he would be interested in knowing if there were any independent investigations done of complaints, outside of the Police Department. It was noted that police do go through a certification process called CALEA, certification of accredited law enforcement agencies. This is a thorough review performed every three years or so, done by an independent party, where the policies of the Department are reviewed. This review is done in order to confirm that the police officers are in fact following the Department's policies. Townsend noted that he would like to know what kind of positive contacts the Department has with the minority communities. He continued, stating that he would like to see an action plan for this and to know what is being done from a positive aspect and not just the negatives of contact with these populations when something is wrong. It was suggested that Jorey Bailey, the Community Service Officer, attend the meeting on the 17t , in light of his work within these communities. Another suggestion was the outcome of diversity training that officers have received to date and how they are implementing this. Townsend also suggested that this Committee review the Department's recruitment video. The discussion then turned to whether the Committee feels they will need a meeting between the meetings of September 17 and 24. Botchway stated that they could do what they are doing now, raising questions and concerns ahead of time, so they can be prepared for the presentation on the 24th. Coulter stated that this may be a good idea, and that he also feels they should include the other police departments in the area, such as the University, Coralville, University Heights, and Johnson County — that the entire law enforcement community should be included in these discussions. Botchway stated that due to the fact this Committee has a charge from the Iowa City City Council; they should stay within the bounds of that. Dilkes suggested they ask the Police Chief about his relationships with the other departments. Karr then asked the Members how they want to handle the meeting on September 17, and if they want this meeting to be just the Police Chief. Members agreed that with the questions they have, this would be a good idea. Karr then asked how they would like to structure the September 24 meeting, and Members briefly discussed this. This then led to Members talking about census data, with Roberts asking for updated information on the census tract, projections, and maps from the 2010 census. Ad Hoc Diversity Committee, September 10, 2012 The topic then turned to the Police Department and incidents involving schools in town. Townsend stated that he would like to know the Chief's ideas on such matters, and whether there is a way to deal with these problems without removing students from the school setting. Botchway added that understanding the legalities of this would be helpful, as well. Both noted that there is a lot of concern that police can question students without a parent or guardian present. Roberts stated that being able to resolve an issue, without legal action, is also an important part of this. Bakhit noted that minority taxi drivers are another population with complaints about the Police Department. He believes they had a meeting with the City to voice these concerns. She suggested the Members ask the Chief about this meeting, as well. Botchway then broached the subject of having a 'program' to educate new residents of what the laws are in Iowa City — such as that University Heights is not a part of Iowa City. The discussion continued, with Members weighing in on various educational topics that the Police Department and others could implement within the community. With the large student and transient populations, Members agreed that education is needed on change and diversity in the community. Coulter moved to proceed with the Police Chief s presentation on September 17, and adding September 24 to continue as needed; seconded by Botchway. Motion carried 7 -0. The discussion then turned to the October 1 meeting. Members agreed that this would be good for discussing the transportation issues, with October 8 for the transportation presentations. Members noted that some of the new routes will have been in service by this time, thus giving opportunity to gauge improvements. C. Public Input — Botchway asked Members how they would like to handle this issue. Coulter proposed that they allow for public input at each meeting, for a set time of ten minutes. Depending on how many people wish to speak, the Chair could determine how long each one would get. Townsend added that he agrees they should allow for public input, but that it should have quality to it and that by limiting the time, they limit the quality. Dilkes stated that the Members don't have to put a time limit on this issue, that they can add a 'public comment' section to each agenda and then react to whatever the situation is at the time. Members briefly discussed how they would like to handle public comment at future meetings. Coulter suggested they allow people to submit written comments, as well, and others agreed. ADJOURNMENT: Coulter moved to adjourn the meeting at 5:35 P.M.; seconded by Vanden Berg. Motion carried 7 -0. [The attached summary of questions was prepared by City staff present.] Ad Hoc Diversity Committee, September 10, 2012 Ad Hoc Diversity Committee ATTENDANCE RECORD 2012 Kew. X = Present O = Absent O/E = Absent/Excused TERM O O O O — NAME EXP. CD (0 (0 (0 0 CO O -I � Donna 03/10/13 O/E X Henry Cindy 03/10/13 X X Roberts Joan 03/10/13 X X Vanden Berg Bakhit 03/10/13 X X Bakhit Kingsley 03/10/13 X X Botchway Orville 03/10/13 X X Townsend Joe Dan 03/10/13 X X Coulter Kew. X = Present O = Absent O/E = Absent/Excused Ad Hoc Diversity Committee, September 17, 2012 MINUTES APPROVED CITY COUNCIL AD HOC DIVERSITY COMMITTEE SEPTEMBER 17, 2012 HARVAT HALL, CITY HALL, 4:00 P.M. Members Present: Bakhit Bakhit, Cindy Roberts, Joe Dan Coulter, Orville Townsend, Sr., Kingsley Botchway II, Joan Vanden Berg Staff Present: Sam Hargadine, Jim Steffen, Rick Wyss, Adam Bentley, Tom Markus, Eleanor Dilkes, Marian Karr Others Present: Charlie Eastham Dave Kuker & Kathy Nesteby (Div. of Criminal & Juvenile Justice Planning -Iowa Department of Human Rights) INTRODUCTIONS: Chairperson Botchway asked for those in attendance to introduce themselves. Karr then asked that everyone speak loudly so that the microphone system can pick up their voices. She also noted that Donna Henry has submitted her resignation from the Committee due to unforeseen circumstances, and Council would be discussing the vacancy at their meeting on September 18. APPROVE MEETING MINUTES: Coulter moved to accept the minutes of the September 10, 2012, meeting as submitted; seconded by Botchway. Motion carried 6 -0. PRESENTATION BY POLICE CHIEF: Botchway noted that the Police Chief would be giving his presentation to Members next. He added that the presentation was based on questions that the Members had regarding their charge and that the Chief would try to answer as many of those as possible during his presentation. Chief Hargadine then began his presentation, stating that if anyone has questions to please interrupt him. He then introduced his Senior Command staff with the Iowa City Police Department (Capt. Rick Wyss and Capt. Jim Steffen). Hargadine briefly gave Members some background history on his senior staff, as well as himself. As of January 2013, the ICPD will have 82 officers, according to Hargadine. The conversation then turned to diversity and what it means to the ICPD. Hargadine noted that because of the dynamics of the Iowa City community, there are many topics and issues faced by his officers that other departments do not face. As an example he cited anti -war protesting, the Occupy Wall Street movement, and gay marriage, among others. He also noted some of the various special interest groups and issues that his officers must interact with regularly — mental health, homeless, Alzheimer's, ADA issues, service animals — to name a few. Another source of unique issues for the ICPD involves the University of Iowa and its student population. Chief Hargadine next turned the discussion to the accreditation the ICPD has through CALEA — the Commission on Accreditation for Law Enforcement Agencies. He explained how this accreditation helps the department to improve the delivery of public safety services, by maintaining a body of standards that have been developed by public safety practitioners. Hargadine noted that a copy of the latest accreditation report was 10-02-12 3b(2) Ad Hoc Diversity Committee, September 17, 2012 2 distributed that evening. Continuing, Hargadine noted that CALEA's specific goals are to strengthen crime prevention and control capabilities; formalize essential management procedures; establish fair and nondiscriminatory personnel practices; improve service delivery; solidify interagency cooperation and coordination; and increase community and staff confidence in the agency. The ICPD is on their fourth cycle through the accreditation process, which takes place every three years. Coulter asked Chief Hargadine what he believes the top three issues were from the most recent CALEA review. Hargadine responded that the review did note the department's space issues in their current location. Another issue has to do with the department's recruiting challenges. Hargadine added that this refers to the demographics of the community and the competition across the country for specific, targeted groups. Hargadine then turned to the topic of department training. He noted that in January of each year the department has week -long sessions of training that are done county -wide, as the surrounding agencies face the same mandatory training issues that the ICPD does. This training involves all law enforcement officers, including chiefs and the sheriff. Other training takes places throughout the year, according to Hargadine, within the department itself. Hargadine stated that this year they teamed up with an organization called Diversity Focus. He further explained what this organization does, noting that they specialize in diversity training and that they are very familiar with the issues faced in the Iowa City area. Bakhit asked the Chief about officers' awareness of cultural differences. Hargadine noted that ICPD officers are very aware of cultural and background issues, and pay close attention to such hot button issues as those seen in Muslim communities. Townsend then asked the Chief how he believes his officers are doing in terms of addressing the diverse population of Iowa City. Roberts asked about those situations where officers have been called to one of the local schools and whether or not these situations should have been handled without police intervention. Hargadine responded that this is a very subjective topic. He added that some schools have a higher incident of disruptions and at -risk students. These schools have more to deal with overall. Hargadine also noted the difference in having personnel with experience and those who are just getting started — both in the schools and on the ICPD. Townsend followed up with a question concerning what procedures are followed at the local schools when dealing with students, as they are minors. Hargadine stated that it would depend on the school's decision of how they want to proceed and whether they are going to directly involve the parents. If the school wants the child removed, then the parents have to be notified, according to Hargadine. Wyss responded to questions as well, noting that they have an excellent working relationship with the Iowa City schools. He reiterated that parents are involved in the process, and depending on the school's position, many times the parents have already been contacted by the time the police arrive. Wyss added that parents are always notified if a student is going to be interviewed. Hargadine added that they have three different committees that the police are involved in that deal with such issues as educating the educators and knowing when to involve the police. Members continued to ask questions concerning how the Iowa City schools and the ICPD work together, and how issues are dealt with. Wyss noted that the Core Management team did come up with specific guidelines on when schools should contact Ad Hoc Diversity Committee, September 17, 2012 law enforcement and when the schools themselves should handle behavior difficulties. This helps to keep uniformity in how each school handles difficult situations. Hargadine and Wyss continued to respond to Members' questions and concerns, sharing what these various committees do to work with the local schools to create safer environments. The discussion then turned to perceptions, and how difficult it can be to change perceptions within the community. Hargadine noted that many times it has to do with past dealings in other locations, and that locally they strive to treat everyone with respect, fairness, and dignity — no matter what the situation. Townsend asked Chief Hargadine if more complaints are received from minority populations on specific officers than others, and if so, what actions has the Chief taken to improve this. Hargadine responded that they have not kept track of this from a minority standpoint, but that he can have this information available at the next meeting. He added that there is no particular pattern in the complaints received, that no one officer consistently receives complaints. Steffen noted that when the PCRB receives complaints, it is optional for the complainant to list their race. This is true, as well, for those complaints received directly by the ICPD. This led Coulter to comment on the topic of race. He strongly recommended that the ICPD look at the federal reporting requirements on race and ethnicity, and use these requirements in their own reporting measurements. Hargadine asked if that should be a recommendation for the PCRB as well, to which Coulter replied that he believes the entire system should be done in the same manner. Hargadine continued to respond to Members' questions. He explained to the Committee how the ICPD responds to situations, such as if they know the call involves violence — all of the officers should be considering many of the same tactical issues. Hargadine noted that each instance has its own set of circumstances and each officer is trained to use their own discretion on how to deal with situations. The discussion turned to policies and what types of policies the ICPD has in place for certain situations that they encounter. Wyss added that each officer has to use their own discretion in many of situations, along with supervisory guidance. He noted that the ICPD does strive for consistency in how situations are handled, although there are often a variety of factors that determine what the officer will ultimately do. Capt. Steffen commented as well, stating that the officers know they will need to defend their actions if called upon to do so. He also noted that all of the ICPD vehicles are equipped with in -car cameras that capture each situation, helping supervisors and the Chief better review how officers are responding. Hargadine responded further on how helpful the videos are and how command staff can use these in certain situations. Vanden Berg asked Chief Hargadine where he would like to see things go in terms of diversity issues. Hargadine responded that he sees this as an opportunity to showcase the ICPD and to show the community the myriad of things his officers do on a daily basis. Vanden Berg also asked the Chief how trust can be built up between the ICPD and the community. He stated that they already have several programs in place, but that they aren't always able to get the public to be a part of these programs. The conversation turned to how the public hears mainly `negative' things about the ICPD, not all of the 'positive' things about the officers and all that they do. Hargadine then responded to a question concerning how they can be more proactive rather than reactive. Ad Hoc Diversity Committee, September 17, 2012 4 Hargadine then shared a handout with Members, noting that it shows the last six police academy graduation classes for the entire state of Iowa. He asked that Members glance through these, which will show them who the police recruits are in Iowa. Townsend asked how many current ICPD officers are African - American, and Hargadine noted there are currently two officers. Capt. Wyss added that the department has been working on their recruiting process by encouraging minorities to apply. He stated that they received 317 applications during the latest hiring process. Wyss noted that they cannot require applicants to share their race on the application form, but that one African - American female did. He added that they have an equal opportunity employment plan in place but that they would welcome any ideas for improving this plan. Hargadine then asked the Members what they would like to delve into further this evening and what they would like to discuss at next week's meeting. Coulter stated that he is interested in data — the media, public perception, internal politics, national politics. Hargadine responded that he believes they have a good relationship with the media and that he often hears that from the reporters themselves. Coulter reiterated that what he is looking for are facts, not media reports or political points of view. Chief Hargadine noted that the ICPD's annual report does a good job with this. Coulter further clarified what he is looking for — a breakout by city or school district with regard to race and ethnicity, and gender against citations, including all offenses for the past five years. Botchway asked the Chief further about the process of implementing diversity training and what kind of oversight there is to make sure these issues are being addressed as per the training. Hargadine noted how the video can often be useful in situations like this, to be able to see how an officer handled a particular situation. Vanden Berg asked that the information also show the content of the training received by officers, and if the officers did any evaluations of the training, in order to show what the officers derived from it. Hargadine gave Members a brief history of Diversity Focus and how well the training has been received by the ICPD. Coulter then suggested a program that could be used to evaluate the police department, for example, on their diversity efforts. He added that they would need to have measurable data in order to carry out such a program. The discussion continued with Members questioning the charges given them by the Council, and just why this committee was formed. Botchway noted that from what he is hearing tonight there are no problems, that everything is fine — yet he knows that there must be something wrong if this committee was formed in the first place. Perceptions were discussed, with Botchway stating that they need to dispel the negative perceptions. Members continued to discuss what data they would like to receive from the ICPD, such as what types of programs are available to help educate the public on law enforcement issues. BOARD DISCUSSION: None. TENTATIVE MEETING SCHEDULE: Chairperson Botchway briefly reviewed the upcoming meetings schedule. Karr noted that there is a conflict on October 1, with Roberts stating that she would need to either move the meeting time to later that day or move to another day. It was suggested that Ad Hoc Diversity Committee, September 17, 2012 Karr send Members an email regarding their schedules and how they want to handle the October 1 meeting. PUBLIC INPUT: None. ADJOURNMENT: Vanden Berg moved to adjourn the meeting at 6:00 P.M.; seconded by Coulter. Motion carried 6 -0. Ad Hoc Diversity Committee, September 17, 2012 Ad Hoc Diversity Committee ATTENDANCE RECORD 2012 Key: X = Present O = Absent O/E = Absent/Excused -- = No longer a member TERM O O O O EXP. N `��° `�.° N t0 O V Cindy 03110113 X X X Roberts Joan 03110113 X X X Vanden Berg Bakhit 03110113 X X X Bakhit Kingsley 03110113 X X X Botchway Orville 03110113 X X X Townsend Joe Dan 03110113 X X X Coulter Donna 03110113 O/E X -- Roberts Key: X = Present O = Absent O/E = Absent/Excused -- = No longer a member 3b(3) MINUTES APPROVED 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 present except Jennings. 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 13 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 staff's 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 13 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 13 Chrischilles 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. Chrischilles 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. Chrischilles 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. Chrischilles 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. Chrischilles 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 13 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. Chrischilles 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. Chrischilles 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. Chrischilles 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 purchase order with a vendor for the construction of the proposed turbine. He said on March 27, Tallman informed him via email that the City's previous conclusion was wrong, and a wind Board of Adjustment July 11, 2012 Page 6 of 13 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. 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. Board of Adjustment July 11, 2012 Page 7 of 13 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. 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. Board of Adjustment July 11, 2012 Page 8 of 13 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 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 Board of Adjustment July 11, 2012 Page 9 of 13 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 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 Board of Adjustment July 11, 2012 Page 10 of 13 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). 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. Board of Adjustment July 11, 2012 Page 11 of 13 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. 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: Board of Adjustment July 11, 2012 Page 12 of 13 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. ADJOURNMENT: Crischilles moved to adjourn. Baker seconded. The meeting was adjourned on a 3 -0 vote. W N W W LQLQN Op pZ W Q � °mQ E O -00 O �Z U p� -0 x E C �. c U 2 a) a) (b a -Oaz o a Q II II Z II II W II XOOZ ! 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