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Home My WebLink About2016-11-17 Info PacketI _ i 1240n� CITY COUNCIL INFORMATION PACKET CITY OF IOWA CITY www.icgov.org November 17, 2016 IPI Council Tentative Meeting Schedule MISCELLANEOUS I132 Copy of Press Release: Mayor issues statement supporting a diverse and safe community I123 Information from Council Member Dickens: Johnson County Paratransit Advisory Committee — November 16 meeting IP4 Memo from Housing Adm.: Update on Transition Payment to Tenants of Rose Oaks Apartments from City's Affordable Housing Fund IP5 Copy of Press Release: Hazardous waste collection event scheduled Friday at ESRC I136 Copy of Press Release: Holiday Market this Saturday, Nov. 19 DRAFT MINUTES I137 Board of Adjustment: September 14, 2016 [Transcriptions] IPS Board of Adjustment: September 21, 2016 [Transcriptions] I139 Board of Adjustment: September 30, 2016 [Transcriptions] I1210 Housing and Community Development Commission: October 20 � City Council Tentative Meeting Schedule IP1 ^'"r®w1lC� Subject to change November 17, 2016 CITY OF IOWA CITY Date Time Meeting Location Tuesday, December 6, 2016 3:30 PM Work Session/tour (note start time) Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, January 3, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Saturday, January 7, 2017 8:OOA-5:OOP Budget Work Session Emma J. Harvat Hall Tuesday, January 10, 2017 1:00-7:00 P Budget Work Session (CIP) Emma J. Harvat Hall Tuesday, January 17, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, February 7, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, February 21, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, March 7, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, March 21, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, April 4, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, April 18, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, May 2, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, May 16, 2017 5:00 PM Work Session Emma J. Harvat Hall 7:00 PM Formal Meeting IP2 Marian Karrmj From: City of Iowa City <CityoflowaCity@public.govdelivery.com> Sent: Thursday, November 17, 2016 9:34 AM To: Marian Karr Subject: Iowa City Mayor issues statement supporting a diverse and safe community O SHARE Having trouble viewing this email? View it as a Web page. cava 10WACITY FOR IMMEDIATE RELEASE Date: 11/17/16 Contact: Marian Karr, City Clerk Phone: 319-356-5041 Iowa City Mayor issues statement supporting a diverse and safe community Over the past week, a number of intimidating acts have been directed toward definable groups of Iowa Citians. Monday's incident involving an intimidating message being posted on the door of a Sudanese family exemplifies the point. As a result of this and related acts, many residents are feeling increasingly fearful and threatened. We on the City Council understand that Iowa City residents have strong feelings about the results of the November 8 election. Some Iowa Citians are feeling profoundly shocked and grief-stricken; others are feeling pleased. Thoughtful and respectful dialogue and debate about controversial issues is appropriate. It is part of the democratic spirit of engagement that has long been part of life in Iowa City. Verbal and physical acts that threaten or intimidate people with whom one disagrees are not part of our culture. They do not reflect who we are. We celebrate our community's diversity, and we welcome all residents who live here, regardless of their national origin, color, religion, sexual orientation, or gender identity. We are committed to our City Charter, the human rights provisions of our City Code, and the provisions of the U. S. Constitution that protect civil liberties and provide equal protection under the law. We strongly condemn any political rhetoric, regardless of viewpoint, that involves threatening or intimidating language. We strongly condemn any actions that involve the threat or fact of physical harm to others. On behalf of the City Council, I urge every member of our community to uphold our shared values of compassion, inclusion, respect, and dignity, and to continue building an environment in which everyone is valued and everyone has the opportunity to thrive. From Council Member Dickens IP3 Johnson County Paratransit Advisory Committee Meeting Agenda November 16, 2016 1:00 PM — 2:00 PM The Johnson County Paratransit Advisory Committee will be meeting at the Goodwill Plant. 1. Call to Order 2. Open Discussion (open for public comment) 3. Chairperson's Report a. Introductions 4. Director's Report a. North Liberty update b. Mobility Coordinator update C. Lighting Hybrid for SEATS vehicle?? d. Website: auto for Rider Guide, link to North Liberty Transit Services, 2016 rider survey results, online trip request, and more 5. Old Business a. Approval of last meeting's minutes 6. New Business 7. Set next meeting date & time: February 28, 2017 at 1PM? 8. Adjournment Johnson County Paratransit Advisory Committee Minutes August 23, 2016 Goodwill Plant Present: Members: Terry Dickens, Vicky Robrock, Marc Rahe, Gerry Gardner, Mike Carberry Ex -Officio: Others: Tom Brase, SEATS Director, Brad Newman, Angie Conard, Brock Grenis Absent: Members: Loren Schmitt, Rod Sullivan, Lynne Stamus, Rod Sullivan, Harry Olmstead Ex -Officio: Ann Trotter, Ron Schieffer, Roger Goedken Others: Chris O'Brien 1. Call to order: 1:06 2. Open Discussion: None 3. Chairperson's Report: a. Introductions 4. Director's Report: a. North Liberty only fixed route service & complimentary paratransit: Waiting on Iowa DOT for clarification on language. There will be some adjustments but they might not be able to do five laps. Each "lap" would take 49 minutes. Would like to charge $2 for fixed and paratransit rides. They will not go to the Northwest side of North Liberty. Trying to get this up and running for the fall. Looking into buying a used vehicle from Iowa City, also looking for a fare box. Trying to stay away from punch cards. Looking at October 1 as a possible start date. b. Riders survey 2016: Results were handed out. 325 surveys were returned. Tom will forward the information to the University. c. Looking for transportation to vote: Grant money is available. Harry O. is trying to get transportation for voting sites. They would like to have the SEATS bus wait while they vote but that is not possible. 5. Old Business: Approval of last meetings minutes by Terry, 2°d by Gerry 6. New Business: Would like to change the by-laws to show that only one Board of Supervisor and one council member are required to attend. The Board of Supervisors approved this at the last meeting. Should North Liberty be added to the by-laws? It was decided to invite North Liberty to attend but wait to add them. A mobility manager will be hired, application deadline is Oct. 1. Responsibilities and location are to be determined. 7. Next meeting: November 16 at 1:00p.m. 8. Adjourn: 2:00 r rTrTrTri :,p CITY OF IOWA CITY IN MEMORANDUM Date: November 17, 2016 To: Geoff Frain From: Steven J. Rackis, Housing Administrator Re: Update on Transition Payment to Tenants of Rose Oaks Apartments from City's Affordable Housing Fund Background: On August 16, 2016, the City Council of the City of Iowa City resolved that each of the two -hundred and seven (207) households with a valid lease at the Rose Oaks Apartment Complex as of February 27, 2016 shall be eligible, upon application, to receive a transition payment of $250 from the City's affordable housing fund. Subsequent to the resolution, it was determined that there was one (1) additional tenant eligible for the $250 transition payment. Therefore the total number of tenants eligible for the Rose Oaks $250 transition payment equaled two -hundred and eight (208). Discussion: Following is the data for the Rose Oaks transition payment effort as of November 17, 2016: • One -hundred and forty-two (142) applications for the $250 Rose Oaks transition payment have been mailed or retrieved in-person. • The City issued a total of $35,500 for Rose Oak transition payments as of November 17, 2016. Conclusion: The deadline to apply for this payment was October 31, 2016. No additional applications will be processed unless the tenant's application meets the City's requirements for a late appeal. Following is a list of the Cities and States where the Rose Oaks $250 Transition payments were sent: Iowa City IA 108 Coralville IA 12 Cedar Rapids IA 5 Des Moines IA 3 Burlington IA 2 Benton AR 1 Gary IN 1 Keota IA 1 Lake Jackson TX 1 Orlando FL I Saint Cloud MN 1 Springfield OH 1 Tiffin IA 1 Unity WI 1 Urbandale IA 1 Waterloo IA 1 Westbrook ME 1 IP5 Marian Karr From: City of Iowa City <CityoflowaCity@public.govdelivery.com> Sent: Tuesday, November 15, 2016 3:11 PM To: Marian Karr Subject: REVISED - Hazardous waste collection event scheduled Friday at ESRC O SHARE Having trouble viewing this email? View it as a Web Daae. 10WACITY FOR IMMEDIATE RELEASE Date: Nov. 15, 2016 Contact: Jen Jordan Phone: 319-887-6160 REVISED - Hazardous waste collection event scheduled Friday at ESRC Note: This media release has been revised and reissued to correct a web link. The Iowa City Landfill and Recycling Center will sponsor a mobile household hazardous waste collection event this Friday, Nov. 18, 2016 from 8 a.m. to 11 a.m. at the East Side Recycling Center, 2401 Scott Blvd. SE in Iowa City. There is no cost to participate. Residents of Iowa City and other communities in rural areas of Johnson County, as well as residents of Kalona and Riverside, may dispose of one box of hazardous waste per household, including oil-based paint, household cleaners, non -alkaline batteries such as rechargeable or cell phone batteries, sharps, motor oil and other automotive fluids. No latex paint will be accepted at this event. For a complete list of the items that can be dropped off for disposal, visit the Landfill's hazardous waste section on the City's website at www.icgov.org/esrc. Residents with more than one box of household hazardous waste, all businesses, and/or those with materials that will not be accepted at the mobile event should call 319-356-5185 to make an appointment for disposal at the Iowa City Landfill's permanent household hazardous waste collection facility. For more information, contact the Iowa City Recycling Coordinator at 319-887-6160 or email ]e n n fifer-iordan (a-)iowa-city. o ra. aril Questions? .raJ11111 Contact Us CITY OF IOWA CITY MISCO CITY aOURAI reT From: City of Iowa City <CityoflowaCity@public.govdelivery.com> Sent: Tuesday, November 15, 2016 11:48 AM To: Marian Karr Subject: Holiday Market this Saturday O SHARE Having trouble viewing this email? View it as a Web page. 10WACITY Date: 11/14/16 Contact: Juli Sevdell Johnson Phone: 319-356-5110 Holiday Market this Saturday, Nov. 19 Looking for the perfect holiday gift for a friend or family member? Stop by the Iowa City Holiday Market this Saturday, Nov. 19, 2016 from 8 a.m. to 1 p.m. at the Robert A. Lee Recreation Center, 220 S. Gilbert Street. The market will be held in the Recreation Center's gym on first floor and Social Hall on second floor, so be sure to visit both areas to shop for the full selection of items. Many of your favorite Farmers Market vendors and other artists and crafters from the area will participate, and your purchases of homemade, handcrafted gifts and foods will help support their work. Can't make it this weekend? A second Holiday Market will be held Saturday, Dec. 10 from 8 a.m. to 1 p.m. at the Robert A. Lee Recreation Center. For more information, contact Tammy Neumann with the Iowa City Parks and Recreation Department at 319-356-5210 or e-mail tammy-neumann@lowa-city.org. 1 ! I 3�IirTt Questions? .raJ� Contact Us CITY OF IOWA CITY UMXO CITY Oi tII MAIM STAY CONNECTED: f P�n SUBSCRIBER SERVICES: IP7 MINUTES BOARD OF ADJUSTMENT SEPTEMBER 14, 2016 — 5:15 PM EMMA HARVAT HALL, CITY HALL PRELIMINARY The transcript of the digital audio recording of the hearing by Julie M. Kluber, SCR, RMR, which is attached shall serve as the minutes for the meeting. Board ofAojustment 9-14-16 nPIr-IN!A,I MEETING OF THE BOARD OF ADJUSTMENT SEPTEMBER 14, 2016 5:15 p.m. to 11:30 p.m. EMMA HARVAT HALL, CITY HALL IOWA CITY, IOWA Members present: Larry Baker, Gene Chrischilles, Connie Goeb, Becky Soglin, Tim Weitzel Members absent: Staff present: Doug Boothroy, Susan Dulek, Brian Greer, Jason Havel, Tim Hennes, Sarah Walz, John Yapp Others present: Mark Parmenter, James Larew, Brian Boelk, Dennis Befeler, Jiyun Park, Bill Ackerman, Chris Rossi, Craig Syrop The following is a transcript of the meeting held at the above date, time, and place and was transcribed from the digital audio recording made at such time. Julie M. Kluber, CSR, RMR 3515 Lochwood Drive NE Cedar Rapids, IA 52402 319-286-1717 866-412-4766 Page 1 to 1 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9.14-16 2 1 PROCEEDINGS CHAIRMAN BAKER: I'd like to call this meeting of September the 14th to order, please. First order of business is roll call. MS. WALZ: Chrischilles. MR- CHRISCHILLES: Here. MS. WALZ: Soglin. MS. SOGLIN: Here. MS. WALZ: Baker. CHAIRMAN BAKER: Here. MS. WALZ: Weitzel. MR. WEITZEL: Here. MS. WALZ: Goeb. MS. GOEB: Here. CHAIRMAN BAKER: Next order of the agenda is the consideration of the minutes of August the 10th. MS. WALZ: I just have — there are a few minor typos. I could just hand those to you. Other than that — MR. WEITZEL: I have a question for Gene. On page 3, line 2, is that your question? Because I don't believe it was mine. MR. CHRISCHILLES: Page 3, line 2. Yes, I believe it was. MR. WEITZEL: Okay. 3 MS. WALZ: Do you have a motion to approve? CHAIRMAN BAKER: Motion to approve? MR. WEITZEL: So moved. MS. SOGLIN: Second. MS. WALZ: Moved by Weitzel, second by Soglin. CHAIRMAN BAKER: All those in favor say "aye." (A vote was taken and the motion passed.) CHAIRMAN BAKER: The minutes are adopted. Now, before we proceed to the first item on the agenda, I'm going to make a statement about the role of the Board of Adjustment. The Board of Adjustment is a quasi-judicial body created by the City of Iowa City according to state statutes. The board's purpose is to decide on applications for variances from the zoning ordinance, appeals of decisions of city officials, and applications for special exceptions requested under the zoning ordinance. As one of Iowa City's boards and commissions, we welcome all testimony. We base our decisions on facts and evidence allowed by city code presented in open meeting. Concise and truthful testimony helps us a great deal in our decision-making. As this hearing becomes lengthy, we may ask that testimony be focused on new facts or on information not already presented. We ask that If you wish to speak 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 that you come to the podium, print your name and address on the sign -in sheet, and speak clearly Into the microphone so your testimony can be heard by all present and by our minute taker, as all testimony becomes part of the public record. We ask that the proceedings be orderly and that when you are testifying, you address your remarks to the board. The Board of Adjustment is an independent volunteer board made up of citizens and is not part of the city administration. We are assisted in our work by the city attorney's office and planning department staff. The order of proceedings for each application will be an oral report by staff summarizing the issues of the case and staffs recommendation and that opportunity for the applicant to speak, an opportunity for any other interested parties to speak for or against the application, an opportunity for final statements and arguments by the application staff. The board will discuss the issues and evidence, state its findings, and vote on a motion. Motions are always made in the affirmative. That is the required statement, but lel me put something else out that I think many of you already know. Unlike the city council and unlike the planning and zoning commission, the Board of Adjustment has no 6 planning or prep meeting before this meeting. This is the first time we are going to talk about this. We did not talk to each other privately. We have not talked to the staff privately. Everything that affects our decision will be presented and discussed at this meeting tonight. So I just wanted to let you know because of that, we tend to ask a lot of questions to gather as much Information as possible because this is the only opportunity we have. So with that, let me introduce the first item on the agenda. MS. GOEB: Mr. Chairperson? CHAIRMAN BAKER: Yes, ma'am. MS. GOER: I would — I need to be recused from this item. I have already expressed my opinion on this Issue in a letter to the city council in June back when it first came up, so I need to be recused. CHAIRMAN BAKER: All right. Thank you very much, Connie. I understand. Now, the appeal item: Appeal 167-00001, discussion of an appeal by decision of the Development Services to issue a building permit for a residential use on property located in the low density single-family RS -5 zone at 101 Lusk Avenue; alleging an error in the classification of the property as a residential use, wrongful approval of a site plan, and other zoning code Page 2 to 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 til 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 errors. Now, before we start, I'd like to have the attorney introduce himself. MR. PARMENTER: Thank you, Mr. Chair. Mark Parmenter. I've been engaged to represent Board of Adjustment, and as our chair has said, t Board of Adjustment is an independent body of t of Iowa City, so I'm not here on behalf of the City Iowa City. I'm not here on behalf of the propone I'm not here on behalf of the opponents. I'm here solely to represent the Board of Adjustment. I've offered any opinions in this matter, and I will not offering any opinions in this matter: My role is to ensure that these proceedings are fair to all, both proponents and opponents, and that the Board of Adjustment understands what authority and what that it has to act in this matter, and with that, than you, Chair. CHAIRMAN BAKER: And with that, before w staff report, let me ask a couple questions on ben the board. Understand we have very narrow para which to base a decision, but those don't restrict from asking any question that we want regarding issue. We can range as far as we want to. MR. PARMENTER: That's right, Mr. Chair. I you're here to hear all of the facts, all of the evidence that's going to be presented by all of the parties. The Iowa City Code does restrict what th Board of Adjustment can and cannot do, and I'm r from the code here: Permits the board to reverse modify the decisions made by the NDS only upon of error. If the board finds an error was made by t NDS, it has the power to reverse or modify in whol In part any of the issues that are presented here f the board to decide. CHAIRMAN BAKER: Okay. We got some gu originally with this report that were superseded by other guidelines. Can you explain the difference i those two sets of guidelines? MR. PARMENTER: Yeah, the other guideline were presented really don't apply for the purposes your role in this decision on an appeal. I've given you in letter, which I believe you all received both letter and a memorandum from me, what the appli code section and law is or authority both under to and the Iowa City Code for you to reference and u making your decision in this matter. CHAIRMAN BAKER: Okay. And one last que before we start. Throughout the staff report, there a position taken on several of the issues that the, then they'll name the issue, is not regulated by the Board of Adjustment 9-14-1e 6 1 zoning 2 appeal My name is 3 issues the 4 positio he 5 not in t he City 6 M of 7 powers nts. 8 Code a 9 end of not 10 error. be 11 CH 12 fact orj City 13 M 14 both, b power 15 There's k 16 present 17 plannin e get the 18 meeting alf of 19 and so meters in 20 that me us 21 should I I 22 decisio 23 CH n fact, 24 think up 25 MR 7 1 Boothro e 2 Depa eading 3 Before I or 4 which w e finding 5 not. So he 6 first one e or 7 refers t or B let's see 9 The idelines 10 Brian G 11 think it's n 12 letter co 13 issue wi s that 14 Flow, at I of 15 fire dep to 16 Let's a 17 memora cable 18 service, low law 19 he will t Be in 20 some of 21 I'll let yo stion 22 this stuff is 23 MR. and 24 MR. 25 that? 6 code, and therefore not something that can be ed to the Board of Adjustment, which narrows the down. Is that, in your opinion, a valid n? And we are restricted by the fact that Its he zoning code. R. PARMENTER: You are. You're restricted by what and authority you've been given under the Iowa s well as the city code for Iowa City, and at the I day, you first must find that there's an AIRMAN BAKER: Okay. And this is an error of udgment? R. PARMENTER: Well, it's an error of perhaps ut you are here to listen to all of the facts. going to be probably some facts that are ed to you tonight, like there is in a lot of g and zoning meetings, Board of Adjustment s, even city council meetings, that are relevant me things that may not be as relevant, some things y not be relevant at all. But you as a board isten to everything before you make your n. AIRMAN BAKER: Great, thank you. With that, I first is the staff report. . BOOTHROY: Good evening. My name is Doug 9 y, for the record. I'm the director of the rtment of Neighborhood and Development Services. start tonight, we have some memorandum, some of ill be testified to tonight, some of which will I have copies, I think, for everybody. The is a memorandum from Eleanor Dikes that o improprieties possibly in her office, and here. There we go. Hold this straight. second memorandum is from the fire marshal, rear, that essentially he'll testify to later. I front to back here, so — Essentially the nfirms that the property in question is not an th regard to fire protection, either access or east in the opinion, expert opinion, of the artment. see, what have we got here now. The next ndum is from the city engineer regarding sewer site drainage, and storm water management, and estify to the adequacy of sewer service and the other Issues that were brought up. I think u (inaudible). All right I need to get organized. I've got a lot of paper here. CHRISCHILLES: [have a question. BOOTHROY: The next -- I'm sorry, who said Page 6 to 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ii1 22 23 24 25 Board of Adjustment 9-14-16 10 1 MR. CHRISCHILLES; I did. MR. BOOTHROY: Oh, I'm sorry. MR. CHRISCHILLES: I'm just wondering, is this considered adequate time to digest this material? I mean we're given three pieces of pertinent information. MR. BOOTHROY: Well, some of this information only came to us in — this is about expert information in terms of defining what is fact and what is fiction, and I think it's relevant to your review. If you need more time, you know, that's up to you In terms of how you make your decision, whether it's tonight or later. MR. CHRISCHILLES: Yeah. MR. BOOTHROY: My experience has been in working with the board in the past that sometimes it gets deferred If there's a lot of information handed out. CHAIRMAN BAKER: How much time has the appellant had to digest this information? MR. BOOTHROY: Well, some of this I just got this afternoon. CHAIRMAN BAKER: Okay. So they haven't had a chance to review it either. MR. BOOTHROY: They have not had a chance. But I relied on people to give me the information, so it took awhile to get it. I just this afternoon, about an hour ago, got a memorandum from the city attorney in 11 University Heights to clarify some of the misunderstanding or misinformation presented by the appellants concerning the denial of the application in University Heights. Let me get started by introducing the City staff that were involved with the review of this building permit application. Tonight I have with me from the Department of Neighborhood and Development Services Tim Hennes, who is a senior building inspector. He can speak to any questions about the International Residential Code. John Yapp, who is a development services coordinator, certainly can talk about zoning if there's some questions about that. Other staff that are here tonight are Roger Jensen, assistant fire chief; Brian Greer, fire marshal, which is what the correspondence is from. Jason Havel, who's the city engineer, is here. Sue Dulek, first assistant city attorney, is here. I introduce these individuals because they all have extensive training and experience in dealing with some of the issues that are discussed, some of which are not zoning issues. Some are more public Improvement type issues, and they have that expertise that I think is important for the board to hear. We have — You know, we spent approximately six and a half weeks looking at 12 1 all the various issues. This was not a rush to judgment 2 in any stretch of the imagination. Single-family type 3 permits of this nature are Issued three to four days on 4 average, sometimes shorter periods of time because 5 they're not complicated. They don't have issues, much 6 of which — some of the issues which are being brought 7 up today. 8 So in arriving at my decision with regard to the 9 permit and the use as a detached single-family, 10 two-story unit that is designed to function as a 11 residential use designed to live in and based on the 12 intentions expressed by the applicant, these individuals 13 helped me work through all the sections of the code, 14 whether it be zoning code or whether it be public works 15 or whether it be other — the fire code or the 16 International Residential Code, to make sure that we did 17 our due diligence; make sure that, you know, we looked 18 at everything because we knew that there was concern and 19 controversy related to the architectural design of this 20 particular building. 21 Before I get started, I also want to make mention 22 of comments made by the appellants' attorney concerning 23 an alleged conflict of interest on the part of one of my 24 building inspectors. I think that the Ballard 25 memorandum will clarify that for you, but it's 13 1 difficult. At this point you can't pull that back. 2 What I can tell you is that — and you're welcome to ask 3 anybody here tonight that's part of the City team. What 4 1 can tell you is that Terry's job description is not a 5 building official. I'm the building official for the 6 City of Iowa City. Terry's job is not to make 7 determinations on use classification. Terry's job is as 8 a plan reviewer. He only reviews the technical details 9 of the plan and the site plan, and once those details 10 are met and the use classification is confirmed, then he 11 or anybody else in my office can issue the building 12 permit, and that's what happened. L3 I think the other thing that was — may not be 14 obvious to the public is there was some comments about 1.5 another staff member of mine that's here tonight, Sarah 1.6 Walz, and I will tell you that Sarah and I have not had L7 any conversation about anything that's been going on L8 with this meeting. We basically have avoided having L9 that type of interaction. She was not involved with any !o discussion on the use classification, nor would it have !1 been appropriate for her since she doesn't work in that !2 part of the division. !3 Just so -- Let me also, I think, read briefly from !4 Mr. Bollard's memorandum, because I think -- I think I'd :5 like to get that into the record because he's not here Page 10 to 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Yd.7 Board of Adjustment 9-14-16 14 1 to do it himself. On page 2 just — he says the decision — This is about the denial of the permit for the structure. "The decision was not based on the character of the proposed structure or compliance" — MS. WALZ: I'm sorry, can you just — which document are you on? MR. BOOTHROY: This is Mr. Ballard's document from the city attorney. MS. WALZ: Okay, that says -- okay, thank you. MR. BOOTHROY: Second page. Down in the -- I'd call it the second paragraph, the second sentence. Again, "The decision was not based upon the character of the proposed structure or the compliance with the zoning code." He goes on at the end of the paragraph to say, 'The University Heights" — city council Is what he's referring to — "in a 2015 decision was not based on the conclusion," and this is important, "that the proposed structure appeared to show a commercial recreational use that was prohibited in the R-1 zone. Rather, the decision was based only upon the failure to show compliance with site plan restrictions, specifically sensitive slopes," and he's attached the minutes to his memorandum. I think I -- it's important to note that because throughout the appellants' brief, they imply that the 15 city attorney made some ruling on whether or not this was a proposed commercial recreational use, and I think he clarifies for the record that that was never pursued. It all came down to a sensitive areas issue, and that's how it was denied. In this situation, of course, we don't have a sensitive areas issue that's pending on this particular development. So I'd like to get into the presentation now. As you noted, Mr. Chairman, in the staffs report, I clearly tried to Identify areas that were zoning and areas that were not zoning. As you probably know, I felt that was Important because not everybody understands the distinction and the role, and zoning code as drafted paraphrases or pretty much quotes the state code in terms of what the board's power — powers are, and we elaborated a little bit more when we drafted that language, and it was intended to provide the clearest direction with regard to your review authority, and that is with the zoning code. However, that being said -- and you noticed that I addressed a lot of the other Issues in my report. That being said, there was information provided In the appellants' brief that needs clarification that is misinterpreted or misrepresented, and unfortunately, when that happens and ifs circulated amongst the 16 1 public, there's maybe — may believe that there are 2 violations or problems where none exist, and so I want 3 to make sure that with the testimony of our staff as 4 well as what I say tonight that we clarify some of those 5 issues. Being left-handed, I have to find the mouse 6 here for a minute. 7 So similar to the staff report that you received, 8 I'm going to follow this outline of the chronology, some 9 of the determinations, the zoning code review, and the 10 response to the appeal. Now, I'm going to go through 11 this in detail, because this is going to get litigated. 12 This is just, in my opinion, the first step in a long 13 process, and so I think it's important that we clearly 14 understand what the definitions are, clearly understand 15 what some of these zoning code requirements are so that 16 you have the benefit of asking me any questions as I go 17 through some of the information that I provided in the 18 staff report. So 1 know that it may feel tedious, but 1 19 think we have to establish, and I do want to establish, 20 a record upon which whatever decision you make can be 21 defended. 22 So let's talk about the current situation so that 23 we know where we are to date. A building permit was 24 issued for a two-story, single-family, detached dwelling 25 to be located on a vacant existing lot at the address of 17 1 101 Lusk Avenue on an existing public street. Existing 2 lot of record and existing public street are important 3 things to keep in mind because we have Infill lots all 4 over this community and older parts of the community, 5 and some of the situations that we're talking about here 6 also apply in those areas, and historically we have 7 always issued and recognized existing lots of record and 8 we'll talk about that. This would be a significant 9 change in the way the ordinances have been applied, at 10 least in my 41 years with the City. 11 The intended use is a single-family residence. The 12 building permit applications — application was for a 13 two-story home, and we have information from the 14 property owners that state their intent as a second 15 home. And to follow up on that, and this was not part 16 of the use classification process, I requested that they 17 sign an affidavit of use for the purpose of putting 18 future property owners on notice in case there's any 19 misunderstanding that this property can be used as a 20 commercial use. 21 What's interesting about this discussion tonight is 22 that we don't disagree with the neighbors on this. 23 We — The zoning code does not allow a commercial venue 24 at this location. It is not debatable, it is not 25 listed, it cannot happen. We are debating whether or Page 14 to 17 9-14-16 20 the chapter -- or Section 18 is not applicable. This clearly says that single-family and two-family dwellings are exempt, and then if you read the minor site plan exemption, that's also exempt. I wrote that language to make sure that -- at the direction of planning and zoning and the city council some 20 years ago that single-family and two-family dwellings would never go through the site plan review process because of the costs that it would impose and the onerousness of the process. There is no doubt of the intent of that particular part of the regulation, and I am the author of it and I'm here to testify if you have any questions about that. MR. CHRISCHILLES: I have a question. MR. BOOTHROY: Okay. MR. CHRISCHILLES: So the site plan review is an Iowa City creation, and it doesn't-- it didn't apply in University Heights in order to — MR. BOOTHROY: I don't— MR. CHRISCHILLES: -- use it and Iowa City does not? MR. BOOTHROY: Well, I can give you the whole history. It look me a year to work with planning and zoning and the city council on it, but basically what — we had a large-scale nonresidential/residential 21 development review process some 20 years ago, and this was getting at large developments and so in order to streamline the process, I rewrote the — eliminated those two chapters — sections out of the code and replaced it with a site plan review process which is unique to Iowa City. MR, CHRISCHILLES: Thus, making it not required for single-family homes. MR. BOOTHROY: And thus making It not required for single-family homes. MR. CHRISCHILLES: But it is required in University Heights. MR. BOOTHROY: I don't know. I wrote this 20 years ago. I have no idea what they require today so -- MR. CHRISCHILLES: Okay. MR. BOOTHROY: Talk about the Uniform Plumbing Code. It does talk about independent connection with public or private sewer. We will show that the City approved the six-inch private sewer main which the three houses have service lines attached to in 1927. We have the sewer permit. This is not unusual in the community. We have other places —just a half a block north on Jefferson Street, we have several rooming houses, multifamily buildings on a private sewer much like this one, so we don't -- we do recognize these permissions, Page 18 to 21 Board or Adjustment 18 1 not the house is attractive for someone to possibly use 1 2 it that way, but the house -- the building permit was 2 3 issued for a single-family structure, and it clearly 3 4 through the records indicates that it cannot be used — 4 5 cannot ever be used as a commercial operation. That's 5 6 important for a couple reasons. 6 7 Number one is I want a good record so that if this 7 a comes up as an issue at some point in the future, when 8 9 we go to court to litigate this, we will have good 9 10 documentation about the City's processes, and of course to 11 with the board's meeting tonight, we have even further 11 12 documentation tonight that's going to be given by the 12 13 owner that they have no other intention to use this 13 14 except as a dwelling for their family and for 14 15 recreational uses that are permitted in every zone. We 15 16 do not tell people that they cannot have informal social 16 17 gatherings and, in fact, we allow tailgating as an 17 18 informal social gathering in every neighborhood and 18 19 specifically as a noncommercial event, and I'll talk 19 20 more about that since I have a long history in dealing 20 21 with that particular issue and -- and drafting that 21 22 definition. 22 23 The appeal came in and we issued a stop work order 23 24 on June 29th, 2016, and finally we're at the hearing to 24 25 consider ft. A little bit about the chronology. 1 25 19 1 just — I won't go through it in detail because anybody 1 2 can read this, but I think it's important. I always 2 3 want to reinforce that -- that we have an electronic 3 4 system, and so when the application comes in, we can't 4 5 upload the plans until they pay, so on April 11th, 5 6 that's when we received the plans and as you notice, 6 7 about six and a half weeks later, we finished our 7 8 exhaustive review and it wasn't, as I said, me and just 8 9 me. It included everybody in terms of talking about 9 10 some of the issues that were going to talk about 10 11 tonight. 11 12 Mr. Larew in his most recent document asserts, and 12 13 1 quote, "flaws so numerous and so fundamental that to 13 14 allow its construction," and we're talking about this 14 15 house, "would likely pose adverse effects upon the 15 16 health, welfare, and safety of others." I'm going to 16 17 demonstrate tonight in the things that I talk about and 17 18 the testimony from the fire department and the city 18 19 engineels staff that these are a misunderstanding or a 19 20 misrepresentation of what the code actually says or how 20 21 ifs applied. 21 22 Number one, this is a zoning issue, and we do need 22 23 to focus on that because that's clearly where your 23 24 authority is, and if I made an error, this is the time 24 25 to find it. Number two, the site plan approval through 25 9-14-16 20 the chapter -- or Section 18 is not applicable. This clearly says that single-family and two-family dwellings are exempt, and then if you read the minor site plan exemption, that's also exempt. I wrote that language to make sure that -- at the direction of planning and zoning and the city council some 20 years ago that single-family and two-family dwellings would never go through the site plan review process because of the costs that it would impose and the onerousness of the process. There is no doubt of the intent of that particular part of the regulation, and I am the author of it and I'm here to testify if you have any questions about that. MR. CHRISCHILLES: I have a question. MR. BOOTHROY: Okay. MR. CHRISCHILLES: So the site plan review is an Iowa City creation, and it doesn't-- it didn't apply in University Heights in order to — MR. BOOTHROY: I don't— MR. CHRISCHILLES: -- use it and Iowa City does not? MR. BOOTHROY: Well, I can give you the whole history. It look me a year to work with planning and zoning and the city council on it, but basically what — we had a large-scale nonresidential/residential 21 development review process some 20 years ago, and this was getting at large developments and so in order to streamline the process, I rewrote the — eliminated those two chapters — sections out of the code and replaced it with a site plan review process which is unique to Iowa City. MR, CHRISCHILLES: Thus, making it not required for single-family homes. MR. BOOTHROY: And thus making It not required for single-family homes. MR. CHRISCHILLES: But it is required in University Heights. MR. BOOTHROY: I don't know. I wrote this 20 years ago. I have no idea what they require today so -- MR. CHRISCHILLES: Okay. MR. BOOTHROY: Talk about the Uniform Plumbing Code. It does talk about independent connection with public or private sewer. We will show that the City approved the six-inch private sewer main which the three houses have service lines attached to in 1927. We have the sewer permit. This is not unusual in the community. We have other places —just a half a block north on Jefferson Street, we have several rooming houses, multifamily buildings on a private sewer much like this one, so we don't -- we do recognize these permissions, Page 18 to 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 a 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 22 1 and Jason will get more in detail on that The fire department access, the 20 -foot -wide street will be in discussion. The fire department will talk more about that later. I would just say that this fall with the Prairie Hills development, at the city council the co -housing development received rave reviews on the design of its infrastructure. Thirty-five housing units and a social gathering hall on a 20 -foot -wide street much longer and with much higher density of housing. So we're still allowing this kind of access, and it passed the fire department's review at that time and it passes the fire department review at this time. There are many more streets like this in the Peninsula. There are some that have been allowed as well and even narrower than 20 feet. Fire protection water flow. The fire department will testify tonight that there is adequate water flow from the existing hydrants and will talk more about that. The fire department's practice is to pull water from multiple hydrants. The fire apparatus can only pull about 1500 gallons per minute. The hydrant was actually higher than that at 1565. So when we create our new developments or existing developments, you'll notice that there are five hydrants that are supposed to be spaced every 400 feet. 23 Recently when we annexed area north of St. Pat's and we approved subdivisions of 183 lots, some with multifamily units on it, none of those fire hydrants made the 1500 gmp and, in fact, they were around 870 to 900 per unit, so we designed that with the — with the understanding that adequate fire protection is provided through this system of networked fire hydrants. That's our common practice. It's common in other areas of the community, and even the street next to Lusk Avenue would not have fire flows meeting the standards suggested by the applicant. Basically, it's not an issue. So this is what we have determined and this is what I'm going to show as I go through this. First, we didn't misclassify the use. We believe it's appropriately classified as a single-family dwelling, and we believe — and we'll talk about that. It has -- It's designed to be lived in. Its got five bedrooms. It's gat a kitchen. It's got a family room. It's got a living roam. It's got recreational areas in it. It meets the definition of dwelling. It is reviewed under the International Residential Code, so It complies with that code, it complies with the definition of being a habitable structure. It's difficult to argue that it can't be used for occupancy. We did not approve the site plan in error because 24 1 Title 18 doesn't apply. We did not issue the building 2 permit in error. It does comply with the -- with what 1 3 just talked about. In the zoning code, we do list the 4 category private accessory uses are permitted. 5 Actually, I should say private recreational uses are 6 permitted,and — whoops, went too far—the zoning 7 code, and it's important to remember this particular 8 neighborhood does not regulate architectural style in 9 this particular zone. We don't regulate size, we don't 10 regulate style, we don't regulate number of bedrooms, we 11 don't regulate whether or not you want a home theater, a 12 wet bar, a wine -- a wine area or the type of appliances 13 you put in your house. Those are things that if you can 14 afford them, you can provide them. 15 So let's look at where we're at. As you see on the 16 map, it's located — the lot in question is located at 17 the end of Lusk Avenue. There was in this picture an 18 existing house that has now since been removed, and 19 the — to the south you'll see the railroad tracks. 20 Farther across the highway is the VA Hospital. To the 21 north is another 20 -foot -wide street with five or six 22 houses on it called Rowland Court, and Bayard intersects 23 with Lexington and Woolf at some point. Here's a — 24 here's a -- I pulled back a little bit and you can see 25 kind of how It fits with Woolf Avenue, Bayard, 25 1 Lexington, Hutchinson, so forth. This just shows you 2 that the building is basically a square building and how 3 it fits on the lot, and it — it meets the setback 4 requirements. The dotted or dashed line is the minimum 5 setback requirement, so it's — on the north to the top 6 of the picture is a five foot, to the south is five 7 foot, back is 20, and the front yard is 15. 8 1 wanted to walk you through this a little bit just 9 so that we all get a chance to see. You're probably 10 going to see this more than once tonight, so my pictures 11 probably aren't going to be as nice as some of the 12 others. What I want to start with is the elevations. 13 This is really -- Let's take a look at this. Let's see 14 if I can point to this with a -- this particular one 15 right here, this drawing here, this Is what it's going 16 to look like from the street. The lot is relatively 17 level. It slopes to the southeast The east, north, 18 and west side of the building will be primarily below 19 grade so when you're looking at — for some reason my 20 mouse isn't running here. 21 If you're looking at this, this will be — a lot of 22 this will be below grade. This is where the garages 23 are, this is where the driveway is going to be, this 24 will be below grade. And so it will appear to be a -- a 25 one-story house with a two-story portion at the — at Page 22 to 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NMI Board of Adjustment 26 goes down to the basement(cellar area. It's below the south end, so Its basically a two-story house with grade, and so in the family room you've got either glass 1 the bulk of it, about 75 percent of the perimeter, being 3 2 one story. there's an overhang here, and there are some appear to 3 What you'll notice on the second level, and this Is 6 4 the second level right here that I've got my -- is the entertaining in this particular area. 5 bedroom area, and there are four bedrooms up there. 9 6 Pretty typical, with a laundry facility. Down on the in, so this area right here, as you'll see, there are no 7 first floor, let me just take you through this. The 12 8 front door is where my cursor is in this area. It comes court is. The courtyard is located here, a 9 into kind of an aidock area that's not very wide, and 15 to one of the things that I'm sure draws attention to most not accessible, its all filled in. And so in the 11 people is these bathrooms that — that you encounter is 12 when you first walk through the door. here. You've got a mechanical room here. Here you've 13 To the — If you're coming in to the right is a 21 14 family room, which has patio -type doors. I guess And then we have another exit and then down here at 15 they'll open into the open courtyard. To the left is a 24 16 living area. In this area you have dining, you have a 17 kitchen with a countertop with some stools, with 18 other — you know, microwave, stuff like that in this 19 area. And over here you have another bedroom with a 20 bathroom an suite in this particular area just off -- in 21 the back of the house. 22 At the back of the house, then, is the three -car 23 garage and then there's also an exercise room. As 1 24 note here, this is not floor space on this level. This 25 27 goes down to the basement(cellar area. It's below 1 grade, and so in the family room you've got either glass 2 or a wall that you can observe what's happening below in 3 the court. This area also opens up, expands to allow -- 4 there's an overhang here, and there are some appear to 5 be picnic like tables — they're not code required 6 things so we don't have detail on that — for outside 7 entertaining in this particular area. 8 1 also In the basement or cellar area, the -- the 9 area that is usable goes around an area that's filled 10 in, so this area right here, as you'll see, there are no 11 doors or anything that access it or this area. This 12 area is all backfilled and this is where upstairs the 13 court is. The courtyard is located here, a 14 slab -on -grade type of courtyard. This is where the 15 garage and the exercise room area is, and again, it's 16 not accessible, its all filled in. And so in the 17 lowest level of the house, you've got a large storage is area, narrow but large storage area. You've got an exit 19 here. You've got a mechanical room here. Here you've 20 got a home theater, and over here we have a -- what 21 appears to be a basketball court 22 And then we have another exit and then down here at 23 the bottom, we have another exit which would be a 24 window. We amended the -- our codes in Iowa City a few 25 9-14-16 28 years — quite a few years ago now to require every basement that is — or cellar that's built to have an egress window because we were finding that people were remodeling their basements and didn't have exiting, and so we put that in as an additional requirement, and I think that's still a local amendment, if I'm not correct. Tim, I'm sure if you correct me. So let's take a look at the zoning review factors now and — and walk through this. When we look at something that comes in, and I can again go through this fairly quickly, you know, they're asking to build a two-story home and is it in the proper zone, and we checked — and we checked that off and the answer is yes, Its In an RS -5 zone. Are there any overlay zones that are going to impact? Is there any historic zones? Are there any floodplain zones? Those are the type of things that come into play frequently, and no, there aren't. Is it a listed, permitted use, and you go to this table that shows that detached single-family dwellings are, in fact, a listed use. And then we look at the residential use section in the use classification section. There's a section that you go to the zoning code that says residential description or residential use, and under that they get into -- am I in the wrong part? I think maybe I am. 29 This isn't the definition section, I'm sorry. I should be reading what I've got here. So we looked at the definition section, and the definition of dwelling unit is any habitable room or group of adjoining habitable rooms used or intended to be used by one household for living, sleeping, cooking, and eating of meals. And it's important to look at the definitions because when you do zoning enforcement, you always have to check definitions because in the zoning code, terms of art are used, and so what may be common to the general public may be further defined or qualified by definition in the zoning code. Give you an example. Most people are thinking the lower level's a basement but under the zoning code, it's actually a cellar because We completely below grade, and so you get into those kinds of nuances that make it confusing, so we have to look at these definitions so that we make sure it — it fits and meets those definitions as we go through looking at the use of the property. And it is a detached single-family structure in the sense that it's not attached to any other dwelling. its this section that I thought I was dealing with, which is there's also a description of what residential use is in a different section of the code, Page 26 to 29 1 2 3 4 5 6 7 8 9 is 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 30 1 and in this section it says that it's a residential occupancy of a dwelling unit, which we just talked about, by a single household. We're not talking about a group household here, and it has its own definition. Each dwelling unit then — in this case, one dwelling unit -- contains Its own facilities for living, sleeping, cooking, and eating of meals, and you did see that, in fact, it has all of those factors designed into the building. And with regard to single-family use, what makes It a single-family use is two things: Number one, it's occupied by a household; and number two, there's no more than one principal dwelling unit on the lot. So this is a household. We use household in lieu of the definition of family, so that's a little confusing as well. And then under accessory uses, private recreational uses are permitted and that's a separate category, and basically that's in the code to allow and clear up any ambiguity about things that we're talking about tonight in terms of, you know, bars or theater rooms or things of that nature. So we concluded that the dwelling is designed and intended to be used for a single-family dwelling because it has living, sleeping, cooking, eating facilities. It does — It is open. It has a group of adjoining rooms. 31 We'll go back to that Floor plan in a minute, but there's no way that you can divide off that — it's not designed to be divided up into a duplex or anything else. It's designed to function as a unit, and that's Important to remember. There are some private recreational uses in here. The sport court, the theater room. They are permitted as private accessory uses. We have allowed those in other situations. This is not the first home in Iowa City with a basketball court or sport court, and we have not reclassified those houses as something other than single-family because they have a sport court, a wet bar, and/or a theater room. And finally, the zoning code provides no limitation on the number of bedrooms, baths — bathrooms, or square footage outside of the dimensional requirements in the zone. So as we go back to -- I wanted to point out this is very open. This all opens up here. This opens, its got circulation throughout the area. It's not divided with a party wall. It's going to function as one unit. So lets talk about the affidavit of use. First, let me read through these points. The application stated it was for a two-story home. The — the applicant submitted information indicating that he is -- it — he wants to build a single-family dwelling, and we 32 1 knew that this particular architecture was 2 controversial. Been referred to as the Kinnick house. 3 We knew that it had been denied in University Heights 4 for -- for sensitive areas and controversial there, and 5 so we wanted to make sure that we got it right, that we 6 left no code provision unturned, whether it be zoning or 7 whether it be fire code or any other code. 8 And once we came to the conclusion that we felt 9 that we had it correct, tailgating in this community 10 tends to be — can become a nuisance and kind of can — 11 can and does get abused, and so I asked that the 12 applicant also — and he had indicated an interest in 13 using this as a tailgating facility -- that they file an 14 affidavit of use so that he was under clear 15 understanding that tailgating is permitted as an 16 informal social activity, but you cannot use it as a 17 commercial activity. 18 And I crafted that definition years ago, about five 19 or six years ago, when I was working with Gene Walker in 20 the Melrose Court area for that neighborhood because of 21 the abuse of tailgating as a commercial activity by some 22 as well as -- probably the most notable one was the 23 Magic Bus. This definition clarified that activities 24 like the Magic Bus would not be permitted In residential 25 zones as a commercial activity, and then we went further 33 1 in the code, in the temporary use section, to allow as a 2 temporary use along Melrose Avenue on game day some 3 limited vending as long as it occurred only on the 4 street frontage. 5 My point here is that this was — this was 6 specifically defined to allow — to clarify the issue 7 about tailgating because it was getting blurred in this 8 part of the community as well as the north side and 9 other areas and that we were trying to make a 10 distinction between commercial and noncommercial, and it 11 was our intent to allow tailgating of any size as long 12 as it doesn't become a nuisance and as long as it's not 13 used as a commercial activity. 14 Tailgating is not a use in terms of permitted or 15 accessory. It's defined as an informal social 16 gathering, and so it is not regulated as an accessory 17 use. In fact, I point out here it's not even — 1 18 specifically put in the code that you do not have to 19 have a temporary use permit for this type of activity. 20 Contrary to vending on Melrose Avenue. It's worked 21 quite well. The Magic Bus, of course, is no longer in 22 operation. 23 The building permit — And I should go back to 24 that for just a moment because the affidavit of use is 25 about putting future property owners on notice. I Page 30 to 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of 34 developed this form ten or 15 years ago as an administrative form when I got into situations where I was concerned that there could be abuse, but not so much with the current property owner but with future property owners from misunderstanding. I've been in this code enforcement business, as 1 said earlier, for 41 years. I've seen everything that you can imagine in terms of how people try to circumvent the code and how they — how to make arguments, and this has been extremely effective in winning rases in court. It takes away all doubt as far as what is permitted and what is not permitted. The property owner at 101 Lusk Avenue, if they build this property building under this building permit, will not ever have a commercial recreational use in play, and if they choose to disobey the law, if they choose to break the law, then we will litigate that situation and we will do what we have to do in other — that we've done in other areas of the community. Just across — just up the street on the vacant lot owned by somebody, they rented it out to a fraternity house a couple games ago. That was a commercial recreational use. We contacted the property owner. It's my understanding they ceased operation. We deal with that in the Melrose area, we've dealt 35 with it in the -- in the north side area. Property owners choose from time to time to disobey the law. It happens. We have to put into place documentation and a record so that when we go to court, and when we litigate this, we win. And we win about a hundred percent of our cases. I'm totally confident that if this ever is abused as a commercial recreational use, we will shut it down. At least that's my experience. So this is the building permit. This is the email that we received, and you've got a copy of that. Basically, it not only talks about their intentions but also that they don't plan to rent out the residence, which is, you know, sometimes an issue in some neighborhoods with Airbnb and things like that. This is the affidavit of use that's been recorded. So let's -- Looking at not the use, but the plan, does it meet all of the requirements, the setbacks, front, side, rear, minimal lot size, frontage, and the answer to all that is yes. It does meet the frontage requirement because it has 123 feet of — of right-of-way along the frontage, and it does have — does not exceed the building coverage, even if you add in the courtyard, which technically because it's a yard doesn't get added in, but in this case we added it in and they're still below the 45 percent. nent 9-14-16 36 1 MR. CHRISCHILLES: I have a quick question. Is 2 right-of-way included in the side setback measurements? 3 MR. BOOTHROY: No. No, that's excepted. It's an 4 exemption. Either are roof overhangs or chimneys or bay 5 windows or some of-- or even stoops. 6 MR. CHRISCHILLES: Thank you. 7 MR. BOOTHROY: I think I may have forgot a couple. 8 But that's generally are all allowed. Air conditioners, 9 mechanical devices like that are allowed in the required 10 side yard by -- by reference. 11 So the frontage, you know, and I've cited the 12 section, it's the -- it's measured along the 13 right-of-way line. I should mention that. It's not the 14 street paving, it's the right-of-way, line. The 15 right-of-way line is not the edge of the pavement, it's 16 the edge of the easement for the street. I don't know 17 how else to describe that imaginary line that the City 18 owns, and so they have a hundred -and -some feet of 19 right-of-way line. 20 Now, the building height is measured to the 21 midpoint of the roof. It's based on the average grade 22 around the building. If this is essentially only 23 exposed maybe on — on a limited basis on two comers, 24 it — it's projected to be at 251 /2 feet. That's well 25 below the 35 -feet limitation in the code. It's really 37 1 not an issue. 2 We talked about the courtyard. We mentioned that 3 its exempted from the site plan review process. I did 4 put a note here that, you know, we refer to the -- all 5 plans that we get as site plan. It's a little sloppy 6 because under the code, site plans are specifically 7 regulated by Chapter 18 — Title 18, excuse me, and it 8 confuses the public. It probably should be referred to 9 as a plot plan. 10 The lot and uses are not nonconforming, as I just 11 mentioned. The lot is 16,650 square feet in size, well 12 above the minimum of 8,000, and of course it has an 13 extensive frontage of 123 feet, not all of which is 14 paved. But it's not all required to be paved. The lot 15 and the use are not nonconforming. The zoning code 16 allows conforming use to be established on a 17 nonconforming lot of record, provided that the minimum 18 lot area for the use is met and provided that the use or 19 structure meets all the requirements. The lot satisfies 20 the minimal lot area and meets all of these 21 requirements. The conclusion is that the single-family 22 use is a conforming use and it is a conforming lot. 23 Lusk Avenue is a 20 -foot -wide street, existing 24 street. We have other 20 -foot -wide streets even in this 25 neighborhood. Rowland Court, which is a much longer Page 34 to 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of, 38 street, but we --as I mentioned earlier, we continue to approve new developments with streets 20 foot wide with higher density and including even recreational areas for social gatherings that would far exceed anything considered at 101 Lusk Avenue. And even the Peninsula development has five houses on a 16 -foot -wide street. Conclusion: Lusk Avenue is an existing public street serving an existing lot. Staff has no authority to deny a building permit on an existing lot accessed by an existing street, assuming It meets all of the zoning code and the building code requirements. Sanitary sewer. As 1 mentioned earlier, it was permitted by the City in 1927. That practice was more common then than today. That really doesn't have anything to do with capacity. That has everything to do with access and, you know, we —we — today our standard is that if you are on a separate lot, you should have a separate connection, and on new developments that is the case; but we do respect existing private sewer mains that have been installed unless they fail at some point in the future. Then they have to relook at how that's handled. But as I mentioned in the staff report, the reason for the separation on individual lots is as much about maintenance and less about capacity. 39 We -- If you go into the Peninsula -- I like to use that as an example — all the townhouse developments in the Peninsula share a four -inch line, and so my point is — is that — is that its about how people can maintain the sewer and how they can come to an agreement in terms of fixing it more than it is about — and how they use it more than it is about whether its adequate or has capacity. So in the Peninsula, those townhouse units have a homeowners association where they have built into It mechanisms for how they make decisions about when that sewer plugs, and hopefully that will work. And based on the number of fixtures in the house, we have confirmed that the sewer has not only been permitted by the City through a permit that was issued in 1927, but it has adequate capacity, and I'll get to Jason's testimony. Here's actually a copy of the permit. Copying it, I can't — you can't see the note here in the corner, so I have an arrow to it. Three houses on the west side. You know, they go into a private six-inch line. So each one of them has a service that ties into the six-inch. It's my understanding that 101 Lusk Avenue has a four -inch service that ties directly into the end of the six-inch line. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9-14-16 40 There's a bit of — bit of a confusion about the fact that there's — there's a report out about replacing it, and that came about as a result of a subdivision, and I think whatwe need to point out to the public and to the board is that the previous owner wanted to subdivide this property, wanted to create an additional lot, divide this in two, put two houses on here. And under the subdivision procedure, we have the authority to require some additional improvements like we did at the end of Woolf Avenue to the north, and like a turnaround, like extension of — of public sewer. That subdivision did not go through. This is not a subdivision. This is an existing lot of record with an existing sewer line in place on an existing street. This gets into the appellants' appeal. I think we've covered some of this in terms of the definition, and I won't go back into it, the characteristics of it being combined living, sleeping, cooking area. There is no more than one principal dwelling on the lot Private recreational uses are allowed. This isn't actually the definition. I kind of paraphrased it earlier. Tailgating isn't allowed in formal social activity, and you see the definition there, and I — you know, alcohol was the other issue with the Magic Bus. They were 41 1 trying to claim that they were a nonprofit doing public 2 good but were also dispensing alcohol. 3 The number of people is not a zoning -related item. 4 We use — we don't use the building code, we use the 5 International Residential Code, and Tim can address that 6 if there's any questions. It does not have any of those 7 square footage or occupancy requirements, so its not 8 germane to this particular use. 9 Commercial -grade kitchen fixtures. Number one, 10 its not plumbing related. Number two, most house plans 11 we see don't — don't specify the type of fixtures or 12 appliances there — being put in there. We -- 13 Single -Family houses are inspected — are field 14 inspected for compliance with the code. All the 15 inspectors have multiple certifications — plumbing, 16 electrical, structural — and when they do their 17 inspections, it is at that moment in time and we do 18 multiple inspections, and actually, we do more 19 inspections than many communities because we Inspect at 20 many, many phases of construction to ensure that the 21 structure meets the code and it's field inspected and 22 field confirmed. And this, of course, would be done at 23 the time of the final inspection. 24 Again, as we look at the number of fixtures shown 25 at the bottom, shown on the plans for 101 Lusk Avenue Page 38 to 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would be 50 fixture units, well under the sewer capacity. The four -inch line would accommodat according to the plumbing code, 216 fixtures. T six-inch line would accommodate 720. It's — Th capacity is really — is not an issue. We have allowed basketball courts in other in Iowa City, and they're still considered single dwellings. We consider them private recreation The zoning code defines use a purpose or activi which land structures and portions thereof are d occupied, and maintained. Bullet number two, u building is constructed and occupied, the use m determined by the design of the structure, and believe the structure's designed for residential occupancy and the information provided by the the owner chooses to abuse the zoning code, br law, then that's when we get involved in enforcin code to ensure that they are compliant. I think about this issue that it may look like a commercial recreational use, and I think about r the house located south of Ace Hardware in Go where we found out that they were running an entertainment venue, a bar and music venue in t basement. You know, it's -- it looks like a single-family house. It -- its rental, but somebod chose to put an illegal use in a basement of that and we deal with that type of violations from time time throughout the community. You know, peo bad decisions, and that's why we have to take th court and bring them back into the fold with rega what's allowed in a particular zone. This is again about the site plan. I don't thin need to go into this. This is just showing you tha fact, there are provisions in the code. Fire safety also not stated in the fire code but at this point, I would like — I'm not sure who's going to speak, w Ws the assistant director or Brian Greer. I'd like t have you speak to this particular issue, if you'd forward, please. Oops, I went too far. (An off-the-record discussion was held.) MR. GREER: Hi. I'm Brian Greer, fire mars in Iowa City. Basically, there's just a couple of ite that we were asked to address, with the first one the amount of water needed for the fire flow for th particular structure or building. So we don't disc with anything that has been brought up about the of — of water we need to use, 2,250 gallons per The big thing would be how we would do it. Now, they -- they were — In the appellants' packet it said that there was one hydrant that wa III 450 feet of that particular structure, and hat puts it within the code requirements for 5 International fire code. To be able to extinguish a fire, we would have to hook one of provide another engine, and we would flow water o different apparatus to — to meet that ment. We can actually go further for hydrants if wally need to for firefighting operation and, you we'll kind of get into a little bit of firefighter —just so people have a little background on carry large -diameter hose which is a five -inch o it basically provides a water main on top of e surface of the road going from the hydrant ovides a lot of flow. Every one of our — cur Ines carries a thousand feet of that, so we we can stretch out several -- several places or distances. When we do have a residential fire, we're going to send five different s there. We're going to send our -- our ladder 're going to send three fire engines, and a chief, so that would be a standard response to a. Now when we talk response to that area, we've -- — Deputy Chief Jensen does a lot of stuff with Page 42 to 45 Board of Adjustment 9-14-16 42 1 tested e, 2 gallon T1 3 Fire P e 4 differe 5 C, whi houses 6 next o family 7 a AA h at uses. s hydra ty for 9 Knowi esigned, 10 soena ntil a 11 that's ust be 12 0 We 13 with, t 14 minute owner. If 15 the Br eak the 16 of mult g the 17 that w 18 at last 19 ofthos ecently 20 contain Goo 21 the flo 22 a little he 23 As 24 know,l y 25 earlier 1 43 area, 1 within to 2 that -- t ple make 3 the 201 em to 4 actually rd to 5 those, 6 from tw k 1 7 require I, in 8 we act is 9 know, 10 101 just hether 11 this. 0 12 We come 13 hose, s 14 the — th 15 in. It pr hal here 16 fire eng ms 17 can -- being 18 several at 19 building gree 20 vehicle amount 21 truck, we minute. 22 battalion 23 that are 24 No s 25 with the 44 that was right by that area, and it flowed 1564 s per minute, which if you look at the National rotection Association, they come up with four nt levels for hydrants. The first one's a Class ch is 500 gpm or less; next one's 501 to 999; the ne's 1,000 to 1499; and then the highest level 1, ydrant, is 1500 gallons or more. Well, this nt actually falls into the highest of those levels. ng that we need additional water should worst-case rio happen where the whole building is on fire, where we need the 2250 gallons of water. ur — our fire engines that we use that we pump hey only are able to flow 1500 gallons per so even in the -- in a situation such as like uegger's fire, we had to have multiple lines off iple hydrants to get the required fire flow, and culd be the same instance here. If we look back year, we had 56 building fires, and 71 percent e actually resulted in just the fire being ed in the room of origin, and another 9 percent or of origin so, you know, roughly 20 percent got bigger than that, but -- but most fires don't. we -- as we talk about other hydrants there, you noticed there were a couple that were mentioned n Director Bocthroy's presentation that are 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 FS8 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 46 1 our accreditation, and we're able to get to that area with travel time of about four minutes, so that gives us a good jump on the fire. Now, granted, there's a minute of dispatch, a minute of us responding from the station, and then that travel time. Its about six minutes, which — which still falls within what we consider to be good, and it meets our accreditation standards as well. The other thing that — that we were talking about was the width of the road. The width of the road was in the appellants' stuff from HBK Engineering said that the road was roughly just slightly over 20 foot wide, and that's the International fire code states that fire apparatus access roads need to be 20 foot wide and clear and have a vertical clearance of 13 foot 6 inches, so the vertical's not a big problem in that area. If — if it was, it would be tree limbs, stuff like that that we could easily take care of. The 20 foot, you know, as — as the fire department, sure, we'd love to have a street where there's no on -street parking, anything like that so that we have that clear path, but in reality, we see a lot of streets in the city that are dead ends just like this, that have parking on one side. We have streets and the most prolific ones I can think of are down in the southeast portion of town where there's packing on both 47 sides of the street, so it really narrows the street down to maybe about 12 to 14 foot. We still get through. The difference with a through street and a dead-end street is with a through street, we're able to — if we maintain that 20 -foot width, we're able to drive an apparatus or a fire truck past the other one if — if needed. In a dead-end situation, that fire engine's going to just be there. It's going to provide fire flow. Its going to be hooked to the hydrant. We're going to not really see a need to have another fire engine go past them on a dead-end street. The other thing is and it all depends on where we measure. I mean it's somewhere between 145 and 155 feet in length, that dead-end street. In most new constructions, new subdivisions, everything else, if its a dead-end street, or the street terminates greater than 150 foot, then we have to — we require a turnaround in it. You know, this is a little different, I guess, since it's kind of an existing street already. You know, I don't know, you know, how much hardship that would be on someone to get -- it may or may not be able to be done with the topography there or just with the, you know, houses and stuff that are currently there. 48 1 Also, that street, as I know Director Boothroy 2 said, was it Is an existing street and it is an infill 3 property. We don't — we don't do much with the site 4 plans, any of the housing stuff, any of the residential 5 really, so I mean that's kind of in their field but, you 6 know, we just -- you know, if something's there, we're 7 going to do our best to protect it no matter what — 8 what sort of building it is. You know, and this 9 building — you know, it is — It Is a large building. 10 1 mean ft's — you don't see a lot of places that are, 11 you know, over 7,000 square feet. 12 Well, you know, we talked about the hydrants and 13 water supply and all that. You know, one thing that, 14 you know, I'd be remiss if I didn't be an advocate for 15 would be, you know, maybe residential sprinklers inside 16 of the house. With that, it could minimize the amount 17 of water needed. It could cut it in half. It can 18 start — stop any fires in the incipient stages or the 19 early stage of the fire and provide a little bit more 20 safety for occupants to — to exit the building, plus 21 for our personnel as well. 22 1 guess there's really nothing much else that — 23 that we'd have to talk — talk about. It's just those 24 couple Issues, the water — the water supply, the fire 25 flow for that, and -- and the street width and length, 49 1 you know, for possible turnaround in them, and I can -- 2 I'll accept any questions or anything you have to try to 3 clarify. 4 CHAIRMAN BAKER: Mr. Greer, rather than have you 5 come back up at the end after Doug talks, I understand 6 the difference between something that you would like to 7 be able to do and what the code prevents you from doing. 8 If this were a lot split, you could require a 9 turnaround. You could have a turnaround built there, is 10 that correct? 11 MR. GREER: I believe so. I'd have to kind of 12 defer to maybe Tim Hennes or— or Doug on that. 1 13 think - 14 (Overlapping speakers) 15 CHAIRMAN BAKER: — it's a question that we could. 16 But that would be your recommendation is what I'm trying 17 to figure out. 18 MR. GREER: If it — if it were to be split and 19 subdivided and they have to add onto the road, yes, 1 20 would — I would — 21 CHAIRMAN BAKER: So the lot would be split and two 22 new houses would be built, each of them approximately 23 half as big as what's proposed for the one lot now. 24 Okay, and it's my understanding you just said there are 25 no sprinklers required in this structure? Page 46 to 49 1 2 3 4 5 6 7 8 9 10 11 12 FK1 14 15 16 17 1s 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Ad 50 MR. GREER: No, there are not Any residential sprinklers with the exception of apartment buildings, multifamily are — are not required. CHAIRMAN BAKER: Okay. So for two smaller houses, you would want a turnaround, and you could also require — no, it would be the large — the size of the current project would sort of indicate that sprinklers would be an asset to you. MR. GREER: That is carred. They—they would be an asset. CHAIRMAN BAKER: But there's no way to require that, and Doug could certainly address this, by the code because its not part of the single-family residence requirements. MR. GREER: Yeah, and they — they can speak a little more to that because I believe they have amended the section of the IRC out — or the Intemational Residential Code that mandated sprinklers for — for these occupancies. CHAIRMAN BAKER: So as far as safety concerns, you would feel better if there were two houses there of approximately 3,000 or 2500 square feet, three, four bedrooms, having a turnaround in that location. MR. GREER: I wouldn't necessarily say, yeah, we'd feel better. I — To me it — 51 CHAIRMAN BAKER: As a safety factor, you would feel this would be justified. MR. GREER: I would feel It would be justified to have sprinklers put in, but as far as two houses versus one, that doesn't affect us a lot. Granted, that other house is larger. You know, as I stated before, we've — many of our fires are — are caught early on and we're able to — to extinguish them. CHAIRMAN BAKER: But certainly if you did not catch a fire in this house early, it would be a bigger issue. MR. GREER: It would — it would take more resources, and chances are we would probably — you know, depending on where the fire's at, there's a lot of — a lot of variables that you can throw in. You know, it — the house could bum down. We obviously protect any exposures, which would be other houses around there, you know, and make sure that the fire doesn't spread anywhere else but, you know, it all depends on the variables whether we could extinguish the fire or not. CHAIRMAN BAKER: Okay. Thank you. Does the board have any other questions? MR. CHRISCHILLES: I have a follow-up — related question to that. I know it's not going to be divided, but if it were divided and this proposed turnaround were neni 9-14-16 52 1 created, what is the purpose of the tumaround in terms 2 of overall public safety? 3 MR. GREER: It's — its basically for fire 4 department apparatus to be able to maneuver easier 5 instead of backing up that — that large distance, which 6 any time you have to back up a large vehicle, there's 7 always opportunities to — to hit something else or — 8 or things to go wrong. It allows the fire apparatus to 9 be able to turn around and drive straight out of that 10 area. 11 MR. CHRISCHILLES: So does it contribute to better 12 access to whatever fire is occurring at that — on that 13 lot, whether it's one house or two houses, in terms of 14 being able to extinguish the fire and — and create 15 public safety? 16 MR. GREER: The turnaround would probably not 17 affect that at all. We would — Most times when we — 18 when we actually would arrive at a fire scene, we're 19 going to pull up in front of the building and do all of 20 our operations from there, so the turnaround would be 21 something that would be a little bit further doom on the 22 street. 23 MR. CHRISCHILLES: So you're saying its not - 24 it's not a public safety issue, the turnaround. 25 MR. GREER: Not directly, but it is code driven. 63 1 It's in the 2016 International fire code and the fire 2 codes before that. Ifs — it's for the safety of — of 3 basically the fire personnel and the apparatus. 4 MR. CHRISCHILLES: So it is public safety related. 5 MR. GREER: Yes. 6 MS. SOGLIN: I have a question but it may be for 7 Mr. Boothroy, I'm not sure. I can go — 8 (Indiscernible) 9 CHAIRMAN BAKER: Thank you. 30 MS. SOGLIN: Thank you. 11 MR. BOOTHROY: The Board of Appeals that is 12 involved with the fire code and recommends approval of 13 the fire code and the city council determined that they 14 did not want to require residential sprinklers in 15 Iowa City. 16 MS. SOGLIN: Could you just make one clarification 17 here for the big picture? So fire safety is issues of 18 access and protection are part of plot or, as you call, 19 site plan review, or are they also part of the Issuing 20 of the permit, or both? 21 MR. BOOTHROY: Specifically addressed in the site 22 plan or review process, if you read through that — 23 MS. SOGLIN: So that's why — 24 MR. BOOTHROY: When we — when we look at 25 development within — that is infill, you know, we look Page 50 to 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 54 1 at all the factors in the situation of -- in this situation, the determination was that the flows are adequate, as — as Brian indicated, and/or if they needed more, they can interconnect hoses and — and — and we are --we do not -- we have this situation existing in many areas of the community, and as I just mentioned, we just designed a new subdivision of 183 lots with lower fire Flows than this one. So this is an acceptable and, as he said, one of the top-rated fire hydrants with regard to the fire code. The turnaround is — as he mentioned, is about apparatus and it's about being able to move the apparatus in and out of the area, but it doesn't deal with — directly with the fire safety of the house. MR. CHRISCHILLES: That's not what he said. MR. BOOTHROY: That's what I thought I heard. I thought he — I thought he was saying that it was for the protection of the firefighters and the apparatus. MR. CHRISCHILLES: He admitted it was for public— it was a public safety concern. MR. BOOTHROY: Well, it Is a public safe -- it's in the fire code, but maybe Roger Jensen can clarify that because I don't — I don't believe that's what I heard. MR. GREER: And if I misspoke, then sorry about that, but it — It is in the fire code, and the 55 turnaround is — is made specifically for the vire apparatus to tum around basically and safely drive out. It's -- its not meant for any fire operations. It's for after -- afterwards or, you know, if we're driving down that area. CHAIRMAN BAKER: It — I understand that, and so why would —why would you require it in a lot split if it's not a matter of public safety, it's just convenience? MR. GREER: From my understanding, when the Initial time — Well, the site plan came up where they were talking — or I don't know if the site plan was even there, but when they were looking at the sub — subdividing that property, in order to do that, they would have to extend that road, so that road became even longer, which would definitely have — have exceeded the 150 feet, and with that, knowing that it's — it's being extended and all that, we would try to get turnaround put into that. CHAIRMAN BAKER: Okay. But not necessarily because of a public safety issue; because of a —just a logistical Issue of moving equipment in and out. MR. GREER: Yeah, and that — that would be mostly what it would be for Is we're — we're not going to — we're not going to utilize that turnaround per se as 66 1 we're doing our firefighting unless the houses are, you 2 know, built around a certain type of — of turnaround, 3 but in this, it would just be a turnaround for the 4 apparatus to get out of that area. 5 CHAIRMAN BAKER: Okay, thank you. 6 MR. BOOTHROY: Mr. Chairman, let me clarify about 7 that subdivision. They — they were extending the 8 street. It provided additional frontage to the lot to 9 the east. There was potential for more than just two 10 lots with the extension of that street, so we were not 11 talking about just one additional house, we were talking 12 about the possibility of more structures on that street. 13 So, you know, when we get into that — looking at that, 14 we were looking at that about the potential of future 15 subdivisions on the other side of the street. 16 CHAIRMAN BAKER: It may just be me, but that was 17 not clear at all in the reports that I read for this 18 particular— that we were dealing with the expansion, 19 the split of the lot for one additional house. 20 MR. BOOTH ROY: I understand that The— That was 21 just what — that was specifically about what 22 Mr. Oliveira wanted to do. I wasn't talking about what 23 the property owner to the east wanted to do. 24 CHAIRMAN BAKER: Okay. All right, thank you, 25 MR. BOOTHROY: We were trying to clarify the point 67 1 that under the subdivision regulations, there — the 2 planning and zoning commission has other authority as 3 well as the clty council. Again, this is not a 4 zoning -related matter, and we do not believe it a life 5 safety issue. 6 The erosion and sediment control provisions are not 7 in the zoning code. We deal with those through the 8 construction process, and in the situation If there was 9 illicit discharge or erosion onto the street or in some 10 situations silt fences may be required to maintain that. 11 This particular property drains away from existing 12 development. It does not drain to the north. It does 13 not drain in a way that would impact those abutting 14 propertles. 15 This is again in the -- this is just a 16 single-family house with a three -car garage. Obviously, 17 vehicle and pedestrian circulation doesn't apply. We 18 talked about the front yard setback. Here's the code 19 section. On short streets like this averaging doesn't 20 apply. State and federal regulations don't apply. The 21 building permit under this particular section, the -- 22 people often confuse the purpose statement in the zoning 23 code as regulatory, and as I indicate in the memorandum, 24 it's aspirational but not regulatory. You cannot cite 25 anybody and take them to court. There's nothing in the Page 54 to 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 6-14-16 58 1 purpose statement that is a regulation. What the courts will look at is it is the regulation protecting the public health, safety, and welfare, but – but ifs -- in that context and so the regulations are developed to meet the purpose statement, but the purpose statement cannot be enforced because its not regulatory. And that's pretty standard zoning construction and its commonly done. Conformity of the use. We talked about the lot we find to be conforming, but even if and the lot were to be found nonconforming, for whatever reason, the city regulations allow single-family uses to be established on any nonconforming lot. And that provision was put in the code in 1984, when we changed the code to be noncumulative and to segregate the uses by zone, and there was concern by the planning and zoning commission and the city council that they were single-family houses in commercial zones and industrial zones that might not be able to remodel or build, and so in that situation we added an exception to accommodate that, and that was back in 1984, and we've carried it forward since. The sewer service is not zoning related. I would like to have Josh, the city engineer – Jason, excuse me, the city engineer, step up and – and talk about his memorandum that he submitted tonight, so Jason, could 59 you — MR. HAVEL: Good evening. Like Doug mentioned, my name is Jason Havel and my fitle is city engineer for City of Iowa City. First item I wanted to talk about was the sewer service, and really this is a situation where you have a sewer service tying into a private main, which as Doug mentioned, its not necessarily typical but I also wouldn't call it a rarity. We do have it in other locations around the city, and for this service it really can be broken down into kind of three parts. You have the -- the service for the individual property, which is believed to be, I think, four -inch and that ties into a private sanitary sewer main which is shared by two other properties, and thafs a six-inch section. And then that then ties into the public sewer system and an eight -inch sanitary sewer main at the comer of Bayard and Lexington. As Doug mentioned, it was permitted in 1927, and it is – its our belief that based on the size of the existing service and what the anticipated use would be, that capacity is sufficient for it to be used for this property. This sewer service does provide direct access to the public sewer as required by code, and we based our decision on the fact, again, that it is – its an 60 1 existing permitted service. It is a -- a service that 2 provides direct access to the public sanitary sewer 3 system, and the sewer – or the service is basically 4 servicing a use that is similar to the one that was 5 there existing, and again, that was – it used to be a 6 single-family home and it would – and under the 7 proposal would serve a similar use. 8 One thing I did want to mention, obviously, you 9 know, there has been some mention of condition of the 10 sanitary sewer service, and as is the case throughout 11 locations in Iowa City, individual property owners are 12 responsible for maintenance and repairs to their 13 sanitary sewer services. In locations where there is 14 private sanitary mains, users that tie onto that private 15 main typically are responsible for maintenance and 16 repairs to those – those lines as required or as 17 needed. 18 Moving on. It looks like there's a – there's been 19 a couple of issues or – or I guess issues raised 20 regarding stormwater. I would kind of break these down 21 into a couple of categories, one being site grading or 22 how stormwater will be handled onsite within the 23 property, the other one being once that property [sic] 24 leaves the site, how will it be handled when it reaches 25 Lusk Avenue, especially at the end of Lusk Avenue at the 61 1 dead-end section. Here there's --there's a couple 2 of -- of code sections that were -- had been identified 3 in some of the correspondence, but you can see here that 4 they don't really apply. What really applies is kind of 5 the general stormwater management requirements for the 6 City, and more or less what those state -- Well, 1 7 guess let me take a step back. e Regarding the lot, it typically or generally slopes 9 to the -- to the east and south, so that would direct 10 stormwater to the Lusk Avenue right-of-way or to the 11 railroad right-of-way that exists to the south. The 12 City does allow overland flow of stormwater so, you 13 know, roof drains, that kind of thing, stuff coming off 14 of driveways, it Is allowable to allow that to travel 15 over land. And the – the intent there is really that 16 it travels in a direction that is – reasonably follows 17 the existing terrain, so it's really -- if it slopes 18 downhill existing and you build a house, the expectation 19 is that it would continue to slope or the – the runoff 20 would conflnue to flow downhill. 21 And the -- the requirements for that really –1 22 guess to kind of simplify things are really just to make 23 sure that it doesn't create damage to neighboring 24 property. So what you're trying to avoid is those 25 situations where maybe somebody tries to put all Page 5B to 61 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjust 62 their — their downspouts into one pipe and outlet it In one location. You know, typically something like that results in erosion if there aren't other measures in place, and so really the requirement is that you're allowed to let it run over land but really, you're just trying to have it do so in a manner that doesn't cause damage to neighboring properties or, in this case, right-of-way. So I guess really for the site portion of it is again, just making sure that that stormwater is managed and that it is allowed to flow into the right-of-way but its not allowed to do so in a manner that would cause damage to the right-of-way. And that's consistent with other properties and the way we handle things throughout the city. So that kind of brings me to my — to my last section, I guess, and that deals with the water once it gets into the Lusk Avenue right-of-way. Obviously Lusk Avenue's a dead-end street Currently there isn't a curb or— or other measures to -- to really handle stormwater at the end of the street other than to allow it to flow downhill to the railroad right-of-way and to the ditch down there as it continues on its way. I think for — So this is stormwater that — that reaches Lusk Avenue and that reaches the end of Lusk Avenue. 63 It's a combination of water that comes from Lusk Avenue. It is also from properties that have runoff from private property onto Lusk Avenue. Again, that's fairly typical around town. You know, you have a lot of times where yards will — you'll have water that will run off of yards into the right-of-way. In some locations they're caught by intakes and then piped to wherever its going. In some locations like this, it reaches the street and then runs off the end of the street into a ditch somewhere again to be conveyed to another location. And when we have these situations where you don't have storm sewer or you don't have intakes to collect that water, typically our stance has been that in those situations where it's water that is in the right-of-way, is traveling in the right-of-way, that any existing erosion issues or concerns are addressed by the City, whether that's the installation of storm sewer or riprap, other measures to kind of slow that down and allow the water to travel without damaging property. Typically those are taken on by the City when it's in the right-of-way. So I guess to really simplify things, really once — as long as they're making sure to get that water to the right-of-way without causing damage, then the rent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9-14-18 64 City would then take that responsibility to — to continue that travel of the water within the right-of-way, again, taking care to allow it to do so without causing damage or in this case erosion. So that's really all I had. MR. WEITZEL: I had a question about — either for you or Doug about the grade of the driveway, and there was a recommendation by a consultant that the driveway slope away from the house. Would that then cause water to leave the property towards an adjacent property owner and is that a problem? Is that allowed? MR. HAVEL: I guess I'm not familiar for — with the exact comment. MR. BOOTHROY: The zoning code specifically states that if the driveway is on the property line, it has to be sloped and — so that the water runs away from the property. I'd have to look at the site plan. I don't recall how close the driveway is to the property line. It's not unusual in Iowa City to have driveways right on the property line, and so we put a provision in there that requires that runoff to be redirected away from the adjacent property. MR. WEITZEL: Okay. MR. BOOTHROY: With regard to the building itself under the International Residential Code, there are 65 1 provisions in there that, you know, when they do the 2 final grading, they have to have a positive flow away 3 from the foundation so that you don't have infiltration 4 in the basement cellar area. 5 MR. CHRISCHILLES: I have a question. What are 6 the -- what — what are the City's remedies for problems 7 that might arise if — from stormwater runoff if it 8 becomes a problem after the home is built? 9 MR. HAVEL: It really is going to depend on the to situation. Again, It could be anything from installing L1 intakes in stone sewer to pipe the stormwater where it L2 needs to go. If it's something that could be handled, L3 whether it's perhaps seeding; you know, maybe it's a t4 situation where its just a need for establishing grass L5 or turf to — to prohibit that or eliminate that .6 erosion. It could be riprap, it could be check dams. .7 Again, it just kind of depends. Is it a volume issue? .8 Is it a speed issue? What exactly is the concern? But .9 there's a number of things that can be done to address :0 that. 1 CHAIRMAN BAKER: Along that same line, on page 20 12 of Doug's report, there's a comment about the surface 13 drainage standards are only applied after the house Is A built. Is that -- Am I paraphrasing that correctly? 5 MR. BOOTHROY; We're talking about two things. Page 62 to 65 Board of Adjustment 944-16 66 68 1 We're — That was referencing the International 1 and — and other desirable characteristics of the sewer 2 Residential Code based an public works provisions, and 2 service at that point. So I think more so than a -- 3 so when we do the final inspection of the house, we 3 necessarily the subdivision itself, it really was 4 always ensure that there is positive drainage away from 4 difficulty In — In being able to service that other -- 5 the house and -- and how they handle that drainage 5 that second house on the existing sewer line. 6 between houses. 6 CHAIRMAN BAKER: Its not a question of — well, 7 CHAIRMAN BAKER: But there's no way to determine 7 maybe it is a question of flow capacity, that It's more 8 that before the house is built. 8 difficult with the second house and so you'd require 9 MR. HAVEL: Absolutely not. 9 a — a bigger line, 10 CHAIRMAN BAKER: Okay. 10 MR, HAVEL: I don't know that it was necessarily 11 MR. HAVEL: You don't know. You -- you don't have 11 capacity as much as it was layout of the —the sewer 12 a finished grade. I mean you have a speculation, but 12 service. So again, you're — with that second house, 13 you don't have it until you build it 13 you basically would have had to go out and around the 14 CHAIRMAN BAKER: Okay. And if there's a problem, 14 first house, I guess is maybe the best way to put it, 15 you can force the property owner to make remedy. 15 and so that's really where the difficulty became. 16 MR. BOOTHROY: It's called a certificate of 16 Rather than having a straight shot, which is obviously 17 occupancy. 17 most desirable, you would have had to introduce bends 1s CHAIRMAN BAKER: Okay. Back to you, sir. One of 18 and other fittings there that really just aren't 19 the sort of underlying themes that's going to come bark 19 desirable for sewer service. 20 in this entire discussion is the difference between what 20 CHAIRMAN BAKER: Okay. But again, correct me if 1 21 the City would like to see happen versus what the city 21 misread this. It would have required a bigger -diameter 22 can make happen govemed by the rules in place at the 22 pipe. 23 time. If this lot were to be subdivided, the City could 23 MR. HAVEL: We would have, but that -- for the — 24 do something else or require something else. 24 the public sewer main and again, that's because our — 25 There was a discussion in the -- the previous year 25 our minimum would have been the eight -Inch. 67 69 1 when the previous ownerwas going to subdivide, there 1 CHAIRMAN BAKER: Okay. All right, thank you. And, 2 was a sewer upgrade that would have been required for 2 Doug, before you start, let me ask just a procedural 3 the -- this time It was a discussion of just two houses 3 question here. About how much longer do you think your 4 only, two lots only, and that would have been, again, 4 presentation might bel 5 two houses, each approximately half as big as the 5 MR. BOOTHROY: I'm getting dose to the end. 6 current proposal with six to seven bedrooms and toilets, 6 CHAIRMAN BAKER: Okay, because when you get to the 7 at cetera. 7 end, I'm going to suggest that we take a short recess. 8 So why would the City want that change in the sewer 8 MR. CHRISCHILLES: I have some questions. 9 line on those two houses? What is the — what is the 9 CHAIRMAN BAKER: Yeah, but I'm going to have that 10 issue, the health and safety Issue there? 10 recess before we come back, because I have a lot of 11 MR. HAVEL: I think the — You know, as you 11 questions. 12 mention with the subdivision process, there Is 12 MR. CHRISCHILLES: Okay. 13 additional possibilities or options there for what we 13 MR. BOOTHROY: I would say, too, Mr. Chairman, that 14 can require, and I think what really drove it when we 14 when the City approves a subdivision, we have certified 15 were looking at splitting that lot Is the difficulty for 15 that it meets certain subdivision standards. And like 16 that second house to tie onto the existing sewer line. 16 Jason was pointing, doing a convoluted sewer run would 17 You know, it's set up right now so that that four -inch 17 have created problems and it was not something we were 18 section especially is directed right at the existing 18 comfortable certifying, so then somebody else buys the 19 house. So it— it's much simpler to tie that existing 19 house and they have problems. They're going to come 20 or proposed structure into that sanitary sewer line. 20 back on us because you approved that configuration, much 21 When you look at adding a second house, you then 21 like we're having this conversation about this private 22 need the sewer service for that house to somehow get 22 sewer line that was approved in 1927, you know. Why did 23 around more or less where the existing house would have 23 we do that. Well, I wasn't alive at that time and so 1 24 been. So it becomes much more challenging not only from 24 don't know, but I — yes. 25 a grade standpoint but again, not having to add bends 25 Anyway, moving on. The — We just talked about Page 66 to 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjust 70 the drainage standard and the International Residential Code and site plan doesn't apply. Height is measured, as I said earlier, by the average grade around a building, and this building will — will meet the height standard, so Its not going to be an issue. The — Getting into more — This isn't exactly the same project, just a detail on that. It had — it had more square footage and had some different configurations. We did provide the -- and I read from the — the email that -- or the letter that the city attorney, Steve Ballard, sent us with regard to the fact that the review was on Sensitive Areas Ordinance really and not about zoning compliance and not about finding that it was a commercial recreational use, and so University Heights never ruled on that. We're the first to consider it. Let's see. It's zoned RS -5. These are not uses, commercial or otherwise, that are allowed in the RS -5 zone. The permit does not authorize it. The permit only authorizes a residential use and any of the rights that go with a residential use, which tallgating is specifically allowed in all zones as long as it's noncommercial. Let me see, I went too far. We did look at the evaluative process in our deliberations. However, technically speaking, it only comes into play when a use is nonlisted, as an example, 71 and when you determine that it does meet the definition of a single-family use, it's not necessary to spend time going back through that particular process. We didn't ignore it, we just didn't — It wasn't necessary and wasn't determinative. The building official was required to evoke objectively but did not is a comment. This is not true. I would say that, you know, none of us have met or at least I have not met the applicants. I don't think John has either. I've not had any — We don't have any interest in Manville Heights in terms of property or— or role. Our only role as a staff is to get it right. It's our responsibility to do an honest review, and we try not to contrive issues or create situations that are not legitimate, and so we did a careful review of everything, and we could not find that it was not a residential use and we had several people — the city attorney's staff, my staff — looking at it, and we could not — we could not comfortably come to any kind of conclusion like that. Well, the affidavit of use was never used for classifying a use. That's — that was that -- you know, after the fact. The site plan is not appropriately used. The courtyard we talked about. We talked about the drainage and Iowa drainage law. We just went into that. rent 9-14-16 72 1 With regard to the — the movement of the lot and 2 driveway, just so people know how this all came about, 3 after the permit was issued, it came to my attention 4 that the driveway was on the south side of the lot where 5 there was no street, and so I informed the inspectors 6 that the permit — they either had to — to redesign the 7 driveway or the permit would be denied, and because the 8 street was not extended and was not open for use, and so 9 they did redesign the driveway. 10 Let's see. That was the subdivision process, 11 subdivision rule. It has — The applicant indicates 12 that there's no egress. In fact, there is egress out of 13 there. Meets the International Residential Code. It's 14 actually more egress than — than would be required. 15 And — and the memorandum. The fire testing was —we 16 talked about that, 1500. Here's a map of the fire 17 hydrants. We have one here at Lusk, we have one here on 18 Bayard, we have one here down on Woolf Avenue, and so 19 there's a number of fire hydrants in the area. We have 20 one down on Rowland Court which would have the same fire 21 flow that's on — it's a fire hydrant on a six -Inch line 22 so likely would have the same fire flow because it's 23 coming off the same size pipe. More houses, more 24 density, more occupancy. 25 The conflict with the fire hydrant is really not an 73 1 issue. When we do the water tap permit, it's standard 2 operating practice to look at that. If, in fact, it 3 needs to be moved, we move it. It's not — it's not 4 something — It's just a construction detail. We will 5 look at that with the water lap permit. The way that's 6 enforced, they don't get water unless they comply with 7 the water tap permit, so it's pretty effective. And 1 8 think the standard is that the fire hydrant, if they do 9 move It, it's not an existing situation, I think it has 10 to be several feet from the edge of the driveway. 11 So in conclusion, the City didn't misclassify the 12 use. We determined that it was designed as a 13 residential use, that it — it is going to be occupied 14 by a single household. That it has living, sleeping, 15 cooking, and eating facilities, and it is open and it 16 has communicating rooms to be used by one household. 17 And the permit clearly says its only residential, and 18 we have documentation that they cannot use it ever for 19 commercial use. 20 So we are in agreement with the neighborhood in 21 that fact, that this property has been prevented from 22 being used as a commercial recreational venue. Site 23 plan does not apply. The building permit was not issued 24 in error. It does comply with the International 25 Residential Code, and under the International Page 70 to 73 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 li 12 13 14 15 16 17 18 19 20 21 22 Y#1 24 25 Residential Code as well as the zoning code, if it complies, we shall issue the permit as it states in International Residential Code. The City has no authority to deny this building permit based on architectural design. I underslan concern that this is by many a very ugly house. no question it doesn't fit within the context of the neighborhood. I don't believe that I would be -- I would be distraught and upset about it myself. However—however, there's nothing In our code — doesn't have a historic preservation zone, it does have any other kind of zone that regulates archite compatibility, and so I understand looking for any opportunity to deny this based on any section of t code as a subtext for eliminating this particular building as it's designed, and we looked at all of t and we vetted all of those and we did that with ou attorneys — city attorney staff, and we could not conclude in good conscience that it was anything single-family house. Yes, the structure includes private recreation uses, but so do other structures have the same ty recreational uses and they are considered single - structures, and I've listed at least a couple homes which thev have basketball courts. and we have h that have badminton courts inside when they choo to have basket — basketball. The property owner has submitted three sepa documents and he's going to testify tonight, I'm su that this is for his family. Its his intended use, and he doesn't intend to break the law and use it as a commercial use. The building size is not regulated the zoning code with the exception of building cove and this meets all of those. Its a two-story buildin Ws — it's 25 1/2 feet tall and, yes, it's a large house but it's clearly not the largest house in this community because we have houses significantly I than this one on the west side, you know, on Kenn Parkway. So that's the end of my presentation. CHAIRMAN BAKER: All right. Thank you ag Before I noted the board has a lot of questions for Doug, but I would ask that before we start our questioning of Doug we take a short recess, say to minutes, till seven -fifteen. Is that agreeable? So we'll reconvene at seven -fifteen. Thank you. (A brief recess was taken.) CHAIRMAN BAKER: Now, at this time the bo like to get some clarification. We'll start with Gene. MR. CHRISCHILLES Before I start, I have a Board of Adjustment 9-14-16 74 1 questi the 2 Monde 3 one of 4 zoning d the 5 M There's 6 purpos 7 presen 8 site pla 9 really a This 30 of its d n't 11 opinion ctural 12 which 13 classifi he 14 residen 15 in error hose 16 was do r 17 M 18 the pugp but a 19 other f 20 M al 21 about pe of 22 MR. family 23 M in 24 included omes 25 was pr 75 se not 1 MR 2 MR rate 3 MR re, 4 sorry, 5 what w 6 MR by 7 the aut rage, 8 MR g, 9 memo, 10 MR 11 was all arger 12 here, an edy 13 second 14 MR. 15 first me ain. 16 been in 17 MR. 18 sure wh n 19 some of 20 original 21 utilize fo 22 what m boa like 23 Mr. Late 24 city code quick 25 memo fir 76 on for Mark Parmenter. The memo that we got on y included some other, I guess, parts of the code, which was 18-1-1. Is that indeed part of the code? R. PARMENTER: Its part of the city code, but for as of your — I think as — as the City has ted is that residential properties don't require n review, and so its my opinion that that's not n issue for this board to take up for purposes ecision here. In my memorandum to you, in my there are two issues that you need to decide are on page 3 of my memo to you, which is the cation of the structure as a single-family ce, and then also whether -- whether it was done or whether the issuance of the building permit ne in error. R. CHRISCHILLES: Well, then what was —what was ose of the inclusion of — of the — of the ones? R. PARMENTER: Good question. Are you talking Title 18? CHRISCHILLES: Yeah. R. PARMENTER: Yeah. Because the original appeal the question as to whether or not the site plan pro done for the proposed structure. 77 .CHRISCHILLES: That's why that was in there? . PARMENTER: Right. . CHRISCHILLES: Okay, and what was the -- I'm Mr. Boothroy, but since I've gotten him here now, as the purpose of this second memo? . PARMENTER: To give a clarification for what horny and the — the powers that this board has. . CHRISCHILLES: That was outlined in the first however. . PARMENTER: Well, I don't -- I don't think it of the applicable law that should be applied d that's why I sent the second — I sent the memo, my memo, to clarify that for this board. CHRISCHILLES: Was your feeling at all that the MO was too strongly worded or perhaps might have erpreted as leading to bias? PARMENTER: Well, I'm not -- I'm not really at you mean by that. My opinion is that the — the information that was contained in the memo was not necessary for this board to r purposes of making its decision, and that's otivated me after receiving a letter from w to clarify that based on the Iowa Code and the requirements. That was the purpose of that om me. Page 74 to 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 amid of Adjustment 78 MR. CHRISCHILLES: On. Because I -- I had the 1 opinion upon reading the first memo that it was — it 2 was strong -- more strongly worded than it needed to be 3 and that it was almost directing us to tell us what we 4 had to do and which way we had to vote on the appeal, 5 MR. PARMENTER: Right, and of course, you're an 6 independent body. You can't be instructed on what to 7 make as far as your decision in this case, and that's 8 the — that was another reason for me to provide you 9 with — with my memorandum so you clearly knew what your 10 authority — what your legal authority is and what your 11 powers are for — for purposes of this hearing. 12 MR. CHRISCHILLES: So just by giving us a second 13 memo, we're supposed to just wipe away whatever memory 14 we had of the first memo? 15 MR. PARMENTER: Well, I mean I think — 1 think you 16 all are very smart people. Obviously you've read all of 17 the materials that have been submitted by all the 18 parties, whether it's the City, the proponents, or the 19 opponents. All I asked you to do in my memo was to 20 simply disregard that prior memo and apply the law or 21 utilize the law that — and authority that I've 22 presented to you in my memo. 23 MR. CHRISCHILLES: Okay, thanks. Okay, 24 Mr. Boothroy, these questions are probably going to be 25 79 out of sequence, but I have several. It seems to me 1 that if we're going to talk about misclassification that 2 we need to address the code section -- I'm sorry. In 3 regards to the establishment of the principal use, when 4 you went through the — the steps that you used to — to 5 say that this was a single-family residence, it appeared 6 to me that the — and it was stated in here that 7 under -- under City — City Code 14-4A-2, it was — 8 MR. BOOTHROY: Do you have a page number you're 9 referring to? 10 MR. CHRISCHILLES: This is on page Number 5. 11 MR. BOOTHROY: Of my report or— 12 MR. CHRISCHILLES: No, at the very beginning, page 13 5. Under Larew Law Office. 14 MR. BOOTHROY: Under what? 15 MR. CHRISCHILLES: Just the very beginning of the 16 packet, page 5. 17 MS. SOGLIN: You're on the appellant packet, 1 18 think? Are you on the appellant packet or are you on 19 the other? 20 MR. BOOTHROY: The past information or the — 21 MR. CHRISCHILLES: Oh. 22 MR. BOOTHROY: It's probably a different page. 23 MR. CHRISCHILLES: Yeah, I'm at the — the packet 24 prehearing submission, Larew Law Office. 25 9-14-1a 80 MS. SOGLIN: The page 2 of that? MR. CHRISCHILLES: Page 5 of that. MR. BOOTHROY: Page 5? MS. SOGLIN: And that's in the appellant packet, is that correct? MR. BOOTHROY: It has drainage, fire safety, erosion, sediment control, vehicle, pedestrian, 15 -foot side yard. MR. CHRISCHILLES: Well, no. No. MR. BOOTHROY: Well, maybe just say it and IT -- I can get there. MR. CHRISCHILLES: Well, see, it says here — MR. BOOTHROY: Don't give me the code section, just give me the — MR. CHRISCHILLES: It says that the —there's a list of factors to be considered and a mode of analysis to be used to determine whether a proposed building does or does not comply with the purpose of the zone according to the structure's principal use as a contrast with one or more accessory uses. It seemed to me that during — You know, you went through the — all of the criteria in a very systematic fac — fac — in a very systematic way when you did your analysis, but it seemed as though it was kind of glossed over as to the principal use factor, and it says that 81 the analysis should include in the instances such as Cadsons' proposed building the following: The description of the use or activities in comparison to the stated category -- characteristics of each use; the intensity of the activity or use in comparison to the stated character use — characteristics of each use; how the use advertises itself. And then point H there says that under -- under the — that mode of analysis, an Impartial city official is required to determine a proposed building's principal use. Only if a structure's principal use is compatible with the zone's purpose and allowed uses may it be included in the — may it be located in that zone. Then point I says no such analysis was performed by the City. Was it? MR. BOOTHROY: Well, first of all, we did look at that section of the code, so that's not exactly correct. Secondly, this section commonly comes into play for uses not listed or identified, so there are a lot of — if you read through the zoning code, there are a lot of uses, residential uses, that are identified, commercial uses that are identified, industrial uses that are identified, and — and so forth. And so what this is designed to do is help the City in situations where they feel that the use is not that clearly identified. Page 78 to 81 1 2 3 4 5 6 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 6-14-16 82 1 So when we did our analysis of looking at — it came in as an application for a single-family dwelling, so the first thing we do is look at whether or not it meets the definition of those -- of that criteria, and we determined that it did. We also did take a look at this because we knew it was going to come into play, but we were comfortable that it still met the definition of a single-family use with the way it's designed. MR. CHRISCHILLES: Okay. If -- And if you go further along in that course of that argument, as you get to page 7, points U, V, and W, the -- the appellants contend that you didn't — that the City did not, in fact, use -- use -- use the City's classification decision -- decision-making process to determine the principal as -- as contrasted in the accessory uses of the proposed structure, but you're saying that you did. MR. BOOTHROY: We used an objective process that we invoke the provisions of the zoning code that include all the provisions that are listed in the zoning code to help us decide whether we made the right decision, and so we did review this section as well and use it, but we also — I want to note that it is use that clearly meets the definition of a single-family use, and I don't — and we don't think that that is qualified. MR. CHRISCHILLES: But is there any factual proof 83 of your method of analysis, or is itjust you saying that you did it? MR. BOOTHROY: Do you want to bring up two other people? MR. CHRISCHILLES: Well, if -- MR. BOOTHROY: I mean I -- I guess what you have to do is you — there's no reason for me to not do an objective analysis here. I mean there's just simply — it's a -- it's a — its an assertion that -- that has no merit. MR. CHRISCHILLES: Okay. MR. BOOTHROY: I mean, if I was -- if I had found that it was a recreational use, then we would —that would have been the easiest path to follow. MR. CHRISCHILLES: Right. MR. BOOTHROY: And -- and I understood that because of the architecture of this building, these neighbors would be down here and they would want my scalp. I get that. And — and I understand that, and it made it very difficult to come to an objective decision because I understood that they would not want me to be objective. MR. CHRISCHILLES: Okay. Now, the City of University Heights in -- in their original email to the Carlsons did state that they deemed it a recreational commercial use. However, they did not use that as the 84 1 basis of their -- 2 MR. BOOTHROY: I think if you read Ballard's — 3 MR. CHRISCHILLES: But did they— they never -- 4 MR. BOOTHROY: They never made a finding. 5 MR. CHRISCHILLES: But they never retracted that 6 statement either. 7 MR. BOOTHROY: He kind of retracts that in his 8 letter today, so -- 9 MR. CHRISCHILLES: Well, that's today, after -- 10 MR. BOOTHROY: Well, we asked for clarification 11 because my understanding is that-- that the issue never 12 was focused on the zoning classification because very 13 quickly in the process, they got into the sensitive 14 areas, and so the applicant is here tonight and they may 15 provide more information on that. I was not involved in 16 the University Heights. I don't know what their codes 17 say, I don't know what their regulations say. All 1 18 know is what the city attorney of University Heights 19 said, and he said they did not make a determination that 20 that was a commercial recreational use. And he's not 21 here. 22 MR. CHRISCHILLES: It just says that their decision 23 was not based on the conclusion that a proposed 24 structure appeared to show a commercial recreational use 25 that was prohibited in the R-1 zone. 1 2 3 8s MR. BOOTHROY: That's -- that's what I said, it didn't add a conclusion that it was a commercial recreational use. MR. CHRISCHILLES: Thatjust shows that that's not what they based their decision on. That does not mean that that wasn't their opinion of what that structure really was. Or how they viewed that structure. MR. BOOTHROY: But he said he did not come to a conclusion. I came to a conclusion as the building official that this was a single-family residential intended for household use. He did not get to that point in his analysis. It was all about the slopes. He did not arrive at a conclusion that it was a — and frankly, We important from the historical perspective of this, but it's not germane to this particular meeting. MR. CHRISCHILLES: But how does the original plan that they were looking at when they first called it commercial recreational differ from the plan that was submitted to you, the blueprints? MR. BOOTHROY: I haven'tseen the blueprints. My understanding is -- I've seen some concepts. My understanding it was three-story, it had some — they may have some plans here tonight to share with you. You should ask the applicant. That was not submitted to the Page 82 to 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 86 88 City. The preliminary stuff that I've seen had —was a 1 lines like they — like it was done in lhe'80s. drawing that showed some — a three-story building. 1 2 And so in recent history with subdivision process, don't remember specifically except that —that it was a 3 we require either a permanent turnaround if the street little bit taller, had an additional story and — and 4 cannot go forward, like a hammerhead, that's not — or a was a little bit larger. And — and you're right on 5 cul-de-sac. If we know that the street could possibly that the issue is still whether or not it's a commercial 6 be extended at some future date, then we require a use. Whether it's — 7 temporary turnaround and it's as much for motorists, not MR. CHRISCHILLES: Right. 8 turning around in driveways, and service vehicles as it MR. BOOTHROY: --three stories or two stories, you 9 is also important for fire apparatus. So it's — it's a know, we're dancing on — on the head of a pin. 10 combination of traffic circulation as well as fire MR. CHRISCHILLES: Right, but I -- I'm just 11 apparatus. interested to know what— if you were familiar with 12 MR. CHRISCHILLES: But there are different — there what had been changed that led you to believe that what 13 are different standards on streets that have only three they first — their first opinion, what had changed when 14 houses on them versus four or more? it came to the City of Iowa City that made it a 15 MR. BOOTHROY: Absolutely. Because in terms of nonfactor. 16 averaging, the code specifically says if you have three MR. BOOTHROY: I found out about the email from 17 or less houses on a street, then the council legislated Steve Ballard that you're talking about -- 18 that they do not have to meet the 20 -foot setback. You MR. CHRISCHILLES: Yeah. 19 don't have to do the averaging, you can have 15. MR. BOOTHROY:— when the packet went out to the 20 MR. CHRISCHILLES: Yeah, l understand — I board, so if you read the packet on Friday, that's the 21 understand that in relation to setbacks, but does it same time I found out about it. So the decision on the 22 create any public safety differences? building permit was made without seeing those plans or 23 MR. BOOTHROY: Not any more than Rowland Court, no one having that information in hand. It is a 24 which has five or six houses on a longer street thafs different city. It has different rules. It has a 25 dead end without a turnaround. 87 89 different process, and frankly, it doesn't — it — it 1 MR, CHRISCHILLES: Okay. isn't significant in terms of what cur laws say. 1 2 MR. BOOTHROY: Which Is the —which is the street don't know what their sensitive areas — I can tell you 3 right next door. that Iowa City we exempt single-family and two-family 4 MR. CHRISCHILLES: I have one more question. In dwellings from the Sensitive Areas Ordinance. They 5 the notes here, it said that — or in the packet it said obviously don't. 6 that the issue was brought to council on June — MR. CHRISCHILLES: Okay. And this — I guess its 7 June 21st, and they said they would look into it at just kind of a general question. So having — If that 8 their next meeting, which was two weeks after that. And lot had been subdivided into two, is that — that 9 then the final building permit was issued one week after obviously increases the standards applied to that 10 that. property in terms of, you know, does it bring into play 11 MR. BOOTHROY: I think it was reissued, but — stormwater, sewer, erosion, fire safety, vehicles, 12 MR. CHRISCHILLES: Reissued, right, after that. On circulation, et cetera? 13 June 28th. So -- MR. BOOTHROY: Stormwater management doesn't come 14 MR. BOOTHROY: Because of the driveway. into play because its not — stornwater management does 15 MR. CHRISCHILLES: Yeah. So why — why wasn't the not come into play because its not large enough. It 16 process delayed until the city council weighed in an it? doesn't comply. It — its too small a parcel under 17 MR. BOOTHROY: Council has no authority. the — the City's code. Because the street is being 18 MR. CHRISCHILLES: Then why did they even look at extended the full length of the property, and you know 19 it? the property's over 120 feet long and it gives 20 MR. BOOTHROY: Good question. It — The — the -- opportunities for additional lots along the frontage, we 21 1 don't know. I mean the public brought it to the felt it important to have the ability to have vehicles 22 council's attention, but I think they were misled to tum around because it would be more than 150 feet long 23 believe that the council actually had authority. You there. Even if it wasn't a fire apparatus issue, we no 24 have authority. Council has no authority. The reason longer promote streets being stubbed out of property 25 we're here tonight and 1 think subsequently, as I Page 86 to 89 Board of Adjustment 91 1 got a shed roof, so at the midpoint down to the grade, 2 the average grade around the building, that's how we 3 determine the height. In this — in this situation, 4 most of the building is below grade. 5 MR. WEITZEL And did construction ever begin on 6 this project? 7 MR. BOOTHROY: No. The grading — They did 8 excavation. 9 MR. WEITZEL: Okay. 10 MR. BOOTHROY: That's a term of art. Development 11 is a term of art, so under that -- our definition, that 12 would be considered the start of — of the project, but 13 they never actually poured footings or did any kind of 14 structural work. 15 MR. WEITZEL: Okay. So they've not really become 16 materially encumbered on this? 17 MR. BOOTHROY: Well, that's a legal question. 18 MR. WEITZEL: Okay. 19 MR. BOOTHROY: I would say that in my experience, 20 that would be fairly debatable. 21 MR. WEITZEL: Okay. 22 MR. BOOTHROY: And I think we would have to look at 23 that. I -- I don't want to talk about that at this 24 moment - 25 MR. WEITZEL: Okay. 9-14-16 92 MR. BOOTHROY: -- because I'm not so sure — MR. WEITZEL: Okay. MR. BOOTHROY: — of what the derision would be. MR. WEITZEL: Okay. MR. BOOTHROY: In other words, I would want to consult with the city legal department. MR. WEITZEL: Okay. And there's no such thing as a residential entertainment use. MR. BOOTHROY: That's correct MR. WEITZEL: Okay, thanks. MS. SOGLIN: I just have two questions as well. I had the question about the height and since you're using this average -- averaging of the grade — MR. BOOTHROY: It's -- Its defined that way In the zoning code. MS. SOGLIN: And that there is one window that allows egress -- MR. BOOTHROY: Yes. MS. SOGLIN: — so what is — MR. BOOTHROY: Window well. MS. SOGLIN: — the greatest portion of that cellar, if you will, that is above grade? MR. BOOTHROY: I think I could have— Tim, can you — I'm not sure you — he knows it, but maybe you can -- you've looked at the plans in more detail than I 93 1 have, so you're asking me a very specific question 2 on the — 3 MS. SOGLIN: And part of the reason I'm asking is 4 there is a definition somewhere in these hundreds of 5 pages about a cellar being 3.5 feet below grade, that 6 the height — the height — 7 MR. BOOTHROY: Basically it's a cellar if it's — 8 if its less than four feet out of the ground. Or — 9 Did I say that correctly? Yeah. So that — so a to basement wall is typically eight feet, and so if more 11 than half of the wall of the basement is below grade, 12 then its defined as a cellar as opposed to a basement 13 The reason that's significant, that it gets into how 14 you — whether you define that as a story or not. 15 However, we don't prohibit three-story buildings in 16 residential zones. We'd only — So I think it's kind 17 of irrelevant. 18 MS. SOGLIN: Okay. 19 MR. BOOTHROY: But it's all about the height of the 20 building. Its not about the number of stories. 21 MS. SOGLIN: No, I understand. It was just party, 22 you know, with — 23 MR. BOOTHROY: Yeah, yeah. 24 MS. SOGLIN: — three-dimensional drawings, its 25 sometimes hard to truly understand the elevation. Page 90 to 93 90 1 understand it, we informed the council that they had no 1 2 authority. I don't recall if there was a — a 2 3 memorandum issued, but I think it was a misunderstanding 3 4 in the neighborhood that the council could do something 4 5 when, in fact, they couldn't. Except listen. 5 6 MR. CHRISCHILLES: But it was never considered that 6 7 it might be just a courtesy to allow -- to wait until 7 8 you heard what happened at that meeting, or you just 8 9 thought it didn't make any difference? 9 10 MR. BOOTHROY: I think the code says that If it 30 11 complies with the regulations, particularly the 11 12 Intemational Residential Code, the building official 12 13 shall issue the permit. Shall means shall. 13 14 MR. CHRISCHILLES: All right, thank you. 14 15 MR. WEITZEL: I have just a few questions. Is 15 16 there any consideration in the process for defining a 16 17 use over the types of fixtures used, like plumbing 17 18 fixtures? 18 19 MR. BOOTHROY: No. 19 20 MR. WEITZEL: Okay. Building height has been 20 21 stated to be about 26 or 27 feet. Could you go over the 21 22 process of determining the height of a building? 22 23 MR. BOOTHROY: Well, in this case it's the — 23 24 it's — it's measured from the grade to the midpoint 24 25 between the eave and the pitch of the roof, so this has 25 91 1 got a shed roof, so at the midpoint down to the grade, 2 the average grade around the building, that's how we 3 determine the height. In this — in this situation, 4 most of the building is below grade. 5 MR. WEITZEL And did construction ever begin on 6 this project? 7 MR. BOOTHROY: No. The grading — They did 8 excavation. 9 MR. WEITZEL: Okay. 10 MR. BOOTHROY: That's a term of art. Development 11 is a term of art, so under that -- our definition, that 12 would be considered the start of — of the project, but 13 they never actually poured footings or did any kind of 14 structural work. 15 MR. WEITZEL: Okay. So they've not really become 16 materially encumbered on this? 17 MR. BOOTHROY: Well, that's a legal question. 18 MR. WEITZEL: Okay. 19 MR. BOOTHROY: I would say that in my experience, 20 that would be fairly debatable. 21 MR. WEITZEL: Okay. 22 MR. BOOTHROY: And I think we would have to look at 23 that. I -- I don't want to talk about that at this 24 moment - 25 MR. WEITZEL: Okay. 9-14-16 92 MR. BOOTHROY: -- because I'm not so sure — MR. WEITZEL: Okay. MR. BOOTHROY: — of what the derision would be. MR. WEITZEL: Okay. MR. BOOTHROY: In other words, I would want to consult with the city legal department. MR. WEITZEL: Okay. And there's no such thing as a residential entertainment use. MR. BOOTHROY: That's correct MR. WEITZEL: Okay, thanks. MS. SOGLIN: I just have two questions as well. I had the question about the height and since you're using this average -- averaging of the grade — MR. BOOTHROY: It's -- Its defined that way In the zoning code. MS. SOGLIN: And that there is one window that allows egress -- MR. BOOTHROY: Yes. MS. SOGLIN: — so what is — MR. BOOTHROY: Window well. MS. SOGLIN: — the greatest portion of that cellar, if you will, that is above grade? MR. BOOTHROY: I think I could have— Tim, can you — I'm not sure you — he knows it, but maybe you can -- you've looked at the plans in more detail than I 93 1 have, so you're asking me a very specific question 2 on the — 3 MS. SOGLIN: And part of the reason I'm asking is 4 there is a definition somewhere in these hundreds of 5 pages about a cellar being 3.5 feet below grade, that 6 the height — the height — 7 MR. BOOTHROY: Basically it's a cellar if it's — 8 if its less than four feet out of the ground. Or — 9 Did I say that correctly? Yeah. So that — so a to basement wall is typically eight feet, and so if more 11 than half of the wall of the basement is below grade, 12 then its defined as a cellar as opposed to a basement 13 The reason that's significant, that it gets into how 14 you — whether you define that as a story or not. 15 However, we don't prohibit three-story buildings in 16 residential zones. We'd only — So I think it's kind 17 of irrelevant. 18 MS. SOGLIN: Okay. 19 MR. BOOTHROY: But it's all about the height of the 20 building. Its not about the number of stories. 21 MS. SOGLIN: No, I understand. It was just party, 22 you know, with — 23 MR. BOOTHROY: Yeah, yeah. 24 MS. SOGLIN: — three-dimensional drawings, its 25 sometimes hard to truly understand the elevation. Page 90 to 93 1 2 3 4 5 6 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board ofAdustment 94 MR. BOOTHROY: its most important that we talk 1 about the height, not — not the number of stades. 2 MS. SOGLIN: Okay. Well, I am — okay. 3 Tailgating, you've gone over this about how that is an 4 informal gathering that's allowed in the City without a 5 permit, so if it is — and it specifically says on home 6 games. 7 MR. BOOTHROY: Yes. 8 MS. SOGLIN: Its an away game, people decide they 9 want to have a lot of people over, you couldn't be 10 parking vehicles on the lawn. 11 MR. BOOTHROY: Right. 12 MS. SOGLIN: If its a bas — and the, you know, 13 NCAA basketball, same thing. 14 MR. BOOTHROY: Right. 15 MS. SOGLIN: Its a — its treated a little bit 16 different than tailgating. 17 MR. BOOTHROY: What tailgating does is open up the 18 opportunity for people to illegally park vehicles on the 19 lawn. In Iowa City parking has very specific standards, 20 and you can't park at the front yard in residential 21 zones and other areas, and so in that process of looking 22 at the Melrose Court area and other areas, we Vied to 23 come up with a way to legitimize allowing parking in 24 lawns. Its a huge thing to get your hands around, as 25 95 you can imagine, and so we — we recognized it an home football game weekends only as being a residential use. MS. SOGUN: And for any — MR. BOOTHROY: As long — Go ahead. MS. SOGLIN: Sorry. No, no, sorry. Finish. MR. BOOTHROY: I think I was done. Sorry. MS. SOGUN: And for any homeowner, if they wanted to allow somebody to use their home for, say, a wedding, a graduation party, they can -- they can do that at any time as long as — MR. BOOTHROY: And they do. MS. SOGLIN: -- they're not charging and there's no fees involved? Am there — MR. BOOTHROY: Well, we — we want to — The Issue with tailgating was that it was being used commercially in the Melrose area, and that's why we clearly defined it as being permitted as a noncommercial event. We have not regulated weddings and high school graduations and family reunions and all of the other kinds of social — informal social gatherings that occur in homes in Iowa City. Those are — those are allowed as — as a right. We — we had a problem of significant — significance in the Melrose Avenue area, and I worked with the neighborhood to come up with a way to try to 9-14-16 96 get our arms around it and to deal with the — the vending. It does come Into play here because this particular owner wants to use the property for tailgating activities, so Its Important to know about that but, you know, we — we do — we devised that definition to deal with the area around Melrose Avenue primarily. MS. SOGLIN: I just have one more question. You mentioned you have had homeowners fill out affidavits prior. MR. BOOTHROY: Many times. MS. SOGLIN: Have you had any that are similar to this, about tailgating? I know -- MR. BOOTHROY: I don't see every affidavit of use, so — I can tell you that overoccupancy, which is a common problem in Iowa City, particularly in certain neighborhoods, so we've used that. Houses that have been designed with separate living units in them, like a—you know, there's several up in the Peninsula. We've required affidavit of use because they'd have a separate entrance and a kitchen, and we wanted to make sure that it wasn't being disguised as a duplex, and so we've had it in those kinds of situations. I don't know what other examples I can give. Those are two that come to — tonight that come to the top of my head. I don't 97 1 know that we've done it for tailgating except in this 2 one situation. I'm not aware of one. 3 MS. SOGLIN: Thank you. 4 CHAIRMAN BAKER: Okay. With your indulgence, Doug. 5 First of all, I want to thank you for at least 6 acknowledging an obvious concern that indeed, if you 7 were in the neighbors' situation, you completely 8 understand and you probably wouldn't want to live next 9 to this house. That -- that's sort of grounded In 10 whatever work you do taking into account, but one of the 11 problems here is what you wish and what you can do, what 12 you — what you would prefer and what you're allowed to 13 do, and not only that, but what you are mandated to do, 14 and so I want to get into those issues with you for a 15 few minutes. 16 A couple of very quick questions. The —the 17 property — the house that was originally on that 18 property was demolished. Does city code require that 19 a — a demolishment be advertised ahead of time on site? 20 MR. BOOTHROY: Yes. They require a demolition 21 permit and there is — is it seven or ten days? Seven? 22 And so there is some placarding on the property 23 providing — and the purpose of that is to not only put 24 people on notice about demolition, but we put that in -- 25 we put that in play because one of the things with older Page 94 to 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 98 structures, Friends of Historic Preservation and others would have the opportunity maybe to salvage — CHAIRMAN BAKER: Sure. MR. BOOTHROY: — important features. CHAIRMAN BAKER: But there was neighborhood notice, public notice, that the house was going to be demolished, and questions could have been raised at that time about future development, though most people would not assume that this was going to happen. All right. MR. BOOTHROY: Well, if — yeah, I think if the house is going down, you might assume that it's not going to be left un — unbuilt on, just like the comer lot around — you know, at some point that's going to be built on. CHAIRMAN BAKER: The — the figure of 200 people, capacity of 200 people, has been used more than once in these reports and these memos. Do you dispute that figure? Is this the capacity of this building to host 200 people? MR. BOOTHROY: I really don't have any way of knowing. I'd find that to be very tight in this situation. Tim, do you — can you address that at all? I mean, you know, as you know, with commercial the occupant load Is kind of a belly -button -to -belly -button figure, so it's not -- lt's more for exiting — 99 determining exiting requirements and — CHAIRMAN BAKER: Sure. MR. BOOTHROY: — those type of issues as opposed to comfort Maybe Tim can address it. CHAIRMAN BAKER: Remind us again how big the courtyard is. MR. BOOTHROY: Do you know how big the courtyard is? MR. HENNES: 1352 square feet or something like that. MR. BOOTHROY: About 1300 square feet or so, okay. So what — CHAIRMAN BAKER: Again, do you dispute the capacity of2D0? MR. BOOTHROY: You could — you could get 200 in. CHAIRMAN BAKER: Okay. MR. BOOTHROY: I — I don't know. I mean I -- it — it's — it could be a large group of people. CHAIRMAN BAKER: I understand. I understand. Because it all goes back to when we talked about the definition of tailgating and what the house can be — whal the structure can be used for and what's the capacity for that use. Very quick question: Did any plan submitted to the City Include male and female bathroom designations, 100 1 urinals, more than one toilet per bathroom, or locker 2 rooms? 3 MR. BOOTHROY: I don't recall lock — locker rooms, 4 but In all honesty I didn't review the plans 5 specifically so 1'd have Tim — 6 CHAIRMAN BAKER: Those were mentioned in the 7 reports. 8 MR. HENNES: Yes, there were— the restrooms did 9 come in labeled male — or male and female, men's and 10 women's, and there was — 11 CHAIRMAN BAKER: Plans submitted to this city. 12 MR. HENNES: Yes. 13 CHAIRMAN BAKER: Okay. 14 MR. HENNES: Originally. There was no locker 15 rooms, nothing designated with locker rooms. 16 CHAIRMAN BAKER: Okay. Now, back to your - 17 MR. BOOTHROY: But that's not the plans that were 18 issued, they all — 19 CHAIRMAN BAKER: I understand. 20 MR. BOOTHROY: Okay. 21 CHAIRMAN BAKER: But that starts the perception 22 process about — 23 MR. BOOTHROY: Okay. 24 CHAIRMAN BAKER: — the difference between Intent 25 and design, which I want to address as well. We have 101 1 had some discussion about what University Heights did 2 with a comparable project, the history of this project. 3 This did not come to you without — or the staff without 4 some foreknowledge of — this was an issue in University 5 Heights. What the specifics were are debatable at this 6 point, but It was clear that one of the things being 7 discussed, whether it was in the city staff at 8 University Heights or the public, was a recreational 9 facility being composed or — or proposed for a 10 residential neighborhood. 11 Now, throughout your report, and — and I first 12 noticed that there's a John Yapp memo from April the 13 14th and then talking about more information being 14 requested, and then John In a memo of June the 17th 15 talks about we questioned the use of the house due to 16 its design. Why -- What was it about the proposal that 17 caused you to take this long to determine its proper 18 use? Because normally looking at the standards you use 19 for residential development, and I have to mention 20 standards, bedrooms, so on, so forth, so what was it 21 about this project that took so long to resolve? 22 MR. BOOTHROY: We knew It was controversial in 23 University Heights. I didn't know the details. All 1 24 knew that — was that Q was denied because of sensitive 25 slopes and that the issue for the neighborhood that Page 98 to 101 102 1 attended the council meeting was that it was — they 2 were concemed about a commercial recreational use. 3 That's what I knew. I knew that it was controversial. 4 1 did not know any of the details. It's a different 5 city, different regs, so I didn't pay any attention. 6 So when it came into our office, the permit came In 7 and it was recognized because of the design of the 8 building that it was a Kinnick Stadium resemblance, and 9 we knew that that would be controversial In terms of how 10 it fits Into the neighborhood, and so we felt as an 11 infill property as well as making sure, as I mentioned 12 earlier, that we looked at every aspect of the zoning 13 code, make sure we got it right. And so in — in 14 working with the various individuals in the department 15 in working through this, we felt that we vetted all of 16 the options and came to the conclusion, the right 17 conclusion. 18 CHAIRMAN BAKER: Okay. 19 MR. BOOTHROY: It — it did take more time but, you 20 know, I felt It Important that we do our due diligence 21 in terms of -- of taking the time to make It right. 22 Obviously some feel that we didn't get it right, but 23 we're comfortable. I have absolutely no second thoughts 24 about our decision. Okay. 25 CHAIRMAN BAKER: I guess my confusion is the 103 1 hesitation on this project being because of the design 2 as presented or the fact that there was a public outcry 3 about the design that indeed, if you just looked at the 4 design as submitted, forgetting the letter of intent 5 from the — the applicant and the public outcry, 6 you're — in your mind that was clearly a residential 7 use. 8 MR. BOOTHROY: In my mind, I wasn't going to make 9 that decision until I worked through the zoning code and 10 tested it against all the definitions. I do not jump to 11 judgment based upon the facade, but I — but 1 12 recognized -- you know, I've been involved with other 13 infill lots even in Manville Heights, and for whatever 14 reason, they become very controversial. This is much 15 more controversial than the last one I worked with a few 16 years ago, and so I know that -- that we better make 17 sure that the yards are there. We better make sure that 18 it could — all the I's are dotted, the Ts are crossed 19 and what I — I knew that this question had been raised, 20 and so I did not draw a conclusion until after I had 21 gone through the code. I do not work by prejudging 22 anything. 23 CHAIRMAN BAKER: Okay. 24 MR. BOOTHROY: I've been in this business too long 25 to prejudge. lent 9-14-16 104 1 CHAIRMAN BAKER: Okay. But I'm trying to 2 understand when you looked at the design, what 3 information was missing from the design that — the 4 specs were all there. The lot, the specs, the sewer. I 5 assume that was all in the original plan that was 6 submitted. So what — what is the information that you 7 were trying to get versus the interpretation that you're 8 trying to — does that make sense as a question? 9 MR. BOOTHROY: Well, you know, i met with John, I 10 met with Tim, and I met with the legal department, 11 and — and not everybody's available the same time — at 12 the same time at the same moment, and so it takes time 13 to have those discussions. And when staff would come to 14 me and say, you know, we've looked at these particular 15 provisions and we think it complies, I would say now 16 wait a minute, have you looked at this section of the 17 code or have you looked at that section of the code or 18 do we need to look at this, and so we did more research. 19 We wanted to test the commercial aspect of it so that we 20 were comfortable that we were making no error. 21 CHAIRMAN BAKER: Okay. 22 MR. BOOTHROY: And so we didn't spend all our 23 energies at one moment of time and — and direct all of 24 our resources to day one. It took — it took a period 25 of meetings over a period of time to -- to come through 105 1 with our decision. 2 CHAIRMAN BAKER: Okay. So it wasn't clear from the 3 very beginning, in your mind. 4 MR. BOOTHROY: What you're asking me is whether - 5 whether I would prejudge it based on — and I knew that 6 there was a question about it, and so I think it's what 7 is fair to say is I wanted to test it at every point, e and so while maybe at first blush — There is no 9 question at first blush, Larry, that its residentially 30 designed. I mean, okay, you look at it. Its got five 11 bedrooms, its got a kitchen, a dining area, all that 12 kind of stuff. That was never an issue. Anybody that 13 looks at that knows that's residential. It's designed 14 to live in it. Its got a three -car garage. I could be 15 describing a lot of different types of features that are 16 common throughout this community. That never was in 17 doubt. 18 What becomes an issue in terms of wanting to test 19 it Is is there any reason based on the design, is there 20 anything we can find that would qualify It to be other 21 than residential, and we looked at every aspect of the 22 code to see whether or not we could find anything, and 23 we could not find a provision in the code, and we did 24 not issue a — a — a permit for a commercial use. 25 CHAIRMAN BAKER: Okay. On page 3 of your report, Page 102 to 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-19 106 1 you talk about the building permit being reestablish -- reassign -- reapproved with a change In the driveway. MR. BOOTHROY: Okay. CHAIRMAN BAKER: This is sort of your timeline sequence. MR. BOOTHROY: I'm on it. I'm sorry, I'm on it CHAIRMAN BAKER: Okay. So a plan was submitted. You discovered that plan was approved and then rescinded, is -- is — is that the right word to use? MR. BOOTHROY: Well, suspended -- I think we used the word "suspended." CHAIRMAN BAKER: So -- But does that mean it was approved Initially? MR. BOOTHROY: Yes, the permit was Issued. CHAIRMAN BAKER: Okay. And then rescinded because of the driveway issue. MR. BOOTHROY: Yes. CHAIRMAN BAKER: Okay. But also In that you talk about double toilets, that toilets were removed from the bathrooms. So in the first permit you approved double toilets. MR. BOOTHROY: Is that We? Yeah. Okay. CHAIRMAN BAKER: Okay. So why did you require them to change that, or did — how did the removal occur? Why were they removed? 107 MR. BOOTHROY: Was that a requirement or was that just a question that — that they voluntarily remove? MR. HENNES: They submitted anew design. MR. BOOTHROY: They submitted a new design. So it wasn't a requirement. Not a requirement. CHAIRMAN BAKER: So — but you approved the initial request for two bathrooms per -- MR. BOOTHROY: Right. CHAIRMAN BAKER: Two toilets per bathroom. MR. BOOTHROY: The applicant-- Ask the applicant why they moved them. CHAIRMAN BAKER: Okay. But this goes back into how you evaluate Intent and design and whether this is going to be commercial versus recreational. These are tiny factors, but I'm just interested to note that the original was approved with double toilets, and then that you're saying at the applicants' behest only, not at your behest, they were changed. MR. BOOTHROY: That's what the senior building inspector told me just now. CHAIRMAN BAKER: Okay. Because I know later on page 17 of your report, you're talking about the City has no power to regulate — MR. BOOTHROY: Number of bathrooms. CHAIRMAN BAKER: — number of bathrooms -- number 108 1 of toilets. Plumbing fixtures. 2 MR. BOOTHROY: Yes, that's true. 3 CHAIRMAN BAKER: Okay. So if that — if the 4 applicant wanted to leave the double toilets in each 5 bathroom — 6 MR. BOOTHROY: Yes. 7 CHAIRMAN BAKER: — he could. 8 MR. BOOTHROY: And we obviously issued the permit. 9 CHAIRMAN BAKER: All right. I'm sorry — 10 MR. BOOTHROY: Yes, we — oh, we would approve 11 that. 12 CHAIRMAN BAKER: Okay. What if they wanted to have 13 three bath -- three toilets a bathroom? 14 MR. BOOTHROY: Not a problem. 15 CHAIRMAN BAKER: Not a problem, okay. 16 MR CHRISCHILLES: Larry, can I ask a quick 17 question? 18 CHAIRMAN BAKER: Okay, go ahead. 19 MR CHRISCHILLES: Its — it's kind of related to 20 that. So how many times can a permit be issued and then 21 reissued? 22 MR. BOOTHROY: There's no limit. 23 MR. CHRISCHILLES: There's no limit. So the — 24 what Larry was saying — 25 MR. BOOTHROY: Typically what people do is — is if 109 1 we find code violations, they just amend the plans and 2 we don't require resubmittal of a permit and -- and 3 require additional fees. I mean frankly, what you're 4 asking is how many times can we charge for a building 5 permit. 6 MR. CHRISCHILLES: No, I'm just interested how many 7 times can this occur. Indefinitely? 8 MR. BOOTHROY: Sure. 9 MR.CHRISCHILLES: And— Butthere'sno- 10 there's no designation that the first permit was — was 11 approved. 12 MR. BOOTHROY: It was issued. 13 MR. CHRISCHILLES: It was issued. 14 MR. BOOTHROY: Thus approved. 15 MR. CHRISCHILLES: It was— it was issued and it 16 shouldn't have been? 17 MR. BOOTHROY: No, I didn't say that. 18 MR. CHRISCHILLES: Is that — Is that a logical 19 conclusion or not? 20 MR. BOOTHROY: No. Well, in the sense that about 21 the driveway, yes. 22 MR. CHRISCHILLES: So it was — it was approved in 23 error. 24 MR BOOTHROY: Correct 25 MR. CHRISCHILLES: And It was Improved — approved Page 106 to 109 Board of Adjustment 9-14-16 110 1 1 inerror — 2 MR. BOOTHROY: There was no street paving out 3 front. 4 MR. CHRISCHILLES: It was approved In error the 5 second time as well, at — before the -- when the -- 6 Well, I don't know if it was in error, but the bathrooms 7 were changed. Was that — That wasn't an error? 8 MR. BOOTHROY: No. 9 MR. CHRISCHILLES: Because it would have been — it 10 would have been allowed? 11 MR. BOOTHROY: Yes. 12 MR. CHRISCHILLES: And the applicants just came up 13 with that on their own. 14 MR. BOOTHROY: Ask them. 15 MR. CHRISCHILLES: Okay. 16 MR. BOOTHROY: I mean I can't — I can't tell you 17 what they were thinking. 18 MR. CHRISCHILLES: I thought they might have said, 19 you know. They - 20 MR. BOOTHROY: I — I have not had any conversation 21 with the applicant. 22 MR. CHRISCHILLES: Okay. 23 MR. BOOTHROY: I just met their attorney tonight. 24 MR. CHRISCHILLES: Okay, thank you. 25 CHAIRMAN BAKER: Okay, Doug. When you ask for an 111 1 affidavit of use, there's no specific objective trigger 2 forthat. Its your judgment that - 3 MR. BOOTHROY: My judgment. 4 CHAIRMAN BAKER: —that It would be necessary. 5 How often do you ask for an affidavit of use and a 6 letter of intent from the applicant? 7 MR. BOOTHROY: You mean together? 8 CHAIRMAN BAKER: Yeah. 9 MR. BOOTHROY: I -- I have no idea. It's not, you 10 know — We get affidavit of uses on a regular basis 11 throughout the year, whether we also get a letter of 12 intent. 13 CHAIRMAN BAKER: Okay. 14 MR. BOOTHROY: I — I honestly don't know the 15 answer to that. 16 CHAIRMAN BAKER: Because one of the — I think the 17 public perception is that when you're defining principal 18 use, you reach a certain point that you — if the 19 perception is you let the owner — or the applicant 20 define the use. 21 MR. BOOTHROY: That's correct. 22 CHAIRMAN BAKER: Okay. 23 MR. BOOTHROY: Because it's how it's used, so once 24 it's designed as a residential use, the law allows it to 25 be used as a residential use but not as a commercial 112 1 use. 2 CHAIRMAN BAKER: Okay. 3 MR. BOOTHROY: And so we were concerned that at 4 least with subsequent owners that because of the 5 controversy of this that this house may be used 6 illegally, and so I wanted — I'm all about documenting 7 it, creating a case, and if there's a violation that I 8 can use that document in a court of law to win that 9 case. And that's what this is about, protecting the 10 neighborhood and making sure that there's proper 11 documentation in place so we don't have a problem with 12 101 Lusk Avenue. 13 CHAIRMAN BAKER: Okay. In the affidavit, there's 14 several things addressed in that affidavit, and you talk 35 about the property being used as rental property, can be 16 used on a month — monthly basis, rented out, but not — 17 not for a period shorter than two weeks. I think that's IS the --the limit, wasn't it? The— This concept of 19 Airbnb, this person — the owner could not rent out 20 this — this building for a weekend visitor, a weekend 21 rental. 22 MR. BOOTHROY: I'd have to look at the affidavit of 23 use, Larry. I don't have it — I don't remember 24 exactly what it says. It's been awhile since I've seen 25 It. 113 1 CHAIRMAN BAKER: Sure. 2 MR. BOOTHROY: I simply don't remember -- 3 MR. CHRISCHILLES: Didn't the applicants In their 4 statement of use say they were not going to -- 5 MR. BOOTHROY: Yes. 6 MR. CHRISCHILLES: — rent the property? 7 MR. BOOTHROY: Yes, they did. 8 MR. CHRISCHILLES: Yeah. 9 CHAIRMAN BAKER: At all. 10 MR. BOOTHROY: I think you should ask them. My 11 recollection is that — that that's what they said. 12 CHAIRMAN BAKER: While they're looking up that 13 particular provision, it's also — in the affidavit, 1 14 think there's a mention of a bed and breakfast, that 15 there is a — this could be used in all residential 16 zones, a residence could be converted to a bed and 17 breakfast, but in this case its restricted to the 18 three-bedroom — 19 MR. BOOTHROY: Home stay. 20 CHAIRMAN BAKER: Okay. 21 MR. BOOTHROY: Which requires owner occupied. 22 CHAIRMAN BAKER: One of those units has to be owner 23 occupied. 24 MR. BOOTHROY: Correct 25 CHAIRMAN BAKER: Okay. Page 110 to 113 Board of Adjustment 115 1 properties. 2 CHAIRMAN BAKER: Okay. Well, my question is if 3 this were to be used as a bed and breakfast in the 4 future, it would have to come to the Board of Adjustment 5 for a special exception or — 6 MR. YAPP: For a three-room bed and breakfast, it 7 does not require a special exception. 8 CHAIRMAN BAKER: And it doesn't require any 9 additional parking. 10 MR. YAPP: I believe It does require additional 11 parking. 12 CHAIRMAN BAKER: Which would have to be approved 13 by - 14 MR. YAPP: Which would have to be approved by city 15 administrative staff. 16 CHAIRMAN BAKER: Wouldn't come back through here. 17 MR. YAPP: Four bedrooms or more would come to the 18 Board of Adjustment for a special exception. 19 CHAIRMAN BAKER: Okay. Back to Doug. Thank you. 20 MR. YAPP: Thank you. 21 MR. BOOTHROY: Thank you. 22 CHAIRMAN BAKER: On page 6 of your report — page 6 23 of your report, Doug, you italicize the expression 24 "private recreational use is permitted as an accessory." 25 You're talking about how this property can be used and 9-14-16 116 is permitted as an accessory use. MR. BOOTHROY: Yeah, drawing attention to that because that's — that's defined in the code. CHAIRMAN BAKER: Right. But are there any restrictions on recreational use? MR. BOOTHROY: No. CHAIRMAN BAKER: None. MR. BOOTHROY: None. CHAIRMAN BAKER: Okay. So the number of people using it for recreational purposes is not a factor. MR. BOOTHROY: Cored. CHAIRMAN BAKER: Okay. The— MR. BOOTHROY: As long as its not commercial. CHAIRMAN BAKER: As long as it's not commercial, okay. If it's therefore not limited, you can look at certain aspects of this project as a recreational use, the basketball court. Right. MR. BOOTHROY: The family room. CHAIRMAN BAKER: The family room, the basketball — MR. BOOTHROY: The kitchen. CHAIRMAN BAKER: Movie theater. MR. BOOTHROY: The living area. CHAIRMAN BAKER: So there are — MR. BOOTHROY: Like on all houses, every room can be recreational, except maybe the bedrooms. Sorry. 117 1 CHAIRMAN BAKER: For the record - 2 MR. BOOTHROY: I think we need a little bit of 3 levity here. 4 CHAIRMAN BAKER: — Doug and I have known each 5 other for 35 years. I — And I'm still funnier than he 6 Is. All right. 7 MR. BOOTHROY: But I'm aspiring. 8 CHAIRMAN BAKER: That's right. So there's no 9 restriction on how this property can be used for 10 recreational purposes. 11 MR. BOOTHROY: Private recreational purposes. 12 CHAIRMAN BAKER: Private recreational purposes. 13 MR. BOOTHROY: I think you need — Because the 14 commercial is coming in here, I want to make sure we 15 talk about it being private. 16 CHAIRMAN BAKER: You also note, I think it's on 17 page 6, that you have approved structures with as many 18 bedrooms as this current one. 19 MR. BOOTHROY: Yes. 20 CHAIRMAN BAKER: Have you approved structures with 21 more — single-family residences with more bedrooms? 22 MR. BOOTHROY: Well, I'll have to ask the senior 23 building inspector because I don't re -- believe it or 24 not, I don't see every single-family house that comes 25 into Iowa City, since there's over 200 or so. Page 114 to 117 114 1 MR. BOOTHROY: We expanded that a number of years 1 2 ago at the request of bed and breakfast operators on the 2 3 north side. 3 4 CHAIRMAN BAKER: If this were converted to a bed 4 5 and breakfast or use as a bed and breakfast, is the 5 6 parking currently provided enough, or would that be 6 7 something that would be — come back through the Board 7 8 of Adjustment for a special exception or variance? 8 9 MR. BOOTHROY: Packing would be required. 9 10 CHAIRMAN BAKER: But is it more than is 10 11 currently — 11 12 MR. BOOTHROY: I'm looking at John Yapp. You're 12 13 asking me questions. I don't have the zoning code in 13 14 front of me and I can't look it up. It's — You've 14 15 seen the zoning code; it's over 300 pages. I haven't 15 16 got it all memorized. 16 17 CHAIRMAN BAKER: I used to read this for fun, Doug. 17 18 You know that. 18 19 MR. BOOTHROY: Well, I've drafted way too many of 19 20 them. 20 21 MR. YAPP: John Yapp, Development Services. What's 21 22 in the affidavit of use mimics existing city code. 22 23 MR. BOOTHROY: Okay. 23 24 MR. YAPP: There's nothing In there that is more or 24 25 less restrictive than what applies to other residential 25 115 1 properties. 2 CHAIRMAN BAKER: Okay. Well, my question is if 3 this were to be used as a bed and breakfast in the 4 future, it would have to come to the Board of Adjustment 5 for a special exception or — 6 MR. YAPP: For a three-room bed and breakfast, it 7 does not require a special exception. 8 CHAIRMAN BAKER: And it doesn't require any 9 additional parking. 10 MR. YAPP: I believe It does require additional 11 parking. 12 CHAIRMAN BAKER: Which would have to be approved 13 by - 14 MR. YAPP: Which would have to be approved by city 15 administrative staff. 16 CHAIRMAN BAKER: Wouldn't come back through here. 17 MR. YAPP: Four bedrooms or more would come to the 18 Board of Adjustment for a special exception. 19 CHAIRMAN BAKER: Okay. Back to Doug. Thank you. 20 MR. YAPP: Thank you. 21 MR. BOOTHROY: Thank you. 22 CHAIRMAN BAKER: On page 6 of your report — page 6 23 of your report, Doug, you italicize the expression 24 "private recreational use is permitted as an accessory." 25 You're talking about how this property can be used and 9-14-16 116 is permitted as an accessory use. MR. BOOTHROY: Yeah, drawing attention to that because that's — that's defined in the code. CHAIRMAN BAKER: Right. But are there any restrictions on recreational use? MR. BOOTHROY: No. CHAIRMAN BAKER: None. MR. BOOTHROY: None. CHAIRMAN BAKER: Okay. So the number of people using it for recreational purposes is not a factor. MR. BOOTHROY: Cored. CHAIRMAN BAKER: Okay. The— MR. BOOTHROY: As long as its not commercial. CHAIRMAN BAKER: As long as it's not commercial, okay. If it's therefore not limited, you can look at certain aspects of this project as a recreational use, the basketball court. Right. MR. BOOTHROY: The family room. CHAIRMAN BAKER: The family room, the basketball — MR. BOOTHROY: The kitchen. CHAIRMAN BAKER: Movie theater. MR. BOOTHROY: The living area. CHAIRMAN BAKER: So there are — MR. BOOTHROY: Like on all houses, every room can be recreational, except maybe the bedrooms. Sorry. 117 1 CHAIRMAN BAKER: For the record - 2 MR. BOOTHROY: I think we need a little bit of 3 levity here. 4 CHAIRMAN BAKER: — Doug and I have known each 5 other for 35 years. I — And I'm still funnier than he 6 Is. All right. 7 MR. BOOTHROY: But I'm aspiring. 8 CHAIRMAN BAKER: That's right. So there's no 9 restriction on how this property can be used for 10 recreational purposes. 11 MR. BOOTHROY: Private recreational purposes. 12 CHAIRMAN BAKER: Private recreational purposes. 13 MR. BOOTHROY: I think you need — Because the 14 commercial is coming in here, I want to make sure we 15 talk about it being private. 16 CHAIRMAN BAKER: You also note, I think it's on 17 page 6, that you have approved structures with as many 18 bedrooms as this current one. 19 MR. BOOTHROY: Yes. 20 CHAIRMAN BAKER: Have you approved structures with 21 more — single-family residences with more bedrooms? 22 MR. BOOTHROY: Well, I'll have to ask the senior 23 building inspector because I don't re -- believe it or 24 not, I don't see every single-family house that comes 25 into Iowa City, since there's over 200 or so. Page 114 to 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 118 1 MR. HENNES: More than five bedrooms? MR. BOOTHROY: Yeah. MR. HENNES: Tim Hennes, senior building inspector. More than five bedrooms, I'm sure there is. I just can't recall them off the top of my head, but there are a lot of — CHAIRMAN BAKER: Okay. MR. BOOTHROY: We can run — We may be able to run a report in our computer to get that information. CHAIRMAN BAKER: Because it really leads to my second question, which is if this structure had come in with ten bedrooms, there's nothing you could do about it. MR. BOOTHROY: That's cortect. CHAIRMAN BAKER: Fifteen bedrooms. MR. BOOTHROY: Well— CHAIRMAN BAKER: My question is — MR. BOOTHROY: — obviously — obviously you begin — There — there is a tipping point on everything, as you know. CHAIRMAN BAKER: That's — MR. BOOTHROY: And— CHAIRMAN BAKER: — that's what I'm trying to get to, Doug, which is the tipping point is not In print. MR. BOOTHROY: Exactly. 119 CHAIRMAN BAKER: If there's a certain point where YOU as the building official would say no, this is no longer a residential structure, and then my question is where in the zoning code could you say and, therefore, we will not approve it? How do you turn somebody down based upon what you see as an obvious problem? MR. BOOTHROY: Well, I'm glad 1 haven't had that problem. Never had a proposal with 15 bedrooms in it that wasn't a rooming house. CHAIRMAN BAKER: Okay. MR. BOOTHROY: And I think we would — we would bring together the zoning code interpretation panel and have — that would be the legal staff and the — and the NDS and decide whether or not there was anything in the code. Obviously, the appearance of that would raise questions, and so we would do —we would look at the code and do a review. If there wasn't anything in the code that restricted that, Larry, we would approve it. CHAIRMAN BAKER: Which I'm back to the point I've been making earlier, which is what you would like to do versus what you can do, what you're permitted to do, and you're constrained in your view by the letter of the zoning code. MR. BOOTHROY: Yes. CHAIRMAN BAKER: I think that's a fair statement. 120 1 So if somebody wanted ten bedrooms — if this applicant 2 wanted ten bedrooms with two toilets per bathroom in 3 each bedroom, you would approve it. 4 MR. BOOTHROY: Yes, we would. 5 CHAIRMAN BAKER: Okay. 6 MR. BOOTHROY: Most likely anyway. I — I — It 7 raises a flag, and I don't think it's — I think it's 8 fair to — I mean its fair to — to question that. 9 CHAIRMAN BAKER: Okay. And the recreational uses 10 are permitted. 11 MR. BOOTHROY: Yes. 12 CHAIRMAN BAKER: But what if this structure had two 13 basketball courts? 14 MR. BOOTHROY: You mean a full court orjust two 15 basket - 16 CHAIRMAN BAKER: Half courts? 17 MR. BOOTHROY: This is a half court so I wasn't 18 sure. 19 CHAIRMAN BAKER: Inotherwords,there's nothing — 20 MR. BOOTHROY: Nothing in the code. 21 CHAIRMAN BAKER: Somebody could brought — could 22 have brought in a project with all of these things, and 23 you are constrained by law to approve it. 24 MR. BOOTHROY: Has that house on the west side got 25 a full court? Yeah, I think the one that — that — out 121 1 on the west side where — if you're familiar with the 2 one I'm talking about — 3 CHAIRMAN BAKER: Yeah. 4 MR. BOOTHROY: — I think he has a full court in 5 his basement. 6 CHAIRMAN BAKER: Right. But we have a giant lot. 7 This question here, this — 8 MR. BOOTHROY: It's a large — It's above -average - 9 size lot 10 CHAIRMAN BAKER: And you can put 7500 — 11 7,000 -square -feet structure on it. And yet, I think 12 the -- the public's concern is this is obviously not 13 intended to be a residential unit, so I'm trying to get 14 at how would you have approached this using the current 15 code, but what I hear is there's nothing in this 16 application to you or the staff that would Indicate that 17 this is a rec— I'm not talking commercial; I'm just 18 talking a recreational, nonresidential or primarily 19 recreational use. 20 MR. BOOTHROY: I agree with what you said. There's 21 nothing in the code. I've been in houses that — that 22 have that type of extensive recreational uses in them, 23 and they're just single-family homes with people that 24 live there. 25 CHAIRMAN BAKER: Okay. Page 118 to 121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 122 MR. BOOTHROY: But what makes this maybe a little 1 bit different is the second home. 2 CHAIRMAN BAKER: Yeah, the second home, not to be 3 occupied that — the applicant is — 4 (Overlapping speakers) 5 MR. BOOTHROY: The one that I'm thinking of is the 6 family lives there and they have — 7 CHAIRMAN BAKER: — conspired to have a home where 8 he can recreate. You don't have to address that. 9 MS. SOGLIN: Larry, can I ask a related question, 10 would you mind, on that? 11 CHAIRMAN BAKER: Go ahead. 12 MS. SOGLIN: So I just want — So If you — 13 someone submitted a request to build a home that had, 14 say, 200 square feel of — that included the kitchen, 15 the bedroom, the bathrooms, and 3,000 square feet that 16 included a basketball court, a large theater viewing 17 room and other types of what you would call the 18 recreational space, that — there is nothing about 19 percentages of how the home is broken out in square 20 footage. I just want to — You would have to — Again, 21 that would be something — 22 MR. BOOTHROY: I would approve that. I mean some 23 of these — You know, your patio out back is part of 24 that and, you know, we have patios, you know, in the 25 123 Kennedy Parkway area that are significantly larger than 1 this. This is an open courtyard, it's a patio. This is 2 actually relatively small to some of them and, you know, 3 how people want to play in their homes and what they 4 want to have as features, we -- there's a lot of 5 latitude. But, that being said, it would have to be 6 designed to be habitable. It would have to have living, 7 sleeping, eating area and it would have to — you know, a you could not just do this without a residential aspect 9 to it. 10 CHAIRMAN BAKER: Okay. 11 MR. BOOTHROY: And you couldn't put it in — you 12 know, it may come up as a question of it was in a 13 separate building. That may -- might draw attention to 14 it as well possibly. 15 MR. CHRISCHILLES: Did I read somewhere in here 16 that in regards to principal use that it is somewhat 17 dependent on the square footage designated for living 18 space and -- versus other uses of the — of that 19 residence? 20 MR. BOOTHROY: Well, the principal use is -- is — 21 there's a couple things about principal use. One is 22 that there's only one principal use permitted on the 23 lot, which is I don't think in question. 24 MR. CHRISCHILLES: Right. 25 9-14-16 124 MR. BOOTHROY: And then in this -- in the zoning code there are definitions about accessory and principal use. Accessory uses serve the principal use, and there's — I don't recall if there's percentages in there or not. We'll look it up and IT get back to you as soon as — MR. CHRISCHILLES: Okay. Thank you. CHAIRMAN BAKER: All right. Doug, I want to expand on something that Becky raised about tailgate parties. There are no regulations for tailgate parties except the public nuisance laws. Is that a generalization that's accurate? You have a definition in the code here. Is there anything else in the code that regulates tailgate parties in any way? MR. BOOTHROY: No. CHAIRMAN BAKER: Okay. MR. BOOTHROY: Except the fact that we define them as noncommercial. CHAIRMAN BAKER: Yeah, and they're — and they're also defined as football home weekends only. MR. BOOTHROY: Specifically. CHAIRMAN BAKER: Okay. You use on page 14 these terms: Social activity, social event, social gathering. And these are all used — it's — don't worry about it. I -- I'm assuming they're used interchangeably. 125 MR. BOOTHROY: Yes. CHAIRMAN BAKER: Okay. You would agree that this house could accommodate a very large tailgate party. MR. BOOTHROY: Yes. CHAIRMAN BAKER: Okay. MR. BOOTHROY: Yes, excuse me. CHAIRMAN BAKER: But we define it as football home weekends. Now, take that same social activity any other day. I think this is the issue that Becky started. There's no regulation for it. It's not a tailgate parry because We not defined that way, but it's the same activity. Home basketball game, wrestling, championship play — and that could be done hundreds of times a year. MR. BOOTHROY: There's no — If it's on TV, it — CHAIRMAN BAKER: Sure. MR. BOOTHROY: — you could have a party to watch it. CHAIRMAN BAKER: Okay. So we're getting —we're sort of going around the Issue of primary use again. Parking for a tailgate, there's no regulation on parking. You can park on the grass. MR. BOOTHROY: We — we liberalized the packing standard during home football weekends. CHAIRMAN BAKER: But you cannot charge for the — the party. Page 122 to 125 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board or Adjustment 9-1416 126 1 MR. BOOTHROY: Right. CHAIRMAN BAKER: Okay. MR. BOOTH ROY: We've got a number of criteria. CHAIRMAN BAKER: Can you charge for parking? MR. BOOTHROY: I don't believe that that's regulated there. CHAIRMAN BAKER: Because people charge for parking in their lots all the time. MR. BOOTHROY: Right. CHAIRMAN BAKER: Okay. So this could generate revenue for the owner who's simply charging $20 a car for parking. MR. BOOTHROY: If that house wasn't built? CHAIRMAN BAKER: Yeah. MR. BOOTHROY: Yes. CHAIRMAN BAKER: There's a limited amount of — of grass open space, I understand, for where — MR. BOOTHROY: But it has to be in conjunction with a tailgating activity, so I'd have to look at the definition. I'm not sure you could just charge for parking without having a tailgating activity in -- in — in progress. CHAIRMAN BAKER: What about a social activity in progress? MR. BOOTHROY: You mean a different type of 127 activity? CHAIRMAN BAKER: It's all the same. MR. BOOTHROY: Then you cannot -- CHAIRMAN BAKER: It's a party. MR. BOOTHROY: You know, as a practical matter, you know, again, we're getting into situations where when people — when their kids graduate from high school, they sometimes park on the front lawn. We're not — we're not — because it's — its — we just recognize that that — that is the kind of activity that should be allowed. The code strictly restricts that, and where we enforce it rigorously is with rental property and commercial property because in those situations it is — irs — it's consistently being done and it creates issues in terms of erosion and -- and all kind of issues with public sidewalk access. CHAIRMAN BAKER: The— MR. BOOTHROY: But temporarily, you know— CHAIRMAN BAKER: — unpaved street Lusk— the unpaved part of Lusk — MR. BOOTHROY: Let me just also say technically speaking, and you may — I don't know if you were involved with this, but anyway, we did create a temporary use permit so if we wanted to, we could — we could issue temporary use permits for these parking on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 128 the front lawn if we wanted to make it, but 8's unnecessary. CHAIRMAN BAKER: Okay. The unpaved portion of Lusk, how much — how long is the unpaved portion of Lusk? MR. BOOTHROY: Well, I think the paved — in front of the lot I think is about 40. And so they talked about it being about 150 -some feet long, so from the property line in along Lusk -- along the 101 Lusk is about 40 -some feet. CHAIRMAN BAKER: Forty -something feet and that is city property? MR. BOOTHROY: Right-of-way. City property. CHAIRMAN BAKER: Would the tailgaters be allowed to park on city property? MR. BOOTHROY: You mean like on the city street? CHAIRMAN BAKER: On the unpor-- unpaved portion of Lusk, which is — fronts their house. MR. BOOTHROY: Well, 8's really not part of this — this meeting, but — but, you know, we are going to require it to be barricaded for a couple reasons: Number one, I'm concerned that — that that might become an issue because of the applicants' interest in having — hosting parties, and it is a Flat -- relatively flat area and can easily be parked. Number 129 two, there is a gigantic oak tree right in the middle of that right-of-way. I'm concerned that during the construction that that tree could be damaged by compaction of construction equipment, so we're going to fence that off so that they cannot use it for staging so we don't have that tree damaged during the process. I'm very concerned about that. I didn't raise it because it's not -- I didn't think it was germane to this particular meeting, but it's something that we're going to do once the construction — to prevent those kinds of things that we're talking about. CHAIRMAN BAKER: Yeah, and the reason I raise the issue is because if the concern of the neighborhood is the consequences of a large tailgating party, then the City is — has plans to restrict parking on its property at least. MR. BOOTHROY: Absolutely. CHAIRMAN BAKER: Absolutely. MR. BOOTHROY: I'm going — I'm strongly recommending that we have — it's our property. We can barricade it. There are a lot of these dead-end streets around Iowa City that don't have barricades or — and it's because we just used to allow it that way. And in this situation because of the location of this Page 126 to 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-19 130 1 neighborhood -- actually, I'm kind of surprised maybe that it hasn't happened already, even without this house in — in play. CHAIRMAN BAKER: Okay. A couple more questions, and thank you for your patience. On page 21 there's a reference to an appeal -- MR. BOOTHROY: My 21? CHAIRMAN BAKER: Yeah, your — of your report. There's a reference to the — having one month to appeal a building code issue to the Board of Appeals. MR. BOOTHROY: Where are we? You're starting to wear me out, Larry. MR. WEITZEL: Second — second paragraph of the City's staff response regarding fire safety. MR. BOOTHROY: Yeah, that's a pretty standard statement for appeals. I think you have something similar. CHAIRMAN BAKER: All right. My question is has that time period already passed? Or is it only applicable after the building permit is — is reapproved? MR. BOOTHROY: Well, I would — I would go with the latest approval of the permit, but — CHAIRMAN BAKER: So If they have concerns they can lake those concems to the Board of Appeals, okay. 131 MR. BOOTHROY: Right. Now, the board of — Not to -- not to make this too confusing, but the Board of Appeals can't grant variances and can't grant — they have very limited authority under the building code, so their authority is less broad than yours. CHAIRMAN BAKER: So what is it that the neighborhood could — neighbors could appeal to the Board of Appeals? MR. BOOTHROY: They could appeal that the structure doesn't— doesn't meet the — the specific standards of the International Residential Code, that the truss system is not properly certified — CHAIRMAN BAKER: These are issues that we as the Board of Adjustment cannot address. MR. BOOTHROY: I don't— No. CHAIRMAN BAKER: Okay. MR. BOOTHROY: But they could — they could — they can look at the — those kinds of issues. If there's a plumbing code issue, they're not putting in low -flow toilets and they're supposed to, those kinds of things could be appealed to the — you know, those kinds of technical details. It's more of a tech — it's a life safety code, it's not a zoning code, which Is not life safety, and — and so you cannot waive life safety requirements. In the zoning code, of course, you know, 132 I it's a different matter. 2 CHAIRMAN BAKER: Okay, let me sort of wrap this up 3 here because — because it's getting late. 4 MR. BOOTHROY: I think I thought I was going to be 5 home by eight -thirty. 6 CHAIRMAN BAKER: Yeah, I thought nine o'clock easy 7 but then I -- 8 MR. BOOTHROY: You've been asking me so many 9 questions. 10 CHAIRMAN BAKER: Well, I forgot you were the first 11 speaker. 12 MR. BOOTHROY: I am? I thought I was last. 13 CHAIRMAN BAKER: On the issue ofwhat you can and 14 cannot do based upon the zoning code, this same project, 15 this 7500 — 7,000 square fool — 16 MR. BOOTHROY: Plus. 17 CHAIRMAN BAKER: — house, same design, same 18 bedrooms, basketball court, everything could be put 19 anywhere in Iowa City that has a 15,000 square — any 20 residential lot — single-family — 21 MR. BOOTHROY: That it could fit on. 22 CHAIRMAN BAKER: That it would fit on. Okay. And 23 if the lot were bigger, you could have the same design 24 and a bigger scale. 25 MR. BOOTHROY: As long as you didn't exceed a 133 1 building coverage requirement. 2 CHAIRMAN BAKER: Like 45 percent, right? 3 MR. BOOTHROY: Right. 4 CHAIRMAN BAKER: Okay. 5 MR. BOOTHROY: So there is some limit but you could 6 go vertical. 7 CHAIRMAN BAKER: Right. I have a 8 12,000 -square -foot lot, I could put a 5,000 -square -foot 9 version of this house on my lot on Rochester if I wanted 10 to. 11 MR. BOOTHROY: Yes. 12 CHAIRMAN BAKER: Okay. 13 MR. BOOTHROY: I wasn't sure if that was rhetorical 14 or whether that was -- 15 CHAIRMAN BAKER: No. John wouldn't be happy. 16 MR. BOOTHROY: Yeah. 17 CHAIRMAN BAKER: So there's nothing you can do in 18 most cases to -- to change the primary use definition. 19 If ten bedrooms, three basketball courts, a courtyard 20 with a performing stage on it, there's nothing in your 21 mind that you can do to redefine the primary use from 22 residential to something else. Make residential a 23 secondary use. At what point in the current zoning 24 code — And I asked this a little bit eadier but I 25 want to close with this. At what point in the current Page 130 to 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-19 134 zoning code could you say no? MR. BOOTHROY: Well, as you — as you know. It gives wide latitude to what is a single-family dwelling and wide latitude for private recreational use, and it is that way on purpose because single-family homes in the zoning code are treated special. CHAIRMAN BAKER: Okay. MR. BOOTHROY: They're exempted from nonconforming provisions, they're exempted from — in the site plan ordinance and so if — they're even exempted from the rental housing code. We — we create a lot of — of flexibility and latitude for people to design the home any way they want and use it just about any way they want except for prohibited uses. They can't -- as we've talked. So ask your question again. At what point would it be not allowed? CHAIRMAN BAKER: Yeah. MR. BOOTHROY: Well, clearly if it didn't have any residential features. CHAIRMAN BAKER: I've got a bedroom and a bathroom and a garage and -- MR. BOOTHROY: Kitchen? CHAIRMAN BAKER: Kitchen. MR. BOOTHROY: Living? CHAIRMAN BAKER: Yeah, and — 136 MR. BOOTHROY: And rec room? There's no point -- CHAIRMAN BAKER: -- and lots of other stuff. Okay. Now, last question, and this is sort of one of the things that -- MR. BOOTHROY: I mean that's how we hang everything together. CHAIRMAN BAKER: Yeah. MR. BOOTHROY: Yeah. CHAIRMAN BAKER: One of the things we do on the board here is when we have these issues come through, we study them. We make a decision based upon the rules that we operate under. But very often we discover that the miss we operate under are inadequate to the problems before us. We're constrained, like you, to answer yes or no based upon a rule that we think doesn't work or should be amended. From this experience, is there anything the staff would look at and say, you know what? This is something that needs to be addressed in the zoning code by A, B, or C, or is it just simply we'll deal with it when it comes up again. Is there any change to the code that would make this issue less problematic? MR. BOOTHROY: Well, I think -- well, if we had in place infill standards in the zoning code that would require certain performance measures in terms of — of 1 2 3 4 5 6 7 8 9 10 136 the building being in context with the neighborhood, you know, I don't see an issue with siting; but I do see an issue with style, architecture, and we don't have that in. Some communities do have an infill ordinance. It's like an overlay zone, so its notjust this neighborhood, it would be any neighborhood. And as I said earlier, some of the most difficult site plan review issues, because neighbors get upset because it's been — in this case it wasn't open space, but in many cases it's just been — you know it's got trees and its been open space and it's always been there. CHAIRMAN BAKER: So is that -- MR. BOOTHROY: People always challenge it and are very upset because it's a change. CHAIRMAN BAKER: Okay. But is — MR. BOOTHROY: So theta what we need. CHAIRMAN BAKER: An infill ordinance, is that on the agenda? MR. BOOTHROY: It's not been requested. I have a ton of priorities -- CHAIRMAN BAKER: Sure. MR. BOOTHROY: Affordable housing and I can go through a litany of things that — that are on -- on our list, but no, that has not been requested. 137 1 CHAIRMAN BAKER: Well, one of the things that a 2 neighborhood could do, especially someone with 3 established homes like Manville Heights, is expand the 4 coverage of the historic preservation ordinance. Would 5 that — If that were In place here, that would be -- 6 MR. BOOTHROY: That would — that would also do it. 7 1 think it comes with different type of rules. Its a 8 little more restrictive than what I was talking about. 9 So I think you could look at either one. It depends on 10 what you want to do, but both of those have been used in 11 other communities to deal with the integrity of the 12 neighborhood and its context in terms of — of -- of the 13 architectural styles. So you could either do it through 14 an overlay zone like a historic or you could do it with 15 an overlay zone with Infill. I think the reason infill 16 comes in is that — is that it would apply anywhere, 17 even if it didn't meet the criteria as being suitable 18 for historic district. 19 CHAIRMAN BAKER: Okay. Any other questions from 20 the board? 21 MR. CHRISCHILLES: 1 have one. On page 15 of 22 your -- of your section. 23 MR. BOOTHROY: I'm there. Yes. 24 MR. CHRISCHILLES: Where it says Number 3. 25 MR. BOOTHROY: Okay. Page 134 to 137 138 1 MR. CHRISCHILLES: And it — the last sentence 2 says, "In determining a property's principal use" — 3 MR. BOOTHROY: Referring to the bottom of the page 4 or - 5 MR. CHRISCHILLES: No, it's right in the middle. 6 MR. BOOTHROY: Oh, I'm sorry. Okay, I see it. 7 MR. CHRISCHILLES: "In determining a property's 8 principal use, the zoning code sets forth evaluative 9 criteria to be applied to that property. Those criteria 30 include the following," A through F. I'm not — I'm not 11 going to read each one of those, but I think that 12 several of those would be applicable before the 13 principal use is determined, but yet, your argument is 14 that it is — you've already determined that it's a 15 single-family dwelling, which negates these points being 16 valid, so you've kind of got the cart before the horse. 17 You already said that its a single-family dwelling. 18 Therefore, none of this applies or is — is valid, but 19 these are the things that should have been evaluated 20 before the use was determined. And I don't — I don't 21 understand that. 22 MR. BOOTHROY: I think what I said — Let me just 23 go back and get to what Larry was saying. You know, at 24 fiat blush we know it's got a residential factor to it. 25 MR. CHRISCHILLES: Right. 139 1 MR. BOOTHROY: That's not debatable. It's got 2 bedrooms, eating, sleeping areas. 3 MR. CHRISCHILLES: But you have to have all the — 4 MR. BOOTHROY: Lel me — let me finish then. So — 5 so knowing that it was controversial, knowing that the 6 issue that the tail may be wagging the dog in this 7 situation, this stuff came into our conversation. It 8 was not Ignored. 9 MR. CHRISCHILLES: And — and the reason that it 10 didn't carry sufficient weight was because you have no 11 other category to put this structure in or— or — 12 MR. BOOTHROY: We -- When we — 13 MR. CHRISCHILLES: — because you just didn't deem 14 that it was Important? 15 MR. BOOTHROY: When we concluded that the — based 16 on our analysis which would —which was a broad 17 analysis - 18 MR. CHRISCHILLES: Yeah. 19 MR. BOOTHROY: — and this implies a broad 20 analysis, when we concluded that it does meet the 21 definition of a single-family detached dwelling — 22 MR. CHRISCHILLES: And everything else was just 23 (descriptive sound). 24 MR. BOOTHROY: Once you Identify the use, you move 25 forward. lent 9-14-16 140 1 MR. CHRISCHILLES: Right, but then this is — What 2 I'm getting at is this should have been — these factors 3 are very important In determining the principal use and, 4 therefore, you get my cart-before-the-harse argument? 5 MR. BOOTHROY: I don't think we put the cart before 6 the horse. What 1 would say is that we tried to do the 7 most objective analysis possible. I would not prejudge 8 this and put the cart before the horse. What I would do 9 is say this is what this looks like. It is — it has 10 got a residential component. Is it, in fact, a 11 single-family dwelling. Let's look at all the factors, 12 and we did talk about these kind of things, but some of 13 these just drop off. The she — 14 MR. CHRISCHILLES: Some of them do. Yeah, some of 15 them do. 16 (Overlapping speakers) 17 MR. BOOTHROY: Most of them do. 18 MR. CHRISCHILLES: No, not — not — well — 19 MR. BOOTHROY: Well, building and — 20 (Overiapping speakers) 21 MR. CHRISCHILLES: What I'm saying, it seems kind 22 of to me that what — the process that was done was the 23 checking off of boxes and it satisfies this, this, this, 24 this, this. We've got five boxes — 25 MR. BOOTHROY: No. 141 1 MR. CHRISCHILLES: — checked, so it qualifies as a 2 single-family residence. 3 MR. BOOTHROY: Doesn't take six and a half weeks to 4 check off boxes. 5 MR. CHRISCHILLES: That's what Larry was asking. 6 Why — why did it take so long? 7 MR. BOOTHROY: Because of the thoroughness of the 8 review. You — We were not going to rush — rush to 9 judgment on this, and so when you debate whether or not 10 there is any reason to consider some of these other 11 aspects that you're talking about — 12 MR. CHRISCHILLES: Some ofthem are — 13 MR. BOOTHROY: —it takes time. 14 MR. CHRISCHILLES: — very important. Very 15 important, though. 16 MR. BOOTHROY: No question. Do you have a 17 question? Sorry, John Yapp has a paint too. 18 MR. YAPP: John Yapp, Development Services. 1 19 can't find the reference right now, but the use 20 classification section of the code does specifically say 21 that those criteria listed on page 15 are to be used for 22 uses not otherwise classified. In other words, they're 23 to be used as a method to classify a use when the use 24 classification is not otherwise listed. That's — The 25 residential use classifications Is listed — Page 138 to 141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Ad 142 MR. CHRISCHILLES: That's a circular argument. I have one more question for — for Tim, is ft? Is it — What's your last name? MR. HENNES: Hennes. MR. CHRISCHILLES: Oh, no, you're the wrong one. Is — is Tim — Tim Goerdt here? Tim? MR. BOOTHROY: No. Terry Goerdt. MR. CHRISCHILLES: Terry Goerdt? MR. BOOTHROY: No. MR. CHRISCHILLES: Okay. Never mind then. CHAIRMAN BAKER: Any other questions for Doug? MR. BOOTHROY: Thank you. CHAIRMAN BAKER: Thank you very much, Doug. MR. BOOTHROY: Anyone need another break? CHAIRMAN BAKER: Well, I want to talk to Mr. Larew about that. Jim, give us an idea about the — the format of your presentation and what we can expect as far as time goes. MR. LAREW: You can expect that it will last an hour or more. We'll begin with myself. We have 12 or 13 speakers who have given thought to their presentation but will not ovedap it or making their points in a redundant way. It would take me three minutes to -- to set up. If you want to take a break now, that's — CHAIRMAN BAKER: I was going to say, I don't want 143 to interrupt the presentation later — MR. LAREW: I think it would be good to take -- CHAIRMAN BAKER: -- if we take like a five-minute break now. MR. LAREW: Yes. CHAIRMAN BAKER: And come back at eight -forty and then once your presentation is over, I think that the board needs to talk about a possible postponement or a continuance of the hearing, but we'll talk about that after your presentation. MR. LAREW: Right, and with your permission, what I'd like to do when you're up and around, I have bound exhibits to try to make it easier for people to find things. Some of these you've gotten electronically. They're tabbed and numbered, and I will put them on your — on your desk. And then so you get some sense of the order of things, the first person that we intend to have speak after me is a representative of our engineering fine because we think there are technical specific Issues that you'll want. Then we'll have a couple of speakers, and this is a core issue here where we're presenting that there is a methodology. Particularly we're calling this an entertainment matter and the point has come up expressly. And that is to say, where there's a use nenl 9-14-19 144 1 that's not anticipated, well have a couple of speakers 2 and then we'll go from there, so I would anticipate that 3 we'll be taking at least an hourjust to present our 4 list. 5 CHAIRMAN BAKER: Let's take a ten-minute break. 6 All right. Eight forty-five. 7 (A brief recess was taken.) 8 CHAIRMAN BAKER: All right. Before Jim speaks, I'd 9 like to raise the possibility that after Jim, the 10 appellant presentation, and the public discussion from 11 those that support the appellants' case, we adjourn 12 until Monday evening to hear from the homeowner, the 13 lawyers, supporters of that because quite frankly, 14 folks, I would suspect that with just that schedule, 15 we're going to be pushing eleven o'clock and we're not 16 going to be able to be at our best after a certain 17 point. And to be fair to everyone, I suspect that most 18 of the people here are in support of the appellant and 19 you will get a chance to talk, but I want to be fair to 20 the board and be fair to everybody else that indeed, we 21 are probably looking at a continuance of this hearing 22 until Monday evening. And, Sarah, I assume that we can 23 get this chamber back. 24 So, Jim. 25 MR. IAREW: I -- I will be in St. Louis on Monday. 145 1 Appellate court 2 CHAIRMAN BAKER: Is there some other attorney or 3 some other representative — since you're -- so this 4 will not work for you. Okay. Just — I've got to be 5 fair here. When would you be here, Jim? 6 MR. LAREW: I'm only gone until midweek, so I'll be 7 there Sunday through Tuesday. 8 CHAIRMAN BAKER: Through Tuesday. I teach on 9 Thursday nights. We're now back to Wednesday, a week 10 from today. Any problem with any board member? Okay. 11 And once again, I apologize if this seems arbitrary, but 12 to be fair and to be effective, I think a reasonable 13 cutoff point is after the presentation of the 14 appellants' case and their supporters, so with that in 15 mind, we'll see where we go and what time it is. And, 16 Jim, please say hello. 17 MR. LAREW. Thank you, and thank you to members of 18 the board for your service. We understand the 19 independent nature of the board as it is designed and 20 created by state code. I don't intend to respond to 21 every point that came up. I know there are others here 22 who can do that and will, but there are a few points 23 that came up that perhaps only I can respond, and I'll 24 try to do it now before going into the body of the — 25 of — of the work, and it will be along these lines: Page 142 to 145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 +ty Board of Adjustment 9-14-16 146 1 One, that it was us who, in fact, objected to certain documents placed in the file by the -- the City which we thought wrongfully instructed this body as to the nature of its powers. We were disturbed that a member of the City would instruct you as to anything because you are intended to be independent. This was an administerial kind of memo here. It was instructing you, we thought wrongfully, as to the scope of your duties and made that point as emphatically as we could through counsel. You should know that that correspondence has been included in the pack of the materials and, counsel, you'll decide whether — I don't intend to go through them as a part of my presentation, but they're public records and — and because frankly, Mr. Parmenter and I don't agree on — on some things, and I'll point out those as we come because it affects our case. We're going to present our case broadly and respectfully because people can have differences and we do. It comes, for example, to the issue of the site plan. I do think it's an issue before this group, and I'll explain to you why it is and in the course of our presentation, we'll — we'll present those facts in support of that and part of that proposition. Two, an issue has been brought up about the 147 Steve — or the Steve Ballard letter, and let me be clear. I've read it carefully, although quickly, because it was just presented to us. 1 don't think it says a thing that's in contradiction as to what we presented, and that was this: We have two levels of concern. On the -- along the board, I don't have PowerPoinls so you have copies of these. These -- This exhibit, which is the University Heights proposal by the Cadsons, Is your— CHAIRMAN BAKER: Jim, just a second. Sarah, is he being picked up by the -- MS. WALZ: You might want to sit — MR, IAREW: And I'll sit back. This is 40, 39, 41. So it's right in that — in that group in your books by tabs. And when this proposal was made to University Heights, you can see the middle placard here. That schematic is the one that the Carlson presented to University Heights, a 3D diagram of what they thought University Heights should have in its residential neighborhood, and it was that proposal and then as far as we know, then the drawing and the schematic that is to the left of it which was the source of the initial opinion issued by Steve Ballard in an email which you have a copy of which says, "We have reviewed the initial documents and we feel after going through a use analysis 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 148 that this really isn't a residential structure. It's our preliminary opinion. We've gone through it and we think it is more commercial than residential," and they went through a use analysis and gave the conclusion, and they brake it down by percentages. That document was quoted in our submissions to you, and we concede that some other issues took over. That was the initial opinion. It was never withdrawn, and in — in University Heights it was rejected on other grounds, which Is what my submission says. It was — d was voted by the council because it involved a Sensitive Areas Ordinance interpretation, it involves Infrastructure Involving stormwater, things that don't apply here. But that initial opinion was rendered and never retracted, and it's important to us for two reasons: One, that a reasonable person using classification analysis that we think every city, whether It's an RS -1 or an R-1, should be able to do, and such an analysis appears nowhere in the city records. We did a public records request and it's like Myrtle the Turtle, how high can the stack go, and not one page of that kind of analysis performed by the City. We have conclusions today, we have boxes that were checked, but couldn't a reasonable analysis say, listen, 149 90 percent residential here, 10 percent something else. No. The conclusion from the City from start to end Is this is a residential structure only, and it did not employ the use classification system that's in the zoning code that's intended to sort out ambiguous situations. Is it a fish or is it a fowl? Is it a grocery store or is it liquor store? Let's find out what the use Is and what is the intent. This goes on in the city but it didn't happen in this oily. Two. The City knew how to do it. How do we know that? Because the individual who did not come to today's meeting, Terry Goerdt, was the building official designated by University Heights who joined Mr. Ballard In that analysis. How ironic is It in a city of $278 million budget that the same Terry Goerdt would be hired by the City to perform the same analysis here. If you go to the city records, and this was one of our complaints about a concerned bias or conflict of interest, maybe Mr. Goerdt changed his mind over time, over a period of months. Maybe he was intimidated by the thought of a lawsuit filed by the Cadsons. We don't know. But he didn't come to the Iowa City project with a fresh, open mind, and he was deeply involved in the classification decisions having to do with this property Page 146 to 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and building code. He was a point of contact for members of our group who went to the City. Can find one person in the City with skills and knowle who would start this project with a fresh outlook r than someone who's bound and made decisions another city Haw ironic could that be? The second issue that we felt could involve a and here are these people who are evil? No. Th people who come with preexisting inclinations or of view that make less than a candid assessment possible. The other issue that we mention, and this is i Eleanor Dilkes' note here, the concern that we he one of the attorneys who was suing University He because they didn't Ilke the decision that was me married to an attorney here at the City of Iowa Ci was handling some degree of the communication do with this very project. And Ms. Dilkes is — and admire her. I think she's a good lawyer. She wro her memo that the city -- as I'm understanding the delivered tonight, that the city attorneys weren't m involved in this — this process. But I was — lost count of the times that Mr. Boothroy talked about the collaboration they did with the City, including t city, attomeys office because thev wanted to aet 1 fight. Well, yes. Different spouses work for differen organizations. It happens, but we have ways to s people. There should be a memo. Hey, listen, o our assistant city attorneys has a — a spouse is representing the Cadsons. Well, better watch out Just keep her sealed off. Here we have at least t appearance of a conflict that makes us uneasy be look at it from where we are. We think a horrible mistake has been made by a city staff that gets it a lot of times. We live here. We're proud of the ci staff in most cases. When something goes temibl wrong, are there ways that it can be explained? there blind spots? We — we have a sense — We don't know Mr. Boothroy. We have a sense from his present frankly, as to whether he takes criticism well, has open mind to other people's thoughts. Its an open question, and so when we have a decision-making who wrote the code, who surely knows what It me making a decision in some of these areas where n you should have resistance going back and forth, was Mr. Goerdt? Why was he even on this projec don't know. The bottom line, though, is that it has to come Board of Adjustment 9.14-16 150 1 the rig we not 2 wrong dge 3 issues ather 4 of tryin already for 5 waggi 6 that be bias, 7 simple ey're 8 wrong points 9 that fir 30 street i 11 and yo n 12 experts d that 13 It ights, 14 implica de, is 15 street 1 ty who 16 it cam s having to 17 City's 1 18 Mr. Ca to in 19 sacrifi memo 20 to ocC uch 21 and if it 22 law, it all 23 simply he 24 board. It 25 Sa' 151 1 meani t 2 have th eal off 3 C on of 4 you're t 5 M 6 CH he 7 transiti cause 8 MR 9 speak right 10 who ca ty 11 know y 12 Our firs Are 13 M 14 book? 15 M presents 16 the mo an 17 well, an 18 misclas g person 19 MS ans 20 that we ormally 21 Friday? where 22 MR I? We 23 did was 24 we had to 25 the buil 152 ht or the wrong decision. We think the right and decision can be boiled down to about five basic . I've called those the five fatal flaws as a way g to simplify this, and I take the City's ng its finger at us saying these are not issues long in front of this board, but its not that because if you start with a decision that's the one — for an example, what if you make a decision e code provisions don't apply even though the s longer than 150 feet, and we'll get into this, u don't need to do the turnaround, which we have saying are required. makes a difference because if it's implied or ted and you have to have a turnaround at that n order to comply with International fire code, plately impacts the site plan. Either that or the going to condemn a neighbors land so that rlson can have his project. Or it's going to a public infrastructure to allow this turnaround ur. So for us to say we think this is involved were there would be a turnaround required by does, in fact, involve the site plan, and not a matter that should be — go before another exactly what document is what and what 153 ng it has can be a complicated matter even when you e City's -- Yes, sift HAIRMAN BAKER: Jim, I just want to — you're -- alking about five fatal flaws. R. LAREW: Yes. AIRMAN BAKER: Would you clearly make the Gear ons between each one. . LAREW: Yes. The first one, and I'm going to at length only on one because we have other people n do it. I think there's one that you need to more about, and I think I can present it the best. I is the-- R. CHRISCHILLES: Are they —are they in this R. LAREW: They — they are. They're in the — in mos recent submission, and its by that caption as d the first one, it says, 'The unlawful building sificatlon." . SOGLIN: And are these the same as the ones re originally in the packet that we got on . LAREW: You got the packet on Friday. What we we had an initial application we put in because 24 hours' notice. We were concerned that with ding permit issue that the Cadsons would begin Page 150 to 153 Board of Adjustrient 9-14-16 154 156 1 to do construction and then they would make a complaint i proceeded in its rush to issue a building permit, 2 that having them stopped had caused an undue burden, at 2 Third, that the City has issued unlawfully a permit 3 cetera, so we moved quickly in 48 hours. That first 3 when there Is no sanitary sewer to this property. We 4 document that was submitted was an application. Then we 4 think it will be a first in the modern history of the 5 were asked a week ago for any additional submissions, 5 city in which such a circumstance where a preexisting 6 which we did, and that — that document was described as 6 older structure having been torn down and leaving the 7 such, the additional submission. And do — do parties 7 lot vacant Is somehow grandfathered In to a sanitary 8 have that? 8 sewer shared by others, an unlawful use, without the 9 CHAIRMAN BAKER: Okay. We've got it in your 9 permission of those who are asked to share that burden, 10 original submission. 10 know nothing to them about this until this event arose 11 MR. LAREW. In -- in the submission that came on — 11 that the City cannot under those circumstances issue a 12 a week ago. All right The first Is that it's an 12 building permit. In fact, it cannot be defined as a 13 unlawful building misclassification, and we will have 13 single-family dwelling because by definition, and every 14 speakers tonight to explain how it is that we believe 14 definition we have, a single-family dwelling has a 15 that the City, following the same analysis that 15 sanitary sewer, and this one does not. You will not 16 University Heights did, at least should have gone 16 find on the plans submitted where there was a sanitary 17 through the analysis and speakers that will be here to 17 sewer. 18 advocate that had a proper use analysis been performed 18 Third -- or fourth, we believe that the misuse, 19 that an entertainment -- a kind of use that isn't even 19 misinterpretation of the fire code — that is to say, 20 contemplated in the RS -5 — is the principal use and 20 somehow in the $278 million budget we don't have the 21 that residential use is an accessory use. We think on 21 measuring tape that goes longer than 150 feet. We will 22 that basis alone that this permit should not have been 22 have experts who will say that under the International 23 allowed. 23 fire code, if your straight, paved street Is longer than 24 Second, that there was an unlawful site approval. 24 150 feet, then the Intemaflonal fire code provisions 25 Because Mr. Parmenter and I have disagreed on that, 1 25 apply. This Is 155 feet long, not measured by the 155 157 1 want to spend just one minute, and I'll come back to it 1 state, not — or city, not taking into account and if it 2 but that's the second one, that under the code 2 were to do so, it would require the same kind of 3 ordinances — we understand that under the provision 3 infrastructure that was going to be imposed on 4 that Mr. Boothroy says he wrote 20 years ago that site 4 Mr. Oliveira, albeit with a different trigger point. 5 plans are not required. But once they're requested and 5 He was changing two lots with a lot line that went 6 once they become the basis for the City's Invoking a 6 north and south and changing it 90 degrees to have it go 7 suspension of the building permit because they don't 7 east -west, and that was the trigger that they said all 8 agree with the site plan, how can we say that citizens 8 of these fire code provisions applied. We think that 9 cannot contest a decision of the building official. 9 its a fatal flaw of the building department not to have 10 Then to approve a site plan and lift the suspension of 10 required these Infrastructure improvements for the 11 the building permit 11 purpose of protecting the public and the 200 people that 12 This will be our argument that site plans stand 12 we think will be In there from being hurt or damaged 13 above and on their own. They're subject to review, if 13 because fire trucks can't get there, or the fire trucks 14 we feel the building official has made the wrong 14 need to get somewhere else, they can't tum around. 15 decision, and they're not subject to the precept of 15 Its — There Is a public safety issue involving with 16 chapter — or Title 18 but they're subject to here. Or 16 turnaround, It's not just the convenience of the fire 17 altematively, if the City actually is requiring the 17 department. It is a public safety measure involved. i8 site plan documents as a part of the building permit 18 Third -- or fifth, the unlawful and inadequate fire 19 process, you fold it in and say it's a part of the 19 water flow. This will be a fact issue that you will 20 wrongfully issued building permit, but It's not an 20 have to determine because we will have experts who say 21 innocuous document. 21 that for the kind of construction of this building, 7500 22 And our second fatal flaw is that the way in which 22 wood frame -- take the words from the building and the 23 the site plan was approved with a driveway slapped on 23 application — residential wood frame structure of this 24 the north side going over a fire hydrant was not a 24 size and magnitude, our experts will say require a fire 25 thoughtful way or a lawful way for the City to have 25 flow in gallonage that exceeds what the City's own tests Page 154 to 157 Board of Adjustment 9-14-16 Page 158 to 161 168 160 1 conducted after the permit was issued allows. Could 1 the permit?" Now, here your most experienced senior 2 there be a more Gear issue of public safety ignored 2 building person — We were told that the public is 3 than in this instance to issue a building permit and, we 3 confused as to whether even site plans govem 4 think, unlawfully. 4 single-family dwellings. They'd rather call it a plot 5 Well, I want to go back to the one issue to touch 5 plan or something. 6 about — on it only for this purpose because we've had a 6 Well, here the senior building person is asking 7 lot of discussion from Mr. Boothroy on the issue of a 7 Mr. Boothroy what do we do now? The site plan is 8 site plan, and this is the second issue, which I'm not 8 inaccurate. Do we revoke? Do we suspend? What do we 9 going to go into great detail but just to get to 9 do? The answer was the building permit should be put on 10 definitionals. The second Issue, the second fatal flaw 30 hold, suspended until a compliant site plan has been 11 that we pointed to was that the building official's 11 approved. So in order to get this project approved, 12 approval of the site plan violated the Iowa City Cade of 12 they needed what they called a compliant site plan. 13 Ordinances and law because the site plan omits reference 13 Well, why does that mattes Because we as 14 to fundamental code requirements that are not addressed 14 appellants have said that approving that site plan was 15 and poses threats to neighboring appellants and the 15 wrong. We're saying that site plans matter, and we 16 general public. 16 don't wish to be dismissed because we don't have the 17 If you will go to page 45 of the exhibit book. 17 right vocabulary or because we're a part of the public 18 It's tab 45. You will recall from Mr. Boothroy's own 18 that doesn't understand. If you're in the bowels of the 19 testimony and the timeline that he put up that this 19 city, it's a duck because it sounds like one, quacks 20 project was delayed, and the question Is why was it 20 like one and they call them a site plan around here, and 21 delayed? It was delayed because the City discovered 21 we ought not to be put off by appealing a building 22 somehow that the driveway was going to go to an unpaved 22 official decision wrongfully to approve the site plan 23 portion of the road and the building permit had been 23 because that's exactly what happened. 24 issued nonetheless. Someone In the shop found that out 24 When the citizens went to the first council 25 and didn't like It, and they said we're going to have to 25 meeting, there was no site plan. Two days later, 159 161 1 flip the driveway. Nothing was changed with the 1 Mr. Boothroy told ABC News — national ABC News, because 2 drawings, but they put a new site plan and flipped it 2 this was a big story — we're going to be approving that 3 over to the north side, right along Ms. Alet —Anne 3 building permit next week, and when he said that, there 4 Lahey's lot. No careful analysis as to how this was 4 was no site plan. But they approved it, the moment they 5 going to work. It was a flip, and the document says on 5 got a site plan. How can we as citizens be told there 6 it "site plan." 6 is no such thing as a site plan. We cannot challenge a 7 Here's Doug Boothroy answering Tim Hennes. 7 building official's approval of a site plan that we 8 Mr. Hennes is here, and this is June 14th and it says, 8 think was done erroneously. This is an area where I 9 'Terry" — now, that's Terry Goerdt, the gentleman who 9 think Mr. Parmenter and I disagree. We think it's an 10 was deeply involved in this in both cities but who is 10 issue in front of the board, and we're asking that it be 11 not here tonight, "contacted the owner," the owner would 11 addressed. 12 be Carisons, "and the owner has not started" — that is, 12 Here then, having just touched on that issue having 13 started to construct a home — "and was already having 13 to do with site plan, I want to move to the area where 1 14 MMS" — that's the engineering firm — "revise the site 14 think probably of our group of very interested citizens 15 plan to have the site access on the north side" — that 15 and able speakers who can talk about other things better 16 is flipping the driveway from the south to the north — 16 than I, 1 probably need to be the one to talk about the 17 "of the lot. This would not require the street 17 sanitary sewer. This is one where I think a City's 18 extension." 18 decision to push something forward, even at the injury 19 See, the City is saying you can do this but we're 19 of some property owners, at the expense of others, comes 20 not going to increase our infrastructure down there, so 20 through most brutally. Most brutally. 21 you're going to have to do this by flipping your 21 We will have speakers who will talk to you about 22 driveway. Okay, we'll do that. 22 the emails. They're in your book because I provided 23 "Question: Knowing that the owner is revising the 23 them to you. There was a lot of -- lot of concern in 24 site plan as mentioned, do you want me to put a stop 24 the staff level about what to do with this. They 25 work order on the project, revoke the permit or suspend 25 discovered a sewer. Anne Lahey never knew about It. Page 158 to 161 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 162 She's immediately next door. The Syrop/Sadler property, 1 which is the next one up the street, so you have two, 2 knew nothing about a shared sewer. 3 It's not an easement that appears in their abstract 4 of title. It's nothing they ever had a problem with, 5 but somewhere, perhaps in 1927, we don't know, you were 6 asked to take as faith a transcription of a certain 7 amount of letters on a 1927 document that says — and 8 let's take them at their word that they can translate it 9 better than we can see it, that it refers to a permit to 10 connect a sewer to a gentleman named James Bums, and it 11 says — the only thing I can read is it says'4hree 12 houses, 1927." 13 Now, this is before there were zoning ordinances, 14 the first zoning ordinance in 1935, but they got 15 permission to connect, it says, three houses. Mr. Burns 16 no doubt owned also the Carlson property. He bought all 17 four properties. They'd been platted, they'd been 18 bought and sold ahead of time back and forth, and he 19 decided to hook them together In a way you cannot do 20 under today's law. 21 In the course of investigating that sewer, 22 Mr. Oliveira, who had other plans and some of which 23 you've heard, had an opinion by a licensed engineer and 24 said he was very worried. It wasn'tthe Issue of 25 163 capacity. How big is the pipe. What condition is it in, and what happens with the people downstream if something goes wrong with this sewer? And the City with Oliveira said you must either take your sewers out to Lusk, or if you intend — if you intend to use the existing sewer, you must get a written easement agreement from the people who will be affected. He said, fine, I have a lawyer, we'll do it. No one came to the next-door neighbors, no one informed them. The City knew all about this. No one came and said you got a problem here, and everyone knew it was a problem. Now, no discussion. As soon as that property was sold -- was sold to Mr. Carlson, it was full speed ahead. There was no discussion. No discussion by Mr. Boothroy, but there is discussion at the staff level, as recently as a couple months ago. This isn't right. We — we got to do something here. Don't we get to — have to alert these people? Don't we have to get an easement agreement? How can we hook this up? What's going to happen? Can they take the flow that's going out onto the private sewer? Yes, sir. CHAIRMAN BAKER: The staff discussion you're referencing, do you have copies of that? MR. LAREW. Yes, yes. They're there and other e -14-1a 164 speakers will —will give you sort of a — a line -by-line blow. Here's — here's my concern, and I'll tell you where we're at and why this is definitional, why this cannot be, as a matter of definition, the single-family dwelling, because it has no sewer. It has no sewer. When they demolished the property, they cut it off. They should have had a licensed plumber. That's what the demolition permit requires, but no licensed plumber did it, but it was cut off. There's been no use of — of this sewer since the property was demolished. But in the meantime, the neighboring properties have had the matter surveyed. What was—what was unnerving to people that I represent —Anne Lahey, who owns the property — What that is is an outline drawing. You see the proposed building and the — and the structure with the north driveway. The first property just to the north is Anne Lahey, a small little cottage structure. The next one is the Syrop/Sadler home, and then over to the left is the Ackerman building. They had rumors because there had been other architects and engineers involved in the Oliveira project, and we heard rumors going through town, and these people who owned the property were the last to know, hey, you guys have an unlawful sewer there. 166 1 And we hired independent engineers to look Into it 2 What they discovered is that the sewer line is that 3 purple one that goes from the edge of the property that 4 the Carlsons own now and it bends over. Now, nowhere 5 along the way were the Carlsons never at the briefs. 6 They want to be neighborly. They're great Hawkeye fans. 7 No one came and knocked on the door said, hey, we got a 8 problem. Can we do something here? You know, if — if 9 we cause a problem, we'll pay for it. We've got an 10 issue here. We've —we go back here, we don't know the it origins of this, but we have an issue here. We're going 12 to have a big problem. No one knocked on the door. 13 Not at the City. They talked to each other but 14 never to the citizens who live there, and this permit 15 was issued under the false belief that somehow the fad 16 that you have a 1927 permit connecting three homes — 17 and they're there assuming that this is the three homes 18 we're talking about. I have three abstracts of title. 19 They belong to Ackerman, they belong to Syrop/Sadler, 20 and they belong to Lahey. All of them in 1924 were 21 owned by James Burns, the person to whom an issue — a 22 permit was issued for three homes to connect a sewer. 23 We don't know what's happened since then. Let's assume 24 that he must have owned this property of Carlsons' as 25 well, but why is that a problem? Page 162 to 165 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-19 166 1 Why is that a problem? Because its axiomatic under Iowa law that a person cannot grant to himself an easement It's a fundamental black letter law. Whatever Mr. -- And you have a case in the materials that I gave to you that stands for the proposition. It's a recent one. It's a recent one. Has to do with sewers even, that I can own a large piece of property and send out a sewer somewhere and then later subdivide it and create easements to other people I don't know, but if I own all the properties as separate, I can't create an easement for myself. So from this early period of time, there's been no easement and why does that matter? Why does that matter? Because the Cadsons only have a sewer if they got permission to go through other people's properties to get to the aty main, and lest Thursday if there was any doubt in their mind, they gave — they were given notice that they have no such permission. In your materials you'll find notice of termination. We have an easement statute in Iowa which says If you think someone is wrongfully claiming an easement Interest over your land, you must give them notice. It must be served as a civil process document would be served, and the sheriff of W nneshiek County served it, a notice from each of the property owners upon them and said you no longer 167 have — MR. CHRISCHILLES: Where is that located In the book, do you know? MR. LAREW: It's in the Exhibit 9, Exhibit — that's for Ackerman; Exhibit 10, Armstrong; Exhibit 11, Syrop and Sadler; Exhibit 12, Lahey. And then the certificates of service are by the sheriff, and they're at the county recorder's office today. MR. CHRISCHILLES: So how does that reconcile with the City's argument that since this is a single-family dwelling and — and — and has been granted that status that sewer Issues are not part of the zoning code and they cannot be — they're not under the purview of this board? MR. LAREW: Because this is one of those areas where it depends on — on what side you're on. If you go to the definition of what a single-family dwelling is, there is no such thing as a single-family dwelling under the Iowa City Code, under the International Residential Code, under the Uniform Plumbing Code, under the code of Iowa, the Uniform Landlord -Tenant Act. All of them require — all of them require that by definition, a single-family dwelling have a sewer, and this one has none. 1 think they avoided this issue. MR. CHRISCHILLES: When you say "have a sewer," 168 1 what — what do you mean? 2 MR. LAREW: Here -- here's the code of Iowa, 3 Uniform Landlord -Tenant Act. Why I say it's -- its the 4 only time that the General Assembly of the State of Iowa 5 has spoken on the issue, and we're not talking about a 6 Uniform Landlord -Tenant issue here, but it's — its the 7 definition that the people of Iowa have provided. 8 It says, "Single-family residence means a structure 9 maintained and used as a single dwelling unit, 10 notwithstanding that a dwelling unit shares one or more 11 walls with another dwelling unit. It is a single-family 12 residence if it has direct access to a street or 13 thoroughfare and shares neither heating facilities nor 14 water equipment nor any other essential facility or 15 service with another dwelling." 16 This -- this couldn't pass muster if they wanted to 17 rent it. It doesn't pass. There Is no — there is no 18 sewer. They have no easement. 19 MS. SOGLIN: Is that statement in here as an 20 exhibit, you said? 21 MR. LAREW: Yes. 22 MS. SOGLIN: Which one? 23 MR. LAREW: What's that? 24 MS. SOGLIN: Do you know which of the several 25 exhibits that statement is in? 169 1 MR. LAREW: That statement would be In the — in 2 the argument. It would be In the submission that we 3 gave the — the series of — that's point Number 3 — 4 MS. SOGLIN: Exhibit 3? 5 MR. LAREW — of our submission, the unlawful 6 submission of the sanitary sewer. And that's — the 7 code section Is 62A.6.13. But Uniform Plumbing Code, 8 take that. That's adopted by reference, and we 9 understand that there are plumbing code enforcement 10 matters that can be taken to the Board of Appeals. We 11 get that, but its a definitional Issue. 'The drainage 12 system from each new building shall be separate and 13 Independent from that of any other building, and where 14 available every building shall have an Independent 15 connection with a public or private sewer." 16 The International Residential Code says, "A single 17 unit providing complete independent living facilities 18 for one or more persons, including permanent provisions 19 for living, sleeping, eating, cooking, and sanitation." 20 You will find in the summary of the City's arguments, 21 when they go back and they say "conclusions," oddly when 22 they take these definitions they drop off the word 23 "sanitation." They drop it off. It's a fighting issue 24 here. How can you approve this? 25 The City Code 17.5.17.E, "Connection of Sanitary Page 166 to 169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 170 Facilities to Water and Sanitary Sewer Systems. Every 1 kitchen sink, toilet, lavatory basin, bath, and clothes 2 washer shall be property connected to an approved water 3 and sanitary sewer system." At the staff level there 4 were people really concerned about this. They were 5 concerned because in their own file for this very 6 property, it says this is in no condition to take on 7 more. That was — that was Shoemaker. 8 CHAIRMAN BAKER: Jim. 9 MR. LAREW: Yes. 10 CHAIRMAN BAKER: Just for clarification -- 11 MR. LAREW: Yes. 12 CHAIRMAN BAKER: — you're referring to a staff 13 communication. 14 MR. LAREW: Yes. 15 CHAIRMAN BAKER: That communication was not 16 included in the packet that we received. Is that your 17 position? 18 MR. LAREW: Our position is that the staff knew it 19 and we will have speakers today who will bring those 20 documents — they're in the packet of stuff that you 21 have now. 22 CHAIRMAN BAKER: From your documents. 23 MR. LAREW: Yes. 24 CHAIRMAN BAKER: Okay. 25 171 MR, LAREW: They're City documents, yes. CHAIRMAN BAKER: But I just want to get clear — MR. LAREW: Yes. CHAIRMAN BAKER: — it is your position, it is your position that there is relevant staff communication about this issue — MR. LAREW. Yes. CHAIRMAN BAKER: -- that was not presented to this board. MR. LAREW: Yes, and it wasn't presented to the people who own the property. That's the biggest shame of it. Since when do we start putting our thumbs and our feet on one side of a scale? Where is this "we've got to get it right" attitude when it comes to people who already live in the neighborhood? We don't see it. And instead of rushing this thing through, they ought to be securing, okay, if we're going to let that kind of use — we're talking urinals and bathtubs and showers, and those do have lockers. University Heights locker room, lockers. The first -- And there are so many generations of these prints, it's gone through so many airbrushings — you would think that -- you would think that these features were like the Politburo on May Day at the Russians. Who's going to stand there today, who's going e-14-16 172 to be there tomorrow? Who knows. Every time we get another one of these there's something that's changed, and we think It's a political document trying to assuage. People are concerned that the intent, the intent is to make an entertainment facility and not a residential home, and others will speak to that. But how could you — My point is this: How much sewage can you get through a place if 200 people in all these restrooms and — and locker rooms and all the rest, have at it. Have fun, but that sewage has got to go somewhere. Does it fill up in the Syrop/Sadler basement? Does it fill up In the Lahey basement and if so, do they call the City? I don't think any of their grounds people are going to come and undo it. They're going to say that's your private problem. Hope you can work it out. Hope you can work it out. Good luck. We think this is shoddy work, and we're embarrassed by it because we're proud of our city. Other people will speak today better than I ever could about the other issues that are in front of you, but it starts at the most fundamental level. This doc -- This property never should have been classified residential, and you have the tools that no one disputes that are here. You're going to have to do the work because the City never did. 173 1 And we're going to help you because we have 2 speakers who have informed views, experts, and we think 3 you're going to conclude, and I'll have a chance to wrap 4 it up, but we're going to give you enough evidence to do 5 the right thing: To find that this should never have 6 been classified as a residence use. The principal use 7 is for entertainment and its not in the code. That's 8 why you go to the use analysis. 9 Second, it cannot be defined. It cannot be defined 10 as a residence because it's got no sewer and there's no 11 definition that allows for it, and that's not simply a 12 plumbing code issue. We think fire safety is a huge 13 deal and it's been glossed over. Since when do you 14 Ignore -- 150 feet Is 150 feet or It's not. Since when 15 can you overlook a longer street and say, well, those — 16 those regulations don't apply, even though they did 17 apply to Mr. Oliveira because he had the audacity to 18 change his property line from east -west -- or 19 north -south to east -west, so all these fire code matters 20 applied. Well, they apply here because of the length of 21 the street. That is our argument, and you will either 22 believe our experts or you won't, but that's why we're 23 here. 24 Now, the first speaker that we intend to bring 25 forward are from HBK. They were the engineering firm Page 170 to 173 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the appellants hired, and we asked them ju look for the fads. We're not asking them to ma arguments, butjust to present fads and answer questions about fads. Now, to do that, they're in the materials but when you copy these, at lea the printers that we have, they become more fu not, so I'm going to, with your indulgence, pass color copy of the same thing so you can (indisce and then Brian, come on forward. Introduce you I'll hand these out and well go forward. MR. BOELK: Good evening. Brian Boelk, Engineering. CHAIRMAN BAKER: I'm sorry, would you s last name. MR. BOELK: Sure. B, as in boy, 0 E L K. HBK Engineering, 509 South Gilbert Street here Iowa City. As Jim mentioned, we were asked -- and tasked with providing a due diligence report appellant based on information provided to us o obtained through investigation, so with that we d best to simply state facts as we know them base and based on that information that we were able obtain. Jim has covered most of these items alr in order for us to all avoid eating breakfast here i the mominq. I'm goinq to try to qet lhrouah this r quick and summarize briefly. The main item, as just mentioned, is the san sewer, so this being based on a new structure b built, the site is nonconforming sanitary sewer s as it relates to current code and standards. As y know, the service is shared privately with two of properties, 111 and 117 Lusk Avenue, and that as just recently shown here, does cross those m properties of 111 and 117 Lusk in the location a within those properties. As far as we could find, was no documentation of an easement or any of agreement for that shared sewer between the pr owners which share that service now. There are cleanouts provided on the existing sanitary sews as well. So with all that being said, the main concern stands out is the maintenance that would need to provided and shared by the neighboring propert something were to happen to that service. Who i care of that, who is paying for it. You're adding a service to It essentially because there is none th currently, and somebody's going to have to pay f and be responsible for that, and from what we sa was no agreement amongst those three properti In regard to the fire flow available for the Board of Adjustment 9-14-16 174 jus to 1 buildin mak 2 certain your 3 again, already 4 constra st with 5 constru zzy than 6 was re out a 7 has cc mible) 8 won't urself. 9 again, 10 require HBK 11 In 12 appara pelf your 13 Lusk A 14 h has That's 15 require in 16 wide a asked to 17 those for the 18 there. r 19 foot-- id our 20 lurnaro d on code 21 tumaro to 22 Wit eady, so 23 just to n 24 that we sally 25 that an 175 1 differen itary 2 have al be 3 drivew ervlce 4 as -- as ou 5 drivew her 6 within t service, 7 plan w ultiple 8 A an 9 looking there to firsttaki her it be grad pro 12 that pro no 13 that no rt line 14 propert 15 topogra that 16 appear be 17 west w es if 18 going to s taking 19 not get new 20 problem the 21 no othe orthat 22 there, b w, there 23 us. es. 24 0th 25 manage 176 g, that's been discussed and the fire marshal has ly addressed, but per International fire code and this is based on an assumption of type VB dion — we do not know exactly how they are ling h — the 2250 gallons per minute fire flow quired for the proposed building. Again, the City rtainly addressed that and discussed it, so I — I won't go into that too far. We did find, the fire hydrant is within the 400 -foot ment so that was good there. terms of the inadequate access for fire tus, the existing access road for fire, which is A, is approximately 20 foot 8 inches wide, but parking allowed on one side. Fire code does unobstructed access roads with at least 20 foot an marked with no parking fire lane signs within access roads, which currently that is not set Again, Lusk Avenue is approximately about 150 55 foot long and dead ends with no means for und. Again, fire code calls for the approved und for access roads longer than 150 feet. h that being said, the appellant also asked us do a cursory review and look at the site plan s submitted for the individual building, so with d with some field visits, we noted a few 177 t items that I'll quickly point out here that ready been addressed as well. The proposed ay conflicts with the existing fire hydrant, again shown. I think you can see here that proposed ay right here, and the fire hydrant is located hat driveway as currently shown or from the site e have. couple questions that we just came up while at this site and — and would be normally when ng a first glance at it is how will the site ed, and the reason I state that is because of ximity and how close -- you can see how Gose rth edge of that driveway is to the adjacent y there at 111 Lusk. Looking at just the phy of the site, there's at least a -- what s to be a six-foot elevation difference along the all here, and the question is how is that driveway make that transition change with elevation and into the neighboring property or cause any s with the neighboring property. Again, 1 have r documentation to know what they are doing ut something that raised — raised a question to er questions: How will the stormwater be d to prevent erosion and as stated, the City does Page 174 to 177 179 1 turnabout is externalized onto a private property owner. 2 We don't have any — any knowledge that anyone's 3 going to give that property up. The City hasn't ceded 4 that it's going to give up any of its road. Let's 5 assume that that was placed such that it went onto the 6 Carlsons' property. Do you have an opinion as to 7 whether that would affect the site plan or the proposed 8 building? 9 MR. BOELK: Sure, yeah. And as you can see here, 10 so we did show both in this case, which is a cul-de-sac 11 type bulb for a turnaround or whether you do what is 12 referred to as a hammerhead type turnaround. As you can 13 see here, In both those cases that would certainly 14 encroach outside of the city right-of-way and the 15 right-of-way of Lusk Avenue, which is a narrow 16 right-of-way as it is, being an older part of town. So, 17 yeah, whether that be pushed to the east side as these 18 shown — whoops, as these show, or to the west side, 19 which would certainly encroach Into the Carlson property 20 and building and yes, would have a -- certainly a 21 significant role in terms of where that building Is 22 placed and/or where the driveway is accessed to that 23 site. Yes, that would certainly play a role, and again, 24 1 mean -- again, IFC does call for — they call it the 25 150 -foot limit, and as we measured it and I'm sure you 9-14-16 180 can measure it in a couple different ways, we were at about 155 feet. CHAIRMAN BAKER: Thank you. MR. BOELK: Thank you. MS. SOGLIN: Actually, I'm sorry, but could you just — you went through the part about the fire flow kind of quickly, and I wasn't quite Gear why you were disagreeing with what the marshal said — MR. BOELK: Yeah, not—not— (Overlapping speakers) MS. SOGLIN: —would makeup those flow differences. MR. BOELK: Yeah. No, I really just wanted to state facts from the IFC. Again, we're assuming a type VB construction, and with that assumption, the IFC calls for a 2,250 gallons per minute Fre flow for the proposed building. Per the flow test by the city water division, its 1,504 gpm fire flow projected at that location. Again, I guess what I was saying was the fire marshal certainly stated different reasons why they feel its adequate based on what a hydrant can produce, what their truck can produce, and what the water main can produce, but per IFC, thats what it states based on VB construction. CHAIRMAN BAKER: Could you clarify what type VB 181 1 construction — 2 MR, BOELK: I believe Its unprotected wood 3 framing. 4 CHAIRMAN BAKER: Unprotected wood, so a brick 5 facade, it would still be considered unprotected wood? 6 MR. BOELK: Yes, I believe so. And others might be 7 able to answer that better than myself too. 8 CHAIRMAN BAKER: All right. 9 MR. LAREW. Brian, would — Brian, do you have an 10 opinion when -- when one looks at the building permit 11 and it describes the owners had described in their own 12 permit that this will be wood frame, did that affect 13 your analysis of what this construction might be, based 14 on the drawings and the building permit and that kind of is thing? 16 MR. BOELK: Yeah, 1 believe that's why we were 17 making those assumptions on the — on the flow 18 requirement, correct. Yes. Based on that permit 19 application, yes. 20 CHAIRMAN BAKER: So the fire marshal, the fire 21 official, you all agree on the projected fire flow, that 22 figure of 1584. 23 MR. BOELK: Yeah. Those are results from a flow 24 test, correct - 25 CHAIRMAN BAKER: According to you, the standard Page 178 to 181 Board of Adjustment 178 1 not have any direct requirements for this based on the 1 2 size of the site. However, again, a question to 2 3 certainly note and address. And then how will adjacent 3 4 properties be protected from damage during construction. 4 5 Again, with this size of a structure being this close to 5 6 the neighboring houses, just something we pointed out to 6 7 the appellant of making sure that precautionary measures 7 8 are made there when going to construct this building. 8 9 With that being said, that's pretty much all I had 9 10 at this point, unless there's questions that I could 10 11 address now or later. Either way. 11 12 MR. WEITZEL: Surely the hydrant can be moved? 12 13 MR. BOELK: Yes. Correct. Yeah. Anything else at 13 14 this time? 14 35 MR. LAREW. I have a question. 15 16 MR. BOELK: Yes. 16 17 MR. LAREW: Brian, what is the significance of 155 17 18 feet 6 inches particularly as that involves the 18 19 International fire code and the turnaround; and 19 20 secondly, if you have an opinion, that turnarounds under 20 21 the code need to be placed there, what does that do in 21 22 terms of encroaching? In your report you have a page 22 23 that you can refer the people to as to layouts and — 23 24 and whether or not you — you made an assumption there 24 25 that if you were to do a turnabout, that all of that 25 179 1 turnabout is externalized onto a private property owner. 2 We don't have any — any knowledge that anyone's 3 going to give that property up. The City hasn't ceded 4 that it's going to give up any of its road. Let's 5 assume that that was placed such that it went onto the 6 Carlsons' property. Do you have an opinion as to 7 whether that would affect the site plan or the proposed 8 building? 9 MR. BOELK: Sure, yeah. And as you can see here, 10 so we did show both in this case, which is a cul-de-sac 11 type bulb for a turnaround or whether you do what is 12 referred to as a hammerhead type turnaround. As you can 13 see here, In both those cases that would certainly 14 encroach outside of the city right-of-way and the 15 right-of-way of Lusk Avenue, which is a narrow 16 right-of-way as it is, being an older part of town. So, 17 yeah, whether that be pushed to the east side as these 18 shown — whoops, as these show, or to the west side, 19 which would certainly encroach Into the Carlson property 20 and building and yes, would have a -- certainly a 21 significant role in terms of where that building Is 22 placed and/or where the driveway is accessed to that 23 site. Yes, that would certainly play a role, and again, 24 1 mean -- again, IFC does call for — they call it the 25 150 -foot limit, and as we measured it and I'm sure you 9-14-16 180 can measure it in a couple different ways, we were at about 155 feet. CHAIRMAN BAKER: Thank you. MR. BOELK: Thank you. MS. SOGLIN: Actually, I'm sorry, but could you just — you went through the part about the fire flow kind of quickly, and I wasn't quite Gear why you were disagreeing with what the marshal said — MR. BOELK: Yeah, not—not— (Overlapping speakers) MS. SOGLIN: —would makeup those flow differences. MR. BOELK: Yeah. No, I really just wanted to state facts from the IFC. Again, we're assuming a type VB construction, and with that assumption, the IFC calls for a 2,250 gallons per minute Fre flow for the proposed building. Per the flow test by the city water division, its 1,504 gpm fire flow projected at that location. Again, I guess what I was saying was the fire marshal certainly stated different reasons why they feel its adequate based on what a hydrant can produce, what their truck can produce, and what the water main can produce, but per IFC, thats what it states based on VB construction. CHAIRMAN BAKER: Could you clarify what type VB 181 1 construction — 2 MR, BOELK: I believe Its unprotected wood 3 framing. 4 CHAIRMAN BAKER: Unprotected wood, so a brick 5 facade, it would still be considered unprotected wood? 6 MR. BOELK: Yes, I believe so. And others might be 7 able to answer that better than myself too. 8 CHAIRMAN BAKER: All right. 9 MR. LAREW. Brian, would — Brian, do you have an 10 opinion when -- when one looks at the building permit 11 and it describes the owners had described in their own 12 permit that this will be wood frame, did that affect 13 your analysis of what this construction might be, based 14 on the drawings and the building permit and that kind of is thing? 16 MR. BOELK: Yeah, 1 believe that's why we were 17 making those assumptions on the — on the flow 18 requirement, correct. Yes. Based on that permit 19 application, yes. 20 CHAIRMAN BAKER: So the fire marshal, the fire 21 official, you all agree on the projected fire flow, that 22 figure of 1584. 23 MR. BOELK: Yeah. Those are results from a flow 24 test, correct - 25 CHAIRMAN BAKER: According to you, the standard Page 178 to 181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should be 2250. MR. BOELK: Again, based on a type VB co that's what the IFC calls out. CHAIRMAN BAKER: All right, thank you. MR. BOELK: Yes. MR. CHRISCHILLES: what— You said the MR. BOELK: IFC. International fire code, s MS. SOGLIN: Is a standard the same thing requirement? MR. BOELK: That's — that's a good question. don't know if I can answer that Thank you. MR. LAREW: Our next two speakers will inV themselves, and they're going to focus on the !as use classification and indicate how using criteria are in the Iowa City Code for determining princlp versus accessory uses. Such an analysis, if it he performed, could have resulted in something oth the City's determination that this was properly classified as a residential use. MR. BEFELER: Hello. My name is Dennis live at 234 Hutchinson Avenue, about a block aw this proposed location. Sorry we've wasted so m here tonight It seems that almost everything that brought up would have been completely inalevan the correct determination have been made that th Board of Adjustment 9-14-1e 182 1 designi nstruction, 2 of clien 3 current 4 and CII 5 design ISC? 6 Includi orry. 7 Hospi as 8 1 9 lechnol I 10 dual b 11 LEED oduce 12 Accred ue of 13 United I hat 14 these p al 15 analyzi d been 16 their ev erthan 17 City. 18 1 fi 19 host hu eefeler. 1 20 of the s By from 21 is princ uch time 22 entertai was 23 definiti tshould 24 peculia Is is 25 use cla 183 not a residence. This facility is designed primarily to be used for entertaining, for recreational uses, or however you want to describe them. The -- the proposed structure here Is not primary a residence. There's an accessory use, and I think that we can look to the code and find some ways that those things can be measured, and I think that those measurement tools that are in place were not applied. You had cited earlier Cade Section 14.4A-2, and I think that's where we'll find some of this analysis. I'll focus my speaking points on classification analysis that is clearly required in the city code when determining the principal as contrasted with the accessory use of a property. If this analysis had been property performed by the City or performed at all, it would have resulted in the conclusion that the proposed Carlson building, if constructed, will have a principal entertainment use and only an accessory residential use. If properly classified for the reasons I will explain, this entertainment venue should not have been permitted by the city building officials as a residenfial building. I come to this conclusion in part based on my skills related to my professional education, training, and experience, which has involved assessing and 184 ng spaces for various uses, for a broad spectrum is in multiple states for over 20 years. I'm ly employed by the University of Iowa Hospitals nits as an audiovisual system consultant to and oversee the installation of event spaces, ng more than 30 such spaces at the Children's tat currently under construction here in town. old a master's degree in theater design and ogy from the University of Nebraska -Lincoln and achelofs of arts degrees from Coe College. I'm a AP, Leadership in Energy and Environmental Design ited Professional, and I've been a member of the States Institute of Theater Technology. [bring rofessional skills and experiences to use in ng the spaces depicted here by the Cadsons in er-evolving building design submitted to the nd the structure extremely well designed to ge parties as the primary and principal function tructure. In my professional view, this project ipally designed for and intended to be used for ning, and as such, does not ft the City's on of a single-family dwelling. What I find r is in the City's permit approval process, no ssification analysis is documented anywhere. 185 1 It — I haven't found it was attempted or 2 performed or even discussed, even though the City was 3 aware of the University Heights officials using the same 4 type of classification analysis that the law requires, 5 and they have previously classified a smaller version of 6 this Kinnick replica structure as commercial in nature 7 and not a single-family dwelling. Concluding that this 8 is an entertainment venue is consistent with the 9 exterior design. Built to emulate a sports stadium, the 10 advertised use is entertainment and not strictly 11 residential. Since entertainment uses and event venues 12 are not specifically permissible under RS -5 zoning, no 13 building permit should ever have been issued. 14 In addition to the building's exterior, there are a 15 number of different and objective approaches that one 16 can take when evaluating the facility's interior to 17 determine principal use as contrasted to accessory uses. is Measuring time spent in each activity, square footage of 19 space allotted to the activity, and ease of performing 20 each activity. None of these approaches appears to have 21 been used by the City in their analysis of whether this 22 is primarily a single-family dwelling or if that's an 23 accessory use to entertainment. Based on industry 24 standards for banquet seating of 13 112 square footage 25 per person, like most wedding venues or those type of Page 182 to 185 I 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 activities would use, the main areas of this buildi and I lost my laser pointer. Oh, thank you. So as we look at the main areas of this build we've got a very large kitchen here and — and so large open spaces here. If you take the analysis that 13 1/2 square footage which accounts for ai that's designed to seat at banquet -style tables a hundred people. If you factor in this open courty here, which appears to be their intention with all these large openings accommodating flow to the than flow as a standard residence, you can seat hundred people there, so we're talking 200 peopl at banquet -style seating tables. Now, if we were to do the analysis of standin only, if we crowd people in and provide presume here and catering lines here, we ran fit 400 peop this venue. That's just on the first floor. We're n using their — their space here, we're not counting the garage, we're not counting in this exterior sp You could have massive parties here, and I -- I b these designs show that clear intent, and I think i had run the analysis, it would be pretty easy to s hey, there's a clear use case here. I've skewed from my notes, I'm sorry. Alternatively, one can determine principal use ve 187 accessory use by comparing square footage devoted to each representative use. Square footage is a little more — Oh, I'm sorry, I skipped over the -- one of the calculations. So let's look at their stated intended use. Tailgating time may well average, say, 200 persons. If we have — have those tables in place for five hours, approximately a thousand use hours, compared to the owners' stated intent to only use the facility occasionally as a residence on those weekends, say Friday night to Sunday morning, or roughly 40 hours times two people, or 80 residential hours. The facility, if used as the owners have actually stated they plan to use it, will be a residence roughly 80 -- 8 percent of the time -- not 80, just 8 — as compared to being an entertainment venue over 92 percent of the use time. Alternatively, we can determine principal versus accessory use by comparing square footage devoted to each representative use. Square footage is a little more complicated to calculate as this commercial bar, or kitchen as they call it, is not practical for food preparation. The island referred to in the plans is a 16 -foot -long bar. This is larger than some of the commercial bars here in town. The overall square footage of this kitchen space is Board of adjustment 9-14-16 186 ng — 1 close t 2 people ing, 3 in the me 4 homes of 5 feet, a sles, 6 meals, bout a 7 It and 8 upper of 9 master m rather 10 assess another 11 thousa e at -- 12 their ki 13 venue. g room 14 project, bly kegs 15 calcula le in 16 exercis of 17 or 24 p in 18 W,ace. 19 for a re elleve 20 primary f we 21 of the v ay, 22 facility 23 all bedr 24 spaces, rsus 25 and on 188 0 500 square feet, which is larger than a lot of 's apartments. The average kitchen I've observed neighborhood is 100 to 200 square feet, and few I have seen have kitchens exceeding 350 square s it is impractical to prepare meals, family in such a large space. would appear that the bedrooms on the third or floor are intended for guests, as there is a suite on the main level. One could reasonably that the average couple finds a nd-square-foot-home too large to maintain once ds have grown. Or 11 percent of this overall But to err on the side of discretion for this the main residential living area can be ted as the kitchen, the master suite here, the e room, and that gives us about 1800 square feet, ercent of the overall interior space. th the courtyard factored in and the deduction asonably lavish kitchen at 350 square feel, residential space is 13 percent, with 18 percent enue being guest bedrooms and 69 percent of the strictly for entertaining. Even factoring in ooms as residential, all kitchen and all dining the venue is still split two-thirds event space one residential. 189 1 A third measure for analyzing primary use versus 2 accessory use of a facility involves analyzing how 3 certain activities will be achieved and how people flow 4 through the facility to perform those uses. That is 5 assessing how easy it is to perform certain types of 6 functions. The kitchen is a primary example of the 7 expected use. The layout and size make standard meal 8 preparations tedious and inefficient. Distances and 9 angles between appliances are not ideal for typical 10 trips between refrigerator, food preparation space, 11 stove, sink, and dishwasher. The kitchen space is 12 designed instead like a commercial bar, anticipating 13 excessive foot traffic and multiple servers pouring 14 drinks. 15 The sheer distance around the courtyard layout of 16 this entranceway with — totally disrupted by these 17 large bathrooms here, intended flow through multiple 18 catering lines in the screened -in porch and the large 19 beverage center here, I — I think it shows a clear 20 effective planning as a large entertainment event venue 21 and not a very efficient residential plan. By any 22 reasonable measure or analysis, this is an event venue 23 first, residence second. 24 The civil infrastructure on Lusk Avenue in 25 Iowa City is Intended to support RS -5 single-family Page 186 to 189 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 W4 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 51-11 19 20 21 22 23 24 25 Board Of Adjustment 190 homes. This infrastructure is not designed to support 1 200 -to -400 -person parties. There are safety concerns, 2 as emergency vehicle access is limited and slow response 3 times are likely to this venue. Remember, our entire 4 neighborhood is filled with vehicles at the very time 5 this venue will be filled with people, and so it's 6 really hard to get large vehicles to this location. 7 There's not adequate parking for the events this venue 8 is specifically designed to accommodate, and there are 9 not adequate sidewalks for pedestrian flow to and from 10 the venue. 11 Restroom facilities are used in a very different 12 way at event venues, where often heavy water usage 13 occurs in a very short period. Aging Infrastructure in 14 our residential neighborhood is clearly not designed for 15 this anticipated use. When our city council passed the 16 zoning ordinance legislation, it did not recognize 17 entertainment — entertainment venues for RS -5 zones. 18 As a result, it would appear our city staff has pounded 19 this square entertainment venue peg into a round 20 residential hole. Following any normal process, it is 21 hard to see how this could have happened. Since it did 22 happen in error, that inaccurate classification decision 23 needs to be reversed by this board. 24 In city staffs response to our initial appeal 25 191 documents, it is stated the only analysis to determine single-family dwelling occupancy is if a project contains separate living, sleeping, cooking, and meal -eating areas and consists of a group of adjoining rooms forming a single unit with facilities intended to be used by one household. With this definition, the City is actively contradicting other aspects of the very same section of code as -- as you noted earlier. If this limited definition is our only measure for RS -5 zoning applicability, we have opened Pandora's box. The City has essentially declared any individual or group can come and develop RS -5 neighborhoods however they want. As long as you've got a kitchen, a bedroom and an eating area and you meet the prescriptive setbacks, you can build any kind of venue that you -- your heart desires. Iowa City zoning code, as we cited earlier, 14-2A-1.8 or — and 14 — Section 14.4 — I guess I can read this section or you can read it yourselves. Law density single-family residential zone is primarily intended to provide housing opportunities for individual households. The regulations are not intended to create, maintain, and — or they are intended to promote livable neighborhood. The regulations allow for some flexibility of dwelling types to provide housing 9-14-16 192 opportunities for a variety of household types. This zone also allows for some nonresidential uses that contribute to the livability of residential neighborhoods, such as parks, schools, religious Institutions, and daycare facilities. Related nonresidential uses and structures should be planned and designed to be compatible with the character, scale, pattern of the residential development. City code says nothing about entertainment venues. They are not allowed in RS -5 zones, period. Now that we have objectively determined this project is nonresidential, it is easy to determine the project is absolutely not compatible with the character, scale, and pattern of the neighborhood and furthermore, does not contribute to the livability of the neighbors. I would further contest that due to the scale and walkable — walkable flow through this proposed facility, specifically as you come up from the basement and its snowy and your courtyard's closed off and you have to hike all the way around the building, I don't see this as being a single-family unit intended to be shared by one household. Some areas are closed off and isolated from each other. It — it doesn't seem to meet the code in my eyes. Zoning code includes a table where I do not find 193 1 anything resembling event venue or entertainment 2 facility or recreational uses listed. Since event venue 3 is the clear and principal use of this structure, a 4 variance should have been requested before approving 5 this venue in a residential neighborhood. Instead, our 6 city officials are standing behind them thinking since 7 its not on the list, it must be okay, when the exact 8 opposite reasoning should have been applied. For new or 9 unusual projects, we should have a public discussion and 10 decide how to emend our codes so they work best for the 11 majority. 12 The variance vehicle is explicitly included in our 13 code so these types of nonconforming instances can be 14 debated in a public forum such as this and decisions can 15 be made publicly about whether a specific nonconforming 16 project is appropriate in a specific location. An 17 entertainment venue guised as a residence should not be 18 permitted at 101 Lusk Avenue. Event venues do not meet 19 any current zoning classification and, therefore, cannot 20 qualify for RS -5 classification. The location Is 21 clearly inadequate and inappropriate for this type of 22 use. 23 CHAIRMAN BAKER: Thank you. Quick question. 24 MR. BEFELER: Sure. 25 CHAIRMANBAKER: That statement that you made, do Page 190 to 193 1 2 3 4 5 6 7 8 9 10 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 8-14-16 194 1 we have a copy of that? MR. BEFELER: I have an affidavit of an earlier version of this, so I will resubmit what I actually read here tonight. CHAIRMAN BAKER: As soon as possible. MR. BEFELER: And you're welcome to take this copy. CHAIRMAN BAKER: No, just provide a master copy or enough copies — MR. BEFELER: Sure. CHAIRMAN BAKER: — for the rest of us. MR. WEITZEL I have a question too. CHAIRMAN BAKER: You're welcome. Go ahead. MR. WEITZEL: Do you have a metric, like a ratio of living area to entertainment area, and do you have a comparison to a typical home and do you have a cite in the code where that comes up? MR. BEFELER: I can't cite another instance In the code where this has come up. I guess I use a reasonable measure of primary versus accessory. Primary would be over 51 percent and accessory would be, you know, 49 or less, and so that's kind of a logical conclusion of -- MR. WEITZEL: Okay, thanks. MR. BEFELER: — you know, one of event venue. CHAIRMAN BAKER: You use a lot of percentages and ratios. Do you know, is this standard or is this 196 process part of any city code anywhere? Is it applied in any code that you know of? MR. BEFELER: I think these calculations are, I guess, implied in the zoning section. Do you have that section? Do you want to read that aloud, the 14-4-1.A? Or A.2? I don't have it in front of me, I'm sorry. CHAIRMAN BAKER: Okay. MR. LAREW. I would interject In answer to the question as well that this email that we have talked about involving Steve Ballard and Terry Goerdt was exactly that kind of analysis by percentages, and their code, residential code, is not that much different than ours, so I would think that the percentage method is one that's not unusual. CHAIRMAN BAKER: Okay. The staff report cites three specific examples in Iowa City, comp — what they claim is comparable to this project in terms of recreationalcrentertainmentconfiguration. Areyou aware of their designs and would your — your criteria render them nonresidential? MR. LAREW: No, I don't think so, and here's the — a distinguishing characteristic, and I think which makes this notable and a concern to the neighborhood as to what the intent is: Every public statement that we're aware of Indicates that the owners intend to come down 196 1 here for occasional use and for tailgate parties 2 which -- we tailgate. We get that. That's not a taboo. 3 If you take a 365 -day -year residential use by a family 4 and compliment that with other uses of the structure, 5 you come up with one kind of use analysis. 6 You come up with quite something different when 7 you're anticipating short-term stays, episodic stays, 8 and all them with large numbers of people and devoted 9 recreational use. That implies quite a different 10 intent, and I don't know that one tail has to wag the 11 other dog. 12 CHAIRMAN BAKER: But hasn't that been resolved by 13 the fad that the owner -- or the applicant has declared 14 that this is a single-family residential intent? 15 MR. LAREW. The owner has declared only allegiance 16 to the residential zoning code. That's what is so 17 strange about the affidavit There's nothing in that 18 affidavit that any person in Iowa City would not also 19 have to be responsible for, whether or not he or she 20 signed an affidavit. We think the document Is specious, 21 and I'm surprised that It's used frequently by the City. 22 1 can't Imagine why. If you look at the language of the 23 affidavit, It simply says, "I will abide by the zoning 24 code of the City of Iowa City" Why would you have 25 someone sign such a thing? 197 1 MR. WEITZEL. Just a minute. Doesn't it clarify 2 residential use as opposed to commercial use? 3 MR. LAREW: Those are the only two choices you 4 have, and that's why we're here. If all you have to 5 choose is residential versus commercial — 6 MR. WEITZEL: Well, I was going to ask this later, 7 but its come up. Where in the code do we look for 8 another use type? 9 MR. LAREW: We feel that the use classification 10 system Is there when sometimes there's a proposed use 11 that is not addressed in the code. This is why we're 12 here. This is why were here, and — and people — it's 13 possible that people could have Intended uses for 14 structures that are not addressed by the code, and what 15 the code says is exactly this. If you were to find that 16 It's not a permitted use, then it means the proponent 17 has to go back and amend the zoning code. 18 MR. WEITZEL: Okay. 19 MR. LAREW That's — that's the way that it is set 20 up. That's the way that it is conceived. There are 21 possible uses of buildings that are not recognized by 22 the code, in which case the -- this panel says no, you 23 can't do it, but go amend the zoning ordinance and come 24 back and see us and we'll see if it's a permitted use. 25 This is an intended use which is not recognized by Page 194 to 197 1 2 3 4 5 6 7 8 9 10 11 12 13 14 i5 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 6-14.16 198 1 this -- CHAIRMAN BAKER: Okay. Can we -- Would you agree that we can eliminate the word — the choice between "commercial" and "residential"? MR. LAREW: Yes. CHAIRMAN BAKER: Since "commercial" implies revenue generating. MR. LAREW: We think that's a false choice. We think that's a false choice and we don't know anything from Mr. Carlson. Why — why would a person of his stature and distinction charge anyone for anything? We don't know that he would. But that's not the only choices that we have, residential versus commercial. CHAIRMAN BAKER: But it seems that the distinction between commercial and residential Is easily judged, verified, proved, researched: but when you use a term like "entertainment" or "recreational" versus "residential," is that a better distinction? MR. LAREW: Well, it —the City uses it when its to its advantage. How many times did Mr. Boothroy say "recreationar? And he started describing all the places in the house where you could be recreational and it was a laugh. How come it's — when a comes to entertainment -- this is the word that we think best fits. Why? Why do people go to the University of Iowa 199 stadium to watch football games? Is that commercial? Might be. We would view that as entertainment. We would view that entertainment. So you take a structure — They're signaling to the community this is what we're all about, we're entertainment. We're even mimicking the architecture of the largest entertainment facility in the state of Iowa. That's entertainment. CHAIRMAN BAKER: So you're — I'm sorry, go ahead, Tim. MR. WEITZEL: Do you accept that the state code basically gives broad powers to cities to set the types of zones that they have? MR. LAREW No. Not to the extent — MR. WEITZEL: You don't accept case law that — MR. LAREW. Well, I don't -- MR. WEITZEL: —supported that? MR. LAREW Well, to what? Can you — can you create the definition for residential use that is contrary to a code definition? I sort of doubt it. 1 think there's case law that gives, you know, parameters. But I — So It would allow— I don't think that if the — if the question is would state law preclude the — the City of Iowa City from designating a use as entertainment— MR. WEITZEL: Well, no, I was getting more to 200 1 the -- the power to — given to cities to define what 2 their zones are. 3 MR, LAREW. There's some— there's some degree of 4 home rule. No two zones are exactly the same. They 5 must have a Board of Adjustment. That's state law. 6 You're here not by a creation of the city council, 7 you're here by state law mandate, so there are certain 8 parameters and you are — The limits of your power are 9 defined by state law, not by city code, except to the 10 extent that it mimics state law, so there are Gear 11 parameters established by state law. 12 The question is could -- could you — if -- The 13 question was could you create or could the City of 14 Iowa City create a category of entertainment. Yes, they 15 could. And the alternative thing if you find something 16 that's primarily for entertainment and its not in the 17 code, then you cannot do it in a residential area. 18 MR. CHRISCHILLES: So - 19 CHAIRMAN BAKER: Go ahead, Gene, I'm sorry. 20 MR. CHRISCHILLES: So am I interpreting this 21 correctly that your point is that as it is now, we are 22 asked to — to make a decision on this based on current 23 city zoning code regulations? 24 MR. LAREW: Truly. 25 MR. CHRISCHILLES: And even if we had no other 201 1 category to put this structure into other than 2 single-family residential, you're saying that we 3 shouldn't be deterred by that, we should just say that 4 it's not a res — its not that, but we don't know what 5 it is? 6 MR. LAREW: That — that could well be where you 7 come to. 8 MR. CHRISCHILLES: And then because of that, force 9 the City to work on Its zoning code? 10 MR. LAREW No. It — it forces the applicant to 11 amend the code or come back with something that 12 complies. The — the zone was quite clear as to what a 13 permitted use Is and what it is not, and if they came 14 forward - 15 MR. CHRISCHILLES: In order for them to comply, 16 they'd have to have — they'd have — How would they 17 comply? 18 MR. LAREW They would amend the code, and that's 19 exactly what the code says that they must do. I believe 20 that the — the law Is dear that If you find that the 21 intended use is not recognized by the zoning code, then 22 you — you must reject it and that the — the option of 23 the person if they're determined to do it is to emend 24 the zoning code so that it is a recognized use. You 25 can't force-feed it into something that it is not, Page 198 to 201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 202 1 and -- and in this case, anymore than it would be unreasonable. I think Mr. Weitzel would say its unreasonable if I had some view — based on the fad I'm convinced that its a commercial structure. That wouldn't be based in fact. I wouldn't — that wouldn't — you wouldn't accept that. Why is it ridiculous for neighbors and people who looked at that and said it's not residential, and we've looked at it. Why is that a — MR. WEITZEL: I don't think anyone's characterized it as ridiculous. MR. LAREW: No. I think its — Why — why is that incredulous? Why is it the only option that is considered by the city staff? Because there was no other alternative. There was no classification use analysis, which is something that at least University Heights did. They said this is either entertainment or commercial, but it ain't residential. CHAIRMAN BAKER: Okay. We — Jim, is it oversimplifying to say that you are saying that the design of a project defines the use of the project? MR. LAREW: Does the what? CHAIRMAN BAKER: The design of a project defines the use of the project. MR. LAREW: I would say you start with Intent 203 because that helps you to understand what the drawings are. CHAIRMAN BAKER: Okay. So does design equal intent? MR. LAREW: I think design is one way of evidencing intent, but you start out with intent. CHAIRMAN BAKER: Okay. So here's two quotes from the building applicant "My stepson suggested that if we're going to build a house to tailgate at, it should mimic the stadium. I'm a kind of a theme guy anyway so I thought that was a great Idea," first quote. Second quote: 'The inner courtyard is where we tail" — "where we'll tailgate and no one else will see us. We're self-contained. It's a family place to gather and have fun" Are those contradictory, consistent, or how do they define the use as far as intent goes? MR. LAREW: Well, we interpret from the initial descriptions of what the intended use was was for a family to come down on an occasional basis, more likely than not tied to the University of Iowa football game, maybe other events as well, tying that to a large social event, tailgating event, and then to go home and that that was the intent of the — of the structure, and it seems to us that the designs — and we're sort of like 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 31 12 13 14 15 16 17 18 19 20 21 22 23 24 25 204 the constitutional scholars. What was the original intent? The reason why drawings like at University Heights and the early versions of this, before they started whitening things out and erasing things and trying to meet the mood of the community as they could see it, that's — that's also evidence of intent. So if you have locker rooms and you talk about pink locker rooms and you talk about all these other things that — and you have a structure that by any standard says this is just like the biggest entertainment venue in the entire state of Iowa, those things mean something to us. CHAIRMAN BAKER: The original intent as exemplified by the original design should determine what the last — what the latest design was. Is that what you're saying? MR. LAREW: No, I — I think that original drawings gave us some clue as to the intent. If you want to know the truth, I don't have any confidence that after this goes forward that these drawings mean very much. I think that owners can do and just about do whatever they want to. They could put in urinals where there's a bathroom. No one at the City's going to object. It could come back to what the original intent was, which Is a — a facility. Where else — Let me give you an 205 example because these aren't trivial. How do we make up our mind? When you go to University of Iowa football game, if you've had much to drink when you go In, the first thing you're looking for is the bathroom, and I'll be damed; if you go in the gate, all kinds of bathrooms, people lining up. Look at — look at this drawing. When you go in the front door off of Lusk Avenue, what's the first thing you — what used to be called the men's and women's bathroom was lockers, and all this is the first thing that you see. Where does this happen in a residence? It happens where you're mimicking a residential or a — an entertainment venue, so these things mean something. These are cues. These are -- these are dues as to what the intended use of these projects are, and you do your best judgment to be reasonable. CHAIRMAN BAKER: So the City's position that bedroom, kitchen, bedrooms, bathroom, if — if certain basic elements are present, It's a residence, and these elements are all present, its a residence. MR. LAREW: Yeah, we're talking principal versus accessory uses. That's what the code says we have to do. That's what happens all the time. Is it a grocery store or liquor store? Well, let's look at the sales Page 202 to 205 Board of Adjustment 9-14-16 206 208 1 tape and decide, not depend on what the store owner says 1 don't have — 2 he's going to do; right? At — at a certain point so 2 MR. BEFELER: Well, I would •- 3 what do we — we're taking — We're trying to determine 3 MS. SOGLIN: — to live there full time. 4 what the balance is here, and I don't know that anyone 4 MR. BEFELER: Yeah, I would say a lot of second 5 would say that this looks like a residence on the inside 5 homes are recreational in purpose. I mean if I buy a 6 and a residence only. It looks like something much 6 house at a lake, I'm going there for recreational 7 different. 7 activities. I'm not using it as a residence primarily. 8 CHAIRMAN BAKER: Are you saying that there is no 8 1 think we could place some of those same 9 objective definition of residence? 9 qualifications, and maybe we need to look back at the 10 MR. LAREW: I'm saying a residence has certain 10 code of — and set up this residential and make sure 11 characteristics and so do entertainment venues, and you 11 that areas are zoned recreational versus residential. 12 do the best to sort them out if that's the — those are 12 CHAIRMAN BAKER: Certainly second homes, though you 13 the competing — the competing uses. 13 might not consider them residences, are recognized by 14 MR. BEFELER: If you look back at the code, it 14 the state and taxed accordingly as residence. Just 15 says — the code says certain things that a residence 15 because they're not living in the home doesn't change 16 has to have and those are included, but it also says 16 the tax classification, the state classification. 17 there needs to be a primary use as a residence. 17 MR. BEFELER: And I would contest that there's a 18 CHAIRMAN BAKER: Okay. 18 primary use here and that's fairly dear. 19 MR. BEFELER: And I think that's the point we're — 19 CHAIRMAN BAKER: Okay. So — 20 we're making here is at some point we've crossed the 20 MR. BEFELER: But I — Yeah, I guess how do you — 21 line of the primary versus accessory use. This is not 21 how do you quantitate it here. 22 intended primarily as a residence. 22 CHAIRMAN BAKER: And so someone who has resources 23 MR. LAREW: And what do we use — 23 and can build a large residence can sort of build 24 (Overlapping speakers) 24 themselves out of the protections of residential 25 CHAIRMAN BAKER: I agree that that's the line we 25 dassificetion, because their basic living 207 208 1 have to figure out. 1 accommodations are a lesser percentage than the social 2 MR. CHRISCHILLES: But where do we — how do we 2 recreational activities afforded by the structure. 3 determine that line? 3 MR. CHRISCHILLES: Wasn't that the point you were 4 MR. BEFELER: Again, I — I think I've laid out — 4 trying to get to earlier? 5 You know, there's — there's two fairly quantitative 5 CHAIRMAN BAKER: Yeah, it's like -- It's just 6 ways, which is square footage and use time. And then 6 coming In from all sorts of different directions here 7 there's one that's a little more subjective — 7 because we have to figure out if you want us to draw a 8 MR. WEITZEL: But we have other houses that already 8 line — I'm looking for guidance. 9 have a huge amount of square footage devoted to 9 MR. LAREW: We have another speaker on this issue. 30 entertainment that are residential and that's how 10 Maybe she'll help clarify. 11 they're classified, and no one's complained. 11 CHAIRMAN BAKER: All right, thank you. 12 MR. BEFELER: And if you look at those houses, when 12 MS. PARK: Good evening. 13 you factor in use time, you've got a lot of people 13 MS. WALZ: And just to make sure that everybody's 14 spending a lot of time actually living there. 14 recording their name on the sign -in sheet so that we 15 There's -- So there's a big difference between their 15 have a record of everyone, that should be here. 16 intended use, which is to come here occasionally and 16 MS. PARK: Good evening, members of the Board of 17 have big parties every time they come here versus living 17 Adjustment. My name is Jiyun Pack. I live at 20 Rocky 18 in a house and occasionally having big parties. 18 Shore Drive. I'm an architectural designer, and I've 19 MR. WEITZEL• But is that part of the code that we 19 reviewed the proposed plans for the building at 101 Lusk 20 can work with? 20 Avenue. (Inaudible) 21 MS. SOGLIN: They — they define it as a second — 21 Sorry. I'm an architectural designer. I've 22 In one letter they call it a second home, so are you 22 reviewed the proposed plans for the architectural 23 saying that anybody who has a second home, they're not 23 building at 101 Lusk Avenue. I am — 24 using that as a home? All those people when they have a 24 CHAIRMAN BAKER: Excuse me. Could you reidentify 25 second home, they're not — they don't live there — 25 yourself. I didn't hear the first time. Page 206 to 209 9-14.16 212 corridor interior courtyard, are two restrooms with a total of three toilets and two urinals. The sizes of these restrooms, according to OSHA, which Is a governing body for — I just misplaced my — CHAIRMAN BAKER: Can I interrupt you just for a second here. MS. PARK: Yeah. CHAIRMAN BAKER: You said these drawings, which are what the City approved, include two urinals? MS. PARK Yes. Right there and there. MS. SOGLIN: Aren't these the old drawings? MS. PARK: Well, these were the drawings that I -- CHAIRMAN BAKER: Because that question was asked, and we were told there were no urinals. UNIDENTIFIED SPEAKER: They revised this plan (inaudible) to one. MS. PARK: Forgive me, I — These are the drawings I reviewed. CHAIRMAN BAKER: Thai's all right. I'm sorry. The plan that is approved still Includes at least one urinal. Okay. And if that's not factually correct, I'm sure the staff will — MS. PARK: Please. At any rate, if l could — So even if I make the modification three toilets and one urinal, the sizing of these restrooms, according to 213 OSHA, which is an acronym for the Occupational Safety and Health Administration, federal guidelines suggest that this could facilitate 81 to 110 people. With an additional full master bathroom on this level, the first level could facilitate 111 to 150 people. Additionally, there are three full baths — this Is — There's one, two, three full baths on the second level and one full bath on the basement level. This amounts to a total of five full bathrooms, which nearly doubles the use including the urinals and toilets up here to what OSHA would consider over 200 people. On the second level, the four bedrooms and three full baths along a hallway resem — resemble a dormitory layout or a hotel layout. If you think of any typical single-family residence, its —it's — its been known to happen in luxury architectural homes that the bedrooms would come off of a single hallway. However, I wouldn't say that that's typical of a single-family residence. The average single-family home has two to three full baths according to a national census, and this is growing over time. It was originally one and a half full baths. This proposal has five times more than the average neighboring single-family residential home in terms of bathrooms. Page 210 to 213 Board of Adjustment 210 1 MS. PARK: Oh, certainly. Good evening, members of 1 2 the Board of Adjustment. My name is Jiyun Park. I live 2 3 at 20 Rocky Shore Drive. I'm an architectural designer. 3 4 1 have reviewed the proposed plans for the building at 4 5 101 Lusk Avenue. It Is my opinion and belief that the 5 6 principal use of this structure, if 8 is built, will be 6 7 entertainment -related, almost corporate purposes, and 7 8 that any residential use of the structure will be 8 9 accessory to that principal use. 9 10 1 come to this conclusion based on my background, 10 11 education, training, and experience. I possess over 20 11 12 years' experience in design and construction of 12 13 residential and commercial spaces. I em currently 13 14 self-employed as founder and principal of Studio 14 15 Involution. I'm working on several books, including one 15 16 on architectural curriculum Initially presented at a 16 17 Bridges conference in Granada, Spain, in 2003. 1 17 18 graduated from the Cooper Union in New York City with a 18 19 five-year degree in architecture after transferring from 19 20 the University of Michigan School of Architecture with a 20 21 concentration in history of art. 21 22 1 worked on numerous residential and commercial 22 23 projects, including a commercial kitchen. Residential 23 24 projects include a corporate residential estate in 24 25 Scotland and in Boston. The — the estate in Scotland 25 211 1 was a sort of corporate residence for juice box heirs, 1 2 and then In Boston, it was for the New Balance 2 3 corporation residence. 3 4 I've worked on projects -- excuse me. I've worked 4 5 on projects raising — ranging from the Guggenheim SoHo 5 6 to Harvard Business School. I've taught architectural 6 7 design in Boston, where a core practice of my work is 7 8 leaching and reading architectural plans, elevations, 8 9 and three-dimensional drawings to understand how they 9 10 would be built. I've reviewed the proposed 101 Lusk 10 11 Avenue plans, elevations, and isometric drawings. 11 12 In my professional view, this project expresses 12 13 very little of what defines a single-family residence. 13 14 Even amongst luxury homes, the layout does not read like 14 15 a home; rather, like an event venue or entertaining 15 16 hall. The dominant circulation, which when you go to a 16 17 typical single-family residence, to go through the front 17 18 door. This dominant circulation seemed — this dominant 18 19 circulation — sorry —flows through three garage doors 19 20 to a fourth interior garage door that leads directly 20 21 Into a courtyard adjacent to a covered three -bay patio 21 22 that houses two closet -sized coolers or counters, both 22 23 with a picnic bench seating, as well as what I thought 23 24 was a ccmmercial-size built-in grill. 24 25 Opposite the garage entrance, across the 57 -foot 25 9-14.16 212 corridor interior courtyard, are two restrooms with a total of three toilets and two urinals. The sizes of these restrooms, according to OSHA, which Is a governing body for — I just misplaced my — CHAIRMAN BAKER: Can I interrupt you just for a second here. MS. PARK: Yeah. CHAIRMAN BAKER: You said these drawings, which are what the City approved, include two urinals? MS. PARK Yes. Right there and there. MS. SOGLIN: Aren't these the old drawings? MS. PARK: Well, these were the drawings that I -- CHAIRMAN BAKER: Because that question was asked, and we were told there were no urinals. UNIDENTIFIED SPEAKER: They revised this plan (inaudible) to one. MS. PARK: Forgive me, I — These are the drawings I reviewed. CHAIRMAN BAKER: Thai's all right. I'm sorry. The plan that is approved still Includes at least one urinal. Okay. And if that's not factually correct, I'm sure the staff will — MS. PARK: Please. At any rate, if l could — So even if I make the modification three toilets and one urinal, the sizing of these restrooms, according to 213 OSHA, which is an acronym for the Occupational Safety and Health Administration, federal guidelines suggest that this could facilitate 81 to 110 people. With an additional full master bathroom on this level, the first level could facilitate 111 to 150 people. Additionally, there are three full baths — this Is — There's one, two, three full baths on the second level and one full bath on the basement level. This amounts to a total of five full bathrooms, which nearly doubles the use including the urinals and toilets up here to what OSHA would consider over 200 people. On the second level, the four bedrooms and three full baths along a hallway resem — resemble a dormitory layout or a hotel layout. If you think of any typical single-family residence, its —it's — its been known to happen in luxury architectural homes that the bedrooms would come off of a single hallway. However, I wouldn't say that that's typical of a single-family residence. The average single-family home has two to three full baths according to a national census, and this is growing over time. It was originally one and a half full baths. This proposal has five times more than the average neighboring single-family residential home in terms of bathrooms. Page 210 to 213 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The kitchen and dining seating adjacent to t covered patio with its three bays approaches lig commercial -- light commercial or small institute kitchen dining spaces with three booths -- one, three -- In addition to a 16 -foot island. A functio residential island need not be more than five fee some are six foot six. The Lusk Avenue island double to triple the size of residential kitchen islands. The exterior of this structure's street facade unlike any single-family residence yet mimics th largest entertainment facility in the state of Iowa University of Iowa Kinnick Stadium. Like attend going to the football game at Kinnick Stadium, been designed so that their first stops upon ent the gates can be the restrooms — Here's the fro and there's two sidelights. Those are not thresh They're not egress, they re just sidelights. The — a person enters the front door from the street w there are five urinals — excuse me, five — so It's urinal and three toi — I don't know how — anyway there's quite a few. Early versions of the design for the building equipped those bathrooms with lockers rather th customary coat closet entry foyer. There is sour two, 4 mods nal 5 Chang t, yet 6 which i exceeds 7 both p 8 the pla 9 LuskA is 10 and zo e 11 is the r ,the 12 correct ees 13 establi which has 14 A Bring 15 notbe nt door 16 princip old — 17 expres As 18 Code's here 19 It stron one 20 rejede , 21 Unive 22 objecte 23 Th an a 24 preced ething 25 C 215 else notable about this presumed entrance on the east side. It shows only a single door and single sidelights along the entire 76 -foot eastern facade. So typically, a single-family residence home would have ample lighting on the east side, as that's the rising sun. This poses — This single — single door poses egress issues should it ever exceed single-family residence. The west facade resembles a firehouse with three garage doors flanked by a single — by single doors and windows. There are no windows on the kitchen plans, not even one above the kitchen sink. There's the kitchen. There's the kitchen sink, and there are — there's no window above the kitchen sink nor the entire kitchen. The entire north facade only shows closed niches, so there's no windows on that facade. There are so few features of natural light, nor circulation to any yard or neighboring space. Rather, the spaces seem to focus on a large central courtyard with major access through the driveway or garages. At over 7,000 square feet, this structure dwarfs the adjacent 1,000 -square -foot Sears Roebuck home. Its plot or site plan blocks sight lines and air space that exist throughout the neighborhood. The structure would be an exception to the entire neighborhood and neighborhoods throughout Iowa City. Even the multiuse 1 2 3 4 5 6 7 8 9 LO L1 L2 L3 L4 L5 L6 L7 L8 L9 !0 !1 !2 !3 !4 'S 216 gs and apartments in the neighborhood have far air and light space on their site plots. of the opinion that no series of small cations to the plans for 101 Lusk Avenue will e the intended principal use for this facility, s entertainment. It is both — It is an intent, ublicly stated by the owners and clearly shown on ns. In my opinion, the permit issued for 101 venue should never have been issued, as building ning staff incorrectly classified the project. It esponsibility of the Board of Adjustment to this error before a dangerous precedent is shed in Iowa City. 200 -person event and entertainment venue should built at 101 Lusk Avenue. It is not designed ally as a residence. As proposed, it does not s the identity, the values stated in the Iowa Cityd preamble, nor the Iowa CiVs charter. In fa, gly goes against all and was already once d by our neighboring community, rsity Heights, many of whose capable residents d to its placement in a residential neighborhood. ank you for your time and kind attention in this enl-making decision in the history of Iowa City. HAIRMAN BAKER: All right, thank you. Are there 217 any questions from the board? Tim? No? MR. WEITZEL: No. CHAIRMAN BAKER: Gene? MR. CHRISCHILLES: No. MS. PARK: Jiyun. Oh, sorry. CHAIRMAN BAKER: Becky? MS. SOGLIN: No. CHAIRMAN BAKER: Just for some clarification to help me here, the design were looking at here — yes or no -- this is the design that was approved by the City? UNIDENTIFIED SPEAKER: I believe it is. MS. PARK: To the best of my knowledge. CHAIRMAN BAKER: Okay. MS. PARK: There — there have been several modifications — CHAIRMAN BAKER: Okay. I'm saying — MS. PARK: —or changes. CHAIRMAN BAKER: Here's -- Obviously by our next meeting, (want the staff to say yes or no and show me the difference between this plan, which your discussion was based on, and the plan that was approved. That's the — Now, the other thing is you talk about the design not really being a family resident — you know, not being designed for family use. The applicant, the building applicant, has a family. Has a family in Page 214 to 217 Board of Adjustment 9-14-16 214 he 1 dwellin ht or 2 more onal 3 I'm 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 W1 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adju 218 Iowa City, and I don't know for sure but I would suspect that this family also has children. That — Though we can look at this as a very sort of odd design for a two -person household, you put a family with children, does that change your sentiment about this being a family residence? MS. PARK: I think its — As a design architect, I would want to allow for the greatest flexibility and autonomy of the owner of any property because that's sort of— sort of what design does. However, in this case, based on the proportions of what would be single-family residential home based on the context of the other single-family resident homes, based on the other corporate, slash, entertainment venues that I've worked on, this more resembles the projects that I've — where the corporate client had a secondary or third home that they used as a residential, slash — you know, is that sort of that kind of use. So I think the question is primarily one of use. CHAIRMAN BAKER: Okay. But use for any home, any residence, changes with who lives in the residence. MS. PARK: Well, so from a design perspective, I would say there are in any plan basic readings. So there's sort of this expectation when you go through the front door, there may be a coat closet, there may be — 219 You know, there's programatic use of homes that are sort of standardized use. I fail to see some of those standardized uses in this particular proposal. CHAIRMAN BAKER: Okay. All right. Thank you very much. MS. PARK: Thank you. CHAIRMAN BAKER: Doug, John, the next meeting I want a schematic of the plan that was approved, and if there are differences between the fads of this versus what the facts of your approval were, please be prepared to point those out. MR. ACKERMAN: My name is Bill Ackerman. I own a property at 631 Bayard Street. I live at 814 Newton Road in Iowa City. My wife and I bought the property that we rent currently and have rented for the last 28 years, in 1988. We maintain the property. We keep it up. We have very good tenants in there for the last 28 years. The neighbors — The neighbors, my tenants — I don't function at this hour. The neighbors, my tenants, have always enjoyed the quiet and peace of the neighborhood, the tree -lined streets, the people that walk the dog, so it's kind of a family -friendly neighborhood, if you're not familiar with it. The former owner of the property was Pauline Aspel, who lived there for 50 years plus. Got to know her mnl 9-14-10 220 1 again in 1988, when we bought the property. She passed 2 away in January of 2015, a little over a year ago, and 3 the house sat vacant for a while. In my opinion 4 probably should have been restored, updated, and kept as 5 a single-family home. The way things have gone the last 6 year with their proposal for the Kinnick-style house — 7 pardon me, structure; I do not believe this is a 8 house — I believe this will be an entertainment venue 9 that will be a detriment to the neighborhood. 10 Not only if it's built will it destroy Lusk Avenue, 11 the pavement. Just the construction factor alone would 12 ruin that street and have to have it replaced. The 13 gawkers, the sightseers, have already been present 14 driving by. Where Is the Kinnick place going to be? 15 You're out there in the street, you're mowing your yard, 16 you're bothered by it. Everyone knows where it is, they 17 all want to see it. Its already happened. If it's 18 allowed to be built, it will continue, particularly on 19 football weekends when you can't park anywhere close to 20 our neighborhood. 21 So I'm saying itis an entertainment venue, it's not 22 a home. The principal use of it is for entertainment, 23 for parties, not for a home where two people sit around, 24 watch Gunsmoke in the evening. So another concern 1 25 have is down the line, what happens if this is built. 221 1 In 15, 20 years, people decide to sell it. What would 2 happen — And this is a nightmare. What would happen 3 if It got sold to the University of Iowa, where you have 4 no control over what they do. That would be a 5 nightmare, one we can avoid. 6 We circulated the petition. Some of the people 7 here in the group circulated petition over the last two 8 months. Garnered almost 300 names on the petition 9 saying we are not Interested In having this in 10 Manville Heights, for a variety of reasons. People from 11 the outside of Manville Heights, I'd meet them every 12 day. Hey, how's that Kinnick thing going? What's going 13 on? Happened last night again, 30 miles from home. 14 How's that Kinnick think going? Ha he ha. I said, 15 well, we're going before the Board of Adjustment and 1 16 hope that they have — make — make the right decision 17 for everybody. Everyone meaning the people of 18 Manville Heights, Iowa City. 19 This could have been proposed anywhere in 20 Iowa City. It could be next door to any of you folks, 21 anyone in the audience, anywhere in Iowa City, and it 22 just doesn't fit in. Its neither a residence or a 23 commercial event. It is a party venue. Thank you for 24 your time, and I hope you make the right decision. 25 CHAIRMAN BAKER: Thank you. Page 218 to 221 1 2 3 4 5 6 7 8 9 to 11 12 13 14 i5 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 222 1 MR. ACKERMAN: Questions? CHAIRMAN BAKER: Thank you. Jim, you said you had a series of professional witnesses or people talking specifically to facts related to your objections. MR. LAREW. The two people who by profession do venue and site planning, architectural, have spoken. CHAIRMAN BAKER: Okay. I justwanted to make a distinction. If your presentation using your witnesses is done, then we need to open up to the public — MR. LAREW: No, we — we have at least 12 people who are here to talc, and the next couple witnesses are going to give you an account. Chris Rossi will be speaking and particularly talking about certain documents that are in the file that we've given you, this discourse of what's going on within the city when it was owned by the preceding owner, Mr. Oliveira. And then Craig Syrop will be speaking. He's the adjoining property owner on the — on the comer and who is also — who learned in the course of this in the last two months that there was this shared sewer line, and he's going to give you an account of — of that and describe the situation, so those are our next two -- two speakers. But the rest of the speakers are people who are in the — in the neighborhood and have various perspectives to give you. 223 CHAIRMAN BAKER: Okay. I just want to make clear that— that the thing that helps us the most, as you know, is as much factual information as possible and more -- more than just a concern, and so when — when — I need to know when you are through presenting what you consider the facts of your case, and then we can open it up to people to add to those facts. Understand what I'm saying? MR. LAREW You — you — youwillgetfactsand— CHAIRMAN BAKER: Okay. MR. LAREW: —you've asked for facts when I have said in a general introduction that city staff people knew about this and talked to each other about that. CHAIRMAN BAKER: Okay. MR. LAREW. And I promised you that there were people who were prepared to speak about it. That's — that's what's coming next. CHAIRMAN BAKER: Okay. MR. LAREW: And those are facts. CHAIRMAN BAKER: I just want to make sure that we're getting as much different information as possible. MR. LAREW. Yes. You'll get that, I'm sure. CHAIRMAN BAKER: All right, thank you. MR. ROSSI: Good evening. My name is Chris Rossi. I live at 4 Rowland Court with my wife and two small 224 1 children. I received notification from the City that 2 this meeting was taking place because we live so dose 3 to the event structure, so I'm one of the fortunate few 4 to actually get a piece of paper. 5 Several months ago, dumbfounded neighbors stood at 6 the corner of Lusk and Bayard and really were scratching 7 their heads about the lack of communication that had 8 been going on resulting in how some people so proximate 9 to this place were seemingly the last people to know. 10 And that kind of communication Indicates a problem with 11 the City and the — and the city staff, and I think you 12 have heard some concerns this evening about that less - 13 than -perfect stream of transparency and communication 14 that leads to confidence among our city servants that 15 elements are being represented fairly, completely, and 16 openly. 17 So as a measure, by the way, of that concern, the 18 city staff in informing you about your standard of 19 review apparently tonight has been told by Mr. Parmenter 20 that elements of what you were — what you were told was 21 your standard of review were unnecessary. That was 22 Mr. Parmenter's word characterizing the — the first 23 memo. But I actually think that Mr. Parnenter could 24 probably do better by saying there was mistakes made, Z5 and that kind of shading of the conversation indicates 225 1 yet again unnecessary lack of transparency with regard 2 to City representatives and the neighbors that we have 3 here. 4 And so that prompted us, under Chapter 22 of the 5 code of Iowa, to do something that since 1960 I'd never 6 actually thought about doing, having been here that 7 long, which would be to petition for an open records 8 request, which Is what the neighborhood did because of 9 this seeming lack of understanding and this dumbfounded, 10 late -breaking, eleventh -hour disclosure of things 11 happening in our neighborhoods, making us, the most 12 proximate, the very last to know. And so we did get 13 some information. 14 I'd like to — I'd ask you please to tum In your 15 booklet to Exhibit 15, where the public record reveals, 16 not completely, but citizens or neighbors — that's what 17 we really are here. There's some people -- My wife 18 isn't a citizen. She's a neighbor too. I shouldn't 19 dis — I shouldn't forget my wife. But in any event, a 20 neighbor petitioned the City to help with the 21 clarification of what's going on, and in Exhibit 15, 22 unfortunately the public records reveal that the city 23 staff believed its a lose -lose proposition to 24 facilitate discussion among the parties, as if pursuing 25 a guiding light of transparency, openness, and Page 222 to 225 Page 226 to 229 Board of Adjustmnt 9-14-16 226 228 1 communication Is too much to ask. Why would it be a 1 about with this batch right now involves the time period 2 lose -lose proposition? 2 immediately before the Carlsons purchased 101 Lusk when 3 Please turn to Exhibit 16. 3 it was owned by Prestige Properties, LLC, whose 4 MR. CHRISCHILLES: Wait a second. Does this — 4 principal owner is Mike Oliveira, and Mr. Oliveira had 5 The Number 15, does it read from bottom up? 5 proposed for 101 Lusk that Pauline Aspel's home be 6 MR. ROSSI: Exhibit 15. That would be the tab. 6 demolished and in its place two modestly sized family 7 MS. SCGLIN: You have to read from — Yes, read 7 residences be constructed, each of them facing Lusk 8 from the bottom up. The -- the email -- 8 Avenue. But his plan was fatally flawed, and the City 9 MR. CHRISCHILLES: The trail of email is bottom up. 9 raised a host of reasonable objections to Mr. Oliveira, 10 MR. ROSSI: Don't know what you're talking about. 10 all of them framed as zoning or building compliance 11 MS. SCGLIN: To read it in chronological order by 11 Issues. 12 date and time, you would have to start with the bottom 12 So let's start quoting the dty staff in their own 13 email; correct? The last email on the page. 13 tongue. Exhibit 17. The City made demands on the 14 MR, ROSSI: Yes. I — Unfortunately, I -- I don't 14 previous owner before signing off -- that's 15 have a copy of -- 15 (inaudible) -- on the plan. And the record reveals 16 MS. SOGLIN: I'm pretty sure — 16 Doug, presumably Doug Boothroy, will not sign off — off 17 MR. ROSSI: Oh, I see. 17 on the plat unless sewer, water, and turnaround issues 18 MS. SOGLIN: — the answer is yes. 18 have been resolved. 19 MR. ROSSI: We did our best to highlight -- I'm 19 Exhibit 19. I'm sorry, Exhibit 18. Here city 20 sorry, I understand your question now, having the 20 staff notes that the bigger question is how will water 21 physical document in front of me, but somewhere in tab 21 and sanitary sewer services be extended to the proposed 22 15 you will see — and it should be highlighted. 22 lots. Those proposed lots were the Oliveira lots on the 23 MR. LAREW: This is the highlighted. 23 southern side of Lusk Avenue, a portion of which has no 24 MR. ROSSI: Oh, yes, it is. 24 infrastructure. 25 MR. LAREW. And this is the question. 25 Exhibit 19. Again, city staff noted the proposal, 227 229 1 MR. ROSSI: Yes, okay. So the answer to your 1 quote, runs through different properties. Staff 2 question is yes. And you see the — I don't — I don't 2 concludes I'm not a fan of this proposal. Future 3 find it particularly helpful at this juncture. It's a 3 repairs of the private line — the private line -- could 4 public record, but you see the city staff says, "I'll 4 get dicey. That to me indicates there was a — that the 5 leave this up to you but I wouldn't suggest it. Its a 5 city staff understood that it wasn't simply the capacity 6 lose -lose proposition" That was based upon a request 6 of the line that was a problem, It was quite — it was 7 for some sort of meet -and -greet and — So Exhibit 16. 7 quite dearly the qualitative condition of the line, 8 Mr. Boothroy's staff informed him there was lots of 8 because future -- future repairs of the private line 9 Lusk public comment, that staff also informed him that 9 could get dicey. Staff asks, as is the case with 30 many of the public's questions were directed at the 10 similar old sewers in the city, why did the City okay 11 actions of the staff. So the City was in the enviable 11 this? I'm not sure that's a rhetorical question but it 12 position of getting to decide as the judge and juror in 12 presents Itself in the record as such. 13 its own defense whether to facilitate public dialogue, 13 Exhibit 20. Mr. Oliveira, because he was 14 knowing full well that the citizenry, the residents, had 14 encountering the due diligence of staff, hires a 15 questions about the conclusions that city staff were 15 consultant. He cc's the City the conclusion. We would 16 coming to. No dialogue took place. I submit really 16 not recommend using the existing service line in its 17 fundamentally, basically, that's why we're here. 17 current condition for single-family homes. The 18 The public record also reveals disturbing 28 four -inch diameter cast iron section will impede flow 19 inconsistencies and errors in the City's actions 19 and possibly cause blockages and backups. The roots 20 involving 101 Lusk, even before the Carlsons bought the 20 protruding through the pipes may regrow. Many of the 21 property. These errors relate to sewer, easement, and 21 joints are offset from each other. Typical standard 22 fire and safety issues. None of them was resolved 22 practice for most cities is to require a minimum pipe 23 before the City issued the building permit to the 23 diameter of six inches when more than one building is 24 Carlsons. 24 served by a single service line. He goes on to note 25 So part of the record that I'm going to be talking 25 that the typical standard practice for most cities does Page 226 to 229 1 2 3 4 5 6 7 8 9 10 11 12 13 14 101612 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not conform with this practice. Exhibit 21. Here we have more of our corn disconnect. The property owner proximate to the property asked the City this past June about the condition of the sewer. He was told, quote, 'The doesn't have any information about the condition joint private sewer that you share with your neigh Exhibit 22. That same city staffer on the sa referencing the same neighbor's request for infor wrote an internal email to his colleague. My last recollection was that we were going to require th development south of the neighbor's property to a new eight -inch line. I didn't realize that using t existing combined four -inch service was going to allowed. How would you like me to proceed with contacting the neighbor about his concerns? Seems like some — some people in the City get the memo, but in any event, the memo that to my neighbor was that memo that you found in Number 20, which is that they had no — no know] the condition of my neighbor's line. CHAIRMAN BAKER: Can I Interrupt just for I want to go back to Exhibit 22, where you've highlighted the City doesn't have any information the condition of the joint private sewer that you s 231 with your neighbors. That's dated June the 29th, 2016. Correct me if I'm wrong. Is that addressed specifically in the October 2015 letter previous to that that, indeed, that information was available? MR. ROSSI: Well -- (Inaudible) MR. ROSSI, Okay. CHAIRMAN BAKER: It was. UNIDENTIFIED SPEAKER: Yes. CHAIRMAN BAKER: But they're telling you it was not available. MR. ROSSI: For reasons that we can't quite comprehend, knowing full well that the consultant gave a laundry list of problems with that line. Exhibit 23, please. The City seems to have moved the discussion of the sewer away from the qualitative issue of its condition to the quantitative Issue of its technical capacity, even though the public record clearly indicates a concern for both issues. Number 3, assurance the existing sewer line to the site is capable of providing required capacity for the new home. Capability speaks to the sewer's qualitative condition. Capacity speaks to the quantitative factors. Earlier tonight, I heard a great deal of discussion about capacity issues. I think the City wants to color Board of Adjustment 9-14-16 230 1 our un munication 2 have Carlson 3 that an 4 speak city 5 speak of the 6 up que bors." 7 qualita me day a Ex mation 9 M 10 assist e new 11 highlig Install 12 made he 13 so we be 14 our tra 15 ability i 16 provide didn't 17 that pa went out 18 being Exhibit 19 MR edge of 20 presen 21 of the a second? 22 you too 23 word a about 24 But hare 25 property 232 derstanding of the circumstances because you can a capacity that is sufficient although elements of e no longer standard and elements of that only to a four -inch line, but also, elements of that to the age of that line which, of course, brings stions that the City was aware of regarding the tive condition. hibit Number 24. R. LAREW: Let me intercede here because we ed in creating this document. Exhibit 24 has some hting that we didn't do, but when copies were available to us from the City, it was hard to read could read pretty well. The page that follows is nscription and we think to the best of our s exactly ward for word, but we wanted to that in the event you had a hard time reading rt that looks to have been blacked out before provided. . ROSSI: Yeah, it kind of looks like our tation here is a little bit turgid, like so much presentations we've heard so far, but in fact, if k on a computer screen, you can read it word for rid somehow that will have to be dealt with. city staff notes in Exhibit 24 the neighbors' interest Staff is asked — Staff asks is 233 1 there an existing easement around the sanitary sewer 2 where it crosses private property. Later in Exhibit 26, 3 staff sounds the alarm again. 4 UNIDENTIFIED SPEAKER: Oh, did you — this Is - 5 MR. LAREN Okay, the Qnaudible) question. 6 MR. ROSSI: Right. I have that referenced. 7 MR. LAREW: Okay. a MR. ROSSI: This is the question. W. 9 MR. LAREThis is the answer. 10 MR. ROSSI: So would you like me to read — 11 MR. LAREW: Yes. 12 MR. ROSSI: So if I may go back to — and you have 13 to excuse me, I'm — I'm not a professional staffer or 14 anything. I just — This isn't even my day job. But 15 I'm going to read this -- I'm going to read — The 16 question is is there an existing easement around the 17 sanitary sewer where it crosses the private property, 18 and the answer is the proposed houses do not have 19 separate and independently built -- independent building 20 sanitary sewers as required in 16.3D.60. It appears 21 that the sanitary sewer that is shown extending from a 22 manhole at the Intersection of Bayard Street and 23 Lexington Avenue down to underneath the northern 24 proposed house is a private service line. 25 It Is indicated that way in the legend on the Page 230 to 233 235 1 concern for the users of the sanitary system." Staff 2 expresses concern also about the grinder pump, the 3 pumping system. Staff also notes, quote, "An easement 4 should also be added for the service line where It 5 crosses the neighboring property." 6 Not only that, staff notes a maintenance agreement 7 of that line would also be needed presumably because the 8 issue of the quality of the line itself might be 9 compromised. A maintenance agreement of that line would 10 also be needed In the easement agreement. And the 11 previous owner realized that the three other property 12 owners will need — will need to be receptive to an 13 easement. Receptivity implies not only conversation and 14 notice but it implies some sort of meeting of the minds. 15 Exhibit Number 26. Now, this is staff 16 summarization of the joint staff opinion, and its 17 presented as "Our comments are as follows: Our 18 preference would be to provide new sanitary service out 19 to Lusk Avenue, the right-of-way eventually connecting 20 t0 the manhole at Lexington and Bayard. If you would 21 choose" — "If you would choose to tie Into the existing 22 private line, we would need proof of the ability to do 23 so, such as proof of an easement, agreement," etcetera. 24 Poor Mr. Oliveira was really subject to the due 25 diligence of a staff that we should commend. 9-14-16 236 Exhibit 27. 26, is it? No, 27. Here city staff confirms later in time, very recently indeed, that we requested the previous owner to install a new sewer. Elsewhere, city staff again expresses concern about securing an existing easement, and you've seen this before. I mentioned the proposed house does not have separate and independent building sanitary services as required in 16.3D.60. Exhibit 28. City staff told the previous owner that his attempt to split the lot and create single-family residences would need to remove references to private sewer connections. Indeed, the previous owner sought out legal counsel. He secured an attorney, and he wrote to the City that he will try to nail down the easement language that will satisfy your departments and the multiple property owners. He told the City what the City doubtless knew, what the record repeatedly records: "I believe the other property owners are going to be a huge challenge," unquote. Nobody told the property owners. Now, here's a curio, and I draw your attention to it in Exhibit 29A Astonishingly, scantily two months ago, city staff seems oblivious to the easement issues. City staff observes the question being raised now is if the owner has the right to use the service since It is 237 1 also used by adjacent properties. Staff parenthetically 2 says "legal question." In June — June 22nd of this 3 year, the staff basically having gone all the way down 4 the line with regard to issuing this permit, is 5 scratching its head internally about the legality of 6 what it is doing and also raising the question about 7 whether or not there's a — there's a right of access 8 use. It's as if they have amnesia. Or it's as if 9 they're not tracking or its as If something else is 10 going on. Who knows. 11 1 tum attention to fire and safety issues, because 12 this is even more of a curio. Public record disclosures 13 reveal that the City protected neighborhood interests by 14 requiring that fire truck turnaround be constructed at 15 the end of Lusk Avenue to assure that emergency vehicles 16 can safely turn around if called to the scene of 17 Mr. Oliveira's proposed two single-family dwellings. 18 CHAIRMAN BAKER: You're on Section 30 right now? 19 MR. ROSSI: Exhibit 30, yes, please. I am at it 20 now. You will see the opinion of Fire Marshal Brian 21 Greer, who earlier tonight gave us what he called a 22 little firefighter 101. I'm not a firefighter. 1 23 couldn't pass that measure, but look what he says in 24 Exhibit 30. It appears that it will be impossible to 25 provide a conforming tumaround to meet the requirements Page 234 to 237 Board or Adjustment 234 1 drawing and our maps and plats do not show any sewer in 1 2 this locaticn. 111 Lusk Ave -- 117 Lusk Avenue, 111 2 3 Lusk Avenue and both of the proposed homes will use this 3 4 sewer service. I believe that's — Is that -- Do you 4 5 want me to read more or— 5 6 MR. LAREW: Yeah. 6 7 MR. ROSSI: Two. The water service for the south 7 8 home runs two to three feet within the right-of-way and 8 9 may be hard to maintain without encroaching on the 9 10 neighboring property to the north. Point three. Will 10 11 the vacated row become part of the south lot so that it 11 12 meets the frontage requirements? Point four. Is this 12 13 right of — If this right-of-way is vacated, then the 13 14 property across the street will not be able to split and 14 15 do the same thing, if this matters. The trees Indicated 15 16 to be saved cannot all be saved with the necessity -- 16 17 necessary extension on pavement — of pavement on Lusk. 17 18 So Exhibit 25. Pursuant to what I said about 18 19 Exhibit 24, staff notes again and sounds the alar 19 20 stating the existing sanitary sewer runs under adjacent 20 21 property. Staff wonders about damage to private 21 22 property. Quote, "Is there language in the easement to 22 23 address repairs under that structure if needed?' Staff 23 24 also expresses concerns about the configuration, quote, 24 25 'The layout is obviously less than ideal and could be a 25 235 1 concern for the users of the sanitary system." Staff 2 expresses concern also about the grinder pump, the 3 pumping system. Staff also notes, quote, "An easement 4 should also be added for the service line where It 5 crosses the neighboring property." 6 Not only that, staff notes a maintenance agreement 7 of that line would also be needed presumably because the 8 issue of the quality of the line itself might be 9 compromised. A maintenance agreement of that line would 10 also be needed In the easement agreement. And the 11 previous owner realized that the three other property 12 owners will need — will need to be receptive to an 13 easement. Receptivity implies not only conversation and 14 notice but it implies some sort of meeting of the minds. 15 Exhibit Number 26. Now, this is staff 16 summarization of the joint staff opinion, and its 17 presented as "Our comments are as follows: Our 18 preference would be to provide new sanitary service out 19 to Lusk Avenue, the right-of-way eventually connecting 20 t0 the manhole at Lexington and Bayard. If you would 21 choose" — "If you would choose to tie Into the existing 22 private line, we would need proof of the ability to do 23 so, such as proof of an easement, agreement," etcetera. 24 Poor Mr. Oliveira was really subject to the due 25 diligence of a staff that we should commend. 9-14-16 236 Exhibit 27. 26, is it? No, 27. Here city staff confirms later in time, very recently indeed, that we requested the previous owner to install a new sewer. Elsewhere, city staff again expresses concern about securing an existing easement, and you've seen this before. I mentioned the proposed house does not have separate and independent building sanitary services as required in 16.3D.60. Exhibit 28. City staff told the previous owner that his attempt to split the lot and create single-family residences would need to remove references to private sewer connections. Indeed, the previous owner sought out legal counsel. He secured an attorney, and he wrote to the City that he will try to nail down the easement language that will satisfy your departments and the multiple property owners. He told the City what the City doubtless knew, what the record repeatedly records: "I believe the other property owners are going to be a huge challenge," unquote. Nobody told the property owners. Now, here's a curio, and I draw your attention to it in Exhibit 29A Astonishingly, scantily two months ago, city staff seems oblivious to the easement issues. City staff observes the question being raised now is if the owner has the right to use the service since It is 237 1 also used by adjacent properties. Staff parenthetically 2 says "legal question." In June — June 22nd of this 3 year, the staff basically having gone all the way down 4 the line with regard to issuing this permit, is 5 scratching its head internally about the legality of 6 what it is doing and also raising the question about 7 whether or not there's a — there's a right of access 8 use. It's as if they have amnesia. Or it's as if 9 they're not tracking or its as If something else is 10 going on. Who knows. 11 1 tum attention to fire and safety issues, because 12 this is even more of a curio. Public record disclosures 13 reveal that the City protected neighborhood interests by 14 requiring that fire truck turnaround be constructed at 15 the end of Lusk Avenue to assure that emergency vehicles 16 can safely turn around if called to the scene of 17 Mr. Oliveira's proposed two single-family dwellings. 18 CHAIRMAN BAKER: You're on Section 30 right now? 19 MR. ROSSI: Exhibit 30, yes, please. I am at it 20 now. You will see the opinion of Fire Marshal Brian 21 Greer, who earlier tonight gave us what he called a 22 little firefighter 101. I'm not a firefighter. 1 23 couldn't pass that measure, but look what he says in 24 Exhibit 30. It appears that it will be impossible to 25 provide a conforming tumaround to meet the requirements Page 234 to 237 Board of Adjustment 9-14-16 238 240 1 of the code. The proposed turnaround definitely would 1 its way into the public record. 2 not accommodate the ladder truck and quite possibly the 2 Fire and safety considerations, including the 3 fire engines. 3 turnaround, were supremely important to the City as 4 1 thought I heard the fire marshal this evening 4 applied to the previous owner's plan to put up two 5 tell us that really, what he was talking about was 5 modest homes, but they did not register as a factor at 6 something --the turnaround was related to convenience 6 all after Mr. Oliveira sold the property. Why? What 7 issues, but internally and in memoranda, or a memorandum 7 alchemy did city staff apply to make the old sewer pipe 8 that, you know, no one anticipated anybody else outside 8 concerns go away for the Cadsons? Or the turnaround 9 of the — of the community of the city staff reading, it 9 issue or the safety issues or the pumping Issues. 10 appears that it would be impossible to provide a 10 Tapping into a private sewer line was a real 11 conforming turnaround to meet the requirement of the 11 problem for Mr. Oliveira, as is the idea about 12 code. Now, if the requirement — requirement of the 12 encroaching on private property rights anyway. 13 code I do not think, even though I don't have a degree 13 Notifying and seeking permission from the vested 14 in firefighting 101 -- the requirement of the code must 14 property owners was a real problem for Mr. Oliveira but 15 speak to fire safety, surely. Not simply the capacity 15 not thereafter, and poor old Lusk Avenue is still the 16 of the convenience of a — of a truck. 16 way it ever was. None of the substantive 17 City staff ordered Mr. Oliveira to provide a 17 infrastructural issues of security, safety, easement and 18 turnaround. This was in previous Exhibit Number 18, 18 sewer has changed, but the city staff has created 19 because he was going to put up two single-family 19 numerous distinctions that don't amount to differences. 20 dwellings. Quote: "Lusk is currently 25 feet wide. 20 The City attempts now to normalize its errant 21 You will need to provide a turnaround." 21 application of the code by circling the wagons, adopting 22 MR. WEITZEL: I believe that's a misstatement. 1 22 a lose -lose attitude with regard to transparency, and by 23 think it was shown earlier that Lusk is 20 feet wide. 23 now claiming standard code development provisions are 24 MR. ROSSI: You recall Exhibit 17, staff said — e 24 aspirational. The City is attempting to maintain this 25 city staff quoted Mr. Boothroy as saying we will not 25 public position now, but let's take one more look at how 239 241 1 sign off on the plat until the issue of a turnaround has 1 the City in its own tongue describes the issue of 2 been resolved. The fire marshal considered it to be an 2 aspiration. 3 impossible turnaround to conform to the code. 3 Exhibit Number 33. A city staffer says, "I was 4 Exhibit 31. Access and turnaround questions remain 4 looking through the single-family dwelling development 5 oblique in the record. The fire chief reviewed, quote, 5 standards and noticed that the purpose statements for 6 'the access and turnaround proposed," and concluded 6 minimum lot requirements and building bulk standards are 7 seemingly that the impossibility of a conforming 7 uniform in that they seek to," and this is my 8 turnaround had been achieved. "We believe it will 8 editorialization, they don't seek to encourage, they 9 enable our apparatus to tum around if necessary." What 9 don't seek to inspire, no. They seek to, quote, "ensure 10 is "it"? What is "it"? Residents asked for a public 10 consistency and compatibility between new and existing 11 record. You got an issue this critical. Nothing 11 development and discourage new buildings that dominate 12 appears in the record to tell us what "it" is. The 12 existing buildings." 13 record does not reflect what this proposed turnaround 13 "And then I wondered," the city staffer continued, 14 constitutes. 14 "is it defensible to take down a home that conforms with 15 Exhibit 32. Somebody's talking about "it." Ain't 15 those purpose statements in order to build something 16 part of the public record that we discerned from what 16 that does not meet those purpose statements." Would we 17 the City gave us in the pile. The Clty obviously 17 allow construction of a mini arena in Walnut Ridge, for 18 engaged in discussions about safety turnaround. It's 18 instance, where large homes dominate the landscape and 19 not found in the record except for another oblique 19 where lots are so huge that there is more separation 20 reference by the property owner to the east, 20 between homes. And I'll leave it for you to also look 21 Mr. Klinefelter, who, by the way, used to work for the 21 at Article 33 and city staffs response to that 22 City, and Mr. Klinefelter expresses concern about a 22 question. Thank you. 23 turnaround proposal that goes east to his property. It 23 CHAIRMAN BAKER: Thank you. Questions? I'm going 24 would be beneficial to the community if we knew what it 24 to let them finish. 25 was, but It seems that it was important but didn't make 25 (An off-the-record discussion was held.) Page 238 to 241 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 242 1 CHAIRMAN BAKER: We're going to take like a three-minute break just to stretch, okay? (A brief recess was taken.) CHAIRMAN BAKER: Okay. Let me make an announcement Jim, I'm closing this meeting at eleven -thirty, so if you are not finished by then, we are going to pick it up again next Wednesday, and also there was a question about the timing. We have an attorney conflict for five -fifteen, so with staffs and board's permission, we would do Wednesday at six -thirty. But eleven -thirty. DR. SYROP: I've timed this before and it should take about 15 minutes. Okay? So first of all, my name's Craig Syrop and my wife, Anne Sadler, and I own the property two doors down from 101 Lusk Avenue. Our affidavit's been filed. I also want to thank the Board of Adjustment members both for your stamina and also for considering this issue that I feel is of great importance to us who live out in Manville Heights but also in Iowa City. We're seeking revocation o1 this permit for the following reasons, and I'll just sort of point them out. First of all, 101 Lusk is misclassified as an RS -5, no separate and independent sewer. This directly affects us and I'll go through this. okav? Permitting a 243 shared sewer without easement violates code purpose. New construction, which fails an extension nonconforming use, and the City ignored Its own preference of an available sewer option. Tonight, as a private citizen who owns a house downstream from the proposed Carlson sewage, and an association member, I'm seeking protection of our health, safety, and property by revocation of this building permit. As you will see, this request is based upon the misclassification and misinterpretation of RS -5. As you can see from your — from code, and I know that you all know this, and I'm not going to belabor it because Mr. Rossi went through some of this, but I do want to point out that the purpose is numerated. Its not a preamble and it says that, In fact, It will be implemented in a manner that promotes the health, safety, order, convenience, and prosperity of the general citizens. Now, this is not a preamble. Instead, ifs a specifically numerated section and it should be no less important, I hope, than any other numbered section such as setback requirements, for example. You'll also notice in the City s response to our appeal, this code section has been called aspirational. I'm sad to hear that a numerated purpose of the code is 244 1 now considered as nothing more than aspirational. 2 Instead, this statement purpose should empower employees 3 and others at their task to be performed in ways 4 consistent with the values of a community and directs 5 the performance of City employees, especially in times 6 when their actions are faced with ambiguity or a lack of 7 precedent. Approval of this permit has strayed from 8 that core guiding numerated code purpose. 9 The decisions tonight of the board, and I know this to from reading the memorandum that you all received as 11 well, you all have the ability, in fact, as board 12 members that your decision to serve the public interest, 13 meet the intent of the title, and be consistent with the 14 comprehensive plan of the City as amended. So 15 fortunately, you as the Board of Adjustment are 16 empowered to render decisions in that way. 17 So how do I feel that the code was, in fact, 18 misinterpreted. As you've seen before, and I'm going to 19 point out, we've — we've heard tonight about the 20 importance of definitions, okay? So — And 1 21 apologize, I lost my little laser pointer, but it has to 22 have a separate and independent building sanitary sewer 23 for every building. Now, I'm -- I'm confused because 24 it's hard for me to understand how independent and 25 separate is the same as shared, okay? And that's what 245 1 we have. 2 Tonight we will hear about the importance of 3 definitions, as I said, but first and foremost, the City 4 and the Cadsons, as current owners of 101, have 5 misclassified this on the basis of this. Quite simply, 6 the structure does not have a separate and independent 7 sanitary sewer line as required for RS -5. This is B detailed under the section, as we talked about. It was 9 cited previously by the HBK group, which, in fact, 10 because the City said they had no knowledge of that 11 private sewer line, we had to actually hire someone else 12 to video it and get an engineering opinion. 13 And you also heard from HBK that it's also used in 14 the Uniform Plumbing Code. So the report by HBK and the 15 City concerning this Issue just months before the 16 Carisons had it made clear that the sewer as proposed to 17 service the Carlson' new construction is shared and not 18 separate. Therefore, this property fails a critical and 19 basic requirement of RS -5 Code, which invalidates, then, 20 issuance of this permit. 21 Please note that in their response to our filing, 22 the City now attempts to dismiss that same statute, 23 which just months before, when the dividing line was, 24 you know, going from north -south to east -west, it clung 25 to during Mr. Oliveira's request. The rationale now Page 242 to 245 1 2 3 4 5 6 7 8 9 10 11 12 13 PC] 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 246 1 offered by the City is that multiple townhouse condominiums on one lotcan share a sewer. Thatwas their response. So besides wondering if and when two bad Ideas can make a good one, let me describe how their analogy is deeply Flawed, because this applies to my property, okay? Our shared sewer being discussed tonight involves multiple lots, not one lot, for houses originally constructed by different developers, not one developer. They're owned by unaligned people and persons who are without common walls, owner covenants, contracts, or specified contributions, which are fees designated which would cover contingencies for service and repair of such a system. It's a false equivalency. Now, I do want to point out, and Mr. Rossi mentioned this before, is when this email —when it was corresponded to the Prestige Properties from Mr. Oliveira, and again, you can say line going this way, that way; but the bottom line was that, in fad, they knew it was a shared system. Okay? And let me also point cut that when they talked about the options that will come up, they weren't talking about just the house furthest to the south going out to Lusk Avenue, connecting to the right-of-way. They were going to make the house that's going to use the same system go out to 247 Lusk through the right-of-way. So it wasn't that they were going to have them once let one go a different way and one the other. They were going to require both, and the one using this system to go out to Lusk and up the right-of-way. So Indeed, generally when they're asked about similar older sewers, the question was why did the City okay this. So, Mr. Havel March 11, 2015 -- and again, I admit this is for the Oliveira property, okay? But said that the proposed houses do not have separate and Independent building sanitary sewers. Houses. The one still going to use this system. Not a separate and independent building sewer. Now, they also sort of talked at that time that during this same period, and if it was going to connect to 101 would conned to a private line shared by adjacent owners. And In this one, Mr. Havel made it dear that the City's preference after discussions with the joint staff, that their preference would be that a new sanitary sewer service out to the front of the houses to Lusk Avenue for both houses, not just the one further to the south, okay? And if you would choose to be into the existing private line, we would need such proof of the ability to do so, such as a proof of easement. Now, let's be dear. The City wanted the same 248 1 sewer line, as I mentioned, not just for the south house 2 but also for the north house. Okay? Yet, for the 3 Cadsons' permit, the City now fails to require separate 4 sewer line per code or even address or evidence concern 5 for the easements. Perhaps as a premonition — 1 6 apologize. Going the wrong way. So perhaps as a 7 premonition, Terry Goerdt, who's not here tonight, on 8 the city staff, says to Mr. Zahasky, "Good morning, Al. 9 1 talked to Tim," and I'm — I'm actually sort of hoping 10 that this was a mistake. "He said he does want you to 11 build the sewer"— "the house and then have sewer 12 problems since the sewer runs through someone else's 13 property." Okay? Now, despite repeated correspondences 14 with Mr. Oliveira expressing clear concern for the 15 ramifications of a shared line and a lack of 16 easements - 17 (Inaudible) 18 DR. SYROP: I know, its — it should say "not" 19 and - 20 (Inaudible) 21 DR. SYROP: I know you wouldn't do that to us. I'm 22 just saying — So anyway, but again, maybe a 23 premonition of things to come. So despite repealed 24 correspondence with Mr. Oliveira expressing clear 25 concerns for the ramifications of a shared line and a 249 1 lack of easements, it is clear that the City now 2 inexplicably either ignores aspects of existing 3 engineering reports, stays silent, or avoid Issues 4 regarding the existence of the shared line location, and 5 the absence of easements. And I'll say this because 6 it's our property, and lack of easement. 7 So Instead, this permit focuses now and limits its 8 focus to fixture units and line capacity. So even If 9 the proposed structure was allowed to -- to connect to a 10 shared sewer in direct violation of the code that we 11 talked about, even if it was allowed to pass across and 12 beneath others' private property and existing 13 structures, like my driveway that I actually have a 14 shared easement with Anne Lahey about, it will be 15 utilizing a private sewer line whose condition was 16 questioned by outside, independent engineers that could 17 increase — that were concerned it can increase the risk 18 for adjoining neighbors. 19 I'm not going to go into — it's your Exhibit 20 Number 20. Its the Hart -Frederick report that was 21 obtained from Mr. Oliveira. I won't go through that 22 much. But in issuing this permit, the City ignores its 23 existing documents from an external, independent 24 engineer which expressed concerns about the line 25 condition that you heard before. It also suggests Page 246 to 249 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-14-16 250 1 relining the sewer to prevent problems remained unaddressed in this. But such an action about relining the sewer line that runs through my backyard would actually require almost certainly notifying the neighbors. Instead, this permit process accepted a sewer service report and utilized a narrow response only to fluid capacity provided by action sewer to the building. Ignore the engineer, just focus on the fluid capacity components of it Given the stuff flows downhill, I think its obvious who bears the downstream risk of an obstruction when 200 people all flush toilets within 30 minutes of game time. In addition, it's documented In the City records that Cadsons' own engineers, MMS — and this will be in your pile of papers In Exhibit 7 — raise still unanswered questions regarding the adequacy of the slope of the sewer once they move the house further south. Okay? So there were concerns by — raised by MMS as to the sewer gravity drainage once the house was sited further south, And that's from Glen Meisner. There's no evidence that these issues were further evaluated, addressed, prior to issuance of the permit In summary, there is no separate sewer as required under RS -5, and the risks posed by the existing sewer line condition in depth remain a concern. After the 251 City told Bill Ackerman they had no information about the private sewer, we hired HBK We confirmed that even if the proposed structure was allowed to be connected to our shared private sewer in violation of code, the course of waste would pass across and beneath our private property and existing structures. And you can see that on the poster that's been raised here. I'll spare you the video that is entitled "A Sewer Runs Through It" but, in fact, this comes through my — our backyard, dose to a very old walnut tree, very Gose to the back of our house, okay? Now, recently the City produced, about ten days ago, to us a city permit from 1927 that's been mentioned before. It was obtained from a time when a single entity owned all three properties. However, that relationship no longer exists. The City's permission to attach to a main does not obviate the need for easements to have been granted when those properties were split and separated and now for new construction. As you heard from Mr. Rossi, the concerns and risks and protection of adjacent property owners were previously recognized by the City during Mr. Oliveira's ownership. The City actions were consistent with the stated purpose of the code when the City set forth requirements for the pdor owner, to either connect a 252 1 new sewer line through the right-of-way or produce 2 evidence of easements. 3 Now, for the Cadsons, the same concerns to balance 4 adjacent property owners' Interest, because that's what 5 the purpose of the code's supposed to be, are 6 mysteriously lacking. To be dear, no such easements 7 exist in the abstracts of our — of those owners who 8 only recently discovered this information. This 9 knowledge was asymmetdcally held and applied by the 10 City, the builder, and the Carlsons. Either the 11 Cadsons or the City ever informed us of these issues 12 and the risk to our private property. Without any 13 exisfing easement, the issuance of this permit violates 14 Code purpose. It results in a direct adverse and 15 Increased burden placed upon adjacent property owners' 16 safety and finances. 17 Unfortunately, as you also heard, we were the last 18 to know this potential burden, so by their actions and 19 their — and for the new construction, this ungranted 20 easement and use would have occurred knowingly, 21 silently, without a permission, without easement and 22 without remediation of, for example, relining the sewer 23 until, as Mr. Goerdt's email suggests, a problem arose. 24 And then as Mr. Druivenga states, it gets dicey. Do 25 those actions and misinterpretation of code either make 253 1 for good neighbors or good government? 2 Finding revelation of this shared sewer with its 3 ungranled use against adjacent property owners and 4 because we feel our prosperity and our private property 5 interests were violated by issuance of this permit, all 6 neighbors whose property is crossed by this shared sewer 7 have filed notice of termination of easement denying any 8 real or perceived easement and terminating all access 9 across our private properties from 101 Lusk. And you 10 have that from Mr. Larew before, okay? 11 So Indeed — And I'm not going to go through this, 12 okay? By termination of any easements, real or 13 perceived, there's no legitimate rite of passage. Not 14 only is there no independent and separate sewer and the 15 sewer cross must pass to Lusk Avenue through right -- 16 public right-of-way or as previously recommended to 17 Mr. Oliveira. It's unfortunate that we were forced to 18 seek relief from the attempted forced use of our 19 property by the Carlsons, enabled by the City, while the 20 City kept silent and advantaged the private interests of 21 the Carlsons without consideration of our interests. 22 Any arguments that lack of easement is purely 23 accidental is debunked by the presence and documentation 24 within our abstracts of other legal easements which 25 actually precede that 1927 agreement between owners of Page 250 to 253 1 2 3 4 5 6 7 s 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adj 254 117 and 110, which provides for shared driveway under which the shared sewer now passes. Further, any attempt to invoke nonconforming language and grandfather in this shared sewer for new construction is invalid, as I read the code, for a couple reasons. So because, in fact, a nonconforming single-family use may be reestablished and structure re — reconstmcted, if that structure was destroyed or damaged by fire, ex -- explosion, act of God or a public enemy. This house was torn down on a voluntary basis by the Carlsons prior to issuance of a building permit. Further, the code talks about the nonconforming use disappears after use is discontinued for over a year, and it doesn't — it says "discontinued." It doesn't say "terminated." And as we know from Mr. Ackerman, Miss Aspel was out of the house for several years even before she died over a year ago. So in summary — and I know you're glad to hear this, okay? For multiple reasons the Carlsons' structure lacks any separate and independent sanitary sewer as required by Code. Therefore, its misclassified. Issuance of this permit forces ungranted easements across private property and encumbers them in their property to health, safety, and financial risk. That violates the code purpose. Therefore, I'm asking 255 that this permit be revoked. As you may have guessed, I'm no lawyer, but I think Johnny Cochran would have summarized it this way: If the sewer won't fit, you must not permit Thank you. CHAIRMAN BAKER: Any quick questions from the board? MR. CHRISCHILLES: I do. Go ahead. MS. SOGLIN: Can you go to your first slide, please, Mr. — Dr. Syrop? DR. SYROP: Sure. Yeah. MS. SOGLIN: So you're saying this is misclassified as RS -5. RS -5 is a zoning — DR. SYROP: Right. MS.'SOGLIN: — category. You're not using the term which — There was a term used earlier, was it misclassified as a single-family home. Are you -- You're saying you're making a different distinction here. DR. SYROP: So I -- I'm — it's — it can be -- My understanding is to be RS -5 single-family home it has to have a separate, independent sewer, and this fails to have that and, therefore, it shouldn't be classified as such. CHAIRMAN BAKER: That the house is not -- It's the property that's classified. nenl 9-14-16 256 1 DR. SYROP: Oh, thank you. 2 MS. SOGLIN: And — but — 3 MR. BOOTHROY: It's not in the zoning title. The 4 sewer code is not in the zoning title. 5 DR. SYROP: But it's — but it's in the — it's — 6 When you go to the city website in terms of RS -5 — 7 MR. BOOTHROY: It's in the city code, yes. 8 DR. SYROP: Oh, yeah. Yeah. 9 MR. WEITZEL: But I thought part of the board of — 10 part of this was, in fact, that our regress was when 11 there was either misclassification or misapplication of 12 the code. 13 MR. LAREW: The misclassification discussion that 14 we're having is that is the property properly classified 15 as a single-family dwelling. And the definition of a 16 single-family dwelling, no matter where we take it from, 17 includes the fact that it has a sanitary system, that it 18 has a sewer. 19 MS. SOGLIN: I just wanted to make sure we had to 20 make the distinction between a single-family home and 21 what RS -5 means, because they are different. 22 MR. LAREW. RS -5 is a zone that has low density 23 single-family dwellings. 24 MR. WEITZEL: And I want to make it clear, too, 25 that you're asking us to look at the Title 16 as well as 257 1 Title 14. 2 DR. SYROP: Title 16 being the purpose piece or — 3 MR. WEITZEL: You cited the sewer ordinance under 4 Title 16. 5 DR. SYROP: Yeah, building service and connections. 6 MS. SOGLIN: But if you extend what you're saying 7 right now currently, then, if — this concept of a 8 single-family home must have its own sewer, and 9 currently either your home or Mrs. Lahey's is not a 10 single-family home. 11 DR. SYROP: Well, there's actually — so here's — 12 here's a distinction, okay? We — Our houses already 13 exist. There's no house on this lot now. That lot — 14 That house was tom down. That use was extinguished, 15 okay? Our house has an existing sewer. It's already 16 shared and probably shouldn't be — I mean if — if the 17 house was tom down, I would expect that probably 18 this — the City would say you got to build a new sewer 19 out through the right-of-way and conned to the main, 20 have a separate and independent sewer. 21 MS. SOGLIN: And with these termination of 22 easements, are you terminating one or the others use at 23 this time? 24 DR. SYROP: So we -- 25 MS. SOGLIN: The two houses being connected? Page 254 to 257 Board of Adjustment 9.14-16 258 260 1 DR. SYROP: So actually, Ms. Lahey and I have 1 MS. WALZ: So moved by Chrischllles -- 2 actually discussed sort of what we — because at least 2 CHAIRMAN BAKER: Moved and seconded that we adjourn 3 nowwe have the opportunity to discuss how we would deal 3 this meeting to reconvene next Wednesday at — the 21st 4 with that easement. 1 haven't terminated her use, okay? 4 of September at 6:30 p.m. 5 The — Because actually, she's terminated the use of 5 MS. WALZ: Right. And what I would suggest is that 6 the Carlsons. Okay. I'm terminating the use of the 6 there were some materials that the appellants discussed, 7 Cadsons as well, but we at least have -- are having a 7 your statement and any other statements, that if you 8 discussion about if —just like our driveway is shared. 8 send those to me. I will relay those to the board. It's 9 When that driveway went bad, what did we do? We 9 always Important when we defer that you be aware that 10 met ahead of time and said, "How are we going to pay for 30 you are not to discuss with each other, with staff, with 11 it? How many bids are we going to get?" Same thing in 11 the appellants, with anyone, with the press. 12 terms of painting the shared garage. We figured out 12 UNIDENTIFIED SPEAKER: Absolutely. 13 what it was and paid for it. When this permit was 13 CHAIRMAN BAKER: And i also want to thank everybody 14 permitted, that discussion was gone. Relining the sewer 14 here for their patience and civility, and I look forward 15 or coming to us and saying the sewer needs to be relined 15 to seeing you next week. Did we move on that 16 would have opened up that discussion. And we're at 16 adjournment? 17 risk. 17 UNIDENTIFIED SPEAKER: No. 18 MR. WEITZEL: Could you or Jim address what you 18 CHAIRMAN BAKER: Just voted? 19 consider a nonconforming use to be? 19 MS. WALZ: I think that was basically — 20 MR. LAREW: It would depend an context, but to some 20 CHAIRMAN BAKER: Adjourned. 21 extent a nonconforming use would be something that the 21 MS. WALZ: -- adjournment, so we're adjourning at 22 existing zoning ordinance or particular zone didn't 22 eleven -thirty. 23 recognize as a normal use, but it was allowed to come in 23 (Meeting adjourned at 11:30 p.m.) 24 either because it was preexisting or it was 24 25 nonconforming, somehow or other got there with some 25 259 261 1 permission granted, special use, or variance. I would 1 CERTIFICATE 2 call that a nonconforming — 2 I, Julie M. Kluber, Certified Shorthand Reporter in 3 MR. WEITZEL: How does that relate to Titie 16, If 3 the State of Iowa, do hereby certify that I was 4 you will? 4 authorized to and did transcribe in shorthand the above 5 MR. LAREW: I don't have an opinion about that 5 and foregoing proceedings from a digital audio 6 tonight. 6 recording; that said shorthand notes were reduced to 7 DR. SYROP: So I guess if you're asking if-- if 7 computer-aided transcription under my direction and 8 somebody wanted to tie onto a separate and — I mean 8 supervision; that the foregoing 260 pages are a full and 9 a — a shared and dependent sewer system, I would 9 correct transcript of the shorthand notes so taken, to 10 imagine by that they would have to actually go and seek 10 the best of my ability under the situation presented; 11 a variance somehow. I'm not an expert in that 11 that I am a disinterested person to the said action. 12 MR. WEITZEL: Okay. 12 IN WITNESS WHEREOF, I have hereupon set my hand 13 CHAIRMAN BAKER: Thank you very much. Jim, thank 13 this 29th day of October, 2016.14 14 you. 15 15 MR. LAREW: We'll have no -- We have other 16 16 speakers, but we know the time limit and we're done for Certified Shorthand Reporter 17 the night. 17 18 CHAIRMAN BAKER: We're going to call it a night. 18 19 We're going to adjourn. Is there specific language 1 19 20 have to use, Sarah, to adjourn and meet again Wednesday, 20 21 the 21st, at 6:30 p.m.? 21 22 UNIDENTIFIED SPEAKER: (Inaudible) a motion and 22 23 second. 23 24 MR. CHRISCHILLES: I so move. 24 25 MR. WEITZEL: Second. 25 Page 258 to 261 MINUTES BOARD OF ADJUSTMENT SEPTEMBER 21, 2016 — 6:30 PM EMMA HARVAT HALL, CITY HALL PRELIMINARY The transcript of the digital audio recording of the hearing by Julie M. Kluber, SCR, RMR, which is attached shall serve as the minutes for the meeting. Board of Adjustment 9-21-16 ORIGINAL CONTINUED MEETING OF THE BOARD OF ADJUSTMENT SEPTEMBER 21, 2016 6:30 p.m. to 11:30 p.m. EMMA HARVAT HALL, CITY HALL IOWA CITY, IOWA Members present: Larry Baker, Gene Chrischilles, Connie Goeb, Becky Soglin, Tim Weitzel Members absent: Staff Present: Doug Boothroy, Susan Dulek, Tim Hennes, Roger Jensen, Sarah Walz, John Yapp Others Present: Mark Parmenter, James Larew, Frank Weirich, Dina Janzen, Patricia Koza, Catherine Erickson, Chris Rossi, Joanne Madsen, Anne Lahey, Karin Southard, Dennis Befeler, Brian Fagan, Reed Carlson, Sandy Carlson, Gary Klinefelter The following is a transcript of the meeting held at the above date, time, and place and was transcribed from the digital audio recording made at such time. Julie M. Kluber, CSR, RMR 3515 Lochwood Drive NE Cedar Rapids, IA 52402 319-286-1717 866-412-4766 Page 1 to 1 Board of Adjustment 9-21-16 24 meeting for a decision to be announced at a subsequent 24 I'm hopeful, one never knows from this side of the — of 25 meeting in very short order. You are not going to get a 25 the bench what, in fact, is helpful; even when we try to Page 2 to 5 2 4 1 PROCEEDINGS 1 decision from this board the tonight at the end of all 2 CHAIRMAN BAKER: I'd like to call this meeting to 2 the discussion. As you know, we've had to absorb a lot 3 order. This is a continuation of an appeal -- a 3 of Information, and I think the board deserves the 4 discussion regarding the appeal of a decision by 4 chance to sit and put together their thoughts to explain 5 Development Services to issue a building permit for 5 their decision and then we will have the meeting just 6 residential use on property located at a low density 6 for that, no public Input. That will all be discussed 7 single-family RS -5 zone at 101 Lusk Avenue alleging an 7 subsequently. 8 error in the classification of the property as a 8 So, Jim, we're going to tum it over to you first, 9 residential use, wrongful approval of a site plan, and 9 but with those constraints in mind. 10 other zoning code applications. 10 MR. LAREW: Thank you, Mr. Chairman. Let me tell 11 Before we start tonight, I'd like to lay out some 11 you where (inaudible). Thank you. I thought I would 12 procedural guidelines for what you can expect tonight. 12 alert the board to where we think, at least as the 13 And I do this because I want to be fair to the 13 appellants, at least the part of the presentation where 14 appellant, the applicant, the staff, and I also want to 14 we have organized ourselves with the goal of being as 15 be fair to the board itself, and for that reason, I'm 15 efficient as we can be in the presentation of evidence, 16 setting a four-hour time limit on the meeting tonight. 16 will — will go today, knowing that members of the 17 If at ten o'clock it looks like we might be able to wrap 17 public may have something in addition to say to our own. 18 it up with a little extra time past ten -thirty, we can 18 1 will list a number of speakers who will be speaking 19 certainly do that. 19 and give you a — a brief sense of the core of their - 20 But if necessary, to be fair to everyone, because 20 of their message. 21 we've given substantial time to staff and will have 21 One, first — the first speaker will be Frank 22 substantial time for the appellant, we need to have 22 Weirich, who Is a University of Iowa professor of 23 substantial time for the applicant and the public in 23 engineering. He's not officially a part of our group 24 both sides. To be fair, we would have to reconvene at 24 but lives In Manville Heights and has studied issues 25 another meeting at a date convenient for everyone 25 that related to sensitive slopes ordinance that appear 3 6 1 involved, but it would be only for the purpose of i to us to be very apropos. 2 finishing this discussion. So we want to have the 2 Dina Janzen is a nearby homeowner with her husband 3 continuation of Mr. Larew tonight, then we'll have some 3 and family and is going to speak on safety Issues from 4 time for members of the public who support the appellant 4 her perspective. Catherine Erickson and her husband 5 talk, and then we'll turn it over to the applicant, and 5 live nearby and are actually two of the named appellants 6 then we'll have time for the applicant's supporters to 6 and will describe their concerns as parents of young 7 talk with some guidelines which IT set out then. And 7 children in the neighborhood. Joanne Madsen is a 8 then the applicant, the appellant, and the staff will 8 resident of Manville Heights and has been an active 9 have the opportunity to respond to each other's 9 member of our group in terms of thinking about our 10 presentation shortly. 10 appeal and has reviewed carefully past decisions of this 11 I'd like to keep those as brief as possible, but, 11 board and -- and would like to say a thing or two about 12 for example, the staff can respond to Mr. Larew, the 12 some findings that she has. 13 applicant can respond to Mr. Larew, vice versa. But we 13 Trish Koza will be speaking, as will -- she may be 14 give all three sides a chance to respond to the others. 14 there at the same time that Dina Janzen is speaking, and 15 At the end of that, the board will do whatever follow-up 15 she's an immediate neighbor right across the street and 16 questions it wants with the three sides. The end of 16 also is the treasurer of our — of our group. Anne 17 that, we'll have a brief discussion from the attomey 17 Lahey is an assistant Johnson County attorney who owns a 18 again about the legal parameters that we're governed by, 18 property immediately to the north of the Cedsons' 19 and if we can do all that and be finished by ten -thirty, 19 property and will share some thoughts that she has. And 20 1 will be both pleased and surprised. Sc we will set a 20 Karin Southard is the president of the neighborhood 21 date to finish this discussion. 21 association that makes this appeal and has some -- some 22 That being done, at the end of that, at the end of 22 thoughts to share. 23 all sides and all input, we will also adjourn the 23 Two speakers who won't be speaking but — materials 24 meeting for a decision to be announced at a subsequent 24 I'm hopeful, one never knows from this side of the — of 25 meeting in very short order. You are not going to get a 25 the bench what, in fact, is helpful; even when we try to Page 2 to 5 1 2 3 4 5 6 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 6 be helpful, I'm not sure that we are. We presented both 1 of the exhibits and numbered them in hopes that that 2 would be of help, and I had two documents that I wanted 3 to supplement before we went, and I'll describe them and 4 with Mr. Parmenters permission approach the members and 5 hand them to them. 6 I'll tell you what the first one is, or if you'd 7 like to pass them out. I'll tell you and I'll have — 8 share them with counsel. The — the first is a brief 9 amendment to the HBK study, and it— Because of the 30 calendar of events, they were here and stayed late along it with the rest of us after presenting their report, but 12 because of the — because of the scheduling of tonight's 13 meeting couldn't come, and there — we asked them to 14 answer a question. Can you — We might need the lights 15 down because I'm going to share a couple of these 16 documents with the board. 17 You will see that this is one of the options in the 18 initial report. It was the conclusion of the HBK that 19 amendment D to the International Fire Code was 20 implicated. The City of Iowa City has adopted 21 International Fire Code and Exhibit D, attachment D, to 22 the International Fire Code has been expressly 23 incorporated by reference. And to the extent that it 24 was helpful to the board, the last page of the exhibit 25 7 we just put in, the goal was that you could simply put 1 that in under Exhibit 1 if it was helpful to you. 2 But this is language -- The last page is the 3 express language from the code saying that the 4 appendix -- they call it an appendix, a list of 5 appendix -- and they expressly incorporated the Appendix 6 D, and D is the one that says that the Intemational 7 Fire Code provisions having to do with turnarounds apply 8 where you have a street that is longer than 150 feet. 9 Lusk Avenue, they took a measure and they found it to be 10 155 and -- and a half feet long, and so they -- their 11 opinion was that this was implicated. 12 Well, what does that matter? Well, to them you go 13 to the fire code and it tells you what kind of 14 turnarounds you need so that fire trucks can turn 15 around, and they were using by example in options 1 and 16 2 the two kinds of turnabouts that might be used. These 17 are not made up by HBK; these are required by -- by law 18 as examples. Two of them, one was an anvil -shaped and 19 the other was semicircled, but the -- the question that 20 we had since it was just by example, what if, in fact, 21 the Carlsons, as the persons wishing to build the 22 building on the westerly side of the street, what if, in 23 fact, they were the ones that were to absorb this -- 24 this requirement as opposed to assuming that a 25 9-21-10 8 neighbor's land would be condemned in order to convenience the Carlsons. So you have to scale a drawing and we had option 1 and option 2, which externalized the burden of this ordinance provision and requirement to the neighbors to the east In this case, if the semicircular drive is there on the City's side, what you're going to do is be taking out a series of mature oak trees. You would have to extend Lusk Avenue, we assume at a considerable expense, but it would also and importantly encroach upon the very design of the building that the Carlsons have — have proposed. The second one where you have the anvil shape, which is called Exhibit -- or option Number 4, but if you took the anvil approach for the turnaround and again assume that the Carlsons and not a neighbor would have to absorb the space and commitment to it, you can see how — how that lies. At the very least — at the very least, it would not allow for the size of the building that when you take setback requirements and others. We believe that on that requirement alone, the building would not be allowed. And when we talk about an objection to the site plan, we understand the code says they're not required for a site plan, but once a site plan is or000sed. it 9 ought to be accurate. It ought to take into account required provisions of the code and it ought to be thought through. How do we accommodate the proposed project with the requirements of the —of the code, and we don't see exemptions in the language from the fire code as to can an owner simply not — not comply with this, and the City decide if it's longer than 150 feet, can they simply not comply with fire code. We haven't heard any reason why that should be the case, and our— and our argument is that any kind of proposal ought to take this into account. So what you have in the appellants' Exhibit 1A are the two separate options 3 and 4 that we've just discussed. The next page is the language right out of the Appendix D to the International Fire Code, and then the last page is that part of the Iowa City Code of Ordinances which expressly adopts Appendix D as a part of the city Cade of Ordinances. Those were excerpted and — and pieces of those were included in the initial report, but I thought you might want to see what the original language was in the original code provisions that are a part of Iowa City's law. So Exhibit 1A is one that we would propose and if— if HBK were here, they would be certainly willing to provide that, but they simply couldn't because of a Page 6 to 9 9aerd0f Adlustment 9-21-16 10 1 1 conflict. 2 The second document that I wanted to add was a 3 demonstrative exhibit. Dennis Befeler, who is — is the 4 person who Is so competently doing what I cannot do, 5 which is show slides well, and he had in a script form, 6 In a narrative form — no doubt you may recall, members 7 of the board, that we believe that when a use is 8 disputed in — in a proposal for a building that as to 9 what is the primary use versus an accessory use or is it 10 a recognized use at all, that the city code requires in 11 certain language that a — a use analysis be performed. 12 And we had two witnesses. Dennis was one, and a 13 second also gave their analysis and their professional 14 opinion as to why, in fact, a residential use was 15 accessory to a principal use which we have called 16 recreational or entertainment, and we don't think It 17 comes into the category of primary, a residential use 18 for entertainment or recreation. That is something else 19 by intent and by design. And then we have also argued 20 that the code itself, it's not a simply binary decision, 21 is it residential, is it commercial. 22 In fact, the code — it could have done a number of 23 things. The city council could have said, you know, 24 Board of Adjustment or city staff, if you're not sure 25 what it is, just get as dose as you can and move 11 1 forward. It's quite the opposite. It says if you can't 2 find a use that's clearly recognized by the code, you 3 can't do it. It's not permitted. And then a person who 4 wants to go forward with a use that is not permitted, 5 they have the option of politically working with the 6 counsel to amend the code. 7 So what we did in this instance was to basically 8 square up. We had decisions in Mr. Befeler's initial 9 narrative report and a copy was provided which showed 10 his — at least in his own opinion what— and the 11 reasons for it, why the breakout was the way that It was 12 and assigned to what use. But then what in this case 13 went to the actual language of the code, which is what 14 we believe the City must do and must show work that it 15 has done so, and — and we — we said in our opening 16 arguments that in all the pages of documents that we 17 went through, there was no such analysis performed and 18 that the kind of conclusory analysis that the City 19 offered was not the kind of analysis that —that is 20 required. 21 So those are the two exhibits. They're listed 22 sub — sub A in each instance because they're intended 23 to amend a preexisting exhibit. We'll have a couple 24 more exhibits as we go forward tonight, but they'll be 25 numbered such that if it's useful to you and you want to 12 1 put it into your exhibit book, it will fit right in and 2 it's in a sequential order and — and all the rest. But 3 for now, what I'd like to do is have our first 4 speaker -- 5 CHAIRMAN BAKER: Jim? 6 MR. LAREW: Yes. 7 CHAIRMAN BAKER: I'm sorry, but I have to ask you a 8 specific question here. 9 MR. LAREW: Yes, please. 10 CHAIRMAN BAKER: You used the word "recreational." 11 MR. LAREW: Yes. 12 CHAIRMAN BAKER: And in the zoning code there is no 13 definition of recreational. I looked through. I could 14 not find a definition for recreational use. That's not 15 my question. 16 MR. LAREW: Yeah, 17 CHAIRMAN BAKER: My question is how can you 18 reconcile what the code does say? Lel me quote from the 19 code. The principal use, the primary use of land or a 20 structure Is distinguished from an accessory use. For 21 example, a dwelling is a principal use on a lot in a 22 residential zone while a garage or pool is an accessory 23 use. That's the definition of principal use. The 24 definition of dwelling, a building, which is referred to 25 in the first definition. Dwelling, a building wholly or 13 1 partially used or intended to be used for residential 2 occupancy. It -- The language is circular, but it 3 seems fairly clear that they only have to establish 4 partial use to be defined as a residential use. 5 MR. LAREW. I don'tthink that's true. I don't 6 think you can escape the requirement and the intent of 7 the code to assume that for a residence or something 8 that claims to be a dwelling that its principal use must 9 be used as a — a dwelling or we could have —we could 10 have gas stations put in the middle of a residential 11 area with a bunk bed in back and say we've got —we've 12 got a kitchen facility, we've got a couple bunk beds. 13 That — that complies with that language. It may look 14 like a gas station to the rest of you, but to us it's 15 home. I think we have to use some common sense. 16 Second, I don't think that the definitions that you 17 use go quite far enough, and this is a part of our other 18 argument, that it is a part of the definition of a 19 dwelling. It --it lists a series of things that you 20 must have and that's in the International Residence 21 Code, the IRC. It also indudes sanitation, and so 22 we're going back to definition. One Is use. What is 23 the primary use; and two, does it have all the elements 24 that you must have for a residential structure, and if 25 it doesn't, then it doesn't — it doesn't comply either. Page 10 to 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9.21-16 14 1 16 and features requirement of the Iowa City Zoning Code. They either did not consider those or they don't address them, and they weren't addressed by the property owner either. My second point, and I'll be going through this quickly. The property owner erred by not complying with the requirement to evaluate the same zoning codes prior to or as part of their application for a building pennit. Third, based on a review of the relevant slope and woodland grove requirements, a swath of land consisting of a minimum of a 50 -foot buffer on the northerly side of the Carlsons' south property line shared with the CRANDIC railway right-of-way must be established and nothing should be built upon it. The bottom line is there should be a 50 -foot buffer on that property adjacent to the CRANDIC right-of-way. That's where I'm going with my comments. UNIDENTIFIED SPEAKER: Is that on the south side? MR. WEIRICH: Its on the — on the railway side. UNIDENTIFIED SPEAKER: South side. MR. WEIRICH: That's what I'm going to be trying to say. A little background to the context of this whole discussion. My name is Frank Weirich. I reside at Park Road and I'm in the general Manville area. I'm not a member of the homeowners group that has brought this So whether it's recreation, we've called it entertainment. Why we've called it entertainment, because we -- we look at the University of Iowa football field as being — Kinnick Stadium as being an entertainment facility. It might be recreation for some, entertainment to others. This purports to replicate a building that is an entertainment facility and purports to invite people for entertainment purposes. CHAIRMAN BAKER: Okay. I just wanted to get your succinct response to that because it will come back in later discussions with the staff. I have some questions for them as well on this same issue. Now, before you introduce your next speaker, just from the summary you gave of what you intend to present, I don't think we're going to make the ten -thirty time limit, but the more -- and I certainly want to hear from all those people, assuming they bring factual slants to this issue which we have to deal with, but it is going to allow me to grant the staff and applicant much more time as well. I just want to let you know that — MR. LAREW: I think that they should have as much time as they want, and I think they have so far had plenty. CHAIRMAN BAKER: I iust want evervbodv to have the 15 same time if they want it. MR. LAREW: Well, 1— CHAIRMAN BAKER: So use what you can, but I just want to let — Maybe I'm just letting the public know that this will affect possible future discussion as well. MR. LAREW: The — the first speaker that we have is Frank Weirich, who will introduce himself and has, I know, an exhibit to share with you. (An off-the-record discussion was held.) MR. WEIRICH: Good evening. I — I do not have slides. What I do have are some handouts which I think will become exhibits, and so -- I don't know who they go to. There are multiple copies there. In the interest of expediency I will try to be very efficient with my comments. I apologize. This is not a slide presentafion, so you're going to be just observers to the process, but the board has it. Okay, let me first begin by — try to provide a very quick summary of where I'm going with this, okay. I have — Sinking fast here. Okay. Okay, if I can scale. Okay, it's my opinion that the City erred in not requiring specific slope and woodland grove requirements that are specifically induded in the sensitive lands 1 2 3 4 5 6 7 s 9 10 11 RIA 13 001 15 16 17 i8 19 20 21 22 23 24 25 17 1 action, and I'm acting only as a concerned citizen and a 2 member of the community. I attended the first half of 3 the meeting last week and also reviewed the materials 4 that were put online. Following the meeting last week, 5 this past weekend I visited the general area of the site 6 and specifically looked over the situation and visited 7 the site again yesterday. 8 While I'm a resident of the area, I am also a 9 faculty member of the Department of Earth and 10 Environmental Sciences, a research engineer in the 11 Hydraulics Institute, and I hold a position In the 12 Department of Civil and Environmental Engineering here 13 at the University. My specialties encompass hydrology 14 and geomorphology, and I do research, teach, and on 15 occasion have advised cities and communities on issues 16 such as drainage, stormwater, slope stability, land 17 slides, and related environmental issues. On occasion 18 in the past as a public service, uncompensated, I have 19 also worked with the City of Iowa City to help address 20 those kinds of issues. 21 On that basis I'm coming to you today to provide 22 hopefully some use input, and so if we go through the 23 documents that I've assembled for you, what I'm 24 specifically working with is the part of the zoning code 25 that relates to sensitive lands and features. I have an Page 14 to 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 FFy 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 Board of Adjustment 18 entire copy of that section here to give you as well, if 1 you wish. What I'm going through are exempt pages from 2 that, but I could give a complete set of that entire 3 section. It's 22 pages and I have that as well. 1 4 could give it to the clerk, okay. 5 So where are we going with this? First of all, the 6 question is does sensitive lands and features 7 requirements apply to this situation. There are a 8 number of exemptions in the code that say you don't have 9 to follow these rules. I boxed out for you the third 10 exemption. The third exemption specifically directed at 11 single-family homes and two-family residential use, and 12 it says those places are not required to follow what I'm 13 about to say, except for the following provision: If 14 the property doesn't exceed 20,000 feet -- 20,000 square 15 feet In area, no problem. And provided there is no 16 encroachment by said activities into a jurisdictional 17 wetland, a designated sensitive area conservation tract, 18 or protected sensitive areas. 19 It will be my contention that that is the case 20 here, so this exemption should not apply. That, in 21 fact, even though this is a single-family dwelling, 22 because of that rule, these rules I'm about to go 23 through do apply to this piece of property. There are 24 specific pieces of the code that deal with specific 25 19 issues. The two we're going to deal with tonight are regulated slopes and the rules regarding wooded areas. Regulated slopes are anything over 18 percent. They are then broken down into subsets, which we'll talk about In a moment, so if you're on the — the next page -- sorry -- page 311 in the code, that's what I'm referring to at this point. And the two things, again, are regulated slopes are an issue that come under the sensitive ordinance, and wooded areas come under the -- and wooded areas are broken down Into two categories. Anything over two acres In size that constitutes a woodland, and IT show you the definition in a moment, and groves of trees. They're both covered by this. So slopes and wooded areas are part of this dynamic. If you go to the next page, I'm focusing on regulated slopes, okay. Regulated slopes are defined in a set of categories which is common in studying landslide and slope stability issues. The two ones that are relevant here are section -- are Number 3 and 4. A critical slope, Number 3, is a slope of 25 to 40 percent. A protected slope is any slope over 40 percent or steeper. Okay. If you have such slopes, particularly protected slopes, you are required to provide a buffer, and I boxed out what the buffer 9-21-16 20 requirement is. A buffer will be required around all protected slopes. Two feet of buffer per foot of vertical is the requirement. No development activity, including removal of trees and other vegetation, will be allowed within the buffer zone. Okay. If you go to the next page in this sequence, it is simply a map, GIS map, of the property from the City site, and what I have marked out on it is not the property alone but the slope below the property toward the railroad. I went out on Sunday and I was out again yesterday, and I measured those slopes and I do this for a living, okay? While the property itself does not have a sensitive slope -- the slope on the property worse case is 10 percent, but the property next to it, immediately adjacent downslope is, in fact, a combination of a protected slope and a critical slope. The lowest part of the slope, the part where the railway runs, parts of that slope are 100 percent. They're 45 -degree slopes, okay? And then just above it, it shallows out. You combine those, you have at least critical slopes and you have protected slopes. When you have those kinds of situations, there's a great deal of concern with stability. The vegetation is an inherent part of the slope stabilization process. There's also great concem with drainage. 21 1 1 heard in the last — the first — the meeting 2 last week, the first half, that the City was explaining 3 that any drainage issues would be handled by the City 4 after the fact. I disagree with that. I've been 5 involved in situations in the city. You don't solve 6 drainage after the fact, you solve it before the fad. 7 You have to be proactive. Now, while the zoning code a here specifically deals with the drainage, its still a 9 question, and the real problem is you're dumping water 30 onto critical and protected slopes. That water goes in 11 the hill. You — If you want to just throw riprap on 12 that surface, that's not going to solve your problem 13 because you're going to load the slope. 14 If that slope when it's overloaded starts to fall, 15 where's it going? It's going down onto the railway 16 tracks, okay, and those slopes right at the track are 17 literally at 100 percent. They're oversteepened slopes. 18 Those slopes are held together by the vegetation. So if 19 you're going to pump water that way, you have to look at 20 the consequences of what that will be in terms of slope 21 stability. I literally lectured to a class of students 22 yesterday about slope stability and trees and the role 23 of vegetation in stabilizing slopes, so this is not a 24 minor question. It's not a question just of protecting 25 trees or habitat. It comes down to safety issues about Page 18 to 21 Board of Adjustment 9-21-16 24 conversation. I'm reading the second bullet. I've highlighted It. Its — It looks like this, okay. It's one page before a map. "When other environmentally regulated sensitive features are present in combination with a regulated woodland, the regulations related to all the sensitive areas contained on the property will be considered with the most stringent regulations applying." The woodland and the slopes go together. Either one could trigger requirements. The woodland supersedes because it requires at least a 50 -foot buffer. If you look at the map that I've provided next, It's just a Google map. What I've done is use some software, Google Pro. Its sort of conventional. It's this one here, okay. What it kind of looks like. I simply took the area along the railway between the railway and the properties along the — the edge of Manville. There's at least three acres of wooded area there, 50 percent coverage, lots of trees, and right below the Lusk property downslope is, in fact, a grove which is part of the overall woodland landscape situation. The bottom line Is that requires a 50 -foot buffer to be placed at the minimum from the edge of the property inland, and that occupies something on the 25 order of 8,000 square feel of the lot I looked at the entire bluff along there. Several comments. One, the original house which was on the property complied with this requirement. Even though it was built in 1917, people knew not to build houses near the edge of the bluff. In looking at the adjacent homes, I didn't measure every one, but in a cursory examination, virtually every home complies with the buffer requirement to that slope. Slopes don't read property boundaries. Slopes are natural situations. They find their own method of operation. The entire edge of that bluff is a boundary to -- requiring a buffer zone above it onto the land, okay. So there's a concern with that. Final comment on the page and then I'm going to quickly go through my conclusions, which I tried to summarize in the last page, so the second -to -the -last page goes back to the very first page. It talks about applicability, and it says that properties containing any of the following environmentally sensitive features, and obviously the slopes and the woodlands are part of it, okay, are — are part of this discussion. Then it goes on to say, "The sensitive areas inventory map may be used as a tool to determine the location of potentially environmentally sensitive areas," okay. Page 22 to 25 22 1 the stability of that slope, both downslope and actually 1 2 upslope consequences. 2 3 Okay. 3 4 UNIDENTIFIED SPEAKER: Shall I raise it back up? 4 5 MR. WEIRICH: Why not Okay, if you go to the next 5 6 page, 1 go on to the question of wooded areas. There 6 7 are an entire set of requirements for environmental 7 8 evaluation of sensitive areas. You have to do a 8 9 development plan. There are steps in the development 9 10 plan. All of that is kicked in if you're dealing with 10 11 wooded slopes or wooded situations. And for wooded 11 12 situations — I'm not going to go through all the 12 13 development requirements and review process, which In 13 14 reviewing all the materials, I saw no such evaluations 14 15 had been done either by the City or by the property 15 16 owner to look at that question and determine what could 16 17 be done or what the situation even was. 17 18 If you look at the bottom of that page, and again, 18 19 I'm sort of on the wooded area one, you'll note it 19 20 requires a 50 -foot buffer for a wooded area, and that 20 21 has to be 50 feet outward from the trunks of the trees 21 22 that have to be protected or preserved. This buffer is 22 23 intended to protect within the specified retention area 23 24 such trees within the buffer substantially deal with 24 25 flood and other Issues that go with it. 25 23 1 Okay. Now, what kind of woodland do we have? Do 1 2 we have a woodland? Do we have a grove? The next page 2 3 is right from the same ordinance. It's a definition of 3 4 a grove of trees, so that there's no ambiguity here. So 4 5 it's the next page. It just says grove of trees blocked 5 6 out. A grove of trees is ten or more individual trees 6 7 having a diameter of at least 12 inches and whose 7 8 combined canopies cover at least 50 percent of the area. 8 9 1 went out and I measured and counted the trees. 9 10 In the area Immediate downslope of the property, not on 10 11 the property, but downslope, there are at least ten 11 12 trees that qualify for this grove status. If you go to 12 13 the next page in the definitions, there's something that 13 14 talked about woodland and woodland areas. Again, it's a 14 15 definition. A woodland area is defined as anything with 15 16 more than two acres of size and more than — or 16 17 containing no less than 200 trees per acre. The acreage 17 1S along the road — the railway, that whole area is at 18 19 least three acres in size. I'm going to show you what 19 20 it looks like in a moment, okay. So there's a grove 20 21 right below and there's a woodland adjacent. The whole 21 22 area is in that category. 22 23 If you go to the next page, there's something that 23 24 says "Design standards for wooded areas," and this is 24 25 important because it brings the slopes back into the 25 9-21-16 24 conversation. I'm reading the second bullet. I've highlighted It. Its — It looks like this, okay. It's one page before a map. "When other environmentally regulated sensitive features are present in combination with a regulated woodland, the regulations related to all the sensitive areas contained on the property will be considered with the most stringent regulations applying." The woodland and the slopes go together. Either one could trigger requirements. The woodland supersedes because it requires at least a 50 -foot buffer. If you look at the map that I've provided next, It's just a Google map. What I've done is use some software, Google Pro. Its sort of conventional. It's this one here, okay. What it kind of looks like. I simply took the area along the railway between the railway and the properties along the — the edge of Manville. There's at least three acres of wooded area there, 50 percent coverage, lots of trees, and right below the Lusk property downslope is, in fact, a grove which is part of the overall woodland landscape situation. The bottom line Is that requires a 50 -foot buffer to be placed at the minimum from the edge of the property inland, and that occupies something on the 25 order of 8,000 square feel of the lot I looked at the entire bluff along there. Several comments. One, the original house which was on the property complied with this requirement. Even though it was built in 1917, people knew not to build houses near the edge of the bluff. In looking at the adjacent homes, I didn't measure every one, but in a cursory examination, virtually every home complies with the buffer requirement to that slope. Slopes don't read property boundaries. Slopes are natural situations. They find their own method of operation. The entire edge of that bluff is a boundary to -- requiring a buffer zone above it onto the land, okay. So there's a concern with that. Final comment on the page and then I'm going to quickly go through my conclusions, which I tried to summarize in the last page, so the second -to -the -last page goes back to the very first page. It talks about applicability, and it says that properties containing any of the following environmentally sensitive features, and obviously the slopes and the woodlands are part of it, okay, are — are part of this discussion. Then it goes on to say, "The sensitive areas inventory map may be used as a tool to determine the location of potentially environmentally sensitive areas," okay. Page 22 to 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 RA -2 26 Now, on the map, these areas are not designated. It doesn't matter. Read the next part. "However, it Is the applicant's responsibility to investigate and fully delineate any such potential sensitive areas in order to determine whether the sensitive area or feature is subject to the regulations of the article." So it's not about their property per se, it's where their property sits. Their property sits against these areas, those areas have to be protected, and that requires a buffer, and It was their responsibility to evaluate that situation in — in considering all of this. Okay. Go to the last page. These are my sort of summary conclusion, then I will — I will stop. One, based on a review of the HDK [sic] report, I find myself in agreement with the findings of that report with respect to Increased drainage and flow path problems or concerns. I am troubled by the fact that there is no clear plan to deal with the increased drainage that will be directed toward critical and protected slopes, and no plan to mitigate the impact of that increased flow both on neighboring problems and the slopes themselves. Conventionally I would expect that such issues would be addressed as part of the planning process, not after the fact. Whether that's in the zoning code vou're dealing 27 with, I believe that to be absolutely true, operationally, and I've done it many times, Secondly, in reviewing the HDK report, I note that they indicated there were no sensitive land Issues on the property. As I said before, in reviewing the other materials and the comments by the City and city staff both in the presentation and a response to letters and inquiries, while that may in general be correct with respect to the parcel itself, it does not mean, in my view, that there are not several significant sensitive land and feature issues which have not been addressed. Moreover, in my view, these are issues which are specifically required to be addressed as part of the zoning code, and as such, would seem to fall within the purview of this board. Third, specifically with respect to sensitive slopes, the parcel is directly adjacent, even part of a critical slope protected slope area. Both the required buffer requirements and associated sensitivity analysis requirement have apparently not been either addressed or even considered by the City or the property owner. I see no evidence of that. In fact, the one thing I saw was a letter from one of the homeowners, I don't remember the name, asking about woods and being told they don't count. They're not important in this nent 9-21-16 28 1 situation. They're not relevant. 2 Fourth. Specifically with respect to grove and 3 woodland requirements in a similar manner, the specific 4 requirements in the zoning codes related to protecting 5 groves and woodland areas, groves and woodland areas 6 that directly are adjacent to and even encroach upon the 7 property have not been either considered or addressed, 8 and particularly as I noted the requirement that a 9 50 -foot buffer is required. It seems to have been 10 completely ignored in any consideration of this it situation. 12 These failures to consider, my fifth point, and 13 incorporate these requirements in both the approval 14 process and the actual building plan approved by the 15 City seem to constitute in some way errors by the City 16 in review and the approval process and perhaps 17 ultimately the failure of the property owner to consider 18 and address and incorporate these requirements in their 19 proposed plans for the property as required in the 20 zoning code. 21 Finally, based on the language in the zoning code, 22 it would appear to me that ultimately the responsibility 23 to evaluate and comply with the code with respect to 24 sensitive features rests with the property owner. The 25 code says whether it's in the map or not, it's the 29 1 owner's responsibility to make those determinations, or 2 their agents, whoever is assessing that property. They 3 do not appear to have met those coding — those zoning 4 code's requirements. That's sort of the summary of 5 my -- my view of the situation. I'll stop there in 6 order to be more efficient with the whole timeframe. 7 MR. WEITZEL: So what sae are you evaluating the 8 property at? 9 MR. WEIRICH: What size? 10 MR. WEITZEL: Yes. 11 MR. WEIRICH: I believe the planning has it like 12 16,800. 13 MR. WEITZEL: And the trigger was 20,000? 14 MR. WEIRICH: No, the trigger is 20,000 or the 15 environmental requirements that we're discussing, and 1 16 said in my comments it's less than 20,000. That's not 17 the problem. The other part of it is the problem. is MR. WEITZEL, And this is the responsibility of the 19 homeowner, so how does this work for the timing of the 20 decision made by the building official? 21 MR. WEIRICH: That — that responsibility in the 22 code is supposed to have been done as the process of 23 application took place, so it was -- from what I can 24 read in the code, it was the homeowner's or property 25 owners responsibility as part of their preparation for Page 26 to 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-21-16 30 1 their application to consider those issues in their application to the City, and the City at the same time, I believe, you know, didn't catch those things for whatever reason. But as I note in my final comment, I think the ultimate responsibility, as the code specifies, rests with the property owner. Its their job to figure this out and show that they're following the rules. And, in fad, there are, I'm sure, many areas where, you know, the map doesn't show it, but if you look at it closely or try to do something, that's when you do the detailed environmental assessments, environmental evaluations. That's why my bottom line is where there is areas on — errors on the City's part, I think ultimately it goes back to the property owner's obligation based on what the zoning code specifies. MR. WEITZEL: And you don't have any mitigating suggestions other than the 50 -foot buffer. MR. WEIRICH: Well, the problem is when you deal with that situation, if you take out — Well, first of all, you can't take out the trees that are at issue here because they're not on his property, okay? Theyre — they're on CRANDIC and whatever property there is offsite, okay. So you can't touch those trees. If— You can touch trees on the property perhaps and take 31 some of those out, although you're not interfering with the grove; and when I did this 50 -foot calculation, I made the most conservative assumption with respect to the property owner. I assumed that— that the trees don't extend onto his property, which they do. I said I just went to the property line and said, okay, everything outside that is out of the bounds for sort of tearing out. Okay. Now, you're asking about mitigation. You can mitigate anything, but its a very expensive and complex process, especially because what you have at the bottom of the slope is the most dangerous situation of all. Because the slope is shallower here and then deeper here, if you get water in that slope, thafs where it pops out, okay. So what will happen? You're not going to have a massive landslide take place, probably. What you'll have is sloughing, where you'll get sections of dirt. Sloughing is like smaller parts go down, maybe ten or 15 cubic yards. But they'll slide down onto the tracks. And, okay, the railway can come and clean it up, but what happens if a train's coming? That's why stabilizing those slopes is such a big deal. Anything that changes that stability is a zoning issue and Its a safety issue, so I'm not saying this just because, oh, 32 1 my goodness, 1 like trees. I teach environmental 2 science. I'm not into the business of destroying 3 habitat. That's not what's at stake here alone. And 4 you all have the problem of the slope itself. If you 5 take those trees out, you run the risk of starting to 6 destabilize the slope, and that affects -- You don't 7 build a house to the edge of a slope unless you put down 8 footings to bedrock. Unless you put all kinds of 9 pilings down and do all kinds of very complicated things 10 that require very sophisticated geotechnical analysis, 11 which I've been part of in the past, and all kinds of 12 other mitigation strategies. 13 But the standard approach to something like this is 14 to say don't build near the slope. Stay away from the 15 slope for all the reasons that I have indicated, and 16 that's why the zoning codes and slope stability codes 17 are so adamant about this sort of thing. So the answer 18 is yes, you could. You could build a concrete wall 50 19 feet high and put that there, but to do that, you're 20 going to be going onto other people's property in order 21 to pull that off, and I'm not sure who would agree to 22 allow that to happen down the road. But certainly, none 23 of that was considered in looking at this application 24 and none of it was considered by the applicant in 25 preparing the application. 33 1 And so I believe that — that the process was 2 flawed. Whether you want to talk about down road 3 massive mitigation or not, it was wrong from square one. 4 Step one was not properly handled. That's really the 5 most important consideration here, among all the others 6 that I will use. I will be honestwith you, this is a 7 public process. I'm going to use this in my classes. 8 No, no, I don't mean it negatively. This is a perfect 9 example of the kind of issues we deal with in 10 environmental science and environmental engineering. I 11 teach both engineers and I teach environmental 12 scientists, and — and how to handle these situations is 13 such an important part of their education and teaching 14 them, okay, how do you solve these problems? And how do 15 you avoid these problems? 16 In this case, my simple suggestion Is to avoid the 17 problem, build a smaller house. Stay away from the edge 18 of the bluff. I'm not questioning the home, the 19 architecture. That's out of my league. All I'm talking 20 about is mud and water and green stuff. That's — 21 that's all I know about in any official or professional 22 capacity. 23 MR. CHRISCHILLES: So what you're saying is once 24 the sensitive slope area is designated as such and is 25 involved, then the buffer zone becomes a requirement? Page 30 to 33 1 z 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 15 19 20 21 22 23 24 25 MR. WEIRICH: That's what the code says. says -- MR. CHRISCHILLES: And nothing can -- an and that buff— and the — the buffer zone does — there's no development at all allowed in that or n what? Just you have — You can't do anything in that zone or — MR. WEIRICH: You're not supposed to mes that buffer zone with any construction. If you wa take things out of that buffer zone, you're going t have to go through all kinds of mitigation strategi compensate for the trees you're removing, but th more of an environmental compensation. The m important question is how are you going to ensur stability of those slopes going down the road. An again, you could engineer those solutions. They inexpensive, and there are no normal patterns to deal with that. The code does not offer a lot of options with respect to that. You can do things on your prope but you have to go off the property to do what you suggesting because the buffer is extending into y property, so you can't mess with that because th trees are there or you start taking out the woodla then vou've act stability issues all the wav down t the road. That's the problem. MS. SOGLIN: Could you go back to the C-3 exemption — MR. WEIRICH: I'm sorry, where? MS. SOGLIN: — description. It's page 3 of wh you handed to us. MR. WEIRICH: The very -- Page 3 from the beginning? MS. SOGLIN: Page 3 at the bottom you were the exemption language, and — fight, the very bo there. MR. WEIRICH: Okay. MS. SOGLIN: I think, it says —where It says, "Construction of single-family or two-family reside units." It's Article 1. MR. WEIRICH: I'm not sure I'm on the same I'm sorry. UNIDENTIFIED SPEAKER: Page 311 on — it the bottom. MS. SOGLIN: Yeah, thank you. MR. WEIRICH: Okay. Right, but that's actual MS. SOGLIN: Okay. So—so-- MR. WEIRICH: But actually that's what —tha what you're looking at, that piece on 311 is what 1 highlighted on this -- tt Board of Adjustment 8-21-16 34 The code 1 M 2 about d one — 3 M 4 M 0 5 answe side 6 respo 7 said it s inside 8 not ex wan to 9 no enc o 10 not an es to 11 MR at's 12 exceed ore 13 so it d e the 14 So it d d 15 says if are not 16 there is sort of 17 not or, 18 MS. 19 havele rty, 20 one — t 're 21 doesn't our 22 M 23 is you nd, 24 for this o the 25 develo 35 1 meet th 2 on, "an 3 there is 4 jurisdic at 5 So 6 still hav 7 Its not 8 But you clung 9 can't b om 10 all kind 11 But it's 12 are not 13 you we ntial 14 also go 15 environ page, 16 MS 17 adjoinin says at 18 happen 19 to — 20 MR ly — 21 aren't r 22 MS is 23 process 24 MR 25 MS. 36 S. SOGLIN: Right, right, and I have a question that. R. WEIRICH: Okay, go ahead. S. SOGLIN: So — Okay. So when you first were ring Tim's question, the -very beginning of your nse, you -- you used the conjunction "or." You says, you know, "the development activities do ceed a maximum of 20,000 square foot or there is roachment," but the language here is "and" It's d/or. .WEIRICH: Okay. But when you say "did not maximum" (unintelligible) "in area and provided," oesn't have to exceed 20,000. "And provided." oesn't exceed 20,000, but even if It doesn't, it the — it doesn't exceed 20,000 and provided no encroachment. Those are joint -- They're okay. Let me read it again. SOGLIN: But are you suggesting that we would o interpret it as "or" in order to just have the he one part of it hold true? The other part hold true. . WEIRICH: No, no, not at all. What it's saying can do single- and two-family dwellings except situation, okay? And it says, "if the pment doesn't exceed 20,000 square feet" They R 37 at requirement. They're 16,8. But then it goes d" — "and," an additional requirement, "provided no encroachment, and by said activities into a tional," blah, blah, blah, the rest of it. under 20,000, check. You're good. But you e to deal with the other part of the statement. or, it's and. You're under 20, you succeed. also have to meet this other thing, which is you messing with these environmental areas without s of things being done, none of which were done. not or. The 20,000 requirement is met. They 20,000. Sixteen eight, sixteen five, whatever nt to do. But even with that having been met, it es and you also have to deal with this mental stuff. . SOGLIN: And that consideration goes to an g parcel; you're saying it's not just what s on the parcel. That that "and" part applies e WEIRICH: No, because environmental processes estricted to the parcel. SOGLIN: Right, and I know the environmental isn't, but you're saying the way the — . WEIRICH: Well, because — SOGLIN: — the ordinance is written Page 34 to 37 Board of Adju 38 1 protects — protects it as such. 2 MR. WEIRICH: Yes. It would make no sense to say 3 you have to have a buffer on your property if you have 4 these things but you don't have to have anything above 5 it because, in fact, the definition of the slope top is 6 the top of the slope, wherever it is. So, no, you're 7 extending — the buffer has to extend beyond the slope 8 edge and beyond the property line. The wooded 9 requirement extends beyond that as well. It has to. I 10 mean otherwise, the whole environmental process makes no 11 sense at all. So, yes, I'm fairly comfortable that 12 buffer — that buffer goes where I'm suggesting it has 13 to go. 14 MS. SOGLIN: Okay. 15 CHAIRMAN BAKER: All right One question, please. 16 And I apologize if you've said this and it slipped past 17 me, but I want to get a clarification on some language 18 here. In that same stanza, this Is on the — under 19 exemptions, Number 3, "provided there is no encroachment 20 by said activities into a jurisdictional wetland, a 21 dedicated sensitive areas conservation tract, or a 22 protected sensitive area." Those sound like 23 designations of record somewhere, or Is It the fact that 24 anybody that builds has to go determine whether these 25 things —these areas fit that classification? 39 1 MR. WEIRICH: That's what the code says. 2 CHAIRMAN BAKER: Okay. 3 MR. WEIRICH: I mean I believe — 4 CHAIRMAN BAKER: But I want to understand this 5 concept of jurisdictional wetland. There is a 6 definition - 7 MR. WEIRICH: It's very important. It puts the 8 onus on the property owner to ensure they're complying 9 with the environmental zoning code. 10 CHAIRMAN BAKER: Okay. 11 MR. WEIRICH: And that's fairly explicit. 12 CHAIRMAN BAKER: But it does seem like wouldn't 13 someone have to have designated sensitive areas or a 14 jurisdiction -- Someone has to have that designation 15 before it can be applied. 16 MR. WEIRICH: Not at all. 17 CHAIRMAN BAKER: Okay. 1s MR. WEIRICH: The designation is self-fulfilling in 19 that 1f you look at a piece of land and you look at the 20 requirements and it meets the requirements, then it 21 meets the requirements. You don't have to have a line 22 drawn that says — Because there are — I could show 23 you many areas in the city that are not on the map which 24 would meet these requirements and would, I'm sure, 25 require that consideration. That's why the language was rent 9-21-16 40 1 written, that the property owner has to ensure they're 2 meeting It, even if it's not on the map. It's — 1 3 think it was quite clear in the — 4 CHAIRMAN BAKER: Yeah, point me to that, please. 5 MR. WEIRICH: Okay. I repeat that. The sensitive 6 areas inventory map, phase one, may — not required — 7 may be used as a tool to determine the locations of 8 potential environmentally sensitive areas. The next 9 part's the key. However, it is the applicants' 10 responsibility to investigate and fully delineate such 11 potential sensitive areas. Doesn't have to be on the 12 map. 13 CHAIRMAN BAKER: So the applicant has to find that 14 information on property that is not his property. 15 MR. WEIRICH: In this particular case, yes. They 16 have to look at the land around them. They have to look 17 at the context In which their property sits. 18 CHAIRMAN BAKER: So is that true for every 19 applicant for a single-family home? To build a 20 single-family home in Iowa City? 21 MR. WEIRICH: If they are near a sensitive area, 22 that's what it says. Yeah. That's what the code says. 23 CHAIRMAN BAKER: So I see where you're going with 24 that. 25 MR. WEIRICH: Yeah. So - 41 1 MR. CHRISCHILLES: Larry, are you saying that - 2 how — how does — how are these areas defined or how — 3 how does a person go — go about knowing if they have -- 4 MR. WEIRICH: Okay, look. 5 MR. CHRISCHILLES:— ifthey'vemetthe 6 requirements? 7 CHAIRMAN BAKER: Right. 8 MR- WEIRICH: Well, look, if I buy a piece of 9 property and it has a lot of trees near it or it has a 10 slope and I -- You know, the first thing I do is, okay, 11 do I have any problems with this. How am I — Is that 12 going to Impact me? Am I going to impact it? The same 13 way that people when they buy a piece of property look 14 at drainage. Are they on the Floodplain? Do they need 15 FEMA issues to deal with? You know, it is on the 16 homeowner or the property owner's responsibility to 17 decide what issues they need to deal with when they buy 18 a piece of property or choose to change a piece of 19 property. It's not just a matter for commercial use, 20 it's — the code is not written that way. It's specific 21 about that requirement. 22 CHAIRMAN BAKER: It requires the landowner. 23 MR. WEIRICH: That's what it says. 24 CHAIRMAN BAKER: Okay. Wouldn't that, then, be 25 part of the building permit process that the City would Page 38 to 41 Board of Adjustment 9.21-16 42 44 1 require the developer, the applicant, to make those 1 completely paved Lusk Avenue where, in fact, only a 2 determinations in every case? 2 little more than 155 feet of it are paved. That site 3 MR. WEIRICH: Yes. 1 mean that's the way the 3 plan also ignores the fact that the structure's 4 language is written, that -- that you as an owner coming 4 driveway, now placed on the north side of the lot, runs 5 forward with an application to do something on a piece 5 right over a fire hydrant. The site plan also makes no 6 of dirt, in this case you're required to assure the City 6 provision for the flow of stormwater. 7 that that activity will comply with these particular 7 His series of oversights on the ane -page revised 8 sensitive land ordinances. 8 site plan, the submission and approval of which the City 9 CHAIRMAN BAKER: Okay. 9 mandated before 8 would issue a building permit, is a 10 MR. WEIRICH: Yes. That's what it says. 10 big problem. We are deeply concerned that building 11 MR. CHRISCHILLES: So what you're saying, the link 11 officials failed to consider compliance with either the 12 between the applicant and the owner and the City is — 12 International Fire Code or the sensitive lands and 13 it is the owner's responsibility to Investigate these 13 features provision of the Iowa City Code before rushing 14 areas or these -- 14 to issue the building permit. Had the City considered 15 MR. WEIRICH: Situations. 15 these codes, we believe that there is noway that the 16 MR. CHRISCHILLES: — situations. 16 site plan and associated building permit could have been 17 MR. WEIRICH: Sure. 17 approved, particularly for a proposed building of this 18 MR. CHRISCHILLES: And it's the city's 18 size and intended use. 19 responsibility to make sure that that is Included before 19 According to the 2015 International Fire Code, 20 a building permit is issued. 20 which is utilized by Iowa City, streets over 150 feet in 21 MR. WEIRICH: Absolutely. 21 length require turnarounds for fire equipment. 22 CHAIRMAN BAKER: Okay. We'll obviously hear from 22 Measurement of Lusk Avenue by HBK has shown It to be 155 23 the City in response to that. 23 feet 5 inches in length, and it dead ends with no 24 MR. WEIRICH: I'll be surprised if you don't. 24 turnaround. With the board's permission, I'd like to 25 CHAIRMAN BAKER: All right, thank you. 25 have Trish Koza place an exhibit on the floor in front 43 45 1 MR. WEIRICH: Thank you very much. 1 do have full 1 of you which should demonstrate the challenges facing 2 copies of that entire — you can look that up as well. 2 the fire department on Lusk Avenue. 3 That okay? All right. Thanks. 3 MS. KOZA: (Inaudible) the point is we realize that 4 (An off-the-record discussion was held.) 4 it is almost — 5 MS. JANZEN: My name is Dina Janzen. My husband 5 CHAIRMAN BAKER: Just a second. 6 Jim and I raised our children at 612 Bayard Street, 6 MS. WALZ: If you're going to speak, I'll just have 7 which is about 200 feet from the proposed Carlson 7 to have you speak in the microphone, so why don't you 8 structure. I want to talk about safety. The city's 8 roll that out and then -- 9 joint responsibilities to prioritize public safety while 9 MS. KOZA: It is very difficult to envision just 30 following existing code provisions were compromised when 10 exactly what we're dealing with here. This is to scale, 11 a site plan and building permit were approved for 101 11 One inch equals two feet. This is Lusk Avenue. This is 12 Lusk Avenue. I would like to ask the Board of 12 20 feet wide. There's the Syrop/Sadler property, the 13 Adjustment to look at the facts, to examine the whole 13 Lahey property, and this is just the beginning of the 14 picture, and to make the right decision to determine 14 Carlson property. We kind of ran out of room. The 15 that this structure cannot be classified as a 15 representative from the fire department said that he 16 residential structure and revoke the site plan and the 16 didn't really think that there needed to be a 17 building permit. 17 turnaround. He did say that at any structure fire they 18 The Cadsons voluntarily demolished an existing 18 would send five vehicles. We have created cardboard 19 house prior to obtaining a building permit. In granting 19 images here of the five possible configurations for this 20 this permit within the timeline laid out by Mr. Boothroy 20 street. 21 for ABC News, the City utilized a fatally flawed site 21 This command vehicle goes to every structure fire. 22 plan that ignores basic realities of existing public 22 This is a picture of it, this is the size of it. The 23 infrastructure, errors that even I can clearly see. The 23 City owns four Impel pumpers. I'm sure it won't send 24 site plan dated March 15th of this year, the one in 24 all four. It should -- It owns a Quint Velocity 25 effect when the building permit was issued, shows a 25 pumper, which we couldn't get the exact dimension of but Page 42 to 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 we estimate it to be 40 feet long and 10 feet wid an aerial platform pumper, which — and ladder t which is 48 feet long and 10 inches wide, and th include an additional 18 -inch bumper probably sides, but we've only allowed for one side. (Inaudible) MS. KOZA: Sony. I would invite you to co see just how many of these vehicles — what co of five vehicles can get onto this street and fight fire. Oh, and the ambulance. No room for the ambulance. We have one more thing to show y said they would have no difficulty reaching the property from any of their vehicles with their hos (Indiscernible) house should be a couple of inch because I didn't have them wide enough. This i kitchen, a likely source of fire. MS. JANZEN: Thank you, Trish. Is that wo She also failed to mention that there's parking al on one side of that street. Construction of a cod compliant turnaround will require the City to acq additional private property either from neighbors Carlsons. Since there is nothing in the record to suggest that neighbors have agreed to contribut own property to this project, we think it fair to as that the emergency vehicle turnarounds will be t Board of Adjustment 9-21-16 46 e, and 1 parti ruck 2 land a ese 3 this to on both 4 classi 5 zone. 6 In me and 7 set fo mbination 8 or ign a 9 permit. 10 sensiti ou. They 11 and Mr Carlson 12 before as. 13 the res as wider 14 it right. s the is be mill 16 permit rking? 17 time. lowed 18 Th a- 19 Cadso uire 20 others' or the 21 ofothe 22 taxpay e their 23 plan a sume 24 city sta aken out 25 Iegislat 47 of the Carlsons' own property. Both options to achieve code -compliant turnarounds require a massive 96-foot turnaround or a hammerhead configuration. The amendments that HBK made to their own report depicts how much of the Carlsons' land that would take and how it overlaps with the large entertainment building that they propose to fill -- build. The effects of this land acquisition on residual lot size should have been factored before granting the permit. Construction of a turnaround will result in destruction of beautiful century oaks currently on public property which are a hallmark of this neighborhood and which provide a significant wildlife habitat. Further, as HBK has shown, by code a structure of this size requires two fire hydrants within 400 feet and the hydrant Flow rate of over 2250 gallons per minute. If this board allows the wrongful classification of this building as residential and affirms the building permit, you can expect the following consequences that will impact City budgets, pose a burden to taxpayers, and damage the public's interest in protecting sensitive areas: A yet to be authorized public expenditure for street widening and signage; construction of a code -compliant turnaround at public expense; loss of public street parking, a valued public asset, 48 culariy on game days; and irreparable damage to nd slopes expressly protected by code. All of subsidize a private building for which no proper fication exists in the Iowa City Code for the RS -5 Inc the public safety code requirements as rth in the International Fire Code were overlooked ored by city staff in order to grant a building The Carlsons'failure to comply with the ve lands and features provision of the city code . Boothroy's failure to insist on such compliance approving site plan and building permit cannot be ult of the City, in Mr. Boothroy's words, getting Current city code requires these safety risks gated before new construction can be allowed. No should be issued to new construction at this e burden of mitigation extends well beyond the ns' lot lines. It should require acquisition of private property — it could require acquisition rs' private property, and it will be felt by the ers of this city. In approving the Carlsons' site an building permit application, we believe that ff ignored or misapplied city code requirements ed by the city council, thereby sacrificinq 49 1 public safety in favor of the Carlsons' personal use. 2 Only the Board of Adjustment, by reversing those 3 actions, can avoid the incurrence of risks and losses 4 and expenses to the City and to others. To be 5 consistent with the stated purpose of our city's code, 6 to avoid setting an extraordinarily poor precedent, 7 please prioritize public safety and reclassify this a proposed structure as something other than residential 9 and revoke the building permit issued to the Carlsons 10 for 101 Lusk Avenue. 11 CHAIRMAN BAKER: Thank you, ma'am. 12 MS. JANZEN: I have to write my address down. 13 MS. ERICKSON: First, let me thank you to the Board 14 of Adjustment and to the work that you do -- 15 CHAIRMAN BAKER: Would you identify yourself? 16 MS. ERICKSON: Yes, sorry. My name is Catherine 17 Erickson. I live at 11 Rowland Court, and I live there 18 with my husband and two children, ages five and six, and 19 1 am here today to speak as a parent of young children 20 with concerns regarding the safety of the citizens of 21 the neighborhood should this tailgate venue on Lusk 22 Avenue be built. The zoning ordinance provides that the 23 RS -5 zone is primarily intended to provide housing for 24 individual households and, quote, "shall create, 25 maintain, and promote livable neighborhoods." While Page 46 to 49 1 2 3 4 5 6 W9 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 IIl.] 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board So their regulations allow for some flexibility to provide housing opportunities for a variety of household types, a party house is not a household. Esthetics aside, building a 7500 -square -foot replica of a football stadium to serve as a tailgate venue in the Manville Heights neighborhood will fundamentally change the character of the neighborhood, and it will make the neighborhood less livable for families of all kinds, especially those with children, just like mine. Manville Heights is an attractive and desirable neighborhood. My family and I love our neighborhood and all that it has to offer. Our kids go to one of the very best elementary schools in the district. Its very family friendly, and it's a quiet neighborhood for raising a family. My kids can play in the front yard, they can play in our driveway, and they can safely cross the street to visit neighbors without fear. It's for those many reasons that my husband and I decided to move to Manville Heights from Olive Court in University Heights over five years ago. Olive Court was once a family friendly street Tailgating has taken over there and it no longer is. The venue at 101 Lusk Avenue will make the neighborhood unsafe for residents and children, and not 51 just the eight days a year when home football games are being played, but also the nights and weekends when events are held at Carver Hawkeye Arena, which totals to over 50 events there each year. That means on average there will be more than one event per week year-round when the 101 Lusk Avenue venue may be used for pre and post game partying. We heard last week from Dennis Befeler, who stated that the venue will host over 200 people, for events with upwards of a hundred additional cars coming to the neighborhood, car traffic and foot traffic will dramatically increase. I ask the board to consider if the Manville Heights neighborhood can withstand the addition of a hundred additional cars and 200 people on days when the streets are already congested. Where will these party -goers park? How will they get to the game? There isn't a sidewalk on Rowland Court and portions of Bayard, so people walk through the middle of the street or they walk through private property. I know this because I witness this during every single game and every single event. I can also tell you based on personal experience what most people will do with their car. They'll drive easterly down Bayard past Lusk Avenue to Rowland Court. Here they find a dead end. They effectively then use Hent 9-21-19 62 1 our private driveways as public turnaround spaces, but 2 our private driveways are not safe public tumaround 3 spaces. These are places where my children play. They 4 play basketball, they draw with sidewalk chalk, they 5 play catch. These are not safe public turnaround places 6 for cars. Many drivers are already confused by the 7 narrow dead-end street. They drive erratically and 8 children are put in dangerous situations. 9 Just last Saturday, September 17, 1 observed a 10 car— and you can see from the photo — I observed a 11 car making what can only be described as a 12 -point 12 turnaround in the middle of Rowland Court literally mere 13 feet from where my children were playing. This is 14 unsafe and its not uncommon. In an already congested 15 area, the situation will be worse and even more 16 dangerous with additional cars and people. On game days 17 this driving behavior is already a concerning 18 inconvenience for the entire neighborhood. However, if 19 the proposed tailgate venue is built, it will be a 20 public safety hazard for all children and residents who 21 currently live and play in this neighborhood. 22 I'm also concerned with haw the City plans to deal 23 with dangerous and illegal activities. Parking is a 24 well-known problem in this area, as is the city's 25 selective enforcement of parking laws. Here's a photo 53 1 of illegal parking right on the Lusk Avenue right-of-way 2 by vehicles associated with the Carlson' contingent 3 during the Iowa -Iowa State football game on Saturday, 4 September 10th. The situation gives you an Indication 5 of the par — excuse me, parking problems residents are 6 facing even before the parry venue is built. The 7 authorities were contacted regarding the illegal 8 property — excuse me, regarding the illegal parking. 9 Police surveyed the cars and then they left. The 10 complaint resulted in nonenforcement. No tickets were 11 issued for this illegal parking. 12 Last Wednesday, Mr. Boothroy repeatedly stated that 13 any violation by the Cadsons or their guests would be 14 ticketed or fined, but how are we to believe that any 15 nuisance violation, any illegal tailgating, or illegal 16 parking will be ticketed by the City when the City has 17 repeatedly proven that the citations are subjective at 18 best How does that discourage future illegal behavior? 19 How does that help keep our neighborhood safe? 20 The instructions provided by the board — excuse 21 me, provided to the board by Mr. Parmenter said one of 22 the roles of the board was to, quote, "provide extra 23 scrutiny to City decisions," and that, quote, "the 24 decisions should serve the public interest and be 25 consistent with the comprehensive plan of the City." Page 50 to 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Ac 54 The proposed venue at 101 Lusk Avenue is not consistent with the comprehensive plan of the City. 11 Isnot a single-family home. The Carisons themselves have stated as such. They have said that it will be used for tailgating and will not be lived in. To allow a party house to be built in the middle of a quiet residential neighborhood Is entirely Incompatible with the objective of the RS -5 zoning to create, maintain, and promote livable neighborhoods. The venue and the congestion of additional cars and people make the neighborhood unsafe. I ask the board to make a decision that considers the citizens of Iowa City and specifically its youngest citizens. Please keep our neighborhood safe and right this wrong. Thank you very much. MS. SOGLIN: I have a question, please. The slide, you were saying where you said those vehicles — How did you know those vehicles were from the Carlsons and/or their — MS. ERICKSON: This — this photo doesn't refer to the Carisons. MS. SOGLIN: The other one. MS. ERICKSON: This one? It— It was my understanding that they identified themselves as such. They had asked some neighbors about — Actually — 55 actually, if Mr. — if Chris could speak to it, he was — he observed this firsthand and — MR. ROSSI: Chris Rossi. I was here last week. The white van there has the -- is identified as a vehicle from Mr. Carlson's business, and I witnessed the red vehicle and the — the tan van as well parked there, and they identified themselves as — with a note on that white truck saying you're — you're illegally parking and — you're parking -- you're obstructing our driveway. Then someone else came who identified himself with the Carlton — Carlson' contingent, and the woman was calling the Carisons wondering where to park because they couldn't figure out, so the fellow left the car and then asked if he was going to get towed and then knocked around on doors to see if he could park legally. He left But in any event, there's other photographs of that vehicle that clearly identify it as a Carl — as a Carlson vehicle. MS. SOGLIN: And what do those signs say specifically, the one — the two that you can see, the two parking -related signs? Or presume — the two white signs? What's the language on those? MS. ERICKSON: It's no parking Monday through Friday, is it 10 a.m. to 5 p.m. or 8 — 8 a.m. to — 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9-21-16 56 eight to five. MS. SOGLIN: But this is a Saturday, right? MS. ERICKSON: Right. So the cars that are parked along the street are, as far as I can tell, I think legally parked. The cars at the very end of the street, those are illegally parked on City — MR. ROSSI: They're in the middle of the right-of-way. MS. ERICKSON: City right-of-way. MR. ROSSI: You recall Mr. Boothroy's comment last week that he was going to barricade this street because If people hadn't already started parking illegally on it, he wouldn't be surprised if they would park illegally on it. Had he known that people already were parking illegally on it, as we all do know this because we live here, then he might have moved forward with barricading that street even earlier. MS. ERICKSON* One of the cars was also parked illegally in front of the fire hydrant that's located right there. MS. SOGLIN: And aside from this particular Saturday when you called the police and you say then no tickets were issued, over the last, I guess, time since you've lived there, what interaction have you asked the City to do or gotten together with your neighbors to ask 57 the City to do about any of the parking or pedestrian issues you're concerned about? MS. ERICKSON: I personally haven't been involved in them. It's — It's more neighborhood conversation I — I would hear. What we — what we see is we see illegal parking. It's along here, it's along Bayard and we — and its a public nuisance. MS. SOGLIN: But you had not called them those times, you — you personally or— MS. ERICKSON: Not me personalty. I've seen other people or, you know, heard from other neighbors that they have called and — MS. SOGLIN: And asked. MS. ERICKSON: And asked, yeah. CHAIRMAN BAKER: I want to make sure 1 understand something that you said. You called the police. No citations were issued. The police came out, they saw a car parked In front of a fire hydrant, and there was no citation issued. MS. ERICKSON: Is that correct, Chris? MR. ROSSI: I saw it happen. It wasn't a police car, it was the community — it was a community police car. Came out, surveyed the situation, and turned around, didn't do anything. CHAIRMAN BAKER: Okay. Page 54 to 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Y#1 24 25 Board of Adjustment 9.21-19 58 MR. ROSSI: And actually, there's other people who can speak to veracity of the statement about whose cars those are. CHAIRMAN BAKER: No, that's all right. MS. ERICKSON: Thank you. CHAIRMAN BAKER: Thank you. MR. WEITZEL: Oh, I had one question. Either you or Mr. Larew, could you point us to a section of the comprehensive plan that you've just referenced? MS. ERICKSON: For the -- the RS -5 zone? Or— MR. WEITZEL: Well, you said it doesn't apply to the — it doesn't conform to the comprehensive plan, so could you give us a specific place? It's a big document, so — MS. ERICKSON: Yeah. MR. LAREW: We can certainly do that. MR. WEITZEL: Okay. MR. LAREW: You should know, just for your own information, people who are speaking to you prepared their own remarks, and we'll be glad to supplement any questions -- MR. WEITZEL: I just need to know where in the comprehensive plan to look. MR. LAREW: We'll guide you to it. MR. WEITZEL: Okay. 59 MS. ERICKSON: Thank you. MS. MADSEN: I'm Joanne Madsen. I've lived at 244 Woolf Avenue for over 40 years. Three years ago, the City denied a hcmeowner's request to build a structure in his backyard that he would use for woodworking projects in his retirement. I learned about this from reading archived procedures of the Board of Adjustment. I'm perplexed by this decision the City made in 2013 to deny a building permit for an accessory structure in an RS -5 zone. The building official said the large size of the structure in the rear yard wasn't customary and was, quote, "out of character, scale, and the pattern of development," end quote, with the applicant's neighborhood and was, therefore, not, quote, "customarily incidental and commonly associated with low density single-family development," end quote. Another comment from the City in this case, and I quote, "The zoning code regulates accessory structures and uses in the residential zones to help assure that they are compatible in scale and use in a residential setting. Excessively large accessory structures may be out of character with single-family homes, and they invite noncompatible uses such as commercial activity or warehousing." 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 31 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 Another quote, "Moreover, the building official contends that the scale and design of the structure, a pole building, is not typical in residential neighborhoods and, therefore, detracts from surrounding residential development," end quote. If the City is so concemed about an accessory structure, why not extend this concern to the house Itself. Our city officials seem to have been rendered impotent by a code that prevents them from going beyond a sterile checklist that doesn't acknowledge reasonable expectations of living in a residential neighborhood. These officials ignore the quality of life that should be protected by those in power. Thank you. CHAIRMAN BAKER: Thank you. (Indiscernible) MS. KOZA: My name is Patricia Koza. My husband and I have lived at 209 Lexington Avenue since 1974, and I actually have lived within a block of this house since I was three years old. Listening to your questions last Wednesday, and I don't remember which of you asked the question, it was clear — well, several of you — it was clear that several of you are struggling with just how to handle the proposed building at 101 Lusk Avenue in terms of nomenclature. If you agree it has not been properly classified, it is not necessary to find another 61 name for it. You are charged with deciding is it principally a residence that conforms to all code requirements in the RS -5 zone or is it not. One of you mentioned, and I don't remember which, the concept of precedent on Wednesday. Yours is a very precedent -setting decision, whichever way you go. If you vote to issue the permit to this structure as a single-family residence, there will be many, many more neighborhood groups in front of you asking for relief. If the Carlsons can build this in our neighborhood, there is no limit to what can be built and where it can be built. If you vote to deny the permit, you are sending a dear message to the City that we need to create a new classification to describe projects like this. They do exist elsewhere in the city, and more of them will be built. We have an affluent society. A new classification would carry with it appropriate code requirements dictated by the usage and created to assume maximum safety for all occupants. Safety of its citizens is the primary goal of every code in this — in our book. And safety is the issue that concerns me most. All of us are troubled that the building officials are ignoring dear safety issues in classifying this structure as Page 58 to 61 63 1 exit the building as proposed by the Cadsons at the 2 same time. It's really too terrible to think about. 3 If a Kinnick had a lower level with features 4 designed for larger recreational gatherings, such as 5 this one, it would be required to have at least one 6 egress door, not merely a window. There is one window 7 in this lower level, and if you do the math right, I 8 think you would exit into a window well that comes up 9 under the driveway. A Kinnick would have an occupancy 10 limit and would be subject to periodic inspections to be 11 sure that all safety codes are being met. 12 Common sense tells us that building —that the 13 building in question should be subject to a different 14 set of codes based on its usage. If you allow it to be 15 built as a residence lacking appropriate safety 16 features, you personally are depriving future occupants 17 of protections that they deserve and should expect while 18 in a building approved by Iowa City codes. They simply 19 would not be safe at a party in this building. 20 Last Wednesday, one of you asked Mr. Boothroy if 21 there shouldn't be another classification created in the 22 code for a building like this. I think it was you. He 23 answered by saying he had too many things more important 24 than this to think about. Don't you think the four of 25 you could push this to the top of his list? I do not 9-21-16 64 think that building officials acted in an arbitrary or capricious manner, but mistakes happen. To err is human. You don't have to slap any hands. You just need to look at all the facts before you with fresh eyes and clear heads. This proposal is not residential because its use as a residence is merely accessory to its use as an entertainment space. Each of you has the same power as Mr. Boothroy, each one of you. You can set this right, and we trust you to do just that with your individual votes. Thank you very much. And I must speak for all of us. We have appreciated the fact that you have very courteously listened to everything that we have to say. CHAIRMAN BAKER: Jim, before anybody else gets up, I'm going to take about a 15 -minute recess. Get up, whatever business needs to be done. MR. LAREW: To fill you in, we have two more speakers. I don't think they will last long, but we certainly welcome the break. CHAIRMAN BAKER: Sure. So we start again at eight -fifteen. (A brief recess was taken.) CHAIRMAN BAKER: I'm going to take the liberty of starting at eight -fourteen rather than eight -fifteen. I think we're ready to begin again. Jim? 66 1 MS. LAHEY: Good evening. My name is Anne Lahey 2 and I live at 111 Lusk, which is immediately north to 3 the property at issue. Actually, it was the brown house 4 that was pictured above the cars in that one picture 5 where the parking was going on at the game. Obviously, 6 1 have a lot of concerns about adverse consequences of 7 this. Obviously, the sewer was mentioned, the —1 8 believe that it will cause foundation problems, runoff 9 problems, drainage, all those types of things. 10 1 guess what has been concerning, too, is that we 11 had no notice. I have kind of been at these meetings 12 and that's the only, in a sense, notice I've got of all 13 the issues and public notice about any of this. We 14 consequently did terminate the sewer easements if there 15 were any. Last meeting 1 understood from some of those 16 emails that it sounded like that the City thought, well, 17 we would find out soon enough about the sewer problems 18 when the sewer failed, which I think is — is disturbing 19 in itself. 20 On a broader sense, I feel that this clearly is not 21 a primarily residential use. Its principal use is not 22 residential and one thing, when Mr. Boothroy was 23 talking, he said you can't help but notice the bathrooms 24 front and center when you walk into the proposed plans 25 of this. And what I think is concerning also is that Page 62 to 65 Board of Adjustment 62 1 primarily residential. Aside from the blatant disregard 1 2 for International Fire Code in regard to the street and 2 3 the water supply, there are clear problems with this 3 4 structure if used as it is clearly designed and intended 4 5 to be used. A single-family residence does not entitle 5 6 resident occupants of the building to the safety 6 7 precautions that would have to be built in and required 7 8 by code if it were properly classified as something 8 9 else. 9 10 And so I go back to the need for a new 30 11 classification. Let's just say for our purposes today it 12 we'll call it a Kinnick and think about some appropriate 12 13 codes. A Kinnick would require a larger lot and larger 13 14 setbacks to buffer it from neighbors and accommodate 14 15 runoff from a large footprint. A Kinnick would have 15 16 multiple outward -opening doors equipped with crash bars, 16 17 and they would be marked with lighted exit signs. This 17 18 plan as presented has a single Inward opening door on 18 19 the main level that exits directly to the outside. 19 20 To get to the outside through the only other door 20 21 on the main level, you must go through the kitchen, a 21 22 likely source of fire, and then through the owners' 22 23 suite and then into the garage before you get to outside 23 24 and safety. Imagine the tragic situation that would 24 25 occur if 200 people or 100 people, or 75 people tried to 25 63 1 exit the building as proposed by the Cadsons at the 2 same time. It's really too terrible to think about. 3 If a Kinnick had a lower level with features 4 designed for larger recreational gatherings, such as 5 this one, it would be required to have at least one 6 egress door, not merely a window. There is one window 7 in this lower level, and if you do the math right, I 8 think you would exit into a window well that comes up 9 under the driveway. A Kinnick would have an occupancy 10 limit and would be subject to periodic inspections to be 11 sure that all safety codes are being met. 12 Common sense tells us that building —that the 13 building in question should be subject to a different 14 set of codes based on its usage. If you allow it to be 15 built as a residence lacking appropriate safety 16 features, you personally are depriving future occupants 17 of protections that they deserve and should expect while 18 in a building approved by Iowa City codes. They simply 19 would not be safe at a party in this building. 20 Last Wednesday, one of you asked Mr. Boothroy if 21 there shouldn't be another classification created in the 22 code for a building like this. I think it was you. He 23 answered by saying he had too many things more important 24 than this to think about. Don't you think the four of 25 you could push this to the top of his list? I do not 9-21-16 64 think that building officials acted in an arbitrary or capricious manner, but mistakes happen. To err is human. You don't have to slap any hands. You just need to look at all the facts before you with fresh eyes and clear heads. This proposal is not residential because its use as a residence is merely accessory to its use as an entertainment space. Each of you has the same power as Mr. Boothroy, each one of you. You can set this right, and we trust you to do just that with your individual votes. Thank you very much. And I must speak for all of us. We have appreciated the fact that you have very courteously listened to everything that we have to say. CHAIRMAN BAKER: Jim, before anybody else gets up, I'm going to take about a 15 -minute recess. Get up, whatever business needs to be done. MR. LAREW: To fill you in, we have two more speakers. I don't think they will last long, but we certainly welcome the break. CHAIRMAN BAKER: Sure. So we start again at eight -fifteen. (A brief recess was taken.) CHAIRMAN BAKER: I'm going to take the liberty of starting at eight -fourteen rather than eight -fifteen. I think we're ready to begin again. Jim? 66 1 MS. LAHEY: Good evening. My name is Anne Lahey 2 and I live at 111 Lusk, which is immediately north to 3 the property at issue. Actually, it was the brown house 4 that was pictured above the cars in that one picture 5 where the parking was going on at the game. Obviously, 6 1 have a lot of concerns about adverse consequences of 7 this. Obviously, the sewer was mentioned, the —1 8 believe that it will cause foundation problems, runoff 9 problems, drainage, all those types of things. 10 1 guess what has been concerning, too, is that we 11 had no notice. I have kind of been at these meetings 12 and that's the only, in a sense, notice I've got of all 13 the issues and public notice about any of this. We 14 consequently did terminate the sewer easements if there 15 were any. Last meeting 1 understood from some of those 16 emails that it sounded like that the City thought, well, 17 we would find out soon enough about the sewer problems 18 when the sewer failed, which I think is — is disturbing 19 in itself. 20 On a broader sense, I feel that this clearly is not 21 a primarily residential use. Its principal use is not 22 residential and one thing, when Mr. Boothroy was 23 talking, he said you can't help but notice the bathrooms 24 front and center when you walk into the proposed plans 25 of this. And what I think is concerning also is that Page 62 to 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9.21-16 66 1 We been talked about that 8's a residence because it has the indicia of residential features, such as bathrooms, kitchen, that type of thing, but I think if you look at the actual bathrooms and kitchens, the kitchen facilities in that facility, it's not indicative of single-family residences, and I share with my immediate concerns but also with the neighborhood about all the problems this is going to cause: Safety, changing the character of the neighborhood, which is basically and essentially composed of actual single-family residences. Thank you. MS. SOUTHARD: Hello. My name is Karin Southard, and I've lived in Manville Heights for over 25 years. I'm here representing our neighborhood association, as we believe that something has terribly — has gone terribly wrong. We neighbors came together quickly to fact find because we could get very little Information about the Carlson project. As you heard last week, a meet -and -greet with the neighbors was deemed a lose -lose by City staff. We are deeply concerned not only by the outcome of this process that this party venue could be permitted in our residential neighborhood but also by how the process has — itself has resulted in so many critical errors. We are shocked because so many situations were 67 managed so poorly. Had normal, regular processes been followed, ones involving fair, objective administration of City rules and Iowa law, implemented by persons without bias and without preexisting opinions and interests, we would not be here tonight Our first impressions that this structure was not a residence were affirmed the more we found out about it. As soon as we organized and approached city council asking them for time to get citizen input, the door was slammed shut in our face by Mr. Boothroy, who announced to ABC Nevrs that the permit was to be Issued within days. So much for citizen input. Even though when he made the announcement there was no valid site plan on file, we were then told that it was a done deal and that there was absolutely nothing we could do, so we continued with public records requests. It appears to us that Mr. Boothroy pushed this project through by bypassing expected critical reviews and and from our vantage point, Mr. Boothroy has been telling the Board only some of the facts about key Issues, key points, that unless clarified could misdirect the Board's decision, and I will address these. As slated last week, Mr. Boothroy acknowledged that he and his staff were initially skeptical about the true 08 I nature and principal use of this project. However, for 2 reasons that are unclear, Mr. Boothroy did not follow a 3 required process to determine the principal use through 4 a use analysis, as outlined in city code 144A If he 5 had done so, he could have determined a principal use 6 for the structure. Had he done the objective assessment 7 that city code requires, we believe he could and should 8 have determined via multiple types of possible 9 assessments that the principal use of the Carlson 10 structure is one of entertainment, not residence. The 11 residential use is only accessory to the entertainment 12 use. 13 Had Mr. Boothroy followed the city code procedure 14 and had he determined the Carlson structure cannot be 15 Beady classified within an existing use category, city 16 rode dictates that Mr. Carlson's structure would be 17 prohibited unless that use is incorporated into zoning 18 code via a zoning code amendment. Our expectations 19 concerning the fair and impartial application of our 20 city's code and Iowa's laws by city staff have been 21 challenged. Public records from University Heights 22 document the very controversial nature of the Carlson 23 project in University Heights and that our Iowa City 24 legal department was notified of -- as such in 2016. 25 That controversy focused on the very use classification 69 1 issue before this board; that is, structure should not 2 be classified principally as a residence. 3 Public records produced by the City of Iowa City 4 indicate that a few days — actually, three days — 5 after the Cadson structural plans were submitted to our 6 city in early April of 2016, those PDF files of the 7 actual plans were forwarded to the city legal 8 department. So clearly there was concern about the 9 anticipated use, and clearly the legal department was on 10 notice, and this was a full two months before any of the 11 neighbors became involved, before any of the neighbors 12 knew anything about this. 13 There should have been no question from the start 14 as to the Importance of utilizing the city code's use 15 classification provisions prior to any determination of 16 whether a building permit should have been issued at 17 all. Yet, that did not happen as it did happen in 18 University Heights. Mr. Boothroy's statement that it 19 took so long to approve this permit because he wanted to 20 get it right is odd. The first site plan, as you all 21 have heard — those are the words on the document — 22 that he approved showed the large driveway on the south 23 side originally, and it was emptying into an unpaved 24 street with ruts and old oaks. 25 So how does that square with getting it right? If Page 66 to 69 Board of Adjustment 9-21-16 70 72 1 Mr. Boothroy had, in fad, practiced due diligence, he 1 that start, "Good morning, Reed and Al," and by his 2 would have concluded that he could not, nor should not, 2 eager response time to forward a key intemal city 3 in good conscience issue a building permit for massive 3 memorandum, a very important city memorandum, to 4 new construction that had neither an independent 4 Mr. Carlson when that internal memorandum was only 5 sanitary sewer nor any easement agreement with any 5 copied to four people but yet, he wrote that he wanted 6 neighbor to allow Cadsons' sewage to traverse their 6 to forward it to Mr. Carlson to keep him in the loop. 7 property. As Mr. Boothroy explains in his own 7 This is particularly offensive because at the same 8 submission to the Board on page 138 of the early 8 time, Bill Ackerman — at the very same time, Bill 9 submission packet, the City has adopted the 2015 9 Ackerman was stymied when contacting staff for any 10 International Building Code and the 2015 International 10 Information about the shared private sewer. Yet Carlson 11 Residential Code, and that -- that IRC then defines a 11 got special treatment, and this is from last week that 12 dwelling unit in Section R202 as a single unit — a 12 Mr. Rossi showed you about the response to Bill Ackerman 13 single unit providing complete independent living 13 after over a week time period, he had been asking staff 14 facilities for one or more persons, including permit 14 about the sewer and he gets the response, the city does 15 provisions for living, sleeping, eating, cooking, and 15 not have any information about the condition of the 16 sanitation. 16 joint private sewer that you share with your neighbors. 17 This project had huge sewer problems, ones that 17 Bias and potential bias and the appearance of bias 18 threatened public health and welfare and that were fully 18 are not trivial Issues when it Involves citizen 19 documented in the city's own files, problems that 19 expectations that city code and Iowa law requirements 20 Mr. Boothroy and all of his staff were fully cognizant 20 are implemented by public officials in an evenhanded 21 of and that some staff members repeatedly expressed 21 manner. Therefore, we are deeply concerned that the 22 concerns about but never to the neighbors. The city's 22 lawyer who filed suit against University Heights on 23 absence of timely and substantive communication with 23 behalf of the Carlson is Matthew G. Hekteen, spouse of 24 nearby residents who would be adversely affected by this 24 Iowa City Assistant Attorney Sarah Hektcen. That 25 Kinnick Stadium replica, especially in light of the 25 lawsuit was in effect when Carlsons purchased 101 Lusk 71 73 1 extent of knowledge that the City possessed, stands in 1 Avenue. We are concerned that Assistant City Attorney 2 vivid contrast to the city's frequent communications 2 Sarah Hektcen, the spouse of Matthew G. Hektoen, who 3 with the Carlsons. 3 filed that Carlson lawsuit against University Heights 4 Not only did the City fail to inform affected 4 for that community's refusal to approve construction for 5 nearby residents, but it approved a site plan and a 5 this mini Kinnick, that she, Sarah, was the recipient of 6 building permit to allow this frivolous project to move 6 multiple documents involving the Carlson structure in 7 forward, a project that all neighbors we know of agree 7 Iowa City. 8 that it threatens the sewer, safety, security, and 8 For example, she was one of only four city staff 9 property interests of adjacent owners downstream. We 9 members copied to a key June 17th internal memorandum, 10 are troubled by the fact that from at least 2014, Terry 10 and she was the only attorney copied on it, and this 11 Goerdt was involved with the Cadson project in 11 memorandum went to City Manager Geoff Fruin summarizing 12 University Heights. Terry Goerdt is the same person who 12 the status of the situation. It was a law memorandum, 13 has his initials virtually every step of the way on the 13 and it was generated when the neighbors were alarmed and 14 Iowa City permit process, and he also has his initials 14 asking questions. 15 on the building permit. 15 Recall how many times Mr. Boothroy in his 16 We are bothered —we are bothered that public 16 presentation to the board emphasized how frequently he 17 records show that Mr. Goerdt has had a familiar 17 and his staff consulted with the city attorney's office 18 association with Mr. Carlson and his builder Al Zahasky. 18 when making its recommendations to Issue a building 19 He's had that association for years. Given this prior 19 permit to the Carlsons. The significance is, therefore, 20 involvemenlwith the Carlson project and 20 not lost on us that after we spoke to city council 21 University Heights, there is no way that Mr. Goerdt 21 addressing our concerns about the features of this 22 could have started his review of the same project in 22 structure and that this structure was not residential 23 Iowa City with a neutral mindset that a public official 23 and two days later, Carlson — Carlson submitted a 24 must have when dealing — when applying legal standards. 24 bathroom remodel of the same space, the very same space 25 We are bothered by Mr. Goerdt's familiar emails 25 that we criticize, and that space was what we talked Page 70 to 73 Board of Adjustment 9-21-16 76 safety surrounding such a publicly advertised use is important and requires adherence to fire codes for new construction. The City failed to consider this code which was critical just months before with Mr. Olivelra. Then, having failed to consider the impact of turnarounds on the Carlson' site plan and lot size, the site plan must be revoked and applicable maximums for structure size recalculated and the permit use then be revoked. More than 270 citizens, and most of them are current neighbors — And I want to tell you how many times I've been walking in the neighborhood with a petition or a sign and I've been chased down by neighbors because they want to sign the petition or they want a sign for their yard. Some of them — some of the people who have signed have past ties to the neighborhood and they've signed on an electronic petition, and they've also added comments in opposition of this venue. We are certain that if asked, most of them would love to speak to you tonight, and in the interests of time in connection with the hearing process that has already been really long, we offer the petition, the electronic signatures, and comments to the Board of Adjustment, and that's Exhibit 37, and thank you very 77 much. I really appreciate your time. CHAIRMAN BAKER: All right. You will also provide e copy of your statement as well. MS. SOUTHARD; I will, yes. CHAIRMAN BAKER: Questions? MS. SOUTHARD: Do you want— I will provide a clean copy. CHAIRMAN BAKER: To Sarah and she'll get it to us. MS. SOUTHARD: Questions? MS. SOGLIN: I do have a question. MS. SOUTHARD: Yes. MS. SOGLIN: The association is new, correct? MS. SOUTHARD: Yes. We formed because of this. MS. SOGLIN: And prior to that, was there ever something that occurred in the neighborhood where — MS. SOUTHARD: Never. MS. SOGLIN: — that, one, people didn't like what was happening and banded together? MS. SOUTHARD: Never. Not that I'm aware of. I haven't been involved, and I've been there 20 -some years. MS. SOGLIN: And do you have another comment? (Inaudible) CHAIRMAN BAKER: Make sure those comments get into the microphone. Page 74 to 77 74 1 about last week. That is the space that when you walk 1 2 in the front door, it's flanked by a men's and a women's 2 3 restroom, and we complained about that and two days 3 4 later, Carlson submitted a remodel. So I'm going to 4 5 show you that space again. 5 6 So if you come in the main entrance here, this is 6 7 the original plan that was — that was approved, and you 7 8 come in and there's men's -- women's restroom on the 8 9 left and men's on the right, and you can see that 9 10 there's two urinals and then opposite -- opposite that 10 11 are lockers. And then in the women's restroom, there's 11 12 two toilets and lockers. So what happens — so Carlson 12 13 immediately reduced — after our complaint, he 13 14 immediately reduced within two days the number of 14 15 toilets and urinals and removed the lockers, so you can 15 16 see that this is the bathroom remodel here, but the 16 17 significance is not lost on us that this submission of 17 18 the bathroom remodel was sent immediately to Eleanor 18 19 Dilkes, Sarah Hektoen, and Doug Boothroy. 19 20 What bothers me is why was Carlson allowed to 20 21 modify his plans in an orchestrated effort with City 21 22 staff in an attempt to deflect public criticism. Yet no 22 23 one addressed our concerns. Given the dear knowledge 23 24 from the very start that the Carlsons' proposal would be 24 25 controversial, it would have been easy for the City to 25 75 1 have taken simple, yet important, steps to assure both 1 2 the absence of bias and the appearance of the absence of 2 3 bias. Something has gone terribly wrong in this 3 4 instance. 4 5 We are grateful that Iowa law requires the 5 6 establishment of a Board of Adjustment and empowers you 6 7 all to correct serious errors made by building 7 8 officials. We are confident that upon your review of 8 9 the situation, you will make the necessary corrections: 9 10 One, to determine that a use analysis should have been 10 11 performed and had it been independently performed, based 11 12 upon information produced last week by Mr. Befeler and 12 13 Miss Park, this project cannot be classified as an RS -5 13 14 residential use structure. Therefore, as required by 14 15 law, please send the permit applicants back to request a 15 16 zoning code amendment for new classification for zoning. 16 17 Two, would you please determine that a 17 18 single-family residence must include independent 18 19 sanitation and that without a separate and independent 19 20 sewer, as required by the International Residential 20 21 Code, which Mr. Boothroy states in his own documents the 21 22 City should adhere to, based on either or both of these 22 23 items, we ask you to please revoke the building permit 23 24 application for 101 Lusk Avenue. 24 25 Three, would you please determine that public 25 9-21-16 76 safety surrounding such a publicly advertised use is important and requires adherence to fire codes for new construction. The City failed to consider this code which was critical just months before with Mr. Olivelra. Then, having failed to consider the impact of turnarounds on the Carlson' site plan and lot size, the site plan must be revoked and applicable maximums for structure size recalculated and the permit use then be revoked. More than 270 citizens, and most of them are current neighbors — And I want to tell you how many times I've been walking in the neighborhood with a petition or a sign and I've been chased down by neighbors because they want to sign the petition or they want a sign for their yard. Some of them — some of the people who have signed have past ties to the neighborhood and they've signed on an electronic petition, and they've also added comments in opposition of this venue. We are certain that if asked, most of them would love to speak to you tonight, and in the interests of time in connection with the hearing process that has already been really long, we offer the petition, the electronic signatures, and comments to the Board of Adjustment, and that's Exhibit 37, and thank you very 77 much. I really appreciate your time. CHAIRMAN BAKER: All right. You will also provide e copy of your statement as well. MS. SOUTHARD; I will, yes. CHAIRMAN BAKER: Questions? MS. SOUTHARD: Do you want— I will provide a clean copy. CHAIRMAN BAKER: To Sarah and she'll get it to us. MS. SOUTHARD: Questions? MS. SOGLIN: I do have a question. MS. SOUTHARD: Yes. MS. SOGLIN: The association is new, correct? MS. SOUTHARD: Yes. We formed because of this. MS. SOGLIN: And prior to that, was there ever something that occurred in the neighborhood where — MS. SOUTHARD: Never. MS. SOGLIN: — that, one, people didn't like what was happening and banded together? MS. SOUTHARD: Never. Not that I'm aware of. I haven't been involved, and I've been there 20 -some years. MS. SOGLIN: And do you have another comment? (Inaudible) CHAIRMAN BAKER: Make sure those comments get into the microphone. Page 74 to 77 Board of Adjustment 9-21-16 78 80 1 MS. SOUTHARD: I'm sorry. I am not aware of it. 1 believe a big group of us were also in favor of that. 2 Trish apparently is. 2 MS. SOGLIN: But you're saying "not let it pass," 3 MS. KOZA: I know there have been other instances 3 meaning nobody moved forward to make the request to the 4 where, you know, groups of neighbors have bonded 4 City or -- 5 together to protest an illegal use, yes, but I — 5 MR. BEFELER: No, the request was made and it 6 MS. SOGLIN: There was a concern about something 6 was -- 7 being built, that they were concerned about what was 7 MS. SOGLIN: To the City, you're saying. 8 happening — 8 MR. BEFELER: Not — I guess I don't know if it 9 MS. KOZA: Built or usage, yes. 9 was made to the City. I thought they reviewed the 10 MS. SOGLIN: And — 10 status, and they said it needs to be put to a vote of 11 MS. KOZA: I haven't personally been involved but 1 11 homeowners, and there were some debates in the 12 know personally that they existed, okay? 12 neighborhood. 13 MS. SOGLIN: Was there ever an offer to request 13 MS. SOGLIN: So it never went to a vote. 14 that a historic or conservation or other type of overlay 14 MR. BEFELER: I guess I don't know. 15 district be created? 15 MS. SOGLIN: Okay. 16 MS. KOZA: I — I do think that there was an 16 MR. BEFELER: It was before I moved to the 17 inquiry about that, and it did not pass. There was not 17 neighborhood. 18 sufficient interest in the historic overlay and so it 18 MS. SOGLIN: Thanks. 19 did not happen. 19 MR. BEFELER: But I've done a lot of historic 20 MS. SOGLIN: Interest by who? 20 research. We also banded together when they talked 21 MS. KOZA: Well, I think when you do a survey, it's 21 about closing Lincoln, the local elementary school, so 22 by whom the majority didn't want it. 22 1— there were — A lot of the neighbors got very 23 MS. SOGLIN: Of the neighbors. 23 involved in — in that discussion and that was school 24 MS. KOZA: Yes. 24 board that was relevant. 25 MS. SOGLIN: Neighbors. 25 MR. WEITZEL: Have there been other controversial 79 81 1 UNIDENTIFIED SPEAKER: Majority of the homeovmers. 1 architecture? 2 MS. SOGLIN: Because there's a — I'm not trying 2 MR. BEFELER: Again, not that I know of. I've been 3 to be difficult. There's a whole process so -- 3 in the neighborhood for six years now, so nothing else 4 MS, KOZA: Right. I think there was a process. We 4 that I'm aware of. 5 got letters. I — We -- we personally answered the 5 MS. KOZA: She can answer that. 6 letter, and that's kind of — 1 just know that it — we 6 MS. MADSEN: Can I say something about that 7 didnt get a historic district. 7 question? 8 (Inaudible) 8 MR. WEITZEL: Yeah. 9 MS. SOUTHARD: Any more questions for me? 9 MS. MADSEN: I do not believe that anybody that has 10 MR. BEFELER: My understanding is when the 10 spoken on behalf of the association has mentioned the 11 historic — 11 architecture. The only person that has mentioned the 12 MS. SOGLIN: Would you state your name, please, 12 architecture of this building was Mr. Boothroy. 13 Larry, just so — 13 MR. BEFELER: And I guess what we're trying to say 14 MR. BEFELER: Oh, I'm sorry. I'm Dennis Befeler at 14 Is we're not offended by the architecture on Its own. 15 234 Hutchinson Avenue. I spoke a week ago. My 15 It's that the architecture is an indicator of the use 16 understanding is that the historic preservation issue 16 classification. 17 came before the neighborhood. We — we do qualify in 17 MR. WEITZEL: Okay. 18 terms of the age of homes and the percentage there. 18 MR. BEFELER: When you build something that looks 19 There was a pretty good support, kind of a 50-50. 19 like a stadium, people go there with the intention to do 20 There's a really outspoken person that was very against 20 what they do at a stadium. 21 it, and I — I think some of the fear tactics of you 21 MR. WEITZEL: Okay. 22 won't ever be able to renovate anything, they're going 22 CHAIRMAN BAKER: Karin? 23 to control the windows you put in, you won't be able to 23 MS. SOUTHARD: Yes. 24 plant new trees, and I think some of those issues swayed 24 CHAIRMAN BAKER: You raise the issue of a conflict 25 enough people that — to not let It pass, although 1 25 between the city building inspector or housing Page 78 to 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board 82 inspector, Mr. Goerdt, and his prior role with University Heights. MS. SOUTHARD: Right CHAIRMAN BAKER: The City of University Heights has indicated that the — their official problem was a slope issue. Now, their original discussion indicated, you know, commercial or entertainment venue, so there was a perception, but that perception was not followed through on. Let me finish this question. So my question is to your knowledge or do you have any evidence that Mr. Goerdt, in his rapacity at University Heights, had any role in the definition of the property? They didn't talk about it being single-family residence or not; they just talked about slopes. Was his position — I can ask Doug this as well. As — In his role at University Heights, he made a determination that this was a single-family residence. Do you know for a fact that is true? MS. SOUTHARD: What I know is the — one of the first submissions in the Appendix 7 is an email that is from Steve Ballard in which he states that he and Mr. Goerdt In 2014 determined that it was not a residential — a residential — it wasn't a residence and that it was more recreational commercial. CHAIRMAN BAKER: Okay. 83 MS. SOUTHARD: And that I know that he referred to both of them making that determination. CHAIRMAN BAKER: Okay. I'm just trying to determine whether or not there's already a predisposition on the part of a city building official based upon an opinion he had rendered earlier, but you seem to indicate that his prior opinion was It was not residential. MS. SOUTHARD: We —we don't know. We don't have that information. I'm just trying to connect some dots. All I know is that he was biased coming into this situation. He was very friendly with and had known these people for years, and that's readily apparent from emails. MR. LAREW: There are two dimensions to the University Heights Issue. One Is — and we don't know -- We have the one email where Mr. Goerdt signed on to the opinion that the very same project — dimensions were smaller, but the very same project -- was not residential but primarily something else. We don't know whether he changed his mind in the months and years that followed and changed his mind to determine that it was residential, whether he continued with that analysis — analysis and therefore started his Iowa City assignment with a belief that it was residential, at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9.21-ra 84 least the same project he'd signed on to, or whether he moved from an opinion that it was not residential at University Heights and then changed his opinion in Iowa City, because there is no trail of any use analysis In Iowa City. What we expect of a city official is to come to a problem with a fresh point of view, and we feel Mr. Goerdt didn't have it. Second, how could it be — and 1 believe, Mr. Chairman, that you stated it correctly. That in University Heights' case, the project was rejected because it failed to survive sensitive area ordinance, a very steep lot, and it went through a city council vote. They looked for amendments and couldn't obtain that. How In a situation like that, when you have someone Ike Mr. Goerdt, who has signed on to all of these, knowing that the controversy involved the sensitive ordinance, not question for a moment who at the City is responsible. Then that's an issue that comes into play. How could you approve a building of this size next to one of the steepest slopes in all of Manville Heights and not even say is this something that applies or not? CHAIRMAN BAKER: Okay, but are the University Heights and Iowa City regulations on slopes the same? MR. LAREW: No, but they're so comparable and 85 1 they're aimed at the same kinds of issues. Iowa City 2 did not invent sensitive slope ordinances and neither 3 did University Heights. No, you'd have to go to the 4 particulars. I'm saying conceptually the issue, and 5 there — there are things that cities can easily do not 6 only to avoid bias one way or the other but even the 7 appearance of bias. How could we end up with a 8 situation where the recently most controversial building 9 and zoning issue that we know of in University Heights 10 moved with the same person from that community to this 11 one. It strikes us as being at the very least an 12 inability to see around the comer so that you'd have 13 the same individual with some kind of preconceived 14 notion as to what this project was. Thafs — that's 15 the issue on two dimensions. 16 CHAIRMAN BAKER: Okay. 17 MR. WEITZEL: Are you maintaining the bias in the 18 city attorney's office with the City of Iowa City? 19 MR. LAREW. What we — what we believe Is that good 20 practice would have been whether marital partners who 21 both practice law, and this happens with some frequency, 22 that one side or the other — one is representing one 23 party that's adverse — has an adverse interest. In 24 this case, a person applying for a building permit 25 legally is adverse; that is, they're seeking something Page 82 to 85 1 2 3 4 5 6 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the City has charged with the duty to protect public until they come to some agreement. That should have been what we call in the law Chines firewalls on either side, the law firm and/or the Ci and that not to do so disturbs lay people when yo such a close series of events, one marital partner signing on filing a lawsuit against University Heigh for its denial of it, and then a person who is right i the thick of it on the city's side of the same. Either could have easily written a memo and followed it and — and we would have thought that have been sufficient. Listen, Sarah's got a proble here. We —we asked that all legal questions go some other member of our staff. We've got multi lawyers here and — and the problem is that we're a position to show causality. We're in a position t say we think something's gone horribly wrong. H the checkpoints that would have been there to as right questions, ask the hard questions, how were missed? And we have a view that these kinds of conflicted situations make it difficult for the public to have confidence in the outcome, and then if th outcome is severely off the track, which is what w believe, then we say was that a part of It or not. Those are all of the speakers that we knew o understood that the public had a right to speak, b that we have no other lined up. CHAIRMAN BAKER: All right. Thank you, Ji going to open this up to supporters of the appella now. A couple of guidelines: One, we are absolu search of as much factual information as we can. understand your feelings about this project. I don think there's much of a disagreement about the subjective feelings that this project provokes, so fi of all, before anybody else comes up, I'd like to s you have something factually or some clear state about error by the City, something different to add the previous factual discussions. That would be y first guideline. And the second guideline, if that is not the ca then please feel free to come to the podium, but 1' going to restrict this to three minutes, so I'll be gla to hear from you, but we are helped most by sort accumulation of facts. One other thing, and this is me. I'm not— I don't — I hope that we do not personalize this iss I don't want us to be adversarial to an individual, s just please be considerate of everybody Involved. That's all I would ask. Anybody from the public? If not, I'm going to rty will be used. Speculation about what the rty could possibly be used for cannot override the ve statement of use by the Carlson. Reliance appellants' speculative testimony and irrelevant entation is arbitrary and capricious, and inclusion any finding of facts is inappropriate. fore I get into additional argument and then tation of our witnesses, the applicants, Reed and Carlson, before you tonight, though, is one tforward question: Whether city staff erred in that the Carlsons' building permit application the city code requirements, including the [nation that the proposed structure is a family home. If there was no error, then the meetly applied the code and a permit shall We submit to you that that's exactly what the d. this point, I'd like to introduce Reed Carlson, as prepared comments for inclusion in the record, d want to make sure that our objections are into the record, Counsel. PARMENTER: Thank you, Mr. Fagan. Sarah, can oke sure that those are entered in the record as Thank you. CARLSON: I'm Frederic Reed Carlson, and with Page 86 to 89 Board of Adjustment 9-21-16 86 the 1 to allo there 2 of the Chinese 3 appell ty, 4 you so u have 5 M 6 My na ts 7 Carlso n 8 appre 9 these i 10 state Ia would 11 Fi m 12 to App to 13 irrelev pIs 14 are not not in 15 consid 0 16 presen ow come 17 sanita k the 18 street, they 19 ordina 20 zoning 21 Univer e 22 do is n e 23 you. 24 M f. We 25 which i 87 ut 1 prope 2 prope m. We're 3 definiti nt 4 on the tely in 5 docum We 6 of it in t 7 Be 8 presen rst 9 Sandy ay do 10 straigh ment 11 finding to 12 met all our 13 detern 14 single - se, 15 City co m 16 issue. d 17 City di of the 18 At 19 who h 20 but I di ue. 21 entered 0 22 MR. 23 you m 24 spoken. move 25 MR. 88 w the applicant to address the board. Applicant original building permit as opposed to the ant. And you have a lot of time to deal with, if choose. R. FAGAN: Members of the board, counsel, staff. me is Brian Fagan, and I represent Reed and Sandy n. Thank you for your service and dedication. We ciate the time you volunteer to serve to study ssues and render a decision that comports with w and our local ordinances. rst, I want to enter into the record an objection ellanls' testimony and documents related to ant Issues that are not before this board, that appealable to this board, and should not be ered by this board. As the City indicated in its tation, the issues related to or dealing with the ry sewer, the fire code, stormwater, drainage, and among others, including the sensitive areas nee that we heard about this evening, are not related. In addition, information related to the sity Heights application and what it did or didn't of relevant to the decision that you have before oreover, we object to the appellants' testimony, s based on speculation and innuendo about how the 89 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 K612 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of 90 my wife, Sandy, here tonight with me, we are the couple wanting to build a single-family home dwelling at our lot at 101 Lusk Avenue. I'd like to thank the board for their voluntary service to the City and hope that we can answer any questions you may have. We firmly believe that this house that we intend to build meets all of the guidelines of a single-family dwelling and intended use along such lines with our— we will use — along such lines with our extended family and friends. My mother grew up in Iowa City at 321 Melrose Court, and my parents met at the University of Iowa after my dad returned from World War II. They were married here in Iowa City at St. Patrick's on February 5th of 1949. My maternal grandparents lived in Iowa City when I was a young child, and we visited as often as possible. One of my stepmother's brothers, Don Winslow, played football for the University of Iowa in the late'40s. He was an All-American his senior year and drafted by the Washington Redskins in 1950. My mother made sure that I grew up a diehard Hawkeye fan. I attended Iowa football games in the '50s,'60s, and'70s and have been a U of I football season ticket holder in some fashion since 1975, and have attended most of the home games since 1975. At the present time Sandy and I have four married 91 children and six grandchildren with the hopes that we Will have more grandchildren in the future. One son lives here in Iowa City with his wife and three of our grandchildren. He and his family were here at the meeting last week but are unable to attend tonight. We have spent considerable time in Iowa City since 2010 after our son moved back to the area. It is our hope to spend even more time here in the coming years sharing life events and holidays with all of our family members. Four of our children and two of their spouses graduated from the University of Iowa. While three of them have relocated, one to Decorah, New York City, and Denver, they all enjoy coming back to Iowa City to visit friends and attend events. The close proximity of the Cedar Rapids airport and a family home in Iowa City — in the Iowa City area will facilitate these visits. The Iowa City area is centrally located for many of our immediate family members as well. Sandy's family lives in the St. Louis area, including her 87 -year-old mother. While my 90 -year-old father and my 78 -year-old stepmother live in Decorah, most of my family is somewhat scattered. It is, therefore, closer for the majority of them to come to Iowa City than it is to our home in Decorah. Most of our family attends at least one Iowa nent 9-21-16 92 1 football game each year and some considerably more. We 2 feel that this will be a central gathering spot for our 3 family for years to come as we celebrate many future 4 life events such as birthdays, holidays, and school 5 events, as well as University of Iowa and community 6 events. 7 I'd like to take you through the floor plan, with a the help of Brian, of the house and add my perspective. 9 We will start on the second floor with what we call the 10 kids' bunk room. Here are four built-in bunk beds with 11 a small play area and attached bathroom. This is a 12 place for the cousins to sleep and enjoy time getting to 13 know each other better. Down the hall are two guest 14 bedrooms for our adult children and spouses, and they — 15 and it shares a bathroom, those two bedrooms. Then we 16 come to the stairway and laundry room and then a master 17 bedroom with a walk-in closet and connected master bath. 18 All of this, I believe, is pretty straightforward and 19 certainly nothing out of the ordinary. 20 The main or ground floor Is at the bottom of the 21 stairway that enters into the kitchen and dining area. 22 The kitchen is a large, open kitchen with a large 23 island, a trend that we have seen over the last two 24 decades. It's going to be a nice kitchen but not a 25 commercial or industrial kitchen. We also wanted it to 93 1 open onto the three -season porch, which has a grill, to 2 give us flexibility of eating on the porch or in the 3 dining area depending on the time of year. There are 4 three glass patio doors that access the three -season 5 porch and three overhead glass garage doors that open up 6 to the courtyard to let in ample natural light. The 7 courtyard is designed for children and adults to throw a 8 ball or play games on. 9 The dining area is just off the kitchen and 10 constrained to a certain degree by the layout of the 11 house, so we felt that the long bench with the three 12 tables would suit us best. The three tables give us 13 lots of flexibility and easy egress. There's also a 14 stairway to the cellar between the dining area and the 15 kitchen. Off of the dining area is a play room for 16 children and also a living room. 17 As you round the comer, you enter the main entry 18 to the home off of which there are two half bathrooms 19 that include cubbies to hang coats. These half baths 20 are also accessible from the courtyard. Since the theme 21 of the house is Kinnick Stadium, these are to mimic the 22 home and visitor locker rooms with one being the iconic 23 pink visitor locker rooms for which the stadium Is 24 famous. We've revised these to add more room to the 25 play room, at my wife's insistence. Page 90 to 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-21-16 94 1 Continuing on is the family room with a viewing area that overlooks the two — two-story sports court below and sliding patio doors onto the courtyard. After the sports court is an exercise room and attached three -car garage. Entering the house from the garage, you enter into the owner entry or mud room. Hereis an area with a sitting bench and more coat hooks. To the right Is another bedroom designed for those with limited mobility. As I mentioned earlier, my father Is 90 and Sandy's mother is 87, and both have mobility issues. It is our hope that along with my 87 -year-old — or 78 -year-old stepmother will be able to visit on occasion. This bedroom with attached handicap accessible bathroom and handicap shower is designed with those issues in mind. We are also looking down the road with our own aging in mind, and that Is why the bedroom is on the ground level and has a no -step entry from the garage. Our current house that we built in 1993 has no bedroom — has no bedrooms on the main level, so we were mindful of this as we designed this house. This completes the ground -level rooms. Moving down the stairway off the kitchen and dining area into the cellar is a low — lower -level play room and storage area. The cellar also houses the mechanical room, a bathroom, and theater roam. The lower level 95 also includes the sports court with basketball hoop. There is a stairway between the theater room and sports court with an egress window at the base. We hope the theater room and sports court will be a fun place for grandkids, parents, and grandparents to bond. We have no desire to rent out our house in whole or part or to tum it into a bed and breakfast. We do plan to celebrate many of the events that families do together and that — that I had stated earlier. Yes, we plan to tailgate, like many others in Iowa City as permitted by the city code and respect our neighbors in the neighborhood. The house design gives us — keeps us contained almost exclusively within the walls of the house and out of sight. We do not plan to sell anything out of our home at any time. Even though the Issue is not before this board, Appellants continue to raise the issue regarding the sanitary sewer service. We will work with the City on addressing that issue if there is one. We do not anticipate any issues with it or hurdles to having sanitary service. MR. FAGAN: Explain the parking. I think the relevant issue that came up with the parking in one of the earlier slides, and I think certainly explain that MR. CARLSON: That was the Iowa State game and we 1 2 3 4 5 6 7 8 9 10 31 12 13 14 15 16 17 18 19 20 21 22 23 24 25 96 did not tailgate in our regular spot, and I came down here with some friends, and when we got to our lot at 101 Lusk, the cutout where the driveway is was blocked by a car that had Florida plates on It. So we jumped the curb, parked on the lot, and I left a note on the windshield of the van that had the Florida plates on it that had parked In front of the drive and asked them please not to park in front of our driveway again. My business partner, who had driven down earlier in the day and had tailgated at some other spot and then came over to join us, called me and said, "I thought I could park on your lot," and I said, "Yeah, I don't know what to tell you because ifs blocked." So I think he ended up obviously parking down at the end of the street. And I think that it was mentioned that someone else — another friend of mine had given his tickets to somebody and told them thalthey could park at our lot, and they called me on their phone and 1 said, "I'm sorry, I don't know what to tell you." You know, "You can't park on our lot because the driveway's blocked," and I — you know, "You'll have to find alternate parking." So I don't — I don't know where they parked. That's the last I heard from them, so — MS. SOGLIN: Can you just talk a little bit more 97 1 about the change that was made to the bathrooms on the 2 main Floor? 3 MR. CARLSON: My wife has been very adamant about 4 play space in this house and -- for children and 5 especially on that ground level, so in some respects, 6 you know, we — we hear the chatter, so to alleviate 7 some fears, I guess, we added space to that playroom and 8 took out a toilet and a urinal. 9 MS. SOGLIN: But nobody specifically directed 10 you — no one specifically directed you to do that? 11 MR. CARLSON: No. 12 MS. SOGLIN: Thank you. 13 MR. WEITZEL: I mean obviously it's your choice to 14 put whatever fixtures in your house you want, but why a 15 urinal and why a separate men's and women's restrooms? 16 MR. CARLSON: Well, I think as I stated earlier, 17 the theme of the house is Kinnick Stadium. Therefore, 1 18 thought it would be apropos to have a men's and women's 19 locker room, visitor/home locker room. I had no idea it 20 would cause this much consternation to people, quite 21 honestly. 22 CHAIRMAN BAKER: Mr. Carlson, thank you for coming 23 down. You'd said that you would be willing to work with 24 the City on the sewer issue if there is an issue. Are 25 there any other issues that have been raised tonight Page 94 to 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 98 which you would be amenable to working with the City to 1 resolve? For example, the slope issue? 2 MR. CARLSON: I think, you know, we've always been 3 eager to work with the neighbors and the City, even in 4 University Heights. Yes, we would be — 5 CHAIRMAN BAKER: Okay. 6 MR. CHRISCHILLES: If it was determined that due to 7 the length of the —the length of the street exceeding 8 150 feet, but turnaround -- fire turnarounds were 9 necessary, would you be amenable to sacrificing part of 10 your property to create such a turnaround, thereby 11 reducing the overall plan and size of your structure? 12 MR. CARLSON: I think we'd have to take a long, 13 hard look at that 14 CHAIRMAN BAKER: It would require somewhat of a 15 redesign. Mr. Fagan? 16 MR. FAGAN: Yeah, I think you mentioned the issue 17 of the slope. I think the City will have some 18 additional comments on that but — and certainly clarify 19 some of the record. I think the use of the term 20 "applicant" that you were questioning the professor on 21 at least in some part relates to the applicant for the 22 sensitive area ordinance review, not the applicant for 23 the home. And so I think — I want to make sure that's 24 clear, at least look at some of that, and I think the 25 99 City may have more information related to that But I think, you know, it's been shown a willingness to work with — to work with the — MR. CHRISCHILLES: i don't understand what you're saying. MR. FAGAN: I think that the use of the term "applicant" in that provision, the code provision, relates to the Issue of the applicant for sensitive area ordinance review, and I think the City may have some additional information on that to clear that up, but that's the term "applicant." The applicant is not the homeowner necessarily; the applicant is the sensitive areas ordinance review. CHAIRMAN BAKER: We'll let them talk about that. Back to the sewer issue. It is my impression from previous testimony by the City that indeed they recognize that there is a problem that if this lot was being subdivided, they would have required a different kind of sewer arrangement. Is that not your understanding? I just want to identify a problem. The problem can only be fixed if it was subdivided. But what we're saying now is, Mr. Carlson has indicated a willingness to work with the City on a problem. The problem is established. It's just the city's power to solve the problem. 9-21-16 100 MR. FAGAN: Yeah, and first we would submit that the issue of the sewer is not properly before this board, but in addressing that issue, yes. If the lot were to be subdivided, then there would have to be a different solution for the sewer service, and the City explained the number of reasons why that would have to be, but in this particular instance, there may be another solution with the sewer issue other than using the current existing easement, and that's something that I think, you know, the Carlsons would work with the City on, whatever that may be. CHAIRMAN BAKER: Okay. All right, thank you. MR. CHRISCHILLES: In your opening statement, you — you listed several things that you felt were not -- or the City had already stated that were not part of the zoning code and, therefore, we — we could not rule on those issues. However, tonight when the sensitive slope argument was presented, at least as far as 1 could see, all the examples of pages that he was citing came directly from the =the city's zoning code, and so how could that be included in your list of things that we cannot rule about? MR. FAGAN: One — MR. CHRISCHILLES: You're saying those aren't? Those -- those -- those pages are not part of the zoning 101 1 code? 2 MR. FAGAN: No, that's not what I'm saying. I'm 3 saying that the issue of the sensitive area ordinance 4 review and any application for that is not before you. 5 There hasn't been an application for that review. So 6 that's all I'm saying. 7 MR. CHRISCHILLES: But — but also, you're — it 8 could be that the — the appellants' argument, then, was 9 that the error was made when that was not included in 10 the process to determine the issuance of the building 11 permit? 12 MR. FAGAN: Yeah, that's right. It — It is not 13 necessary to be included in that process for the 14 approval of a single-family home. 35 CHAIRMAN BAKER: So are you — You're rejecting 16 the interpretation of the appellant that the clause 17 provided that so on, so forth, does not apply. 18 MR. FAGAN: I can save that for rebuttal, but yeah, 19 1 want to look at that. But, yeah, that's absolutely, 1 20 think -- I'll let the City explain its sensitive area 21 ordinance and its application to this before I venture 22 any further down that road. 23 CHAIRMAN BAKER: Okay. 24 MR. CHRISCHILLES: And if you're basing an argument 25 on the fact that you're presuming that it is correctly Page 98 to 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Yid 22 23 24 25 Board of Adjustment 102 classified as a single-family home, then all arguments 1 that they —are —that stem from that are not 2 necessarily valid because the determination of whether 3 it's misclassified has yet — is yet before us. 4 MR. FAGAN: Well, I'm — I'm basing it on the code 5 and what the code provides and the strict language in 6 the code. That's what I'm basing that argument on. It 7 was property deemed a — a single-family residence. 8 MR. CHRISCHILLES: But if— 9 MR. FAGAN: And it wasn't misclassified. As that 10 term has been used by the appellants. 11 CHAIRMAN BAKER: Okay. So you're both looking at 12 the same language, and your interpretation says that the 13 City is not justified or— in requiring the applicant, 14 Mr. Carlson, to consider the slope issue, and the app — 15 the appellant seems to be saying their interpretation of 16 the code directly is the opposite of that. So we have 17 two — I want to say we have two conflicting 18 interpretations of the same language. Is that a fair 19 statement? 20 MR. FAGAN: That very well may be the case. Again, 21 1— I will wait to hear the city's response on its 22 sensitive area ordinance instead of confusing or 23 confounding the record even more at this point. So, 24 yes, 0 might be -- that may be a fair statement. 25 103 Another issue, I'm not sure exactly how far out they're locking at the slope and whose actual property that Is in terms of the CRANDIC right-of-way, but you necessarily would be entering into an area where the railroad right-of-way and your authority over that and in terms of what you can do may be preempted by federal law. I don't know that, but as that issue was brought up to me tonight, that's something that I would want to look at as well. CHAIRMAN BAKER: So it's to be litigated, then. MR. FAGAN: No, no. I'm not saying that. Not at all. No, not at all. There's nothing -- No, there's no spectre of that. CHAIRMAN BAKER: Any other questions? For Mr. Carlson, MR. FAGAN: If I may introduce Sandy Carlson. CHAIRMAN BAKER: Sure. Thank you, Mr. Carlson. MS. CARLSON: Hello. My name Is Sandy Carlson and I'm one of the owners at 101 Lusk Avenue. First of all, I would like to say that I agree with the statements that my husband Just made and his explanations, but I would like to — I have a few comments that I would like to make to clarify our intentions regarding the property. In 1977, after receiving a master's degree in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 e-21-18 104 communication disorders, I moved from St. Louis, Missouri, to Decorah, Iowa. I accepted a position as a speech-language pathologist with the Area Education Agency, and I worked for the AEA 1 my entire working career until retiring in 2008. The year before my retirement, I was awarded the Friend of Education Award from the Howard W nneshiek Education Association and was the only person to receive such award who was not an employee of the Howard Winneshiek School District. Why is this relevant to what we are discussing here tonight? I am very troubled by comments that have been made at meetings, through emails, and to the press, remarks about the expected behavior of Reed, of me, of our family, and they've presumed unfairly not only that we won't be good neighbors but that we won't obey the law. Mostly I'm troubled by the allegations that our behavior would even put children in jeopardy. Many of these remarks have been made by people in this room. I've spent my entire adult life advocating for children and specifically the children of northeast Iowa. I certainly have no intentions of participating in or allowing any activities on our property that will result in children being placed in any jeopardy or being injured. I have grandchildren In Iowa City that I plan on nurturing throughout the year. This residence is 105 being built as a home for my family throughout the year, not just on football weekends. I support Reed in building a Kinnlck A hyphen? style home. This has been his dream, and I support him in that. But for me, the emphasis is solidly on making a home for our family. This is the principal use of this property. The question that everyone wants to know, this is it. We have tailgated on the property of the University of Iowa for over 35 years without incident. I'm convinced that the passage of time will show this community that we are good neighbors. Thank you very much. CHAIRMAN BAKER: Thank you. MR. FAGAN: Do you have any questions? MS. CARLSON: Oh, I'm sorry. CHAIRMAN BAKER: Do you have questions? MR. FAGAN: I have a brief PowerPoint that I'll be using here at some point during the presentation, okay, and I'll provide copies of it for the record as well. Members of the board, your counsel has set forth the applicable law and the city's professional staff has addressed the relevant issues that are properly before this board, as well as the irrelevant issues that are not before you tonight. You've heard from Reed and Sandy Carlson about their sincere intention to occupy Page 102 to 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 s 9 30 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-21-16 106 1 this home, this residence, with their family. This isn't about whether you or I or the neighbors approve of the style choices chosen by the Carlsons and what they have made in designing their home. It's not about property values, parking, or even tailgating. Those decisions went into drafting the code that was approved by the city council. They had those policy discussions, and they implemented that. This decision is about applying that Code. We think the professional staff did a thorough and accurate review of this single-family home, and they exhaustively addressed all the objections presented in this appeal. The City and its professional staff have complied with state law and local ordinances which directly govern the request for the building permit for this single-family home. Under the circumstances, staff likely knew that the issuance of the building permit would be subject to scrutiny and possibly challenged. Given this anticipated scrutiny, their review and analysis was not undertaken likely. They should be congratulated for assuring that the decision to issue a building permit was based on their strict compliance with the applicable state law and local ordinances in the face of this anticipated scrutiny. The use of the Cadsons' 107 single-family home conforms on the zoning classification, and no special exception is needed or before you, No variance is needed or requested or before you. The design and construction of this single-family home Is and will be in compliance with the city code and standards. Reed Carlson has assured the City of his intentions just as he has the board here tonight, as has Sandy. There's no more that he can do nor is he required to do to satisfy the requirements of the zoning code. The professional staff Is absolutely correct when they tell you that it has no authority to deny a building permit based on the architectural design of a structure for a property that is not part of the historic district. The 2015 Residential Building Code expressly provides that if the proposed work conforms to all of the requirements of this code and the applicable laws and ordinances, the building official shall issue a permit, therefore, as soon as practicable. Site plan review is also not required for the development of the single-family dwelling or one- or two-family dwellings or related accessory structures in any zoning district. Accordingly, all of the appellants' complaints regarding requirements under Title 18 in the city zoning code are irrelevant before 108 1 this board tonight and this board's decision. In 2 addition, no analysis is needed under Section 14-A2 3 because a single-family dwelling is specifically listed 4 in the zoning code. 5 The appellants wrongly assert that the City failed 6 to undertake an analysis under this section, but because 7 this is clearly a residence and that use is an example 8 in the zoning code, this analysis is not applicable. 9 But nonetheless, Appellants rely on six of the 16 10 factors in their appeal, and the appellants, in order to 11 support these arguments, have advanced speculative 12 accusations about the type of use they suspect the 13 structure could be put to and presume unfairly that the 14 Carlsons will disobey the law. They rely on 14 -4A -2.A, 15 the description of the use or activities in comparison 16 to the stated characteristics of each use category. 17 The Carlson residence has one set of facilities for 18 cooking, one dining room, one laundry room, a master 19 bedroom with master bath. This structure has clearly 20 not been set up for commercial enterprise or multi - 21 residential living. It might be well adapted for a 22 family of sports fans, but it's not adapted for 23 commercial use. 24 They also rely on 2 b., the intensity of the 25 activity or use In comparison to the stated 109 1 characteristics of each category. Again, the appellants 2 rely only on speculation to advance their argument. 3 They make no credible argument related to this point 4 because there is no use other than residential from 5 which to build this comparison. There isn't a 6 restaurant, there isn't a gift shop, there's not a 7 commercial kitchen involved here. All of these uses a contemplated by the Carlson design are unquestionably 9 residential. 10 The appellants rely on 2 c., the amount of site or 11 floor area and equipment devoted to the use or activity. 12 Again, I entered my objection to the documents, but 13 Mr. Befeler compiled some percentages of what he 14 speculates to be the use and allots certain time to it, 15 and he does that in affidavit as well. That's a 16 speculation that we can't rely on. Consistent with the 17 zoning code, the vast majority of the floor area is 18 devoted to uses that are unquestionably residential or 19 permitted accessory to a residential: Bedrooms, 20 kitchen, family room, exercise room, garage, theater. 21 The City testified and stated that they have had 22 other sports courts and theaters in the city of 23 Iowa City. The activities the appellants are most 24 suspicious of, the sports court and the theater, are 25 clearly permitted uses in a residential facility. Such Page 106 to 109 Board of Adjustment 9-21-16 112 Land uses are assigned to the use category that most closely describes the nature of the principal use. The city staff correctly assigned the Carlsons' residence to the category that most closely describes the nature of the principal use, that of a residential. Again, going back to the objection about University Heights, this is not University Heights. Iowa City is not University Heights. Appellants would have you believe that if University Heights denied the Carlsons a building permit, if that's what happened, the City of Iowa City should too. That argument has no merit. The project, the process, and the code are all different. The red herring number one: It's a different project. As the city staff pointed out, the structure proposed in University Heights is not the same one proposed in Iowa City. Its enough for the Carlsons to have to defend their design in Iowa City without having to defend a different design in University Heights. Error cannot be assigned to the City or staff for not imposing University Heights' regulations on a different design when considering an Iowa City permit. Red herring number two: This is a different stage of the process. University Heights' city attorney responded to a preliminary set of plans, not a decision 113 from a board of review. This board should not consider that preliminary and conclusory opinion on a different project as evidence that the Carlsons' proposed residence in Iowa City is not permissible. Red herring number three: A different code. The University Heights zoning code is different than the Iowa City zoning code. Iowa laws — Iowa law allows a city to adopt their own zoning rules and regulations which typically differ from city to city. Iowa City zoning code discusses the characteristics of residential uses, including facilities for sleeping, cooking, and eating meals, the characteristics present in the Carlson home. And for the intended use that they will be using them for. The email from the University Heights attorney relies on University Heights Ordinance 79, and that ordinance doesn't use the term "sleeping, cooking, or eating," so there are plenty of differences within codes. But I feel compelled to address this. While I object to it, and I don't think It should be considered or work its way into the finding of facts, it needs to be addressed. Now, the Carlson home is property categorized using the criteria in the Iowa City zoning code. Its not relevant or productive to consider what might have Page 110 to 113 110 1 features are present in other homes in Iowa City, as 1 1 2 stated, and the floor area devoted to these activities 2 3 does not predominate. 3 4 Again, the appellants rely on 2 h., the building 4 5 and site arrangement. Again, the appellants offer only 5 6 speculation and innuendo about the home to prop up the 6 7 argument that the proposed structure is not a 7 8 single-family home. It has a front door that can be 8 9 approached from the street, like virtually all 9 to residences. It has separate entrance through an 10 11 attached garage, similar to many, many homes in 11 12 Iowa City. The arrangement of kitchens, bedroom, and 12 13 bathroom doors is not uncommon. 13 14 Is the design uncommon? Yeah. But that's not 14 15 before this board. The Issue of architectural review is is 16 not before this board. It Is not sized or configured 16 17 for a commercial enterprise because it's not intended to 17 18 be. The Carlsons gave you their testimony on that and 18 19 their position and their hopes and aspirations for what 19 20 this home will be for them. 20 21 The number of vehicle trips generated by the use or 21 22 activity. Appellants don't explain how the Carlsons' 22 23 proposed home generates more vehicle trips than any 23 24 other residents. They speculate that because there may 24 25 be tailgating, there might be more vehicle trips. 1 25 111 1 speculate during this time of year that because of the 1 2 number of political fundraisers, there are going to be a 2 3 lot of neighborhoods that have a lot of visitors, but 3 4 that's not before this -- this — this board. Nothing 4 5 in the zoning code allows you to deny a permit because 5 6 the appearance of the residence is unique or because 6 7 they allege curious people may seek it out to look at 7 8 it. 8 9 Appellants' arguments are founded on the 9 10 unsupported speculation that the Carlsons will violate 10 11 the law, not in some violation of the zoning code. If 11 12 any resident of Iowa City takes it upon himself to turn 12 13 a residential property into commercial enterprise, 13 14 traffic counts may rise. That doesn't make the 14 15 structure itself nonconforming. The zoning code has 15 16 issues and areas that they can deal with based on that. 16 17 14-4A-2 k., how the use advertises itself. The 17 18 Carlsons have no intent to advertise anything about 18 19 their home. The comments that Appellants attribute to 19 20 the Carlsons weren't published by the Carlsons. They 20 21 have consistently told everyone from city staff to you 21 22 on the board tonight that this is intended to be their 22 23 home. Will one use of it to be to tailgate? Yes. Will 23 24 one use and many uses of it be to spend time with their 24 25 family and the life events? Certainly. 25 9-21-16 112 Land uses are assigned to the use category that most closely describes the nature of the principal use. The city staff correctly assigned the Carlsons' residence to the category that most closely describes the nature of the principal use, that of a residential. Again, going back to the objection about University Heights, this is not University Heights. Iowa City is not University Heights. Appellants would have you believe that if University Heights denied the Carlsons a building permit, if that's what happened, the City of Iowa City should too. That argument has no merit. The project, the process, and the code are all different. The red herring number one: It's a different project. As the city staff pointed out, the structure proposed in University Heights is not the same one proposed in Iowa City. Its enough for the Carlsons to have to defend their design in Iowa City without having to defend a different design in University Heights. Error cannot be assigned to the City or staff for not imposing University Heights' regulations on a different design when considering an Iowa City permit. Red herring number two: This is a different stage of the process. University Heights' city attorney responded to a preliminary set of plans, not a decision 113 from a board of review. This board should not consider that preliminary and conclusory opinion on a different project as evidence that the Carlsons' proposed residence in Iowa City is not permissible. Red herring number three: A different code. The University Heights zoning code is different than the Iowa City zoning code. Iowa laws — Iowa law allows a city to adopt their own zoning rules and regulations which typically differ from city to city. Iowa City zoning code discusses the characteristics of residential uses, including facilities for sleeping, cooking, and eating meals, the characteristics present in the Carlson home. And for the intended use that they will be using them for. The email from the University Heights attorney relies on University Heights Ordinance 79, and that ordinance doesn't use the term "sleeping, cooking, or eating," so there are plenty of differences within codes. But I feel compelled to address this. While I object to it, and I don't think It should be considered or work its way into the finding of facts, it needs to be addressed. Now, the Carlson home is property categorized using the criteria in the Iowa City zoning code. Its not relevant or productive to consider what might have Page 110 to 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 114 happened in University Heights if the same project had been submitted to the Board of Adjustment under the same rules. Your job, like the professional staff, is to apply the Iowa City zoning code. The 2016 Residential Building Code expressly provides that if the proposed work conforms to the requirements of this code and the applicable laws and ordinances, the building official shall issue a permit, therefore, as soon as practicable. So the factors set out in that section do not need to be weighed, but even if they are weighed, the city's classification is still appropriate. If you think that there is any ambiguity in that ordinance, the rule is that any ambiguity In a zoning ordinance should be resolved in favor of the unrestricted use of the land by the owner, and that restriction should not be extended by implication or interpretation. While this section is not applicable, the Carlsons' home still passes this analysis. Appellants raised a litany of speculative objections of granting — to the city's granting of the building permit. Appellants want you to believe that their speculation about a use to which the Carlson property or any property might be used should override the Carlsons' consistently stated use. Reliance on the appellants' speculation is arbitrary and capricious. 115 Moreover, error cannot be assigned to that city staff for not imposing University Heights' regulations as a different design when considering this permit. The Carlsons respectfully submit that the plan submitted to the City and the city's professional staff and memoranda and testimony clearly establish compliance with all city requirements on such Issues as fire safety, erosion, control, drainage, and sewer. The red herrings that Applicants have raised in an effort to prevent construction are not relevant and should not be considered. The request for a building permit complies with every aspect of the citys zoning code. I appreciate the comments about not getting personal and not making this personal, and certainly we're respectful of that and understand that when we're dealing with issues of individual property and property rights and their homes and their neighborhoods, that sometimes that can happen. And my clients certainly appreciate that, and this has not been an easy or difficult process on them, but they're committed to doing this because they want this home for their family. Iowa City has long billed itself, and rightfully so, as a great place to retire, and that's what people want to do. My clients want to build a home. Some people may not agree with the design. They don't want nent 8-21-16 116 1 to build a home just to tailgate, they want to build 2 their home for their family as that family grows and as 3 they have the opportunity to share that with their 4 family. Its easier for their family, as they testified 5 to, for them to come to Iowa City. Some family is 6 already here. And that's what they want to do with this 7 home. This is a family residence, and you heard Sandy's 8 testimony about this. 9 I'm — I know it was difficult for them to sit 10 through this and listen to a lot of the allegations and 11 speculation against them. They don't take that lightly 12 and those allegations lightly and that speculation, but 13 they're committed to building this home and to making it 14 the family residence that they so hope for. On behalf 15 of the Carlsons, we respectfully request that you uphold 16 the decision of the building official to classify that 17 structure as a single-family dwelling and affirm the 18 subsequent issuance of the building permit and that the 19 stop work order be lifted. 20 Again, thank you for your time and your service. 21 We understand this is a volunteer board and that you 22 have decisions in front of you. While difficult in 23 terms of the public impact, in terms of the law that you 24 must apply, we believe that decision is very clear. 25 Again, thank you. 117 1 CHAIRMAN BAKER: Any questions for Mr. Fagan? 2 MS. SOGLIN: I'm not sure if you want to address 3 this now or maybe in the rebuttal, but — So it's my 4 understanding people have said that the 2015 Residential 5 Building Cade specifically calls out sanitation as part 6 of this definition of a single-family dwelling. The 7 city's code does not mention the word "sanitation." 8 Just — Do you have comment on that? 9 MR. FAGAN: Well, the comment is a couple of 10 things. One, at the end of the day what will have to be 11 issued by this department will be a certificate of 12 occupancy, and certainly there is an existing easement 13 for them to use that sanitary sewer. I understand that 14 they've come in and said that they've revoked that 15 easement, and that's a different legal argument. 16 That's — It's not before this board. But we believe 17 that that issue, one, is not before the board but it can 18 be remedied through various methods, whether its an 19 extension of the sewer or going across the street. So 20 again, the code before you Is the zoning code, and it 21 clearly classifies this as a residential structure. 22 MS. SOGLIN: I think I still have a question, but 1 23 will wait for further discussion on this then. 24 CHAIRMAN BAKER: Tim? 25 MR. WEITZEL: You mentioned Tide 18's not Page 114 to 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 118 relevant. What about the site plan in Title 16, or is that sewer, I guess? The site plan, what do you think of that, the requirements for a site plan? MR. FAGAN: Well, because it's a single-family dwelling that they — they don't -- its exempted from that and they don't have to review that, but certainly it's submitted, a plan is, to approve and to get the building permit, but again, they don't have to do the site plan review under the existing code. MR. WEITZEL: Okay. MR. CHRISCHILLES: You spoke a lot about the speculative nature of the appellants' comments, but the Carlsons' comments in regards to frequency of use for various activities and — I'm not doubting — they've been clear and upfront about what they intend to do at the — at the property, but in terms of how frequent those activities will be, the size of the activities, aren't those all speculative comments by the Carlsons until they actually would occupy the structure and prove what — what they're doing and how often they're doing it? MR. FAGAN: With the exception that — that the speculation of Appellants is premised on them breaking the law, and — MR. CHRISCHILLES: I didn't— 119 MR. FAGAN: — they have no intention of breaking the law. MR. CHRISCHILLES: I don't think that was mentioned. MR. FAGAN: What I'm saying Is that they would -- The allegations are that they're not going to comply with the code or that they, you know, will be having parties of 200 people. We don't know that. MR. CHRISCHILLES: No, the comments were directed towards the passible misclassification of use of the structure. MR. FAGAN: And — and again, based on them having 200 people at an event, and that's not what the Carlsons have done. That's not what they do. MR. CHRISCHILLES: So it's — But I'm — I'm saying that that's -- that's no more speculative than — than them saying that we're just going to have a few tailgates and most of our time is going to be spent in family get-togethers. MR. FAGAN: That's their stated intent, yes. It's their intent. MR. CHRISCHILLES: But that's also — Don't you agree that that's also speculative in nature? You don't have any proof that that's what they're going to do until they actually do it. nent 9.21.16 120 1 MR. FAGAN: Until they do it, sure. 2 MR. CHRISCHILLES: So its spec— it's 3 speculative. Just as if on the other side of the coin, 4 that you're arguing that the appellants are saying 5 things that are speculative. 6 MR. WEITZEL: They've signed an affidavit, though: 7 right? 8 MR. FAGAN: Yes. And we will provide the 9 statements as well for the record. 10 MR. CHRISCHILLES: But the affidavit Is not - 11 doesn't carry any more weight than — I -- I don't see 12 it carrying any more weight than any statement that 13 anybody — any other speculative statement that somebody 14 might make. 15 CHAIRMAN BAKER: Gene, just — and Mr. Fagan, and 16 maybe you can resolve this between the two of you. The 17 purpose of the intent of use and the affidavit of use is 18 to establish intentions, but they're not contracts of 19 conduct. Is that not true? 20 MR. FAGAN: They're not contracts of conduct. 21 CHAIRMAN BAKER: Yeah. In other words, the 22 affidavit of use says that we agree that this is not 23 going to be used for a bed and — short-term rental -- 24 MR. FAGAN: Yeah. 25 CHAIRMAN BAKER: — things like that. But there's 121 1 no provision that -- I'm sorry. I just answered my own 2 question. Thank you. 3 MR. FAGAN: Anything else? 4 CHAIRMAN BAKER: It hit me. 5 MR. FAGAN: You mentioned about the published 6 statements or their intent, and those were published by 7 the news and Mr. Carlson, you know, says that its taken 8 out of context and misquoted, but again, their intent is 9 not in advertising this as a tailgate. They don't 10 intend to use it as a tailgate central. I just wanted 11 to make sure that was clear and — and Reed wanted to 12 make sure that that was clear. 13 CHAIRMAN BAKER: I think that the neighborhood 14 concem was that the design of the structure sort of 15 encouraged large social gatherings, and 4 wasn't just a 16 matter of tailgating, It was a matter of the 17 50 -something other events and that the facility would 18 become not just a seven -weekend occurrence but a 19 constant occurrence of all of the problems associated 20 with tailgating: Traffic, so on, so forth. 21 MR. FAGAN: Understood. I've heard those concerns. 22 CHAIRMAN BAKER: Yeah. 23 MR. FAGAN: We've made our comment and position 24 now. 25 MR. CHRISCHILLES: Is the affidavit of use or the Page 110 to 121 Board of Ar 122 1 statement of intent of use a — Is the affidavit of use 2 an enforceable document? 3 MR. FAGAN: I'm going to leave your — you getting 4 legal advice to Mr. Parmenter on that and for him to 5 address that, whether it's in this forum or a different 6 forum. 7 MR. CHRISCHILLES: Or is it just a statement? 8 MR. PARMENTER: Well, it's a — it's a statement 9 that's been signed, presumably — I don't — haven't 10 seen it yet or looked at it closely. I'm presuming it's 11 been notarized, and so it could be used, presumably, by 12 the City to enforce the code and be used as evidence In 13 enforcing the code and saying, look, you said you would 14 not use it for— you were going to use it for this 15 specific use, now you're not using it for that use, and 16 the City could use that to enforce its code. 17 CHAIRMAN BAKER: But as an accessory use, all sorts 18 of — You know, any single-family home has accessory 19 uses, social activities, so there's no really — no real 20 control over that, unless they become public nuisances, 21 and that's a separate issue. 22 MR. PARMENTER: Right, and I think the City is — 23 has talked about that initially. 24 CHAIRMAN BAKER: Okay. Anything else? Thank you 25 very much. 123 1 MR. FAGAN: Thank you. 2 CHAIRMAN BAKER: Now, at this time we're certainly 3 willing, able, and actually required to listen to any 4 other public comment in support of the applicant and 5 opposed to the appellant, but once again, factual 6 information is most helpful. So anybody who would like 7 to speak in support of the applicant certainly can do 8 that now. 9 MR. KLINEFELTER: My name Is Gary Klinefelter. I 10 live at 1131 East Washington Street in Iowa City. I 11 would also like to thank the board members for their 12 volunteer service to the community. I appreciate the 13 opportunity to express my viewpoint. My wife and I — 14 Cindy Parsons and 1 own the property directly across the 15 street from 101, 111, and 117 Lusk Avenue, and I should 16 say for the record 1 have never met the Carlsons, I've 17 never mel their attorney. This is the first time I've 18 ever seen them. 19 We purchased that property in July of 2013. 101 20 obviously has been demolished. I don't know if this is 21 important or not, but, Anne, I'm sorry, I've never seen 22 you there. I'm there many hours mowing the lawn every 23 week. I've never seen Anne as a neighbor. I know the 24 house an the comer - 25 CHAIRMAN BAKER: All right, Mr. Klinefelter, I — nent 9-21-16 124 1 I'm going to repeat this. 2 MR. KLINEFELTER: Okay, I'm done. I just want - 3 CHAIRMAN BAKER: Address your remarks to us. 4 MR. KLINEFELTER: Okay. All right. Cindy and 1 5 have no substantive objections to the home that is 6 proposed. I want to convey — This Is my last 7 paragraph. I want to convey to the board how important 8 it is to be able to rely on the permitting process that 9 has long been established in Iowa City. If one meets 10 all of the development regulations, zoning ordinance, 11 and building code requirements, one should be entitled 12 to obtain a building permit. That's the end of my 13 comments, but I'd like to say two more things, please. 14 One is the CRANDIC right-of-way is not a natural 15 area. It was deeply manmade, excavated so that a 16 railroad would meet the minimum grade that it has to 17 achieve. Secondly, it's deeply disturbing to me that 18 the integrity and the independence of the building 19 department has been challenged so actively here. 1 20 worked In that department for 13 years, specifically 21 with Doug Boothroy, Tim Hennes, Terry Goerdt. They have 22 the highest integrity. The last 16 years I've been on 23 the opposite side of the fence as a builder. I can tell 24 you that I've had some minor contentious relationships 25 with them, but they are not — they do not play 125 1 favorites. Thank you very much. 2 CHAIRMAN BAKER: Thank you. Any other comments 3 from the public? If not, I thlnk this is the time we 4 offer the staff, applicant, and appellant a chance to 5 respond to comments made by the other side. I think — 6 The applicant has certainly responded to the appellants' 7 position, so whether, Doug, you want to go and respond 8 to anything that you have heard? Or Jim? It makes no 9 difference to me who goes first. 10 MR. PARMENTER: Excuse me, Mr. Chair. Do you want 11 to set time limits for the rebuttal? 12 CHAIRMAN BAKER: Yeah, I'd like to get the two 13 sides or the three to wrap this up by ten o'clock. 14 Yeah, ten. Because we still have — the board itself 15 has some questions for some of these applicants. Sue. 16 MS. DULEK: I'm Sue Dulek. I'm an assistant city 17 attorney. I want to just speak briefly about Exhibit 24 18 that — of the appellants. Locks like this, that's 19 partially blackened out. After the meeting last week, 1 20 thought haw can that be. I provided those 800 pages and 21 1 didn't blacken out anything. So I went back and 22 looked at the emails that the IT department had 23 provided, and It was provided in yellow and red. 1 24 simply hit the print button. It printed black and white 25 and it appeared that way. My apologies to the board. Page 122 to 125 Board of Adjustment 9.21-16 126 1 1 Certainly no intent With that said, nobody called me 2 or contacted me and inquired why one of them appeared to 3 be blackened out. But in any event, I will provide 4 color copies to everybody. 5 CHAIRMAN BAKER: Okay, thank you. And one quick 6 question for Mr. Fagan. You had some prepared comments. 7 1 assume we'll get a copy of those prepared comments. 8 MR. FAGAN: Certainly, Mr. Chair. 9 CHAIRMAN BAKER: Okay. Doug, I'm sorry, go ahead. 10 MR. BOOTHROY: Well, first let me say that Beady 11 if this had been a historic zone, the review would have 12 been different and that overlay zone, as I mentioned 13 earlier, didn't exist. Secondly, with regard to the 14 sensitive areas ordinance, the altered slopes — altered 15 protected slope as defined in the sensitive areas is on 16 a railroad right-of-way, its not on the property — 17 That's not working? 18 CHAIRMAN BAKER: I'm a little bit deaf anyway on a 19 good day. 20 MR. BOOTHROY: I'm sorry. I can lean over. It 21 seemed like — I thought my — It must be I'm getting 22 weaker as the — as the meeting goes on. 23 But the— the slope — the altered protected slope 24 is on a separate property and the — and not part of 25 this particular consideration with regard to encroaching 127 1 into the protected slope. The issue came up about the 2 buffer. The buffer is not a protected slope under the 3 sensitive areas ordinance. We have addressed this issue 4 before with a different project. 5 The project was the Jesse Allen project on First 6 Avenue. It came up. There was quite a little bit of 7 neighborhood concern about the amount of open space 8 and — and the multifamily being provided there, and the 9 Issue came up as to whether Jesse Allen could extend 10 sewer into the buffer area, and the city attorney's 11 staff ruled that the buffer was not a protected slope 12 and was not protected under the sensitive areas 13 ordinance. So that happened a couple years ago. 14 That — that's — You know, we don't look at that 15 buffer as being in place with regard to the development 16 of the site. 17 As far as, you know, the other aspects, it is a 18 manmade slope, as mentioned earlier. So I just wanted 19 to clarify that. 20 1 think the other thing that came up, and I've got 21 a couple handouts but I'll just mention it just tonight, 22 is that, you know, the definitions talk about — that we 23 look at that — and that's why we get these intent 24 statements and that's why we've had all this 25 conversation and that's why everybody Is talking about 128 1 what the intended use Is. You know, its — The 2 definition of dwelling unit is specifically used or 3 intended to be used by one household for living, 4 sleeping, cooking, and eating of meals. 5 Its used or intended to be used, and I understand 6 that until the building's built, you don't know what 7 it's — how it's going to be used, but that's true of 8 every single-family house that's built in this 9 community. Until it's built, It's not used. And so 10 there -- there has to be some reliance, a good faith 11 reliance, on the person that's building the house that 12 it will be used in conformance with the law. If its a 13 nuisance or if it's used illegally, then we have to deal 14 with It as an enforcement matter. 15 Next I'd like to hand out a memorandum that 16 addresses some issues that were raised at a previous 17 meeting. I'll let you get that, and then I'll just kind 18 of read through it And just for clarification, and you 19 can take a look at it, and I — I have some, you know, 20 sections quoted here. I'm not going to read those 21 tonight because I know it's late. Just the first 22 paragraph. 23 A lot of the emails that were discussed at the 24 previous meeting that involve Mr. Oliveira In particular 25 were mixed with some of the emails about an existing lot 129 1 on an existing public street with existing water and 2 sewer. And when we were looking at Oliveira's proposal, 3 it was to subdivide a lot. And under the subdivision 4 regulations, and I'll attach them to this, our authority 5 is much broader and we have a lot more control over what 6 can happen. And we knew in that situation that there's 7 a likelihood that if the turnaround was provided, the 8 street would be extended and there would be more than 9 just one additional lot in the neighborhood as a part 10 of — of that particular subdivision. So what I've 11 attached here are the general provisions and the design 12 requirements, and it does indicate that In — in the 13 public improvements section that the City may require a 14 turnaround If we decide that that's necessary. 15 We've already addressed the bedrooms. I -- or 16 bathrooms. I dont think I need to go into that. 1 17 think they've answered the questions and we don't need 18 to— to belabor that issue. 19 The next one was required number and spacing of 20 fire hydrants. I'll ask Roger Jensen to speak to this. 21 HBK indicates that there's inadequate flow. What they 22 didn't do in their report is connect the dots in terms 23 of how the fire code actually is applied. They didn't 24 go from what the Fre load capacity for a flow in a 25 building and what—what you need for minimum hydrants Page 126 to 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 130 within 400 feet, and I think Roger will address that. And I think the other thing Roger will address — the deputy chief will address is the fact about the question of the dead-end street, the existing dead-end street, so I'd ask Roger to come up for a minute. MR. JENSEN: Good evening. Roger Jensen, deputy fire chief. Fire marshal's out of town tonight so I'm filling in on his behalf. I've been asked to clarify a couple issues, one with respect to fire flow and second with fire apparatus access. I'll take that one first. HBK in their analysis, they refer to a section of the code, it's 503.2.5, which requires turnaround for fire apparatus on access roads longer than 150 feet. I have provided this, I believe. Sarah has it. So this is in hard copy. You can refer to it perhaps later, but in this hard copy, and I'm — I'd like to read it for all of you, there is the commentary to the code. The commentary provides some clarification as to what the code is really trying to say, what its intent is, and in the commentary it says, and I quote, "In consideration of the hazards inherent in attempting to back emergency vehicles, especially larger ones such as tower ladders, out of a long dead-end roadway, this section tends to create a safer situation by requiring that dead-end roads over 150 feet long be equipped with 131 approved turnaround designed for the largest anticipated emergency response vehicles." The City has a number of dead-end roads, many of them longer than 150 feet, and all of them were built prior to this becoming a code requirement. Therefore, the City has taken the position that, particularly on dead-end streets where there's infill development that already exists that may, In fact, be longer than 150 feet, for infill development, the pursuit of an apparatus turnaround is excessive and unnecessary because of, number one, it's already existing; and number two, the commentary clearly states it's really not germane to life safety. Okay? Second point regards the — regarding the hydrants and the number of hydrants and water flow requirements. HBK analysis, they did a fire flow test of the hydrant at Lusk Avenue. I believe it flowed over 1500 gallons per minute, close to 1600 gallons per minute. Our apparatus, our pumping apparatus, will only pump 1500 gallons per minute, and the fire code correctly identifies that in looking at fire flow requirements, and I'll point you to Section C102.1, and there, and HBK provided — CHAIRMAN BAKER: Mr. Jensen, you're pointing us to sections and I want to be clear in my mind. We have lent 9-21-16 132 1 that in front of us now or are you going to provide 2 copies of that? 3 MR. BOOTHROY: I think he's referring to -- Are 4 you referring to charts? 5 MR. JENSEN: It's a table. 6 MR. BOOTHROY: Yeah, tables. There are two tables 7 there on that one page. 8 CHAIRMAN BAKER: Okay. 9 MR. BOOTHROY: That's what he's referring to. One 10 is a building fire flow and the other Is fire hydrant — 11 number of fire hydrants and — and spacing. 12 CHAIRMAN BAKER: Al right, thank you. 13 MR. JENSEN: Thank you. I think the title of it, 14 Mr. Chairman, is required number and spacing of fire 15 hydrants, and it's in the appendix to the International 16 Fire Code. It's labeled C102.1. And in that table, you 17 can find the minimum fire flow required; in this case, 18 2,250 gallons per minute. And it identifies that a 19 minimum of two hydrants are required to provide that 20 fire flow. It's right in the table. 21 We have a very healthy hydrant at Lusk Avenue at 22 the property, 1584 gallons per minute. We have another 23 hydrant, and HBK correctly identifies that it's 400 feet 24 from the proposed building, at Lexington and Bayard. 25 That hydrant, I've looked. It's on a loop system. It 133 1 clearly will provide the additional 750 gallons 2 necessary to meet that minimum fire flow. 3 So we would need two engines. We show up with 4 three engines always, a ladder truck, a battalion chief 5 vehicle, so we have plenty of pumping apparatus, and we 6 have an ample fire flow. Well over 2,250 gallons per 7 minute. 8 Questions? 9 CHAIRMAN BAKER: I think part of the confusion 10 comes from — I'm just looking at Mr. Greer's memo he 11 gave us at the last meeting when he talks about the 12 hydrant nearest the property in question was flow tested 13 and is shown to provide 1564 gpm at 20, so on, so forth. 14 While this hydrant does not meet the minimum required 15 fire flow for the building, it is a very strong hydrant 16 at 35 percent less than the minimum. And about -- 17 above, you talk about a -- the 2250 is the correct fire 18 flow as stated and it considers so on, so forth. So — 19 MR. JENSEN: I think if - 20 CHAIRMAN BAKER: The confusion comes from how 21 you're going to meet that. 22 MR. JENSEN: Sure, and I believe its the C102.1. 23 CHAIRMAN BAKER: Okay. 24 MR. JENSEN: If you'll find that table, it 25 correctly states that a minimum of two hydrants are Page 130 to 133 Board of Adjustment 9-21-16 Page 134 to 137 134 136 1 necessary to meet that minimum fire Flow requirement. 1 recreational uses. So I think its important to 2 CHAIRMAN BAKER: Okay. So no single hydrant has to 2 remember that. 3 meet that. 3 CHAIRMAN BAKER: So there's no real definite — 4 MR. JENSEN: Correct. 4 It's — it's a tern but there's not a defined term. 5 CHAIRMAN BAKER: Okay. 5 MR. BOOTHROY: Well, I think it could have the 6 MR. CHRISCHILLES: That's what the number of 6 plain meaning of private recreational uses. Its not 7 hydrants column refers to? 7 commercial and it's recreational, but It can be any type 8 MR. JENSEN: It does. 8 of use that could be considered — Right, it could 9 MR. CHRISCHILLES: But you can use two hydrants to 9 be —with -- 10 create the flow of 2,000 -- between 2,000 and 2250? 10 CHAIRMAN BAKER: Standard size or — 11 MR. JENSEN: Correct. Yes. 11 (Overlapping speakers) 12 CHAIRMAN BAKER: Okay. Let me interject here. 12 MR. BOOTHROY: Yeah, and there's nothing about 13 1 — I'm probably a very naturally optimistic person 13 frequency of use, size of use. There's no — there are 14 thinking that we could get through this by ten o'clock 14 no qualifications as to limiting the square footage it 15 and then the -- the board could sort of wrap it up by 15 takes or anything of that nature. Okay, I just wanted 16 ten -thirty. I need to get a sense from Jim and Doug 16 to point that out. 17 both how much more time you think you need. 17 And then I have one other document I want to hand 18 MR. LAREW: Five minutes. 18 out. They seem to be sticking. Here. Here, let me 19 MR. BOOTHROY: Five minutes, yeah. 19 get — I wanted to hand out a couple to staff too. 1 20 CHAIRMAN BAKER: Okay. 20 think there's enough. Yeah, I'm sorry, Jim. He gets 21 (Inaudible) 21 one too. So I think I've got enough now. 22 CHAIRMAN BAKER: Okay, so say ten -ten we could 22 So in closing, I wanted to make one statement or 23 proceed. Great. I consider that a contract. Thank 23 I'll read this to you for the record. A Quote? 24 you. 24 throughout this hearing, you have heard Mr. Larew and 25 MR. BOOTHROY: Subject to your questioning. 25 others assert that they, and by inference, the citizens 136 137 1 CHAIRMAN BAKER: I'm sorry? 1 of Iowa City, deserve better than the staff who have 2 MR. BOOTHROY: Contingent upon your questions. 2 been involved in this matter. They have questioned the 3 CHAIRMAN BAKER: Yeah. No, I got — Yeah, I got 3 motives of staff in an attempt to insinuate an error by 4 questions. 4 innuendo. I feel compelled to address this issue. I am 5 MR. BOOTHROY: Okay. And then I also wanted to go 5 the building official charged with making determinations 6 back to the -- on that last page of the memorandum, 6 about building permits, and in this capacity I often 7 accessory uses in a residential zone, just to emphasize 7 consult with members of the neighborhood and development 8 this again with you, because we noted that recreational 8 services department as well as other departments. 9 uses are identified in the zoning code as private 9 Each of them has expertise, experience, technical 10 recreational uses as well as public but in private 10 knowledge that I rely on to inform my decisions. 11 recreational uses accessory to a single household. So 11 Because each of these persons bring a different 12 if you go into the zoning code and you go into the 12 perspective based on his or her area of expertise -- in 13 residential use section and you go to subparagraph A, 13 other words, a different piece of the puzzle — it is 14 which is the first, it says household uses, and you go 14 imperative that we collaborate In order to consider 15 under that, Number 3 is permitted accessory uses and it 15 issues as a whole. Staff who served in the following 16 lists private recreational uses in that paragraph. 16 roles were involved in collaborating on the issue before 17 And I've cited that paragraph right here in the 17 us: The director, development services coordinator, 18 memo that I just handed out to you, and you'll note that 18 senior building inspector, city attorney, first 19 in the — that private recreational uses as accessory 19 assistant city attorney, deputy fire chief, fire 20 are — are allowed without qualification. However, many 20 marshal, and qty engineer. 21 of the other accessory uses mentioned in that particular 21 When Mr. Larew and others question the competence, 22 paragraph and even elsewhere often have standards that 22 professionalism, ethics, and trustworthiness of city 23 regulate size, frequency of use, location, and things of 23 staff, they are putting all of these individuals listed 24 this nature. We do not in the Iowa City zoning code 24 here in the same bucket, painting everyone with the same 25 limit or have any additional use regulations for private 25 negative brush. The implication is that every staff Page 134 to 137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LAREW: Very brief statement by a witness, Mr. Weirich, and then I'll conclude. CHAIRMAN BAKER: All right, thank you. MR. WEIRICH: I assure you I'll do this In two minutes. CHAIRMAN BAKER: Okay. MR. WEIRICH: Okay. First of all, I want to make the point that while I drew the boundaries for the buffers at the property line, in fact, both the wooded area and the slope do encroach on the property. They're on the property as well, and so the buffer would have to go further in. So the suggestion that -- that, you know, the line is right at the property line where the trees stop and where the slope stops, that is not correct The slope does go onto the property, and the trees go on as part of the grove and wooded area. The second point is it doesn't matter whether the slope is manmade or natural. If you look at — I'll just give you the citation. On page 321, a regulated slope is defined as steep, critical, protected, altered protected slopes. So any slope of 40 percent or steeper created by human activity is also a regulated slope with vegetation on it, etcetera, etcetera. So it's — it's part of the dance, okay. Third, I don't understand the comment when you're 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2s 9-21-16 140 talking about applicability of the environmental sensitive lands feature, and I read this out to you, it is the applicant's responsibility. It seems to me the applicant is clearly the person asking to make changes on the property and do something with the land. I don't know who else the applicant would be in that situation. Finally, I want to reiterate this question of exemptions. I'm not challenging — that's not my zone of expertise — whether this is single-family or not. Assuming it is, the exemption that I read to you says single-family dwellings are exempt except for if they're less than 20,000, they're out, but also, and as I repeat, there is no encroachment by said activities into the sensitive question. There is an encroachment, and the buffer is part of that dance and that property encroaches on that. That's the reason why this specific property is subject to the environmental requirements. There are many other properties in Manville Heights and in the city that don't have to follow this. The exemption applies to them, but not in this particular situation. And finally, there are a set of very explicit requirements in the code that were not addressed from anything I can see. There's an environment review required. Its on page 323. 1 highlighted it. It's in 141 the documents you have, and it's In the full code as well where there's a whole process of a sensitive areas development plan, et cetera, at cetera, el cetera, that is required and there's all kinds of steps, and I didn't articulate them. None of that happened. So the reason that one might consider saying this can't go forward is it was flawed from square one, and that means you have to go back to square one and start this whole process all over again if you're going to follow the rules of the code that I'm referring to. I'll stop there. Okay. MR. CHRISCHILLES: Where was the information about an environmental review being required? MR. WEIRICH: That's a whole section on it, but if you look at page 323 in the code, It's — It's under 'Wooded areas." MR. CHRISCHILLES: Okay. MR. WEIRICH: Okay. And there's a beginning there. "Environmental review is required." That's where that conversation begins. There's a much more extensive review through the whole document over steps of review and levels of review 1 didn't want to get into. I'm just simply saying it never even got started. That's the point that I was trying to make. And keep in mind that the purpose for these things are to reduce damages to wooded areas, steep slopes, et Page 138 to 141 Board of Adjustment 138 1 member who has had anything to do with this matter is 1 2 subpar. It is easy to cast aspersions targeting an 2 3 entire group. We see that every day in the political 3 4 arena and online. It is unnecessary to abandon civility 4 5 and embrace the politics of vilification to win a point. 5 6 If Mr. Larew and the neighborhood feel compelled to 6 7 diminish the professionalism and competence of anyone — 7 8 and I think we've heard that maybe tonight — the 8 9 criticism should be directed towards me. As NDS 9 10 director, I am accountable for the performance of the to 11 department of 50 — approximately 50 individuals. I'm 11 12 also responsible for the collaborative efforts of the 12 13 departments involved and ultimately, as a building 13 14 official, I am responsible for the decision under 14 15 consideration tonight The process of getting it right 15 16 requires objective consideration of the fads, as well 16 17 as a respectful deliberation of disparate viewpoints. 17 18 This can and should be done without sacrificing 18 19 civility and fracturing our community. I am proud of 19 20 the professionalism of city staff In addressing this 20 21 issue, and I thank the board for your thorough 21 22 examination of the issues and your thoughtful 22 23 consideration of this matter. Thank you. 23 24 CHAIRMAN BAKER: Thank you, Doug. Don't go away. 24 25 1 mean sit down, but don't go away. 25 139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LAREW: Very brief statement by a witness, Mr. Weirich, and then I'll conclude. CHAIRMAN BAKER: All right, thank you. MR. WEIRICH: I assure you I'll do this In two minutes. CHAIRMAN BAKER: Okay. MR. WEIRICH: Okay. First of all, I want to make the point that while I drew the boundaries for the buffers at the property line, in fact, both the wooded area and the slope do encroach on the property. They're on the property as well, and so the buffer would have to go further in. So the suggestion that -- that, you know, the line is right at the property line where the trees stop and where the slope stops, that is not correct The slope does go onto the property, and the trees go on as part of the grove and wooded area. The second point is it doesn't matter whether the slope is manmade or natural. If you look at — I'll just give you the citation. On page 321, a regulated slope is defined as steep, critical, protected, altered protected slopes. So any slope of 40 percent or steeper created by human activity is also a regulated slope with vegetation on it, etcetera, etcetera. So it's — it's part of the dance, okay. Third, I don't understand the comment when you're 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2s 9-21-16 140 talking about applicability of the environmental sensitive lands feature, and I read this out to you, it is the applicant's responsibility. It seems to me the applicant is clearly the person asking to make changes on the property and do something with the land. I don't know who else the applicant would be in that situation. Finally, I want to reiterate this question of exemptions. I'm not challenging — that's not my zone of expertise — whether this is single-family or not. Assuming it is, the exemption that I read to you says single-family dwellings are exempt except for if they're less than 20,000, they're out, but also, and as I repeat, there is no encroachment by said activities into the sensitive question. There is an encroachment, and the buffer is part of that dance and that property encroaches on that. That's the reason why this specific property is subject to the environmental requirements. There are many other properties in Manville Heights and in the city that don't have to follow this. The exemption applies to them, but not in this particular situation. And finally, there are a set of very explicit requirements in the code that were not addressed from anything I can see. There's an environment review required. Its on page 323. 1 highlighted it. It's in 141 the documents you have, and it's In the full code as well where there's a whole process of a sensitive areas development plan, et cetera, at cetera, el cetera, that is required and there's all kinds of steps, and I didn't articulate them. None of that happened. So the reason that one might consider saying this can't go forward is it was flawed from square one, and that means you have to go back to square one and start this whole process all over again if you're going to follow the rules of the code that I'm referring to. I'll stop there. Okay. MR. CHRISCHILLES: Where was the information about an environmental review being required? MR. WEIRICH: That's a whole section on it, but if you look at page 323 in the code, It's — It's under 'Wooded areas." MR. CHRISCHILLES: Okay. MR. WEIRICH: Okay. And there's a beginning there. "Environmental review is required." That's where that conversation begins. There's a much more extensive review through the whole document over steps of review and levels of review 1 didn't want to get into. I'm just simply saying it never even got started. That's the point that I was trying to make. And keep in mind that the purpose for these things are to reduce damages to wooded areas, steep slopes, et Page 138 to 141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 30 31 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-21-16 142 1 144 had an approved site plan. It was Mr. Carlson who said, "My stepson suggested that if we're going to build a house to tailgate" — "if we're going to build a house to tailgate as it should" — "it should mimic the stadium." Carlson, 64, told ABC News, "I'm kind of a theme guy anyways so I thought that was a great idea." There aren't that many statements that we have to go by. The affidavit which was signed, we don't understand as a matter of policy how the City does this. It seems frivolous. All they're agreeing to do Is to obey the law, as anyone else. If any of us fail to abide by the local laws without an affidavit, we would be just as liable as someone who signed an affidavit. That's all the affidavit says. Other people who know them also describe what the use is. This was a Facebook entry. Now, like different versions, different versions of the plans themselves, sometimes they disappear and in recent days this is no longer there, but this was someone named Ted Burton Jacobson who entered this on the Internet. He's a local person. 1 don't know him but I know of him. I'm sure he's a very reputable person. "Having spent over 30 years in Iowa City and more than once this family's"— that is, the Carlsons'— "Realtor, I'm here to defend my friend of over 40 years, Reed Carlson. In my 145 1 hometown of Decorah, the Carlson family supported the 2 town for four generations. Reed's mother was a native 3 of Iowa City, which gives him deep roots in Hawkeye 4 land, and there are no greater Iowa fans than this 5 family. Think of little Kinnick as another Field of 6 Dreams that your grandchildren will come to visit and 7 let the Carlsons have their American dream. People will 8 come, Reed. People will definitely come." 9 Now, to the public, people go and they — they 10 visit Elvis's home. That's okay. They become iconic. 31 This is something in the public mind so people who know 12 them well, which is some kind of entertainment event 13 To the extent that we know this project through what 14 others who know them well and vouch for them say, we — 15 we first don't have any doubt that these are good 16 citizens of the city of Decorah, but we also have no 17 real doubt as to what their intent or use is, and its 18 not residential. That is our purpose in coming to this 19 board for relief. It doesn't look like a house, it's 20 not designed like a house, the intent that's described 21 to the public describes it not primarily as a residence 22 but as a place to hold the tailgates. That is what is 23 of — of concern. 24 So here we are. Our clients don't dislike the City 25 of Iowa City or the staff. We pay taxes to support it, Page 142 to 145 cetera, to reduce erosion and siltation, at cetera, at cetera. There's lots of important reasons why these things are required both from a safety and environmental perspective. Doesn't matter if the railway cut it It's still a regulated slope and that is still a regulated area. CHAIRMAN BAKER: Thank you. MR. LAREW: There are some —just a couple of major points I want to make, but I want to start out that for citizens to challenge a decision made by their city government or the staff of the city government doesn't necessarily impugn the integrity or professionalism or anything else of anyone, and certainly not a whole department. The way that the law requires us to frame our appeal is to name Mr. Boothroy personally. Those are the rules. In fact, when we mistakenly named Mr. Yapp, because he's the only person we'd ever talked to when we named — presented this, we were told that it was Mr. Boothroy. That's how the law requires us to posit it, and we take him at his word when he says he's responsible for the decision that was made. We also went out of our way to point out any number of instances where staff people themselves were raising issues and concerns, and — and we could not understand 143 completely why those concerns, many of them which echoed our own, were not abided by, and we take it that it was Mr. Boothroy's final decision as an executive for the City that the wrong decision was made in this instance. Nor has anyone that I know of in our group impugned the Carlsons, as it's been suggested, nor have we said that they will engage in illegal activities or even suggested that. And if to the extent that's the theme, we're trying to enforce a zoning code, and If there is something that's in violation of that, if that impugns someone's integrity, we — we can't help that interpretation. We've been careful about what we have — have said and tried to say, and — but believe that a bad mistake has been made. And to the extent that we speculate, its necessary because we don't know the Carlsons. They've never come knocking on the door to a neighbor, even those who they intended apparently to share an ancient sewer with without notice to them. So what we know is what we see in the press and what other people who know them say in the press about what their intent is. That's why when we took this statement from -- it wasn't a quote from us but from ABC News when this became a national story, the one that Mr. Boothrcy Injected himself in, and said, "We're going to approve the building permit," days before they even 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 147 1 provision to each applicant who has a site plan or we 2 don't. We either do requirements under the 3 International Fire Code or, as even the most recent memo 4 says, we don't even apply this in some Instances. The 5 fire department decides not to. There are any number of 6 places in our fire code where Iowa City has made 7 amendments to the International Fire Code to make sure 8 it fits our needs. Here they simply say if its longer 9 than 150 feet and it's an infill lot, we just don't 10 enforce it. 11 How can that be? Isn't it a moment like this where 12 we bring issues to the attention of those of us who are 13 governing each other, say this doesn't seem right. Fire 14 safety, and they say we just don't choose to enforce it. 15 They would have enforced it for Mr. Oliveira for two 16 smaller homes, but not in this instance, and it's the 17 same fire code requiring the turnarounds. 18 We either apply the International Residential Code 19 terms as to what defines a home or we do not, and the 20 International Residential Code says that a residence 21 shall have a sanitary system. The one that's quoted for 22 you always leaves that word out. Well, here's the 23 challenge. My — my clients, having not been notified 24 of the controversy known to the City that there was no 25 easement agreement and that there was no understanding 9-21-18 148 of the neighborhood and that it didn't have a complying sewer were never notified of that fad, so what they've done is what the law allows them. Gave them notice, you can't trample on our property. You can't take your sewer and go across our land. So we have Craig Syrop, whose talk you listened to the other day. He and his spouse issued a notice, you may not go across our property. So did Anne Lahey at 111. So did the Ackermans, said you're not coming across our property, and so did the Armstrongs. They say you may not assume that you're coming across with your sewage on our property, and the only way that the law allows them to give that notice — and you've heard even tonight talking about valid easements and right to go across. This will be the first time and this is the concerning thing. Until now it's been Mr. Boothroy and his staff making a series of, we think, very serious mistakes. After that proceeding your names will be on It. This decision will be remembered by you as the Board of Adjustment members because you have the same authority as Mr. Boothroy did and more time to consider it than we think was ever given to this project before the building permit was issued. We have no doubt that much time has been spent since we raised this challenge. 149 1 We are doubtful as to the amount of thoughtful attention 2 these issues were given prior to it. 3 So if this project is approved, we can only imagine 4 the metaphoric hand-to-hand combat at the City level as 5 people, builders, people who want to do things will say, 6 my goodness, you allowed that project to go forward with 7 no sewer, with no compliance with the fire code, with no 8 compliance with the sensitive ordinance. You let that 9 project go but you won't let me do this? 10 You can put a stop to that kind of reasoning which 11 will be there on a daily basis, and there's a reason 12 that the code of Iowa's requirements that if you have 13 five members on the board only a couple of them and no 14 more can have anything to do with real estate and 15 building and development is because these energies are 16 always so intense. They want a board like yours to have 17 some space away from these day-to-day intensities that 18 have to affect the city staff even on their best days. 19 So why should any property owner be asked to 20 present any more than an affidavit of compliance if 21 that's all that it really takes for us to be assured 22 that there will be full compliance with the laws when we 23 can't show full compliance with Intemational Fire Code, 24 with International Residential Code, and the like. So 25 members of the Board of Adjustment, short by one Page 146 to 149 Board of Adjustment 146 1 and we would concede that most the time they get it 1 2 right. Garbage is picked up most days as scheduled, 2 3 clean water is delivered to all of us, to every 3 4 household. Firefighters arrive promptly and do their 4 5 work bravely, and we appreciate that. But sometimes for 5 6 one reason or another, things go wrong and very wrong, 6 7 and when that happens it's important to acknowledge that 7 8 fad, to correct the mistakes, and to learn from them. 8 9 To fail to correct a mistake can have repercussions for 9 10 a long, longtime. 10 11 In governance, particularly in legal matters, as a it 12 democracy we rule ourselves by analogies. We take what 12 13 we know and what has worked, and we apply it to the next 13 14 problem. We make a decision involving the public and 14 15 they remember, and they rightfully expect that others 15 16 similarly situated in the future will be treated in a 16 17 similar way. This case challenges the essence of 17 18 self-government when it comes to zoning issues. The 18 19 proposed building is so flamboyant and so visible and to 19 20 us the mistakes of judgment made so purely visible to 20 21 all of us that not to correct the mistakes here and now 21 22 will adversely affect many more persons than those who 22 23 appeal this particular matter to you tonight 23 24 We either zone by rules or by affidavits. We 24 25 either apply use classifications and related code 25 147 1 provision to each applicant who has a site plan or we 2 don't. We either do requirements under the 3 International Fire Code or, as even the most recent memo 4 says, we don't even apply this in some Instances. The 5 fire department decides not to. There are any number of 6 places in our fire code where Iowa City has made 7 amendments to the International Fire Code to make sure 8 it fits our needs. Here they simply say if its longer 9 than 150 feet and it's an infill lot, we just don't 10 enforce it. 11 How can that be? Isn't it a moment like this where 12 we bring issues to the attention of those of us who are 13 governing each other, say this doesn't seem right. Fire 14 safety, and they say we just don't choose to enforce it. 15 They would have enforced it for Mr. Oliveira for two 16 smaller homes, but not in this instance, and it's the 17 same fire code requiring the turnarounds. 18 We either apply the International Residential Code 19 terms as to what defines a home or we do not, and the 20 International Residential Code says that a residence 21 shall have a sanitary system. The one that's quoted for 22 you always leaves that word out. Well, here's the 23 challenge. My — my clients, having not been notified 24 of the controversy known to the City that there was no 25 easement agreement and that there was no understanding 9-21-18 148 of the neighborhood and that it didn't have a complying sewer were never notified of that fad, so what they've done is what the law allows them. Gave them notice, you can't trample on our property. You can't take your sewer and go across our land. So we have Craig Syrop, whose talk you listened to the other day. He and his spouse issued a notice, you may not go across our property. So did Anne Lahey at 111. So did the Ackermans, said you're not coming across our property, and so did the Armstrongs. They say you may not assume that you're coming across with your sewage on our property, and the only way that the law allows them to give that notice — and you've heard even tonight talking about valid easements and right to go across. This will be the first time and this is the concerning thing. Until now it's been Mr. Boothroy and his staff making a series of, we think, very serious mistakes. After that proceeding your names will be on It. This decision will be remembered by you as the Board of Adjustment members because you have the same authority as Mr. Boothroy did and more time to consider it than we think was ever given to this project before the building permit was issued. We have no doubt that much time has been spent since we raised this challenge. 149 1 We are doubtful as to the amount of thoughtful attention 2 these issues were given prior to it. 3 So if this project is approved, we can only imagine 4 the metaphoric hand-to-hand combat at the City level as 5 people, builders, people who want to do things will say, 6 my goodness, you allowed that project to go forward with 7 no sewer, with no compliance with the fire code, with no 8 compliance with the sensitive ordinance. You let that 9 project go but you won't let me do this? 10 You can put a stop to that kind of reasoning which 11 will be there on a daily basis, and there's a reason 12 that the code of Iowa's requirements that if you have 13 five members on the board only a couple of them and no 14 more can have anything to do with real estate and 15 building and development is because these energies are 16 always so intense. They want a board like yours to have 17 some space away from these day-to-day intensities that 18 have to affect the city staff even on their best days. 19 So why should any property owner be asked to 20 present any more than an affidavit of compliance if 21 that's all that it really takes for us to be assured 22 that there will be full compliance with the laws when we 23 can't show full compliance with Intemational Fire Code, 24 with International Residential Code, and the like. So 25 members of the Board of Adjustment, short by one Page 146 to 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 Board of Adjustrnent 150 member — One person expressed her point of view that 1 this was an outrage to the city council, was removed, 2 and should have been. Should have been. People with 3 preconceived notions as to the outcome of the 4 application of law to fact should be removed. 5 When we raised the issue of bias as to the city 6 staff, we're accused of personal attacks and innuendo. 7 So we have four members. We understand that, and we 8 think it's right that one member was recused. That's 9 the way it should have been. We want you to do the 10 right thing, the most fundamental choice, and agree with 11 the appellants that this building cannot be classified 12 principally as a residence. What it is we're not sure. 13 We think it's a new kind of use advertised in a way that 14 is not recognized by the code, but at that point, the 15 city council has legislated that you're not to go to the 16 next best thing, you're just to say it cannot be done 17 here. Send it back. Amend the code if you want to if 1s this kind of complex, which Is Intended to draw people 19 in an Iconic way to an entertainment venue. Do the 20 right thing. Decide that this was not classified 21 correctly. It's not a residence, and that's the fastest 22 way to get to the most just result. 23 On the other hand, if you continue through the 24 analysis, we feel that you will determine that it 25 151 doesn't comply with the most basic definitions of our Code, even if it were a residence. Would it be the first residence that was allowed without a sewer? Would it be the first residence that was allowed without checking off the boxes for compliance with the zoning codes that go into a building permit? We're sure that this would not if the City had correctly looked at the sensitive ordinance — or area ordinance and correctly made that decision; they would have put a kibosh on the project. That they failed to consider it completely doesn't mean that the project should be approved. We think that your decision that the building official, Mr. Boolhroy, because that's what the law requires us to posit it as, he erred by wrongfully approving the building permit and as a part of that, whether it's separate or a part of it, he wrongfully approved the site plan, the same site plan that earlier he had used to retract, suspend a building permit, and in this case to determine that this building permit should be revoked and the project should not proceed. We have brought to you citizens who in a good faith belief believe that an error has been made. We ask that the Board of Adjustment now correct those errors and each area of law which affected the building permit. It's not as narrowly defined, we think, as the 8-21-16 162 applicant, Mr. Carlson and Mrs. Carlson, have asked you to consider, but to apply fairly and reasonably the code provisions that define what a residence is or is not; and if it is a residence, whether it complies with the minimum definitional requirements of a single-family dwelling in the state of Iowa and the city of Iowa City. We thank you for your attention tonight and in prior session. CHAIRMAN BAKER: Thank you, Jim. MR. LAREW. Thank you. MR. CHRISCHILLES: I have a question. CHAIRMAN BAKER: Oh, I'm sorry. Go ahead. Jim. MR. CHRISCHILLES: I'm not sure if this is a good time to bring this up, but will we have --will we have another chance to question him? CHAIRMAN BAKER: I'm letting them reply to each other, and my plan was to have the board able to ask questions of Jim, Doug, or Mr. Fagan to follow up on any concerns that they had that have not been clarified for them, and then I was going to ask Mr. Parmenter to sort of give us some guidance on legal parameters. But, yes, there will be a time and you can do it now, but we certainly will reserve the right as a board to do our own follow-up questions. And for that reason, I have a new deadline, eleven o'clock. I appreciate your 153 1 patience, but— t MR. CHRISCHILLES: I don't know that this will 3 take -- 4 CHAIRMAN BAKER: Because I don't want to have 5 another meeting just for input, all right? Go ahead. 6 MR. CHRISCHILLES: I'm confused about the sewer 7 issues. Did -- When you brought this up, you -- you s stated that Iowa City Code and Iowa law require private 9 separate sanitary sewer -- 10 MR. LAREW. Yes. 11 MR. CHRISCHILLES:-- forindividualresidences, 12 for single-family residences? 13 MR. LAREW: Yes. My -- my opinion Is based on the 14 following: Iowa law, the only place in the Iowa Code 15 where the Iowa General Assembly has defined a 16 single-family dwelling is in the Uniform Landlord -Tenant 17 ordinance, and although this is not a case which will be 18 decided by that law, it's the only chance where Iowans 19 as a whole have decided, and it requires by definition 20 to have its own systems including the sewer system, 21 independent sewer system, even areas where walls are -- 22 are shared. 23 Second, the Iowa City Code of Ordinances adapts by 24 reference the Intemational Residential Code, and that's 25 been referred to in a number of ways. That residential Page 150 to 153 1 2 3 4 5 6 WI 8 9 10 11 12 13 14 15 16 17 l8 19 20 21 22 23 24 25 Will 2 3 4 5 6 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-21-16 154 1 code is a little more thorough than the definition of single-family dwelling that's in the code, and it includes the word "sanitary," that such a dwelling must include "sanitary" as a part of the definition of a single-family dwelling. MR. CHRISCHILLES: Okay. So do the terminations of easement that have been entered apply to —just to shared sewer services or to instances where — in — like in this instance where the Carlsons might want to dig their own separate sewer that didn't tie Into the shared system? MR. LAREW The position of the adjoining landowners is that the Carlson have no right of entry whether to try to reestablish a flow of sewage from the old sewer pipe into their joint sewer or if they would try to demand a way to force themselves across the property to get to the nearest sewer, which you can see is depicted on — on their property. There is no easement agreement, and it's our legal position -- again. I agree with counsel at least one thing; it may be a district court that decides — that at the time that this arrangement was started, it appears that one person alone owned four contiguous properties, and Iowa law in our opinion is clear that a person cannot grant an easement to himself, and that's probably why no 155 easement was there. So this has been going on for some period of time. The notice that was given was you may not go across our land for any presumed purpose, and if they want to force their way across, they'll have to get a court order to do it and that will be the legal question. MR. CHRISCHILLES: So as it is now, any type of sewage system forthe Carlsons' proposed structure would be — would have to go over the property that's — that — the appellants' property that this has the easement — determination of easement applied to it MR. LAREW. What— I think they would have choices. One, and this was the kind of choice that the Oliveira — Mr. Oliveira was given. They could go like every other private property owner does. They go to the nearest street. Now, in this case there's not a sewer there, and they'd have to work out how they gel from there north. They have also presumably -- and it sounds like Mr. Klinefelter is very supportive of this project. He's the person who owns the property nearby. Maybe he would grant an easement to go across the street or under the street and across some portion of his property to attach to a sewer main that is on further down on — on the street. But the sewer line that is now in existence that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 156 has the bend and ends up at the corner of Lexington and Bayard, that's a terminus. That's a terminus for the city sewer line. It comes down Lexington, so that's — that's as close as they can get to a sewer if they're going across the property. If they want to go another way, they go up the street and over, or they could go across Mr. Klinefelter's land, perhaps, and — or under it and decide what he wants to do with the sewer line. MR. CHRISCHILLES: So they do have options in terms of getting sewer service. MR. LAREW: Absolutely. MR. CHRISCHILLES: But those options do not include the neighbors' property in any way. MR. LAREW: That's right All four contiguous neighbors have given them clear notice that you're — you're not traversing their property with their sewage. MR. CHRISCHILLES: And the issue of whether or not they can — well, I guess — That would make the issue of whether or not they can tap into the shared system a moot point, then. MR. LAREW: In our opinion, yes. That there is no — there is no going back on that, and it's a practical matter too. If you look at the world in the way that we do, that this could have a party of 200 people, Imagine what that 30 minutes before game time 157 1 looks like, and who is it that carries the likely burden 2 of a malfunctioning sewer, and you have no sewer 3 easement there. Who even pays for that cleanup. This 4 is -- this is the kind of thing which makes it difficult 5 to understand that people acting like good neighbors 6 could not even come knock on the door, say is there some 7 way we could work this out. These people to learn by 8 surprise of what was going on is particularly troubling. 9 MR. CHRISCHILLES: So I — I don't know if I can 10 ask you this or ask Mr. Boothroy this, but so if they 11 were to — the Carlsons decided to establish their own 12 private connection to -- to the sewer, they would have 13 to do that at their own expense? 14 MR. LAREW: I -- I presume so. I'll let 15 Mr. Boothroy answer that. That's -- As a property 16 owner, that's been my experience. 17 MR. CHRISCHILLES: And would that alter — would 18 that alter — would that reset the building permit 19 process or -- 20 MR. BOOTHROY: They would —they would not get — 21 They could not get a CO without proper connection to e 22 sewer. 23 MR. CHRISCHILLES: But -- 24 MR. BOOTHROY: They could not get a — 25 MR. CHRISCHILLES: Certificate of occupancy. Page 154 to 157 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 WA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Ai 168 MR. BOOTHROY: They could not occupy the building without — MR. CHRISCHILLES: I — I know that, but — MR. BOOTHROY: —a sewer. MR. CHRISCHILLES: They would have to provide the — MR. BOOTHROY: Yeah, they have to — they have to get a water tap permit and comply with moving the hydrant if its a problem, and if they can't get sewer. I don't know If — This sounds like this Is a private litigation matter. MR. CHRISCHILLES: Yeah. MR. BOOTHROY: The other option would be to get into the public sewer from a different route. That is available and I'm sure just a matter of expense. MS. SOGLIN: But would you or could you approve a building permit without a clear sewer option for a home? MR. BOOTHROY: They have — they have — At the time we issued the building permit, they had an open sewer stub on the property, right almost in the middle of the property, and, you know, it was a sewer that had been — when we did some research had been permitted by the City in the 1920s. So the pipe is there and its available to be hooked on. Since -- since we started this process. I think the 159 property owners have filed this notice of termination of the easement. I don't think that terminates the easement if -- if the Carlsons litigated. I mean I think that's — that's a matter that would be litigated. I don'tthink it's — And I — you know, I think that's — that could happen. I don't know. CHAIRMAN BAKER: But that would not be cause for you to rescind the current building permit? MR. BOOTHROY: I -- I haven't had a conversation with the Carlsons if whether or not they're going to — I mean I don't know whether they've changed their mind, if they're going to go and — CHAIRMAN BAKER: Your control is the certificate of occupancy could only be resolved by the sewer being hooked up, and they can't occupy regardless of the building permit until the sewer Issue is resolved — MR. BOOTHROY: The building -- CHAIRMAN BAKER: — in court. MR. BOOTHROY: Yeah. The failsafe is that the building could never be occupied without water and sewer. CHAIRMAN BAKER: Okay. MR. CHRISCHILLES: But I don't know that you fully answered Becky's question when she said can a — can a building permit --should -- can a building permit be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I 1 2 3 4 5 6 7 8 9 SO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9-21-16 160 granted if— MR. BOOTHROY: I thought you were talking about this particular one. MS. SOGLIN: I did mean just —not this particular case, just -- Take the question exactly as I said it. Just for any resident — MR. BOOTHROY: If we had a situation where there wasn't sewer possible, I think that would — yeah, It might not get issued under those circumstances until they showed to us that they had a way of getting sewer. And if they — In other words, it doesn't necessarily have to be extended to the property by the time the building permit's issued, but it would have to be connected by the time the CO was issued, so — MS. SOGLIN: So it affects the -- MR. BOOTHROY: If they — if they could show that they had a way to get access to a public sanitary sewer, you know, we've had — we've had situations where people have extended sewers 300 feet, you know. I'm talking about a service line now, not a public sewer. And so, you know, they got to have sewer in order to occupy the building, so I think they've shown that there are options here. We don't know whether they're going to try to pursue the private sewer or they're going to abandon that and go with the public sewer, but that 161 would be a conversation we would have. MS. SOGLIN: So I just want to make sure I'm hearing good, so that in general — MR. BOOTHROY: But it — but it's not a zoning issue, its — its a — It has nothing to do with whether or not the use is classified correctly. It's all about the sewer. MS. SOGLIN: Right, I understand that, but you normally would Issue a building permit for a single-family dwelling with some understanding of — you know, there's some viable — MR. BOOTHROY: The risk is totally with the property owner, not with the City, so — MS. SOGLIN: But what would you — I mean you would normally — MR. BOOTHROY: We don't have — The sewer hookup does not come necess — at the time the permit is issued. MS. SOGLIN: Okay. So there may not be any plan for that that -- MR. BOOTHROY: What I'm saying is that if they can — if they can show that they have access or the ability to access a public sewer, then that's good enough. MS. SOGLIN: Okay. Thafs— Page 158 to 161 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BOOTHROY: That's what I'm trying to as CHAIRMAN BAKER: And the question's not would do in a hypothetical future situation but is IN cause — the question over the easement, is this ca to rescind the building permit, and I'm hearing that it's not. MR. BOOTHROY: No, it appears that — that t are other options. CHAIRMAN BAKER: Okay. MR. LAREVV: The appellants note with Interes when this very issue came before the same staff regards to Mr. Oliveira, fl was a condition preceden that he was required to show a written easement w these people or to show how the sewer would go. not a -- it's not an issue of hypothetical. CHAIRMAN BAKER: Okay. And we are getti point where we're starting to repeal information no That's been talked about several tines in this whol discussion. MR. LAREW. Oh, I — I understand that. But t extent that — that we're talking hypothelicals versus reals, this is the same property in the same period time, the same city staff, and treatment by two different parties in two different ways. It was a condition precedent to a building permit being issue 163 where it's now described as some kind of postpermitting option. CHAIRMAN BAKER: Any other questions for Mr. Larew? Thank you, Jim. Mr. Fagan, do you want to say anything? And if you do, we'd like to hear it. MR. FAGAN: Just briefly, members of the board. Again, thank you for your time and patience on this. I had the benefit of going last, and so I'm not going to repeat or use this necessarily to rebut some of this stuff, but as far as that statement that was up there, I don't know what that was necessarily in response to or what Facebook string it was. I don't think its relevant to what we have to decide here today in terms of focusing on the building permit and Its Issuance. So bringing it back to that, I think the City did a nice job of explaining the issue related to the sewer. Again, the sewer is not before you, and any reference by Mr. Larew in terns of trying to bootstrap on Mr. Oliveira's plan is not relevant, and it's a different project and It's another red herring. So again, as Reed stated, he will work with the City on coming up with a solution to that issue, but that's not related to the zoning of this property. MR. CHRISCHILLES: So you're saying -- Am I correct in your assumption that — that since It's not 19 quick a o the 20 tell me 21 There' of 22 panel. 23 been p 24 about t d 25 one Doi 164 You're saying a sewage issue is not part of the code or cannot be reviewed under the zoning code, at about the State of Iowa law? Doesn't that Doesn't that apply at all? R. FAGAN: Fair question. I — I certainly think sly you are governed by the State of Iowa and its nd its relevant code provisions. I don't believe e landlord -tenant code that the applicant — or pellants have submitted as an exhibit are relevant m your decision here, and that's -- that was hisargument. But— but fair question. HAIRMAN BAKER: Thank you. R. FAGAN: Thank you. HAIRMAN BAKER: Now, we're going to do this: This me for the board — if the board has any up questions, anything to get cleared up, this is e to address those questions. . SOGLIN: I — I do have a few. I'll try to be nd if they're not applicable, people can just that. I guess this might be for Mr. Boothroy. s a mention of the zoning code interpretation Was — was that something potentially could have art of this whole process or — Can you just talk hat a little bit. That -- that was brought up at Board of Adjustment 9-21-16 162 Y. 1 part — whal you 2 zoning s 3 but wh use 4 apply? 5 M 6 obviou here 7 laws a 8 that th 9 the ap t that 10 or gove with 11 part of t 12 C ith 13 M That's 14 C 15 is the ti ng into the 16 follow - w. 17 the tim e 18 MS 165 1 MR. BOOTHROY: Well, the zoning code interpretation 2 panel was created to resolve differences of opinion. 3 There was no difference of opinion. 4 MS. SOGLIN: Difference of opinion among staff. 5 MR. BOOTHROY: Absolutely. It's only for staff. 6 It's an administrative panel and — 7 MS. SOGLIN: Okay. That's what I didn't 8 understand, what kind of panel. And I just — Have — 9 have you ever tested — 10 MR. BOOTHROY: Still for me? 11 MS. SOGLIN: Yes, please. 12 MR. BOOTHROY: Okay. 13 MS. SOGLIN: Have you ever tested some kind of 14 proposed building by running it both through its most 15 likely principal use or what the applicants are saying 16 is its most likely principal use and then running it 17 through that list of factors in — in Part A that has 18 been discussed? Have you — 19 MR. BOOTHROY: I missed a little bit of the first 20 part because you weren't speaking into the mic, so — 21 MS. SOGLIN: Sorry. Have you ever tested some — 22 So someone's submitting a building application. Have 23 you ever tested a proposed building by running it 24 through both its most likely principal use or what the 25 applicants are saying its most likely principal use is Page 162 to 165 Board or Adjustment 9-21-16 166 1 and then that list of factors? 2 MR. BOOTHROY: We lock at all possible scenarios 3 and worst-case scenarios, and so I don't know if that 4 answers your question, but we try to look at it from all 5 perspectives and we have, as I mentioned, a lot of 6 people that were helping me and everyone agreed that — 7 everybody was in agreement that this was a single-family 8 dwelling intended for single-family use. There was no 9 dissension among the folks at the city attorney's office 10 or any of my staff with regard to this matter. 1 took 11 that as advice to me and — and based my decision and 1 12 agreed with them. I didn't choose to overrule them. 13 MS. SOGLIN: And I do have one question for Mr. — 14 Deputy Chief Jensen. 15 MR. CHRISCHILLES: Wait, I have a question for 16 Mr. Boothroy. 17 MS. SOGLIN: Oh, sorry. 18 MR. CHRISCHILLES: So in follow-up to that, have 19 you ever had a situation where you've looked at 20 something from the perspective of not qualifying in any 21 of the current zoning code and saying this —we're 22 looking at this, it doesn't fit anything. Therefore, we 23 have to look at it in a different way or— or 24 reclassify it or any — Can you think of any instances 25 where that's occurred? 167 1 MR. BOOTHROY: I can't give you a specific example 2 but I can tell you that, yes, that has happened and, 3 yes, we have amended the zoning code to increase -- 4 to — to add categories of uses over the years that I've 5 been involved with it. I just can't off the top of my 6 head give you a specific example, but yes, it has 7 happened. 8 MS. SOGLIN: Do you have any comment on — I'm 9 sorry, I'm forgetting the gentleman — the gentleman who 10 has had this engineering expertise and spoke on the 11 slopes, but he was saying that even a manmade slope is 12 part of the sensitive — 13 MR. BOOTHROY: Oh, absolutely. 1 never said that. 14 MS. SOGLIN: Okay. 15 MR. BOOTHROY: I never said it wasn't. It — it is 16 a — That particular type of protective slope is 17 included in the ordinance. It is on — It was my 18 understanding — I've been on the site. It appeared to 19 me that those slopes were in the railroad right-of-way 20 and not on the private property. But we didn't have it 21 surveyed by the applicant because just in walking the 22 site, it didn't look like it had that much fall from the 23 northwest corner, and I walked the entire site, but it 24 might not have been — the property may not have been 25 clearly staked. 168 1 CHAIRMAN BAKER: Questions for Doug? 2 MR. CHRISCHILLES: Didn't—didn't he — In 3 regards to sensitive slope, didn't he say that it didn't 4 have to be on the property per se? The slope didn't 5 have to be on the property per se? It's the slope that 6 the property affects? 7 MR. BOOTHROY: We've never interpreted it that way, 8 that—that- 9 MR. CHRISCHILLES: Why wouldn't you? 10 MR. BOOTHROY: —that abutting property controls 11 what you can do on your property with regard to the 12 buffer area. That's never been applied under the 13 sensitive areas ordinance. That would be a completely 14 new interpretation. But I can tell you that buffer - 15 the buffer area — the buffer area is not a protective 16 slope. It's just a buffer area. 17 MR. CHRISCHILLES: The buffer area created by the 18 sensitive slope. 19 MR. BOOTHROY: But they're not encroaching -- 1 20 don't believe that they're encroaching into the 21 sensitive slope. You know, that's certainly something 22 we can get more information on if that's an issue. 23 MR, CHRISCHILLES: I think it is. 24 MR. BOOTHROY: If it is an issue, then it may be 25 easily resolved. 169 1 MR. CHRISCHILLES: Okay. 2 MR. BOOTHROY: By redesign or — or some 3 modification. 4 CHAIRMAN BAKER: Doug? Any questions for Doug? 5 Doug, I'm sorry, and once again, thank you. I will ask 6 these questions as quickly as possible and, again, as — 7 as succinctly as possible as I can. 8 You talked about the staff reviewing and all people 9 being involved being unanimous in their opinion. Was 10 this opinion unanimous at the beginning? Or was there 11 any ambiguity or-- What is it that— that you had to 12 settle in the staff review process that was not apparent 13 from the very beginning? 14 MR. BOOTHROY: I wanted to make sure that every 15 question I asked was — I was comfortable with the 16 answer, and so whether it was with the zoning or whether 17 it was sewer or whether it was the street extension or 16 whether it was the fire flow or with any of those 19 issues, I wanted to make sure that the people that 20 provided — that -- that worked in those areas were 21 confident in their answers. And so, you know, we — we 22 spent time, you know, having that kind of conversation 23 as a staff. 24 CHAIRMAN BAKER: And there was no disagreement at 25 the end, no ambiguity, no people saying I'll go along Page 166 to 169 Board of Adjustment 9.21-16 170 1 172 MR, BOOTHROY: We approved his -end -her bathroom fixtures, yes. I'm not — I don't recall whether the first permit had two urinals or one urinal, to be honest with you. I think Tim would have been involved in that more — CHAIRMAN BAKER: Okay. MR. BOOTHROY: To me that doesn't even — that's not part of — that wasn't real important to the analysis. CHAIRMAN BAKER: Okay. I'll get back to — MR. BOOTHROY: It was just partof it. It was ane part of it. CHAIRMAN BAKER: All right. You were going to say something, contribute something. MR. BOOTHROY: No, Ijust was — CHAIRMAN BAKER: Okay. You don't require a site plan, so what you got was the building permit application. What other factual information other than that two-page application did you begin the evaluation process with? What— MR. BOOTHROY: Well, we -- we would have a set of building plans. CHAIRMAN BAKER: You did have plans, and they involved the first design of the — those opening restrooms. Okay? 1 with it but — 2 MR. BOOTHROY: We — we as a group are — 3 CHAIRMAN BAKER: Unanimous. 4 MR. BOOTHROY: —of one mind. 5 CHAIRMAN BAKER: Okay. In the staff — in the 6 material you presented to us at the first meeting, there 7 were — there were elevations for two different designs 8 of the front bathrooms. Which one of those designs — 9 One of them had the double toilets and urinals and 10 everything else. Was that the design that was approved 11 in the first building permit? 12 MR. BOOTHROY: Yeah, I — You know, I don't really 13 know because I didn't look at that detail at that point 14 inline. My - 15 CHAIRMAN BAKER: Because this gets to the question 16 of how you're interpreting use. 17 MR. BOOTHROY: Yeah, what —what — Yeah, 18 frankly, I don't think it makes that much difference 19 because they're both basically the same design. The 20 fact they added a little bit more to a play area and -- 21 CHAIRMAN BAKER: Yeah, what - 22 MR. BOOTHROY: I don't think that — 23 (Overlapping speakers) 24 CHAIRMAN BAKER: Yeah, one of the questions I asked 25 you at the very first meeting was did any part of this 171 1 in the review process, did you — did your plans that 2 you were reviewing include lockers and urinals, and 1 3 think your answer was no. 4 MR. BOOTHROY: I think it was to the — I wasn't 5 aware that — I guess I thought those were just hooks. 6 1 didn't realize that those were lockers. I wasn't 7 looking at it that specifically. It's not a building 8 code Issue and It's not a zoning code Issue. 9 CHAIRMAN BAKER: Okay. All right. But - 10 MR. BOOTHROY: And so we — we looked at it as 11 bathrooms and — and fixtures. Whether or not — You 12 know, we didn't get into some of the other issues. 13 CHAIRMAN BAKER: See, all of this Is leading to the 14 question that's going to come, which is like at what 15 point in your interpretation of what these things 16 represent and they fit the code, at what point — we'll 17 get back to you or somebody about is there something in 18 a plan that would cause you to second-guess the 19 purpose — the use of the property. And when you look 20 at the original plan that you approved, if I read those 21 elevations correctly, you approved two bathrooms that 22 were almost designed as — again, interpretation — 23 public restrooms. You had stalls, you had stall doors, 24 you had urinals, you had lockers. And that was what you 25 approved. Is that yes or no? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 173 1 MR. BOOTHROY: Yeah. It had that type of design, 2 yes. 3 CHAIRMAN BAKER: Okay. At that point you're 4 seeking interpretation from fellow staff members about 5 what other codes are. At any point — When did you 6 start asking for specific information from the applicant 7 in addition to what was initially turned in, if you did 8 at all? 9 MR. BOOTHROY: I didn't specifically do that. 10 Maybe John or Tim did. I can't give you a date because 11 1 wasn't asking — 12 CHAIRMAN BAKER: Okay, 13 MR. BOOTHROY: 1 would have talked to them and then 14 they would have, you know. 15 CHAIRMAN BAKER: Okay. 16 MR. HENNES: Tim Hennes, senior building inspector. 17 There was nothing on the original plans that would have 18 caused us any concern there were violations of any of 19 the ordinances or codes based on number of restrooms or 20 anything like that. So that really wasn't the issue why 21 we went back and asked for additional information. Why 22 we went back and asked for additional information was 23 for them to ready identify the intent on the use of 24 the property. 25 CHAIRMAN BAKER: Okay, but when you went back for Page 170 to 173 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 0.21-16 174 1 that, you had not made up your mind yet that this was indeed a single-family property? MR. HENNES: At that point, no. We did make up — We felt comfortable that it was single-family property — residential use, but we just wanted to make sure they understood that's all it could be used for. CHAIRMAN BAKER: So their information was informative and not definitive. I mean they didn't help define the use. The use was determined before you asked for those things. MR. HENNES: That is correct. CHAIRMAN BAKER: Okay. And that was because you thought there might be some confusion in their mind? MR. HENNES: We wanted to make sure there was clear understanding that what the --what — for what the property could be used for. CHAIRMAN BAKER: Okay. So it was your clearing up confusion -- any possible confusion on their part. MR. HENNES: Correct. CHAIRMAN BAKER: Okay. MR. HENNES: We did not want any misunderstanding — CHAIRMAN BAKER: Right, because — MR. HENNES: -- between the city's understanding, their understanding, and what the affidavit of use 175 future owners understanding of the use. CHAIRMAN BAKER: See, the basic problem here Is — if I'm listening to staff correctly is -- you're constricted by the code. The code says you shall do this based upon these objective factors, and so what I'm trying to understand is is there any point which your look at a plan would say you know what? This fits all of the objective factors. It has a bathroom, it has a bedroom, it has a kitchen, it has a living area, but there is something else about this that causes you to question the single-family use. Hypothetical: I asked Doug last time about — MR. BOOTHROY: And I want to address that. CHAIRMAN BAKER: Yeah. We'll — What If you had ten bedrooms, ten bathrooms, whatever, and you said you couldn't do anything about it. MR. HENNES: Let mejust — CHAIRMAN BAKER: 1 haven't finished. Let me finish. MR. HENNES: Okay. CHAIRMAN BAKER: So let me give one last hypothetical. One bedroom and ten bathrooms. It fits all the criteria. Do you stop and say to yourself, now wait a minute. Does this change what we perceive the use to be even though the objective criteria — And if 176 1 it causes you concern, where could you tum in the 2 zoning code to object to that design? Is there anything 3 that can be offered that you would say that's my limit 4 and I'll tum to the zoning code A, B. C, to justify my 5 opposition? 6 MR. HENNES: No, there — If it had all the 7 makings of a residential unit— living, cooking, 8 sleeping, sanitation — it would be issued as a building 9 permit for a single-family dwelling. Nothing in any of 10 those codes would direct us saying that you cannot have 11 ten bathrooms. 12 CHAIRMAN BAKER: Okay. Two basketball courts, ten 13 bathrooms, nothing. As long as you've got the minimum, 14 you've got the whole thing. 15 MR. HENNES: That is correct. 16 CHAIRMAN BAKER: And, Doug, I'm going to raise this 17 question to you that I asked Jim about, which was this 18 definition between residential use and— You remember 19 the thing. It was like here's a permitted — you know, 20 primary use involved the use of the word "dwelling" and 21 then the definition of dwelling was partial or — 22 MR. BOOTHROY: Intended or - 23 CHAIRMAN BAKER: — intended use of residence. 24 MR. BOOTHROY: — and designed — designed and 25 intended for use as a single household. 177 1 CHAIRMAN BAKER: So according to that, if I'm 2 reading you correctly, there is no — there was a real 3 short discussion. 4 MR. BOOTHROY: Yes. 5 CHAIRMAN BAKER: Okay. That indeed, once that was 6 determined, the use was determined. 7 MR. BOOTHROY: Exactly. Except that we knew this 8 was going to be controversial and -- and I think that — 9 and we tried to be as fair as possible by getting as 10 many different viewpoints. I wanted to make sure that I 11 wasn't missing anything, and zoning can be complicated 12 when you look at the code, and so I knew that this was 13 going to be challenged. Possibly it's going to be 14 challenged after this decision, and if it's going to be 15 challenged, I want to make sure that its challenged on 16 the code, not on supposition. 17 CHAIRMAN BAKER: Okay. 18 MR. BOOTHROY: Because then I lose or you lose, one 19 of the two. 20 MR.CHRISCHILLES: Wouldn't the — Never mind. 21 CHAIRMAN BAKER: Becky, you had a question for the 22 fire marshal? 23 MS. SOGLIN: Yeah. 24 MR. BOOTHROY: Are we done with me? 25 CHAIRMAN BAKER: Yeah. Page 174 to 177 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-21-16 178 1 MR. BOOTHROY: Thank you. CHAIRMAN BAKER: Sit down, Doug. MR. BOOTHROY: Can Igo home? CHAIRMAN BAKER: Thank you very much. MR. WEITZEL: You can leave. MR. JENSEN: Yes. MS. SOGLIN: Thank you. You — I'm sorry, I can't at this point find the piece of paper that you recently just gave us, but you -- in the second item about the way you needed to have a turnaround if it was 150 or 155 feet, you said that Iowa City — you used an expression something like, you know, you make a determination that its — you can go to 155 feet, so -- but is that In code or is that just an interpretation you do? MR. JENSEN: It's an interpretation. Code says 150 feet. MS. SOGLIN: But Iowa City doesn't then in its reg — have something as part of — MR. JENSEN: That code was adopted long after dead-end streets well in excess of 150 feet exist in Iowa City. Well after. MS. SOGLIN: Right. I understand that, but what I'm trying to get at is when you say you -- the City — Is it a written policy somewhere that you're allowed to make the leeway for the extra five feet, or is that — 179 is that just — you do that and it's just — MR. JENSEN: To my knowledge — I've been here 29 years. It's just always been that way. MS. SOGLIN: Its not written down somewhere. MR. JENSEN: To my knowledge, no. MS. SOGLIN: Okay. Thank you. MR. WEITZEL: And that's something that's everywhere. I mean just it's all over town. MR. BOOTHROY: Yeah, I think-- I think what we— what he — what he's saying is that we grandfather it because it's an existing law or an existing street, but sometimes we — you know -- MR.CHRISCHILLES: But wouldn't you want to enforce it if it's in the situation where you know about it in advance and its not just a matter of it already existing somewhere so you don't do anything about it? MR. BOOTHROY: Well, Lucon Street, just south of Melrose, we just issued a permit not — recently on a 16 -foot -wide street that's a dead end. That's a recent example. It happens In infill lots throughout this community, and we have many dead-end streets. They're existing and A's not a life safety issue. It's -- it's about the ability to turn around fire vehicles. MR. CHRISCHILLES: But I can understand it if it's — if it's dealing with a -- you know, an area 180 1 that's already existing dead-end street and there's 2 nothing being added to it. You can't-- 1 mean it 3 would be very expensive to go around the whole City and 4 say every dead-end street — every dead-end street needs 5 a tumaround. But in instances where you know about — 6 like on Lucon and — and this one where you know 7 about — that it's going to be — Yes, it is infill, 8 but you know that its going to violate, I guess you'd 9 say, the — the International Fire Code, which says you 10 can't — can't go past 150 feet, wouldn't you want to do 11 something about that if you knew about it in advance? 12 MR. BOOTHROY: I think the distinction is that it's 13 an existing lot that's been there since 1920s; on an 14 existing street, and I think there's a presumption on 15 these lots that are throughout this community that when 16 people buy them that they can build on them and not have 17 to be, you know, subject to standards that have been 18 passed subsequently. You know, that's what we've done. 19 We have treated this property no differently than any 20 other property, as Roger said, in the last 20 -some 21 years. So that's what it is. 22 CHAIRMAN BAKER: Would you have required a 23 turnaround if the lot were split? 24 MR. BOOTHROY: That's my understanding of that 25 discussion. 181 1 CHAIRMAN BAKER: And you would do it not because 2 you just had the option and could but because there 3 would be some public safety factor. 4 MR. BOOTHROY: Well, I— Not only that. Nota 5 public safety, but for the — for vehicles, but we were 6 under — We also knew that there were going to be the 7 possibility of -- of additional — an additional lot a across the street as a result of that extension of the 9 street. So it's — So you extend the length of the 10 street and you add maybe a couple lots on it, and if 11 there's an opportunity to -- through the subdivision 12 code which says that you may require for new — new 13 subdivisions and — and we wanted to exercise that 14 option that -- 15 CHAIRMAN BAKER: But what you're saying — 16 MR. BOOTHROY: —this is not a subdivision. This 17 is an existing lot that's been there for 90 years, 18 and — and like some of — like the Lucon lot that we 19 recently issued a permit on, I don't know how long It's 20 been there, but that's a 16 -foot -wide right-of-way. 1 21 would guess that it's been there probably as long. 22 CHAIRMAN BAKER: But you would justify it in terms 23 of the — the expected density of the use. If you were 24 talking about more than one lot, you're talking about an 25 increased density of use. And, therefore, the Page 178 to 181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 182 turnaround would be appropriate. MR. BOOTHROY: And I think there was also some sewer issues with regard to getting into the sewer, gravity flow from the lot that was downhill. CHAIRMAN BAKER: And the sewer issue would be resolved through a — a subdivision as well because of perceived problems with the current arrangement, but the increased use would dictate — MR. BOOTHROY: And the access of the new lot and the new house to the sewer. Otherwise, they would have — you know, they would have had to pump it, which would have been another option. CHAIRMAN BAKER: All right. Thank you. Anybody else? Any questions? MS. SOGLIN: No, thank you. CHAIRMAN BAKER: Any other questions from the board to anybody? Now, Mark. Would you please give us a very succinct sort of guideline as to what our role is, what we can Issue a decision about, and in particular address this question: One of our options is to, you know, reject, accept, or modify the decision, but if we are restricted from considering certain items from our decision, doesn't that, therefore, almost eliminate the ability to modify the decision? 183 MR. PARMENTER: Well, you're right, Mr. Chair. You have the option to modify but it depends on what you believe is in error and what you think needs to be modified. Everything you do, whether you find error or not or you modify, you must do within the constraints of the code. CHAIRMAN BAKER: Right. But we're told upfront that regardless of what we think is an error, that the board doesn't have the purview to make a decision based upon things being exempt from the zoning code. So, for example, we're told the turnaround is not something that we can make our decision on so we can't use that as something to modify. We're told that the sewer issue is not something that we can make a decision on; therefore, we can't base any sort of suggested modification on it. So all of the things that rule out us ruling on them also rule out the ability to offer any sort of modification. MR. PARMENTER: Well, I would agree with you that the things that are ruled out you could not apply as a modification. CHAIRMAN BAKER: So then you can tell us what we can modify. MR. PARMENTER: But I -- MR.CHRISCHILLES: But wasn't — but wasn't— I'm nenl 9-21-16 184 1 sorry to interrupt, but wasn't that part of our -- our 2 original powers as they were that we — we had the — 3 all the — all the powers of Mr. Boothroy, and since he 4 had the initial power of the decision regarding the 5 classification of it as single-family residence, 6 shouldn't we also have -- and — and by that 7 qualification, it — it manipulates -- like Larry says, 8 it manipulates certain things that we can rule on and 9 that we can't rule on. Don't we have the ability to — 10 to — to say it's misclassified and therefore open up 11 other possibilities of modification? 12 MR. PARMENTER: Well, you do step in the role as 13 the building official in this case. Your — your code 14 requires that you do that. If you believe there are 15 modifications that you can do under the code that are 16 allowable, then you as a board have the power to do so. 17 I can't tell you as legal counsel what modifications you 18 can make. That's a decision this board must make 19 collectively. 20 CHAIRMAN BAKER: But you can tell us what 21 modifications we --what we cannot make because we don't 22 have the right to use those factors in our decision, 23 period. 24 MR. PARMENTER: Right And— and part of your - 25 part of your role is to weigh all of the evidence that's 186 1 been introduced both by testimony and by documentation 2 from all of the parties. You're going to have to 3 determine, based on that, what's relevant. You're a 4 quasi judicial — have quasi-judicial function. You're 5 going to have to determine what you believe the law 6 allows you to do. I'm going to sort of give you a 7 general guideline here in just a minute on -- on what 8 you can do. 9 1 can certainly answer questions to -- to that 10 later, but it would be inappropriate for me to tell you 11 you can't do this or you can do that. My goal here is 12 to ensure that this process is fair for all parties 13 because at the end of the day, you're the — essentially 14 the trier of fact. You're the rule -- the judges and 15 apply the law that you believe is applicable, and I will 16 assist you with that and I think my — my presentation 17 will be of assistance. 18 CHAIRMAN BAKER: Go ahead, please. 19 MR. PARMENTER: Thank you. Thank you, Mr. Chair, 20 members of the board. My role as legal counsel to this 21 board is to ensure that you understand the role of the 22 Board of Adjustment and understand what you can and 23 cannot do in that role as dictated by Iowa law and the 24 Iowa City Code of Ordinances. My goal is to ensure this 25 appeal is fair -- the appeal is fair -- is a fair Page 182 to 185 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjust 186 process to all of the parties and that the board has all relevant information it needs in order to rule on this appeal. Iowa law, as you know, provides that any person who has been impacted by a decision of a city officer, department, board, or bureau has a right to appeal that decision to the Board of Adjustment. Specifically, Iowa City Code of Ordinance provides you, the Board of Adjustment, that you, the Board of Adjustment, are, quote, "an avenue for appeal of an administrative decision regarding the enforcement and implementation of this title," this title meaning the zoning code. Iowa city's code of ordinances also provides what the Board of Adjustment is empowered to do, With regard to appeals, that power is specifically defined. We've already — we've talked about it. You've heard about that in both of these meetings. You, the Board of Adjustment, have the power to hear and decide appeals where it's alleged there is an error, any error, in any order, requirement, decision, or determination made by the City manager or designee in enforcement of this title, again, meaning the zoning code, or of any ordinance adopted pursuant thereto. In this case the appellant, the neighbors of Manville Heights Association, has appealed decisions 187 made by the City -- city's Department of Neighborhood and Development Services, NDS. I'll identify and discuss each of these appealed decisions in turn. To begin, the appellants have identified three issues that they are appealing. However, the code -- however, the City did not conduct a review of a site plan. Iowa city's code of ordinance exempts single homes — single-family homes from that requirement under Chapter 18. Therefore, in my spin there are essenfially two decisions that this -- this board needs to — needs to decide that were made by the City, and those are the only two decisions that are before this board for review or should be. And those decisions are, one, classification of the proposed structure as a single-family dwelling and issuance of a building permit for the proposed single-family dwelling. I will discuss each of these issues and the law that you need to consider as it applies to those issues, but first the board needs to understand what actions it can and cannot take. Iowa city's code of ordinance states that the Board of Adjustment may, quote, "affirm or, upon finding error, reverse or modify, wholly or partly, the order, requirement, decision, or determination appealed from," nenl 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 e-21-16 188 end quote. This means that the board may either, one, affirm the decision of the City; or two, find an error was made, identify that error, and reverse or modify the city's decision. Please keep this in mind as we discuss the issues that have been presented by the appellants for your consideration. Issue one, the classification of the proposed structure. We've heard testimony that the City essentially reviews a building permit application and any submitted plot plans for a single-family or two-family dwelling for compliance with the Iowa City zoning code and the 2015 International Residence Code. First, the City identifies the zone in which the proposed structure is to be located. In this instance, in this case, the property is located in an RS -5 zone. That is low density single-family zone and, according to Iowa City Code of Ordinances, that zone is primarily intended to provide housing opportunities for individual households. The regulations are intended to create, maintain, and promote livable neighborhoods. The regulations allow for some flexibility of dwelling types to provide housing opportunities for a variety of household types. This zone also allows for some nonresidential uses that contribute to the livability of the residential 189 1 neighborhoods, such as parks, schools, religious 2 institutions, and daycare facilities. 3 Related nonresidential uses and structures should 4 be planned and designed to be compatible with the 5 character, scale, and pattern of the residential 6 development. The City also checks to see if there's an 7 overlay zone. I believe the parties in this case all 8 agree that there is no overlay zone applicable to this 9 building site and its proposed construction. 10 Second, the City checks the use of the property. A 11 property will have a principal use and may have 12 accessory uses. Each zone identified in Iowa city's 13 zoning code identifies principal uses and accessory uses 14 that are permitted, allowed provisionally and allowed by 15 special exceptions. If a use is not listed in the zone, 16 the City must review a series of criteria in order to 17 classify a use. Once a use is classified, the City then 18 determines whether that use is compatible wflh the 19 purpose of the particular zone. Iowa city s code of 20 ordinances lists residential uses in an RS -5 zone as a 21 permitted use. Household living uses are considered 22 residential uses and include detached single-family 23 dwellings, detached zero -lot -line dwellings, attached 24 single-family dwellings, two-family— duplexes, group 25 households, and multifamily uses, and that's in a table Page 186 to 189 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 190 that you've received. Now, some of the terms I've just used are defined in Iowa city's code of ordinances. Those are things you're going to want to look at for definitional purposes. I'll just highlight a couple of them. Household living uses. The Iowa City Code of Ordinances describes the characteristics of this term as, quote, "the residential occupancy of a dwelling unit by a single household or group household. Each dwelling unit contains Its own facilities for living, sleeping, cooking, and eating meals. Tenancy is arranged on a month-to-month basis or for a longer period of time," end quote. Detached single-family dwelling. The code provides, quote, "farm dwellings, detached single-family houses, manufactured homes, modular homes, and mobile homes if converted to real property and taxed as a site -built dwelling as provided in the Iowa Code as amended." Dwelling unit is defined as, quote, "any habitable room or group of adjoining habitable rooms located within a dwelling and forming a single unit with facilities used or intended to be used by one household for living, sleeping, cooking, and eating meals," end quote. Iowa city's code of ordinances also permits 191 certain accessory uses in an RS -5 zone. These permitted accessory uses Include, quote, "private recreational uses, storage buildings, parking for residents' vehicles," end quote. Now, we've heard some discussion in this appeal regarding tailgating, and I just want to reiterate again for the board that Iowa City does have an ordinance on tailgating, as you know, and let me just briefly walk through that with you for your consideration. Tailgating is — is a term that is defined as, quote, "a home football game day informal social gathering that is noncommercial and may include eating and drinking beverages," parenthetically, "alcoholic or nonalcoholic, as part of the activities. Temporary parking on unimproved surfaces located on private property is allowed during tailgate events. No alcohol is sold at a tailgate, nor is any admission fee charged, goods sold or given away, nor services provided for a fee. Temporary use permits are not required." Based on these steps, the City determined this proposed structure was a single-family dwelling and that — that it was Intended to be used as a single-family dwelling and that the proposed structure met the dimension and setback requirements set by Iowa city's code of ordinances for an RS -5 zone. nent 8-21-16 192 1 Obviously the appellants have appealed that decision. 2 You are charged with deciding whether the City erred in 3 determining that this house is a single-family 4 residence. 5 As stated before, it's my opinion that if you find 6 that this house meets the definition of a single-family 7 home, that chapter — or Title 18 doesn't apply. It 8 does not require a site plan for single-family homes. 9 And finally, you've been asked to weigh in on the 10 issuance of the building permit. Iowa City Code of 11 Ordinances defines a building permit as, quote, 12 "official certification that a proposed improvement 13 complies with the provisions of this title," again, the 14 zoning code, "and other applicable ordinances. A 15 building permit is required for new construction, 16 demolition, and for alteration or additions to existing 17 structures prior to commencement of construction or 18 demolition" 19 Therefore, if the requirements of the applicable 20 sections of the Iowa City Code of Ordinances and any 21 other applicable law, such as the residential building 22 codes are met, the City does not have the discretion to 23 deny the building permit. In this case the City 24 determined that the proposed construction met the 25 applicable requirements of the Iowa City Code of 193 1 Ordinances and the International Residence Code and 2 issued -- and ultimately issued the building permit 3 Obviously the appellants have appealed that decision as 4 well. Again, you are charged with deciding whether the 5 City erred In issuing this building permit. 6 Members of the board, you've heard a voluminous 7 amount of evidence and testimony from the parties. Some 8 of that evidence and testimony may be — obviously Is 9 disputed by the parties. Your role as the board, to 10 make this decision you must consider the weight of that 11 evidence and testimony and whether some or all of that 12 evidence Is relevant in this matter. 13 1 want to remind you of some procedural reminders. 14 As you know, there are rules and procedures specifically 15 developed for the appeal process in front of — in front 16 of this board, and some of those — and let me just 17 remind you of a couple of those rules. First, any 18 motion with regard to this appeal when you make your 19 decision must be made in the affirmative and approving 20 the requested action. That's under Title 5, Section 10. 21 And second, three members of this board must vote in 22 favor of the motion for it to pass. And this would, of 23 course, apply even though we have one member who has 24 recused herself. 25 With that, I believe that gives — with that as Page 190 to 193 1 2 3 4 5 6 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjust 194 well as the other information that I've given you as far as guidance, legal guidance in this matter, allows you to weigh all the evidence and make your collective decision. Thank you. CHAIRMAN BAKER: Questions? MR. WEITZEL: We need to have our findings of fact before we vole? MR. PARMENTER: What I would recommend — I mean obviously you all have a tremendous amount of information to go through and synthesize and consider. What might make it easier for you, because this is a faidy complicated decision to make, is to come up with each of your own written opinions that you can discuss at a subsequent meeting, but collectively, and then at some point in time obviously there's going to be a — there will be a motion. There will be a roll call vote, and a decision will be made, and then the Board will have one findings of fact ultimately when it comes to its conclusion. MR. CHRISCHILLES: At the very beginning of your statement, you — you said something about an inclusion of Iowa law being — Can — can you — It was the very beginning and I — I don't know -- MR. PARMENTER: Yeah, I was referring to Chapter 414. 195 MR. CHRISCHILLES: Which is? MR. PARMENTER: We've talked about that. That is part of the — gives the powers to a Board of Adjustment under Iowa law. MR. CHRISCHILLES: So under the powers granted by Iowa law, does that allow boards of adjustment to include issues that are required by Iowa law? MR. PARMENTER: Well, I think — Let me try to answer it this way, Gene: Chapter 414 of the Iowa Code allows Cities or requires cities to establish a board of adjustment. This city has done so. So once you've done that, you need to follow the Iowa law if it's applicable, and a lot of what the City of Iowa City has done for its rules for Board of Adjustment mirrors Iowa law. So when I say Iowa law and Iowa — and the — and the rules or the law of the City of Iowa City as it applies to the Board of Adjustment, they're almost verbatim, if not -- if not verbatim. MR. CHRISCHILLES: Well, not when it comes to the issue of the sewer Issue. MR. PARMENTER: Correct. Iowa Code does not — Chapter 414 does not address the sewer issue. MR. CHRISCHILLES: So you're saying —you're saying what? That we can't apply — we can't rule on that by Iowa law? tent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9.21-16 196 MR. PARMENTER: I think you have to rule based on Iowa city's rode of ordinances. MR. CHRISCHILLES: Okay. And then you said that — later on in your argument, you said that— MR. PARMENTER: Actually, just to clarify the record, I didn't make an argument — MR. CHRISCHILLES: I mean your statement. MR. PARMENTER: I wasn't intending to make an argument. MR. CHRISCHILLES: Excuse me. I misspoke. Later on in your statement, you said that if the -- the board — or the people that are making the decision of -- of how — of classification, use classification, can't decide that it fits any classification, they have to go through a criteria. What was it, a stepped criteria evaluation or something. A set of criteria that — and I don't — Have we ever been given those or — MR. PARMENTER: I'm not sure what you're talking about, Gene. Can you — MR. CHRISCHILLES: Well, you said that if they couldn't figure out a classification for a particular structure that they had to go through a review process to go -- to look at the factors that would allow them to reclassify that? There's a set of steps they had to go 197 through? MR. PARMENTER: I don't-- I don't think I said that in my statement. Maybe -- MR. CHRISCHILLES: Well, I — MS. SOGLIN: Can we get a copy of that? MR. PARMENTER: Yeah, you'll get a copy of it. I've made notes on it and 1 need to clean it up, but I think that information was brought to you by the parties. MR. CHRISCHILLES: Well, I — I was just saying that — The point I was trying to get to is I don't think we've been — as a board, I don't think we've ever been given any -- any indication or any set of factors that they use when they cannot come up with a — or when a classification is in doubt. MR. PARMENTER: And that might be a question that might be better addressed by the City, what — what they use, what classifications they use. I don't know that I have a list. MR. CHRISCHILLES: But you said the list exists. That's what I'm getting at. MS. WALZ: Was that information not provided in 14-4A-1 or 4A-2, classifying uses? MR. WEITZEL: That was provided. MS. SOGLIN: It was an attachment sent during the Page 194 to 197 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 PU r+1t Board of Adjustment 9-21-16 199 1 week that had been referred to at the earlier meeting. MR. CHRISCHILLES: Okay. MR. PARMENTER: If this board has any questions about getting access to any Iowa City Code or Iowa Code, please let me know. I will get that for you. MS. SOGLIN: I guess could someone just make sure we have the complete list of definite — definitions? I know we've been sent certain documents, but I don't know if they include all the definitions that we're expected to consult. I can't remember whether it was excerpts from it or — MR. WEITZEL: There was a full set of definitions. MS. SOGLIN: It was the full set? MR. WEITZEL: Yeah. MS. SOGLIN: That—the other attachment. MR. WEITZEL: That attachment had all — has all of 14-9A-1. MS. SOGLIN: I — I have an additional question. You had — We were sent your letter dated September 121h, and you had attached a memorandum, and on page 2 of that you were citing the Iowa Code 4 — 414.10 under B, purpose. MR. PARMENTER: Yes. MS. SOGLIN: The very last sentence of that is, "The decisions of the board should serve the public 199 interest, meet the intent of the title, and be consistent with the comprehensive plan of the City as amended." Is there any weighting given to those three different factors where if there are conflicts, one supersedes the other? MR. PARMENTER: Yeah, and that's — that's a great question. That's something that this board's going to have to weigh and make a decision because there's conflicts in — in a lot of the evidence and testimony that you've had. But that's part of the Iowa City Code and it does say that under B, "The decisions of'—"of the board shall serve the public interest, meet the intent of the title, and be consistent with the comprehensive plan of the City as amended." In other words, I can't tell you that the public interest is more or less important than the comprehensive plan. You have to make that collective decision. MS. SOGLIN: And there's nothing by law or precedent that declares one — MR. PARMENTER: Not that I — MS. SOGLIN: — supersedes the other. MR. PARMENTER: Not that I'm aware of. CHAIRMAN BAKER: Mark, let me quickly wrap this up here. We're told that the comprehensive plan is aspirational, not legislative. But I'm hearing now that 1 2 3 4 5 6 7 8 9 30 200 the decision of the City has to be consistent with the comprehensive plan, or is that a mischaracterization? MR. PARMENTER: I'm just quoting what the —what the city code says. CHAIRMAN BAKER: Okay. MR. PARMENTER: And so you've got to weigh that. CHAIRMAN BAKER: Okay. You said we have to find an error, and I think I asked you the first week an error of fact? Can there be an error of judgment? If we are to replace the judgment of the city officials, we're changing their — our judgment for theirjudgment, so we're — we would be saying that their judgment — based upon these objective findings, the conclusion they reached is what we might disagree with. That's the error? MR. PARMENTER: And I think the answer to that is yes. You have to weigh, again, all the information you've received. You're going to place yourselves in the shoes of the building department and determine whether the budding department followed its own code. If in your judgment you find that they have erred, whether it's based on facts you've received, your interpretation of the code, then you — if you find error, then that would be the decision you would make. CHAIRMAN BAKER: Okay. I know that this is not the 201 1 same thing as a variance or a special exception, which 2 we handle on a routine basis here, but in that process, 3 we're presented with a staff report, a findings of fact, 4 and we have often disagreed and overruled the staff 5 recommendation. That's not a — that's not a decision 6 yet on their part because we have to approve it. It's 7 our decision, but the facts they present we simply say 8 are not true. 9 For example, one of the factors that we use in 10 valuation, special exceptions, and variances Is impact 11 on the neighborhood, 'impact on the neighboring 12 properties, and the staff will say this has no negative 13 impact. We receive comments from the neighbors and we 14 obviously perceive this is a negative impact, and so we 15 overturn the staff's recommendation based upon what we 16 perceive as an error in judgment of finding of fact. 17 Is there a parallel to the process we're going 18 through here? 19 MR. PARMENTER: I think there is to a certain 20 extent, yes. I mean you're — Again, you're being 21 asked — Listen, there's — It would be unusual in a 22 setting like this where there are facts that are not in 23 controversy, and clearly there are. And so you all have 24 to — You've listened to all of this testimony from all 25 of the partes. You can believe all of it, some of It, Page 198 to 201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 203 been presented tonight that you have asked for copies of or the statement from Mark. CHAIRMAN BAKER: I just tapped my gavel. The public hearing is dosed. We will not open it again. MS. WALZ: All right. CHAIRMAN BAKER: We will adjourn to meet again for-- for a decision, at which time we will make the -- we will begin by making the motion in the affirmative and then present our findings of fact and our individual decisions. Now, we need to decide on a date that works for everybody. I would start with —by suggesting next Friday, the 30th, late afternoon, four to five o'clock. MS. SOGLIN: Not this Friday, but the 30th? CHAIRMAN BAKER: I'm not going to be ready to make a decision day after tomorrow. MR. CHRISCHILLES: It would have to be later in the day on the 30th. CHAIRMAN BAKER: As how late? MR. CHRISCHILLES: Six or— CHAIRMAN BAKER: Six? MR. CHRISCHILLES: Six or six -thirty. CHAIRMAN BAKER: I — I foresee a short meeting. MR. PARMENTER: You're talking Friday, the 30th? CHAIRMAN BAKER: Friday, the 30th. MR. PARMENTER: If it matters, I'm available. 9-21-16 204 CHAIRMAN BAKER: All right. Jim, are you available? Friday, the 30th? Six o'clock in the evening? Okay. Once again, we're not going to ask for your input. We are going to issue our statements. You can be here if you want to. MR. CHRISCHILLES: Can we make it six -thirty, then? CHAIRMAN BAKER: Yes. We'll do six -thirty Friday, the 30th. Does that work okay with the rest of you all? MR. WEITZEL: Yes. CHAIRMAN BAKER: Staff will have the room, everything set. Once again, thank all of you very, very much. Staff, Jim, Mr. Fagan, everybody. MS. WALZ: So can I just remind you before you make the motion to adjourn — CHAIRMAN BAKER: Yeah. MS. WALZ: — about ex parte communication — CHAIRMAN BAKER: Oh, yeah. We — MS. WALZ: — which would — no one should contact you, you should not contact anyone, staff. You should not have any discussion. CHAIRMAN BAKER: Make sure the public understands. We do not make this decision together. We individually, without talking to each other— Now there's a possibility that when we get here and announce where we're going and what we perceive as facts, somebody — 205 1 another board member may introduce a factor that would 2 cause us to change our mind, but I'm assuming we're all 3 basically set individually, without discussion with you 4 or us, to issue a finding Friday, the 30th, at 5 six -thirty. Don't call us. 6 MS. SOGLIN: Can I — Are we going to have a 7 chance to discuss what — 8 CHAIRMAN BAKER: After we make the motion, you — 9 we'll - 10 MS. SOGLIN: Only after the motion is made. 11 CHAIRMAN BAKER: After the motion is made we will 12 discuss. And again, we're not going to make the motion 13 and vote right then. We will discuss all you want to, 14 but we are going to vote that night. Thank you very 15 much. We are adjourned until September the 30th at 16 six -thirty. 17 (Meeting adjourned at 11:30 p.m.) 18 19 20 21 22 23 24 25 Page 202 to 205 Board of Adjustment 202 1 or none of it, and then you need to come and use that 1 2 information to come up ultimately with your—your 2 3 decision. But I think — I think the analogy is very 3 4 similar. 4 5 CHAIRMAN BAKER: Okay. And the statement you just 5 6 read we'll have copies of, right? 6 7 MR. PARMENTER: Well, I'm going to — I've got 7 8 some chicken scratches on it, but I will — I will clean 8 9 that up and I will get that to the — to Sarah to 9 10 distribute to the board. 10 11 CHAIRMAN BAKER: Okay. Any other questions from it 12 the board to the counsel? Okay, we're going to adjourn 12 13 this meeting, but we're going to adjourn after we decide 13 14 when we're going to meet again — 14 15 MS. WALZ: Can I clarify one thing first? 15 16 CHAIRMAN BAKER: Yes. I'm sorry. 16 17 MS. WALZ: Because it has been a long evening. 1 17 18 just want to clarify whether the public hearing is 18 19 closed. 19 20 CHAIRMAN BAKER: Yes, I'm sorry. 20 21 MS. WALZ: Because before you defer, I — 1 think 21 22 it's important to know whether you're deferring just to 22 23 have your discussion and your derision or whether there 23 24 is any need to get any more information from anyone, 24 25 other than what — other than maybe things that have 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 203 been presented tonight that you have asked for copies of or the statement from Mark. CHAIRMAN BAKER: I just tapped my gavel. The public hearing is dosed. We will not open it again. MS. WALZ: All right. CHAIRMAN BAKER: We will adjourn to meet again for-- for a decision, at which time we will make the -- we will begin by making the motion in the affirmative and then present our findings of fact and our individual decisions. Now, we need to decide on a date that works for everybody. I would start with —by suggesting next Friday, the 30th, late afternoon, four to five o'clock. MS. SOGLIN: Not this Friday, but the 30th? CHAIRMAN BAKER: I'm not going to be ready to make a decision day after tomorrow. MR. CHRISCHILLES: It would have to be later in the day on the 30th. CHAIRMAN BAKER: As how late? MR. CHRISCHILLES: Six or— CHAIRMAN BAKER: Six? MR. CHRISCHILLES: Six or six -thirty. CHAIRMAN BAKER: I — I foresee a short meeting. MR. PARMENTER: You're talking Friday, the 30th? CHAIRMAN BAKER: Friday, the 30th. MR. PARMENTER: If it matters, I'm available. 9-21-16 204 CHAIRMAN BAKER: All right. Jim, are you available? Friday, the 30th? Six o'clock in the evening? Okay. Once again, we're not going to ask for your input. We are going to issue our statements. You can be here if you want to. MR. CHRISCHILLES: Can we make it six -thirty, then? CHAIRMAN BAKER: Yes. We'll do six -thirty Friday, the 30th. Does that work okay with the rest of you all? MR. WEITZEL: Yes. CHAIRMAN BAKER: Staff will have the room, everything set. Once again, thank all of you very, very much. Staff, Jim, Mr. Fagan, everybody. MS. WALZ: So can I just remind you before you make the motion to adjourn — CHAIRMAN BAKER: Yeah. MS. WALZ: — about ex parte communication — CHAIRMAN BAKER: Oh, yeah. We — MS. WALZ: — which would — no one should contact you, you should not contact anyone, staff. You should not have any discussion. CHAIRMAN BAKER: Make sure the public understands. We do not make this decision together. We individually, without talking to each other— Now there's a possibility that when we get here and announce where we're going and what we perceive as facts, somebody — 205 1 another board member may introduce a factor that would 2 cause us to change our mind, but I'm assuming we're all 3 basically set individually, without discussion with you 4 or us, to issue a finding Friday, the 30th, at 5 six -thirty. Don't call us. 6 MS. SOGLIN: Can I — Are we going to have a 7 chance to discuss what — 8 CHAIRMAN BAKER: After we make the motion, you — 9 we'll - 10 MS. SOGLIN: Only after the motion is made. 11 CHAIRMAN BAKER: After the motion is made we will 12 discuss. And again, we're not going to make the motion 13 and vote right then. We will discuss all you want to, 14 but we are going to vote that night. Thank you very 15 much. We are adjourned until September the 30th at 16 six -thirty. 17 (Meeting adjourned at 11:30 p.m.) 18 19 20 21 22 23 24 25 Page 202 to 205 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 Board of Adjustment 9-21-16 206 CERTIFICATE I, Julie M. Kluber, Certified Shorthand Reporter in the State of Iowa, do hereby certify that I was authorized to and did transcribe in shorthand the above and foregoing proceedings from a digital audio recording; that said shorthand notes were reduced to computer-aided transcription under my direction and supervision; that the foregoing 205 pages are a full and correct transcript of the shorthand notes so taken, to the best of my ability under the situation presented; that I am a disinterested person to the said action. IN WITNESS WHEREOF, I have hereupon set my hand this 1st day of November, 2016. Certified Shorthand Reporter Page 206 to 206 MINUTES BOARD OF ADJUSTMENT SEPTEMBER 30, 2016 — 6:30 PM EAST SIDE RECYCLING CENTER PRELIMINARY The transcript of the digital audio recording of the hearing by Julie M. Kluber, SCR, RMR, which is attached shall serve as the minutes for the meeting. Board of Adjustment 9-30.16 CONTINUED MEETING OF THE BOARD OF ADJUSTMENT SEPTEMBER 30, 2016 6:30 p.m. EAST SIDE RECYCLING CENTER IOWA CITY, IOWA Members present: Larry Baker, Gene Chrischilles, Becky Soglin, Tim Weitzel Members absent: Connie Goeb Staff present: Doug Boothroy, Susan Dulek, Sarah Walz, John Yapp Others present: Mark Parmenter The following is a transcript of the meeting held at the above date, time, and place and was transcribed from the digital audio recording made at such time. Julie M. Kluber, CSR, RMR 3515 Lochwood Drive NE Cedar Rapids, IA 52402 319-286-1717 866-412-4766 Page 1 to 1 Board of Adjustment 9-30-16 Page 2 to 5 2 4 1 PROCEEDINGS 1 MR. WEITZEL: I move to grant the appellants' 2 CHAIRMAN BAKER: I'd like to call the 2 appeal API -1 6-00001, finding the City NDS erred when it 3 September 30th meeting of the Board of Adjustment to 3 classified the proposed structure at 101 Lusk Avenue as 4 order for roll call. 4 a single-family residential structure. 5 MS. WALZ: Chrischilles? 5 MR. CHRISCHILLES: Second. 6 MR. CHRISCHILLES: Here. 6 MS. WALZ: So that's moved by Weitzel and second by 7 MS. WALZ: Baker. 7 Chrischilles. 8 CHAIRMAN BAKER: Here. 8 CHAIRMAN BAKER: Yeah. One other comment before we 9 MS. WALZ: Weitzel. 9 start. Until this issue is completely and finally 10 CHAIRMAN BAKER: Here. 10 settled either tonight or in subsequent court, the rules 11 MS. WALZ: Soglin. 11 of this board still apply. We do not talk about the 12 MS. SOGLIN: Here. 12 issue outside of a public meeting, we do not talk to 13 CHAIRMAN BAKER: All right. Before we get into the 13 each other outside of a public meeting. Our role is 14 order of business, I would like to make a short 14 done at this time. We may be called upon in the future 15 statement just thanking all of you all for your 15 for another public meeting, but we do not and cannot 16 participation and your patience with us, the board, and 16 receive anymore input on this after tonight from anybody 17 with each other. I've been in meetings where things get 17 in the public, nor among ourselves. 18 out of hand, but I've been very pleased that everyone 18 So with that, the chair's going to reserve the 19 has been treated with respect, and I think the board's 19 prerogative to go last. Anybody can start. 20 been helped greatly by the input and the participation 20 MR. WEITZEL: What do you want to do for a format? 21 of everyone. I want to in particular thank Mr. Carlson 21 Are we going to just read our statements or do you want 22 for being here and representing himself, and to use a 22 to just talk about the issues or — 23 sports metaphor, it's like playing an away game. 23 CHAIRMAN BAKER: I think your statement is a 24 You're — but you're very — you're to be commended for 24 discussion of the issues. 25 coming and participating. I appreciate that. 25 MR. WEITZEL: Okay. 3 5 1 So the basis of this meeting is to make a motion 1 MR. CHRISCHILLES: I don't — I don't mind going 2 and make a decision on Board of Adjustment Item 2 first. 3 EXC16-00001, and what we normally do is we make the 3 CHAIRMAN BAKER: Okay, Gene. 4 motion and then the board discusses among itself what 4 MR. CHRISCHILLES: I would like to start by 5 it's going to go. Since our last meeting we have 5 commending both attorneys, the city staff, and the 6 received some additional information. Attorneys for the 6 Cadsons on their presentations regarding this appeal. 7 applicant, for the appellant, and for the — and the 7 They provided many excellent points of consideration in 8 city staff as well have provided us with more 8 this matter and made coming to a decision a difficult 9 information about the issue of environmental impact, 9 one. I have spent many hours in deliberation coming to 10 wetlands, slopes, the thing that was introduced at the 10 my own conclusion. 11 last meeting but which was not thoroughly discussed. 11 When I received my packet of information, I was 12 To have the applicant or the appellant or the City 12 immediately aware of the complexity of this appeal due 13 actually discuss that at this meeting would require that 13 to the sheer size of the packet. It was an issue that 14 we open up a public hearing. To open up a public 14 was unlike any I had seen while on this board and very 15 hearing, we have to set another date and have another 15 likely was one of a kind to this date. I was on alert 16 meeting, so with the board's permission, I'd like for us 16 that open-minded thinking and dose scrutiny would be 17 to acknowledge that input and we can certainly talk 17 required to reach a decision. 18 about the new information, but I do not foresee, unless 18 When I looked at the floor plan — When I first 19 the board disagrees, the necessity of opening up or 19 looked at the floor plan of the structure, my first 20 selling a new meeting for a public hearing. Okay. 20 thought was that I had never seen a residence laid out 21 UNIDENTIFIED SPEAKER: No. 21 in this manner. The arrangement of space and the amount 22 CHAIRMAN BAKER: Mark, that's all right? 22 of space allocated to uses other than dearly 23 MR. PARMENTER: Yes. 23 residential, those which would include a single-family 24 CHAIRMAN BAKER: Very good. So at this time, I'd 24 living, sleeping, cooking, and eating meals, made me 25 entertain a motion for discussion. 25 think hard about the intended principal use. While the Page 2 to 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-30-16 6 1 structure does fit some of the criteria that would qualify its designation as a single-family dwelling, what was the principal use of the structure? . I carefully listened to all the arguments from both sides, and I kept coming back to intent of use as the most important factor. I believe this is what ultimately determines the principal versus accessory uses of a structure. In this case, the arrangement of space and the amount of space allocated to uses other than clearly residential led to my opinion that residential use is not the principal use of the structure. It, therefore, must be an accessory use and the structure is misclassified. The principal use determines the use classification. If not residential, what is the intended principal use of this building? I think it lies in an as yet to be created category. I would best describe it as an entertainment -oriented use, but that needs to be determined and added to the zoning code. Since this new classification — new use classification is currently not listed in the zoning code, it cannot be a permitted use in an RS -5 zone. Therefore, the building permit for this structure in an RS -5 zone cannot be issued. CHAIRMAN BAKER: Thank you, Gene. 7 MR. WEITZEL: For my decision, I basically modeled it on the staff reports we normally get, which has a bit of a summary and it talks about the findings of fact. I'm just going to read it. "Iowa City Board of Adjustment decision APL16-00001, an appeal of a decision by Neighborhood Development Services to issue a building permit for residential use on property located in the low density single-family RS -5 zone at 101 Lusk Avenue alleging an error in the classification of the property as a residential use, wrongful approval of a site plan, and other zoning code errors." And at this point I'm listing my authorities for the decision. Iowa City Board of Adjustment consists of five members, one of whom was recused from this matter, who serve voluntarily without compensation. The Iowa City Board of Adjustment, the board derives its powers from Iowa Code Chapter 414, City Zoning, and by extension the enabling ordinance under the Code of Iowa City at Title 14, Zoning Code, and there's a specific ordinance. And the pursuant ordinances titled within Title 14, Zoning Code. Reference is also made to the 2015 International Residential Code, a section of the International Building Code. These are the authorities consulted in this matter, along with the testimony given during the 8 1 public hearing. 2 Regarding appeals to the Board of Adjustment, Iowa 3 Code Chapter 414, City Zoning, states the following 4 under Chapter 414.12, Powers: "Board of Adjustment 5 shall have the following powers," and we've covered this 6 already a number of times in the meeting. The Iowa City 7 Zoning Code further states, "The Board of Adjustment 8 may, in conformity with the provisions of this title or 9 ordinances adopted pursuant thereto, affirm, or upon 10 finding error, reverse or modify, wholly or partly, the 11 order," at cetera. 12 Iowa Code indicates the authority to create zones 13 within cities rests with the city council for the 14 specific city based on recommendations of the planning 15 and zoning commission, input from the public, Chapter 16 414. In practicality and experientially, this means 17 staff will contribute expert advice to the process and 18 have done so in the past in the City of Iowa City, but 19 zoning is a process somewhat distinct from issues 20 building permits made under the zoning regulations 21 adopted in the zoning code. 22 Despite limited discretionary powers assigned to 23 the zoning enforcement official or building official, as 24 the Iowa City — as it is in the Iowa City zoning 25 ordinance, the final power to zone or enforce the 9 1 Iowa City Zoning Code of any city rests in the city 2 council, who may create, alter, or change zones and 3 enforce the Iowa City Zoning Code so as — and so on led 4 through legislative action based on the authorities 5 cited. It is presumable and logical it is the duty of 6 the building official to execute faithfully the 7 legislation dictated by the zoning process from the code 8 adopted by city council, Chapter 414, Iowa — Iowa Code. 9 And there is limited discretion for the building 10 official to deny a permit provided the base level 11 requirements are met in the zoning and building codes, 12 2015 International Residential Code. This is not to say 13 that there are no additional inspections including, for 14 example, rough -out inspection, final inspection before 15 the occupancy certificate is granted to the newly 16 constructed building, as we heard during the hearing. 17 Additionally, permits for sewer tap and water tap are 18 required per testimony in the hearing. One could go on 19 to add that other utilities might be connected as well, 20 such as electricity, but those involve a process that is 21 distinct from the building permit process based on the 22 hearing. 23 The issues appealed were the classification of the 24 approved structure of the single-family dwelling 25 residence, approval of a site plan for the proposed Page 6 to 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-30-16 10 12 structure, and the approval of the building permit. 1 to provide. Likewise, I, too, have given a lot of Additionally, objection has been raised regarding the 2 thought to it. I've not taken this responsibility sanitary sewer connection and fire department 3 lightly in any way. responsibilities. Although those issues fall outside 4 1 likewise do find that the building is properly the Iowa City Zoning Code, the appellants have related 5 classified as a single-family dwelling. I do want to them to their appeal in that they stale a building 6 add detail to that. I acknowledge that there is a lot permit should not be granted for a property that does 7 of entertaining opportunities, but those are allowed as not meet these criteria. 8 accessory uses and they are not proposing to charge for Further, a significant amount of discussion 9 it, so it is a form, I believe — this entertaining is involved objection by the appellants of the stated 30 part of -- what is defined as living within the intent to conduct tailgating at 101 Lusk Avenue. The 11 definition of single -family -home use. And in issue of sensitive areas review was also raised by — 12 particular, I want to address — Is it all right if I first by public comment but then adopted as part of the 13 address some of the evidence that was provided? appellants' case after the start of the public hearing. 14 Regarding the presentation by Mr. Befeler, I Response to the three issues raised — Responding 15 appreciate that he brought some knowledge about to the three issues raised, consideration was first 16 structures and uses, but I found that his percentages given to the classification of the building and whether 17 are not based on some kind of architectural standard or or not it was properly made and whether an error was 18 code and basically are very speculative. And then there made in the classification of the building as a 19 is — there seemed to be a great assumption that this single-family residence. Without an error being found, 20 home was already — that this structure and use would a permanent — permit cannot be denied and the Board of 21 be — would — would already be a nuisance, and I do not Adjustment would — Adjustment would have no power to 22 believe there was a case to be made for presuming guilt make changes to the building permit issued by the 23 in this way. building official, Iowa Code Chapter 414.12 and the 24 One of the presenters, Ms. Erickson, cited safety Iowa City Zoning Code 14 -8C -3.B.3. 25 concerns about lost drivers, and it was concerning that 11 13 My decision is a single-family use is permitted by 1 police have not ticketed and towed vehicles in — in fight in the low density single-family RS -5 zone and 2 areas in this neighborhood, but these are enforcement that there was no error in the classification of the 3 issues and not something that we can attempt to regulate building as a single-family dwelling. Occupancy cannot 4 through a decision here today, and that tailgating also be established without a certificate of occupancy. 5 is something defined within the code. I guess 1 just There is no design review of buildings at 101 Lusk 6 would like to note that — or emphasize that it clearly Avenue. There are no sensitive areas on the subject 7 states it regards only tailgating and — and clearly you property. The discretionary power of the building 8 cannot park on your own home property on a non official does not allow a denial of a permit in this 9 tailgating day, and it's only for the day. So I matter. I affirm the decision of the building official. 10 appreciate that the neighbors have concerns perhaps that And if you want, I will read all of the findings. 11 there would be vehicles parked on proper — on the CHAIRMAN BAKER: No. But they'll be in part of the 12 property for, you know, more than 24 hours. record because you're going to turn that over, right? 13 There was a — I recognize the design — design or MR. WEITZEL: Yeah. 14 facade is not something many of us would choose for a CHAIRMAN BAKER: Okay. Becky? 15 home, but it is still a dwelling. The architect who MS. SOGLIN: So I also would like to acknowledge 16 appeared on behalf of the appellant, Ms. Parks, that there has — this has been a difficult — I'm 17 suggested that there were many features signaling it is sorry. I can only — I have — I simply cannot 18 not a family dwelling, but I would note that the project. I do not have the voice for it, so I don't 19 majority of the features that she cited as problematic know if you want to come and stand closer. I —1 20 can be found, albeit perhaps just individually, in physically just can't project more than this, so 1 21 homes, such as the lack of windows on a side that you apologize. 22 would expect windows. There are many homes in Iowa City So I do just want to acknowledge that this has — 23 that do not have homes [sic] on, say, an eastern side or you know, has been a difficult case, and I appreciate 24 southern side when there could be. all the patience and detail that people have taken time 25 A bathroom being within four feet of a front door. Page 10 to 13 Board of Adjustr 14 1 1 have to say my own home has a bathroom within four 2 feet of the front door. Lockers. Lockers are sold by 3 companies as a feature put into homes, re — old 4 refurbished gym lockers. The facade. That is something 5 that could be perhaps controlled by a historic district 6 or other overlay. Ms. Madsen mentioned a case where 7 somebody had wanted a pole building and there were scale 8 and design issues, and again, scale and design are 9 things that could potentially be covered by historic 10 overlay. 11 In his memo of September 8th, Mr. Boothroy had 12 cited points 1 through 6 re — regarding zone class 13 overlay use, permitted use class, the fact that the 14 Carlsons had slated that it was a home; and again, we I 15 believe have to assume they are not lying and that the 16 lot setbacks, coverage, and height all met the 17 standards, so 1 found that — that evidence to be 18 credible. 19 1 just want to — I -- I hope we're not taking up 20 too much time, but I just want to be extremely thorough 21 on this. And I would just say, you know, we found that 22 this home is extremely large with a highly unusual 23 design and arguably, if you will, unattractive design 24 with large amenities owned by out-of-towners and used 25 for entertaining along with living, sleeping, cooking, 1s 1 and eating, and again, I'm finding that the form of 2 entertaining falls under living. 3 And I just want to go by these through — through 4 the point one by one. The fact that it is extremely 5 large, as Mr. Boothroy noted, this is not something that 6 you control — control beyond the size of the lot. For 7 this neighborhood that's not desiring such a large home, 8 it's — it's something that could perhaps eventually be 9 covered by infill regulations or the like. It has a 10 highly unusual design. I think it was made clear you 11 cannot really control design. Again, it's something 12 that if the neighborhood had a historic or other 13 district overlay, external features could — could 14 perhaps be controlled through that. Obviously you can 15 sometimes do very little to control the inter - 16 internal features. 17 The fact that the facade is not to some people's 18 liking; again, in a — in a non historic or non overlay 19 district, there's little that you might be able to do to 20 change that. It has many amenities. These have been 21 shown through other cases to be allowed in homes. 22 Again, I think some of the issue is that this home has 23 one of each of those. It's owned by out-of-towners, and 24 1 think while the —while our comprehensive plan refers 25 to the citizens of Iowa City, the resident — residents rent 9-30-16 16 1 and all of those who are making this our home at various 2 times need to be treated justly. And it's — and 3 it's — The home is being used for entertaining along 4 with living, sleeping, cooking, and eating. It is not 5 retail. Any possible future nuisance depends on 6 enforcement, and that is an enforcement issue, 7 acknowledging that the neighbors have pointed out there 8 have been enforcement problems, and I think that's 9 something that the City needs to be aware of. 10 So while the structure I think is not an ideal fit 11 for the neighborhood, it's still a single-family home. 12 Individually all the features are allowed, and I -- and 13 1 acknowledge that the sum here can — can feel greater 14 than the parts, but I cannot — again, cannot disagree 15 with the findings presented by Mr. Boothroy in his memo. 16 And I think the Carlsons' attorney made an important 17 point that enforcing the zoning code regulations is not 18 the proper place to impose what would be additional 19 restrictions not made explicit in the code. 20 And one other point I would like to make. The 21 University Heights information was — was not 22 compelling. I do believe the sensitive areas and slopes 23 was used to determine in that case, and there was not a 24 thorough accounting for the classification, and overall, 25 it is a different jurisdiction. And I will just note 17 1 1 — I — additionally, I do believe — I mean the City 2 perhaps could have shared some details about the sewer 3 conditions more readily with the — with Mr. Ackerman 4 and others who had asked, but ultimately, it's — its 5 not going to be relevant to the finding that it's a 6 single-family home. 7 And regarding some of the fire issues, I mean I 8 personally would want a home with more egresses, and 1 9 was surprised to find the regulations don't call for 10 more, but ultimately the fire experts have stated that 11 they believe that the hose length is — is sufficient, 12 and I do not think that they would be putting their — 13 putting our residents at risk. And Mr. Boothroy's memo 14 of September 20th cites Section B-105 and Section C-202 15 of the International Fire Code regarding the — the 16 sufficiency there. 17 And regarding the sensitive areas ordinance, I will 18 just note that we received these additional materials 19 today. The appellants' attorney had — had claimed that 20 there was no objection given to the SAO on the — our 21 last meeting, which was the 261h; is that correct? 22 CHAIRMAN BAKER: 21st. 23 MS. SOGLIN: Or 21st. Oh. I have no idea what day 24 it is. But I do have clearly in my notes that the 25 appellants' attorney did state that he felt the SAO Page 14 to 17 1 2 3 4 5 6 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjush 18 issue was not before us and that there had been, as he saw, no application for it. And while I appreciate the environmental concerns that were raised, 1— I do believe that there — there's just no provision cited that requires a person seeking the permit to address the area when it's on another parcel, another property. So last, I guess to address the — the issue — the issuing of the building permit, I think as Tim has found that there is no error in that, and I do recognize the — just the — again, the complexity of this case. CHAIRMAN BAKER: All right. Thank you, Becky. 1 have a long written decision which I promise I will not read to you. I promised my wife I would not read this statement to you; it's 16 pages long. What I want to do is read the opening and the closing, sort of the overview and the conclusion. Let me start by saying we've all talked about the complexity of this issue, and that makes it very difficult for everyone involved. I have lived in Iowa City for 36 years. I've served two terms on the city council. I've served two terms on the Board of Adjustment. I've served on the planning and zoning commission. I've served on the historic preservation, helped write it. We have dealt with issues for 30 - something years, and I have never felt I've been 19 involved in an issue in which there is no clear right decision. It's almost as if we are in a catch-22 situation, and that was what I wanted to talk about in my statement. The stuff I'm not going to read is — I'm not going to go through the list of items which I'm not going to consider, those facts which were introduced which really have no relevance. I'm not going to go into the building permit issue, but the entire body of my decision is, I hope, laying the foundation for the conclusion that where these facts, this information leads me, based upon everything that has been presented in this case. So if you'll bear with me a few minutes, I'd like to read the opening and the closing. This issue pits two documents, the comprehensive plan and the zoning code, which ought to be compatible and mutually reinforcing, into conflict with each other. In its simplest terms, this is a conflict between what the City should do and what the City can do. In this appeal, the City maintains that the comp plan is merely aspirational while the zoning code is regulatory. Indeed, the City's position is that not only does the zoning code dictate what it can do but also what it must do. So let me quote from page 23 of the comp plan, the lent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9.30-16 20 land use vision section. "Iowa City guides development and growth in order to make wise and efficient use of land and infrastructure. In order to create a quality living environment for all area residents, the City will protect and promote the character and integrity of existing neighborhoods while encouraging new development that is designed in a manner that is efficient and sustainable, compatible with and connected to the surrounding development and sensitive to the environmental context. Future development should adhere to the City's neighborhood principles for compact and contiguous development." Let me suggest that you can find similar statements in other sections of the comprehensive plan reflecting the same values and aspirations. I think the City, in the form of the zoning code and the staff making those decisions, is clearly guided by what they perceive as hard-and-fast rules. The board's role, and this is in a memo dated September the 12th from board counsel, who cited Iowa Code 414-10 about the purpose of the Board of Adjustment: "The decisions of the board shall serve the public interest, meet the intent of the title, and be consistent with the comprehensive plan of the City as amended." And quoting from the Iowa City Code of Ordinance 21 1 14 -8C -3.B.3, "The Board of Adjustment may, in conformity 2 with the provisions of the title of ordinances adopted 3 pursuant thereto, affirm, or upon finding error, reverse 4 or modify, wholly or partly, the order, requirement, 5 decision, or determination appealed from and may make 6 such order, requirement, decision, or determination as 7 ought to be made, and to that end shall have all the 8 powers of the office from whom the appeal is taken." 9 Counsel was specifically asked if error included 10 error of judgment. Counsel, in my view, seemed to grant 11 the board some latitude in that area but only in the 12 context of fact. We cannot simply say we disagree. We 13 must convincingly argue that the facts would lead us to 14 a different conclusion; that is, the City made its 15 decision in error by misinterpretation or misuse of the 16 relevant facts. Thus, the dilemma for this board is 17 established. 18 We can assume, quote, "all the powers of the office 19 from whom the appeal is taken," unquote, but it is the 20 City's position that it has no powers through the zoning 21 code in certain areas of this issue and, therefore, the 22 board cannot assume those powers for itself. In the 23 case of single-family residences, the City claims no 24 power to mandate sanitary sewer realignments, no power 25 to force a turnaround to be constructed at the end of a Page 18 to 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 11L1 21 22 23 24 25 Board of Adjustr 22 150 -foot -- plus -foot street, no power to influence site plans which are themselves not required for single-family development adjacent to wetlands or sensitive areas. The City asserts that regardless of clearly demonstrable problems associated with each of those three areas in relation to the construction of this structure, the City has no power and, therefore, neither does the board. Now, for the next few pages, we just talk about issues presented but which 1 cannot use, I think, in determining — making a decision. There's a section about questions of judgment, and I am troubled here by some of the testimony and some of the — the information presented. I think there were — 1 hesitate to use the word "error," but the judgment was not as rigid and thorough and thought through as I would have hoped it would have been, and I document what I think are the examples of that in this. 1 do not talk about the building permit issue but only in one context. The building permit issue is actually a discussion of problems with this development. In the context of a lot split, these problems could be addressed, and the fact that the single-family classification doesn't allow you to mandate changes or 23 force the developer to make changes does not remove the reality that those problems exist. I do want to quote one short memo from the City. The City's perspective is best summed up by Julie Tallman in her 6-22 memo to John Yapp regarding the Lusk development. Quote, "So I was looking through the single-family development standards and noticed the purpose statements for minimum lot requirements and building bulk standards are uniform in that the" — "they seek to ensure consistency and compatibility between new and existing development and discourage new buildings that dominate existing buildings." Space. "I assume that the proposed building meets all height, setback, and other dimensional requirements in our code that are intended to further the stated purposes." And then I have italicized the last statement. "So maybe it's our code that fails to achieve the purpose statement and it's not a reason to deny the building pen -nit." And that's one of the purposes of my statement here — parts I won't read — is to establish what I perceive as problems with the code itself and how it's used, problems that go beyond this one issue which I think the city staff and the — and the city council need to look at in the long run. lent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9-30-16 Okay. As far as a decision. Under classification of use. I have discussed the building permit issue first, this long section in the middle, to establish a series of fads as I understand them. In truth, any problems with the building permit become moot if they proceed from an incorrect classification of use, and if the use classification of single-family is wrong, all bets are off. After six hours of testimony at the 9-14-16 meeting and five hours of discussion at the 9-21 meeting, the City's rationale for the residential classification was revealed to be quite simple. If anything meets the minimum requirement of one bedroom, one kitchen, one bathroom, and a living space, it is a residence. And with those minimums established, the circular logic arising out of the definitional guidelines of the zoning code are then cited. Principal use: The primary use of land or a structure as distinguished from an accessory use; for example, a dwelling is a principal use on a lot in a residential zone, while a garage or pool is accessory use. Definition of dwelling: A building wholly or partially used or intended to be used for residential occupancy. The proposed structure at 101 is clearly a 25 building at. least, quote, "partially used for residential occupancy," albeit on an absentee basis. It seems superficially logical that it is, therefore, the primary use of land in that zone. For the City, all other uses — entertainment, recreational, social activities — are accessory as long as they fl the definitions in the zoning code. And that seems quite simple. So why is this issue so complicated and contested? The board repeatedly asked the City if there was any limit to the logic upon which their decision rested. How about a structure with ten bedrooms in an RS -5 zone? No limit. A structure with ten bathrooms? Two or more basketball courts? An elevated stage built in a giant courtyard? Only one bedroom but ten bathrooms? The list of variations is only constrained by the size of the lot. Could the City imagine any design, even though it included one bedroom, one bathroom, one kitchen, and a living area, any design or configuration that would cause it to question the structure classification as a residential dwelling. A reasonable person could look at the design of the front restrooms and see them clearly designed for a public use rather than private convenience. A reasonable person could look at the spatial Page 22 to 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 9-30-16 26 I 28 language from the — from the intent. "Iowa City guides development and growth in order to make wise and efficient use of land and infrastructure." My evaluation, this development, based on the facts as I understand them, does not reflect wise and efficient use of the land and infrastructure. Number two, "In order to create a quality living environment for all area residents." My evaluation, based on the facts, this development will diminish the quality of life for neighboring residents. Number three, "The City will protect and promote the character and integrity of existing neighborhoods." In my evaluation, based on the facts as I understand them, this development is clearly out of character with the surrounding neighborhood and threatens the long-term stability and integrity of the adjoining property owners. Number five, "This must be compatible with and connected to surrounding development" My evaluation, clearly inconsistent with that goal. "And sensitive to the environmental context," the last guideline. In my evaluation, based on the facts as 1 understand them, this development is clearly inconsistent with that goal. Therefore, as I understand the letter of the law which mandates the obligation of the Board of Adjustment configuration of the structure and see its primary use as an entertainment or recreational venue with residency as a secondary use. The City's response, in so many words: Not according to the code. A reasonable person would consider the sanitary sewer connection, the adjacent slope protection, the potential public safety issue of a necessary turnaround as problems to be addressed by the City and the City's response, in so many words, is not according to the code. Carried to its logical extreme, the City is admitting that it has no power to stop this structure at this site nor any power to prevent even worse — I'm going to use an intentionally inflammatory word — any worse abominations in any other residential zone in Iowa City. If the City's decision is upheld, not one single neighborhood in this community is safe from such development. And I will admit that my previous two paragraphs might be rhetorically unfair to the City. I've chosen the most inflammatory language I could muster, but the tone of my language does not contradict my conclusion. If the City's decision is upheld, not one single neighborhood in this community is safe from such development. But the City has a compelling rebuttal to my conclusion. They are following the letter of the 27 law. As they understand the law, they must approve this development. Indeed, those who oppose this development must also demand that the City obey the law in all issues before it, not just the one that affects them directly. I suspect that the final interpretation of the law is not in the hands of this board. It will be adjudicated elsewhere. The City insists that its obeyed the law. Others will resolve that. And throughout my entire statement, I've returned over and over again to that phrase, "the letter of the law," because it is essential to understanding my conclusion. I return to the language of the law as it relates to our role as a board of adjustment. I'm going to repeat, Iowa Code 414.10.8, purpose: 'The decisions of the board should serve the public interest, meet the intent of the title, and be consistent with the comprehensive plan as amended." Thus, in my opinion, any decision by this board by law must evaluate the public interest and should be consistent with the comprehensive plan. And having established as much factual context as I can for this issue, I now note the language of the comprehensive plan separated here for individual consideration: "Iowa City guide" — This is the 1 2 3 4 5 6 7 8 9 30 11 12 13 14 15 all 17 18 19 20 21 22 23 24 25 29 1 to render decisions which, quote, "should serve the 2 public interest, meet the intent of the title, and be 3 consistent with the comprehensive plan of the City," 1 4 side with the appellants, and being compelled by the 5 language of the law that established the Board of 6 Adjustment, I judge the classification of this 7 development as single-family residential to be 8 overwhelmingly inconsistent with the comprehensive plan 9 and Beady not in the public interest, and to reach 10 that conclusion but rule against the appellant seems to 11 me to be incompatible with the legal mandate of this 12 board. 13 And finally, we are back where we began. What the 14 City should do, can do, and must do will not be resolved 15 here. The appellant has the weight of logic and common 16 sense on its side as well as the moral authority of the 17 public interest This board itself can make no decision 18 that is not in the public interest, nor can it make a 19 decision that is inconsistent with the comprehensive 20 plan. Regardless of the final adjudicated outcome, the 21 City is now obligated in the future to make sure that 22 the letter of the law is amended to more clearly serve 23 the public interest better than it has in this case. 24 We need to make a formal vote, Mark, I assume? 25 MR. PARMENTER: Yes, Mr. Chair. Page 26 to 29 Page 30 to 33 Board of Adjustment 9-30-16 30 32 1 CHAIRMAN BAKER: All right. 1 personally this is difficult to not be able to let the 2 MS. WALZ: You just want to be clear about how you 2 comprehensive plan be the thing that could override 3 vote because the motion is in the affirmative to 3 everything. But the thing to — that just can't be 4 overturn the decision, so if you are against the 4 emphasized enough, as Larry and also Gene have just 5 decision of the building official, you would vote yes; 5 emphasized here, is that unless we have — it is written 6 and if you — if you uphold the decision, you would vote 6 in the code, we cannot just simply, you know, bend 7 no. Is that — 7 regulations or, you know, draw them out They must be 8 MR. CHRISCHILLES: Can — Do we have — Can we 8 in the code. 9 make additional comments — 9 And for me, I had to consider while public 30 CHAIRMAN BAKER: Oh, sure. I'm sorry. 10 interest, we — There are many passionate neighbors 11 MR. CHRISCHILLES: — about each other's — 11 here. Your concerns are — are — are understandable, 12 CHAIRMAN BAKER: It's still — it's still on the 12 but the public interest 1 think also includes the fad 13 floor. 13 that you need to abide by the code that exists and then 14 MR. CHRISCHILLES: I just would like to briefly 14 not, as you are going along, make up restrictions. And 15 rein — reinforce Larry's comments. I think this issue 15 my hope also would be that going forward there is a 16 has brought about several glaring inadequacies in our 16 close look at — at what our codes are and that perhaps 17 current zoning code. The fad that you can't include 17 consideration of infill development standards and other 18 anything dealing with — Only— only under certain 18 residential standards could be done sooner than later. 19 circumstances can you include fire protection, sewer 19 CHAIRMAN BAKER: Tim, anything else? 20 hookup, sensitive slope involvement, those types of 20 MR. WEITZEL: The motion was to grant appellants' 21 things, I felt that the zoning code constantly shackled 21 appeal, the appeal 16-00001, finding that the City NDS 22 our— our opinion. 22 eyed when class — it classified the proposed structure 23 1— I think Larry's point about the — the 23 at 101 Lusk Avenue as a single-family residential 24 circular argument was very pertinent. If you work 24 structure. 25 from — As the City did, if you work from the point of 25 CHAIRMAN BAKER: And was seconded by Gene? Okay. 31 33 1 view that the — that the house — or that the structure 1 Ready to vote? 2 is a single-family dwelling, then that guides all the 2 MS. WALZ: Soglin? 3 rest of your opinions down a certain path, and they 3 MS. SOGLIN: I just want to make sure 1 say - 4 didn't look outside of the possibilities of — of it 4 This is — it's — I just want to make sure — I'm 5 being something other than a single-family dwelling 5 sorry. 6 or— or being something outside what was in the — in 6 MR. WEITZEL: Yes grants it, no doesn't. 7 the code. 7 MS. WALZ: Grants the — so that if you vote yes, 8 So I — I would strongly hope that the City would 8 that would overturn the building official's decision. 9 use this case as a springboard to — to look at -- to 9 MS. SOGLIN: No. 10 bring to the zoning board additions and amendments to 10 MS. WALZ: It's an art. Weitzel? 11 its rules and regulations such that something like this 11 MR. WEITZEL: No. 12 isn't ambiguous if it comes up again. 1 think that we 12 MS. WALZ: Baker. 13 need to have fire, sewer, sensitive slopes, those types 13 CHAIRMAN BAKER: Yes. 14 of things included in the zoning code such — so that — 14 MS. WALZ: Chrischilles. 15 such that they can be ruled on without exclusion. 15 MR. CHRISCHILLES: Yes. 16 CHAIRMAN BAKER: Okay. You made the original 16 CHAIRMAN BAKER: Motion actually fails for lack of 17 motion, didn't you? Would you read the motion again? 17 three votes. 18 MS. SOGLIN: May I, sorry, just— 18 This does raise the question If the classification 19 CHAIRMAN BAKER: I'm sorry. 19 use is upheld and the single-family designation is 20 MS. SOGLIN: — add one quick thing because I —1 20 accurate, is it your position as counsel that we still 21 also — I had not read the paragraph I had had about 21 have no power to modify any terms of the building 22 these three issues of public interest, comprehensive 22 permit? 23 plan, intent of the title, and I think Larry did a very 23 MR. PARMENTER: Yes, that is my position, 24 good job of— of outlining the importance of the 24 Mr. Chair. Under Iowa City Code of Ordinances 14-8C, it 25 comprehensive plan, and for me, I would say very 25 clearly says,'The Board of Adjustment may,' as you've Page 30 to 33 1 2 3 4 5 6 7 8 9 10 11 12 0Kl 14 15 16 17 18 19 20 21 22 23 24 25 Board of Adjustment 34 already quoted, "in conformity with the provisions of 1 this title or ordinances adopted pursuant thereto, 2 affirm, or upon finding error'— and I think that's 3 critical; you've not found error — "reverse or modify, 4 wholly or partly, the order, requirement, decision, or 5 determination appealed from and make such order, 6 requirement, decision, or determination as ought to be 7 made, and to that end shall have the powers of the 8 officer from which" —'from whom the appeal is taken." 9 So given that we do not have three affirmative 30 votes to uphold the appeal, my opinion is this board is 11 without power to modify anything. 12 13 CHAIRMAN BAKER: All right. 14 MR. CHRISCHILLES: Do — do we have the — Can we 15 make a suggestion that this issue go before the 16 zoning — board of zoning to be used to look at the specific oddities of this case so that they can perhaps, 17 you know, remedy — make — make things better? 18 MR. PARMENTER: Gene, if I — if I may, I suspect 19 that this issue will be going through counsel, staff, 20 probably planning and zoning and other different boards 21 of Iowa City, but I don't believe this board has the 22 power to instruct or authorize — 23 MR. CHRISCHILLES: I meant as — as a request. 24 MR. PARMENTER: As a — You can certainly make a 25 35 1 request, but I don't— its not binding, of course. 2 MR. CHRISCHILLES: No. 3 MR. PARMENTER: Yes. I understand. 4 MR. CHRISCHILLES: And how would we initiate that? 5 MR. PARMENTER: I think you just did. 6 MR. CHRISCHILLES: All right. 7 CHAIRMAN BAKER: Any other discussion from the 8 board? 9 MR. WEITZEL: I just want to reiterate what 10 everybody else is saying. This was very contentious, it very complicated, and not easy to do, but things seem to 12 be set out in a certain path a long time ago, and that's 13 what we had to follow. 14 CHAIRMAN BAKER: And once again, I want to thank 15 all of you for your participation and your help in this 16 matter. 17 With that, I'll entertain a motion to close the 18 meeting, adjourn the meeting. 19 MR. WEITZEL: So moved. 20 MS. WALZ: Moved by Weitzel. All those in favor 21 say aye. 22 (A vote was taken and the motion passed 4-0.) 23 (Meeting adjourned at 7:18 p.m.) 24 25 9-30-16 36 CERTIFICATE I, Julie M. Kluber, Certified Shorthand Reporter in the State of Iowa, do hereby certify that I was authorized to and did transcribe in shorthand the above and foregoing proceedings; that said shorthand notes were reduced to computer-aided transcription under my direction and supervision; that the foregoing 35 pages are a full and correct transcript of the shorthand notes so taken, to the best of my ability under the situation presented; that I am a disinterested person to the said action. IN WITNESS WHEREOF, I have hereupon set my hand this 2nd day of November, 2016. Certified Shorthand Reporter Page 34 to 36 1 It] -14:12 101 [61- 4:3, 7:9, 10:11,11:6. 24:25, 32:23 12th It] - 20:19 1412] - 7:20, 7:21 14.8C Il] - 33:24 14-11C-3.6.312] - 10:25, 21:1 150 -foot [t] - 22:1 16 [1] -18:14 16-00001 It] - 32:21 2 2016 [2] - 7:22, 9:12 2016[21 - 1:5, 36:13 20th ill - 17:14 21st[2]-17:22, 17:23 231t] -19:25 24 It] - 13:12 26th [t] - 17:21 2nd Ill -36:13 30 [2]- 1:5,18:24 30th [1] - 2:3 319-286-1717 Ill 1:25 35111- 36:7 3516 Ill -1:24 36 [1] - 18:20 4 4-0 [1] - 35:22 414141- 7:18, 8:3, 8:16, 9:8 414-10 [1]- 20:20 414.10.13[1]-27:15 414.12[2]-8:4,10:24 611] - 14:12 6-22 Eli- 23:5 6:30[1]-1:5 7:18 [1] - 35:23 866-012-0766111 1:25 8th Ill - 14:11 9-14-16 [11- 24:9 9-21 Ill - 24:10 A abide It] - 32:13 ability [it - 36:9 able [21- 15:19, 32:1 abominations [ll - 26:14 absent 111- 1:10 absentee [11- 25:2 accessory is] - 6:7, 6:12.12:8, 24:19, 24:21, 25:6 according [2] - 26:4, 26:9 accounting It] -16:24 accurate It] - 33:20 achieve It] - 23:18 Ackerman It] -17:3 acknowledge 15] - 3:17, 11:16, 11:23, 12:6, 16:13 acknowledging it] - 16:7 action [21- 9:4, 36:11 activities Ill - 25:6 add [31- 9:19, 12:6, 31:20 added it] - 6:19 additional I5] - 3:6, 9:13, 16:18, 17:18, 30:9 additionally [3] - 9:17, 10:2, 17:1 additions It] - 31:10 address 14] - 12:12, 12:13, 18:5, 18:7 addressed [2] - 22:24, 26:8 adhere [11- 20:10 adjacent [21- 22:3, 26:6 adjoining ill - 28:16 adjourn [1] - 35:18 adjourned It] - 35:23 adjudicated R] - 27:8, 29:20 Adjustment [16] - 2:3, 3:2, 7:5, 7:14, 7:17, 8:2, 8:4, 8:7.10:22, 18:22, 20:21, 21:1, 28:25, 29:6, 33:25 ADJUSTMENT[11- 1:4 adjustment [1] - 27:14 Board of Adjustment 9-30-16 admit ill - 26:18 admitting ill - 26:11 adopted 16] - 8:9, 8:21, 9:8,10:13, 21:2, 34:2 advice Ill - 8:17 affects [1] - 27:4 affirm [4] - 8:9, 11:10, 21:3, 34:3 ago [11- 35:12 aided Ill - 36:6 albeit 12] -13:20, 25:2 alert 111-5:15 alleging 111- 7:9 allocated 121- 5:22, 6:9 allow [2]-11:9, 22:25 allowed [31-12:7, 15:21,16:12 almost It] -19:2 alter It] - 9:2 ambiguous [11- 31:12 amended [3]- 20:24, 27:18, 29:22 amendments [11- 31:10 amenities [21- 14:24, 15:20 amount [31- 5:21, 6:9, 10:9 APL16.00001 121- 4:2, 7:6 apologize Itl - 11:22 appeal [121-4:2, 5:6, 5:12, 7:6,10:6, 19:20, 21:8, 21:19, 32:21, 34:9, 34:11 appealed 131- 9:23, 21:5, 34:6 appeals 111- 8:2 appeared Il] -13:16 appellant [51- 3:7, 3:12, 13:16, 29:10, 29:15 appellants [3]- 10:5, 10:10, 29:4 appellants' [s] - 4:1, 10:14.17:19,17:25, 32:20 applicant 121- 3:7, 3:12 application [1] -18:2 apply [0 - 4:11 appreciate [5]- 2:25, 11:24, 12:15, 13:10, 18:2 approval 131- 7:11, 9:25,10:1 approve [11- 27:1 approved [11- 9:24 architect 11] - 13:15 architectural Ill - 12:17 area [5] -18:6, 20:4, 21:11, 25:19, 28:8 areas Is] -10:12, 11:7, 13:2, 16:22, 17:17, 2121, 22:4, 22:7 arguably [t] -14:23 argue 111- 21:13 argument [1]- 30:24 arguments [t] - 6:4 arising 113 - 24:16 arrangement 12] - 5:21, 6:8 art 111- 33:10 aspirational Ill - 19:21 aspirations [1] - 20:15 asserts [it - 22:5 assigned Ell - 8:22 associated [1] - 22:6 assume 15] -14:15, 21:18, 21:22, 23:13, 29:24 assumption It] - 12:19 attempt ill - 13:3 attorney [3] - 16:16, 17:19,17:25 attorneys 121- 3:6, 5:5 audio 11] - 1:19 authorities pl - 7:13, 7:24, 9:4 authority [2] - 8:12, 29:16 authorize 171- 34:23 authorized Ill - 36:4 Avenue [51- 4:3, 7:9, 10:11,11:7, 32:23 aware 121- 5:12,16:9 aye [t] - 35:21 B B-105 [11-17:14 Baker[31- 1:9, 2:7, 33:12 BAKER [261- 2:2, 2:8, 2:10, 2:13, 3:22, 3:24, 4:8, 4:23, 5:3, 6:25, 11:12, 11:15, 17:22.18:11, 30:1, 30:10, 30:12, 31:16, 31:19, 32:19, 32:25, 33:13, 33:16, 34:13, 35:7, 35:14 base It] - 9:10 based 191- 8:14, 9:4, 9:21, 12:17.19:12, 28:4, 28:9, 28:13, 28:22 basis [21- 3:1, 25:2 basketball [11- 25:14 bathroom [4] -13:25, 14:1, 24:14, 25:18 bathrooms 12] - 25:13, 25:15 bear 0] - 19:13 Becky [31- 1:9. 11:15, 18:11 become [1]- 24:5 bedroom [3] - 24:13, 25:15, 25:18 bedrooms It] - 25:12 Befeler [1]-12:14 began 11] - 29:13 behalf It] - 13:16 bend [it - 32:6 best [3] - 6:17, 23:4, 36:9 bets 11] - 24:8 better 121- 29:23, 34:18 between [21-19:18, 23:11 beyond [2] -15:6, 23:23 binding It] - 35:1 bit It] - 7:2 BOARD [11-1:4 Board Its] - 2:3, 3:2, 7:5, 7:14, 7:17, 8:2, 8:4, 8:7,10:21, 18:21, 20:20, 21:1, 28:25, 29:5, 33:25 board [241- 2:16, 3:4, 3:19, 4:11, 5:14, 7:17, 20:19, 20:21, 21:11, 21:16, 21:22, 22:9, 25:10, 27:7, 27:14, 27:16, 27:19, 29:12, 29:17, 31:10, 34:11, 34:16, 34:22, 35:8 board's 13] - 2:19, 3:16, 20:18 boards Itl - 34:21 body Ill -19:9 Boothroy, [41-1:11, 14:11, 15:5, 16:15 Boothroy's [1]- 17:13 briefly It] - 30:14 bring [11- 31:10 brought [2] -12:15, 30:16 building [351- 6:16. 6:23, 7:7, 8:20, 8:23, 9:6, 9:9, 9:11, 9:16, 9:21, 10:1, 10:6, Page 1 to 1 10:17, 10:19, 10:23, 10:24, 11:4, 11:8, 11:10, 12:4, 14:7, 18:8, 19:9, 22:20, 22:21, 23:9, 23:13, 23:19, 24:2, 24:5, 24:23, 25:1, 30:5, 33:8, 33:21 Building [1]- 7:24 buildings 13] -11:6, 23:12 built [11- 25:14 bulk [1] - 23:9 business [t1- 2:14 C C-202 [11-17:14 cannot [141- 4:15, 6:21, 6:24, 10:21, 11:4, 11:18, 13:8, 15:11, 16:14, 21:12, 21:22, 22:11, 32:6 carefully [1]- 6:4 Carlson 111- 2:21 Carlsons [2]- 5:6, 14:14 Carlsons' 1t] -16:16 carried [1] - 26:10 case [12] - 6:8, 10:14, 11:24, 12:22, 14:6, 16:23, 18:10, 19:13, 21:23, 29:23, 31:9, 34:17 cases [1] -15:21 catch-22 [1]-19:2 category [ll - 6:17 Cedar [1] -1:24 CENTER 111-1:6 certain [4]- 21:21, 30:18, 31:3, 35:12 certainly 12] - 3:17, 34:25 certificate [21- 9:15, 11:5 CERTIFICATE[i]- 36:1 ERTIFICATE[t]- 36:1 Certified [2] - 36:2, 36:16 certify 111- 36:3 cetera [1] - 8:11 chair [2] - 29:25, 33:24 chair's [11- 4:18 CHAIRMAN [261- 2:2, 2:8, 2:10, 2:13, 3:22, 3:24, 4:8, 4:23, 5:3, 6:25, 11:12, 11:15, 17:22,18:11, 30:1, 30:10, 30:12, 31:16, 31:19, 32:19, 32:25, 33:13, 33:16, 34:13, 35:7, 35:14 change [2] - 9:2, 15:20 changes [3] -10:23, 22:25, 23:1 Chapter [e] - 7:18, 8:3, 8:4, 8:15, 9:8, 10:24 character [3] - 20:5, 28:12, 28:14 charge [11-12:8 choose 111-13:14 chosen [11- 26:19 CHRISCHILLES [ta]- 2:6, 4:5, 5:1, 5:4, 30:8, 30:11, 30:14, 33:15, 34:14, 34:24, 35:2, 35:4, 35:6 Chrischilles [4] -1:9, 2:5, 4:7, 33:14 circular [2] - 24:15, 30:24 circumstances [1] - 30:19 cited [71- 9:5,12:24, 13:19, 14:12,18:4, 20:20, 24:17 cites It] - 17:14 cities [i] - 8:13 citizens [11-15:25 City [56] - 3:12, 4:2, 7:5, 7:14, 7:16, 7:18, 7:19, 8:3, 8:6, 8:18, 8:24, 9:1, 9:3,10:5, 10:25,13:22,15:25, 16:9,17:1. 18:20, 19:19,19:20, 20:1, 20:4, 20:15, 20:23, 20:25, 21:14, 21:23, 22:5, 22:8, 23:3, 25:4, 25:10, 25:17, 26:8, 26:10, 26:15, 26:19, 26:24, 27:3, 27:8, 27:25, 28:1, 28:11, 29:3, 29:14, 29:21, 30:25, 31:8, 32:21, 33:24, 34:22 CITY [1] -1:7 city [tai - 3:8, 5:5, 8:13, 8:14, 9:1, 9:8, 18:21, 23:24 City's [9] -19:22, 20:11, 21:20, 23:4, 24:11, 26:3, 26:8, 26:15, 26:22 claimed 111-17:19 claims O] - 21:23 class [3]-14:12, Board of Adjustment 9-30-16 14:13, 32:22 classification [171- 6:15, 6:20, 7:10, 9:23, 10:17, 10:19, 11:3,16:24, 22:25, 24:1, 24:6, 24:7, 24:11, 25:20, 29:6, 33:18 classified [3] - 4:3, 12:5, 32:22 clear 131- 15:10,19:1, 30:2 clearly [151- 5:22, 6:10, 13:6, 13:7, 17:24, 20:17, 22:5, 24:25, 25:23, 28:14, 28:20, 28:23, 29:9, 29:22, 33:25 close [31- 5:16, 32:16, 35:17 closer [1] - 11:20 closing [2]-18:15, 19:14 code [28] - 6:19, 6:21, 7:12, 8:21, 9:7, 12:18,13:5, 16:17, 16:19, 19:16, 19:21, 19:23, 20:16, 21:21, 23:15, 23:17, 23:22, 24:17, 25:7, 26:4, 26:9, 30:17, 30:21, 31:7, 31:14, 32:6, 32:8, 32:13 Code [2t] - 7:18, 7:19, 7:20, 7:22, 7:23, 7:24, 8:3, 8:7, 8:12, 9:1, 9:3, 9:8, 9:12, 10:5, 10:24, 10:25, 17:15, 20:20, 20:25, 27:15, 33:24 codes 121- 9:11, 32:16 coming [41 - 2:25, 5:8, 5:9, 6:5 commended 11] - 2:24 commending 111- 5:5 comment [2] - 4:8, 10:13 comments 121- 30:9, 30:15 commission [21- 8:15, 18:23 common [1] - 29:15 community [21- 26:16, 26:23 comp [2] - 19:20, 19:25 compact Ill - 20:11 companies [1] - 14:3 compatibility Ill - 23:10 compatible [31- 19:16, 20:8, 28:18 compelled 1t] - 29:4 compelling [2] - 16:22, 26:24 compensation 11] - 7:16 completely [11- 4:9 complexity [31- 5:12, 18:10,18:18 complicated 121 - 25:9, 35:11 comprehensive [13] - 15:24, 19:15, 20:14, 20:23, 27:18, 27:21, 27:24, 29:3, 29:8, 29:19, 31:22, 31:25, 32:2 computer [1] - 36:6 computer-aided [1]- 36:6 concerning It] - 12:25 concerns [4] -12:25, 13:10, 18:3, 32:11 conclusion 181- 5:10, 18:16,19:11, 21:14, 26:21, 26:25, 27:12, 29:10 conditions [1] -17:3 conduct 11] -10:11 configuration 121- 25:19, 26:1 conflict [21- 19:17, 19:18 conformity [3] - 8:8, 21:1, 34:1 connected [3]- 9:19, 20:8, 28:19 connection [2]-10:3, 26:5 conn[e [1] - 1:10 consider [31- 19:7, 26:5, 32:9 consideration [41- 5:7, 10:16, 27:25, 32:17 consistency[l] - 23:10 onsistency[1]- 23:10 consistent [4] - 20:23, 27:17, 27:20, 29:3 consists [1] - 7:14 constantly [1] - 30:21 constrained [t] - 25:16 constructed [2] - 9:16, 21:25 construction [1]- 22:7 consulted [1] - 7:24 contentious It] - 35:10 contested [11- 25:9 context [61- 20:10, 21:12, 22:21, 22:23, 27:22, 28:21 contiguous [11- 20:12 CONTINUED It] - 1:4 contradict [11- 26:21 contribute [1] - 8:17 control [41-15:6, 15:11.15:15 controlled [2]-14:5, 15:14 convenience 111- 25:24 convincingly [t] - 21:13 cooking [3] - 5:24, 14:25, 16:4 correct [2] -17:21, 36:8 council [5] - 8:13, 9:2, 9:8.18:21, 23:24 counsel [51- 20:19, 21:9, 21:10, 33:20, 34:20 course [1]- 35:1 court [1] - 4:10 courts 111- 25:14 courtyard [7] - 25:15 coverage [11-14:16 covered [3] - 8:5, 14:9,15:9 create [4] - 8:12, 9:2, 20:3, 28:7 created [1] - 6:17 credible [7] - 14:18 criteria [21- 6:1, 10:8 critical [1] - 34:4 CSR [1] -1:23 current [1] - 30:17 D date [3] -1:18, 3:15, 5:15 dated [11- 20:19 dealing [t] - 30:18 dealt 11] - 18:24 decision [30] - 3:2, 5:8, 5:17, 7:1, 7:5, 7:6, 7:13, 11:1, 11:10, 13:4,18:12, 19:2,19:10, 21:5, 21:6, 21:15, 22:12, 24:1, 25:11, 26:15, 26:22, 27:19, 29:17, 29:19, 30:4, 30:5, 30:6, 33:8, 34:5, 34:7 decisions 141- 20:17, 20:21, 27:15, 29:1 defined 12] - 12:10, 13:5 definition [21-12:11, 24:23 definitionalll] - 24:16 definitions I1] - 25:7 deliberation 11] - 5:9 demand Ill - 27:3 demonstrable 11] - 22:6 denial [11-11:9 denied Ell -10:21 density [21- 7:8, 11:2 deny [2] - 9:10, 23:19 department (1) -10:3 derives It] - 7:17 describe [1] - 6:18 design 1121- 11:6, 13:13, 14:8, 14:23, 15:10, 15:11, 25:17, 25:19, 25:22 designation 121- 6:2, 33:19 designed 12] - 20:7, 25:23 desiring 111- 15:7 despite It] - 8:22 detail [2] - 11:25, 12:6 details it] -17:2 determination [41- 21:5, 21:6, 34:6, 34:7 determine 111- 16:23 determined [1] - 6:19 determines RI - 6:7, 6:14 determining 111- 22:12 developer It] - 23:1 development [22] - 20:1, 20:6, 20:9, 2010, 20:12, 22:3, 22:22, 23:6, 23:7, 23:11, 26:17, 26:24, 27:2, 28:2, 28:4, 28:9, 28:14, 28:19, 28:23, 29:7, 32:17 Development It] - 7:7 dictate [t] - 19:23 dictated n] - 9:7 different 13] -16:25, 21:14,34:21 difficult [5] - 5:8, 11:17, 11:24,18:113, 32:1 digital ill - 1:19 dilemma 111- 21:16 dimensional [1] - 23:14 diminish (1I - 28:9 direction It] - 36:7 directly It] - 27:5 disagree [2] -16:14, 21:12 disagrees Itl - 3:19 discourage 111- 23:11 discretion Ill - 9:9 discretionary [2]- 8:22, 11:8 discuss ill - 3:13 discussed 121- 3:11, 24:2 discusses It] - 3:4 discussion 161- 3:25, 4:24,10:9, 22:22, 24:10, 35:7 disinterested [1]- 36:10 distinct 12] - 8:19, 9:21 distinguished (11- 24:19 district 131-14:5, 15:13, 15:19 document It] - 22:18 documents [11-19:15 dominate Ill - 23:12 done pl - 4:14, 8:18, 32:18 door [2] -13:25, 14:2 Doug 111-1:11 down Ill -31:3 draw [1] - 32:7 Drive [1] -1:24 drivers [1]- 12:25 due 111-5:12 Dulek It] - 1:11 during [2] - 7:25, 9:16 duty It] - 9:5 dwelling 111] - 6:2, 9:24, 11:4, 12:5, 13:15,13:18, 24:20, 24:23, 25:21, 31:2, 31:5 E eastern i1] - 13:23 easy [1] - 35:11 eating 13] - 5:24, 15:1, 16:4 efficient (4] - 20:2, 20:7, 28:3, 28:5 egresses It] - 17:8 either it] - 4:10 electricity [it - 9:20 elevated Ill - 25:14 Board of Adjustment 930-16 elsewhere [11- 27:8 emphasize (11-13:6 emphasized [21- 32:4, 32:5 enabling 111- 7:19 encouraging Itl - 20:6 end [3] - 21:7, 21:25, 34:8 enforce [2]- 8:25, 9:3 enforcement [51- 8:23, 13:2, 16:6, 16:8 enforcing [1] -16:17 ensure [1] - 23:10 entertain [2] - 3:25, 35:17 entertaining [5]- 12:7, 12:9, 14:25, 15:2, 16:3 entertainment 13] - 6:18, 25:5, 26:2 entertainment - oriented 111- 6:18 entire 121-19:9, 27:10 environment [21- 20:4, 28:8 environmental (41- 3:9, 18:3, 20:10, 28:21 Erickson [11-12:24 erred 121- 4:2, 32:22 error [131- 7:10, 8:10, 10:18, 10:20, 11:3, 18:9, 21:3, 21:9, 21:10, 21:15, 22:16, 34:3, 34:4 errors It] - 7:12 essential It] - 27:12 establish 121- 23:21, 24:3 established [sl -11:5, 21:17, 24:15, 27:22, 29:5 at [1] - 8:11 evaluate (11- 27:19 evaluation [sl - 28:4, 28:8, 28:13, 28:19, 28:22 eventually It] -15:8 evidence [21-12:13, 14:17 example [2] - 9:14, 24:20 examples 111- 22:19 EXC16.00001 111- 3:3 excellent 111- 5:7 exclusion [1]- 31:15 execute 111- 9:6 exist O] - 23:2 existing [4] - 20:6, 23:11, 23:12, 28:12 exists Ill - 32:13 expect Ell - 13:22 experientially [11- 8:16 expert [t] - 8:17 experts [11-17:10 explicit [1] -16:19 extension 11] - 7:18 external 111-15:13 extreme [1] - 26:10 extremely 131 -14:20, 14:22,15:4 F facade [31- 13:14, 14:4,15:17 fact l8] - 7:3,14:13, 15:4,15:17, 21:12, 22:24, 30:17, 32:12 factor It] - 6:6 facts [91-19:7, 19:11, 21:13, 21:16, 24:4, 28:4, 28:9, 28:13, 28:22 factual [11- 27:22 fails 12] - 23:17, 33:16 faithfully It] - 9:6 fall [1] -10:4 falls Ill -15:2 family [241- 4:4, 5:23, 6:2, 7:9, 9:24,10:20, 11:1, 11:2,11:4, 12:5, 12:11, 13:18, 16:11,17:6, 21:23, 22:3, 22:24, 23:7, 24:7, 29:7, 31:2, 31:5, 32:23, 33:19 far111-24:1 fast Ill - 20:18 favor Ill - 35:20 feature Ill - 14:3 features 15] -13:17, 13:19, 15:13, 15:16, 16:12 feet [21- 13:25,14:2 felt (3] - 17:25, 18:25, 30:21 few 121- 19:13, 22:10 final (41- 8:25, 9:14, 27:6, 29:20 finally [21- 4:9, 29:13 findings [3] - 7:3, 11:11, 16:15 Fire [1] -17:15 fire [s] -10:3, 17:7, 17:10, 30:19, 31:13 first 16] - 5:2, 5:18, 5:19, 10:13, 10:16, 24:3 fit 13] - 6:1, 16:10, 25:6 five 13] - 7:14, 24:10, 28:18 floor [31 - 5:18, 5:19, 30:13 follow 111- 35:13 following (4] - 1:17, 8:3, 8:5, 26:25 foot It] - 22:1 force [2] - 21:25, 23:1 foregoing [21- 36:5, 36:7 foresee 111- 3:18 form [31-12:9, 15:1, 20:16 formal [1] - 29:24 format It] - 4:20 forward ill - 32:15 foundation [1] -19:10 four[21-13:25, 14:1 front131-13:25, 14:2, 25:23 full [1] - 36:8 future 14] - 4:14, 16:5, 20:10, 29:21 I G I game [1] - 2:23 garage It] - 24:21 Gene [6] - 1:9, 5:3, 6:25, 32:4, 32:25, 34:19 giant ill- 25:14 given 15] - 7:25,10:17, 12:1, 17:20, 34:10 glaring [1] - 30:16 goal [21- 28:20. 28:23 Goeb (11-1:10 grant 131- 4:1. 21:10, 32:20 granted [2] - 9:15, 10:7 grants [21- 33:6, 33:7 great It] - 12:19 greater 111-16:13 greatly [1] - 2:20 growth [21- 20:2, 28:2 guess 12] - 13:5,18:7 guide [1] - 27:25 guided 11] - 20:17 guideline Ill - 28:21 guidelines 111- 24:16 guides [3] - 20:1, 28:1, 31:2 guilt it]- 12:22 gym 11]- 14:4 Page 3 to 3 H hand [21- 2:18, 36:12 hands [1] - 27:7 hard [21- 5:25, 20:18 hard-and-fast[l] - 20:18 heard I1] - 9:16 hearing [61- 3:14, 3:15, 3:20, 8:1, 9:16, 9:18, 9:22, 10:14 height [2] -14:16, 23:14 Heights It] -16:21 held [11-1:17 help [1] - 35:15 helped [2] - 2:20, 18:24 hereby [1] - 36:3 hereupon 111- 36:12 hesitate [11- 22:15 highly [21-14:22, 15:10 himself [1] - 2:22 historic [51- 14:5, 14:9, 15:12, 15:18, 18:23 home (141- 12:11, 12:20, 13:8, 13:15, 14:1, 14:14,14:22, 15:7, 15:22, 16:1, 16:3,16:11, 17:6, 17:8 homes [5]-13:21, 13:22, 13:23,14:3, 15:21 hookup [1]- 30:20 hope [4] - 14:19, 19:10, 31:8, 32:15 hoped 111- 22:17 hose [1] -17:11 hours [4] - 5:9, 13:12, 24:9, 24:10 house [1] - 31:1 IA It] -1:24 Idea It] - 17:23 [deal It] -16:10 imagine [1] - 25:17 Immediately 11] - 5:12 impact It] - 3:9 importance [1] - 31:24 Important [21- 6:6, 16:16 impose 11l -16:18 IN 111- 36:12 inadequacies Itl - 30:16 Include [3] - 5:23, 30:17, 30:19 included [3] - 21:9, 25:18, 31:14 includes [1] - 32:12 including [1] - 9:13 incompatible [1] - 29:11 inconsistent [4] - 28:20, 28:23, 29:8, 29:19 incorrect [1] - 24:6 indeed [2] -19:22, 27:2 indicates [1] - 8:12 individual [1]- 27:24 individually [2] - 13:20, 16:12 infill [21-15:9, 32:17 inflammatory I21 - 26:13, 26:20 influence 11] - 22:1 information 171- 3:6, 3:9, 3:18, 5:11, 16:21,19:11, 22:14 infrastructure [3] - 20:3, 28:3, 28:6 initiate It] - 35:4 input 141- 2:20, 3:17, 4:16, 8:15 insists [1]- 27:8 inspection [2]- 9:14 inspections I1] - 9:13 instruct [1] - 34:23 integrity Is]- 20:5, 28:12, 28:16 intended 141- 5:25, 6:16, 23:15, 24:24 intent[7]-6:5, 10:11, 20:22, 27:17, 28:1, 29:2, 31:23 intentionally [1] - 26:13 inter 111-15:15 interest 111]- 20:22, 27:16, 27:20, 29:2, 29:9, 29:17, 29:18, 29:23, 31:22, 32:10, 32:12 Internal [1] -15:16 International [4]- 7:22, 7:23, 9:12, 17:15 interpretation [1] - 27:6 introduced 121- 3:10, 19:7 involve [1] - 9:20 involved ]31-10:10, 18:19,19:1 Board of Adjustment 9-30-16 involvement [1] - 30:20 Iowa [311- 7:5, 7:14, 7:16, 7:18, 7:19, 8:2, 8:6, 8:12, 8:18, 8:24, 9:1, 9:3, 9:8,10:6, 10:24, 10:25, 13:22, 15:25,18:20, 20:1, 20:20, 20:25, 26:15, 27:15, 27:25, 28:1, 33:24, 34:22, 36:3 IOWA [2] -1:7 Issue 125] - 3:9, 4:9, 4:12, 5:13, 7:7, 10:12, 15:22, 16:6, 18:1, 18:7,18:18, 19:1, 19:9, 19:15, 21:21, 22:20, 22:21, 23:23, 24:2, 25:9, 26:7, 27:23, 30:15, 34:15, 34:20 issued 121- 6:24, 10:23 issues 114] - 4:22, 4:24, 8:19, 9:23, 10:4, 10:15, 10:16, 13:3,14:8, 17:7, 18:24, 22:11, 27:4, 31:22 issuing [11-18:8 italicized it] - 23:16 Item [1]- 3:2 items [11-19:6 Itself [41- 3:4, 21:22, 23:22, 29:17 job [11- 31:24 John [21-1:12, 23:5 judge It] - 29:6 judgment [31- 21:10, 22:13, 22:16 Julie I31-1:23, 23:4, 36:2 jurisdiction [1] - 16:25 justly [11-16:2 K kind [21- 5:15,12:17 kitchen 121- 24:13, 25:18 Kluber [21-1:23, 36:2 knowledge 111- 12:15 L lack [21-13:21, 33:16 laid 111- 5:20 land [6] - 20:1, 20:3, 24:18, 25:4, 28:3, 28:6 language [6] - 26:20, 26:21, 27:13, 27:23, 28:1, 29:5 large 141-14:22, 14:24,15:5,15:7 Larry [3] -1:9, 31:23, 32:4 Larry's 12] - 30:15, 30:23 last [7] - 3:5, 3:11, 4:19, 17:21, 18:7, 23:16, 28:21 latitude 111- 21:11 law [111- 27:1, 27:3, 27:6, 27:9, 27:11, 27:13, 27:19, 28:24, 29:5, 29:22 laying 111- 19:10 lead 11]- 21:13 leads Ill - 19:12 least [l] - 25:1 led [21- 6:10, 9:3 legal Ill - 29:11 legislation Ill - 9:7 legislative [11- 9:4 length [11-17:11 letter [4]- 26:25, 27:11, 28:24, 29:22 level [9 - 9:10 lies It] - 6:17 life Ill - 28:10 lightly [1] - 12:3 likely [11- 5:15 likewise [2]- 12:1, 12:4 limit l2] - 25:11, 25:13 limited [21- 8:22, 9:9 list [2]-19:6, 25:16 listed 1t] - 6:21 listened [1] - 6:4 listing 11] - 7:13 lived 111- 18:19 living [9] - 5:24,12:10, 14:25, 15:2,16:4, 20:4, 24:14, 25:19, 28:7 located Ill - 7:8 Lochwood [1] -1:24 lockers [31-14:2, 14:4 logic [3] - 24:15, 25:11, 29:15 logical p] - 9:5, 25:3, 26:10 long-term It] - 28:15 look V] - 23:25, 25:22, 25:25, 31:4, 31:9, 32:16, 34:16 looked 121- 5:18, 5:19 looking [11- 23:6 lost Ill -12:25 low [2]-7:8, 11:2 Lusk [61- 4:3, 7:9, 10:11,11:6, 23:5, 32:23 tying It] - 14:15 M Madsen [1] - 14:6 maintains Ill -19:20 majority [11-13:19 mandate Is]- 21:24, 22:25, 29:11 mandates Ill - 28:25 manner [2] - 5:21, 20:7 mark It] - 3:22 Mark [2] - 1:13, 29:24 materials [t] - 17:18 matter [51- 5:8, 7:15, 7:25,11:10, 35:16 meals Itl - 5:24 mean [2]-17:1, 17:7 means It] - 8:16 meant it) - 34:24 meet [4] - 10:8, 20:22, 27:16, 29:2 MEETING It] - 1:4 Meeting I1] - 35:23 meeting [17] - 1:17, 2:3,3:1,3:5,3:11, 3:13, 3:16, 3:20, 4:12, 4:13, 4:15, 8:6, 17:21, 24:9, 24:10, 35:18 meetings [1] - 2:17 meets [21- 23:13, 24:12 Members [2] -1:9, 1:10 members [1] - 7:15 memo [61- 14:11, 16:15, 17:13, 20:19, 23:3, 23:5 mentioned Ill -14:6 merely [t1-19:20 met 12]-9:11,14:16 metaphor [1] - 2:23 middle [t] - 24:3 might [3] - 9:19, 15:19, 26:19 mind It] - 5:1 minded I1] - 5:16 minimum [2] - 23:8, 24:13 minimums It] - 24:15 Page 4 to 4 minutes [11-19:13 misclassified [1]- 6:13 misinterpretation [1] - 21:15 misuse [1]- 21:15 modeled [t] - 7:1 modify [5] - 8:10, 21:4, 33:21, 34:4, 34:12 moot 111- 24:5 moral p] - 29:16 most 121- 6:6, 26:20 motion llo1- 3:1, 3:4, 3:25, 30:3, 31:17, 32:20, 33:16, 35:17, 35:22 move 1t] - 4:1 moved 13] - 4:6, 35:19, 35:20 MR [301- 2:6, 3:23, 4:1, 4:5, 4:20, 4:25, 5:1, 5:4, 7:1, 11:14, 29:25, 30:8, 30:11, 30:14, 32:20, 33:6, 33:11, 33:15, 33:23, 34:14, 34:19, 34:24, 34:25, 35:2, 35:3, 35:4, 35:5, 35:6, 35:9, 35:19 MS 119]- 2:5, 2:7, 2:9, 2:11, 2:12, 4:6, 11:16,17:23, 30:2, 31:18, 31:20, 33:2, 33:3, 33:7, 33:9, 33:10, 33:12, 33:14, 35:20 must [9] - 6:12,19:23, 21:13, 27:1, 27:3, 27:19, 28:18, 29:14, 32:7 muster 11] - 26:20 mutually 111-19:17 N NDS [2]- 4:2, 32:21 NE [t] - 1:24 necessary Ill - 26:7 necessity [11- 3:19 need [5] - 16:2, 23:25, 29:24, 31:13, 32:13 needs 121- 6:19, 16:9 neighborhood [el - 13:2, 15:7, 15:12, 16:11, 20:11, 26:16, 26:23, 28:15 Neighborhood [1]- 7:6 neighborhoods [21- 20:6, 28:12 neighboring [11- 28:10 neighbors [31 - 13:10, 16:7, 32:10 neverl2l- 5:20, 18:25 new 171- 3:18, 3:20, 6:20, 20:6, 23:11 newly [11- 9:15 next [1] - 22:10 non 131-13:8, 15:18 normally [21- 3:3, 7:2 note 15]-13:6, 13:18, 16:25,17:18, 27:23 noted Ill - 15:5 notes 131- 17:24, 36:5, 36:8 noticed Ill - 23:7 November 111- 36:13 nuisance [21-12:21, 16:5 number [4] - 8:6, 28:7 28:11, 28:18 obey Il] - 27:3 obeyed [1] - 27:9 objection (31- 10:2, 10:10,17:20 obligated Il] - 29:21 obligation 11] - 28:25 obviously 111- 15:14 occupancy [s] - 9:15, 11:4,11:5, 24:25, 25:2 oddities [1] - 34:17 OF [21- 1:4 office 121- 21:8, 21:18 officer It] - 34:9 official [8] - 8:23, 9:6, 9:10, 10:24, 11:9, 11:10, 30:5 official's [1] - 33:8 old [1] - 14:3 once [1] - 35:14 one [25] - 4:8, 5:9, 5:15, 7:15, 9:18, 12:24, 15:4, 15:23, 16:20, 22:21, 23:3, 23:20, 23:23, 24:13, 25:15, 25:18, 26:15, 26:22, 27:4, 31:20 open 131- 3:14, 5:16 open-minded[1]- 5:16 opening [3] - 3:19, 18:15,19:14 opinion [4] - 6:10, 27:18, 30:22, 34:11 Board of Adjustment 9-30-16 opinions [1] - 31:3 opportunities [1] - 12:7 oppose [t] - 27:2 order [11]- 2:4, 2:14, 8:11, 20:2, 20:3, 21:4, 21:6, 28:2, 28:7, 34:5, 34:6 Ordinance [1] - 20:25 ordinance 14] - 7:19, 7:20, 8:25,17:17 Ordinances 11] - 33:24 ordinances [41- 7:21, 8:9, 21:2, 34:2 oriented (1] - 6:18 original [1] - 31:16 aught131-19:16, 21:7, 34:7 ourselves [1]-4:17 out-of-towners 121- 14:24, 15:23 outcome [1] - 29:20 outlining [1]- 31:24 outside 151- 4:12, 4:13, 10:4, 31:4, 31:6 overall [1] -16:24 overlay [sl -14:6, 14:10, 14:13, 15:13, 15:18 override [11- 32:2 overturn 121- 30:4, 33:8 overview 11] -18:16 overwhelmingly [11- 29:8 own [31- 5:10,13:8, 14:1 owned 12] - 14:24, 15:23 owners 111- 28:17 P p.m 121- 1:5, 35:23 packet 121- 5:11, 5:13 page [11-19:25 pages [3] - 18:14, 22:10, 36:7 paragraph [11- 31:21 paragraphs Eli - 26:18 parcel p]-18:6 park 11] - 13:8 parked [1] -13:11 parks It] -13:16 Parmenter [1] -1:13 PARMENTER M - 3:23, 29:25, 33:23, 34:19, 34:25, 35:3, 35:5 part [31-10:13, 11:12, 12:10 partially [2] - 24:24, 25:1 participating Ili - 2:25 participation [3] - 2:16, 2:20, 35:15 particular [2] - 2:21, 12:12 partly p] - 8:10, 21:4, 34:5 parts 12] -16:14, 23:21 passed [1]- 35:22 passionate [11- 32:10 past 111- 8:18 path 121- 31:3, 35:12 patience [21- 2:16, 11:25 people It] -11:25 people's 11] -15:17 per [1]- 9:18 perceive [2]- 20:17, 23:22 percentages [1] - 12:16 perhaps lel -13:10, 13:20, 14:5, 15:8, 15:14,17:2. 32:16, 34:17 permanent [1] -10:21 permission [1] - 3:16 permit [lei - 6:23, 7:7, 9:10, 9:21.10:1, 10:7, 10:21, 10:23, 11:9, 18:5, 18:8, 19:9, 22:20, 22:21, 23:19, 24:2, 24:5, 33:22 permits 121- 8:20, 9:17 permitted [3]- 6:22, 11:1, 14:13 person [51-18:5, 25:22, 25:25, 26:4, 36:10 parsonally [2] -17:8, 32:1 perspective [1] - 23:4 pertinent [11- 30:24 phrase [11- 27:11 physically 111- 11:21 pits [11-19:15 Place [2] - 1:18,16:18 plan its] - 5:18, 5:19, 7:11, 9:25,16:24, 19:16, 19:20, 19:25, 20:14, 20:23, 27:18, 27:21, 27:24, 29:3, 29:8, 29:20, 31:23, 31:25, 32:2 planning 131- 8:14, 18:22, 34:21 plans [11- 22:2 playing 111- 2:23 pleased [t] - 2:18 plus 111- 22:1 plus -foot [1] - 22:1 point [6] - 7:12, 15:4, 16:17, 16:20, 30:23, 30:25 pointed 11] - 16:7 points [2]- 5:7, 14:12 pole [11-14:7 police [11-13:1 pool It] - 24:21 position [4]- 19:22, 21:20, 33:20, 33:23 possibilities [1] - 31:4 possible [ll - 16:5 potential [1] - 26:6 potentially 111- 14:9 power [121- 8:25, 10:22, 11:8, 21:24, 22:1, 22:8, 26:11, 26:12, 33:21,34:12, 34:23 powers fel - 7:17, 8:5, 8:22, 21:8, 21:18, 21:20, 21:22, 34:8 Powers It] - 8:4 practicality [it - 8:16 prerogative 111- 4:19 present [3] - 1:9, 1:11, 1:13 presentation [11- 12:14 presentations [1]- 5:6 presented [s] -16:15, 19:12, 22:11, 22:15, 36:10 presenters 111- 12:24 preservation 111- 18:23 presumable [t] - 9:5 presuming Ili -12:22 prevent [t] - 26:12 previous 111- 26:18 primary 13] - 24:18, 25:4, 26:1 principal lel - 5:25, 6:3, 6:7, 6:11, 6:14, 6:16, 24:18, 24:20 principles [1] - 20:11 private [11- 25:24 problematic [1]- 13:19 problems [8] - 16:8, 22:6, 22:22, 22:23, 23:2, 23:22, 23:23, 24:5, 26:7 proceed [1] - 24:6 proceedings 11] - 36:5 PROCEEDINGS [1] - 2:1 process Is] - 8:17, 8:19, 9:7, 9:20, 9:21 project [21- 11:19, 11:21 promise 111- 18:12 promised I1] - 18:13 promote 121- 20:5, 28:11 proper R] -13:11, 16:18 properly [21- 10:18, 12:4 property [81- 7:8, 7:10, 10:7, 11:8, 13:8, 13:12, 18:6, 28:16 proposed [5] - 4:3, 9:25, 23:13, 24:25, 32:22 proposing It] - 12:8 protect [21- 20:5, 28:11 protection [2]- 26:6, 30:19 provide [1] -12:1 provided [4]- 3:8, 5:7, 9:10,12:13 provision [1] -18:4 provisions [31- 8:8, 21:2, 34:1 public [24]- 3:14, 3:20, 4:12, 4:13, 4:15, 4:17, 8:1, 8:15, 10:13,10:14, 20:22, 25:24, 26:6, 27:16, 27:20, 29:2, 29:9, 29:17, 29:18, 29:23, 31:22, 32:9, 32:12 purpose [4] - 20:20, 23:8, 23:18, 27:15 purposes 12] - 23:16, 23:20 pursuant 141- 7:21, 8:9, 21:3, 34:2 put If] -14:3 putting [2]-17:12, 17:13 qualify It] - 6:2 quality [3]- 20:3, 28:7 28:10 questions [11- 22:13 quick Ill - 31:20 quite [2] - 24:12, 25:7 quote [6] -19:25, 21:18, 23:3, 23:6, 25:1, 29:1 quoted It] - 34:1 quoting Ill - 20:25 R raise [t] - 33:18 ralsed [5] -10:2, 10:12, 10:15, 10:16, 18:3 Rapids [11-1:24 rather Itl - 25:24 rationale It] - 24:11 re[�]-14:3,14:12 reach [2] - 5:17, 29:9 read It 1] - 4:21, 7:4, 11:11, 18:13, 18:14, 18:15, 19:5, 19:14, 23:21, 31:17, 31:21 readily [1] - 17:3 ready Ill - 33:1 realignments [1] - 21:24 reality 111- 23:2 really [21- 15:11, 19:7 reason It] - 23:18 reasonable [31- 25:22, 25:25, 26:4 rebuttal It] - 26:24 receive [t] - 4:16 received 131- 3:6, 5:11, 17:18 recognize [21-13:13, 18:9 recommendations 111 - 8:14 record [1] - 11:13 recording [1]-1:19 recreational [2] - 25:5, 26:2 recused it] - 7:15 RECYCLING [1]-1:6 reduced [11- 36:6 reference [1]- 7:22 refers [1] -15:24 reflect [11- 28:5 reflecting [1] - 20:14 refurbished [1] - 14:4 regarding [9] - 5:6, 8:2, 10:2, 12:14, 14:12, 17:7, 17:15, 17:17, 23:5 regardless [21- 22:5, Board of Adjustment 9-30-16 29:20 regards It] - 13:7 regulate It] - 13:3 regulations [6] - 8:20, 15:9, 16:17, 17:9, 31:11, 32:7 regulatory [11- 19:21 rein It] - 30:15 reinforce It] - 30:15 reinforcing [1] -19:17 reiterate [11- 35:9 related [1] -10:5 relates 111- 27:13 relation [11- 22:7 relevance [1] -19:8 relevant [21- 17:5, 21:16 remedy [11- 34:18 remove It] - 23:1 render I9 - 29:1 repeat [11- 27:15 repeatedly [1] - 25:10 Reporter 12] - 36:2, 36:16 reports It] - 7:2 representing [1] - 2:22 request 12] - 34:24, 35:1 require [1]- 3:13 required [3]- 5:17, 9:18, 22:2 requirement [5] - 21:4, 21:6, 24:13, 34:5, 34:7 requirements 131- 9:11, 23:8, 23:14 requires [1] -18:5 reserve It] - 4:18 residence 141- 5:20, 9:25,10:20, 24:14 residences [11- 21:23 residency It] - 26:2 res[dentll]- 15:25 residential 1161- 4:4, 5:23, 6:10, 6:11, 6:15, 7:8, 7:11, 24:11, 24:21, 24:24, 25:2, 25:21, 26:14, 29:7, 32:18, 32:23 Residential [21- 7:23, 9:12 residents [5] - 15:25, 17:13, 20:4, 28:8, 28:10 resolve [9 - 27:9 resolved It] - 29:14 respect It] - 2:19 Responding [1] - 10:15 response [31-10:15, 26:3, 26:8 responsibilities I1] - 10:4 responsibility [t] - 12:2 rest It] - 31:3 rested [1] - 25:11 restrictions [21- 16:19, 32:14 restrooms [1] - 25:23 rests [21- 8:13, 9:1 retail [1] - 16:5 return It] - 27:13 returned [1]- 27:10 revealed [1] - 24:12 reverse [3] - 8:10, 21:3, 34:4 review [21-10:12, 11:6 rhetorically It] - 26:19 rigid [t] - 22:16 risk It] - 17:13 RMR [1] -1:23 role [3] - 4:13, 20:18, 27:14 roll Ell -2:4 rough [1]- 9:14 rough -out It] - 9:14 RS -5 [51- 6:22, 6:23, 7:9, 11:2, 25:12 rule [1] - 29:10 ruled It] - 31:15 rules [3] -4:10, 20:18, 31:11 run It] - 23:25 S safe [2] - 26:16, 26:23 safety [2]-12:24, 26:6 sanitary [3] - 10:3, 21:24, 26:5 SAO 121- 17:20, 17:25 Sarah It] - 1:11 saw [0 - 18:2 scale [2] -14:7, 14:8 scrutiny [11- 5:16 second [2]- 4:5, 4:6 secondary [1] - 26:3 seconded [1] - 32:25 Section [2]-17:14 section [4]- 7:23, 20:1, 22:12, 24:3 sections 111- 20:14 see [21- 25:23, 26:1 seek [t] - 23:10 seeking [1] -18:5 seem [1] - 35:11 sense [11- 29:16 sensitive 191 -10:12, 11:7, 16:22, 17:17, 20:9, 22:4, 28:20, 30:20, 31:13 separated [1] - 27:24 September [4]- 2:3, 14:11, 17:14, 20:19 SEPTEMBER 11] -1:5 series [1] - 24:4 serve [5] - 7:16, 20:21, 27:16, 29:1, 29:22 served 141- 18:20, 18:21, 18:22,18:23 Services It] - 7:7 set [3] - 3:15, 35:12, 36:12 setback I1] - 23:14 setbacks It] - 14:16 setting It] - 3:20 settled [1] - 4:10 several It] - 30:16 sewer Irl - 9:17,10:3, 17:2, 21:24, 26:5, 30:19, 31:13 shackled 111- 30:21 shall [4] - 8:5, 20:21, 21:7, 34:8 shared 111 -17:2 sheer [1] - 5:13 short [21- 2:14, 23:3 Shorthand 12] - 36:2, 36:16 shorthand [31- 36:4, 36:5, 36:8 shown [1] - 15:21 sic [1] - 13:23 SIDE 11]-1:6 side 15] - 13:21,13:23, 13:24, 29:4, 29:16 sides It] - 6:5 signaling I1] -13:17 significant [l] -10:9 similar 1t] - 20:13 simple 12] - 24:12, 25:8 simplest [1]-19:18 simply [31-11:18, 21:12, 32:6 single [2s] - 4:4, 5:23, 6:2, 7:9, 9:24,10:20, 11:1, 11:2, 11:4, 12:5, 12:11, 16:11, 17:6, 21:23, 22:3, 22:24, 23:7, 24:7, 26:16, 26:22, 29:7, 31:2, 31:5, 32:23, 33:19 single-family [221- 4:4, 5:23, 6:2, 7:9, 9:24, 10:20, 11:1, 11:2, 11:4, 12:5, 16:11, 17:6, 21:23, 22:3, 22:24, 23:7, 24:7, 29:7, 31:2, 31:5, 32:23, 33:19 single -family -home 11] - 12:11 site [4] - 7:11, 9:25, 22:1, 26:12 situation [2]-19:3, 36:9 six [t] - 24:9 size is]- 5:13, 15:6, 25:16 sleeping [3] - 5:24, 14:25,16:4 Slope 121- 26:6, 30:20 slopes [3] - 3:10, 16:22, 31:13 social [11- 25:5 SOGLIN pl - 2:12, 11:16,17:23, 31:18, 31:20, 33:3, 33:9 Soglin [3] -1:9, 2:11, 33:2 sold [1l -14:2 sometimes [1] - 15:15 somewhat 111- 8:19 sooner[i] - 32:18 sorry [s] -11:18, 30:10, 31:18, 31:19, 33:5 sort 11] -18:15 southern [11-13:24 space [6] - 5:21, 5:22, 6:9, 23:12, 24:14 spatial [11- 25:25 SPEAKER It] - 3:21 specific [3] - 7:20, 8:14, 34:17 specifically [1] - 21:9 speculative [1] - 12:18 spent [q - 5:9 split Iq - 22:23 sports [1] - 2:23 springboard [1] - 31:9 stability [1] -28:16 Staff [1] -1:11 staff M - 3:8, 5:5, 7:2, 8:17, 20:16, 23:24, 34:20 stage 11] - 25:14 stand 111-11:20 standard [1] -12:17 standards [51-14:17, 23:7, 23:9, 32:17, 32:18 start [5] - 4:9, 4:19, 5:4, 10:14, 18:17 State 11] - 36:3 state [2] -10:6, 17:25 statement [8] - 2:15, 4:23, 18:14, 19:4, 23:17, 23:18, 23:20, 27:10 statements 131- 4:21, 20:13, 23:8 states [3] - 8:3, 8:7, 13:7 still [6] - 4:11, 13:15, 16:11, 30:12, 33:20 stop [1]- 26:11 street Ill - 22:1 strongly [1]- 31:8 structure 1241- 4:3, 4:4, 5:19, 6:1, 6:3, 6:8, 6:12, 6:13, 6:23, 9:24, 10:1, 12:20, 16:10, 22:8, 24:19, 24:25, 25:12, 25:13, 25:20, 26:1, 26:11, 31:1, 32:22, 32:24 structures [1]-12:16 stuff [11- 19:5 subject [11-11:7 subsequent [1] - 4:10 sufficiency [1] -17:16 sufficient 111- 17:11 suggest 111- 20:13 suggested [1] -13:17 suggestion 111- 34:15 sum 111- 16:13 summary11] - 7:3 summed [71- 23:4 superficially [11- 25:3 supervision 111- 36:7 surprised [1] - 17:9 surrounding [s] - 20:9, 28:15, 28:19 Susan 11] - 1:11 suspect [21- 27:6, 34:19 sustainable [1] - 20:8 T tailgating 141 -10:11, 13:4, 13:7, 13:9 talks 11] - 7:3 Tallman [1] - 23:5 tap 121- 9:17 ten 131- 25:12, 25:13, 25:15 term 111- 28:15 terms [4] - 18:20, 18:21, 19:18, 33:21 testimony [4]- 7:25, 9:18, 22:14, 24:9 thanking [1] - 2:15 Board of Adjustment 9-30-16 THE 01-1:4 themselves [1]- 22:2 therefore [61- 6:12, 6:22, 21:21, 22:8, 25:3, 28:24 thereto [3] - 8:9, 21:3, 34:2 thinking [1]- 5:16 thorough (3] - 14:20, 16:24, 22:17 thoroughly pi - 3:11 threatens [1] - 28:15 three [71 -10:15, 10:16, 22:7, 28:11, 31:22, 33:17, 34:10 throughout 11] - 27:10 ticketed [11-13:1 Tim [31-1:9, 18:8, 32:19 Title 121- 7:19, 7:21 title (71- 8:8, 20:22, 21:2, 27:17, 29:2, 31:23, 34:2 titled [t] - 7:21 today [2] - 13:4, 17:19 tone [1] - 26:21 tonight [2] - 4:10, 4:16 towed [1] - 13:1 towners 12] - 14:24, 15:23 transcribe [11- 36:4 transcribed 11] -1:18 transcript ill - 1:17, 36:8 transcription 111- 36:6 treated [2] - 2:19, 16:2 troubled 11] - 22:13 truth [1] - 24:4 turn 11] - 11:13 turnaround [2] - 21:25, 26:7 two [6] -18:20, 18:21, 19:15, 25:13, 26:18, 28:7 types [2] - 30:20, 31:13 V ultimately [3] - 6:7, 17:4,17:10 unattractive [1] - 14:23 under [91- 7:19, 8:4, 8:20,15:21 24:11 30:18, 33:24, 36:6, 36:9 understandable [11- 32:11 unfair[i] - 26:19 UNIDENTIFIED Ill - 3:21 uniform [1] - 23:9 University 11] -16:21 unless 12] - 3:18, 32:5 unlike it] - 5:14 unquote [1] - 21:19 unusual [21-14:22, 15:10 up C71- 3:14, 3:19, 14:19, 23:4, 31:12, 32:14 upheld 13] - 26:15, 26:22, 33:19 uphold 12] - 30:6, 34:11 uses [6] - 5:22, 6:8, 6:9, 12:8,12:16, 25:5 utilities [1]- 9:19 V values [1] - 20:15 variations [1] - 25:16 various 111-16:1 vehicles [2] - 13:1, 13:11 venue 111- 26:2 versus [t] - 6:7 view [21- 21:10, 31:1 vision 111- 20:1 voice 11] - 11:19 voluntarily 111- 7:16 vote [7] - 29:24, 30:3, 30:5, 30:6, 33:1, 33:7, 35:22 votes 121- 33:17, 34:11 W WALZ [121- 2:5, 2:7, 2:9, 2:11, 4:6, 30:2, 33:2, 33:7, 33:10, 33:12, 33:14, 35:20 Walzll] -1:12 water [1l - 9:17 weight[1]-29:15 Weitzel [5] -1:9, 2:9, 4:6, 33:10, 35:20 WEITZEL list - 4:1, 4:20, 4:25, 7:1, 11:14, 32:20, 33:6, 33:11, 35:9, 35:19 wetlands [2] - 3:10, 22:3 WHEREOF [1] - 36:12 wholly [4]- 8:10, 21:4, 24:23, 34:5 wife 111-18:13 windows [2] - 13:21, 13:22 wise 13] - 20:2, 28:2, 28:5 WITNESS [1] - 36:12 word [2] - 22:16, 26:13 words [21- 26:4, 26:9 worse [2] - 26:12, 26:14 write [1] - 18:24 written [2] - 18:12, 32:5 wrongful [1] - 7:11 I Y I Yapp [2] -1:12, 23:5 years 121-18:20, 18:25 Z zone [10] - 6:22, 6:23, 7:9, 8:25,11:2, 14:12, 24:21, 25:4, 25:12, 26:14 zones [2] - 8:12, 9:2 Zoning [9] - 7:18, 7:20, 7:21, 8:3, 8:7, 9:1, 9:3.10:5,10:25 zoning 127] - 6:19, 6:21, 7:12, 8:15, 8:19, 8:20, 8:21, 8:23, 8:24, 9:7, 9:11, 16:17, 18:22,19:16, 19:21,19:23, 20:16, 21:20, 24:16, 25:7, 30:17, 30:21, 31:10, 31:14, 34:16, 34:21 Page 7 to 7 MINUTES PRELIMINARY HOUSING AND COMMUNITY DEVELOPMENT COMMISSION OCTOBER 20, 2016 — 6:30 PM DALE HELLING CONFERENCE ROOM, CITY HALL MEMBERS PRESENT: Peter Byler, Syndy Conger, Christine Harms, John McKinstry, Dorothy Persson, Emily Seiple MEMBERS ABSENT: Bob Lamkins, Harry Olmstead, Paula Vaughan STAFF PRESENT: Tracy Hightshoe, Stan Laverman OTHERS PRESENT: Bruce Teague, Else Daus RECOMMENDATIONS TO CITY COUNCIL: None CALL TO ORDER: Byler called the meeting to order at 6:30 PM. APPROVAL OF SEPTEMBER 15, 2016 MINUTES: Conger moved to approve the minutes of September 15, 2016 with corrections. Persson seconded the motion. A vote was taken and motion passed 6-0. PUBLIC COMMENT FOR TOPICS NOT ON THE AGENDA: None DISCUSS RECENT INSPECTION FINDINGS AT CHARM HOMES PROPERTY: The Commission received the report in their packets, however Hightshoe noted the packet didn't include the senior housing inspector's email to Council, but that was in the Council packet. Byler began by acknowledging the letter that Ms. Metzger wrote and thanked her for sharing this information with the Commission. There were some very genuine concerns expressed in her letter and as the stewards of the HOME and CDBG funds this Commission needs to be vigilant about these matters. Byler noted the responses from Bruce Teague and Stan Laverman explained things fairly well. Hightshoe stated that the City has worked to resolve this issue. The City inspects every multi -family property every other year, unless there is a complaint. Hightshoe noted that especially with SRO units (housing for people with disabilities, especially those with mental disabilities) there may be a need to inspect more frequently, so maybe moving to an annual inspection. There is a concern that some in the SRO units might have barriers to filing a complaint. Hightshoe stated this is not based on one particular provider or case, the City has been aware that they may need to be in those houses more than every other year. Byler asked about the program change by HUD on July 1, 2014 and whether prior to that time non - affordable units were inspected every two years and affordable units were every year. Laverman confirmed that was true. If a resident had a voucher the unit would have to be inspected every year. Therefore the City would be in some of these buildings multiple times a year due to the inspection cycle (not every unit would be on the same cycle). Byler asked if a landlord was renting to non -voucher holders then the inspection would be every two years. Laverman confirmed that was correct. Byler then asked when this new change went into effect and housing with assistance from the federal government was Housing and Community Development Commission October 20, 2016 Page 2 of 5 inspected every two years, was the housing inspection department downsized, or was there any savings with this new policy. Laverman stated the City had seen an increase in rental units so instead of adding new staff to adjust, this new policy allowed them to keep current staffing and be able to realize savings with this new policy. Byler asked how many people do housing inspections. Laverman replied that there are four full-time inspectors and himself as the supervisor. Laverman noted he does some inspections but handles the nuisance complaints and oversees a 3/< time person that takes care of most of the complaints. Byler questioned what effect it would have on staffing if the City Council decided that units with federal assistance needed to be inspected every year. Laverman stated that they would need to hire new positions regardless, due to the continued growth of rental properties in Iowa City but they do have staff they could train to help with inspections as well. There has been a shift in efficiency due to technology — they now use iPads — that allows them to access data in the field. Laverman noted that he is supportive of yearly inspections for fraternity/sorority houses as well, if a change to the policy was to be made. Byler noted he is hesitant to propose a firm rule of yearly inspections without an analysis of the costs associated. Persson agreed. Seiple asked about role of the CHARM Homes staff in reporting complaints. Bruce Teague (CHARM Homes) stated that nothing has changed in their policies or reporting guidelines. In this particular situation, the complaint that was raised, he was not notified until he received the call from the City (Laverman) so he was not notified by the client or guardian. If he had, he could have addressed the situation right away. Teague stated he doesn't feel there was any neglect because he was not made aware of the situation. He noted that when they looked into this situation they just looked at the problem area and not the whole house, and perhaps in the future that will be a change in policy to look throughout an entire property to make sure there are no other issues. Teague expressed his deep concern that no one should have to live in unfit conditions (filth or mold) and his organization will address it. Persson asked if Teague has staff that can go around the buildings and check for issues. Teague said staff is actually in the homes 24 hours per day and can check for issues such as water in basements after rains. Most homes have sump pumps, so typically that controls the issue, but this is something they will need to be more aware of in the future. Byler asked if the caretaker (person on staff 24 hours/day) goes into the living quarters or if they are just out in the common areas. Teague said that typically in all SRO living environments the private rooms are the client's private rooms. Some clients may allow staff into their rooms but some may not. Harms commented on this noting her daughter worked for Caring Hands for almost five years and was very shocked by this incident. Her daughter said in the past if there were any issues all they ever had to do was call and someone came right over and took care of it. Persson noted that in the last cycle the Commission gave money to an organization who had a water in the basement issue and feels the Commission should not be giving money to renovation projects that do not have a basement that is well taken care of. Hightshoe noted that the Commission did give money to that organization for another project, but not for the site in which Persson is concerned. There was a consensus for staff to provide more information about inspecting rooming houses, SRO units and fraternity/sorority houses more than every other year. Plan to place on the December HCDC agenda. They will consider a recommendation to City Council at that time. DISCUSS $100.000 IN SURPLUS CDBG FUNDS: Hightshoe noted that due to program income and carryover funds, the City has a surplus of approximately $100,000 in CDBG funds available to program. The funds will be added to FY18 funds allocated this winter. Housing and Community Development Commission October 20, 2016 Page 3 of 5 Byler asked for an estimate of the total budget for FYI S. Hightshoe said they are anticipating the same amount of federal funds as received last year. That is good news, because they are usually told to plan for a five- to ten -percent decrease annually. CONSIDER AMENDMENTS TO FY2016-2020 CITY STEPS: Hightshoe stated Staff met with clients at Iowa City Compassion and the mobile health clinic at Broadway Neighborhood Center and the summary of those meetings was attached to the Commission's packets. Hightshoe noted that most of what they heard at those meetings is already a priority. Translation services were cited as a need, as well. Persson questioned if the City has tapped into the availability of multiple ethnicities at the University that could provide translation services. Hightshoe remarked that for Spanish it is fairly easy to assist, but for example the Congo has 400 dialects and each dialect is very distinct so trying to find a translator can be difficult. The Commission discussed possible ideas for assistance for translation services among various agencies and this will continue to be a priority and something the Commission will encourage the partners to look at. DISCUSS EDUCATION AND OUTREACH OBJECTIVES IN THE AFFORDABLE HOUSING ACTION PLAN: a. Facilitate tenants' ability to report housing code violations b. Promote benefits of subsidized housing programs to landlords and developers Seiple asked for this to be clarified and that education needs to be a priority Byler asked about the current process for reporting housing code violations. Laverman said there is a web portal (www.icgov.org/lCgovXpress) available, or one can call into the housing office, or there is a mobile app available on Apple or Android. The app is easy to use, just click on new issue. There is the ability to add photos. All complaints go immediately to Laverman or the appropriate City department. Byler asked how many complaints the housing department typically receives. Laverman said he can get the Commission a list but would estimate 2,000 to 3,000 complaints per year. Those include tall grass or snow on the sidewalk types of complaints, as well. He said when someone is actually complaining about a substandard condition in their home, those typically are direct phone calls to his office. Laverman will ask if they have already informed the landlord and ninety percent of the time they have not. The first step has to be to allow the landlord a reasonable amount of time to correct the issue before the City can get involved. Once the landlord is aware of the situation about 65% of the complaints get solved via that route. Persson noted that confirms Seiple's request for more education. There needs to be education for renters (students and others), especially since Iowa City has a large number of first-time renters. Laverman stated the City has tried multiple ways to reach renters but it can be difficult and often it is later in the year and leases for the following year have already been signed. They do make presentations to the University Student Government once a year. They also reach out to student legal services and go on KRUI (student radio) to try to reach the students. The Commissioners discussed getting more housing information on the University's student websites and housing websites. Laverman said he has tried. There is also a need for information for renters outside of the University community as well. Harms suggested producing a bookmark with housing information that can be distributed and made available at public buildings. Persson noted that once a year there is an insert with the water bill that lists City departments and phone numbers that is very helpful. Hightshoe said they do have a flyer they give out to the landlord association every month to help with Housing and Community Development Commission October 20, 2016 Page 4 of 5 education for landlords on changes such a voucher changes. Byler suggested that the Commission write a letter of support for the City to take with them the next time they meet with the University on housing and websites. Hightshoe mentioned that the Towncrest Senior Housing developer contacted her and said they are hoping for a closing on November 15. She will keep the Commission informed of when a groundbreaking ceremony will take place. ADJOURNMENT: Persson moved to adjourn. Seiple seconded the motion. A vote was taken and motion carried 6-0. Housing and Community Development Commission October 20, 2016 Page 5 of 5 Housing and Community Development Commission Attendance Record Name Terms Exp. 11119 1/21 2118 3/10 4121 5/19 6/16 8118 9N5 10/20 Byler, Peter 7/1/17 X X X X X X X X I X X Conger, Syndy 7/1/18 X X X O/E X O/E O/E X X X Harms, Christine 7/1/19 --- --- --- --- X X X X X Lamkins, Bob 7/1/19 X X X X O/E X O/E O/E X O/E McKinstry, John 7/1/17 --- --- — X X O/E O/E X Olmstead, Harry 7/1/18 --- X X X X X X X X O/E Persson, Dottie 7/1/17 X X O/E X O/E X X X X X Seiple, Emily 7/1/18 X X X X X X X X X X Vaughan, Paula 7/1/19 — --- --- — X X O/E Key. X = Present O = Absent O/E = Absent/Excused --- = Vacant