HomeMy WebLinkAboutA2 MINUTES OF THE REGULAR MEETING OF
THE ZONING BOARD OF ADJUSTMENT
AMES, IOWA MARCH 14, 2012
The Ames Zoning Board of Adjustment(ZBA)met,pursuant to law, in regular session at 7:00 p.m.
on March 14, 2012, in the Council Chambers of City Hall with the following members present:
Bruce Calhoun,Elizabeth Erbes,SandraMcJimsey,and Thomas Weber.Board Member Gary Taylor
was absent. Staff members Ray Anderson,Jeff Benson,Charlie Kuester,Steve Osguthorpe,and Judy
Parks were also present.
Chair Calhoun noted that an item appearing on the agenda, the Public Hearing on application for
Special Home Occupation Permit to allow an internet firearm sales home business on the property
located at 4809 Utah Drive,had been continued at the applicant's request. The hearing will be held
at a subsequent ZBA meeting.
APPROVAL OF MINUTES: Moved by Erbes, seconded by McJimsey,to approve the minutes of
the meeting of February 8, 2012, as written.
Vote on Motion: 4-0. Motion carried unanimously.
CASE NO. 12-07
SPECIAL USE PERMIT - JEFFREY KLUVER, 3925 CALHOUN AVENUE
Public Hearing on application for Special Use Permit to allow a floor plan revision to the
approved Special Use Permit
City Planner Ray Anderson explained that a Special Use Permit was originally approved for the
subject property in November of 2010, and then it was amended in November of 2011. The permit
allowed conversion of what was formerly a three-unit home to a two-unit home. A change to the
interior floor plans is proposed, so a second amendment has been requested. The owner wishes to
add a stairway off of the south entrance to the south unit,just off of the driveway. This would replace
what was earlier approved as a storage space. There is already a stairway to the basement in the
center part of this unit;however,the owner wishes to add a second entrance for ease of access from
outdoors. Mr. Anderson showed the current and revised floor plan. He explained that City staff
believes the change is minor in scale, and it falls within the original scope of what was previously
approved.
Chair Calhoun noted that the new basement entrance could serve as an entrance to a third unit. He
inquired as to whether or not City staff discussed that possibility with the applicant. Mr. Anderson
indicated that it was discussed, and the applicant understands that the basement cannot be separated
from the first floor as another unit.The Letter of Compliance issued by the City would also state that.
Jeffrey Kluver, 3925 Calhoun Avenue,Ames,Iowa, stated that he and his wife would like to add the
private entrance to the basement primarily for when relatives come to visit and stay with them. He
testified that it will not be a private entrance for a third unit.
Dennis Wendell, 917 Adams Street, Ames, Iowa, stated that he lives northeast of the subject
property. He is in favor of the project and supports approval of the request.
Moved by McJimsey, seconded by Weber, to adopt ORDER NO. 12-07, thereby approving the
request for an amendment to the approved Special Use Permit to allow the proposed changes to the
floor plans to eliminate the storage room on the first floor level and replace it with an interior
stairway to the basement inside the south exterior door for the property located at 3925 Calhoun
Avenue, subject to the following conditions:
1. The conversion of the excess gravel parking area along the south property line into green space
be completed within one year.
2. No further changes may be made to the floor plans without further review and approval by the
Zoning Board of Adjustment.
Vote on Motion: 4-0. Motion declared approved unanimously.
CASE NO. 12-04
CONDITIONAL USE PERMIT-PYLE LAND,LLC,1400& 1500 SOUTHEAST 16TH STREET
Public Hearing on application for Conditional Use Permit for excavation in the F000dway
Overlay District
City Planner Charlie Kuester explained that the application is for work to be done in the floodway,
near the Skunk River. The proposal is to borrow excavation dirt from a site within the floodway
(excavation site) and redeposit it adjacent to, but not in, the floodway in order to develop a
commercial site (fill site). Mr. Kuester explained that because there will be dirt removed from the
floodway, ZBA approval is necessary. A map of the area was presented, showing the boundaries
between the floodway and the floodway fringe. Mr. Kuester noted that though the fill site is being
shown out of both the floodway and the floodway fringe, this is due to a mapping error, according
to the Iowa Department of Natural Resources. He stated that the excavation site is in the floodway
and the fill site is in the floodway fringe.
Mr. Kuester explained that the floodway fringe is expected to be underwater in the event of a 100
year flood. Filling and the raising of sites for development purposes is allowed in the floodway
fringe, but development could occur only if the building pad was elevated to 3 feet above the base
flood elevation. The applicant will be raising his development site a minimum of 5 feet above the
base flood elevation. Mr. Kuester displayed a contour map and reviewed excerpts of Chapter 9 of
the Municipal Code, Flood Plain Zoning Regulations. He noted that the applicant has provided an
"Engineering `No Rise' Certificate" by which the engineer states that because the project in the
floodway is excavation only(with fill in the floodway fringe),it will not result in an increase in base
flood elevations in the floodway. The applicant states that the excavation will increase the flood
storage capacity of the floodway. Mr. Kuester indicated that the Iowa Department of Natural
Resources is satisfied that the excavation will have no impact on the base flood elevation of the
Skunk River.
The findings of fact and conclusions as written in the staff report were reviewed by Mr.Kuester.He
stated that staff has evaluated the site and found that all of the Conditional Use Permit criteria have
been met.
Chair Calhoun referenced item 0) on page 4 of the staff report, which states "The property owner
is the responsible party for maintaining the area within and around the project site."He asked Mr.
Kuester if this language should be added as a condition if the Board were to approve the request,in
order to ensure that the condition runs with the land. Mr. Kuester said that it might be appropriate
to do so. Assistant City Attorney Judy Parks indicated that this is not something that has been done
in the past, but the Board's Decision could be recorded.
Board Member Erbes said that she had some concerns about the proposed pond being so close to the
Skunk River. She inquired about an existing pond to the south of the subject property and asked how
it has handled flooding. Mr. Kuester stated that he was not aware of any issues with the pond to the
south; it is outside of city limits. He indicated that the location of the pond was discussed with the
Department of Transportation due to the close proximity to Highway 30, and no concerns were
raised.
Board Member McJimsey noted that the bank on the proposed pond looked steep, and she wonders
what would prevent the bank from eroding and going back into the pond. Mr. Kuester said that the
contour map is exaggerated vertically; the bank is a 3 to 1 slope, which is relatively flat.
Scott Renaud,414 South 17`h Street, Suite 107,Ames,Iowa,representing Pyle Land,LLC,asked for
clarification regarding Chair Calhoun's suggestion of adding the condition that the property owner
is responsible for maintaining the area. Mr. Calhoun stated that the applicant has represented that
the pond will provide additional capacity to the floodway; it should be the applicant's duty to
maintain the slopes and the depth of the pond, and if it floods and silts in or washes out, it should
be restored to its original condition.Mr. Renaud said that he is not concerned about the pond silting
in. He stated that it would not make any difference if the pond silts in all the way to the top.
Mr. Calhoun asked Mr. Renaud what his interpretation of item 0) was. Mr. Renaud said that he
assumes since his client owns the property, he is responsible for maintaining it. They have gone
above and beyond what the City requires by providing a detailed landscaping/vegetation plan,which
includes an extra level of protection with native prairie grasses. He indicated that there will be a
three-year period when intensive maintenance is required until the grasses are well-established.Mr.
Calhoun said that the testimony has been that the pond on the excavation site will increase the flood
capacity in the area; however,he is hearing from Mr. Renaud that it doesn't matter if it does this or
not, because he doesn't care if the pond silts in. Mr. Renaud indicated that it wouldn't make any
difference unless it were to fill up and grow above the top of the pond height.
Mr. Calhoun asked Mr. Renaud to define the function of the floodway and the floodway fringe,
noting that these designations have to do with the flood water storage capacity of the land around
the floodway. Mr.Renaud concurred;he added that the floodway is where water is moving actively
during a flood, and the fringe contains quiet, static water. Mr. Calhoun responded that if the site is
filled in, it loses its capacity to store water. He disagrees with Mr. Renaud's assessment that it is
inconsequential if the pond fills in. The excavation will increase the flood water storage capacity of
the area and somewhat offset the fill that the client has put on the fill site.Regardless of if it is okay
with the City or anyone else, Mr. Calhoun believes that if the pond fills in,the storage capacity that
has been eliminated by the fill in the floodway fringe could cause flooding upstream.
Moved by Erbes, seconded by Weber, to adopt ORDER NO. 12-04,thereby approving the request
for a Conditional Use Permit for excavation in the Floodway Overlay District, based on staff s
analysis and conclusions, and based on the evidence in the application materials,with the following
conditions:
1. The applicant obtain a Flood Plain Development Permit prior to excavation and comply with any
conditions imposed therein.
2. The applicant obtain a COSESCO permit prior to excavation.
3. The applicant provide a signed easement in a form suitable for recording to the City for the new
access. This easement needs to be recorded prior to excavation.
Vote on Motion: 4-0. Motion declared approved unanimously.
CASE NO. 12-06
VARIANCE-THEISEN'S DEVELOPMENT CO.,LLC,1315 SOUTH DAYTON AVENUE
Public Hearing on application for Variance to allow a reduction in required parking
City Planner Jeff Benson said that Theisen's,a farm and home store located on South Dayton Road,
is planning on building a 37,000 square foot addition to its existing 50,000 square foot building.The
existing building has 230 parking spaces, which equates to 4.6 spaces per 1,000 square feet of
building area;the standard is 4.5.The applicant wishes to expand the building without adding more
parking at this time.After the addition,the ratio would equate to 2.6 parking spaces per 1,000 square
feet.
Mr. Benson indicated that the applicant has provided evidence that the Theisen's chain has built a
number of stores across Iowa with parking at a lower rate than what Ames requires. The current
parking lot does not seem to be full much of the time,if ever,which may also be true at other stores
in various parts of town.Mr.Benson indicated that staff does not dispute the facts that the applicant
has reported.He said that it is difficult to pinpoint why this store may have less of a need for parking
than stores of a similar type or size,but there may be something about the way the operation works
that results in the low parking numbers. If this store does have different parking needs than others,
it may be appropriate to establish criteria and request a zoning text amendment from the City Council
instead of seeking a variance.
The variance criteria and findings of fact and conclusions were reviewed from the staff report. Mr.
Benson noted that the unnecessary hardship/reasonable return criteria are very difficult to meet. He
explained that there is an existing 50,000 square foot building operating successfully with 4.6
parking spaces per 1,000 square feet. It is difficult to argue that the expansion with the required
parking would not yield a similar reasonable return. Mr. Benson stated that staff is recommending
denial of the variance request because it does not meet all of the criteria.
Board Member Erbes asked if there are different parking standards for warehouses.Mr.Benson said
that there is a much lower requirement for warehouses,but only if the entire building is a warehouse
with no customer visits. If a retail store contains some warehouse space, the retail space would
dictate the required parking.
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Scott Renaud, 414 South 17`h Street, Suite 107, Ames, Iowa, representing Theisen's Development
Company, stated that adding the required parking with the expansion would cost an additional
$300,000. He said that the current amount of parking is almost double what is actually needed. Mr.
Renaud stated that many retail stores around Ames use only a quarter to a half of their parking lots
at any given time. The applicants have done parking lot counts at the Theisen's store, and they
typically use about 50 spaces a day. He explained that it would make economic sense for Theisen's
to add parking if the demand were there, but there is no demand. Mr. Renaud believes that the
application has met all of the criteria,including reasonable return.The additional spaces would serve
no purpose, and the applicant would rather leave the area as green space, which is more attractive
and better for the surrounding area.
Chris Theisen, 6201 Chavenelle Road, Dubuque, Iowa, stated that Theisen's has been a family
business since 1927. He indicated that the Ames community has responded well to their product
offering, which is why they are already expanding the store just five years after it was built. Mr.
Theisen said that the parking standards do not align with this type of business, and the over-
development of the site would be detrimental to the environment.He reiterated that they conducted
a customer count in the parking lot, and the typical stall occupancy was 50 cars, including sales
associates. He stated that if their business needs more parking, it would be in their best interest to
add more spaces, but he is 100 percent confident that they will not need the extra spaces. Mr.
Theisen explained that the store will be expanding its existing product lines, not adding new lines,
so they expect that the average ticket will go up.He believes that putting in the excess parking would
have a negative impact on the store and other neighboring stores,because when people drive by and
see a parking lot that is mostly empty they assume that it must not be a good store.
Chair Calhoun said that he has been to the store, and it usually appears fairly empty. He asked why
there is a difference in customer flow at this store versus other retail stores.Mr.Theisen said that the
average ticket per customer is probably higher than a Target or Wal-Mart, perhaps more similar to
a Home Depot or Lowe's. He said that it is hard to pinpoint why they have a lower demand for
parking,but it is a fact that they do. Upon being questioned by Mr. Calhoun,Mr. Theisen indicated
that the other store locations have parking ratios anywhere from 2.5 to 4 spaces per 1,000 square feet.
Mr. Calhoun said that the applicants have to prove that they meet the variance criteria in order for
the application to be approved. He asked the applicants to show the Board what City staff is
overlooking. Mr. Renaud stated that it would not be in the public interest to build parking that the
business doesn't need. Mr. Calhoun asked if they did parking counts at the store or other stores to
support that statement. According to Mr. Renaud, the applicants conducted a study whereby aerial
photos are taken of the parking lot, and oil spots left by parked cars are studied to determine how
many stalls are used on a daily basis. Mr. Calhoun disputed the use of oil spots as a valid parking
study.
According to Mr.Renaud,City staff is over-analyzing the criteria.In regards to the reasonable return
criterion, he stated that it is unreasonable to spend an extra $300,000 on unnecessary parking. For
the unique circumstances criterion, Mr. Renaud said that they have experience knowing what their
stores need, and their parking needs are unique to their business. He also stated that when there is
a building with excess parking, it looks like the place is abandoned. A business that looks busy is
more successful,which would benefit the neighboring businesses as well. In regards to whether or
not the variance would alter the essential character of the locality, Mr. Renaud said that no one
would even notice that the building had less than the required parking. The spirit of the ordinance
would still be observed because the applicant has proposed conditions for approval of the variance.
He reiterated that building parking that they don't need would not be substantial justice.
Mr. Calhoun said that if the applicants were to conduct parking counts and demonstrate that their
business model isn't the same and provide proof that people buy a higher dollar amount of
merchandise per trip,perhaps that would be a unique circumstance. Assistant City Attorney Parks
indicated that the unique circumstances criterion was designed more around physical circumstances
such as topography more than a use or self-generated situation. Board Member McJimsey said that
if there is a type business that is part warehouse and part retail,there needs to be a different category
in the ordinance,which is outside of the ZBA's purview. She thinks that the proposal is logical,but
because it doesn't meet the criteria, it is not a precedent that she would like to set.
Mr. Renaud said that if the Board agrees with what he has been saying, then it is telling staff that
there would be too much parking. He said that the Board has the authority and the grounds to grant
the variance, and there is no reason for this amount of parking. Ms. McJimsey does not think that
the applicants have provided sufficient proof of hardship.
Board Member Weber inquired about the percentage of the parking lot that is typically utilized on
a busy day. Mr. Theisen said that on a typical day, anywhere from 19 to 23 percent is occupied;
during the busiest season, anywhere from 50 to 60 percent could be occupied at a given time. He
suggested that, if the variance were granted,they could continue to monitor the parking and turn in
parking counts. If the percentage reaches a certain"trigger," then Theisen's would agree to put in
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the additional parking. He also stated that they could escrow the money that would be required to
build the parking. If the City decided that the parking needed to be built, the money would be
available to do so.He stated that Ames has the highest parking requirement in all of the 20 markets
that Theisen's is in.
Mr. Calhoun referenced the criterion that states "That without granting of the variance, and due to
special conditions, a literal enforcement of the ordinance will result in unnecessary hardship."
Assistant City Attorney Parks said that this criterion is the biggest stumbling block for most variance
applications.It means that if the variance is not granted,there will be no economic benefit to owning
the entire property. Board Member Erbes noted that there would be zero value to a parking lot that
is never used. Mr. Calhoun believes that the only alternative is for the applicants to get a zoning
ordinance text amendment from the City Council.
Planning and Housing Director Steve Osguthorpe described the text amendment process. He
mentioned that there have been projects in the past that have been allowed to move forward and a
timetable was given to the owners to meet certain standards. In that period of time,the owners were
able to go before the City Council and prove that their use did not need the Code requirements.After
much discussion, it was determined that the Board could not find that the application meets the
criteria,and the better option would be to work with the Planning and Housing Department and seek
a text amendment from the City Council.
Moved by McJimsey, seconded by Calhoun, to deny ORDER NO. 12-06, thereby denying the
request for a variance to allow expansion of the existing retail commercial building at 1315 South
Dayton Avenue with minimum parking standard for the entire building of 2.6 parking spaces per
1,000 square feet of building.
Vote on Motion: 4-0. Motion declared carried unanimously.
CASE NO. 12-08
APPEAL OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER - LINDA
KAMM, 2402 MELROSE AVENUE
Public Hearing on application for Appeal of the Decision of the Zoning Enforcement Officer
regarding the definition of a Home Occupation
Planner Benson explained that this appeal was related to a request for a Special Home Occupation
Permit,but the Board was not being asked to approve the Home Occupation at this time. On January
19, 2012, the appellant submitted an application for a cleaning business operated out of 2402
Melrose Avenue. In the application it was stated that this business employs anywhere from 6 to 10
employees who clean facilities for the business.The Code states that a home occupation may employ
no more than two persons. The Director of Planning and Housing determined that the ZBA could
not consider the Special Home Occupation Permit application because the business does not meet
the definition of a home occupation.
Mr. Benson explained that the basis of the appeal is that the cleaning activity does not take place in
the dwelling, so the employees do not work at the home. The activity of setting up appointments and
writing paychecks occurs in the home, and only the owners are involved with these activities. The
Board is being asked to consider which interpretation is correct.
Chair Calhoun asked if the ordinance says anything about employees not working on the premises.
Assistant City Attorney Parks said that the ordinance is silent; it does not say anything about the
employees being in the dwelling.
Linda Kamm,2402 Melrose Avenue,Ames,Iowa,stated that all of her employees are part-time.The
commercial cleaners come to the home once a week and the residential cleaners come daily to pick
up the vans. She stated that only she and her husband physically work inside the home. She has
spoken to the neighbors about the business,and they said that it didn't concern them;however,some
of them did mention parking as a potential problem.Ms. Kamm indicated that two supervisors take
vans home at night so that other employees can park in the driveway when they come to the house.
There are a total of four vans; two are parked at the Kamm's home, and two are taken home with
employees every evening.
Mr. Calhoun said that home occupations benefit people who operate a small business out of their
homes,and they either intend to keep it small or eventually prosper and move into more appropriate
facilities. Ms. Kamm said that she would look into growing the business if she were younger,but
she would like to retire within the next five years. She never intended for her business to get big.
Board Member Weber thinks that the Code refers to people physically working inside the dwelling.
These employees are out cleaning other facilities; it is not clear to him that the Code denies such
things.Ms.McJimsey asked if there is a legal definition of what an employee is.Ms.Parks said that
the people are coming to the house to do aspects of the work; she would take it at face value that
these individuals are classified as employees of the business.Upon being questioned by Ms. Erbes,
Ms. Parks clarified that the maximum of two employees includes either full-time or part-time
employees.
Moved by Calhoun, seconded by Erbes, to deny the Appeal of the Decision of the Zoning
Enforcement Officer,based on the findings of fact and conclusions that the business activity does
not meet the Zoning Code definition of a home occupation and the application for a permit can
therefore not be considered.
Vote on Motion: 4-0. Motion declared approved unanimously.
COMMENTS: There were no comments by the Board.
ADJOURNMENT: The meeting adjourned at 9:17 p.m.
Emily Burton, Recording Secretary Bruce Calhoun, Chair