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Item #: 21-07
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Date: 06/09/21
CITY OF AMES I
DEPARTMENT OF PLANNING AND HOUSING
REPORT TO THE ZONING BOARD OF ADJUSTMENT
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DATE PREPARED: June 4, 2021
MEETING DATE: June 9, 2021
APPEAL OF A DECISION OF THE PLANNING DIRECTOR, REGARDING1
EXCEPTIONS TO FULL PROJECTIONS INTO THE FRONT SETBACK AT 202 E.;
LINCOLN WAY:
The appellant asserts that the decision of the Planning Director that the proposed vertical
elements (see Attachment B) do not qualify as a 'landscape accent' (Sec.;
29.402(2)(c)(viii)) and-are therefore not allowed to project into the setbacks at 202 E.
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Lincoln Way was an incorrect interpretation of the Zoning Ordinance,
PROPERTY OWNER(: Community Choice Credit Union
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APPELLANT: Matt Swim for Community Choice Credit Union
REPRESENTATIVE: Andrew Tulp of Story Design/Story Construction
LOCATION: 202 E. Lincoln Way
ZONING: Highway-Oriented Commercial (HOC)
SUPPORTING INFORMATION: See Attachment A — Supporting Information from the:
Appellant.
BACKGROUND:
The appellant submitted a Minor Site Development Plan (Site Plan) application on March
5, 2021 for a food truck park that will take up most of the lot. The northern portion of the
lot will have room for several food trucks with seating; the southern part of the lot will be
car parking (see Attachment C). The applicant proposed several features within the first
20 feet of the property along both E. Lincoln Way and Sumner Avenue, known as the
front setback, as part of the Site Plan review of the project. During the review process;
staff determined that the vertical elements (see Attachments B & C) at the north end of
the property along E. Lincoln Way were structures subject to setback regulations and did
not qualify for a full setback projection as defined in Sec. 29.402(2)(c)(viii). The Site Plan
does include planter boxes less than 4 feet in height that project into the setback as
allowed by Sec. 29.402(2)(c)(xii). The Site Plan,was approved on May 7, 2021 with certain
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allowed projections, but without the vertical elements.
On May 20, 2021, the appellant submitted a revision to the approved Minor Site
Development Plan with the proposed vertical elements. This was accompanied by the
present application.
BASIS OF DEPARTMENT DECISION:
A Site Plan must meet all requirements of the zoning district (Highway Oriented
Commercial (HOC) -- Sec. 29.804) and general standards of the Zoning Ordinance.
The HOC minimum setbacks for the property are:
- 20-foot front setback along E. Lincoln Way (north) and Sumner Avenue (west)
- 5-foot side setback along the alley on the east side of the lot
- 10-foot rear setback along the south property line
The Zoning Ordinance considers essentially all constructed improvements above ground
to be structures, this includes parking areas, buildings, fences, etc. Staff determined that
the planter boxes and the proposed vertical elements qualified as 'structures' under the
below definition.
Sec.29.201 DEFINITIONS.
(223) Structure means anything constructed or erected, the use of which requires, directly or indirectly, a
permanent location on the land.
The Zoning Ordinance, however, does provide for certain, specific projections into the
setbacks. This includes allowances for fences, parking lots, signs, etc. At issue in this
appeal is Sec. 29.402(2) which gives a list of permissible projections: minor projections,
architectural projections, and full projections. Sec. 29.402(2)(c) lists full projections
allowed into the setbacks.
Sec.29.402. SETBACKS.
(1) Building Setback Standard. Except as provided below, all buildings and structures, Principal and
Accessory,shall be located to comply with the minimum and maximum Building Setbacks established
for Principal and Accessory Buildings listed in each Zone Development Standards Table,
Supplemental Development Standards Table, condition or other regulation applicable to the lot or the
use being employed at the site.
(2) Extensions into Required Building Setbacks.Certain building elements and site features are allowed
to be located within or project into required setbacks.
(c) Full projections allowed. In addition to the minor projections listed in the previous section,
the following features are allowed to fully project into required setbacks:
(viii) Landscape accents that include but.are not limited to arbors with a coverage area no
greater than 15 square feet; fountains and statuary up to four feet in height, and
constructed ponds and waterfalls at or below finished grade, and similar incidental
landscape accents.The design and location of accent features shall not have the effect
of creating a continuous wall that does not meet fence standards.
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In addition to the determination that the planter boxes and vertical elements are structures'
and thereby subject to minimum setbacks, staff also determined that the proposed vertical.
structures are not:
- An arbor
- A fountain or statue
- A pond or waterfall
Further, staff could not identify a way in which the proposed vertical structures are a;
'landscape accent.' While the code does not define a 'landscape accent,' it does define;
'landscape:'
Sec.29.201 DEFINITIONS.
(I 10) Landscape, Landscaped, Landscaping means the improvement of a lot, parcel, or tract of land with,
grass, shrubs, trees, flowers, and/or groundcovers. Landscaping may include incidental ornamental
features such as fountains, statuary,boulders, sculptures, pedestrian paths, and other similar natural and
artificial objects or improvements only when they are completely surrounded by adjacent plant material.
Staff could not identify how the vertical structures qualify as a fountain, statue, boulder,,
or sculpture.
In addition to not finding an appropriate classification for the vertical elements, staff did
find that the vertical structures have "the effect of creating a continuous wall that does not
meet fence standards,"which Sec. 29.402(2)(c)(viii) prohibits. The vertical structures form
a fence, defined as:
Sec.29.201 DEFINITIONS.
(74) Fence means an unroofed barrier or unroofed enclosing structure, including retaining walls.
Staff finds that the purpose of the vertical structure is to enclose, visually, the food truck
court. This is supported by the appellant's statements (Attachment A).
The Zoning Code does not make a regulatory distinction between a fence and a wall:
Sec.29.408 OTHER DEVELOPMENT STANDARDS.
(2) Fences means an unroofed barrier or unroofed enclosing structure, including retaining walls.
(b) Types of Fences. These standards apply to walls, fences, and screens of all types whether open,
solid,wood,metal,wire,masonry, earthen,or other material.
As such, the language stating that landscape accents "shall not have the effect of creating
a continuous wall" should not be read to exclude the proposed vertical structures.
Planter boxes can project into the setbacks. The proposed vertical structures are attached
to the planters but do not qualify for the projection due to their height of less than 4 feet.
A full projection into the setback is allowed for:
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Sec.29.402. SETBACKS.
(2) Extensions into Required Building Setbacks.Certain building elements and site features are allowed
to be located within or project into required setbacks.
(c) Full projections allowed. In addition to the minor projections listed in the previous section,
the following features are allowed to fully project into required setbacks:
(xii) Planter boxes/walls at allowable fence heights
The proposed height of the vertical structures exceeds the maximum of 4 feet in height
as allowed in Sec. 29.408(2)(c)(i) Height in Front Setbacks & Yards.
BASIS FOR APPEAL OF DECISION:
The appellant's ability to appeal a decision of the Zoning Enforcement Officer is given in
Chapter 29.1403(8)(a) as an aggrieved party. In this case, the appellant believes that the
Planning & Housing Department has incorrectly interpreted Sec. 29.402(2)(c)(viii) to
exclude the proposed vertical structures as allowed to project fully into the setbacks.
The appellant asserts that the vertical structures should qualify as landscape accents
under Sec. 29.402(2)(c)(viii) and that the purpose of the vertical structures is to form a
fabric screen "to provide shade and... visual appeal."
The appellant also states that, while the vertical elements are not flagpoles, they are like
flagpoles, which are permitted to project into the setbacks under Sec. 29.402(2)(c)(xv).
Furthermore, the appellant believes that setbacks should not apply to anything that is not
a building.
The appellant's full appeal is included as part of the record for this item (Attachment A).
The Zoning Board of Adjustment is authorized to consider an appeal of an administrative
decision per 414.12 of the Code of Iowa to determine if there was an error. The appeal
process is not an exception or variance process, it is an interpretation of zoning
standards that apply uniformly across the City. The Board must determine there
was an error in the interpretation to grant the appeal from a decision of the Planning
Director that the proposed vertical elements do not qualify as a 'Iandscape accent'
per Sec. 29.402(2)(c)(viii) and are therefore not allowed to project into the setbacks
at 202 E. Lincoln Way. At issue is not the appropriateness or adequacy of the
standards, only if staff made an incorrect interpretation.
ALTERNATIVES:
1. The Zoning Board of Adjustment can find that the Planning Director correct
interpreted the Ames Municipal Code that the proposed vertical elements do not
qualify to project into the required minimum setbacks.
2. The Zoning Board of Adjustment can find that the Planning Director incorrectly
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determined that the proposed vertical elements do not qualify to project into the
required minimum setbacks. ;
3. The Zoning Board of Adjustment can table this appeal and request additional
information from City staff or the appellant.
STAFF COMMENTS:
The appellant asserts that the vertical structures should qualify as landscape accents
under Sec. 29.402(2)(c)(viii) and that the purpose of the vertical structures is to form a
fabric screen "to provide shade and... visual appeal." Staff cannot identify a section of
code that permits projections for visual appeal.
This report refers to `proposed vertical elements/structures' for lack of better terminology. ,
Staff could not find a way in which these structures fall within the terms of the allowed
projections. The closest comparison for this type of structure is a canopy, which is
designed to provide shade. Canopies were previously allowed to project fully into the
required setbacks but were removed by a Zoning Code text amendment approved by the:
City Council in December 2020. This amendment made numerous revisions to Sec.;
29.402.
The appellant states that the vertical elements are akin to flagpoles, which are permitted:
to project into the setbacks under Sec. 29.402:
(2) Extensions into Required Building Setbacks.Certain building elements and site features are allowed
to be located within or project into required setbacks.
(c) Full projections allowed. In addition to the minor projections listed in the previous section,
the following features are allowed to fully project into required setbacks:
(xv) Mailboxes, little libraries, cluster box units, flagpoles, and lamp poles
Sec. 29.402(2)(c) permits certain specific, listed projections into setbacks; it does not
allow for any item that is like a flagpole or like any other listed feature. The only leeway iri
Sec. 29.402(2)(c) is found in (viii): "similar incidental landscape accents."
Staff also does not find that the proposed vertical structures are akin to flagpoles, which
are intended for the display of flags and not to provide shade.
The appellant believes that only buildings should be subject to setbacks. Staff notes that
the definitions of`setback' and 'structure' are written to include more than just buildings:
Sec.29.201 DEFINITIONS.
(186) Setback means the distance that is required by this Ordinance to be maintained in an unobstructed state
between a structure and the property line of the lot on which the structure is located.This term refers to a
required minimum area,while the tern"Yard"refers to the actual open area.
(223) Structure means anything constructed or erected, the use of which requires, directly or indirectly, a
permanent location on the land.
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Sec. 29.402(1) also explains that setbacks apply to all buildings and structures:
Sec. 29.402. SETBACKS.
(1) Building Setback Standard. Except as provided below, all buildings and structures, Principal and
Accessory,shall be located to comply with the minimum and maximum Building Setbacks established
for Principal and Accessory Buildings listed in each Zone Development Standards Table,
Supplemental Development Standards Table, condition or other regulation applicable to the lot or the
use being employed at the site.
With the review of the Zoning Ordinance standards described above, Staff cannot find a
basis to expand the code to include the appellant's request. Staff believes that interpreting
the proposed vertical structures to qualify for a full projection will inevitably lead to a more
expansive interpretation of standard than intended by the City Council. Sec.
29.402(2)(c)(viii) was modified at the end of 2020, at which time the language was not
expanded to include anything beyond the listed landscape accents. Text changes were
written to clarify that certain features previously permitted to project fully into setbacks
without limitation (such as canopies) were not appropriate within setbacks. It was at this
time that the language pertaining to a "continuous wall that does not meet fence
standards" was added to address the potential abuse of the allowed landscape accent
projections. For staff, the clear and historical intent of this section is for small incidental
items, typically not exceeding fence heights.
Therefore, it is the recommendation of the Planning & Housing Director that the
Zoning Board of Adjustment approve Alternative #1, which is to find that the
Planning Director correctly interpreted the Ames Municipal Code that the proposed
vertical elements do not qualify to project into the required minimum setbacks.
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Attachment A — Supporting Information from the Appellant
STORY DESIGN and CCCU appeal summary:
Story Design and CCCU management continue to believe that City Staff has erred in
its determination that the landscape elements presented in our design documents do
not fall within the intent of article (viii) of Sec.29.402(2). We believe these are
'lanscape accents'as described within the article (viii), and thus should be
acceptable as allowed elements within the setback. (Design documents provided to
the City: initial architectural drawings provided to City 3/19 following the DRC
meeting,where we didn't have sufficient time to review the renderings, and final set
provided to the City 4/19 from Fox Engineering).
These landscape elements as illustrated in the documents, are aluminum pole
assemblies,with a fabric screen element suspended across the top of the poles.The
Fabric screen in some locations along the South is cantilevered to provide shade
and,in others it is vertical, and intended solely for visual appeal. Overall these
landscape features are intended to provide a dynamic and colorful element to the
food truck court,and will provide visual appeal for both the users of the site, and
those approaching from the roadways. They are intended to be and feel light and
airy,and not obstruct ground views.
�`y a
Also see supplemental graphics attached.
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As many of these elements sit within the required 20'setback, their design directly
draws upon the intent described in article(viii)of Sec.29.402(2), where,"The
design and location of accent features shall not have the effect of creating a
continuous wall that does not meet fence standards." In the design, as these
elements are taller than the 4'fence standards, no continuous wall is created, and
all elements are intended to allow visibility and openness.
This code section goes no further to define what'landscape accents'are or are
not,and we would suggest, because it would be impossible to describe all allowed
or not allowed'accents'.that this code section provides the general intent in its
last sentence.As noted above, the design meets the intent of this sentence.
Additional consideration:
Section (xv) indicates that'flagpoles'are acceptable as structures within the
setback.
A flagpole is typically comprised of an aluminum pole element, and a suspended
fabric element. We would also suggest that,although the designed landscape
elements are not expressly flagpoles, they function and appear in a very similar
manner. They are an aluminum pole with a suspended fabric element. These
elements as designed seem to meet the intent of this section, if not it's express
definition.
Additional consideration:
Section 29.402 itself, in describing the setback requirements,uses the term
'Building Setback'.
"Sec. 29.402. SETBACKS.
(1) Building Setback Standard. Except as provided below, all buildings and
structures, Principal and Accessory,shall be located to comply with the minimum
and maximum Building Setbacks established for Principal and Accessory
Buildings listed in each Zone Development Standards Table, Supplemental
Development Standards Table, condition or other regulation applicable to the lot
or the use being employed at the site,"
Although the provision mentions'all buildings and strictures. Principal and
Accessory'within its text,we believe it is clear the intent is generally regarding
buildings themselves,and as such the provision mentions the words'Building
Setbacks'twice. And,so as to make it clear this is the intent, and that these
shouldn't be construed as Accessory,there is a long list of allowed'structures'
within the setback, all of which are random landscape features that the section
takes pains to indicate should be allowed within the setback,and thus not
construed as buildings requiring setback.
So,it is not unreasonable to understand the provisions for setbacks as not
intending to include freestanding landscaping elements such as these. These
landscape elements are clearly not buildings. And while not expressly described
in the exceptions, should be included as similar and per the intent.
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Attachment B — Renderings of the Proposed Structures from the Appellant
FOOD TRUCK PARK:
4/15/2021 CONCEPT UPDATE
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