The URL can be used to link to this page

Home My WebLink AboutA003 - Staff Report December 8, 2021 (2) ITEM #: 2 DATE: 12-08-21 CITY OF AMES DEPARTMENT OF PLANNING AND HOUSING REPORT TO THE ZONING BOARD OF ADJUSTMENT REQUEST: A request for an extension to reestablish a non-conforming use until May 13, 2022 in order to complete necessary work needed to continue a residential non-conforming use in the Highway Oriented Commercial District. BACKGROUND AND PROJECT DESCRIPTION: The subject property at 520 E. Lincoln Way, located at the southwest corner of E. Lincoln Way and Cherry Street, was originally built in 1933 as a single-family structure. In March of 1949, it was converted to two units and its present-day configuration, as determined from a City building permit record. Currently, there is one two-bedroom ground level unit and a one bedroom unit upstairs. The property owner in the process of trying to acquire a Letter of Compliance for use the property as a rental property and /or to sell it as a residential property. The property is currently zoned Highway Oriented Commercial (HOC), which does not permit residential dwellings. The property has been zoned HOC since 2000 and has had various commercial zoning district designation at least back to 1956. Under the current Zoning Ordinance, the property is determined to be a legal non-conforming use as it was established as a residential use legally prior to the City changing the zoning for the property (Nonconformities- Section 29.307 of the Ames Zoning Ordinance). Legal non-conforming uses may continue to operate as long as the use is not abandoned. A non-conforming use is considered abandoned and cannot continue if the use of the property as residential has ceased for more than one year and required steps outlined in Section 29.307 (2) are followed. Evan Brown, owner of 520 E. Lincoln Way and representative for P and B Group, have owned the property since 2014 and used it as a rental property without a rental letter of compliance ( LOC) or as their own residence during their tenure as owners. The applicant first contacted the City's Inspections Division in July of 2021 regarding the rental registration process. The Planning Division became involved in the LOC process as the property is zoned HOC and residential uses are not permitted and there was no record of this property being licensed as a rental since 2016. Additionally, at the time of the initial rental inspection it was found that work had been done to the interior units that had not received the required permits. Since there was no active registered rental and the property owner was not currently living at the address, staff started the process to determine abandonment of a non-conforming use (Section 29.307(2)(g)). This started with a certified letter sent on July 30, 2021 (See Attachment B) per Section 29.307(2)(g)(iii) to the property owner. The property owner did reply by certified mail within the allowed thirty days (See Attachment C). Since July, the 1 property owner has been taking the necessary to meet the building, rental, and zoning requirements to bring the residence into compliance. This has included working with the Inspections Division to acquire permits for work previously completed without permits and for work in process. The proposed request to the ZBA is to allow an extension beyond the allowed ninety days to reestablish the residential use. The owner submitted a request on November 16, 2021. (See Attachment D) requesting an extension until May 13, 2022 to allow the property owner time to complete required physical improvements to the property. APPLICABLE LAW: Chapter 29, Section 29.307.2.g. of the Zoning Ordinance states the following: (g)Abandonment. (i) Effect of Abandonment. Once abandoned, a nonconforming use shall not be reestablished or resumed. Any subsequent use or occupancy of the structure or lot must conform with the regulations of the district in which it is located. (ii) Evidence of Abandonment. A nonconforming use shall be presumed abandoned when any of the following has occurred: a. The owner has in writing or by public statement indicated intent to abandon the use; b. The building or structure has been removed through the applicable procedures for the condemnation of unsafe structures; c. The owner has physically changed the building or structure or its permanent equipment in such a way as to clearly indicate a change in use or activity to something other than the nonconforming use; or d. The use has been discontinued, vacant or inactive for a continuous period of at least one year. (iii) Notice. Upon the occurrence of any of the events described in Section 3(b) above, the Zoning Enforcement Officer shall document such event and shall issue a notice to the property owner by certified mail, return receipt requested, stating that the property owner's intent to abandon the Nonconforming Use is presumed, and that the Nonconforming Use will be terminated unless the property owner submits an Answer within 30 days of the date the notice was issued. However, no notice of abandonment is required when a property owner has initiated a change of use or received approvals from the City for changes to use of the property or property improvements. (iv) Answer. The Answer shall indicate the property owner's intention to resume the Nonconforming Use and shall describe the actions the property owner intends to take within 90 days of submission of the Answer to resume the Nonconforming Use. Answers must be on forms provided by the Zoning Enforcement Officer. a. If an Answer is submitted within 30 days of the issuance of the Notice, but the Nonconforming Use is not resumed within the 90 days following submission of an Answer, the Nonconforming Use shall be terminated at the end of that 90-day period. Once a Nonconforming Use is terminated, subsequent uses of the property must conform to this Ordinance. b. If no Answer is submitted within 30 days of the issuance of the Notice, the Nonconforming Use will be terminated. 2 (v) Overcoming Presumption of Abandonment. The presumption of abandonment may be rebutted upon a showing, to the satisfaction of the Zoning Board of Adjustment, that during the 12-month period in question, the owner of the land or structure has been: a. maintaining the land and structure in accordance with the Building Code and did not intend to discontinue the use; b. actively and continuously marketing the land or structure for sale or lease; or c. engaged in other activities that would affirmatively prove there was no intent to abandon. (vi) Calculation of Period of Abandonment. Any period of discontinuance or cessation of use caused by government actions, fire or natural calamities, and without any contributing cause by the owner of the nonconforming use, shall not be considered in calculating the length of discontinuance pursuant to this Section for up to 18 months from the date of the event. BASIS OF DEPARTMENT DECISION Staff initially made a determination of abandonment based upon the lack of permits and occupancy of the structure earlier in the summer of 2021. The applicant did reply in timely manner to the City's inquiry about the use of the property and described their intent to restart the nonconforming use. In staff's communication with the property owner it has been difficult for the property owner to find necessary contractors available to complete all of the work within the allowed ninety days to restart the use. This specifically pertains to the installation of a paved parking area and may include other items as well. Staff has had consistent communication with the property owner and find that a good faith effort is being made to meet all Inspection, Building, and Zoning requirements and believe the requested extension is in conformance with Subsection (v) for overcoming presumed abandonment. PUBLIC COMMENTS: Notification was made to all owners of property within 200 feet. A notice of public hearing was placed on the property and published in the newspaper. As of this writing, no comments have been received. ALTERNATIVES: 1. The Zoning Board of Adjustment may approve this request to allow an extension until May 13, 2022 in order for the property owner to have the time to complete all required improvements at 520 E Lincoln Way and to reestablish use of the property as a residential use. 2. The Zoning Board of Adjustment may deny this request to allow an extension until May 13, 2022 in order for the property owner to have the time to complete all required improvements at 520 E Lincoln Way to maintain the use of the property as a residential use. This alternative would not allow for the structure to be reestablished as a residential use and it would be required to have a commercial use of the property. 3. The Zoning Board of Adjustment may refer this request back to the applicant or to City staff for additional information. 3 RECOMMENDED ACTION: The applicant has worked closely with staff in an effort to restore the property to Code compliance and to reestablish the residential use of the property. Based upon the information provided in the report, it is the recommendation of the Department of Planning and Housing that the Zoning Board of Adjustment act in accordance with Alternative #1. 4 Attachment A W GI mi / gill k - E2ND ST + } ' ;SG 4"f r Coll t l ?LINCOLN WAY E LINCOLN WAY E LINCOLN WAY E LINCOLN WAY" HOC, 520 E Lincoln Way j;,l; "A f w > Am A 5 rGi d S omma / 520 E. Lincoln Way N 5 Attachment B July 30,2021 P and B Group LLC 109 Cherry Avenue Ames,IA 50010 RE: Zoning Information for the Properly Located at 520 F Lincoln Way,Ames,Iowa Property ID:09-11-225-080 To Whom It May Concern, Thank you for your inquiry concerning the property located at 520 F.Lincoln Way.I am following up after our conversation as to if this property can be registered and used as rental property.It is my understanding that you are interested in in receiving a pre-sale inspection. Information on the Ames City Assessor's website for the property at 520 E Lincoln Way(Property ID: 09-11-225-080) shows that the current use of the property is residential. The zoning designation of this properly is"1-lighway Oriented Commercial"(HOC),which does not permit household living usc..s per the Ames Municipal Code. Therefore,the current use of the property is not in conformance with the current zoning standard.as detailed below. Section 29.307(2)of the Ames Municipal Code stales the following: `Ant•use of aql•structure or lot that spas conforming or validly nonconforming and othen►ise lmvful at the enactment date of this ordinance and is nonconforming under the provisions of this Ordinance or that shall be made nonconforming by a subsequent annendment,may be continued so long as it remains otherwise lawful,subject to the standards and limitations of this Section." Per our phone conversation,it was dclerminal that a residential me could not continue at this location based on abandonment of use. Section 29.307(2)(g)(ii)(d). This section refers to discontinued,vacant or inactive for a continuous period of at least one year. The code goes on to provide a process to follow in order to determine abandonment of use. Please reply withing thirty days of receiving this letter to indicate the desire to continue use as a residential use.If no abandonment is determined you will have ninety days to resume a residential use on site.This will require compliance with all City regulations.Section 29.307 is attached for reference. If you have any questions,please contact me at(515)239-5443. Sincerely, Julie Gould Planner 6 Attachment C August 19,2021 Planning&Housing Attn:Julie Gould 515 Clark Ave.,P.O.Box 811 Ames,IA 50010 RE: Zoning Information for the property located at 520 E Lincoln Way,Ames,Iowa Property ID:09-11-225-080 To Whom It May Concern, I am writing this letter to let it be known that we do use the property at 520 E Lincoln Way as a place of residence.My business partners live out of state in Virginia and when they do come back here to visit it is where they stay.We also store some of our belongings there.We were told that right now it appears the duplex is zoned commercial which will make it very difficult to do anything with this property. It was built as a home and everything about this duplex was positioned to be a home for someone to reside in. Our intentions are to resume a residential use for this property and get this duplex rental compliant. Thank you for your time and consideration. Sincerely, Evan Brown 515-231-4858 7 Attachment D November 16,2021 Planning&Housing Attn:Julie Gould 515 Clark Ave.,P.O.Box 811 Ames,IA 50010 RE: Zoning Information for the property located at 520 E Lincoln Way,Ames,Iowa Property ID:09-11-225-080 To Whom It May Concern, I am writing this letter in regard to establishing that the residential use has not been abandoned for 520 E Lincoln Way.There is a 90 day window to finalize the necessary site and permit requirements and we are unable to finish a couple permits due to the time of year and the contractors schedules.Right now we are working with Stenberg Concrete Construction based in Ames and with their schedule they will not be able to complete 4 car parking lot until next spring.We also are finishing up the upstairs building permit that also includes the deck/stairs leading up to the unit.This permit and work should be completed within the next couple weeks.We are requesting an extension until May 13"',2022. Sincerely, Evan Brown 515-231-4858 9