Loading...
HomeMy WebLinkAbout~Master - Zoning Board of Adjustment Minutes 03/10/2021 MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF ADJUSTMENT AMES, IOWA MARCH 10, 2021 The Ames Zoning Board of Adjustment met, pursuant to law, in regular session at 6:01 p.m. on March 10, 2021, via Zoom communication with the following members present Amelia Schoeneman, Leila Ammar, Ronald Schappaugh, Rob Bowers. Chad Schneider was absent. Also present were Assistant City Attorney Jane Chang and City Planner Ray Anderson. Board Chair Schoeneman stated that it was impractical to hold an in-person meeting due to the COVID-19 pandemic. Therefore, this meeting is being held as an electronic meeting. APPROVAL OF MINUTES: Moved by Ammar, seconded by Schappaugh, to approve the Minutes of the meeting of January 13, 2021. Vote on Motion: 3-0. Motion declared carried. CASE NO. 21-02 Appeal from a Decision of the Planning Director that Vehicle Areas Require Paving with a Minor Site Development Plan as Part of a Request for a Special Use Permit at 220/400 Freel Drive. City Planner Ray Anderson stated that the applicant in the case applied for a Special Use Permit for properties located at 220 Freel Drive and 400 Freel Drive. He clarified the initial Special Use Permit that was issued in 2017 for this site by the Zoning Board of Adjustment relied on testimony given by the applicant who had advised that they anticipated needing the site for one year as they sought a more permanent location elsewhere outside of the City of Ames. They had previously been located outside the City of Ames at 26107-530th Avenue, which was known as Black’s Farm. For the initial Special Use Permit, there were no site improvements other than the addition of rock to stabilize the driveway entrance from Freel Drive. At that time, it was thought since this was a temporary location for a yard waste operation that would suffice for the improvements. The yard waste site had been in operation for nearly three years before the prior Permit expired at the end of 2020. The appellant submitted a new application in January 2021 in anticipation of being awarded a new City contract for yard waste disposal services. During the review, and after notice to the applicant about the deficiencies in the application, the applicant was awarded a new City contract for yard waste services. However, the award of the contract does not exempt the applicant from meeting City approval requirements for this site or any other proposed site that meets their needs. Based on the past and proposed ongoing use of the site with regular activities, staff determined the proposed use needed to meet general development standards for paved vehicle areas, which because the area of paving would exceed 150 square feet, it necessitated a site development plan prepared by a licensed engineer, architect, landscape architect, or surveyor to accompany the Special Use Permit application. Staff found no basis to exempt the applicant from this application requirement or development standard that allows Special Use Permit applications to proceed to the Zoning Board of Adjustment. Additionally, the site plan that was submitted is not up to date, reflective of the proposed use, or prepared by a licensed engineer, architect, landscape architect or surveyor for this particular use. The sections in the Code were listed by City 2 Planner Anderson as the basis for staff’s decision. They are the following: Section 29.1503. SPECIAL USE PERMIT. (2) Submission Requirements. An application for a Special Use Permit, filed in accordance with Section 29.1503, shall be accompanied by: (a) A statement of supporting evidence that the general and specific standards as delineated in this Article will be fulfilled. (b) A Site Plan meeting all the submittal requirements stated in Section 29.1502(2); and (c) Preliminary plans and specifications for all construction, as applicable. Section 29.1502. SITE DEVELOPMENT PLAN REVIEW. (2) General Requirements for Site Plan Review. (d) Submission Requirements. () Site Plan. It is the intent of the City to ensure that site plans be prepared with a high degree of accuracy and ensure proper coordination of the site plan development and review responsibilities, which serve to facilitate compliance of the city. To accomplish this intent, the applicant shall provide copies of the site plan, drawn to scale on a sheet not to exceed 24” x 36”, prepared by a Civil Engineer, a Land Surveyor, a Landscape Architect, or an Architect. The site plan must be certified as “substantially correct” by a Professional Engineer, Land Surveyor, Landscape Architect, or Architect, licensed by the State of Iowa, showing the following information as of the date of application: g. Location and dimensions of parking areas, individual parking spaces and drive aisle, driveways, curb cuts, easements, and rights-of-way. Section 29.406 OFF-STREET PARKING. (1) Applicability. The off-street parking requirements set forth in this Section apply to all off-street parking uses, whether required by this Ordinance or in excess of the requirements of this Ordinance, whether accessory to the principal use of a site, or operated as a commercial enterprise. (11) Improvements of Off-Street Parking Areas. (a) Surface Material Standards. (i) Materials. All vehicle areas, including the front yard parking areas described in Section 29.406(7), must be paved with Portland Cement Concrete, Asphaltic Cement Concrete, or an equivalent as determined by the City Engineer. (ii) Material Thickness. All vehicle areas, including front yard parking areas described in Section 29.406(7), must be paved with an approved material no less than five inches thick. Greater thickness may be required by subsurface conditions or the type of vehicles using the parking area. In all off-street parking areas where access will be provided for heavy trucks and transit vehicles, the pavement thickness shall be adequate to accommodate such vehicles, as determined by the City Engineer. When it is anticipated that transit service will be extended to sites not presently served, pavement thickness shall be adequate to accommodate transit vehicles, as determined by the City Engineer. (b) Striping. All parking areas must be striped in accordance with the dimension standards described in Figure 29.406(9) to clearly delineate parking spaces and drive aisles for use by customer, employee, 3 business, and other vehicles, except parking areas designed for outdoor display of vehicles for sale or lease. (c) Lighting. Illumination for parking and loading areas must be designed to be fully cut off from adjacent properties. Mr. Anderson noted that one of the underlying issues being disputed is the use of the word “temporary.” The City Zoning Ordinance does not define temporary even though the prior Special Use Permit was of a limited duration and scope, and the Zoning Board of Adjustment considered the request as such. This was an exception granted previously due to circumstances at the time (in the middle of City contract for waste disposal) and is not the rule of the Zoning Ordinance standards. The Planning Director had determined that, without a defined term for temporary, there is no basis to consider three prior years of the use and proposed continued use of the site as temporary. Staff informed the appellant of an alternative to appealing this determination, which was to alternatively pursue a zoning text amendment with City Council to address the specific issue of “temporary special uses.” The appellant chose to file this appeal rather than to ask City Council for a text amendment. It was stated by Planner Anderson that it is the recommendation of the Planning and Zoning Commission to find that the Planning Director had correctly determined, as per all requirements found in the Ames Municipal Code, that vehicle areas require paving with a Minor Site Development Plan as part of a request for a Special Use Permit. Board Member Schoeneman opened the floor to questions. There were no questions from Board members at that time. Applicant Doug MacCrea, 913 Tennyson Avenue, Ames, Iowa, was sworn in and testified under oath. Mr. MacCrea stated that the basis of the staff’s decision to require a minor Site Development Plan and other documentation as well as paving the entrance of the site is what is at question here. Mr. MacCrea addressed the previous three years: the first year was in fact for a year that was the remaining full year of the contract. The contract was extended at the City’s request for two years, and he asked for a supplemental continuation of the Special Use Permit. He advised that they had been working with other members of City staff on long-term organic waste recycling programs, which take time. Discussion regarding these projects only started as a result of the City’s waste management review that ended January 2020. Mr. MacCrea stated the Special Use Permit application was prepared in accordance with Section 29.1503 and 29.1502 (2) in accordance with the Special Use Permit application package dated August 19, 2020, provided by the City. Nowhere in any of those sections or documents is there a requirement listed, that he can see, for a minor Site Development Plan. Table 29.9012 of the City’s Zoning Ordinance states that in the General Industrial zone, only a Special Use Permit is required for waste processing and transfer uses. Table 29.5014-5 further defines what is considered waste processing and transfer, which includes recycling operations and waste composting, which is the entire reason for a yard waste collection transfer site. Mr. MacCrea’ s contention was with several items raised by the Planning Department and the basis of it’s decision. First, they have decided that this request is permanent in nature, however as Mr. Anderson has stated, there is nothing in City Code that defines what permanent is; it is Planning’s 4 interpretation of making something permanent. His request for a three-year term Permit is simply because Mr. MacCrea doesn’t want to have to go through, or have his successor go through, filing a new Permit application every year while they continue to work with the City to develop the organic waste recycling program. By determining that the Special Use Permit constitutes a permanent request, they are attempting to justify requirements for paving the entryway on, the landowner’s property before the application will be forwarded to the Zoning Board for action. Secondly, they take issue with the date of the site plan, which was developed and approved by a licensed engineer, stating it was prepared for a different use. The Municipal Code does not put a statute of limitations on the date of the site plan drawing. Mr. MacCrea stated the drawing accurately reflects the condition of the site as it is today. Thirdly, the Zoning Ordinance requires any developmental site to meet current zoning standards, both by definition and inference. “Developing” implies adding a structure or some way changing the physical characteristics of the site; there is no intention nor was one stated in the Special Use Permit application to in any way develop or alter the site. He argued that by following the City department’s rationale they are being forced to develop the site. Finally, Mr. MacCrea pointed out that requiring the paving of the entryway with concrete or asphalt per the City’s Code on the landowner’s property does not make any sense given that Freel Drive is not paved nor do any of the other properties that access Freel Drive have pavement at their entryways. Lastly, Mr. MacCrea stated, that although he was reluctant to do so, he felt it was necessary because this process has been frustrating, and he wanted to go on record that this appeal was hand-delivered and accepted by the Planning Department on Feb 10, 2021, as acknowledged by the email receipt sent to him for the appeal fee. Per the Appeal from the Decision of the Zoning Enforcement Officer the acceptance of this appeal package was to be acknowledged within three working days of receipt and staff comments on the Appeal application were due within three days of the notice of the application was accepted. The first correspondence Mr. MacCrea received was from the Planning Department on this Appeal was provided on March 1st after Mr. MacCrea asked for the status of the Appeal. The first written response Mr. MacCrea received from the City on this Appeal was March 9, 2021, via email. In regard to the Special Use Permit application, he wanted it to be known that they are willing to put limestone or asphalt fillings at the entrance of the site both on the City and private property side, but consider the paving requirements outlined by the Planning staff to be excessive and non- conforming to the rest of properties along Freel Drive. The Appeal package Mr. MacCrea submitted also specifies and outlines other issues of concern. There is paved parking at that site. Mr. MacCrea was not given the opportunity to meet with City staff to discuss anything before they made their decision to require a Minor Site Improvement Plan that also requires an additional flood plain plan. It’s just a snowball effect for no valid apparent reason at this location. The whole area is undeveloped and there is no intention of developing the current location. It just seems to him that the decision of the Planning Director to move ahead is excessive and not appropriate given the current use of the site nor does it conform with the area which the site is located. Chair Schoeneman asked if anyone had any questions. Ms. Schoeneman asked the applicant what he would be willing to use in the driveway. Mr. MacCrea answered that he would be willing to put down limestone or asphalt millings. He added 5 that he wanted it understood that anything they put down is going to be worn away over time, and even if they went to the extreme expense of getting an engineer, which equates to more than half the cost of the contract, even that will wear away over time to the point that in a couple years it will have to be redone given the fact that it would be going from an unpaved road across 150 – 170 feet of pavement to more unpaved area to off load yard waste. After losing connection Board Member Bowers rejoined the meeting at 6:21PM. Ms. Schoeneman asked Mr. Bowers if he heard any of the staff’s or applicant’s presentation. Mr. Bowers replied that he had only heard part of the staff’s presentation and heard the bulk of what the applicant said. However, when he got added into the Zoom meeting, he was in as a guest. When he got added as a panelist, he lost part of the applicant’s presentation. Mr. Bowers stated that he did not feel like he was up to speed on this case. He advised that if he were asked to vote on this at this time, he would not be able to. Ms. Schoeneman thanked Mr. Bowers for his honesty and asked Assistant City Attorney Chang if the Board needed to do anything else. Ms. Chang responded that at this point Mr. Bowers can ask questions for clarification. She stated that she didn’t know if they want to go over anything more. It was noted by Ms. Chang that there were three Board Members who heard everything and were able to vote. Chair Schoeneman addressed Mr. Bowers letting him know that he could ask questions to gain clarification to feel comfortable voting, but if not, the Board would have to vote unanimously to take action tonight. Mr. Bowers stated by the nature of technology he doesn’t even know questions to ask as he missed the presentation. He said his only question would be to ask City Planner Anderson to repeat his entire presentation and that would not be a valid use of anybody’s time. Mr. Bowers excused himself from the case. Ms. Schoeneman opened the public hearing. She asked if there were any members of the public who wished to speak. No one requested to speak so the public hearing was closed. Board Member Schappaugh asked City Planner Anderson to clarify that the property had been used for this purpose for four years or six years, and during two different contract periods, it was considered a temporary use and didn’t need a site plan. City Planner Anderson responded that it was approved in April 2017 and amended in Fall of 2017; then there was a new Special Use Permit issued that included 2019 and 2020. There have been at least two Special Use Permits and one extension. Mr. Schappaugh asked if those were considered temporary. Planner Anderson replied that it was thought to be for one year and then got extended, which the City did not anticipate it would be. Now they are at the point of a new contract and they need a new Special Use Permit because the old one expired. The Code does require a site plan certified by a licensed engineer, architect, landscape architect, or surveyor and it requires certain improvements to be done and shown on the site plan. There was a site plan submitted, but it did not meet the standards required of a site plan. Mr. Schappaugh commented that the Board was only trying to decide if that site plan should include paved roadways. Planner Anderson stated there will be two parking spaces required. The appellant had advised that there were a couple areas on the site that are paved. It is possible that one of those areas would meet the site plan requirements for paving for the parking spaces. They are 9 x 19; however, one of them would have to be handicapped-accessible, which 6 is 8’ wide parking space and an 8’ wide access aisle for that accessible space. If the concrete that is out there now would suffice for meeting those dimensions, it’s possible they would not have to pave more, however, the driveway or drive aisle that accesses the parking must be paved. The appellant does not have to pave all those roadways where you go in and deposit the yard waste, but it does require a paved drive and paved parking. Mr. Schappaugh questioned if the appellant would have to include paving up to the parking. Planner Anderson said he would. Mr. Schappaugh inquired whether sealed coated gravel to their parking would meet the engineer’s standard. Mr. Anderson stated the Municipal Engineer can approve alternative paving surfaces so if the appellant wants to request her to consider an alternative paving surface, such as asphalt millings, that might be a possibility. It would be up to the Municipal Engineer to make that decision. Board Member Ammar asked if that would need to be an amendment to this appeal. Mr. Anderson advised that the appeal needed to be resolved first. He added that after the formal site plan has been filed that meets current requirements, Municipal Engineer could consider that request. Board Member Schappaugh asked if this case should be tabled until the Engineer makes that decision. Planner Anderson deferred to Assistant City Attorney Chang to advise whether they proceed with the appeal or table it based on an alternative surface being an option. Ms. Chang stated the Board has that option if it wants to get more information in order to make its decision. She pointed out that Chair Schoeneman noted that the Municipal Engineer may not be able to grant the alternative surface because the site plan has not been submitted. Mr. Anderson advised that if there is 150 square feet of paving, a site plan is required. If there are fewer than 150 square feet a site plan is not required; but this would exceed 150 square feet. Ms. Schoeneman questioned whether the paving is required because of the two parking spaces that are required. Planner Anderson answered in the affirmative. Planner Anderson showed a colored copy of the site development plan. Ms. Schoeneman asked if the appellant submitted a site plan, for staff review if the existing parking was sufficient and maybe only the additional apron for ADA compliant parking was needed. Mr. Anderson stated staff would look at what is existing and if it would meet the requirements. Mr. Schappaugh stated that it appeared to him, from the map Mr. Anderson had shared, if they moved the staff parking up closer to the road, they wouldn’t have the requirements. Mr. Anderson stated if they moved them closer to the road, they certainly would have less paving to do for the driveway. Ms. Ammar stated the ADA parking spots must be a certain distance from the entrance of the building. Mr. Schappaugh stated they must be the closest one to the door. Mr. Anderson noted that he was not involved at that time, but reading back through the report, he thinks there was a lot of consideration given to the statement by the applicant that this would only be needed for one year. Planner Anderson advised the Board that it cannot move forward with the Special Use Permit until a site plan has been submitted or until it’s determined that a site plan is not needed. Ms. Ammar commented that now that the Special Use Permit is no longer temporary we don’t know if it’s going to be one year or three years. Mr. Anderson stated at this point they don’t know how long the Special Use Permit is for because the board hasn’t considered it. The contract for the yard waste free days with the City is a three-year contract with the option of adding two more years after that. Board Member Ammar asked if it had been determined whether the applicant needs to have paving or a site plan they can work with the City to get approval for a different type of paving 7 than is normally allowed by the City. Mr. Anderson said yes. She also said that the City could take into account the fact that there isn’t a paved road that leads to that parking lot currently. Mr. Schappaugh asked Planner Anderson if he thought a three-year contract was temporary. Mr. Anderson replied “temporary” is not defined; at some point it is no longer is temporary if it keeps getting extended. The Code doesn’t allow it to be called permanent; however, you have to meet the standards of the Code, which in this case, requires a Special Use Permit and the Special Use Permit requires certain improvements, one of which is the paving. Chair Schoeneman said it was a condition and they did not think this was going to be the permanent site. Ms. Schoeneman commented that it has been determined that there is no definition of what is temporary. She said she knows that certain accommodations were made because the Board thought this was a temporary use. Given that there is not a definition of temporary, perhaps a site plan should have been required when the Board first heard this. Ms. Schoeneman asked if there was a statute of limitations on when the City of Ames can come back and say this was approved by mistake. Assistant City Attorney Chang said she was not sure; however, looking at the materials from the last three applications, the applicant has consistently made the assertion that this was not going to be their permanent site, and every time they came before the Board, they said they were going to look for a new site. She understands that the contract is for three years and there are additional two-year renewal periods available. Ms. Schoeneman stated she went back and listened to the audio from the first time the Board heard this and at that point one of the planners on the case said it was temporary and that the applicant was going to look for a permanent location. There are really no improvements that warrant a site plan at this point but now it seems, with permanent use, the Board needs to review parking. Mr. MacCrea stated those paved areas currently exist; they existed when that site plan was developed and submitted. There have been no material changes since that plan was developed by a licensed architect and submitted. Therefore, it should be a valid plan. Mr. MacCrea pointed out that 200 Freel Drive in years past was also used as a yard waste site but was never legally permitted. He stated that he was standing by the fact that he submitted a valid site plan in accordance with City Code. Mr. MacCrea said that he had received a letter back from the City saying his application was complete in January 2021, and then on January 24th, he received an email from the City stating that additional things were now required. Mr. MacCrea was not given the opportunity to come into City Hall to discuss or answer any questions. Throughout this process the City has been doing what they think is right, but what is right on this piece of paper and what is right given the location of the site and how it conforms to the area in question are at issue. The City is asking for far more and basically requiring development of the site. In reading the Code, everything infers to a development, meaning structures or major modifications to the existing land. Mr. MacCrea advised they are not asking for that. He said his appeal is based on the fact that the Planning Department is putting undue requirements on application. Mr. Schappaugh asked Mr. MacCrea if the contract were to be granted into perpetuity would the Freel Drive sites be the yard waste “forever home”. Mr. MacCrea answered that they have been working with the Public Works Department, Resource Recovery Center, and the State of Iowa to develop a compost facility to accept yard waste and essentially food waste as part of an ongoing City program for food waste diversion that would be outside the City limits. They are working to 8 acquire that land to do that however, at this time, they are unsure how long it will take to do that. Mr. MacCrea stated he is trying to ensure that he is leaving his firm established with a place to go for the next three years for this contract. He commented that if everything falls into place at the end of this year, they could be moving to a new location, he just doesn’t know. But what he does know is that it is very difficult to every year have to put in an application for a Special Use Permit. Mr. MacCrea stated he has no doubt the City would love to have the area developed into something nice but right now, given the fact that it’s in a flood plain, he has to do what is right for his firm, which is to appeal the decision that appears to be based solely on interpretation of rules that aren’t quantified. Moved by Schappaugh to adopt Alternative 2, which is that The Zoning Board can find that the Zoning Enforcement Officer incorrectly determined that vehicle areas require paving with a Minor Site Development Plan as part of a request for a Special Use Permit. Motion died for lack of a second. Moved by Schoeneman, seconded by Ammar to adopt Alternative 1, which is The Zoning Board of Adjustment can find that the Planning Director correctly determined as per all requirements found in the Ames Municipal Code that vehicle areas require paving with a Minor Site Development Plan as part of a request for a Special Use Permit. Chair Schoeneman reminded that before The Board votes, if they don’t vote unanimously, it gets tabled until the next meeting. Assistant City Attorney Chang confirmed that if they don’t have three concurring votes, the item must be tabled. Ms. Schoeneman noted a site plan is required for a Special Use Permits and parking is also required. The site plan is needed to see if existing parking conforms to the City’s requirements or not; part of that would be paving to the parking area. The applicant might have the option of requesting an alternative paving material as part of the site plan process. Mr. MacCrea stated he submitted a site plan that met the requirements of the Municipal Code. Ms. Schoeneman stated that the Board does not act on site plans. Mr. Schappaugh stated his thoughts are that a precedent has been set on this site for uses as long as three years. Without the requirement of paving or until there is definition of what is temporary, he didn’t feel that the Board could apply a paving requirement. Board Member Ammar pointed out that the Board was not voting on that; it is voting on whether the City Planner determined correctly, as per all the requirements, that vehicle areas required paving with a Minor Site Development Plan for a Special Use Permit. Ms. Schoeneman asked if she was correct that the Zoning Board of Adjustments does not approve site plans; that is a separate City process that goes to City Council. Mr. Anderson stated Minor Site Development Plans that go to the Zoning Board with the Special Use Permit are provided to the Board as information. It was asked by Ms. Schoeneman who reviews the standards for site plans. Mr. Anderson stated that Zoning Board of Adjustment and Planning & Housing are informed because the site plan is part of the Special Use Permit and Zoning Board of Adjustment approves the Special Use Permit. Chair Schoeneman asked if Major Site Plans go to Council after the Zoning Board Adjustment. Planner Anderson said that was correct. Ms. Schoeneman called for the vote. Vote on Motion: 2-1 9 Voting Aye: Ammar, Schoeneman Voting Nay: Schappaugh Motion failed. Schoeneman stated we will come back to this at our next meeting when Board Members Bowers and Schneider are present. . Roll Call Motion: 2-1. Motion declared tabled. ADJOURNMENT: Moved by Ammar, seconded by Schappaugh, to adjourn the meeting at 6:59 p.m. _____________________________ _____________________________ Renee Hall, Recording Secretary Amelia Schoeneman, Chair