HomeMy WebLinkAbout~Master - Zoning Board of Adjustment Minutes 10/13/2021MINUTES OF THE REGULAR MEETING OFTHE ZONING BOARD OF ADJUSTMENT THE ZONING BOARD OF ADJUSTMENT AMES, IOWAOCTOBER 13, 2021
The Ames Zoning Board of Adjustment met, pursuant to law, in Regular Session at 6:00 p.m. on October 13, 2021, in the Council Chambers of City Hall with the following members present:Ronald
Schappaugh,Rob Bowers,Leila Ammar,Amelia Schoeneman,andChad Schneider.Also present wereAssistant City Attorney Jane Changand Director of Planning and HousingKelly Diekmann.
APPROVAL OF MINUTES: Moved byBowers, seconded byAmmar, to approve the Minutes of the meeting ofSeptember 8, 2021.
Vote on Motion: 5-0.Motion declared carried unanimously.
CASE NO. 21-11
A request for a Variance to allow use of the existing 61-unit building (formerly approved as an Independent Senior Living Facility) at 3709 Tripp Street as an Apartment Dwelling in the
“FS-RM” (Suburban Residential Medium Density) zone, and to fewer than the minimum number of required off-street parking spaces for an Apartment Dwelling, continued from August 11, 2021.
Director of Planning and Housing Kelly Diekmann stated City Planner Ray Anderson originally introduced this variance to the board on August 11, 2021. Mr. Anderson was unavailable tonight
so Director Diekmann presented. No public hearing was conducted on August 11, 2021 and the case was continued. We did renotify for tonight and a new mailing was sent out. The applicant
is requesting a variance to allow use of the 61-unit structure at 3709 Tripp Street as an Apartment Dwelling instead of the approved use as an Independent Senior Living Facility. The
FS-RM zone allows an Apartment Dwellings, but with a maximum of 12 units in each building used for that purpose. Zoning allows for an unlimited building size for Independent Senior
Living Uses approved by Special Use Permit. The applicant also requests that the variance allow 40 fewer parking spaces than is required by the Zoning Ordinance for the Apartment Dwelling
due to a higher parking requirement compared to Independent Senior Living. Director Diekmann said we are talking about the relationship of two apartment projects at the same property.
They were permitted by the city separately. The City looks at the property with the 61-unit Senior Housing facility separately from the Windsor Pointe apartment project that was permitted
under a major site plan. Within this zoning district we allow for apartment dwellings as a use, multi-family is an allowable use, but we have a building configuration limit of 12 units
per building. We have an exception that if you are approved for an independent senior living facility, which means it is exclusively for occupancy of people over the age of 55, then
you can construct a larger building, but you must use it for that purpose. The configuration requirements for the building are slightly different to meet that definition, you must have
a lobby area and common spaces that are not always in an apartment building. This project was approved as a Special Use Permit to have 61-unit, three story building, it is different
in size then other apartments in the area. The Variance request is to allow for the occupancy of that structure with any type or tenant, senior, family, individual, whomever qualifies
to rent that space. Per the Special Use Permit it was approved to be used for Independent Senior Living. Along with the configuration allowance to have a larger building the use also
has a lower parking requirement, then what is allowed, one parking space per unit. If the Board were to findgrounds for a variance for the use you would also have to find grounds to
approve the parking variance to allow for full occupancy of that building per the Code. We have identified the apartment dwelling would require an additional 40 parking spaces on this
site beyond what is currently available. Staff reviewed of the application material and found that the variance findings have not been met. They did not find evidence to support any
of the findings but principally they were focused on the reasonable return standard. Director Diekmann stated how do you show you have a hardship, that there is no reasonable use of
this property, for a use that is allowed in the zoning district. Narrowly allowed, in this case, because of the Special Use Permit for Independent Senior Living. In the application
materials the applicant indicates the property has never been used for senior housing and has been used primarily as affordable housing without the City’s knowledge. The City cannot
confirm how long this property has been used for non-senior housing. The City is aware it is right now, and we are in conversations with the applicant and that is why we are here.
The allowable use, in this zone,is senior housing. The evidence and the record does not demonstrate that it cannot be used for senior housing, the evidence and the record says the applicant
would prefer to rent it to low income housing because they believe there is a greater need. Director Diekmann stated need, desirability, higher profit, do not meet the statutory requirements
for a variance in Iowa so Staff is unable to make those findings based on the evidence in the record. Staff is recommending denial of the Variance due to lack of evidence supporting
the variance findings.
Board Chair Schoeneman asked if there were any questions for staff.
Board Member Schappaugh asked if Tripp Street allowed parking on both sides of the street. Director Diekmann did not know the answer to Tripp Street allowing parking on both sides.
Graham Parr,1301 E Washington Street, Indianapolis. Mr. Parr stated these two properties are two properties as Director Diekmann stated. The history is different, they were permitted
as two separate properties in 2003. In 2004 the State of Iowa awarded tax credits as one property and there is one LURA (Land Use Restrictive Agreement) across both properties requiring
us to consider them as one property. There are additional issues with Homeowners Protection Act (HOPA), Fair Housing Act from the federal government. They view things such as shared
amenity space, such as parking, there is a bifurcation of the two from a physical standpoint but there is nothing restricting someone from parking in the other lot. The only difference
from TWGs perspective that this is one verses two properties is how many signs are out front. For Windsor Pointe, the developer before us that put the deal together, did not run this
as two separate properties. They had one management office and one set of books, and it was only one project from their perspective. The difference from the Special Use of the senior’s
only, was the issue leasing this to seniors. Windsor Pointe was not able to lease it up to seniors therefore they went back to the State to get an exemption, thus the LURA, from the
State of Iowa or Iowa Finance Authority. The seven12-unit buildings on the West side are good, it the unit on the east side, the 61-unit building that is causing the issues. We purchased
both properties as one management set. We don’t see it as two different sets of buildings, it is one property as a whole. The entire time TWG has been managing it, it has only been one
set, one management team, one leasing officer, and one leasing office. TWG believes, by not granting the variance,it would have significant issues going against the public interest.
We would have to vacate residents, in that building, that would not qualify under the Special Use Permit in and of itself should be against the public interest.
This is a unique circumstance. There are 61 people in the building that likely do not meet the currentSpecial Use Permit. By not granting the variance we will see it change the character
of the locality. TWG is more than happy to go through the PUD process that Director Diekmann has offered through the City. Mr. Parr stated this is not a combative situation. This is
more of a timing issue. At the end of the year, the QCT (Qualified Census Track) map changes and this project loses approximately 30% of its funding from federal tax credits. If TWG
doesn’t have their approvals from IFA before that, the rehab of this project will not be financially viable to create this new value in the community. The spirit of the ordinance is
upheld to create affordable living through this. Does Ames have a legal definition of justice – we think keeping people in the housing they’ve been in for the past ten plus years is
a noble goal. TWG feels we meet all the standards City of Ames has for granting the variance. TWG doesn’t want to feel like they’ve bamboozled anyone so that is why they would like to
put forward that the variance be granted on a conditional basis, that if in 60 days, they have not applied for the PUD process that the variance can be withdrawn. If the variance is
granted tonight, they can start the process with IFA immediately to continue with the tax credit funding. Once the PUD process resolves, the variance becomes null and void. TWG feels
this is a great way to bring this investment to the community.
Schoeneman asked if there were questions for the applicant.
Ms. Ammar asked when TWG bought the property, Mr. Parr stated it was in the fall of 2020.
Mr. Schneider asked who did their title opinion before they did their purchase. Mr. Parr guessed it was Iowa Title Guarantee. Board Member Schneider said they do not do title opinions
they only issue the certificate.
Ms. Ammar asked how long has it been rented to 55+ facility? Mr. Parr stated based off the timing he has seen it was placed in service 2003, the LURA came in early 2004 so it was quick
when they realized they were not going to be able to lease it up. When you have Senior living facilities you can tell pretty quickly on the leasing schedule, and in the first 3 months
if you don’t have a lot of action on the schedule (lease ups) you know whether or not it’s going to be successful.
Board Member Ammar clarified with Mr. Parr if the property is currently being used for affordable housing, he stated no it’s market rate housing. TWG wants to put it back into affordable
housing system with this acquisition/rehab (acq/rehab). Ms. Ammar asked if that was a requirement of the tax credit – Mr. Parr stated yes, it’s a 4% tax credit acq/rehab program. Ms.
Ammar stated the applicant would have to provide affordable housing if they applied for that credit – Mr. Parr stated yes.
Board Chair Schoeneman asked if the applicant had contacted the City prior to purchasing to get a zoning confirmation letter that was for Senior housing. Mr. Parr stated yes.
Board Chair Schoeneman opened the public hearing.
Jodi Stumbo, 225 S Kellogg, Ames. President and CEO of the BridgeHome. She provided a brief overview of The Bridge Home. She asked the board to take 2 steps back from your role of
enforcing zonings. She understands the discussion tonight and zoning regulations. She wanted to emphasize the lack of affordable housing currently in the City of Ames. Studies have
shown Ames needs more affordable multi-family housing. If we change this current resident makeup at 3709 Tripp Street, it will displace many families who will end up at The Bridge
Home. We cannot meet the homeless need the City has right now. Ms. Stumbo asked that we think about the families and the community. She stated 1 individual on the street cost the
city $40,000 and she hoped the board will take into consideration what she presented.
Linda Munden 209 E 6th Street, Ames. Ms. Munden stated she lives by several low-income families, and she stated they are really struggling. There are a lot of families in our community
trying to find affordable housing and it seems like all housing is geared to per bedroom price for the student community. She doesn’t want to see families being displaced and she believes
there are a lot of families that are trying to survive below the 30% Area Median Income.She stated who’s it going to hurt if we take 60 days with a temporary variance to take time for
them to work with IFA and we can all work together to find a solution. She would like to see this project become the housing we need in our community.
Board Chair Schoeneman closed the public hearing when no one else came forward to speak.
Board Chair Schoeneman asked if there were questions for the applicant or staff.
Assistant City Attorney Jane Chang addressed Mr. Schappaugh’ s question earlier about Tripp Street parking – she stated the city ordinance for Tripp Street; parking is prohibited at
all times on the South Side.
Board Chair Schoeneman asked under City Code are we allowed to condition a variance on time frame. Director Diekmann said it is not addressed in the municipal code and he and Assistant
City Attorney Chang had not discussed that, and Director Diekmann stated he is not experienced with doing that. Assistant City Attorney Chang asked would you even be able to get to the
findings to allow for a variance. Director Diekmann stated does duration change the ultimate findings, if the findings are valid for 60 days are they not valid for 70 days or 90 days
or forever. That is what Director Diekmann would ask the board, how would the board distinguish for a time period. Code does not say one way or the other.
Director Diekmann stated the Board is not involving code enforcement. Code enforcement is stayed at this point as the applicant is seeking approval and relief to avoid going through
the Code enforcement process. The Board should not worry about how the City does Code enforcement as that is a separate policy administered by Inspection Division. We are not seeking
immediate enforcement tomorrow and force evictions on properties. Director Diekmann said he can not tell you how the process would go right now as they have not approached that topic.
They are working with TWG on a solution, however code enforcement itself is not a finding for the variance.
Board Member Ammar stated TWG needs sixty days to go through this other process, Director Diekmann explained the rules of the game changed Jan 1st in terms of how to get funding for
the rehab project. We have just over sixty days left in this year. The process outside of a variance that could accommodate the request goes through the planning and zoning commission
and through City Council is to add a Plan Unit Development (PUD) overlay to the base zone. The PUD allows for Council to allow some deviations to certain standards in recognition for
other trade offs with the project. One of the elements with the PUD that can justify deviations is affordable housing and the way the PUD ordinance is written the allowances related
to parking can meet Code under the PUD. So that forty-space variance component, Council could waive a certain number of spaces related to affordable housing units of three bedrooms
or more. Mr. Diekmann believes there are 36three-bedroom units across the two properties, so technically this has to be viewed as one community, as the applicant is portraying it now.
Then, if City Council rezones both parts as an integrated site the parking can be blended across the site so it can meet Code for parking if City Council accepts that commitment for
affordable housing. That process, because it must go through two public hearings, is probably a 60day process. If the applicant starts that process right now, they are rushing it through
to try and get it down by the end of the year. TWG has stated they would like to get processing quicker with IFA themselves because they do not know how long it will take IFA to process
the paperwork. The City is not involved with the IFA process, clearly, we did not sign the paperwork that said it can not be senior housing in the first place. That State process or
State rules we are not involved in, we can only answer how our local ordinances apply to the projects.
Board Member Ammar asked if the applicant needs a variance to start that process. Director Diekmann stated we will not as staff, sign a form that tells IFA that is complies with standards.
That is what generated this process in the first place, IFA asked the Cityto sign a form that it said this project complies with zoning standards, which the City can not do because
it does not comply.
Ms. Ammar asked could we sign it if TWG went through the process. Mr. Diekmann said if the Council changes the standards, then that is different, but as it stands today it does not comply.
Board Member Schappaugh asked if the City would be in the situation if the property had not changed hands. Would staff have noticed TWG was not using the property as it was supposed
to be. Mr. Diekmann said that was hard to say, if someone would have brought it to the City’s attention and we followed through we would get to the same point. If the prior owner wanted
to refinance and the City needed to sign a form we would be in the same position. The City normally responds to complaints about zoning conformance, that is how the City responds to
issues like this. Mr. Diekmann said he has been with the City for eight years and has never fielded a complaint that said this was built as senior housing and no seniors are living there.
Mr. Schappaugh asked Mr. Diekmann would you say the TWG is in a position that is not their doing. Mr. Diekmann said he would not say that because they bought it eyes wide open knowing
it was not in compliance. The zoning verification letter includes the Special Use Permit that says this property is for senior housing only. City Planner Ray Anderson had been in correspondence
with the applicant about what complies and what doesn’t. It’s TWG’s due diligence as a property owner to understand the laws that apply to them, it is not the City’s job to tell every
owner here are the disclosures about which laws apply to you. TWG had the zoning verification letter and had forewarning that a Special Use Permit applied to the property. TWG might
not have investigated it further until they applied for the refinancing. A zoning verification letter is basically a public records request; what can you tell me about the City permitting
history on this property.
Board Chair Schoeneman pointed out this was on page two paragraph two.
Board Member Schneider asked if there was any discussionabout adding parking to this site. Mr. Diekmann responded when the applicant started the process, they showed a site plan that
would add some additional parking in the circle in front of the building. However, they cannot add forty. The City’s advice to TWG was adding some, since it doesn’t get you to the forty,
actually triggers a third variance, so don’t ask for a third variance. If they get the senior approval and there is a concern of the forty spaces, then ask for that separately. TWG
chose not to apply for the third variance. There was discussion around getting rid of the on-site pond to add parking but that would be more issues for applicant.
Mr. Schappaugh asked if the Board could approve the variance with a sun set clause. Director Diekmann said he would like to discuss that with Assistant City Attorney Chang.
Board Chair Schoeneman stated what Staffs answer before was the Board needs to go through the findings and determine if the sun set clause means that all the findings are met.
Board Member Ammar asked if the applicant were to combine both properties would there be enough parking. Director Diekmann stated only under the PUD, because the PUD allows Council to
lower the parking requirements because there’s affordable housing. Market rate housing is not permitted to have a parking reduction.
Board Member Bowers stated Ames has discussed the topic of affordable housing for years and especially in this neighborhood area. If we don’t do something here tonight, will we be “Not
standing up for affordable housing”. Director Diekmann does not disagree that there is an affordable housing issue. The distinction here is that you cannot contravene the zoning with
a preferred use, it’s a policy issue that City Council is meant to grapple with. The city is building affordable housing down the street, we have not received word if our affordable
housing unit will receive funding from the State. We also have some ownership homes as affordable housing down the street as well.
Assistant City Attorney Chang asked Director Diekmann to expand on the timing issues.
Director Diekmann explained in the Spring when we started discussing how could the applicant get to what they wanted the PUD ordinance did not exist. The City Council adopted the PUD
ordinance,and it went into effect the end of June. Staff identified the PUD was a better option later in the summer, before the August Zoning Board of Adjustment (ZBA) meeting. The
applicant did not pursue at that time. After the August meeting City Planner Anderson and Director Diekmann had a call with TWG that the PUD was a better route for them to pursue.
AfterLabor Day they applicant still wanted to pursue variance request for timing reasons. The options did get adjusted during the middle of discussions, when Council adopted the PUD
ordinance in the summer. At this time, an application has not been submitted for a PUD.
Board Chair Schoeneman said if no more questions Staff, we can open up for questions to applicant.
Ms. Schoeneman had a question for the applicant. Please describe the current use of the property, you said market rate earlier. Mr. Parr indicated he had made a mistake earlier and
it was currently affordable housing. Ms. Schoeneman asked when the new Qualified Census Track (QCT) map comes out. Mr. Parr indicated it is out but does not take effect until January
1st. The QCT map is essentially the census bureau saying this area here has lower income then the non-qualified census tracks. Qualified Census Tracks are lower income then normal census
tracks. On HUDs website it shows the QCT as purple so it’s easy to identify. By being in the purple area you are in a QCT and you can get the 30% boost of the Federal tax credit for
your property through IFA, IRS and they push it down to the State level to dole out. Ms. Schoeneman stated a 30% boost but without being in a qualified census track there is still a
tax credit. Mr. Parr stated yes there are still tax credits but if not in QCT the costs don’t work out so it’s financially not feasible. Mr. Parr stated on Jan 1 the costs don’t work
out.
Ms. Ammar asked what happens after Jan 1, 2022 if you can’t get the request approved. Mr. Parr said it’s not good, it comes down to evaluating what the best circumstances are. We don’t
have an option other then remove everyone from the building. We need to stay compliant with the Fair Housing Act as well as Ames City Code. We would have to remove everyone that isn’t
compliant under Ames City Code. That would be the eviction of dozens of people.
Motion by Schappaugh, seconded by Ammar to reopen public hearing
Vote on Motion: 5-0. Motion declared carried unanimously.
Eric Eide, Nymaster Law Office, 1416 Buckeye Avenue Suite #200, Ames. He represents Jensen 5 LC which is the landowner to the south of the subject property. Mr. Eide stated he appreciated
the earnestness you have as you listen to the complaints and problems if we can’t get this to meet zoning there are going to be some harsh consequences. What you have here is a very
sophisticated buyer who bought a packaged deal, one of which included this property. They did know what they were buying, factored that in, and they chose to move forward anyway. If
you read the factors that you have before you legally to follow, typically with a variance you find something unique about the property that lends credence to the request. When you buy
this type of property knowing you are not in compliance you have to roll the dice and come before the Zoning Board of Adjustment board as they had nothing to lose. TWG knew what they
had, and they knew what the consequences would be if they did not get the variance. The need for low income is true but the Boards duty is to look at those factors in Staffs report.
The variance does not meet the requirements.
Public hearing closed.
Board Chair Schoeneman confirmed with Staff that basically as long as they have been going through the variance process the city has not taken Code enforcement action and would not
likely enforce code during the PUD process. Director Diekmann stated typical code enforcement policy is when you have been notified that you do not meet code, and the City has not issued
a citation. The City is trying to work through this as a zoning compliance issue for resolution.
Director Diekmann said the city process, based on a timely application, can be completed by the end of the year. However, we do not know how IFA is going to do their paperwork. He
stated the City has never given a Variance for a process, which is what TWG is suggesting.
Schneider asked what the deadline is for Iowa Finance Authority (IFA). Mr. Parr stated IFA is very tight fisted about what their deadlines are. If we can get the 7B signed by the City
by Dec 1st IFA can get it done. No specific deadline by IFA but IFA is willing to work with TWG.
Board Chair Schoeneman said PUD sounds like a better option, with a commitment to affordable housing with the City, where as they can’t go back to market rate. It’s more of a legislative
process TWG needs to take to get that commitment.
Moved by Schoeneman, seconded by Schneider, to approve Alternative 1, The Zoning Board of Adjustment may deny request for a Variance for 3709 Tripp Street if it cannot find evidence
that supports the explicit finding of consistency with all the Variance criteria.
Board Member Ammar statedif we deny the motion,they can go through PUD process. PUD process is the best process for applicant, the variance is not needed to complete the PUD, and is
a better commitment to affordable housing.
Mr. Bowers stated we cannot find facts that are not there, and we cannotuse authorities that we don’t have. He doesn’t think there has to be an affordable housing crisis from this.
Mr. Schneider stated the fact that they can apply for a PUD should not matter, but it’s out there. Ms. Schoeneman said they had a zoning conformance letter and need of a variance for
a use they knew was not allowed and needed come to Zoning Board of Adjustment for that.
Roll Call Vote on Motion: 4-1. Voting aye: Bowers, Schoeneman, Ammar, Schneider. Voting nay: Schappaugh. Motion declared approved.
ADJOURNMENT: Moved by Schoeneman, seconded by Schneider, to adjourn the meeting at 7:01p.m.__________________________________________________________Renee Hall, Recording Secretary
Amelia Schoeneman, Chair