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HomeMy WebLinkAbout~Master - Zoning Board of Adjustment Minutes 11/09/20221 MINUTES OF THE REGULAR MEETING OF THE AMES ZONING BOARD OF ADJUSTMENT AMES, IOWA NOVEMBER 9, 2022 The Ames Zoning Board of Adjustment met, pursuant to law, in Regular Session at 6:0 0 p.m. on November 9, 2022, in the Council Chambers of City Hall. The following members were present: Rob Bowers, Leah Patton, Leila Ammar and Chad Schneider. Michael Zenor was absent. Also present were Assistant City Attorney Jane Chang, and City Planners Eloise Sahlstrom and Ray Anderson. Approval of Minutes; July 13, 2022: Moved by Bowers seconded by Patton to approve the minutes of July 13, 2022, Zoning Board of Adjustment meeting. Vote on Motion: 4-0. Motion declared carried unanimously. Approval of Minutes; October 26, 2022: Moved by Schneider seconded by Bowers to approve the minutes of October 26, 2022, Zoning Board of Adjustment meeting. Vote on Motion: 4-0. Motion declared carried unanimously. CASE NO. 22-11 Public Hearing on a Request for an Appeal of 802 Burnett Ave from a Decision of the Zoning Enforcement Officer regarding encroachment of a structure within the front yard. Planner Eloise Sahlstrom stated that this property located at the corner of 8th Street and Burnett Avenue in the Old Town Historic District. The request is an appeal of the decision of the Planning Director regarding a proposed fence in the rear yard. The Planning Director’s decision is that a proposed structure located along the rear property line is a “fence,” as defined in Section 29.201 (74). As a fence, the structure is limited in its height and location on a property. The appellant’s proposed fence exceeds the maximum height of six feet for fences in the rear yard setback for posts utilized in the design of the fence. The appellant asserts that the extended pos ts are not part of a fence, but instead landscape accents, which would then exempt them from height limits. The property is occupied by a single-family residence and attached garage and has non- conforming side and rear building setbacks. Fences may be constructed without regard to the required building setback, as long as the height of the fence meets the height limitations described in Section 29.408(20). Properties in the Old Town Historic District are required to receive a Certificate of Appropriateness for certain improvements, including fencing. The Zoning Ordinance defines a fence as an unroofed barrier or enclosing structure. Fences in the Old Town Historic District are required to comply with the height standards described in the Zoning Ordinance. In this instance the height limit is six feet in a rear yard setback. The appellant’s proposed structure includes a 3-foot brick wall with three brick columns that are proposed to extend to at a height of 6’-6”. The brick columns surround support posts that extend to 12 feet with 8-foot arms at the top of the posts extending inwardly toward the house at an angle, resulting in a total height over 12 feet. The extended features are to be built into the brick wall and located along with the hip wall one foot from the property line. The 12-foot extensions are physically part of the fence design and were determined to be subject to the fence height limitations. On July 11, 2022, the Historic Preservation Commission reviewed a Certificate of Appropriateness to construct a brick fence with extended features in the rear yard of the house at 802 Burnett Avenue and referred the request back to staff or the applicant for additional information. On September 15, 2022, staff met with the applicant and presented a letter to the applicant explaining next steps (see Attachment C.). One of the options described to the applicant, was to appeal the decision of the Planning Director. The item tonight before the Zoning Board of Adjustment is that appeal. 2 The Zoning Ordinance applies setback and other development regulations to all structures. The front porch structure is attached to the house. The proposed structure in the rear yard is not attached to the house. It is freestanding and is only attached to the hip wall as part of the fence. The Ordinance also allows for exceptions to setbacks for certain features. In this situation, staff determined that a proposed structure was classified in its entirety as a fence, and that as a fence it does not meet the allowable fence height for being in a rear yard setback. Additionally, as discussed with the appellant’s appeal, if the structure is determined to not be a fence and is a “landscape accent” it is still subject to fence limitations due to the design and configuration of the structure. The Zoning Ordinance considers essentially all constructed improvements above ground to be structures. The structure varies in height between six feet and twelve feet. The definition of a fence means an unroofed barrier or unroofed enclosing structure, including retaining walls. Staff finds that the structure is a barrier enclosing an area. The structure is proposed to be located one foot from the rear property line, defining the property boundary and enclosing the patio space on one side. All individual components of the structure together comprise the structure. The proposed extended features are to be built into the brick wall. The appellant has indicated that the intent of the extended features is to create a sense of place. As currently designed, the extended piers, posts, and arms are integral to the proposed structure, both visually and structurally in creating a boundary. The entire structure, along with the extended features, define the property edge and create enclosure, meeting the definition of a “fence”. The Zoning Ordinance requires all structures to meet setbacks based upon the applicable standard for the zoning district and type of structure. The Ordinance does provide for certain specific projections into the setbacks as listed in the Zoning Ordinance. At issue in this appeal is Section 29.402(2) which gives a list of permissible projections: minor projections, architectural projections, and full projections. (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. (xi) Fences as allowed in Section 29.408(2); (xii) Planter boxes/walls at allowable fence heights; The Appellant has requested that the extended piers, posts, and arms be classified as “landscape features,” (landscape accents). However, as currently designed, the fence is one structure, comprised of components that visually and structurally form the fence. For the extended features to be considered landscape accents, they would have to be disconnected from the other components of the fence as a separate and detached structure. Staff has conveyed this to the appellant. The proposed fence varies in height from three feet to greater than twelve feet and does not meet the maximum height of six feet. Therefore, it is the recommendation of the Department of Planning and Housing that the Zoning Board of Adjustment uphold the decision of the Planning Director that the classification of the proposed structure as a “fence” is correct, and therefore, the height of the proposed structure must therefore meet the height restrictions of a “fence” as outlined in the Zoning Ordinance. In this case, the appellant believes the Planning Director has incorrectly interpreted the Zoning Ordinance by determining the proposed structure to be a “fence”. 3 The appellant asserts that the tall parts (extended piers, posts, and arms) of the structure: • are not part of the fence • should be classified as “landscape features” (landscape accents). He states, although “they touch walls”, “they do not include lines of sight or movement in the way a fence would, and certainly not in a way which would represent a danger, given their shape and location.” The appellant also states, “Although I agree that we, in this design and choice of materials, have tried to make these vertical features part of a harmonious whole, they are not in themselves what one would consider a fence nor do they further the purposes of a fence, regardless of what objects they touch.” 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 of the Planning Director that the entire structure including the extended piers, posts, and arms proposed at 802 Burnett Avenue is a “fence” per Section 30.2(30). At issue is not the appropriateness or adequacy of the standards, only if staff made an incorrect interpretation. Chair Leila Ammar called for questions for the staff. Chad Schneider questioned the requirements for a trellis. Ms. Sahlstrom stated that those requirements are listed under the Full Projections Allowed for landscape accents. Planning Director Kelly Diekmann asked if Mr. Schneider’s example was attached to a house. Mr. Schneider gave the example of a deck that had a vertical trellis with horizontal elements. Mr. Diekmann stated if it was attached to the house than it would be treated as the primary structure it would not be an accessory structure. All heights of it would have to meet height and setback requirements if it is attached to the house. When it is freestanding that is when the other allowances are under consideration. Mr. Schneider clarified that an arbor would be free-standing. Mr. Diekmann agreed. Mr. Diekmann stated that anything attached to the principal structure is part of the principal structure. Ms. Ammar stated that they can have a fence, but it would have to be six feet. The Board discussed definitions of accessory features and the setbacks required. Mr. Diekmann stated the Zoning Ordinance covers all structures. The principal structure such as the house has standard front and rear yard setbacks and lot coverage. If there is a structure that is detached from the house, there is a list of when those are allowed to be in the setbacks. There is also an allowance for detached accessory buildings, that would have different setbacks than the main house. The setbacks are dependent upon whether it is the principal building, an accessory building or another type of structure to determine which layer of setback would be applicable. Rob Bowers stated that it is currently non-conforming. Ms. Sahlstrom stated that yes, it is non- conforming because of the garage. Chair Ammar invited the applicant to come forward to speak: Daniel Kolz, 802 Burnett, was sworn in. Mr. Kolz stated that it doesn’t look like a fence. He stated that it is their understanding if the extensions were being built one foot closer or further away than it would meet the Code. If it wasn’t attached to the hip wall, then it would be fine. But with the extensions on the hip wall then it becomes part of a fence. Doesn’t make sense the way the Code is written. Doesn’t disrupt sight lines which is what he would have deemed a reason for the fence code. Mr. Schneider asked the applicant if they had considered a design where the extensions were free-standing. Mr. Kolz stated that yes, they will look at a redesign but didn’t want to give up the physical space. No public hearing. None Discussion by the Board: Mr. Schneider asked if the extensions were removed or freestanding what would be the limits? Mr. Diekmann stated that if they were free-standing, with no roof or close enough together to make another barrier they would be considered landscape accents and there would be no height restrictions. 4 Chair Ammar asked for clarification of full projections. Ms. Sahlstrom stated if the landscape features are part of the fence, then they must meet the fence requirements . Mr. Diekmann stated that once something is affixed to the fence it must meet the fencing requirements so that regulations can be consistent. Chair Ammar stated that the vertical columns would have to be lowered to meet the fencing requirement. Mr. Bowers said the charge before the Board is to determine whether this was correctly interpreted. Moved by Bowers to approve Alternative 1; the Zoning Board of Adjustment can find that the Planning Director correctly interpreted the Ames Municipal Code that the proposed structure at 802 Burnett Avenue in its entity is a fence and that the fence exceeds the maximum height allowed for a fence in the rear yard; Seconded by Schneider Roll Call: Schneider, aye; Ammar, aye; Patton, aye; Bowers, aye Vote on Motion: 4-0. Motion declared carried unanimously. CASE NO. 22-12 Public Hearing on a Request for an Appeal of 3207 Oakland from a Decision of the Zoning Enforcement Officer regarding encroachment of a structure within the front yard. Planner Ray Anderson stated that this is an appeal of the decision of the Planning Director regarding a fence in the front yard. The Director’s decision is that the unroofed structure that encloses an area is determined to be a fence, as defined in section 29.201 in the Municipal Code. A fence is limited to height and location on the property under the Zoning Ordinance. The appellant’s fence exceeds the maximum height of the fence, which is four feet for a front yard. The structure varies in height from six to eight feet. Mr. Thompson (Appellant) who lives at 3207 Oakland asserts that the decision of the Planning Director is an incorrect interpretation of the Zoning Ordinance and that the structure, should not be classified as a fence. The structure is a “landscape accent” that does not have the same height and location restrictions as a fence. Note the appeal is regarding the definitions and standards of the Zoning Ordinance, it is not a property specific exception or variance from a standard of the Zoning Ordinance. City staff viewed the property on August 31, 2022, and a “Notice of Violation at 3207 Oakland Street” was sent from the Department of Planning and Housing to the property owners (Grant and Thressa Thompson) on September 1, 2022. The owners were to respond by September 15 as to the plan to bring the fence into compliance with the requirements. Mr. Thompson has chosen to appeal. Staff determined the structure is a fence which exceeds the maximum height of four feet for a fence in the front yard. If this structure is considered to not be a fence and is a landscape accent as the appellant states, it would still need to meet the requirements of fence limitations due to the design and configuration of the structure. Definitions are as follows: 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. Staff has determined that the constructed object using wood materials with a permanent location on the ground qualifies as a “Structure,” defined in Section 29.201(223). (74) Fence means an unroofed barrier or unroofed enclosing structure, including retaining walls. 5 Staff finds that the structure is a barrier or structure enclosing an area. The purpose of the vertical structure is to enclose, visually and physically, the garden space. This is supported by the appellant’s statements in the email received from Grant Thompson on September 2, 2022, in which he states, “Given the tree cover of the neighborhood and exceedingly strong deer presence this is why I sought to locate the garden where I did and at the height I did” The Zoning Ordinance requires all structures to meet setbacks based upon the applicable standard for the zoning district and type of structure. The Ordinance does provide for certain specific projections into the setbacks as listed in the Zoning Ordinance. At issue in this appeal is Section 29.402(2) which gives a list of permissible projections. Sec. 29.402. SETBACKS 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. The Staff determined that a vertical structure forms a fence, based upon the definition of a fence and it is not a landscape accent. If it were a landscape accent it would still be subject to fence limitations. Under the Municipal Code: Sec. 29.408(2) Fences. (2) Fences. (c) Location and Height. (i) Height in Front Setbacks & Yards. The maximum height of fences in front setbacks and front yards is four (4) feet. This section of the Code identifies the applicable definition of fences in this situation that make up the violation. The appellant feels that the structure is not a fence but a garden trellis which is a landscape accent which falls under Code Section 29.402(c). Staff agrees that a trellis as a stand- alone feature is a landscape accent but when it is connected together, it is subject to fence regulations. Appellant states, “The stipulation in the landscape accents code stating ‘The design and location of accent features shall not have the effect of creating a continuous wall that does not meet fence standards’ is ambiguous since it does not clearly indicate a defined threshold where a landscape accent becomes a continuous wall or fence and would be subject to those regulations.” The definition of “continuous,” as provided by the appellant is, “marked by uninterrupted extension in space, time, or sequence.” The appellant asserts that “The trellis of the structure has two gaps-interruptions-that are approximately four feet wide and align along the north-south axis, as shown in Figure 3 (see Supporting Information), thus it is not continuous.” Staff notes that the structure is connected across the top of the “gap” and the “gap” is only on two sides of the enclosure. The Board must determine that there was an error in the interpretation of the Code to grant the appeal from the Planning Director’s decision. The appellant asserts that the structure constructed in the front yard is a landscape accent under Sec. 29.402(2)(c)(viii) and that the purpose of the structure is to function as a trellis for the raised bed vegetable garden to support plant growth for climbing plants. Furthermore, the appellant asserts that the structure is not continuous and therefore not limited to fence heights. The full projection exception language Section 29.402(2)(c)(viii) was modified at the end of 2020; at which time, the language originally referenced structures such as arbors. Text changes were written to clarify that certain features previously permitted to project fully into setbacks without limitation were not appropriate within setbacks. It was at this time that the language 6 pertaining to “having the effect of creating a continuous wall that does not meet fence standards” was added to address the potential abuse of the allowed landscape accent projections. Staff views the structure in its totality to enclose a defined area as a fence, it is not stand-alone trellises as landscape accents. With the appellant’s interpretation it would make defining structures that enclose areas somehow distinguishable from the basic definition of a fence, which would be inconsistent with the intent of the Zoning Ordinance having specific regulations for fences. In the event that the structure is a landscape accent, it would be subject to the fence limitatio ns. Although “Continuous” is not defined in the Zoning Ordinance, the structure is connected together with a horizontal element that spans each four-foot opening. In its totality the structure has the effect of being a fence, even if there were to be small gaps between components of the structure and is therefore subject to the landscape accent qualification of fence height standards for the front yard regardless of what the structure is defined as. Therefore, it is the recommendation of the Planning 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 unroofed enclosing structure at 3207 Oakland Street is a fence and that the fence exceeds the maximum height allowed for a fence in the front yard and front yard setback. Chair Ammar called for questions for the staff. Mr. Schneider asked for the orientation of this structure on the property. Mr. Diekmann stated it is approximately ten feet from the sidewalk and is in the front setback which is the first 25 feet of the property. He also stated that for any fence in the front yard the maximum height requirement is four feet. Chair Ammar stated that the Board is to decide whether it is or is not a fence. Mr. Diekmann said the decision is based on whether the definition of the fence is applicable. If it does not apply, then as a landscape feature it would still be subject to the fence standard. Mr. Schneider asked for clarification under Section 29.402 that planter boxes would be included in the same height restriction of four feet in the front yard. Mr. Schneider stated that these are clearly planter boxes, but this would still be subject to the same limitations. Rob Bowers reiterated that it is the interpretation that is to be determined not the appropriateness of the definition of the Code. Mr. Diekmann stated that in this case there is some discretion and that it is a two-part argument. First is it a fence, if it is determined to be a fence than the appeal is over. If it is a landscape accent, then the question becomes has Staff applied the fence standards appropriately. Mr. Bowers asked if this could be a text amendment to City Council. Mr. Diekmann stated that any request could be made to Council for a text amendment. The Council didn’t create a process for unique types of structures with the updates to the encroachment allowances. There isn’t a current avenue to decide if this is compatible or not. A variance, which is defined under state law, Staff advised the appellant they wouldn’t be able to prove a hardship on the use of the property. It is possible for them to file for a variance but then all the findings would have to be met. Leah Patton clarified that if the structure was brought down to four feet it would be allowed. Mr. Diekmann stated that it would be an average of four feet to allow for grade of the property. Chair Ammar invited the applicant to come forward to speak. Grant Thompson, 3207 Oakland was sworn in. Mr. Thompson stated that the application of the Code is ambiguous and arbitrary. This is a trellis attached to the garden boxes for the plants. The phrase “is it continuous” that was added in 2020 still is not a sufficient definition. How far apart does the opening need it to be to disrupt the “continuous”. The Code doesn’t address any of this in the language thus making it the determination of the Planning Director, in several instances the Code states “grouping of trellis’”. There is no definition of trellis groupings, continuous, enclosures (in the landscape accents). The clause was added but is not adequate in all situations. Thus, making this ambiguous for residents, city officials and Board members to decide. Since there is not a permitting process for fences or landscape accents then the Code is being applied retroactively. There were 7 numerous emails that were sent in support and five people present in the audience that are supportive. The Planning Code should be standard, distances, feet, heights. This structure is well within the property and does not affect sight lines. It has encouraged neighbor interaction. This has many elements from the Ames Plan 2040. There is text in the plan that includes materials that enhance the visual appearance of the properties and neighborhood, environmental stewardship and sustainability should guide what we do in the 21st century (page 47). Putting a garden in the front yard so that food miles and carbon emissions can be reduced, defines sustainable. Community Character improve design quality seek to expand good design in private development as well as city infrastructure. The goal is to create a positive investment in the aesthetics and image of the city and not just for the sake of density. Embellishment in the surroundings to create interest and whimsy and identity included focus on people and the environment. This is a garden, the language that is being used to deny this is ambiguous. There is no mechanism for residents to do this on the front end. This is an arbitrary ruling. Mr. Schneider asked if the trellis and the planter boxes are connected and is this the case on all four sides. Mr. Thompson stated that there is an opening on the north and south sides that align with the door of the house. There are not gaps on the east and west sides. There is no text information in the Code regarding gaps and regarding whether it is a fence or a trellis it is arbitrary to which one is applied. Chair Ammar questioned the purpose of adding the vertical elements. Mr. Thompson stated that this is for growing plants in a healthy manner. Mr. Bowers asked what was meant by the appellant’s statement “Given the tree cover of the neighborhood and the exceedingly strong deer presence this is why I sought to locate the garden where I did at the height I did.” Mr. Bowers questioned if this was an accurate statement and for an explanation. Mr. Thompson confirmed that this was a true statement. On September 2, Mr. Thompson stated his response to the city on that day explaining the intent was putting the garden where there is the most sun. There is heavy shade in the back. The lot is 600 feet deep and there is just a little bit of sun in the front yard. The deer are all over the neighborhood and need protection. City also built a city garden and installed significant fencing around it. Chair Ammar opened the public hearing. Sarah Nusser, 3312 Oakland, was sworn in. Dr. Nusser stated in her professional life she has dealt with research regulations and are arcane and difficult to understand. Whether she agreed with them or not their purpose was clear. After hearing the discussion at this meeting, it is unclear as to what is being safeguarded. As one of the neighbors and had her yard destroyed by the deer this structure is beautiful and look forward to seeing this grow. It is a place for neighbors to gather. The neighborhood has been stunned by the response of the city. Expressing support for this garden structure to go forth unaltered. Mike Pedersen, 536 Forest Glen, sworn in. This structure is visible from their front porch and window. He has attempted to also start a garden unsuccessfully because of the deer presence. Have enjoyed the process and encourage keeping the structure as designed. Chair Ammar closed the public forum. Mr. Diekmann stated that trellis is not in the zoning ordinance. The perception of a trellis has a wide interpretation. The definition of an arbor is 5’x3’ structure, 15 square feet. A small structure in a yard. Trellis is not in the code and is another version of a landscape accent. We are looking at scale and scope. The other boundary is whether it becomes a barrier as a fence and has a sense of enclosure. He stated that the entire structure is being considered a barrier, so cutting the boards at the top of the gap would not change it as an enclosure and is acting as a fence. It is being used for the purpose of protection and is not just a garden feature. That is where the definition of a fence comes in. Council can decide about gardens but currently they are not exempt from the Code. Fence permits have not been required in the history of the zoning ordinance. Chair Ammar called for questions from the Board for Staff. 8 Chair Ammar asked if the Applicant had final comments. Mr. Thompson stated that if the residents don’t have clear definition from the text it puts them at a disadvantage. Chair Ammar stated to the Board that the first task is to decide whether the Planning Director correctly interpreted that this structure is a fence. The arguments are whether this is continuous. Chair Ammar said that all fences are non-continuous, they have some type of opening. Mr. Schneider stated that under the Code these are defined as planter boxes but would still be subject to the same fencing requirements. Jane Chang, Assistant City Attorney asked if the motion would be to affirm the decision of the Director that this structure has to conform to the fence height standards. Mr. Schneider moved for Alternative #2 The Zoning Board of Adjustment can find that the Planning Director incorrectly determined that the unroofed enclosing structure at 3207 Oakland Street is a fence but are planter boxes. Therefore, agree with the decision as the planter boxes need to be conforming to the fence height standard. Ms. Chang said that this is not an option, which is why she earlier questioned if the motion should be “to affirm the decision of the Director that this structure has to conform to the fence height standards.” Mr. Diekmann stated that this would be declining both options which would lead to administrative review which would result in coming back to the Board. Chair Ammar stated if the Board says this in incorrect and it is not a fence than it goes back to the Director and it will come back calling it a planter box. Mr. Schneider stated that there is clear code that affects planter boxes. Motion dies with no second. Chair Ammar moved for Alternative 1: The Zoning Board of Adjustment can find that the Planning Director correctly interpreted the Ames Municipal Code that the unroofed enclosing structure at 3207 Oakland Street is a fence and that the fence exceeds the maximum height allowed for a fence in the front yard and front yard setback. Bowers seconded the motion. Discussion: Mr. Schneider stated for precedence reasons for the future, planter boxes with an enclosure would also need to meet the fencing requirements. Discussion continued about arbors and planter boxes. Mr. Schneider asked if an arbor was inside a four-foot fenced area would that be allowed. Mr. Diekmann stated that would meet the requirement as they are not connected. There is no limit to the number of arbors you can have inside a fenced area. Roll Call: Schneider, aye; Ammar, aye; Patton, aye; Bowers, aye Vote on Motion: 4-0. Motion declared carried unanimously. ADJOURNMENT: Moved by Schneider seconded by Ammar to adjourn the meeting at 7:24 p.m. Vote on Motion: 4-0. Motion declared carried unanimously. _____________________________ _____________________________ Natalie Rekemeyer, Recording Secretary Leila Ammar, Chair