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Home My WebLink AboutA001 - Appeal of Decision of the Zoning Enforcement Officer ApplicationItem #: Date: 09/10/25 CITY OF AMES DEPARTMENT OF PLANNING AND HOUSING REPORT TO THE ZONING BOARD OF ADJUSTMENT REQUEST: APPEAL OF A DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE STRUCTURE AT 607 AND 609 6TH STREET BEING A PRE - EXISTING TWO-FAMILY DWELLING IN CONTINUOUS USE Tammy Flick, on behalf of Ronald Gibb, the owner of 607/609 6th Street, is appealing the interpretation of the definition of a pre -existing two-family dwelling (see Attachment A – Planning Director’s Decision). The appeal is specific to the defining characteristic of “continuous use”, which is part of the definition of a pre-existing two-family dwelling and allows it to maintain its status as permitted by the Zoning Ordinance. The appellant asserts that the property continues to qualify as a pre -existing two-family dwelling and should retain that status as the structure has not been modified back into a single-family dwelling, despite the long-term vacancy of one of the units. The property is zoned Residential Medium Density (RM), where two-family dwellings are permitted either as pre-existing structures or as new construction meeting certain design and improvement standards. The two-family dwelling at 607/609 6th became pre- existing with changes to the Zoning Ordinance effective April 3, 2024. Previously, two-family dwellings were permitted by right in the RM zone. More information on this amendment is included in the Addendum. Pre-existing two-family dwellings are permitted as long as they are continuously used. By definition, this allows for a one-year period of discontinued use before the pre- existing status is lost. Staff contends that the defining characteristic of continuous use requires some level of occupancy of both units. This may be either that 1) both units are occupied, as shown by utility billing or other documentation, or 2) that there is a valid rental permit (Letter of Compliance) to rent a dwelling as two units. Further, physical alterations to make the structure into a single-family dwelling despite use/occupancy cannot have occurred. A Letter of Compliance for a two-family rental was maintained until 2018 when the property owner chose not to renew. The second unit became vacant at this point. The owner continued to occupy the main unit until recently due to declining health. No evidence that the second unit has otherwise been occupied has been presented. Staffs’ determination for the subject property is that the pre-existing status was lost as the actual use has been discontinued for more than one year. As the Letter of Compliance was already expired when the structure became pre-existing, the allowed one-year period of discontinuance commenced with the adoption of the Ordinance in 2024 and has since passed as of April 3, 2025. However, the appellant indicates no work has occurred to modify the units and that they remain as independent units with no internal connection other than a basement and enclosed porch. This is the basis of their appeal that it should still be considered a pre-existing two-family dwelling (see Attachment B for Appeal Letter). The property is currently for sale and, as part of the marketing of the property, a determination from the Planning Director was requested on if it could still be considered a pre-existing two-family dwelling. The appellant has not applied for new permits for this activity with the City. The appeal is in response to correspondence that the use is not allowed. BACKGROUND: The appellant indicates that the dwelling in question (607 and 609 6th Street) was converted into a two-family dwelling in the late 1980s. There are several trade permits on file from this time that reflect conversion work. The units are stacked, with an upper and lower unit. They have separate entrances off an enclosed front porch. They have their own private kitchens and baths, and separate entrances from the units to the dwelling’s basement. They have no other internal connections than the enclosed porch and basement. The original stairway connection between the floors remains framed in. Rental records show that the property became a registered rental in 1998, shortly after the current owner purchased the property. The owner occupied one of the units. The second was rented until 2018. BASIS OF DEPARTMENT DECISION: Planning and Rental Inspection staff are frequently asked questions about rental properties that may have previously been a two-family dwelling, and whether they can be converted or reestablished as a two-family dwelling. As a result, in June of 2017, a new definition of pre-existing two-family dwellings was introduced: Dwelling, Two Family Pre-existing: A two family dwelling designed and built as, or converted to a two-family dwelling, pursuant to a zoning and building permit as evidenced by approved building/zoning permits on file with the Chief Building Official. However, a home subject to a retroactive conversion permit does not meet the definition of being a two-family dwelling pre-existing. The term “pre-existing" was also defined with this amendment, which may apply to two- family dwellings as well as single-family attached dwellings and apartment dwellings: Pre-existing means a legally established use that was a permitted use existing on a site at the time of adoption of Ordinance No. 3557, Enacting a New Chapter 29 (Zoning) in the year 2000, and remaining in continuous use since that time. For purposes of this definition, ‘continuous use’ would include a period of discontinuance of the permitted use when that period is for less than one year. Based on these definitions, pre-existing two-family dwellings may continue indefinitely provided they meet two main criteria: • They are continuously used with up to a one-year period of discontinuance. • They were established through a zoning or building permit and not a retroactive conversion permit. A copy of the 2017 report to City Council that accompanied the Ordinance is included as Attachment C. Staffs’ decision is that the continued use necessary to maintain pre-existing status requires actual occupancy of the structure. The definition of pre-existing references the current use of the units, rather than design or an intention for future use. This is intentional and modeled after the allowances for non-conforming uses. Per the 2017 staff report on the amendment introducing definitions for pre -existing and pre- existing two-family dwelling: Under the current language, a two-family home, if determined to be pre- existing physically in 2000, may stop being rented for any length of time and could be reestablished as two rental units. Staff believes that in most neighborhoods reestablishing a duplex would be a surprise to a neighborhood and would affect the availability of homes that could provide for home ownership versus rental investment potential. The proposed amendment narrows the meaning of the phrase [pre-existing] to clarify the intent of the standard for pre-existing as similar to a traditional non- conforming use that is only permitted if it has been continuously used as a two - family home, and that if the use has ceased, it is not eligible to be reestablished despite its use in 2000 . . . The proposed amendment preserves the intent of allowing established two-family homes as permitted uses if they are continually used as a two family home, but ensures that their reuse is consistent with current expectations and that unexpected two - family uses do not appear within established neighborhoods (emphasis added). Further, the report clarifies that having an active rental license or otherwise evidence of two families residing in the two units are defining characteristics of being continuously used: Additionally, standards would be added to reflect that if a two -family dwelling ceases to be used as two dwelling units for more than one year, it cannot be reestablished as a two-family unit . . . Discontinuance would mean occupancy of the structure as a single dwelling unit, expirations of Letter of Compliance for use of the property as a two-family rental property, or physical alterations to the structure that make the structure a single- family dwelling (emphasis added). In summary, staffs’ determination is that continuous use is more than maintaining physically separate units. A Letter of Compliance or actual occupancy of both units is necessary to maintain pre-existing status. For the subject property, only occupancy of one unit has been maintained and the Letter of Compliance expired in 2018. Relevant Ordinance sections related to this determination are as follows: Sec. 29.702. "RM" RESIDENTIAL MEDIUM DENSITY. Sec. 29.201. DEFINITIONS. (69) Dwelling, Two-Family means any building consisting of 2 dwelling units, each designed for separate and independent occupancy. (70) Dwelling, Two Family Pre-existing: A two family dwelling designed and built as, or converted to a two-family dwelling, pursuant to a zoning and building permit as evidenced by approved building/zoning permits on file with the Chief Building Official. However, a home subject to a retroactive conversion permit does not meet the definition of being a two-family dwelling pre-existing. (177) Pre-existing means a legally established use that was a permitted use existing on a site at the time of adoption of Ordinance No. 3557, Enacting a New Chapter 29 (Zoning) in the year 2000, and remaining in continuous use since that time. For purposes of this definition, ‘continuous use’ would include a period of discontinuance of the permitted use when that period is for less than one year. BASIS FOR APPEAL OF DECISION: The appellant’s ability to appeal a decision of the Planning Director is given in Chapter 29.1403(8)(a) as an aggrieved party. The appellant believes the Planning Director has incorrectly interpreted Chapter 29 (Zoning) and specifically that the structure is no longer a pre-existing two-family dwelling as it has not been in continuous use. The appellant asserts that the structure has not been modified and continues to have two separate, independent units, maintaining it in continuous use and thus its pre-existing status. The appellant notes the home is also assessed as a duplex by the Assessor. Staff notes that the Assessor’s records do not reflect compliance with the Zoning Ordinance or actual use of a property. They are limited to a property’s design and condition. DETERMINATION BY THE ZONING BOARD OF ADJUSTMENT: 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 by the Planning Director that the appellant has not maintained the property in continuous use to maintain its status as a pre-existing two-family dwelling. At issue is not the appropriateness or adequacy of the standards, only if staff made an incorrect interpretation. ALTERNATIVES: 1. As an appeal, the ZBA would need to approve the appeal and overturn the Director’s decision with three affirmative votes, thereby: A. Approving the appeal and find that the Planning Director erred and that the appellant is able to use the property as a two-family dwelling as it has been in continuous use and maintains its status as pre-existing. 2. The ZBA may continue the item and request additional information. 3. The Director’s decision will stand as is with ZBA denial of the appeal or with less than three votes to overturn the decision. STAFF COMMENTS: The appellant asserts that there is an error by the City of Ames administrative official in determining the meaning and interpretation of the Zoning Ordinance in the enforcement of Chapter 29 of the Ames Municipal Code. Specifically, the defining characteristic of continuous use for a pre-existing two-family dwelling. The applicant asserts that as the two independent units have not been modified into a single-family home, it should still be considered pre -existing. Design is only one factor necessary to establish continuous use. The units must continue to be separate, b ut also in actual use. Use must be occurring as evident from occupancy or a Letter of Compliance, and it must not have been discontinued for more than one year. This is based on the definition of pre- existing and the discussion of defining characteristics that occurred with the adoption of the definition in 2017. If the Director’s decision stands and the appeal is not approved, the structure will be allowed to be used as a single-family dwelling. This means that the occupancy will be limited to one family under the Zoning Ordinance and as allowed for one unit based on the number of bedrooms under the Rental Code. This allows for three occupants total rather than three occupants per unit as a two-family dwelling. Therefore, it is the recommendation of the Planning Director that the Zoning Board of Adjustment deny the appeal. ADDENDUM Pre-Existing Status The subject property is zoned Residential Medium Density (RM). Two-family dwellings were allowed by right in RM prior to a 2024 amendment to allow new construction two- family dwellings in all residential zoning districts. Previously, two-family dwellings were only permitted in medium and high-density zoning districts. New construction of two-family dwellings are subject to design and compatibility standards in Section 29.410(2) of the Municipal Code to ensure newly constructed two- family dwellings are compatible with existing neighborhoods. Conversion of existing structures into two-family dwellings is not allowed, only new construction that conforms to new standards. As a result, existing two-family dwellings previously permitted by right became “pre- existing” as defined within the Zoning Ordinance. As pre-existing homes, they are not subject to new design standards. From: Diekmann, Kelly <kelly.diekmann@cityofames.org> Sent: Friday, August 22, 2025 9:04 AM To: Kristen Tibben <kristen@friedrich-realty.com>; VanMeeteren, Sara <sara.vanmeeteren@cityofames.org> Subject: RE: 607/609 9th Hi Kris, the zoning for the site allows “Pre-existing” two family homes. It deﬁnes pre-existing two family homes as those that were originally built as two family homes or permitted conversions that have been continuously used as two dwelling units. From our records it looks like the building was converted to two units in the 1980s. I am stuck with issue of continuously used. I have not seen any records supporting that it has been used as two dwellings for many years. Once it is not used as two dwellings it is limited to being a single-family home. Granted the Code does provide great guidance on this interpretation for this situation, it is not a common situation. However, based on what I understand about the property I would say zoning only allows a Single-Family Dwelling. The owner could appeal to the ZBA with information that they believe supports that is in fact two units and continuously used as such and the ZBA could determine I erred in my interpretation. If they want to go that route the next ZBA meeting is scheduled for Sept. 10th. I would need to have an appeal application by August 27th to meet noticing requirements. Otherwise, it would have to go to a later ZBA meeting date. If they want to go this route let us know and I will have a planner provide the application and describe the process in more detail. Kelly Diekmann Planning and Housing Director 515.239.5400- main| 515.239.5181 direct| 515.239.5404 -fax kelly.diekmann@cityofames.org | City Hall, 515 Clark Avenue | Ames, IA 50010 www.CityofAmes.org | ~ Caring People ~ Quality Programs ~ Exceptional Service ~ Effective Date: November 27, 2024 5 Appeal of a Decision of the Zoning Enforcement Officer Supporting Information (This form must be filled out completely before your application will be accepted.) As provided by Section 414.12 of the Iowa Code, Section 29.1403(7)(a) of the Zoning Ordinance grants power to the Zoning Board of Adjustment to hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of the Zoning Ordinance. In order to facilitate review of this application for an appeal, the appellant must provide sufficient facts to support the appellant’s position. (Note: Additional facts may be attached on a separate sheet if sufficient space is not provided.) ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ My father is a retired ﬁreﬁghter from the Ames ﬁre department and spent the majority of his life in the Ames community. He was the ﬁrst ﬁreﬁghter on the Ames department to obtain his EMT certiﬁcation and also worked for Mary Greeley as one of the ﬁrst EMTs and ambulance crew. My father’s home was converted into a duplex in the 80s. The home was modiﬁed to have two completely separate entrances to the units and does not allow internal access to the other unit. The modiﬁcation was made in order to provide extra income, but also provide privacy for both parties. The home is being sold in order to ﬁnance the ongoing cost of my father‘s healthcare and long-term care facility expenses. The units are accessed through a front porch that has separate doorways and entrances to each unit. It is constructed as a fully separate unit that does not have internal access to the other unit. The main unit to the right when walking into the porch was my father’s residence the entire time. The home is still assessed as a duplex on the assessors site. When renewal came around for the duplex around 5 to 7 years ago, my father‘s health was starting to decline and he failed to keep the rental license current. Due to my father’s increasing health issues and dementia, he is now residing in a long-term care facility and the house is vacant. We have gone through the proper channels to get the LOC current and have been in regular communication with the city’s planning and housing director through our real estate agent, Kristin Tibben with Friederich Iowa Realty. It was important to us to have all of the facts ahead of time for the future owner of this two unit structure. Through this appeal we respectfully ask you to please reconsider reinstating this home as a duplex, knowing fully that the purchaser will have one year to complete the pre-inspection repairs. The homes value could signiﬁcantly be reduced as a single-family home listing due to no access to the upstairs unit from the other unit. This home being utilized as a duplex also aligns with the cities goals of increasing affordable housing in Ames. Thank you for your consideration. Tammy Flick 22 ITEM # 47 l Staff Report ZONING TEXT AMENDMENTS FOR DEFINITIONS OF PRE-EXISTING" AND "TWO-FAMILY DWELLING, IF PRE-EXISTING" April 11, 2017 BACKGROUND: As part of the adopted "Planning and Housing Department Work Plan Priorities," the City Council directed that staff prepare a text amendment to add definition to the meaning of "Two-Family Dwelling, Permitted, Y, if pre-existing" and determine how to address previous single-family conversion homes that are non- conforming. For consistency, it is also necessary to define the term "pre-existing," since it applies to two-family dwellings, single-family attached dwellings, and apartment dwellings, as found in Table 29.703(2), Urban Core Residential Medium Density UCRM) Zone Uses of the Municipal Code. Planning and Rental Inspection staff are frequently asked questions about a single- family rental property that may have previously been a two-family dwelling, and whether it could be converted or reestablished as a two-family dwelling. Most commonly this is a question at the time of purchase of a home by a potential investor, or at the time of listing of the home by a realtor. Often the records for these properties are scarce, which makes it difficult to provide consistent interpretations. Interpreting current.Zoning Ordinance language that relies upon the phrase, "Yes, if pre- existing" for two-family homes is confusing, since we are now 17 years past the time when the ordinance was adopted and it is difficult to determine how the intent for the wording of "pre-existing" was intended to be applied. Under the current language, a two- family home, if determined to be pre-existing physically in 2000, may stop being rented for any length of time and could be reestablished as two rental units. Staff believes that in most neighborhoods reestablishing a duplex would be a surprise to a neighborhood and would affect the availability of homes that could provide for home ownership versus rental investment potential. The proposed amendment narrows the meaning of the phrase to clarify the intent of the standard for pre-existing as similar to a traditional non-conforming use that is only permittedif it has been continuously used as a two-family home, and that if the use has ceased, it is not eligible to be reestablished despite its use in 2000. The amendment addresses former single-family conversions, defining them consistent with the previous 1999 standards as not a two-family home. The proposed amendment preserves the intent of allowing established two-family homes as permitted uses if they are continually used as a two family home, but ensures that their reuse is consistent with current expectations and that unexpected two-family uses do not appear within established neighborhoods. r s S Zoning Regulations in 1999. Prior to the adoption of the current Zoning Ordinance Chapter 29) in 2000, there were a number of different residential zoning districts that had various standards for one and two-family homes. Each district had limitations on construction of new two-family homes or on the conversion of one-family homes to two- family homes. Many of these areas were rezoned to RL or to UCRM as part of the 2000 rezoning. One of the most prevalent zoning districts for single-family homes was R1-6 (Low- Density Zoning District). This district treated two-family dwellings as a permitted use if constructed or under construction prior to November 1, 1983, and if originally designed and built pursuant to a zoning and building permit as a two-family dwelling, and not a single-family dwelling converted to a two-family dwelling as evidenced by the plans on file with the Chief Building Official. Two-family dwellings also were a permitted use in "R-2" (Low-Density Residential) districts, which were established to accommodate single and two family dwellings within new subdivisions. Even there, however, no permit could be issued to convert a single- family structure to a two family use within existing areas, except by means of a Special Use Permit issued by the Zoning Board of Adjustment. In 1985, the City Council adopted zoning regulations to allow for the retroactive conversion of single-family dwellings that had been used for an additional rental unit. This was done in response to numerous buildings and parts of buildings that were rented as dwelling units which were built, remodeled, converted and occupied at various times, over many years, without proper City permits in violation of various Codes and Ordinances, including zoning regulations. Approximately 370 properties were subject to the retroactive conversion permit process in the 1980's. The retroactive conversion permit process laid out a process for making a unit legally nonconforming and to receive letter of compliance for rental of the units. Many of those dwellings were in non-conformance with zoning regulations pertaining to lot area, setbacks, lot frontage, or building height. They were made lawful under the zoning regulations of Chapter 29 if the owner of the premises obtained a retroactive conversion permit, pursuant to Section 13.39 (Retroactive Conversion Permits) of the Municipal Code. However, it was clear in the zoning ordinance that these uses were in fact non-conforming and could not be reestablished if destroyed or discontinued. Such provisions stated that: "If any such nonconforming use of a structure or land and structure in combination ceases for any reason for a period of one (1) year, any subsequent use of such structure shall conform to the district regulations for the district in which such structure is located. When vested nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall terminate the authorization for the nonconforming use of the land." Proposed Definitions for "Two-Family Dwelling Pre-existing" and "Pre-existing" The following proposed definitions for "Two-Family Dwelling Pre-existing", and "Pre- existing" address uses that existed prior to adoption of certain zoning districts from 2000, but did not fit within the "Use Categories" for the particular new districts. 2 The pre-existing term classified uses as a permitted use on existing sites even if a new site could not have such a use. This was then distinguished from a traditional nonconforming use by the phrase "if pre-existing." Option 1- Proposed Definitions of Pre-existing A. Two-Family Dwelling Pre-existing: A two-family dwelling designed and built pursuant to a zoning and building permit as a two-family dwelling as evidenced by approved building/zoning permits on file with the Chief Building Official. However, a home subject to a retroactive conversion permit does not meet the definition of being a two- family dwelling. The proposed definition recognizes that any property lawfully constructed as a two- family dwelling or converted to a two-family dwelling with a building permit or by special use permit would meet this definition. However, it specifically excludes retroactive conversions, which traditionally did not enjoy the benefit of being classified as a permitted use. Additionally, standards would be added to reflect that if a two-family dwelling ceases to be used as two dwelling units for more than one year, it cannot be reestablished as a two-family unit. This prohibition would assist in ensuring properties that may in 2000 have been used as two units but ceased to be such by choice of the property owner could not now become a new two-family dwelling. Discontinuance would mean occupancy of the structure as a single dwelling unit, expirations of Letter of Compliance for use of the property as a two-family rental property, or physical alterations to the structure that make the structure a single-family dwelling. B. Pre-existing The term pre-existing is a term used for other uses in the Zoning Ordinance, such as social service providers, apartments and single-family attached. This is most commonly an issue in R-L, UCRM, RM and some commercial zoning districts due to the significant changes in zoning standards in 2000. Pre-existing would be defined as follows: A legally established use that was a permitted use existing on a site at the time of adoption of Ordinance No. 3557, Enacting a New Chapter 29 (Zoning), in the year 2000. However, if the use was to cease for more than one year, it could not be reestablished. This definition clarifies at what point in time a use must have existed and that it must be continuously used to have the benefits of being pre-existing rather than nonconforming. Option 2- Remove the term "pre-existing" The term pre-existing has additional benefits for property owners compared to the application of traditional nonconforming use standards that exist in Article 3 of the 3 Zoning Ordinance. Typically, a nonconforming use cannot be reestablished once it has been discontinued, and there are limits on the changes or expansion of the use. The phrase pre-existing has excluded such uses from the limits of Article 3. As an alternative to defining the term pre-existing, the term could be deleted from the Zoning Ordinance in its entirety (for all uses) and the City could apply its nonconforming use standards. Planning and Zoning Commission Recommendation: The Planning and Zoning Commission reviewed this text amendment at their meeting on February 15, 2017, and voted 4-0 to support the adoption of proposed definitions for Two-Family Dwelling Pre-existing, and for "Pre-existing." Staff Comments: If City Council determines that the proposed Option 1A and 1 B definitions for "Two- Family Dwelling Pre-existing," and "Pre-existing" appropriately!ddres ss concerns identified in the administration of zoning regulations for such-uses-direction should be provided to staff for preparation of a draft ordinance to ma,eAthose changes. Staff would then publish notice for a public hearing on the amendrnenf for May 9, 2017. Staff could also incorporate any changes directed by City Cou icil prior to publishing t,e public hearing notice for a draft ordinance. If the City Council prefers Option 2, staff will then prepare a text amendment that removes the phrase pre-existing from the use table of all base zones. Staff would also modify Article 3 as necessary to account for clarifying when a two-family dwelling or conversion has been discontinued and cannot be reestablished. Staff would then provide for notice for public hearing on the proposed changes as a draft ordinance. 4