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HomeMy WebLinkAbout~Master - Zoning Board of Adjustment Minutes 3-11-2015MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF ADJUSTMENT AMES, IOWA MARCH 11, 2015 The Ames Zoning Board of Adjustment met, pursuant to law, in regular session at 7:00 p.m. on March 11, 2015, in the Council Chambers of City Hall with the following members present: Susan Bradbury, Shelby Ebel, Michael Davis, Sandra McJimsey, and Matthew Koehler. Staff members Charlie Kuester, Karen Marren, Ray Anderson and Jessica Spoden were also present. Chairperson McJimsey requested that item three be heard before item two. Ms. McJimsey asked if there were any objections by the other Board Members. Hearing none, and as it is her prerogative to reorder the agenda, Ms. McJimsey announced that item three would be heard next. Moved by McJimsey, seconded by Koehler to re-order the agenda. APPROVAL OF MINUTES: Moved by Bradbury, seconded by Davis to approve the minutes of the meeting of February 11, 2015, as written. Vote on Motion: 5-0. Motion declared carried unanimously. CASE NO. 15-02 APPEAL – Duane Huffer and Angela Doss, 2124 Torrey Pines Road Appeal from a decision of the Zoning Enforcement Officer on the property located at 2124 Torrey Pines Road* City Planner Karen Marren noted that after receiving complaints regarding the installation of a non-compliant fence on the property at 2124 Torrey Pines, an inspection was conducted by Planning staff and the City’s Community Codes Liaison on July 3, 2014 to determine if a notice of violation was needed to address the fence. It was determined that the fence was being installed in violation of the height and setback allowances under Section 29.408(2)(c) of the Ames Municipal Code. A Notice of Violation letter was sent on July 8, 2014 notifying the property owner of the code allowances for fences within setbacks abutting street rights of way and the corrective action needed to be in compliance with the code. A follow up inspection date of July 23, 2014 was noted for verification of fence compliance. On July 15, 2014 a letter was received by the City of Ames Legal Department from the property owners noting their disagreement with the fence code interpretation of staff and as such the violation would not be corrected prior to the follow up inspection date. The site inspection on July 23, 2014 confirmed that the violation had not been corrected. The letter to the City of Ames Legal Department was referred to the Zoning Enforcement Officer for review by Inspections and Planning Divisions. On December 19, 2014 a second Notice of Violation letter was sent to the property owners notifying them of their opportunity to appeal. Ms. Marren said that the applicant feels that there are two exceptions noted for fence height and setback for a property line abutting a right-of-way. And that the use of a semicolon is indicating them as two separate and independent statements. Therefore, being his property meets Subsection A of Section 29.408 (2)(c)(iii). With this interpretation of the code, the five-foot setback and the landscaping would not be required for a six foot fence along the rear property line abutting the right-of-way, unless the lot abuts a front yard of a neighboring property along the same frontage. Staff believes the argument goes against the intent of the 2004 amendment to the fence code, which was approved to eliminate the “blank wall” issue of six -foot fences abutting public rights-of-way, without any setback or landscaping. It would also mean that by simply setting a fence back five feet, you could have six-foot fence abutting another person’s front yard. This would infrequently occur for a through lot, but could occur with a corner lot more frequently. In addition, the applicant points out in the appeal documents and gives examples of other properties in the city with fences in similar locations to a height of six feet. This does not demonstrate a different interpretation of the reading of the standards that have been described in this report. Being the city does not issue construction permits for fences, staff is unable to determine when fences are installed, unless a complaint was received by the city during the actual installation of such fence. At the time of installation of a fence, as in this instance, if a complaint is received, then a violation notice is sent to the property owner to correct such violation. Being the fence codes have evolved over time, staff is also unable to determine, looking at the photos submitted by the applicant, which code may have applied to any specific fence. Therefore, staff is unable to say whether any of the fences noted are in violation of the fence standards. Angela Doss, 2124 Torrey Pines Road, expressed that they are appealing the decision for several reasons. She noted the website has a question and answer section that asks people to contact the City prior to building fences because the ordinance is confusing to understand; she feels this is a problem because the public should be able to read and understand the ordinance without having to call the city for help. She also stated that she believes staff is fully leaving out Subsection A and that the use of the semicolon is indicating them as two separate and independent statements. Ms. Doss also feels the City has an enforcement issue for fences and believes there should be enforcement of the fence code across the City. She suggested that the City update the ordinance and recommended the City not enforce the ordinance until it is updated. Ms. Ebel inquired if Ms. Doss or Mr. Huffer tried to contact Planning and Zoning staff for help to understand the ordinance. Ms. Doss noted that they did not because they believed their interpretation of the ordinance to be correct. Ms. Ebel also inquired when the applicant noted the section on the website that had an area for questions and answers for fences. Ms. Doss replied that she did not see that section of the website until after the fence had already been installed. Melissa Serio, 63201 Trail West, expressed that her parents live at 2118 Torrey Pines Road; the neighboring home to the applicant’s home. She agreed with Ms. Ebel’s point that if she had been confused with the interpretation of the code, she would have called the Planning Department for assistance and clarification prior to building the fence. Ms. Serio also noted that Chapter 29 of the code had similar points as used for the fence code section; she expressed that she would’ve questioned if there were other instances of and/or that were used inconsistently throughout the code. Ms. Serio believes work on the fence should’ve stopped until the issue was resolved with the City. Ward Leek, 2118 Torrey Pines Road, noted that it is obvious just looking at the fence that it does not meet code and hopes that is where the Board’s decision ends up tonight. Charlie Kuester, 515 Clark Avenue, noted that staff only responds to complaints of fences that come from residents and that staff tries to take a proactive approach to responding to these fence complaints. Ms. Ebel asked Ms. Marren about the rules in the code and ordinances for fences prior to 2000. Ms. Marren noted that the code prior to 2000 had different language for fencing for different districts. Ms. Spoden informed the Board that Council has directed staff to enforce the code on a complaint basis and expressed that an investigation is typically done on non-compliance by the Community Codes Liaison. Ms. Doss said that their reasoning behind the height of the fence they installed was so that their dogs would be unable to jump over the fence or potentially harm others who approached the fence to pet their dogs. She explained that they received a letter from the City after the concrete footings were already in place; they never received a phone call. In conclusion, she feels the ordinance is clear that there are two separate exceptions. Therefore, their fence complies with Subsection A and is not in violation of the code. Ms. Ebel sought clarification and inquired if she was correct that footings were done in July when they received the first letter from the City, but that construction of the fence itself had not begun at that point. Ms. Doss noted that Ms. Ebel was correct. Ms. Marren explained that the applicant first received a letter stating what the code is, how they were in violation, and that the City would be doing a follow up inspection in the upcoming months. The applicant responded with a letter back to staff noting their disagreement on staff’s interpretation of the code. And then, a second letter was sent back to the applicant describing the appeal process that they could take part in since their fence was still in violation of the code set by the City of Ames. Ms. Marren stated that the City does not do active enforcement of fences; there is no permit, license, or application required for a fence. The procedure set out by Council is that staff only responds to complaints by fences that are received. Ms. McJimsey asked Ms. Spoden if she had any guidance for the board on general punctuation rules that are typically followed within a code. Ms. Spoden noted that in formal writing, including the drafting of statutes and ordinances, it is typical practice to use a semicolon in place of a comma when listing items. Unlike a comma, a semicolon may join two independent clauses without a conjunction. Looking at the fence code section in particular, the two items, (a) and (b), do not necessarily require an and/or; although, a conjunction could help to clarify the situation. Ms. Marren informed the Board that the applicant has two corrective options for the fence in order to meet staff’s interpretation of the code. Mr. Davis noted that looking over the code for the first time himself, he thought that Subsections A and B were required and that the code pretty clearly stated that both applied to comply with fencing code. Ms. Bradbury concurred with Mr. Davis stating that typical standard for interpreting a zoning code is that a semi colon is and can be used to replace a comma when listing more than one item. In conclusion, Ms. Marren explained that City staff has reviewed the appeal and believes that the Zoning Enforcement Officer made the correct interpretation of Section 29.408(2)(c)(iii) in determining that a 6-foot fence abutting a right-of-way must be setback 5 feet from the property line and landscaped in accordance with Section 29.408(2)(c)(iii). Moved by Ebel, seconded by Bradbury to deny ORDER NO. 15-02, thereby denying the appeal of a decision of the Zoning Enforcement Officer regarding fences, Section 29.408(2), on the property located at 2124 Torrey Pines Road. Vote on Motion: 5-0. Motion declared carried unanimously. CASE NO. 14-14 SPECIAL USE PERMIT – Heartland Baptist Church, 3333 Stange Road Public Hearing on application for a Special Use Permit on the property located at 3333 Stange Road* City Planner Charlie Kuester displayed a location map and site plan for the project. The applicant is requesting to construct a church, accessory building, gazebo, and recreation fields on a 21.3 acre site at 3333 Stange Road. George Washington Carver Avenue bounds this site to the west, Bloomington Road to the north, and Stange Road to the east. Northridge Village, a continuum of care facility, lies to the south. This site was rezoned to FS-RL. The project consists of a 30,000 square foot church building and associated parking area. Access to the site will be limited to one driveway from Stange Road. The church will have two stories with a steeple and will house a 498 seat sanctuary, classrooms, and offices. There will be various outdoor recreational areas, including a softball field, soccer field, two basketball courts, and a picnic shelter/gazebo with seasonal restrooms. There is also a 2,400 square foot maintenance building/garage. It will have an office, a seasonal restroom, and unheated storage. Ms. McJimsey noted that page five of the staff report listed several conditions that the church must oblige to and inquired what makes those items binding for the church to follow through on completing those conditions. Mr. Kuester explained that the sidewalk and shared use path are a part of the site plan and that the applicant won’t receive their occupancy permit from the Inspections Department until those items are met because everything shown on the site plan must be completed before issuing any final permits. Ms. McJimsey stated she noticed there are no plans for outdoor lighting because the church only plans to have activities during the day and inquired what the applicant would have to do if they choose to get lights for the playground areas and surrounding courts. Mr. Kuester replied that if the applicant decides that they want outdoor lighting, they would have to return to the board for a Special Use Permit. Ms. Bradbury questioned if there would be any lighting around the parking lot. Mr. Kuester informed the board that the parking lot would meet the City code for lighting in the parking lot, as well as the requirements for the dark sky requirements code, as set by the City. Mr. Koehler noted there is only one access out of the lot and wondered if traffic would be a problem with the high amounts of traffic that would be in and out of the lot at one time. Mr. Kuester noted that the access was discussed in Development Review Committee and it was decided that there would only be heavy traffic in the lot a few hours a week, so one access would suffice for the parking lot. Ms. Ebel inquired if there was discussion surrounding a second access to Stange Road. Mr. Kuester said there was discussion of another access there; however, the City Traffic Engineer was satisfied with one access in and out because traffic in the lot would be very sporadic. Randy Abell, 2713 Northridge Circle, Senior Pastor at Heartland Baptist Church expressed his intent to create a building that is beautiful, nice, and friendly to the community He noted that their services are staggered enough that traffic out of the lot shouldn’t be a problem, especially since Sunday morning is a very quiet time of day for traffic. Ms. Bradbury inquired when service times are and how they are staggered. Mr. Abell informed the board that services are at 8:30 a.m. and 11 a.m. with Sunday school at 9:30 a.m. Ms. Bradbury also wondered how many people belong to the church and Mr. Abell said that they have 400 active members and 237 parking spaces; the sanctuary holds 500 people. The site plan, project description, applicable law, and findings of fact and conclusions were reviewed in detail by Mr. Kuester. He explained that City staff has reviewed the request and recommends that the Board approve the request for an amended Special Use Permit with the understanding that all easements for public utilities on site will be provided prior to the City issuance of a certificate of occupancy and that an easement. Moved by Davis, seconded by Ebel, to adopt ORDER NO. 14-14, thereby approving the request for a Special Use Permit to allow the construction of Heartland Baptist Church at 3333 Stange Road, based on the findings of fact and conclusions. Vote on Motion: 5-0. Motion declared carried unanimously. CASE NO. 15-03 VARIANCE – Steve O’Rourke, 1515 Florida Avenue Amendment to the Conditions of Approval for a Variance granted to allow the construction of self-storage facilities on the property located at 1515 Florida Avenue* City Planner Ray Anderson displayed a location map and site plan for the project. The subject property is located in the northwest portion of the community two blocks west of North Dakota Avenue and 2.5 blocks north of Ontario Street. The site includes approximately 2.4 acres of primarily vacant land, except for an existing storage building in the northeast corner of the site. This is the only vacant property in an area that used to be a separate community called “Ontario.” The location is in what was the business district in the center of the community. The appearance of the building to the south of the subject property is reminiscent of the typical commercial storefront of the early 20th century. To the west and southwest of the site are properties zoned as “RH” and occupied by apartment buildings. The area is now characterized by several diverse uses. Mr. Anderson explained that when the current owner acquired the property it was zoned general industrial. The owner spent time and money cleaning up the property, fixing grading, and drainage problems and improving the one storage building on the site. Self-storage was, and still is, a permitted use in the General Industrial zoning district, but the rezoning to Neighborhood Commercial eliminated that possibility. Therefore, in 2010, the applicant sought and was approved for a variance to allow construction of a self-storage facility. The applicant has constructed self-storage facilities on the site, in accordance with a Minor Site Development Plan, and consistent with the modified conditions for the use variance, approved on March 12, 2014, with the exception of the Arborvitae seedlings the applicant has planted along the south and west property lines. Mr. Anderson noted that the applicant is requesting that the Board approve amendments to the conditions of the use variance for this property, granted on March 10, 2010. The proposed amendments would allow the planting of Arborvitae seedlings, instead of the size and type of plants specified in the conditions of approval for the variance. The following “conditions” for approval of the variance, granted in 2010, would need to be amended for the Board to approve the applicant’s request. The two conditions address landscaping requirements along the south and west property lines. Steve O’Rourke, 5300 Hickory Hills Drive, informed the Board that his property was zoned industrial 20 years ago; however, at some point it was re-zoned to neighborhood commercial property which brought him to the Board five years ago for a variance. He expressed that he wanted to build the automated mini storage system for the convenience of the people and to offer the best security to ensure that people feel safe when they are on the property. He also believes he has added a quality project to the area and does not feel that the height of the bushes are going to make or break the project since there are no homes around the property, only apartments. Mr. O’Rourke noted that he had a very difficult time finding the appropriate plants to put in on his property because of the time of the year that it was and what was available at the nurseries at the time, which was late summer. He planted Arborvitae seedlings that will grow above six feet; however, currently the plants are only about two inches tall. It was his understanding that the plants had to grow to be at least six feet tall, not be six feet tall when planted into the ground. He expressed that he has put a lot of hours, water, and energy into the plants that he currently has and that he would just like to be able to keep growing the plants that he has already put in. Ms. Bradbury inquired if the irrigation system had been put in yet that was discussed and agreed upon in the previous variance. Mr. O’Rourke said that it has not yet been put in; however, he has implemented his own system of watering the plants regularly. Ms. McJimsey questioned how long it might take for the plants to reach six feet and Mr. O’Rourke replied that it would most likely take five to six years. Ms. Ebel stated that she felt it was pretty clear in the Decision and Order what the conditions were for the plants. Mr. Anderson noted that the landscape site plan that was approved also stated that the bushes be at least six feet tall at the time of planting; six feet was the minimum requirement. Ms. Spoden also clarified that a Decision and Order is a legally binding order and that any conditions listed in a Decision and Order trump an approved site plan. Ms. Bradbury asked if Mr. O’Rourke had anything in writing from the neighbors giving their support and he did have several neighbors supply signatures giving their support. Notices were also sent to all neighbors within 200 feet and no concerns were expressed or brought forward to the City by any of the neighbors. Mr. O’Rourke inquired why he was required to put in trees that were a minimum of six feet in height when the minimum requirement is three feet. Mr. Anderson informed the Board that three feet is actually the minimum for plants in any zoning area in order to allow that intense of a use on the property. Setting a height condition for the plants was a requirement the Board set in order to help the property fit in because he is using an industrial use building in a neighborhood commercial zone. He also noted that when Mr. O’Rourke’s property was re-zoned, the City of Ames went above and beyond what the state of Iowa requires as far as notifying people and informing them of properties that might be re-zoned by holding multiple hearings within various neighborhoods, displays/maps showing the new zones, radio interviews, workshops open to the public, press releases, and more. Mr. Koehler asked Mr. O’Rourke if it would be a financial hardship for him to take the bushes out and replace them. Mr. O’Rourke said that it would be a waste of time and money but that he would complete the task if that was the outcome. Mr. Koehler stated that he drove by the site earlier in the day and said that he couldn’t see anything growing from the road and the plants were not visible at all. Ms. Ebel agrees that the Arborvitae trees might be a better fit than the Burk Eastern Red Cedar trees because of the width that they grow, but she doesn’t feel the Board can give in on the height requirement of the trees because there is such a large discrepancy/difference between the height of the two varieties. Mr. Koehler noted that he had driven by the site earlier in the day and could not see any plants growing from his vehicle; the plants cannot be seen unless you are right next to the plants. Ms. Bradbury concurred with Ms. Ebel that the Decision and Order did state that the plants must be at least six feet in height and that an irrigation system must be installed. Ms. Spoden noted that because there is a current Zoning Board of Adjustment decision that rules with the land, the only way to change the variance is for the Board to change, today, that the elements of the variance are met and that the applicant should be granted a variance from the variance. Ms. Spoden noted that this is because the applicant wants to do something different than what is required of him and his property and how it sits today. In order to supersede what is in the decision and order, the board would need to make a motion to approve the variance with what is planted there today with a condition that the three foot trees also be planted. The Board would also need a finding of fact that by granting the variance, it wouldn’t alter the essential character of the locality. Ms. McJimsey said that it also goes back to the original variance where they are allowing industrial use in a residentially zoned commercial neighborhood. Ms. Spoden noted that the specific type of plant could be changed by the Board but the conditions, as stated in the Decision and Order would still need to be met because a violation of the conditions can be considered a municipal in fracture. Ms. Spoden reminded the Board that the applicant is asking for a variance from the two conditions that he needs to meet from his prior variance; the Board would need to find that meeting the conditions from the previous variance put the applicant in a financial hardship. Mr. Anderson noted that landscaping requirements vary depending on property and zones. He explained that L4 landscaping is used when there is a property zoned industrial and is next to a residential zone which would require an eight foot high masonry wall plus landscaping. He said that although this is an industrial use next to a residential use, with different zones, he noted that this was the reason for the previously set conditions. He added that if this property was an industrial zone next to a residential zone the conditions would’ve been far beyond what the Board set for the applicant. In conclusion, the Board believes that the conditions that were set for the landscaping are a fair compromise for allowing the building to be put up in residential zoning. Moved by Bradbury, seconded by McJimsey, to deny ORDER NO. 15-03, thereby denying the request for an amendment to the Conditions of Approval for a Variance granted to allow the construction of self-storage facilities on the property located at 1515 Florida Avenue, based on the findings of fact and conclusions. Vote on Motion: 5-0. Motion declared carried unanimously. COMMENTS: Ms. McJimsey thanked all of the people and staff, past and present, that she has had the opportunity to serve with and sends her best wishes to all. ADJOURNMENT: Moved by Koehler, seconded by Ebel to adjourn the meeting at 9:38 p.m. _____________________________ _________________________________ Erin Cain, Recording Secretary Sandra McJimsey, Chair