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HomeMy WebLinkAbout~Master - Zoning Board of Adjustment Minutes 1-12-2011MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF ADJUSTMENT AMES, IOWA JANUARY 12, 2011 The Ames Zoning Board of Adjustment (ZBA) met, pursuant to law, in regular session at 7:00 p.m. on January 12, 2011, in the Council Chambers of City Hall with the following members present: Bruce Calhoun, Elizabeth Erbes, Sandra McJimsey, Gary Taylor, and Thomas Weber. Staff members Jeff Benson and Judy Parks were also present. APPROVAL OF MINUTES: Moved by Taylor, seconded by McJimsey, to approve the minutes of the meeting of December 8, 2010, as written. Vote on Motion: 5-0. Motion carried unanimously. CASE NO. 10-22 – VARIANCE – 2714 BRISTOL DRIVE Public Hearing on application for Variance from the maximum occupancy limits to allow four unrelated persons to live in a single family dwelling unit City Planner Jeff Benson explained that the application is for a property located in the southwest part of the Somerset subdivision. Somerset is zoned Village Residential, which has different designated uses within the zoning. The subject area is designated for single family attached residences. The zoning allows a maximum of three unrelated people in a single family attached dwelling. Triplett Property Management has stated that neither they nor the current residents knew that the zoning applied to this property. The residents have entered into a lease until July of 2011, and they are seeking a variance to allow four unrelated persons to continue to live there until the lease is over. Triplett Property Management has indicated that it is a hardship for the current tenants to find a suitable rental property at this time, and it would also be difficult to find new tenants for the subject property. Mr. Benson reviewed the variance criteria with the Board. The first criterion states that the granting of the variance shall not be contrary to the public interest. Mr. Benson stated that 60 percent of residences in Ames are rental properties. He explained that it is in the public interest to apply a zoning scheme that allows different lifestyles to coexist while maintaining property values and healthy, attractive neighborhoods. Difference in character among various types of residential uses is an essential element of the City’s zoning scheme, and zoning by occupancy is a result of observing the impacts of these differences between residential uses. In single family zones, occupancy is allowed by three unrelated people. There are other zoning districts which allow more unrelated persons; those places have more parking, vehicle access, mass transit, and other things that allow for a more intensive use. Mr. Benson stated that it is in the public interest for the City to have such zoning, and granting the variance would be contrary to the public interest. The second variance criterion states that without the granting of the variance, and due to special conditions, a literal enforcement of the ordinance will result in unnecessary hardship. Part of the unnecessary hardship criterion is that the property cannot yield a reasonable return if used only for a purpose allowed in the zoning. Mr. Benson said that the only hardship would be the difference between the return from renting the unit to three people instead of four. There are other similarly situated properties in this area; they are complying and providing a reasonable return. The owner also has the alternative of renting or selling the property. He concluded that the application does not meet the reasonable return standard. The second element of unnecessary hardship is that the plight of the owners must be due to unique circumstances and not to the general conditions in the neighborhood. Mr. Benson stated that neither the property nor the townhome is unique. The applicant sites in the application that there is a depressed housing market right now, which creates a hardship. Mr. Benson said that the housing market is a general condition and applies to many properties in town; this is not a unique circumstance. The request does not meet this standard. Another factor of the unnecessary hardship criterion is that the use for which the variance is sought will not alter the essential character of the locality. Mr. Benson stated that this locality is a mixed use development, and one additional person living in the unit would not affect the character of the neighborhood; therefore, the variance request does meet this standard. The variance criteria also state that the spirit of the ordinance shall be observed even when the variance is granted. Mr. Benson noted that the spirit of occupancy standards has been a subject of debate and controversy from time to time. Neighborhood associations have defended the standard as important for preserving the quality of life in neighborhoods. The expectation for landlords is that this occupancy law would be enforced when violations are found. Mr. Benson explained that this ordinance was challenged in 2007, but the Iowa Supreme Court upheld the City’s decision. He said that ignoring all of the precedents and allowing the applicant to violate a valid and enforced law would not be consistent with the spirit of the ordinance. Alternatives are available for the property, and therefore this standard has not been met. Another variance criterion is that substantial justice shall be done as a result of granting the variance. Mr. Benson explained that this criterion compares the rights of the owner of the subject property with the rights of owners of other properties that may be affected. The applicant says that there is a justice issue with the tenants and their ability to find another place to live. Mr. Benson noted that the owners of nearby properties also have rights, and they expect some degree of predictability as a property right. Protecting the right of the owner of the subject property to an uninterrupted, expected return would benefit this property owner at the expense of the rights of owners of other properties in the area. The request does not meet the substantial justice standard. Mr. Benson said that the Board is essentially being asked by the applicant to evaluate the intent of the tenants, the conditions of the market, and the behavior of the tenants as a basis for granting the variance. Other property owners may believe that they have the same conditions, apply for variances and ask the Zoning Board to make similar evaluations. City staff believes that such an evaluation is not in the Zoning Board’s purview, nor is it the proper basis for a variance. Mr. Benson said that it is completely understandable that this is a solution that one would propose; however, a use variance is not the correct solution to this problem. He concluded that the variance request does not meet four of the five standards in the Municipal Code, and City staff recommended denial of the request. Board Member Calhoun noted that the Zoning Board heard a somewhat similar case in the past which was approved, and he asked Mr. Benson to explain the difference between the two cases. Mr. Benson stated that the previous case was an application for a Special Use Permit to allow five unrelated people to be considered a “functional family”. There were a number of criteria, including living together for a common purpose, sharing household expenses, and carrying out a common mission, which were all met by that group. Mr. Calhoun asked if the tenants in the current case did not have the option to apply as a functional family. Mr. Benson explained that if they could meet the criteria, they could apply. Mr. Calhoun asked for details regarding the Supreme Court case against the City ’s zoning ordinance. Assistant City Attorney Judy Parks stated that the plaintiff was an association of rental property owners, who believed that the City ’s occupancy limit ordinance was a violation of equal protection. The Supreme Court ruled in the City’s favor. Kelli Excell, on behalf of Triplett Property Management, 323 5 th Street, Ames, Iowa, stated that she was representing the landlord and the tenants. Ms. Excell said that she did not think that the four young ladies living in one dwelling was contrary to the interest of the public. She believes that they are adding to the value of the neighborhood, and one additional person occupying the unit for six more months would not be harmful. Triplett would like for the tenants to be able to finish the lease; they are not asking for a long-term change in the Code. In regards to parking, Ms. Excell stated that there is a two car garage and additional parking directly to the south of the unit. She showed the Board a photo of the available parking in the area, and noted that three of the four tenants own cars. Ms. Excell stated that there are families in her neighborhood that have more than three cars. Ms. Excell noted that the additional tenant would not cause a change in the property ’s appearance. The tenants do not have group gatherings, and she surmised that they likely have fewer gatherings than a typical family does. She said that she was unaware that applying as a functional family was an option. These tenants do behave like a family; they eat together, sleep at the same time, and share household expenses. Ms. Excell said that the property has four bedrooms, and it seems counterproductive to ask one of the tenants to move out in the middle of winter when there is nowhere comparable to go. She thinks that it is an example of American waste. In regards to the unnecessary hardship criterion, Ms. Excell explained that the property owner did not originally intend to have it as a rental. She said that she understands that market conditions apply to everyone, but she also thinks that many properties need to become rentals in order to survive the market. The National Realtors Association has stated that any property within a mile radius of a foreclosed home would lose at least one percent of its value. Ms. Excell said that it would adversely affect the neighborhood if the property owner was unable to pay the bills and the home was foreclosed. She acknowledged that the owner is not in a unique situation, and stated that it was never his intent to circumvent the law. Ms. Excell said that the property does not look like low -density housing. She indicated that it did not dawn on Triplett to check on whether it was zoned high-density or not. Board Member Calhoun said that Triplett is one of the first Realtor companies in Iowa. He finds it hard to believe that no one looked into this. Ms. Excell said that she was trained to look for properties that have “RL” (Residential Low-Density) zoning on the Assessor’s website. This property says “F-VR”, and she did not understand that this zoning did not allow for this use. She apologized, and said that ignorance does not make it right. She wishes that the City would have some sort of training for landlords and property managers to better understand zoning. Ms. Excell noted that the staff report says that there are no unique circumstances in this application. She thinks that the property itself is not unique, but the circumstances are. There are not a lot of places with four people asking to live out their lease; it is a unique request. In regards to the spirit of the ordinance being observed, Ms. Excell said that the spirit can be debated. She believes that the spirit is to maintain order and family life in neighborhoods. This request does nothing to change the order or the enjoyable life of the people in this neighborhood. She said that these girls are model examples of keeping neighborhoods safe. Ms. Excell stated that police officers have the right to have variances within the law; for example, sometimes they issue warnings instead of writing a ticket. She believes that is what the Zoning Board is for as well - to determine if this is a proper opportunity to allow a variance for the betterment of the people involved. In regards to the substantial justice criterion, Ms. Excell said that substantial justice would be done for the tenants and the landlord if the variance was granted. She said that she does not know what kind of justice the neighbors are looking for, but she is only asking for something that will last six months. The tenants cannot find any other comparable place to live; their lifestyles would change dramatically if they were forced to move. Ms. Excell said that it was her error, not the tenants ’, and she does not want them to be harmed because of Triplett ’s mistake. She said that there needs to be a human component to the law, and logic should be used instead of fear. She does not think that the Board needs to fear a “revolt” from other landlords if this variance was granted. Ms. Excell indicated that Fire Chief Clint Peterson has stated that he does not have an issue with four unrelated people living in the same home anywhere in Ames. The tenants are between ages 25 and 27, and they are either in Masters programs or working; they are young professionals. Ms. Excell hopes that Ames would value their behavior rather than hurting them because of someone else’s error. Board Member McJimsey asked Ms. Excell to review how Triplett decided that this property could be rented to four people. Ms. Excell indicated that she was not involved in that specific decision. The applicant ’s names came across her desk, and she reviewed their background checks. Ms. Excell indicated that there are units across the street from the subject property that are apartments, so she did not see the area as low density housing. She perceives row houses as multi-family dwellings because they are connected. Ms. McJimsey asked if someone routinely goes to the City Assessor ’s website to check each property’s class or zoning. Ms. Excell responded that they do whenever they take on a new property. Ms. McJimsey said that it sounds like there is a problem at Triplett; if they see a classification that they are not familiar with, they should look into it. Chair Weber asked how many properties Triplett manages in Somerset. Ms. Excell indicated that they have managed two properties for approximately two years in Somerset, and both had families living in them when Triplett acquired them. Board Member Calhoun asked about Ms. Excell ’s credentials. He said that there is no place in the ordinance that states that the Board can grant a variance because the applicant has made a mistake. He asked if Triplett considered finding the tenants another place to live. Ms. Excell indicated that she only has one place in Ankeny, and there is nothing comparable in Ames. The tenants do not want to live in an apartment, and Ms. Excell does not think that they should be forced into an apartment life just because they’re not married. Mr. Calhoun noted that only one person would have to move. Ms. Excell said that the tenants are bonded together like a family. If they can apply as a functional family, she would be happy to do that, but she is worried that the City’s Inspection Division will ask the tenants to leave before that could be completed. Erin Bilsten, 2714 Bristol Drive, Ames, Iowa, stated that she knows that this is a hearing about a property and not individuals. She and the other tenants are students and transient; the other people in the neighborhood are permanent, and she understands that they want to make sure that their investment is sound. She is confused about why they are not considered three unrelated persons, because two of the roommates are sisters. She said that it is a very busy time for them as graduate students, and it would be difficult to move at this time. It is hard to find a comparable property to live in, not just because there are four tenants, but because there are three pets living in the unit as well. Assistant City Attorney Parks addressed Ms. Bilsten’s question as to why two related persons are not considered one person. She indicated that this issue was the subject of several of the cases that went to the Supreme Court in 2007. In trying these cases, the Court looked at what the ordinance said; either all of the tenants must be related or they are counted as separate individuals. Ms. Parks explained the reasoning behind the ordinance. Generally speaking, when dealing with persons that are related, there is a head of household or someone who will take responsibility for the others to whom he or she is related. When it is a group of unrelated persons, there is typically a dispersal of responsibility. Don Lambert, 2415 Bradford Drive, Ames, Iowa, stated that he is the President of the Somerset Townhome Row House Property Owners Association. He indicated that the Association Board had a special meeting to determine a feeling about the application, and all six members voted to be against the variance. The fact that the area is zoned for low density housing is well known, and Mr. Lambert thinks that Triplett should have known better. He does not think that it is the City ’s job to fix Triplett’s mistake, and allowing a variance would set a precedent. Mr. Lambert said that he didn ’t know that there were three pets in that unit. Somerset has restrictive covenants which state that only one cat or one dog is allowed in each home. He surmised that Triplett did not check into the restrictive covenants before renting this property. Mr. Lambert said that the Association Board represents 118 properties, and after canvassing the neighborhood they collected over 65 signatures of people who are against granting the variance. Rachel McKinley, 2714 Bristol Drive, Ames, Iowa, stated that the other tenants are her family. She has recently lost her job, car, and marriage, and she relies on the three girls for support. She is able to get to work because a co -worker who lives a block away picks her up every day. Ms. McKinley apologized because she did not know about the pet rules in Somerset. She said that she understands that they can ’t stay there for a long period of time, but she would like to finish the lease so that they can have a substantial amount of time to look for a new place. Julie Freed, 4321 Stone Brooke Road, Ames, Iowa, read a prepared statement that was given to the Board and submitted to the record. She sympathizes with the tenants, but is against granting the variance. Tim Shuck, 2706 Bristol Drive, Ames, Iowa, stated that he empathizes with the plight of the tenants. He shared concerns regarding parking and the quality of the area if this variance were granted. He indicated that there are issues that continue to come up with multiple unrelated people living in one unit. He is not worried about the current tenants, but he is concerned about the potential and about setting a precedent. Joe Rippetoe, 419 Pearson Avenue, Ames, Iowa, stated that he doesn ’t live in the neighborhood, but he is also concerned about the precedent. He lives in the south campus neighborhood, and he indicated that over -occupancy is at the forefront there. If a variance were to be granted for this property, he can think of a half dozen properties in his neighborhood that would apply. Mr. Rippetoe does not think that there should be any exceptions on occupancy rules. Board Member Calhoun asked how many of the row houses in the immediate vicinity are currently rentals. Mr. Lambert estimated that 90 percent or more of the row houses are owner-occupied. Mr. Calhoun asked if there was any other route that the tenants could take to get the six month relief. Mr. Benson said that this is the only avenue open. He would be concerned about whether they would qualify as a functional family. Ms. Parks concurred; it does not appear that they would meet the criteria for a functional family. Board Member Taylor asked what the next step would be if the Board denied the variance. Mr. Benson said that the City ’s rental inspector would give tenants and landlord a period of time to comply - likely 30 days. Ms. Parks said that after the 30 days, the City would begin citations, which can be issued for every day that someone is in violation. The first offense is a $500 civil penalty, which can be cited to the occupants as well as the owners. Ms. Excell reiterated that this situation is Triplett ’s fault, but it was not intentional. She testified that she thought that the tenants only had one pet, and she was not aware that there were three. She said that it is common for tenants to bring in pets that she is unaware of. Ms. Excell said that she would personally be willing to help move the tenants and help pay part of the extra rent to get them somewhere else; she is not unwilling to take responsibility. She said that she is not trying to set a precedent or cause problems for the neighbors, but rather looking for a reasonable solution to an honest mistake. G.P. Foote, 2721 Bristol Drive, Ames, Iowa, stated that he lives directly across the street from the subject property. He said that he met Ms. Erin Bilsten, one of the sisters, before she moved in. He said that she was aware of the three unrelated persons rule, but was led to believe by the property manager that they qualified as two sisters and two friends. Mr. Foote said that they have been excellent tenants, but that should not qualify them for a variance. He thinks that it will become a precedent no matter how short of a time period it is. Moved by Taylor, seconded by McJimsey, to deny ORDER NO. 10 -22, thereby denying the application for an occupancy variance for the property located at 2714 Bristol Drive. Mr. Calhoun said that he feels very bad for the tenants, and he feels like the Board is being put in an awkward position. The Board does not have the latitude to grant the variance; the solution is that the landlord should solve the problem. All of the Board Members agreed. Ms. McJimsey added that they have to go by the rules of the ordinances and make judgements on whether they think City staff has interpreted the ordinances appropriately. Mr. Taylor said that granting the variance would be a gross violation of what the Zoning Board ’s role is, and it would set a terrible precedent that would encourage property managers to ask for forgiveness rather than permission. Roll Call Vote: 5-0. Motion declared approved unanimously. COMMENTS: There were no comments by the Board. ADJOURNMENT: The meeting adjourned at 8:30 p.m. ______________________________ _____________________________ Emily Burton, Recording Secretary Thomas Weber, Chair