HomeMy WebLinkAbout~Master - Zoning Board of Adjustment Minutes 4-27-2011MINUTES OF THE REGULAR MEETING OF
THE ZONING BOARD OF ADJUSTMENT
AMES, IOWA APRIL
27, 2011
The Ames Zoning Board of Adjustment (ZBA) met, pursuant to law, in regular session at 7:00
p.m. on April 27, 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, Sam Perry, and Judy Parks were also present.
APPROVAL OF MINUTES: Moved by McJimsey, seconded by Weber, to approve the
minutes of the meeting of April 13, 2011, as written.
Vote on Motion: 5-0. Motion carried unanimously.
CASE NO. 11-05 – VARIANCE, 2136 LINCOLN WAY
Public Hearing on application for Variance to allow front yard parking along
Gray Avenue
City Planner Jeff Benson stated that the subject property is located in the Greek
house neighborhood south across Lincoln Way from the Iowa State University campus,
on the southeast corner of Lincoln Way and Gray Avenue. It is within the Residential
High Density (RH) zoning district and the East University Impacted Area (O-UIE)
overlay district. Mr. Benson said that the character of the subject area is very
distinctive, with attractive front landscapes and stylized architecture. He noted
that there is a higher concentration of “green” in this neighborhood than in most
RH neighborhoods.
The variance request is to allow front yard parking, which is already abundant
in the neighborhood. Mr. Benson explained that the laws have changed over the
years, and the majority of the Greek houses were built prior to the new standards.
In 2003, a detailed study was conducted on this area, and more laws were passed
to help protect the neighborhood as it is. Mr. Benson said that the needs of students
are changing, and many residences are changing what they offer to fit the needs
of current students. Greek chapters are growing stronger again, and many houses
are being remodeled to accommodate modern students. These houses are allowed to
be remodeled without adding new parking; they were legal when they were built.
Generally, they’re not being remodeled for more capacity.
In this particular case, the applicant’s need is to tear down the existing Sigma
Chi house and build new. When there is new construction, current codes need to
be followed. The applicant has offered that it is necessary to add parking in
order to accommodate the number of residents. For this property, the front yard
is defined as both on the Lincoln Way and Gray Avenue side. Mr. Benson displayed
a site plan, which showed that a portion of the planned parking encroaches into
the front yard on Gray Avenue.
The applicants and Sigma Chi fraternity have determined that the new Greek residence
needs to house 50 students in order for it to be financially successful. Under
current City standards, 50 parking spaces would need to be provided.
Mr. Benson explained the variance criteria and the Case for Economic Hardship,
as detailed in the Staff Report and a statement submitted by the applicant,
respectively. He explained that the application met all of the standards in the
Municipal Code, and City staff was recommending approval of the application with
no conditions. He noted that City Council approval is necessary for the building
to be demolished, and the applicants will need to present proof of economic hardship
to the City Council. The Zoning Board’s approval of the variance would be contingent
upon the City Council approving the demolition permit.
Mr. Benson noted a correction to the Staff Report; the fourth bullet on page nine
should state that “...screened parking in the front yard will not alter the
essential character of the area...”
Board Member Weber asked if the existing gravel parking lot would remain legal
if the applicants chose to remodel instead of build new. Mr. Benson said that
it would, as long as additional occupancy was not added. The existing gravel lot
is considered “legal non-conforming.”
Board Member Erbes noted another correction to the Staff Report; the sixth bullet
on page nine should state “...requires that this variance be denied granted.”
Board Member Taylor asked if City staff or the applicant had explored the option
of having fewer than 50 parking spaces and pursing a variance from the required
number of parking spaces instead seeking a Variance to allow front yard parking.
Mr. Taylor noted that the Land Use Policy Plan specifically states that front
landscapes are important in the East RH District. Furthermore, Section 29.406(7)(c)
of the Municipal Code states that “Under no circumstances shall vehicular parking
be permitted in the front yard of any residential building in any RL, RM, RH,
UCRM, FS-RL, or FS-RM zones.” This emphatic wording concerns him; he is not sure
which of the aforementioned variance options would be the lesser of two evils.
Mr. Benson indicated that the idea of seeking a variance for fewer parking spaces
was explored. Under both options, one of the unique circumstances is the need
to build new. Mr. Taylor asked if the criteria would apply the same to both options.
Mr. Benson said that it would be more difficult to prove that fewer parking spaces
would not have a negative impact on the area. The parking lot exists already;
if it were expanded, it could easily be determined that the negative impact is
greater. On the same token, to provide less parking for more people would have
a negative impact on the neighborhood, because the cars would have to go somewhere.
It would be hard to argue against that impact. There may be others who could also
make the same argument and ask to add on to their properties without having enough
parking. The parking is there already, and it can accommodate 50 cars; City staff
felt that it would be better to seek a variance for where the parking is already
located.
Mr. Taylor asked about the site plan review process, specifically regarding the
applicant adhering to screening and landscaping requirements. Mr. Benson indicated
that the applicant would have to do what is required in the Code. If the Board
feels that the affects of the project could be mitigated by adding requirements
above the Code, it may add conditions to the approval. Mr. Taylor asked for examples
of screened parking that have been utilized around the city. Mr. Benson said that
in some cases the City will require taller shrubs; in the West University Impacted
Area, if a parking lot abuts a Low-Density Residential area, a six foot fence
and landscaping is required. Similar treatment is given to commercial properties
that are adjacent to single-family housing.
Chair Calhoun inquired as to whether a parking count or study has ever been conducted
on the area. He is also concerned about the strong wording “Under no circumstances”
regarding front yard parking in Section 29.406(7)(c). He thinks that it would
be beneficial to conduct a study and determine parking needs in the area, and
perhaps establish blanket easements for parking. Mr. Benson said that he is not
aware of any study done or data collected in the last 10 years in this neighborhood
or any other around Campus regarding the actual supply and actual demand of parking.
He agreed that there could be some more efficiencies, but it’s difficult because
a lot of the development was and continues to be incremental - lot by lot.
Board Member McJimsey asked about the landscaping as represented on the site map.
It was noted that the applicants would need to submit a separate, more detailed
landscaping plan at a later date if the variance were approved.
Ms. McJimsey asked exactly how many parking spaces would be nonconforming. Mr.
Benson said that six full stalls and four partial stalls would be considered in
the front yard along Gray Avenue.
Doug Sharp, 6601 Westown Parkway, West Des Moines, Iowa, managing partner of BSB
Design, stated that he has been working with alumni of Sigma Chi on this project.
He said that they did a remodeling plan, and it required more square footage and
was cost prohibitive. The building is nondescript and somewhat plain, and is not
the typical Greek style. When the house was originally built, a major donor pulled
out, so a lot of amenities were not included in the project. Mr. Sharp indicated
that it has become apparent that it would be difficult for Sigma Chi to compete
with the other newly remodeled Greek structures without building new. The new
design will be a much better presence on Lincoln Way and Gray Avenue, and the
front yard parking will barely be visible from Lincoln Way.
Mr. Sharp showed the Board concept drawings and aerial photos of the property.
He discussed detailed plans of the project. Mr. Weber asked how long the project
will take. Mr. Sharp indicated that the construction period will last approximately
one year, and they hope to begin construction around Spring of 2012. He noted
that the students currently living in the house would be temporarily moved to
apartments during the project. Mr. Calhoun commended Mr. Sharp on the design of
the building.
Fred Kammer, 3500 Southern Hills Drive, Des Moines, Iowa, stated that he is a
graduate of Iowa State and an alumnus of Sigma Chi. He said that the current gravel
driveway is unsightly, and he is excited to see a new and improved building and
site. He is happy to be involved with the project and excited about enhancing
the educational experience for several generations of young men.
Chair Calhoun noted that the Board has heard an application for front yard parking
from another fraternity in the past, which was denied. Whenever a case or problem
repeats itself, he wonders if something should be done to change the ordinance.
He said that there never seems to be enough room to provide the required parking
in this area. Mr. Benson said that both the importance of green spaces and the
need for parking were brought to the City Council’s attention when the University
Impacted Area study was conducted. Council did not direct City staff to work on
the parking problem at that time. At another time, a group of Greek students came
to the Council asking it to lift restrictions for on-street parking, but the Council
did not pursue it. Storage parking provided by the University has helped alleviate
this issue somewhat, but there continues to be a shortage of parking in the area.
Board Member McJimsey asked if the City Council has a mechanism to ensure that
the building would be rebuilt after demolition. Mr. Benson said that the property
owners would not want to demolish until they have a secure investment. If the
Council approves the demolition, staff will issue the demolition permit once the
conditions the Council sets, if any, are met. Mr. Calhoun asked if a performance
bond will be required for the project. Mr. Benson said that this is somewhat
unfamiliar territory; he will be seeking advice from the City Attorney’s Office
to help protect the City’s interest.
In regards to the addition of hard-surface parking, Ms. McJimsey noted that drainage
will undoubtedly be different than it is now in the gravel lot. Mr. Benson said
that the applicant would need to devise a plan, to be approved by Public Works
Engineering, that proves that the runoff rate will not exceed what it is now.
Board Member Taylor questioned whether the Board’s determination of reasonable
return would have any bearing on the City Council’s ability to judge economic
hardship. Assistant City Attorney Judy Parks said that it would not. In reference
to Section 29.406(7)(c), Mr. Taylor said that the Board has never encountered
the terms “under no circumstances”, and he wonders if that divests the ZBA from
the ability to grant variances. Ms. Parks said that it does not; even though that’s
what the Code says, if the Board finds that an application meets all the standards,
which are very strict, then it still has the ability to grant the variance.
In reference to the previous request for front yard parking that was heard and
denied by the Board, Ms. McJimsey said that the request at hand is much different.
She thinks that the Board was justified in prohibiting front yard parking in the
other case, and should continue to do so in most circumstances. This is a very
different situation, and a big enhancement to the area.
Moved by Taylor, seconded by Weber, to adopt ORDER NO. 11-05, thereby approving
the request for a Variance to the front yard setbacks to allow development of
a project at 2136 Lincoln Way with front yard parking on Gray Avenue.
Moved by Taylor, seconded by Weber, to amend the motion to include a minimum of
six to eight foot shrubbery along the parking. Mr. Taylor said that it may be
beneficial to have a little more screening than what the minimum L2 landscaping
standards require.
Ms. McJimsey asked if staff had any problems with requiring taller landscaping.
Mr. Benson said that it would not be an issue. Discussion ensued regarding how
to word the amendment. Board Member Erbes said that she would not support the
amendment. Gray Avenue has hardly any vehicle traffic; if the shrubbery were taller,
it would provide an opportunity for someone to hide. She thinks that the lower
landscaping would be adequate and safer. Mr. Benson added that there is a lot
of foot traffic in the area from sororities and other residences down the street.
Mr. Calhoun agreed with Ms. Erbes for several reasons, including lurking hazards,
parking lot visibility for passing patrol vehicles, snow removal, and sight
distance while entering or exiting the drive. Ms. Erbes added that there aren’t
any nearby houses that face Gray Avenue, so it seems more like a side yard than
a front yard.
Board Member Taylor withdrew his amendment to the original motion.
Roll Call Vote: 5-0. Motion declared approved unanimously.
CASE NO. 11-06 - VARIANCE, 520 SOUTH DUFF AVENUE
Public Hearing on application for Variance from the shrub spacing requirement
for L2 landscaping
CASE NO. 11-07 - VARIANCE, 528 SOUTH DUFF AVENUE
Public Hearing on application for Variance from the shrub spacing requirement
for L2 landscaping
CASE NO. 11-08 - VARIANCE, 520 SOUTH DUFF AVENUE
Public Hearing on application for Variance from the minimum 5 foot width of L2
perimeter landscaping area
With the permission of the applicant, Assistant City Attorney Parks said that
it was appropriate to hear evidence for all three variance cases at once.
City Planner Sam Perry explained that the applicant, Ted Sage, owns the property
at 520 South Duff Avenue in front of the Super Wal-Mart parking lot. The entire
subject property was recently redeveloped and a new vehicle service facility was
built (LOF-Xpress). This facility is directly north of Wendy’s Restaurant at 528
South Duff Avenue; the requested variances are shared along the property line,
which is why there is a duplication of requests.
Prior to construction of the new building at 520 South Duff, the site was elevated
to comply with flood plain regulations. Because of the significant grading changes
close to the Wendy’s property line, the two property owners determined that it
would be easier to merge the landscaping along the property line together. There
are typical landscaping requirements, which are referred to as “L2” in landscaping
code. Mr. Perry indicated that the site is tight and narrow, so this limits
flexibility. City staff worked hard with the owner and designer to meet the City
regulations, and a site plan was approved in the summer of 2010. The building
was built and opened. During the review process, City staff identified deviations
from the approved site plan; landscaping issues were part of the list.
The site was under construction during the flood in August of 2010. Since there
was no ground cover holding the soil, the site eroded significantly. The owner
proposed to use more grass instead of the required four feet on center shrubs
in order to keep the soil intact in the event of another large flood. The requests
for 520 and 528 South Duff Avenue are to reduce the shrub spacing requirement
from every four feet on center to every eight feet on center, resulting in fewer
shrubs. The second request for 520 South Duff is to have a landscaping area that
is narrower than the requirement.
During the construction process, the owner and contractor decided to use a more
gradual curb instead of a standard steep curb. This would allow water to flow
over it rather than channel along it in a large rain event. They modified the
site in the field, which in effect widened the driveway and resulted in a narrower
landscaping area. Mr. Perry noted that irrigation was installed in the landscaping
area, which is not a City requirement.
Chair Calhoun asked for clarification regarding the order of events with the
approval of the site plan and the changes during construction. Mr. Perry confirmed
that the City approved a site plan, and changes were made without permission or
consultation during construction. The nonconformities were discovered when City
staff did a field inspection prior to issuing a Certificate of Occupancy. Upon
being questioned by Mr. Calhoun, Mr. Perry affirmed that the changes to the plan
occurred after the August flood. The rolled curb was part of the approved site
plan; the expanded driveway width was not. The driveway width change resulted
in the loss of 1 foot 3 inches of landscaping area.
Mr. Perry noted a change to the third bullet on page four of the staff report.
Initially only one street tree was thought to be affected by the project; Mr.
Perry indicated that a second street tree was heavily pruned, and staff would
like both of those trees replaced.
The variance criteria that an application must meet are as follows:
· The granting of the variance shall not be contrary to the public interest.
· That without granting the variance, and due to special conditions, a literal
enforcement of the ordinance will result in unnecessary hardship. Unnecessary
hardship exists when:
· The land in question cannot yield a reasonable return if used only for
a purpose allowed in the zone.
· The plight of the owners is due to unique circumstances and not to the
general conditions in the neighborhood.
· The use to be authorized by the variance will not alter the essential
character of the locality.
· The spirit of the ordinance shall be observed even when the variance is granted.
· Substantial justice shall be done as a result of granting the variance.
Mr. Perry reviewed the detailed Findings of Fact and Conclusions in the Staff
Report as they relate to the aforementioned criteria. He noted that the loss of
1 foot 3 inches of landscaping at 520 South Duff is hardly noticeable, especially
if the area is maintained as green, and also because it is combined with the
landscaping at 528 South Duff.
Board Member Taylor asked if the landscaping is elevated above the flood fringe.
Mr. Perry said that the buildings and the landscaping are above the base flood
elevation. Mr. Calhoun asked how staff established the argument that flooding
could cause erosion if the landscaping is out of the flood plain. Mr. Perry explained
that it is a turbulence area created by different objects on the site or in the
right of way; the analysis is based on the evidence that the owner submitted.
Staff is citing the high intensity of water flow that occurs during flood events
as the unique circumstances.
Board Member McJimsey asked what landscaping remains to be done on the site. Mr.
Perry indicated that some additional plants need to be located and grass or ground
cover established, and staff will subjectively approve it. Ms. McJimsey questioned
who monitors the process to make sure that it gets done. Mr. Perry said that the
Certificate of Occupancy is a mechanism to ensure compliance; however, the
Certificate has already been issued for this site. Ms. McJimsey asked how the
City can hold people accountable if the Certificate has already been issued even
though there are deficiencies on the site. Mr. Perry explained that the zoning
law is in effect all the time; the issuance of a Certificate of Occupancy does
not mean that the City can’t go after a violation. Staff has an agreement with
the owner that if the issues aren’t resolved by June 1, a process will be started
to correct the violations. The City has a history of working proactively with
people to find resolutions first rather than immediately sending violation notices.
Assistant City Attorney Parks added that there are essentially two options for
zoning violations. A person can either see if a variance can be obtained, or they
may opt to correct whatever violation exists. If neither of those options is chosen,
then the City would begin citations.
Mr. Perry said that the requests meet all of the variance criteria, and staff
was recommending approval of all three requests with conditions.
Ms. Erbes asked about irrigation and how large the planted shrubs will be when
they mature. Mr. Perry said that he was unsure whether the entire landscaping
strip had irrigation or if it was just on the 520 South Duff side. He indicated
that the shrubs should meet the minimum three foot requirement when mature.
Board Member Taylor said that he is having trouble with two of the criteria.
Criterion three states that the plight of the owners is due to unique circumstances
and not to the general conditions of the neighborhood. Mr. Taylor said that this
is not the only property in the flood fringe, and the building pad and the
landscaping have been elevated out of base flood elevation. He does not see what
makes the property or situation unique. Mr. Perry acknowledged that the floodway
fringe involves a lot of properties. This particular property within the fringe
involves a high volume of water directly through the landscaping area. Mr. Taylor
believes that is over-complicating the issue; any single property could be examined
and the volume of water or turbulence through the site can be discussed. He does
not think that a variance is the correct avenue; a more suitable solution would
be to amend landscaping requirements for properties in the flood fringe.
Mr. Taylor said that he also does not see how the reasonable return standard has
been met. This problem could be solved by cutting 1 foot 3 inches of concrete
off of the driveway and planting more shrubs. He does not think that narrowing
the driveway and adding shrubs would create a situation where a reasonable return
cannot be yielded. The original site plan called for these things, and the property
owner was amenable to that. As Mr. Taylor sees it, there was an approved site
plan, something was built that didn’t match, and this is a request for forgiveness.
He thinks that irrigation is a very good idea and having ground cover makes sense,
but he has trouble granting a variance just because the driveway was overbuilt.
Mr. Perry noted that the minimum requirement for driveway width is 12 feet, so
the driveway would still meet the minimum requirement if it were narrowed.
Ted Sage, 2717 White Oak Drive, Ames, Iowa, said that the property was filled
prior to construction to bring the elevation up as high as possible, and all four
sides were blended down to the surrounding properties. All of the fill was at
the current elevation when the flood of 2010 came and erosion occurred; because
of that, Mr. Sage thinks that it would not be accurate to say that the landscaped
area could not flood again. During the week of the flood, Mr. Sage called the
City. Planning and Housing Director Steve Osguthorpe visited the site to review
the issues. The shrubs, rock, and other landscaping at the Wendy’s site were
decimated by the flood waters, but the grassy areas remained intact. Based on
those observations, Mr. Osguthorpe and Mr. Sage devised alterations to the original
plan. Mr. Sage indicated that the option for a variance was presented to him at
that time. Because some construction was already underway, the site was built
and it was agreed that Mr. Sage would seek corrections the following Spring.
Mr. Sage indicated that the slope of the curb was modified in the field, because
it was determined that water would flow over a flat curb more gently than with
a steep curb. The switch to a flatter curb resulted in the wider driveway and
encroachment into the landscape area.
During the course of obtaining a Certificate of Occupancy in the winter of 2010,
Mr. Sage struck an agreement with the City to evaluate the variance need later.
The Certificate was granted knowing that the variance process would be pursued
in the future. Mr. Sage’s intent was not to simply do it the way he wanted to and
then ask for forgiveness later.
Mr. Calhoun asked what the dimension of the driveway was in the approved plans
and what it is now. It was determined that the plan was for a 12 foot width, and
as-built it is 12.9 feet. Mr. Calhoun asked if the width change was approved by
anyone. Mr. Sage indicated that his subcontractor asked for permission to change
the width to incorporate the gentle sloped curb, and Mr. Sage gave him permission
to do so. Mr. Perry noted that the sloped curb was already incorporated into the
approved site plan. Mr. Sage indicated that he was unsure how the driveway ended
up wider than what was approved.
The Board discussed the measurement of the driveway on the site plan. Mr. Perry
said that the width is measured to the back of the curb. Mr. Calhoun said that
he would like to establish whether this was a construction error or whether the
width was intentionally changed without permission from the City; the answer was
unclear.
Mr. Calhoun inquired about the approved plans for the shrubbery. Mr. Sage said
that the approval was for 4 feet on center. In the combined landscaping area between
the two properties, the shrubs are offset and are 4 feet on center. Mr. Taylor
noted that the number of shrubs meets the requirements; if they were shifted and
placed closer together on one side, there would not be a need for a variance.
Mr. Sage concurred; however, the reason for the spacing was to allow room and
sunlight for grass to grow and prevent erosion.
Ms. Erbes asked if adjacent properties are each required to have five feet of
landscaping area. Mr. Perry said that they are, and it is common for a property
owner to ask for exemption from establishing landscaping on the property line
because one is already established on an adjacent property. It can look like one
big landscaping area. Staff is recommending approval of this case because of the
unique circumstances of flooding and erosion. Staff agrees that the number of
shrubs could be planted to meet the Code requirement, but doing so could result
in erosion and the constant replacement of landscaping.
Board Member Erbes said that the two property owners had the opportunity to
collaborate because of the flood, and it turned out well. Mr. Taylor agrees that
the as-built plan makes sense, but the Board has to deal with the fact that it
does not adhere to the standards.
Mr. Calhoun asked for clarification regarding the order of events when the plans
were changed. Mr. Sage explained that he asked for permission from Director
Osguthorpe prior to any of the changes. He asked what the options were, and in
realizing that the project was already underway, Mr. Osguthorpe said to proceed
and pursue a variance later. A variance approval was not promised to him, but
it was presented as the best option.
Mr. Calhoun said that it is not customary for someone to approach a Planner and
ask what to do next; rather, one should devise a plan and present it to the City
for approval. Mr. Sage said that may be the case for a multi-million dollar project
with multiple people involved, but this was a very small scale project. He does
not think that the latter scenario characterizes his relationship with the City.
Ms. Parks said that this is an unusual situation. Ordinarily, problems are
identified first, and a paper site plan is presented to staff. It is uncommon
to have something halfway built and then find out that the plan isn’t working,
in this case because of a colossal act of nature. The City directed them to proceed
and make it function, finish it, and then seek variances after the fact. Mr. Taylor
added that it would not have been good to leave the site half-built or exposed.
Board Member McJimsey said that the flood was a unique circumstance and resulted
in unique circumstances as well. She thinks that Mr. Sage would have built the
site as approved if the flood hadn’t happened. Board Member Taylor concurred;
functionally, the plantings are off because of the property line, but otherwise
the right number of plantings are there. Ms. McJimsey reiterated that the flood
created the opportunity to collaborate in an unusual way. It’s not the same as
someone asking for exemption from landscaping because it already exists on an
adjacent property; this was a special circumstance that created a better result.
Mr. Weber inquired about the erosion during the flood. Mr. Sage explained that
the flood eroded the soil from beneath the Wendy’s driveway, and his contractor
had to pack new dirt underneath the driveway to keep it from collapsing. He said
that approximately three months elapsed between the flood and the LOF-Xpress
opening.
Moved by Taylor, seconded by McJimsey, to adopt ORDER NO. 11-06 thereby approving
the request for Variance from the shrub spacing requirement for L2 landscaping
at 520 South Duff Avenue, subject to the following conditions:
5. That a replacement tree be planted in the right-of-way nearest to 520 South Duff Avenue
by October 31, 2011. The tree should be maintained by the owner of 520 South Duff
Avenue until November 30, 2014 to ensure its survival.
6. The site plan should be revised and be submitted to the City Planning Division for review
and approval consistent with staff and ZBA agreements.
7. The variances will run with the land to ensure compliance with conditions for future
owners. The Decision and Order (D&O) statements will be recorded in the Office of the
Story County Recorder by the applicant, and copies of the recorded documents returned
to the City Clerk’s Office within 30 days of the D&Os being released.
8. Fifteen percent minimum landscaping area shall be maintained on the site.
9. Irrigation system shall be maintained along the south property line and irrigation shall be
regularly provided to keep the grass green and healthy throughout the growing season.
10. The site shall otherwise be brought into compliance according to the approved site plan of
June 21, 2010, and the letter dated December 17, 2010, by June 1, 2011.
Mr. Taylor said that his motion is based on a different finding with regard to the unique
circumstances than what is written in the staff report. He believes that the flood itself presented
unique circumstances that affected the plight of the landowner. After the discussion with the
Board, he supports the finding in the staff report with regard to reasonable return. The fact that
the right number of shrubs are out there is important; it supports that the spirit of the ordinance is
observed. They’re not all on the same side of the line, but they’re there.
In regard to condition number 4, Ms. McJimsey asked what would happen if the ordinance
changed and required more or less than 15 percent landscaping. Mr. Perry explained that the
property would only have to conform to such a change if it were redeveloped. Ms. Parks added
that the standards could change, but the property would remain as “legal non-conforming”.
Roll Call Vote: 5-0. Motion declared approved unanimously.
Moved by Erbes, seconded by McJimsey, to adopt ORDER NO. 11-07, thereby approving the
request for a Variance from the 4 foot shrub spacing requirement for L2 landscaping at 528
South Duff Avenue, subject to the following conditions:
11. The site plan should be revised and be submitted to the City Planning Division for review
and approval consistent with staff and ZBA requirements.
12. The variance will run with the land to ensure compliance with conditions for future
owners. The Decision and Order (D&O) statement will be recorded in the Office of the
Story County Recorder by the applicant, and copies of the recorded documents returned
to the City Clerk’s Office within 30 days of the D&O being released.
13. Irrigation system shall be maintained along the north property line and irrigation shall be
regularly provided to keep the grass green and healthy throughout the growing season.
14. The site shall otherwise be brought into compliance according to the approved site plan of
June 21, 2010, and the letter dated December 17, 2010, by June 1, 2011.
15. That a replacement tree be planted in the right-of-way nearest to 528 South Duff Avenue
by October 31, 2011. The tree should be maintained by the owner of 528 South Duff
Avenue until November 30, 2014 to ensure its survival.
Mr. Taylor noted that his aforementioned statements in support of the previous
motion apply to this motion as well.
Roll Call Vote: 5-0. Motion declared approved unanimously.
Moved by Taylor, seconded by Calhoun, to adopt ORDER NO. 11-07 thereby approving
the request for Variance from the minimum 5 foot width of L2 perimeter landscaping
area for 520 South Duff Avenue, subject to the following conditions:
1. That a replacement tree be planted in the right-of-way nearest to 520 South Duff Avenue
by October 31, 2011. The trees should be maintained by the owner of 520 South Duff
Avenue until November 30, 2014 to ensure its survival.
2. The site plan should be revised and be submitted to the City Planning Division for review
and approval consistent with staff and ZBA agreements.
3. The variances will run with the land to ensure compliance with conditions for future
owners. The Decision and Order (D&O) statements will be recorded in the Office of the
Story County Recorder by the applicant, and copies of the recorded documents returned
to the City Clerk’s Office within 30 days of the D&Os being released.
4. Fifteen percent minimum landscaping area shall be maintained on the site.
5. Irrigation system shall be maintained along the south property line and irrigation shall be
regularly provided to keep the grass green and healthy throughout the growing season.
6. The site shall otherwise be brought into compliance according to the approved site plan of
June 21, 2010, and the letter dated December 17, 2010, by June 1, 2011.
Ms. Erbes said that she was having a harder time justifying this request, because
the photographs show that the change in the driveway was made before the flood.
Mr. Calhoun agreed; he has not heard any testimony that clearly explains what
happened with the driveway. It seems like it was either built in error or just
not approved. Ms. Erbes said that it would be a hardship at this point to cut
out a piece of the driveway. Mr. Taylor said that the fact that it was built prior
to the flood takes away the unique circumstance of the flood.
The Board discussed the driveway width at length. Mr. Perry noted that the driveway
width is measured from the face of a standard curb and from the back of a rolled
curb.
Ms. Erbes offered that a unique circumstance is the fact that the drive is already
in place. Had the applicant come with the paper plan and asked for a variance,
she would say no. The uniqueness is that, wrongfully or rightfully, the investment
has been made. Ms. McJimsey asked what the City does when a construction error
is discovered after the fact. Mr. Perry indicated that he has not run across this
situation to have a precedent. Assistant City Attorney Parks said that there was
a case some years ago involving the Midas building on Lincoln Way. This building
was required to have a 20 foot setback from the property line, and a City staff
member realized while driving by that it did not appear to be 20 feet. It was
discovered that the setback was only 15 feet, and the property owners requested
a variance because it is tremendously expensive to move a building 5 feet. Because
the City did not want a half-finished building, they were allowed to finish building
it and request a variance later. She said that these are fairly unusual cases.
Mr. Calhoun asked if the Board could consider the expense to correct the problem
as a hardship and unique circumstance. Ms. Parks said that it could. Ms. McJimsey
is worried about setting a precedent that people can build things the way they
want to and then ask for forgiveness later. Mr. Taylor agreed. He would prefer
to find justification other than the fact that they already built it and created
their own hardship. He thinks that the need for a rolled curb in an area that
floods a lot could be a unique circumstance; perhaps the driveway needed to be
wider to accommodate it. Mr. Calhoun noted that the driveway could actually be
narrower with a rolled curb, because the measurement of the width is to the back
of the curb rather than to the front. Rolled curbs are included in the driveable
surface. Ms. Erbes suggested that the curb could be where the error occurred;
perhaps the slab was poured and instead of putting the curb on top it was put
to the side. Ms. Parks indicated that could be possible, since typically they
are done in two separate pours. The Board agreed.
Roll Call Vote: 5-0. Motion declared approved unanimously.
COMMENTS: There were no comments by the Board.
ADJOURNMENT: The meeting adjourned at 9:54 p.m.
______________________________ _____________________________
Emily Burton, Recording Secretary Bruce Calhoun, Chair