HomeMy WebLinkAbout~Master - Zoning Board of Adjustment Minutes 4-08-2009MINUTES OF THE REGULAR MEETING OF
THE ZONING BOARD OF ADJUSTMENT
AMES, IOWA APRIL 8, 2009
The Ames Zoning Board of Adjustment met in regular session at 7:05 p.m. on April 8, 2009, in
the Council Chambers of City Hall, pursuant to law, with the following members present: Bruce
Calhoun, Elizabeth Erbes, Denise Link, Gary Taylor, and Thomas Weber. Staff members Ray
Anderson, Jeff Benson, David Brown, Bruce Kinkade, Steve Osguthorpe, Judy Parks, and Sam
Perry were also present.
ELECTION OF OFFICERS: Moved by Weber, seconded by Calhoun, to nominate Denise
Link for the office of Chair of the Zoning Board of Adjustment.
Vote on Motion: 5-0. Motion carried unanimously.
Moved by Calhoun, seconded by Weber, to elect Link as Chair of the Zoning Board of
Adjustment.
Vote on Motion: 5-0. Motion carried unanimously.
Moved by Calhoun, seconded by Link, to nominate Thomas Weber to serve as Vice-Chair
of the Zoning Board of Adjustment.
Vote on Motion: 5-0. Motion carried unanimously.
Moved by Link, seconded by Calhoun, to elect Weber as Vice-Chair of the Zoning Board
of Adjustment.
Vote on Motion: 5-0. Motion carried unanimously.
APPROVAL OF MINUTES: Moved by Calhoun, seconded by Weber, to approve the minutes
of the March 11, 2009 meeting.
Vote on Motion: 5-0. Motion declared carried unanimously.
CASE NO. 09-05
CONDITIONAL USE PERMIT - ACCORD ARCHITECTURE, 205 SE 5TH STREET
Public Hearing on Conditional Use Permit in the General Flood Plain (Overlay) District to
allow construction of Petco at 205 SE 5th Street
Planner Sam Perry described the application, which is being considered by the Board
because the site is located in the FEMA Floodway Fringe, and more specifically designated
as FEMA Zone “AE” meaning there is a 1% annual chance of flooding in that area. Mr.
Perry said the City of Ames does not have an extensive history of this type of application,
the first one being for Wal-Mart in 2006. This application is the fourth of this kind. Mr.
Perry said the applicant desires to demolish the existing warehouse and prepare the site for
a 13,500 square foot Petco brand pet and pet supplies retail store. The finished floor of the
proposed store is to be 3.05 feet above the Base Flood Elevation that has been determined
for the property.
Mr. Perry said the Code allows for development in the flood plain, and reviewed the 100
year flood lines with the Board. He explained the Conditional Use Permit must be
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processed before the Minor Site Development Plan can be approved. Mr. Perry described
the 12 factors upon which the Board’s decision shall be based. He said the only proposed
outdoor items on the site plan are typical trash dumpsters with a proposed enclosure of
masonry with a metal gate. The finish grade of the dumpster enclosure is 2 feet below the
Base Flood Elevation. Mr. Calhoun asked for clarification on the flood map regarding the
floodway fringe. Discussion ensued regarding flood probability.
Mr. Perry showed the Board the site map of the proposed building and parking area. He
said the proposed use is consistent with the Land Use Policy Plan and not in conflict with
the floodplain management program in the area. Mr. Calhoun asked what type of flood
event occurred in 2008. Mr. Perry said that flood was between a 50 and 100 year flood.
Mr. Perry said access to the site is limited to SE 5th Street, which was inundated in May,
2008. He said if the Board determines vehicular access to the site is a risk due to the low
elevation of the only off-site vehicular route, the Board may impose a condition which
would increase the awareness of the customers who are located in the building at the time
of the flood event.
In reference to Factor 5, Mr. Perry said that the Zoning Board decides the importance of the
services provided by the proposed facility. Ms. Parks said that factors are different than
criteria, and that importance is what is being looked at, not if the service is essential.
Mr. Perry discussed staff’s recommendation and proposed conditions. Mr. Weber asked if
there is any concern regarding storm water runoff. Mr. Perry said the City has told the
applicant there should be no excavation below the existing grade to prevent harm to the
aquifer. Mr. Taylor asked for clarification regarding condition 7 on the staff report which
states that the applicant shall develop an on-site warning system plan that is approved by
staff. This system will notify customers and building occupants of a flood warning, and
more generally notify customers and occupants of potential flooding risk to occupants of
the property. Mr. Perry said this condition has not been discussed with the applicant. Ms.
Parks told the Board that City staff notifies store owners in this area of a pending flood
event, and at that point the store owners would need a plan to notify their employees and
customers.
Mr. Calhoun asked the applicant why the plans do not suggest elevating the dumpster and
its enclosure. Scott Blum, Accord Architecture Company, 414 S. 17th Street, Suite 102D,
Ames, stated that the dumpster area is in the north end of the site which is the lower part of
the property; however, elevating it may not be possible because of the way dumpsters are
emptied. He said the enclosure would consist of concrete block secured with a latch that
would contain materials. Mr. Calhoun said he was concerned about items being discharged
into flood waters and wondered about a different location for the dumpster. The specific
dumpster enclosure plans were shown and it was noted that the enclosure materials
suggested in the application are not water proof. Mr. Blum suggested working with staff to
find an agreeable site for the dumpster. Ms. Link agreed that the dumpster location is not
ideal. Mr. Perry suggested that removal of the dumpster could be part of the evacuation
plan that is to be negotiated. Mr. Osguthorpe agreed that the applicant could work with
staff to develop an evacuation plan for the dumpster where it would be secure if the Board
so desired. Mr. Calhoun expressed concern that a 50 to 100-year flood situation happened
in 2008 that inundated all accesses to this site. Discussion ensued on the issue of safety.
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Moved by Link, seconded by Weber that the Zoning Board of Adjustment adopt CASE
NO. 09-05 granting a Conditional Use Permit to allow construction of Petco at 205 SE 5th
Street subject to the following conditions:
1. That all required local, state, and federal permits and approvals be obtained by the
developer of the property.
2. That the extent of the permit be limited to allowing filling/grading only unless the
requested variances and site development plan are approved, then this permit shall
apply also to the proposed pet/pet supply retail store and no other use without
modification of this permit, or as otherwise permitted by Code.
3. The permit is subject to another review if and when any future increases of floor area
are requested, such as the future building areas designated on the site development plan
(Attachment D), which are not part of this application review, as required by Code.
4. That the permit is granted only in accordance with the site development plan submitted
March 20, 2009 or a site development plan substantially similar as determined by the
Planning & Housing Department acting on behalf of the Development Review
Committee.
5. All portions of the above-grade electrical and gas service enclosures/meters shall be
elevated three feet above the Base Flood Elevation to reduce risk of infiltration and also
so that both services can be disconnected at a more accessible elevation in the case of a
flood event. A gas service connection shall not be permitted unless this standard is met
by location and elevation notations on the site development plan.
6. The trash enclosure(s) shall be raised 3’+ Base Flood Elevation or alternatively have a
self closing and latching gate system approved by staff. Prior to issuance of building
permits, the applicant shall submit to City staff for review and approval a mitigation
plan pertaining to the trash dumpster. Said plan will identify a means of relocating or
elevating the trash dumpster in the event of a flood warning.
7. The applicant shall develop an on-site warning system plan that is approved by staff
which will notify customers and building occupants of a flood warning and more
generally notify customers and occupants of potential flooding risk to occupants of the
property.
8. A construction equipment and materials staging/removal plan shall be on file with the
City Public Works Department to ensure the organized and timely removal of any
injurious, hazardous, or polluting materials within the time available after a flood
warning.
9. The uses of the two areas slated for future development are not defined, neither are the
details of what hazardous materials will be stored by Petco, the proposed tenant. If a
tenant that stores or sells dangerous or pollutant materials, such as, but not limited to:
fuels, fertilizers or other chemicals, proposes to inhabit this site, a plan of safe removal
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during flood warning shall be submitted to the Building Official for review and
approval prior to moving such materials on to the site.
Roll Call Vote: Voting Aye: Erbes, Link, Taylor, and Weber. Voting Nay: Calhoun.
Vote on Motion: 4-1. Motion declared approved.
CASE NO. 09-06
APPEAL OF A DECISION OF THE ZONING ENFORCEMENT OFFICER -
KENNETH AND JANET DUNN, 4003 LINCOLN WAY
Public Hearing on Appeal of a Decision of the Zoning Enforcement Officer with respect to
the revocation of a Home Occupation Permit for the food preparation business at 4003
Lincoln Way
Planner Ray Anderson showed the subject property on a map to the Board. Anderson said
the zoning of the property is Residential Low Density. Catering is a permitted home
occupation, and may be approved without ZBA involvement. A letter dated January 28,
2002 was sent to Kenneth and Janet Dunn approving the home occupation. The home
occupation no longer meets the criteria of the Code. On January 29, 2009 a letter was sent
to Kenneth and Janet Dunn by Building Official David Brown to notify them that the home
occupation is in violation of the Code. In that letter, Brown notified Kenneth and Janet
Dunn of the intent of his office to revoke the permit unless the following conditions were
met by March 9, 2009:
1. Reduce the total area occupied by the home occupation to 25% or less of the total
floor area of the residence. Inspection by this office is required to verify compliance.
2. Remove all mechanical equipment used except as customary for domestic household
purposes. This includes the walk-in cooler in the garage, and any other commercial
food preparation or storage equipment. Inspection by this office is required to verify
compliance.
3. Furnish employee payroll or other records sufficient to show that only members of
the household residing in the dwelling are employed in the home occupation. Review
by this office is required to verify compliance.
Mr. Anderson showed maps of the residence and a comparison of floor area occupied by
the home occupation. The appellant reported using 23% of total floor area as occupied by
the home occupation. The Building Official reported 41% of total floor area as occupied
by the home occupation. Mr. Taylor asked for clarification about the floor area, and Ms.
Parks said the attached garage and unfinished space is included as part of the residence.
Mr. Anderson showed Section 29.1304(3)(c) of the Municipal Code regarding equipment.
The appellant said the walk-in cooler in the garage was purchased to maintain food safety
standards. Mr. Brown stated in the letter that a walk-in cooler is not customary for a
residence. He also addressed the storage of grills, smokers, trailers, and other business
equipment.
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Mr. Anderson showed Section 29.1304(3)(d) of the Municipal Code regarding
employment. The appellant said employees are added during the holidays to meet seasonal
demands.
Mr. Anderson stated the staff recommendation is to uphold the action by the City Building
Official and City Sanitarian and recommend the permit be revoked.
Building Official David Brown introduced himself. Mr. Brown said he is experienced in
enforcement activities including rental housing and zoning. He said he has been very
involved with citizens and the review of codes for many years. He said the intent of a code
is to accomplish something, protect residential areas from adverse impacts, to restrict
incompatible uses, and to establish criteria. It is not the intent to eliminate certain
businesses. Mr. Brown stated that smokers, grills, and commercial shelving are in the
driveway at Mr. Dunn’s residence, that the person who greeted him at the door identified
herself as an employee of Mr. Dunn, and shelves full of commercial cooking equipment
were present at the residence. Mr. Brown said that City Sanitarian Kevin Anderson
conducted training sponsored by the State Health Department and has record of Mr.
Dunn’s employees attending.
Mr. Anderson stated that Mr. Dunn’s business occupied a small portion of his home at one
time. Mr. Taylor asked Mr. Brown for some specifics on the areas of the residence
occupied by the commercial equipment, and photographs were shown for clarification.
Building Inspection Supervisor Bruce Kinkade identified commercial equipment in the
photographs.
Stephen Howell, Newbrough Law Firm, 612 Kellogg Avenue, Ames, stated that the home
of Kenneth Dunn is 900 square feet less than the Building Official is stating. He also said
that the room City staff is calling an office is not an office and showed photographs of the
room. Mr. Howell said that Mr. Dunn’s only office is his laptop computer. He said there
is equipment stored in part of the garage, which is necessary to the success of a business.
He said the pictures City staff showed made the garage look unkempt. Mr. Howell said
Mr. Dunn included the sunroom as part of the first floor measurement. He said the intent
of allowing home businesses is to allow businesses to begin in a home in order to grow
before moving into a building. Mr. Howell said this also the intent of Mr. Dunn, but he has
not yet reached the point where he can move the business. Mr. Howell said the equipment
in the home was installed with permission of the City and that Mr. Dunn also has to meet
health code requirements. He said Mr. Dunn has maintained state health codes, and said
the City cannot force him to do things that would violate the state codes. Mr. Howell said
Mr. Dunn has expanded his space in the basement because of the advice given him by City
staff.
Mr. Howell said that Mr. Dunn has sent notices to neighbors about his business and
receives no complaints. He said the photograph of the clutter in the driveway was a shelf
that has already been removed.
Mr. Howell asked that if the Board finds Mr. Dunn in violation of the Code that the Board
would give him a variance. Mr. Taylor asked about the photograph of the exterior frame
porch. Mr. Howell stated they were taken three days ago. Mr. Taylor also asked when the
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photograph of the trailer was taken, and Mr. Howell stated that it had nothing to do with
the business. Mr. Taylor then asked when the floor plan was prepared. Mr. Howell said it
was prepared in March. Mr. Taylor inquired about the Assessor’s floor plan records, and
Ms. Parks directed the Board’s attention to Attachment H.
Mr. Howell stated that home occupations are allowed to be conducted from the home, and
related it to a 16-year old child who wants to leave the home but isn’t ready. He said that if
Kenneth and Janet Dunn lose their permit, they will be out of business. Mr. Howell
requested that the Board renew the permit or grant them a variance.
Mr. Osguthorpe stated that this is a situation where criteria must be met. He also said that
granting of a variance cannot be considered at this meeting, but must be applied for
separately.
Ms. Parks said that State Code does not have any laws that restrict City zoning.
Moved by Taylor, seconded by Link, to act in accordance with Alternative No. 1 and the
action of the Building Official/ Zoning Enforcement Officer to notify the Appellants,
Kenneth E. Dunn and Janet R. Dunn, that the Home Occupation Permit issued on January
28, 2002 be revoked.
Roll Call Vote: Voting Aye: Weber, Link, Calhoun, Erbes, Taylor. Voting Nay: None.
Vote on Motion: 5-0. Motion declared approved unanimously.
CASE NO. 09-03
CONDITIONAL USE PERMIT - FOX ENGINEERING ASSOCIATES, 2120 ISAAC
NEWTON DRIVE
Public Hearing on Conditional Use Permit in the General Flood Plain (Overlay) District
for proposed development at 2120 Isaac Newton Drive
Planner Sam Perry described the application for a Conditional Use Permit to allow the
filling of a lot and the placement of a structure at 2120 Isaac Newton Drive. The structure
proposed is a 16,000 square foot Comfort Suites hotel with 84 rooms. The first floor would
be 4 feet above Base Flood Elevation. The site plan was shown with access to the building
by Isaac Newton Drive.
There has also been a plan for staging of construction materials which would serve as
protection of the materials in the event of a flood. The property is zoned Highway Oriented
Commercial (“HOC”), which anticipates these types of services. The proposed location is
in “FEMA Zone AE, outside the floodway,” previously termed flood fringe.
Mr. Perry said staff concludes that the proposed development meets all the minimum
criteria for approving the requested Conditional Use Permit if certain conditions were
imposed. The conditions were reviewed.
Scott Renaud, P. E. of Fox Engineering, 1601 Golden Aspen Dr # 103, Ames, stated that he
has concerns regarding the last two conditions. Regarding the dumpster pad, it is already 6"
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above the 1993 flood levels. He said this site was not flooded in 2008. Mr. Renaud said
once the building is built there will be a map amendment taking the construction equipment
and materials out. Mr. Calhoun asked about the construction staging area. Mr. Renaud said
the entire site is above flood levels.
Mr. Perry said staff doesn’t have issues with removing the condition regarding outdoor
storage since the dumpster is elevated to an acceptable level.
Civil Engineer Corey Mellies said it is appropriate that materials would be stored after the
grading takes place, and does not see any issues with that.
Moved by Erbes, seconded by Link, to adopt CASE 09-03 approving the Conditional Use
Permit for proposed development at 2120 Isaac Newton Drive based on staff’s conclusions
and the following conditions:
1. That all required local, state, and federal permits and approvals be obtained by the
developer of the property.
2. That the extent of the permit be limited to allowing filling/grading only unless the
requested variances and site development plan are approved, then this permit shall apply
also to the proposed hotel use and no other use without modification of this permit, or as
otherwise permitted by Code.
3. That the permit is granted only in accordance with the site development plan
Attachment D or a site development plan substantially similar to Attachment D as
determined by the Planning & Housing Department acting on behalf of the
Development Review Committee.
4. All portions of the above-grade electrical and gas service enclosures/meters shall be
elevated three feet above the Base Flood Elevation to reduce risk of infiltration and also
so that both services can be disconnected at a more accessible elevation in the case of a
flood event. A gas service connection shall not be permitted unless this standard is met
by location and elevation notations on the site development plan.
Roll Call Vote: Voting Aye: Link, Calhoun, Erbes, Taylor, Weber. Voting Nay: None.
Vote on Motion: 5-0. Motion declared approved unanimously.
CASE NO. 09-08
VARIANCE - FOX ENGINEERING ASSOCIATES, 2120 ISAAC NEWTON DRIVE
Public Hearing on Application for Variance for the window and glazing percentage
requirement at 2120 Isaac Newton Drive
Planner Jeff Benson described the application for a Variance to construct a building with
one primary facade with total area of windows and glazing 2.8% of the total area of the
facade, below the minimum of 15%, a variance of 12.2 or 81% from the standard. Benson
said the granting of variances shall not be contrary to public interest.
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Mr. Benson discussed two hardship issues that should be considered, and said there is no
information that indicates why a building cannot be designed to meet the standards.
Mr. Benson said the variance request does not meet all of the criteria for a variance required
by Ames Municipal Code Section 29.1504(4), and that granting a variance would be
contrary to the spirit of the ordinance and to the public interest that City policy defines for
this area.
Mr. Renaud showed pictures of three neighboring hotels. He suggested staff’s
recommendations are factually correct, but not functionally correct. He said the side of the
building being discussed is not visible from SE 16th Street, Highway 30, and hardly visible
from Dayton Avenue and that only neighbors will be looking at that side. He said it is the
only lot in the area that faces streets on three sides. Mr. Renaud said to increase the amount
of windows on this side will be adding costs, but not adding any aesthetics. He said the
building will be very aesthetically pleasing.
Board Member Taylor asked about the photographs shown and what sides of the buildings
were facing the street. Mr. Renaud said the Microtel was built before the zoning ordinance
but was unsure about the timing on the other two buildings.
Brent Haverkamp, 4915 Timber Creek Lane, Ames, said he is the developer of the area.
Mr. Haverkamp said he is in favor of the architect and development. He believes it will be
attractive, and doesn’t believe the side of the building in question will have any negative
impact on aesthetics.
Board Member Weber said for energy efficiency purposes, it would be wise not to place
many windows on the north side of the building.
Mr. Osguthorpe told the Board it can ask that the applicant come back with other means to
address the architectural intent of this portion of the Code if not through the window and
glazing percentage if it so desires.
Moved by Weber to table the request for a variance and request additional information from
the applicant regarding other means to address the architectural intent of this portion of the
Code. Motion failed.
Moved by Link, seconded by Taylor to deny this request for a variance allowing
construction of a building with the north facade with total area of window and glazing that
is 2.8% of the total area of the facade, based upon the staff’s findings and conclusions.
Roll Call Vote: Voting Aye: Link, Calhoun, Erbes, Taylor, Weber. Voting Nay: None.
Vote on Motion: 5-0. Motion declared approved unanimously.
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CASE NO. 09-09
VARIANCE - FOX ENGINEERING ASSOCIATES, 2120 ISAAC NEWTON DRIVE
Public Hearing on Application for Variance from the maximum Floor Area Ratio at 2120
Isaac Newton Drive
Planner Benson described the application for a Variance to develop a site with a Floor Area
Ratio (FAR) of 0.59, in excess of the maximum permitted of 0.50. Mr. Benson reviewed
the findings of staff. Mr. Taylor said it seems unusual to have a maximum FAR in this
district. Mr. Osguthorpe said the question is out there but it has not been raised related to
Highway Oriented Commercial District (HOC) zoning.
Mr. Renaud said the uniqueness of the lot requires them to make some adjustments. He said
they have double the landscape requirements, and have met all other requirements. He said
the issue of FAR will come up more because the issue doesn’t make sense. Mr. Renaud
said the hotel is wider because the rooms are larger. He said this design is a proven design,
and it is not site specific to this location.
Vincent DeMarte, Main Street Developers, 5008 Linde Lane, Suite 200, DeForest, WI,
shared financial information related to the proposed hotel. He explained that to change the
building to meet the Code, twelve hotel rooms will be lost which converts to lost revenue.
Mr. Calhoun asked why the FAR requirements surprised him because it was based on all
floors. Mr. DeMarte said in his experience all other requirements usually take care of the
FAR. Mr. DeMarte stated that intent is an important factor in codes, but that he cannot
figure out the intent behind this requirement. Mr. Calhoun asked what has been done to try
to conform, and Mr. DeMarte replied that he spent thousands of dollars on a feasibility
study and tried to reconfigure the lot. Mr. Calhoun asked if they approached Kum & Go to
ask if they could buy a portion of land. Mr. DeMarte said they did, and Kum & Go was
unwilling. He also said this building is not unique, that it is a proven style. Mr. Calhoun
wondered if some rooms could be made smaller. Mr. DeMarte said they could not do that
with the Comfort Suites all suites hotel franchise.
Mr. Benson noted that new evidence has been presented, and it can be considered by the
Board in its decision. Mr. Osguthorpe said this could be a si tuation in which the Board
could recommend an amendment. He said though the FAR requirement may not be fully
understood, it is still the criteria.
Mr. Calhoun asked Mr. Benson if this new evidence could be considered hardship, and if so
could the item be tabled for future consideration. Mr. Benson said the report states the lot is
unique because it does have three sides adjacent to streets. Mr. Osguthorpe said lots are
irregular more than they are regular. He said with this lot’s length and width, it is very
normal.
Moved by Link, seconded by Weber to deny this request for a variance allowing
development of a project with a Floor Area Ratio of 0.59, based upon the staff’s findings
and conclusions.
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Taylor said he believes there are unique circumstances with the three-sided lot. He also said
he has trouble understanding the FAR requirements. Link concurred.
Roll Call Vote: Voting Aye: Link, Calhoun, Erbes, Taylor, Weber. Voting Nay: None.
Vote on Motion: 5-0. Motion declared approved unanimously.
COMMENTS: There were no comments by the Board.
ADJOURNMENT: The meeting adjourned at 11:19 p.m.
__________________________________ ___________________________________
Erin Thompson, Recording Secretary Denise Link, Chair