HomeMy WebLinkAbout~Master - Zoning Board of Adjustment Minutes 2-14-2007MINUTES OF THE REGULAR MEETING OF
THE ZONING BOARD OF ADJUSTMENT
AMES, IOWA FEBRUARY 14,
2007
The Ames Zoning Board of Adjustment (ZBA) met, pursuant to law, in regular session at 7:00
p.m. on February 14, 2007, in the Council Chambers of City Hall with the following members
present: Denise Link, Mary Ann Lundy, Lucy Martin, and Bradley Miller. Charles Samuels was
excused. Staff members Doug Marek, Judy Parks, Seana Perkins, Steve Osguthorpe and
Dominic Roberge were also present.
APPROVAL OF MINUTES: Moved by Martin, seconded by Link, to approve the minutes of
the meeting of January 10, 2007.
Vote on Motion: 4-0. Motion carried unanimously.
STAFF PRESENTATION: Judy Parks, Assistant City Attorney, reviewed information about
the nature of Zoning Boards of Adjustment, the powers that are outlined in state law, procedures
governed by state and local legislation, and the general activities of the Ames Board. Doug
Marek, City Attorney, discussed a recent court case in Dubuque and explained that decisions
made by quasi-judicial boards are required to be based on the law and only in consideration of
testimony and evidence presented in open hearings. This is in contrast to decisions made by
those serving in legislative bodies, who are allowed to gather information on their own or be
lobbied in public or private settings. Steve Osguthorpe, Director of the Department of Planning
and Housing, explained that the City’s planning staff was in the process of revising the format of
the Staff Reports they prepare for the Zoning Board members in hopes of offering them as
complete an understanding of each case as possible.
CASE NO. 07-02
SPECIAL HOME OCCUPATION PERMIT – STEPHANIE PLAHN, 209 17TH STREET
Public Hearing on Application for a Special Home Occupation Permit to allow the
operation of a family day care home at 209 17th Street
Planner Roberge stated that the applicant’s home is located on a cul-de-sac and the back yard
abuts Meeker School. The applicant will never have more than six children in her care, has
already received certification from the State of Iowa, and would like hours of operation from 7
a.m. to 5:30 p.m. Mr. Roberge said that the home has a fairly long driveway which will be used
for pick-up and drop-off of the children. No alterations will be made to the current structure of
the home. The home’s total gross floor area is 1400 square feet and less than 25% will be used
for the business. There will be no sign, no mechanical equipment, and no outside employees.
This will be the only home occupation on the site. The small number of children being cared for
should not affect the traffic in the neighborhood. Roberge said that the previous owner of the
home also had a permit for a family home day care and there were no problems noted. Mr.
Roberge stated that the planning staff believes all standards are met and recommended approval
of the Special Home Occupation Permit without stipulations.
Stephanie Plahn, 209 17th Street, said she has an eight-month-old at home and would like to
create a family atmosphere for additional children. She stated that three cars would fit
comfortably in the driveway.
Moved by Miller, Seconded by Link to ADOPT ORDER 07-02 granting a Special Home
Occupation Permit to allow the operation of a family day care home occupying no more than
25% of the total floor space of the home and serving no more than six children between the
hours of 7:00 a.m. and 5:30 p.m., Monday through Friday, at 209 17th Street.
Roll Call Vote: 4-0. Motion carried unanimously.
CASE NO. 07-03
SPECIAL USE PERMIT – GARY ALLEN FREEL, RANDY LYNN FREEL & SUSAN
GAYLE JONES, PROPERTY OWNERS; CLINTON REED, APPLICANT; AND
ROBERT W. GOODWIN, REPRESENTATIVE
Public Hearing on Application for a Special Use Permit to allow the continued operation of
a Salvage Yard at 400 Freel Drive
Planner Perkins stated that this application was presented about a year ago and has come up for a
first-year review. The applicant has not yet started to crush vehicles on the site; nevertheless,
Ms. Perkins said the property is located within the floodway fringe and the related standards had
to be reviewed. Perkins said she contacted the Iowa Department of Natural Resources (DNR) to
discuss how this use fits in with the requirements to either (1) move certain materials and
equipment out of flood waters, (2) keep them above the base flood elevation, or (3) anchor them
to prevent movement. She said that, based on the difference in elevation between the land and
the base flood level, minimal amounts of flood water are expected on the property. In addition,
the average weight of the vehicles the applicant intends to store are heavy enough that there
should be no risk of them moving. Ms Perkins also noted that the applicant no longer intends to
have an office in a recreational vehicle, as he proposed in 2006, so staff has determined that the
proposed operation will comply with pertinent Flood Plain Zoning Regulations of the Ames
Municipal Code.
Ms. Perkins summarized the findings of fact as follows:
· the proposed use is consistent with the General Industrial zoning designation;
· fencing and landscaping will be imposed as requirements, along with a limit on the height
material may be stacked and the length of time it may be stored;
· the site is adequately served by essential public facilities and services;
· the business is not near a school or park where children might be attracted to hazards;
· the business will be operated in a manner that will prevent vermin from living there; and
· a fence is in the process of being constructed in the manner stipulated in the Board’s 2006
decision.
Staff concluded that the standards described in Sections 29.1503(4)(a)(I) through (iv) and
23.1306(2)(a) through (c) were satisfied.
Ms. Perkins recommended that Board approve renewal of this request, along with five
stipulations, one of which would limit the permit to six months if the landscape requirements
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were not finished. She said that the salvage operation is proposed to start in the spring, and this
would allow landscaping and fence construction to take place in the appropriate seasons. She
noted, however, that the applicant would like the six months to begin from the date the Decision
and Order is signed and filed.
Board Chair Lundy inquired about the requirement to install an opaque, metal fence. Ms.
Perkins said that it had been stipulated in 2006 so as to provide a visual screen of the property
from the outside.
Clinton Reid, 1128 M Avenue, Nevada, Iowa, confirmed that his operation was based on the
property at 400 Freel. He said the stipulations were acceptable; he has been working on a
different project recently and had not been able to get to this yet. He would like to be allowed
six months from the date the of filed Decision and Order to finish the landscaping so that the
weather will accommodate it.
Moved by Martin, Seconded by Link to ADOPT ORDER 07-03 granting a Special Use
Permit to allow the operation of a salvage yard on the property at 400 Freel Drive, with the
following stipulations:
1. that the Special Use Permit be granted for a period of six (6) months from the date of the
signed and filed Decision and Order. At the end of six months, the applicant shall
confirm with City staff that the stipulations have been met or will have to re-apply for
approval of a Special Use Permit, should he wish to continue use of the salvage yard;
2. that the crushed material not be stacked any higher than 12 feet above grade;
3. that the six-foot (6') and eight-foot (8') fences shown on the site plan be constructed of an
opaque metal material;
4. that landscaping be provided in the ten-foot (10') front yard building setback per the City
of Ames’ L2 landscaping requirements in Section 29.403(b) of the Ames Municipal
Code;
5. that the owner/operator comply with all applicable state and federal regulations
pertaining to the operation of a salvage yard.
Roll Call Vote: 4-0. Motion carried unanimously.
CASE NO. 07-04
VARIANCE – ISU DELTA CHI ALUMNI ASSOCIATION AND BUILDING CORP.,
PROPERTY OWNERS; McKEL CONTRACTORS, APPLICANT; RUSS
McCULLOUGH, REPRESENTATIVE
Public Hearing on application for a Variance to allow a short-term lodging use in an RH
zoning district at 405 Hayward Avenue (Lee’s 2nd Addition, Lots 3 and 4)
Planner Perkins stated that the Zoning Board of Adjustment heard a request in December 2006
pertaining to this property and the one next door, and subsequently asked the City Council to
consider additional uses for large structures in the residential, high-density zoning districts. The
City Council referred the request to the Planning staff, but no report has been issued yet. At this
point, she is not sure if the determination will refer only to historic structures or will also apply
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to vacant properties. The lots under consideration now are used only for a volleyball court and
parking. Ms. Perkins stated that the applicant requested that the variance for short-term lodging
use be tied directly to the business entity, the Iowa House Corporation, rather than to the
property itself. Assistant City Attorney Parks, however, citing Rathkopf’s Law of Zoning and
Planning, ruled that a variance cannot be personal to the owner because, by law, the relief
offered runs with the land.
Ms. Perkins explained that short-term lodging, as defined in table 29.501(4)-1 in the Municipal
Code, means “facilities offering transient lodging accommodations to the general public
where the average length of stay is less than sixty days.” Uses include boarding, rooming or
lodging houses, and single room occupancy hotels where the average length of stay is less than
60 days; bed-and-breakfasts; hotels; motels; and recreational vehicle parks. Accessory uses may
include coffee shops and dining areas primarily for use by guests or residents of the facility. She
said the type of use the applicant is looking for definitely falls into this category, but must
request a variance because the only short-term use allowed in a high-density residential (RH)
zone is a bed-and-breakfast operated as a home occupation.
Ms. Perkins reviewed the criteria for approval of a variance and summarized staff’s findings of
fact and conclusions as follows:
· The property is zoned RH and a maximum of 11 dwelling units are allowed. Staff finds that
the requested density fits within the standards.
· All beneficial use of the property would not be lost if it were not used in the manner
proposed and the property can yield a reasonable return without the variance, so the test of
unnecessary hardship is not met.
· The applicant claims that this property is unique due to the proximity of the historic
fraternity house to the north, and identifies this as a ‘master planned” project; however, staff
takes the position that this parcel is a separate property that may be developed in its own
right and any plight of the owners is not due to unique circumstances.
· The proposed short-term lodging use would not alter the density or essential character of the
locality, so it complies with this standard.
· The spirit of the ordinance would not be upheld with the granting of this variance because
short-term lodging is a commercial enterprise not allowed in the RH zone.
· Finally, the property is vacant and available for development, and substantial justice would
not be done if this owner were granted relief that afforded him greater benefits than those
enjoyed by other owners in this zoning district.
Based on this information, Ms. Perkins said that staff recommends that this variance be denied.
She also reported that written testimony in opposition to this request had been received from
Alex Pendry, a nearby property owner. He was concerned that allowing short-term lodging
would open the door for activity other than what is proposed, and that the amount of parking
space required for the enterprise was inadequate for the neighborhood.
Board Member Miller questioned how this request differed from the one considered by the
Board in December. Ms. Parks explained that last time the applicants were seeking a Special
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Use Permit for a conditionally-permitted use, and that certain variances were also requested
so they could meet the conditions. This time, although the proposed operation is the same, they
are asking permission for a use that is not permitted in the RH zone under any conditions, and
can only be done if the situation meets the strict standards of approval for a variance.
There was discussion about other avenues the applicant could explore outside of the Zoning
Board. Suggestions included: a request a change in the City’s definition of short-term lodging; a
change in the conditions associated with the operation of a bed-and-breakfast; or rezoning of the
property to a type of zone that would allow the use they propose. It was pointed out that the City
Council has actually been asked to address the definitions, but has not yet taken action. Ms.
Parks said they could also seek a replat of all four lots to combine them; however, at this point
that would difficult because now they have a variance (granted in December) that would apply
to just a portion of the geographic area. She did not believe the variance would be considered to
apply to all of that space. Ms. Perkins added that rezoning to a commercial-type use would be
inconsistent with the surrounding neighborhood and planners try to stay away from “spot
zones.”
Susan Lassila, 905 Douglas Avenue, stated that they already have the green light to create a new
bed-and-breakfast (B&B), to be known as Iowa House, on Lots 1 and 2 at this address. She
would like to create a quiet, refined guest house for international visitors, as she did in the
original Iowa House. She said that they are requesting a use variance for Lots 3 and 4, south of
the fraternity building, because in order for the project to be economically viable, they need to
have another building where they can offer short-term stays, just like those offered in the B&B.
Ms. Lassila explained that the taxes on the undeveloped, vacant lot are currently $5554 per year.
A room costing $85 per night would have to be rented 65 times just to pay the taxes. Another
190 nights rental would have to be added to cover the 9% interest rate on the assessed value of
the lot, meaning that 255 rentals at $85 per night would be required just to support the vacant
lot. As much as they might like to, it would not be economically feasible to leave the lot vacant.
Ms. Lassila said that there would certainly be some vacancies during the week at the B&B, but if
those vacancies could be offset by having both buildings at full capacity on the weekends, the
project would be viable.
Ms. Lassila stated that what they are proposing is a more desirable alternative to anything else
that could be put on the lot. She feels an apartment building would not fit with the
neighborhood, and she would not want an apartment next to the B&B either. With the variance,
however, they could proceed with the project, protect the empty lot from something she feels
would be detrimental to the neighborhood, and save the beautiful old fraternity. She added that
their option to purchase will expire this evening.
Board Member Miller stated that he generally agreed with Ms. Lasilla’s arguments; however,
the function of the Zoning Board of Adjustment is to determine whether or not the request meets
the current zoning law, and he does not see any way one could argue that all beneficial value of
the land would be lost if the variance were not granted.
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Ms. Lassila said they didn’t believe the B&B would be able to support the expenses incurred
without having additional space for short-term occupancy available to them.
Russ McCullough, 2054 Cessna Street, stated that the characteristics of this site are distinct – the
desire to preserve the historic building on the north impels the need for a complimentary use
next door.
Wayne Christ, 2093, NW 74th Avenue, Ankeny, Iowa, stated that he represented the property
owners. He said that the fraternity building had to be abandoned because the group on campus is
too small to afford the house. They need to sell as soon as possible and they want to sell the lots
together. Developers will be able to tear everything down and put up an apartment building. He
admitted that he had a personal bias and would love to have the house there, but also believed
that an “addition” to the B&B would be a lot better for the neighborhood than an apartment
building.
Board Member Miller inquired whether or not anyone had asked the City Council to change the
zoning, and Mr. Christ said he did not believe so.
Mr. Miller stated that the reason the applicants’ request was denied the first time was not that the
ZBA board members were personally opposed to this development, but because request seemed
to be outside the scope of the powers of this board. He said he felt a legislative change was
needed instead. Board Member Martin agreed the applicants were looking for a policy decision
that a quasi-judicial board is not empowered to make. Board Member Link concurred that she
everyone agrees with the idea, but the Board’s decisions had to be based on the facts presented
and following rules set forth in the code, not on the zoning regulations they wish were in place.
There was discussion about the time line required for rezoning. Ms Perkins said that once there
is a proposed ordinance, there is a requirement for three readings and then it has to be published.
The time-consuming part, however, is taking public input and getting the expert advise of
planners. Mr. Osguthorpe cautioned that there was no way to guarantee that the City Council
would act in the applicants’ favor.
Mr. McCullough asked if this really was outside the Zoning Board’s jurisdiction and, if so, why
the application was accepted. Ms. Parks said this Board could grant a variance if the standards
were met. In this situation, the standard asks if all beneficial use of the property is lost without
the variance, and the Board don’t see that it is. McCullough pointed out that many times all the
standards are not met. Parks admitted that, in staff’s opinion, there are few times all the
standards are met, but sometimes the board opinion differs from that of the staff.
Mr. McCullough said that he did not think it was realistic to assume that the city would plop
down a commercial zone in the midst of an RL district – what he’s really asking for is a use
variance, not a rezoning.
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Mr. Osguthorpe suggested that another option might be a textual change in the ordinance to
amend the uses allowed in the RH zone; however, a change of that type would apply to any
property in that particular zone.
Mr. McCullough asserted that that was exactly why this board should act. He said two standards
were found to be met and everything should be considered.
Mr. Miller said he was caught on the issue of reasonable return. Furthermore, nothing in our
zoning law prevents someone from putting an apartment building on this lot and it is not the
Zoning Board’s place to prevent it. He said a political request should be made to the Council.
Mr. Link stated that after the December meeting, the ZBA asked the Council to consider a
zoning text amendment and she believes that is the way this should be approached. She added
that she understood the applicants’ time lines and financial considerations and was not
unsympathetic to them; however, she was uncomfortable with stretching the board’s powers
outside prescribed boundaries.
Mr. McCullough felt that the Council might not approve a text amendment because this scenario
wouldn’t work in other places, but he is confident it would be okay in this location.
Moved by Miller, Seconded by Link to ADOPT ORDER 07-04 denying a Variance to allow
a short-term lodging use in a residential high-density (RH) zoning district on the property at
405 Hayward Avenue (Lee’s 2nd Addition, Lots 3 and 4).
Roll Call Vote: 4-0. Motion carried unanimously.
COMMENTS: Members of the Zoning Board thanked staff for the presentation and suggested
that additional periodic refreshers would be welcome.
ADJOURNMENT: The meeting was adjourned at 8:45 p.m.
Karen C. Thompson, Recording Secretary
Mary Ann Lundy, Chair
The next meeting of the Zoning Board of Adjustment will be a Regular Meeting at 7:00
p.m. on Wednesday, March 14, 2007, in the Council Chambers of the Ames City Hall at
515 Clark Avenue.