Minutes Zoning Bd Adj 5 23 02 MINUTES
ZONING BOARD OF ADJUSTMENT
REGULAR SESSION
Thursday, May 23, 2002
4:00 p.m.
Auditorium, Carnegie Stout Library
360 W. 11th Street, Dubuque, Iowa
PRESENT: Chairperson Mike Ruden; Board Members Randy Klauer, Jim Urell, Bill
Gasper and Fred Beeler; Staff Members James O'Brien, Kyle Kritz, Guy Hemenway
and Wally Wernimont.
ABSENT: None.
AFFIDAVIT OF COMPLIANCE: Staff presented an Affidavit of Compliance verifying
the meeting was being held in compliance with the Iowa Open Meetings Law.
CALL TO ORDER: The meeting was called to order at 4:02 p.m.
DOCKET 25-02: Application of Steven Tuegel for a special exception for property
located at 1713 Vizaleea to build a 14 foot by 36 foot detached garage 2 feet from the
north side property line, 6 feet required, in an R-1 Single-Family Residential zoning
district.
Steven Tuegel outlined his project, and submitted a letter from the neighbor to the north
of his property in favor of his project. He stated that his garage would be attached to
the house and one story in height. He described the building design. Janice Tuegel
spoke in favor of her request.
Staff Member Wernimont outlined the staff report, stating that the setback of the
proposed garage addition would be the same as the existing home. He stated that
there is adequate sight visibility at this location. He also said that after Building
Department review, it was determined that there would be no openings allowed, and a
fire rated wall required, on the north side of the garage.
Board Members discussed the project and stated that they feel it would have very little
negative impact on public safety or the adjacent residential properties.
Motion by Gasper, seconded by Klauer, to approve the special exception request as
submitted. Motion was approved by the following vote: Aye - Klauer, Urell, Gasper,
Beeler and Ruden; Nay- None.
DOCKET 26-02: Application of Toby & Jamie Ryan for a special exception for property
located at 2892 Muscatine Street to build an attached deck 8 feet from the front
property line (Primrose St.), 20 feet required, in an R-1 Single-Family Residential zoning
district.
Toby Ryan outlined his request for a 10 by 15 foot deck on the Primrose Street side of
his house. Board Members reviewed the project site diagram. Staff member
Wernimont said that the deck will not encroach on the visibility triangle and that it will be
Minutes - Zoning Board of Adjustment
May 23, 2002
Page 2
setback farther than the existing garage.
Chairperson Ruden stated that many of the structures in this area sit closer to the
property line than current setback requirements permit. Board Members discussed the
project and said that they feel it meets the criteria for granting a special exception.
Motion by Urell, seconded by Gasper, to approve the special exception request as
submitted. Motion was approved by the following vote: Aye - Klauer, Urell, Gasper,
Beeler and Ruden; Nay - None
DOCKET 28-02: Application of Michael & Sally Basten for a special exception for
property located at 2804 Van Buren to build a 24 foot by 28 foot attached garage 8 feet
from the front property line (Van Buren Street) and 15 feet from the front property line
(Isborn Street), 20 feet required, in an R-1 Single-Family Residential zoning district.
Mike Basten outlined his proposal to build a 24 by 28 foot attached garage. He noted
that he is in the process of vacating right-of-way in front of his house in order to meet
the 8~foot setback as proposed. He stated that he will purchase the property from the
City.
Staff Member Hemenway presented the staff report. He noted that there is an
inordinately wide parkway in front of Mr. Basten's residence. He stated that
Engineering has preliminarily approved vacation of a portion of the right-of-way to Mr.
Basten. Mr. Hemenway stated that the 8-foot setback request is based on the right-of-
way being vacated, purchased and replatted. The Board questioned the location of the
existing deck. Mr. Basten indicated that he would access his garage from Isborn Street.
Motion by Gasper; seconded by Urell, to approve the special exception request with the
conditions that: 1) the public right-of-way be vacated, purchased and repiatted by the
applicant; and 2) the garage be accessed from Isborn Street. Motion was approved by
the following vote: Aye - Klauer, Urell, Gasper, Beeler and Ruden; Nay - None
DOCKET 29-02: Application of Michael & Marilyn Thill for a special exception for
property located at 1625 Rhomberg Avenue to build a detached garage 3 1/2 feet from
the rear property line, 6 feet required, in an R-2A Alternate Two-Family Residential
zoning district.
Michael Thill outlined his request to replace an existing garage with a larger garage
setback 31/2 feet from the alley. Board Member Klauer asked if the new garage would
exceed the square footage permitted. Mr. Thill said no, it would not.
Staff Member Wernimont outlined the staff report, stating that the new 26 by 30 foot
garage will not be built closer to the public right-of-way than the existing garage. He
stated that staff have no public safety concerns and feel that the proposed garage will
have little impact on adjacent properties. Staff Member Wernimont distributed a letter
from the neighbor, Mrs. Mary F. Leitner, 1621 Rhomberg Avenue, stating concerns with
Minutes- Zoning Board of Adjustment
May 23, 2002
Page $
the exact location of the common lot line. Board Members discussed Mr. Thill's request
and the neighbor's letter. Board Members stated that Mr. Thill will be bound to build the
garage as per the submitted site plan and will be required to be four feet from the south
side property line.
Motion by Klauer, seconded by Gasper, to approve the special exception request as
submitted. Motion was approved by the following vote: Aye - Klauer, Urell, Gasper,
Beeler and Ruden; Nay - None
DOCKET 32-02: Application of Dan & Cheryl Lang for a special exception for property
located at 2465 Crissy Drive to build a 24 foot by 30 foot detached garage 3 feet from
the south side property line, 6 feet required, in an R-1 Single-Family Residential zoning
district.
Dan Lang stated that he wants to tear down the existing 18-foot by 24-foot garage and
build a new garage 3 feet from the south side property line. Board Members discussed
the proposed building layout. Staff Member Wernimont stated that the limited setback
waiver form initially signed by the neighbors agreed to a S-foot setback, but that limited
setback waivers can only grant a 4-foot setback. He stated that he feels there is no
visibility problem at this location and that the proposed garage will have little impact on
adjacent properties.
Motion by Gasper, seconded by Klauer, to approve the special exception request as
submitted, Motion was approved by the following vote: Aye - Klauer, Urell, Gasper,
Beeler and Ruden; Nay - None
DOCKET 34-02: Application of James & Nancy Westhoff for a special exception for
property located at 2276 Woodworth, to build a 20 foot by 24 foot detached garage 3
feet from the south side property line, 6 feet required, in an R-2 Two-Family Residential
zoning district.
James Westhoff outlined his request to replace an existing structure with a 20-foot by
20-foot garage. He submitted a letter from the neighbor in support of the project. He
distributed a new drawing showing the garage 3 feet from the side property line instead
of 8 inches.
Staff Member Wernimont outlined the staff report, stating that the applicant wishes to
remove a dilapidated garage built almost to the lot line and replace it with a new garage
that will be 3 feet back from the property line. He distributed photos of the property.
Board Members discussed the request and felt that the garage would be an
improvement to the property, because it will be shifted farther back than the existing
dilapidated garage.
Motion by Gasper, seconded by Klauer, to approve the special exception request as
submitted. Motion was approved by the following vote: Aye - Klauer, Urell, Gasper,
Beeler and Ruden; Nay - None
Minutes - Zoning Board of Adjustment
May 23, 2002
Page 4
DOCKET 27-02: Application of Greg & Diane Maim for a conditional use permit for
property located at 3110 Castle Woods Lane to allow a coffee catering service as a
home occupation in an R-1 Single-Family Residential zoning district.
Greg Maim spoke in favor of his request. He said that the coffee for his business is
prepared on-site and not at his home. He stated that the only activity occurring at his
home would be washing of dishes and appliances for coffee brewing.
Staff Member Hemenway presented the staff report, and distributed a map showing the
property owners that submitted letters in support of Mr. Malm's project. Staff Member
Hemenway stated that he feels the coffee business meets all requirements outlined in
the home occupation ordinance. He noted that property owners within 200 feet were
notified and that he had received no input from the neighbors.
Board Members discussed the request and felt that the proposed coffee business met
all the requirements of a home occupation,
Motion by Gasper, seconded by Urell, to approve the conditional use permit as
submitted. Motion was approved by the following vote: Aye - Klauer, Urell, Gasper,
Beeler and Ruden; Nay- None
DOCKET 15-02: Application of Weitz Sign Company\McGraw-Hill Companies for a
variance for property located at 7500 Chavenelle Road (Dubuque Industrial Center
West) to install one 920 square foot wall mounted sign, 400 square foot maximum
permitted, in a PI Planned Industrial zoning district.
Staff informed the Board Members that the applicant asked to withdraw the request
prior to the meeting.
DOCKET 22-02: Application of Jay Ambama Inc. (tabled) for a variance for property
located at 2670 Dodge Street to display two 67 % square foot temporary banners, 32
square foot maximum permitted, for 180 days, 30 days maximum permitted, in a C-3
General Commercial zoning district.
Sonny Pateo stated that he manages the Best Inn and would like to place two signs
that are larger than permitted, for a longer duration than is permitted, on the premises.
Staff Member Hemenway presented photos of the signs to the Board. Mr. Peteo stated
that the sign on the west side of the property has already been removed. The applicant
indicated which signs had already received permits.
Board Members questioned when the 180 days would start. Staff Member Hemenway
th
said that the signs could remain until November 8 as requested on the application, if
approved. Board Members questioned where the temporary signs could be located.
Staff Member Hemenway stated that they must be on the premises and not on public
right-of-way. Staff Member Hemenway presented the staff report, noting that the
applicant's request was two-fold, asking for excessive sign area and an increase in
duration the signs could be displayed. He discussed the temporary sign ordinance
Minutes - Zoning Board of Adjustment
May 23, 2002
Page 5
noting that the intent is to permit businesses to advertise special events for a limited
duration. He recommended that the Board review the criteria for granting a variance.
The Board reviewed the criteria for granting a variance and stated they feel that the
request failed to satisfy all of the criteria.
Motion by Gasper, seconded by Klauer, to approve the variance as submitted. Motion
was denied by the following vote: Aye - None; Nay - Klauer, Urell, Gasper, Beeler and
Ruden.
DOCKET 23-02: Application of U.S. Cellular/Dean "Moe" Dolphin (tabled) for a
variance for property located at 3160 Cedar Cross Court to erect a 275 foot tower,
where 150 feet is allowed, and allow setbacks of 162 feet from the east side property
line and 232 feet from the north side property line, where 275 feet is required in a LI
Light Industrial zoning district.
Eric Mobius, representing U.S. Cellular, noted that there are two existing towers in the
vicinity of the proposed tower site. He stated that he tried to use those towers for co-
location but they were not available. He said that U.S. Cellular's service area will
include the Kennedy Mall area and that their tower can accommodate up to two
additional service providers.
Angle Holligave, Engineer for U.S. Cellular, noted the number of carriers in the area.
She said that the tower can be beefed up structurally to enable it to have three
additional carriers.
Eric Mobius stated that the height of the two existing towers is in excess of the
proposed tower. Ms. Halligrave explained the propagation maps distributed to the
Board. She stated that the maps illustrate the increased coverage area after the tower
is operational. She stated that U.S. Cellular has dropped 25,000 calls in three months
in the Kennedy Mall area. Staff member Kritz presented photos of the site and
highlighted existing tower locations. Ms. Halligen noted that the proposed tower will be
located approximately ¼ mile from the existing Verizon tower.
Jim Stock, 3009 Deerwood Circle, stated that he is opposed to the tower. He said that
he owns 20 acres of land north of the tower site and that the tower will be visible from
his development. He noted a petition of neighbors in opposition was included in the
Board's agenda packet. He presented photos of his development and views of existing
cell towers from various lots throughout his subdivision. He said he feels the tower will
reduce the value of his property.
Mary Lou Mulgrew, 2600 Brunskill Road, spoke in opposition. She noted the location of
the cell tower in relationship to her property. She stated that she feels the tower will
have a negative impact on the value of her property.
John Gronen, 1766 Plymouth Court, stated that he is the son-in-law of Mary Lou
Mulgrew. He described the area of the Mulgrew property that could be developed for
large residential lots. He stated the tower would have a negative impact on potential
Minutes - Zoning Board of Adjustment
May 23, 2002
Page 6
development. He said that he will submit a letter from potential buyers who would not
be willing to purchase property because of the visual impact of the tower. He presented
the Board with a preliminary plan for development of the area. He noted the scenic
quality of the property.
Ken Thill, 3300 Brunskill Road, spoke in opposition. He said he is concerned with a
decrease in property values.
Eric Mobius explained that the cell tower is a permitted use in this district, and that U.S.
Cellular is only asking to waive the height and setback requirements. He presented
photos to the Board demonstrating various views from Mo Dolphin's property to the
adjacent residential properties. He stated that currently many of the residential
properties in question are being developed despite the presence of two existing cellular
towers.
Angie Hollihan discussed the terrain of Dubuque and its affect on cell tower
performance. She discussed the E-911 capabilities of the tower and the ability for co-
location. Mr. Stock and Mr. Gronen reviewed the photographs that were submitted to
the Board by Eric Mobius.
Staff Member Kritz presented the staff report, noting that the tower does not require a
conditional use permit, only a variance. He stated that the tower will be 250 feet high
with a 25-foot lightning rod. He noted that the tower will be lighted during the day and
night. He referred to a letter that showed required ground coverage for cellular service
in the area. He referenced the letter and petition from Ben Roth, an attorney
representing Toby Kress, an adjacent property owner.
Board Member Gasper noted the setback requirements for towers, and asked if other
buildings could be built on the adjacent parcels without receiving a variance. Staff
Member Kritz stated that the adjacent property owner also owned the property the cell
tower is to be located on.
The Board reviewed the criteria for granting a variance from both height and setback
requirements. The Board discussed placing conditions on approval, based on staff's
recommendation that the driveway be paved and the equipment compound be
screened. Board members felt that the requests met the conditions for granting a
variance.
Motion by Urell, seconded by Gasper, to approve the variance with the condition that: 1)
the new tower be designed to be co-locatable for up to four sets-of antennas; 2) the
access road be paved; and 3) the 'equipment compound be screened as per City of
Dubuque standards. Motion was approved by the following vote: Aye -Urell, Gasper
and Ruden; Nay - Beeler; Abstain - Klauer.
DOCKET 30-02: Application of Georgia WagnedRobert McCoy for a variance for
property located at 269 Main Street to open a bakery/coffee shop, with a deficit of three
off-street parking spaces, in a C-4 Downtown Commercial zoning district.
Minutes- Zoning Board of Adjustment
May 23, 2002
Page 7
The applicant's asked that their request be tabled until the next regular meeting.
Motion by Urell, seconded by Gasper, to table Docket 30-02 at the applicant's request.
Motion was approved by the following vote: Aye- Klauer, Urell, Gasper, Beeler and
Ruden; Nay - None
DOCKET 31-02: Application of Scott Potter for a variance for property located between
511 & 515 Garfield Avenue, to reconfigure a parking lot for two 19-room rooming
houses and provide 12 parking spaces, 29 spaces required, in an OR Office Residential
zoning district.
Scott Potter presented his application to the Board. He discussed the parking
requirements for his development on Garfield Avenue and noted that most of his
renters are pedestrians and bicyclists with few drivers. He said that he is in favor of
screening the parking area as required by the City.
Staff Member Hemenway presented the staff report, noting that the parking variance is
for two 19-room SROs, where 29 spaces are required and 12 will be provided. He
noted that the applicant had a prior variance approved for the first single-room
occupancy to provide 12 spaces when 14 were required. He stated that subsequently
the applicant has decided to build a second 19-room SRO and create a shared 12-
space parking lot for both structures. He stated that there appears to be abundant on-
street parking on Garfield Avenue and adjacent side streets. He also stated that the
parking lot will be accessed from the alley behind the residential structures and that Mr.
Potter had been given preliminary site plan approval for his project from City staff.
The Board reviewed the criteria for granting a variance, stating that they felt a SRO of
this nature would not generate a very large demand for parking. The Board felt the
request met the criteria for granting a variance.
Motion by Gasper, seconded by Urell, to approve the request as submitted. Motion was
approved by the following vote: Aye - Klauer, Urell, Gasper, Beeler and Ruden; Nay -
None
DOCKET 16-02: Application of Lamar Advertising (tabled) at 245 W. 1st Street to
appeal staff's interpretation regarding on-premise signage.
DOCKET '17-02: Application of Lamar Advertising (tabled) at 1745 John F. Kennedy
Road to appeal staff's interpretation of on-premise signage.
The Board decided to hear Dockets 16-02 and 17-02 at the same time and to vote
separately on each docket.
The Board reviewed the letter submitted by the Gene Bird Sign Company.
Jim Schumacher, Lamar Advertising, reiterated the technical definition of on-premise
Minutes - Zoning Board of Adjustment
May 23, 2002
Page 8
and off-premise signage as outlined in the City of Dubuque Zoning Ordinance. Mr.
Schumacher described the location of the U.S. Cellular sign on 1st Street and the
Hyundai sign on John E. Kennedy Road. He stated thatboth signs are owned by
Lamar Outdoor Advertising Agency, and serve as billboards that are not intended to be
on-premise signage. He noted that the structures were legally built. He presented
photos of various billboards throughout the City that he stated represented on-premise
signage as per the City definitiOn. He stated that he originally proposed a sign With an
arrow pointing to the business below at U.S. Cellular's 1st Street store, but had
determined that that would be on-premise signage and removed the arrow.
Mr. Schumacher stated that he feels that the complaint by a rival sign contractor was
unfair. He stated that regulating the content of billboard signs is against the first
amendment. He stated that Lamar Advertising owns the sign and sign structure and
that the sign is leased to a business. He stated that he is concerned with staff's
interpretation that the U.S. Cellular sign is on-premise because that runs counter to his
understanding based on prior discussions with City staff. He discussed photographs
showing signs he stated represented products advertised on billboards that are also
sold on-site. He said he feels that off-premise signage, or outdoor advertising, is
different from on-premise signage because of the difference in structures and
ownership. He stated that he feels that sign content is irrelevant. Mr. Schumacher
referred to the State of Iowa's definition of outdoor advertising.
Mike Coyle, attorney representing CalCars Hyundai dealership, stated that he feels the
sign was not on on-premise sign. He stated that his client leases the building and the
parking lot from Orca Companies. He said that Lamar Advertising is the owner of the
sign and Orca does not own it. He referred to Section 414.1 of the Iowa Code.
Staff Member Hemenway presented the staff report, noting that free speech and
constitutional issues are beyond the scope of what the Board is being asked to
determine. He read both the on-premise and off-premise definitions for signage as
outlined in the City of Dubuque Zoning Ordinance. He noted that the Lamar signs in
question are on-premise and advertise products that are sold on-premise, stating that
the definition of on-premise signage is content neutral because it allows any product to
be sold, except for goods, products or services that are advertised on-site, which then
makes it an on-premise sign. He stated that zoning enforcement of off-premise signage
is complaint-based, and that he responded to a complaint lodged by a citizen regarding
excessive on-premise signage at two locations.
Assistant City Attorney Tim O'Brien referred to the U.S. Cellular sign and stated that
state and federal codes, the Highway Beautification Act and ordinances from other
communities are not germane to the Board discussion. He said that the City of
Dubuque Zoning Ordinance is the only code that can be interpreted and enforced by
City staff and reviewed by the Zoning Board of Adjustment. Mr. O'Brien said that the
sign is on-premise as defined by the City of Dubuque Ordinance. He referred to Iowa
Code 414.1 stating that this section of the code allows cities to regulate the use to
which the structures are put. He asked the Board to affirm the Zoning Administrator's
interpretation regarding the definition of on-premise signage.
Minutes - Zoning Boa~ of A~ustment
May 23,2002
Page 9
Mr. Coyle rebutted reiterating the definition of off and on-premise signage and referring
to private easements and lease arrangements between Lamar Advertising, CalCars and
the property owners. Mr. Coyle did not submit any maps, plats or lease documents.
Mr. Schumacher referred to the photos stating that there is inconsistency in
enforcement and regulation of billboards. He referred to ordinances from other cities
and discussed what he considered a more logical way to regulate off-premise signage.
Staff Member Hemenway rebutted stating City staff do not regulate private leases and
easements. He stated that a basic tenet of zoning law and zoning enforcement is a
parcel-based definition of premises. He also stated enforcement of signage is
complaint-based and that City staff is bound to respond to complaints.
Staff Member Kritz stated that billboards shown by Mr. Schumacher at IOCO and Dan
Kruse Pontiac were actually on separate platted lots and, therefore, not deemed on-
premise signage. Tim O'Brien stated that Mr. Schumacher is asking the Board to
amend the ordinance, but that the City Council is the only body that can per[orm such a
function. He stated that the Board should review the definition of off-premise signage
and uphold the interpretation of the administrative officer.
Chairperson Ruden stated that he was formerly on the Billboard Ad Hoc Committee,
and there had been some concerns expressed regarding this situation. He said that he
feels the staff interpretation is correct. Board members discussed staff's interpretation
and felt that the ordinance was logical and that the staff's interpretation of the definition
of on-premise and off-premise signage is correct.
Motion by Gasper, seconded by Urell, to affirm staff's interpretation of the definition of
on-premise signage. Motion was approved by the following vote: Aye - Klauer, Urell,
Gasper, Beeler and Ruden; Nay - None
DOCKET 33-02: Application of Art Gilloon/Dubuque Yacht Basin appealing staff's
interpretation regarding mobile homes..
Art Gilloon stated that he was the attorney representing Don Shanley and the Dubuque
Yacht Basin. He said Mr. Shanley has been developing the yacht basin for over 30
years. He stated that Park Models have been a part of the development since 1988.
He distributed a copy of the site plan approval for Mr. Shanley's most recent proposal to
add paved pads and three-season porches to a portion of the property. He also
distributed copies of the definition of mobile homes and recreational vehicles according
to State of Iowa Code. Mr. Gilloon reviewed both definitions and stated that Park
Models are included in the Zoning Ordinance's definition of a recreational vehicle.
Mr. Gilloon compared the size of recreational vehicles and Park Models. Mr. Gilloon
also compared the size fifth wheel RVs to that of Park Models. Mr. Gilloon provided a
registration of Park Models stating that it indicates that they are travel trailers. Mr.
Gilloon explained the concept of destination travel, for which he said Park Models fill
the need. He reviewed HUD definitions of recreational vehicles. He also discussed the
Minutes - Zoning Board of Adjustment
May 23, 2002
Page 11
MINUTES & NOTICES OF DECISION: The minutes of the April 25, 2002 meeting and
Notices of Decision for Dockets 18-02, 19-02, 21-02, and 24-02 were approved as
submitted.
Motion by Gasper, seconded by Urell, to approve the minutes and notices of decision
as submitted. Motion was approved by the following vote: Aye- Klauer, Urell, Beeler
and Ruden; Abstain - Gasper.
ITEMS FROM BOARD: Board members asked that the City staff advertise the
upcoming vacancy on the Board to the Chamber of Commerce, Board of Realtors and
Developers Roundtable as they deemed necessary.
Motion by Gasper, seconded by Klauer, to direct staff to advertise for the upcoming
Board vacancy. Motion was approved by the following vote: Aye - Klauer, Urell,
Beeler, Gasper and Ruden; Nay - None.
ADJOURNMENT: The meeting adjourned at 7:53 p.m.
Kyle L. Kritz, Associate Planner Adopted