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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