Minutes_Zoning Board of Adjustment 1 24 19 Copyrighted
February 18, 2019
City of Dubuque Consent Items # 1.
ITEM TITLE: Minutes and Reports Submitted
SUMMARY: Arts and Cultural Affairs Advisory Commission of 2/6; City
Council Proceedings of 2/4, 2/7, 2/11, 2/13; Airport
Commission of 1/28; Catfish Creek Watershed
Management Authority of 2/7; Five Flags Civic Center
Commission of 2/4; Investment Oversight Advisory
Commission of 1/23; Library Board of Trustees City
Council Update #179 of 1/24; Zoning Advisory
Commission of 2/6; Zoning Board of Adjustment of 1/24;
Proof of Publication for City Council Proceedings of 1/22,
1/28.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
Arts and Cultural Affairs Advisory Commission Minutes Supporting Documentation
of 2/6/19
City Council Proceedings of 2/4/19 Supporting Documentation
City Council Proceedings of 2/7/19 Supporting Documentation
Airport Commission Minutes of 1/28/19 Supporting Documentation
Caffish Creek Watershed ManagementAuthority Supporting Documentation
Minutes of 2/7/19
Five Flags Civic Center Commission Minutes of 2/4/19 Supporting Documentation
InvestmentOvesightAdvisory Commission Minutesof Supporting Documentation
1/23/19
Library Board of Trustees City Council Update#179 of Supporting Documentation
1/24/19
Zoning Advisory Commission Minutes of 2/6/19 Supporting Documentation
Zoning Board of Adjustment Minutes of 1/24/19 Supporting Documentation
Proof of Publication for City Council Proceedings of Supporting Documentation
1/22/19
Proof of Pubicaton for City Council Proceedings of Supporting Documentation
1/25/19
�u6uque
tHec�rvor �ii�� Dm���
DUB [JE '������ � a
Mnster'�iere mi fhe Missis=i� � %om��mv
F ip so��zm�
MINUTES
CITY OF DUBUQUE ZONING BOARD OF ADJUSTMENT
REGULAR SESSION
5:00 p.m.
Thursday, January 24, 2019
City Council Chamber, Historic Federal Building
Board Members Present: Chairperson Jonathan McCoy, Board Members Keith
Ahlvin, Jeff Cremer and Bethany Golombeski; Staff Members Guy Hemenway and
Travis Schrobilgen.
Board Members Excused: Joyce Pope.
Board Members Unexcused: None.
CALL TO ORDER: The meeting was called to order by Chairperson McCoy at 5:02 p.m.
AFFIDAVIT OF COMPLIANCE: Staff presented an Affidavit of Compliance verifying the
meeting was being held in compliance with the lowa Open Meetings Law.
MINUTES: Motion by Golombeski, seconded by Ahlvin, to approve the minutes of the
December 20, 2018 Zoning Board of Adjustment meeting as submitted. Motion carried by
the following vote: Aye —Cremer, Ahlvin, Golombeski and McCoy; Nay— None.
DOCKET 50-18/Appeal: Appeal of Eric McSperrin for off-premise residential storage.
Attorney Scott J. Nelson, 3003 Asbury Road, Suite 1, said that he represents Mr. Eric
McSperrin. He submitted a two-page letter outlining Mr. McSperrin's appeal regarding
what he termed the alleged illegal residential storage at 479 Kaufmann Avenue.
Board Members reviewed the document.
Mr. Nelson addressed the Board, noting that garages are permitted in all residential
districts. He said that there is nothing in the Unified Development Code (Code) that
explicitly states that the use of the garage for someone who is not a resident of the
property is not permitted. He cited Code language regarding residential use. He said
that nowhere in the Code is non-occupant storage in a residential garage addressed.
He said that the use of a garage, which is expressly permitted in an R-1 District, is
incidental and subordinate to the main use of the property. He said that using a garage
for storage complies with Section 3-7.1 of the Code and that the use is specifically
authorized, is subordinate and is located on the same zoning lot with the principle
strudure. He further stated that the neither the definition sedion nor Sedion 3-7.1 of
Zoning Board of Adjustment Minutes
January 24, 2019
Page 2
the Code make any reference whatsoever to staff's contention that the accessory use
of garage only pertains to occupants or residents of the property.
Mr. Nelson said that he felt that if this were the intent of the ordinance, it would clearly
say so on its face. He said there is no evidence that the use of a garage by a non-
resident would displace materials and that there was also no evidence that the garage
in question was being used for anything other than a garage. He said there is no auto
repair or commercial storage going on in the subject garage. He said the Code
references the use of the garage and not the occupants of the property. He said that
the use of the garage would be the same no matter who is making use of it — be it a
resident of the property or Mr. McSperrin.
Mr. Nelson said that the language in the Code regarding storage on residential lots is
ambiguous and that ambiguity must always, as a matter of law, be resolved against the
maker. He stated that the UDS's intent to promote health, safety, sustainability and the
general welfare of the community and to preserve places and areas for historical and
cultural importance and significance is not affected by Mr. McSperrin's use of the
garage. He further cited sections of the Code, noting that the garage does not impact
congestion in the streets, cause a fire or other hazard, and does not limit adequate light
and air, cause overcrowding of the land, or create an undue concentration of
population. He said further that Mr. McSperrin's use of the garage does not affect
transportation, water/sewage, schools and parks, or sustainable design and
development.
Mr. Nelson said the question is how is the lawful use of a garage by a resident
somehow different from the identical use of the same garage by a non-resident. He
said the answer is clearly that it does not. He said the only way to reach staffs
conclusion is to ignore the clear language and intent of the Code and read into it
something which is not there — the differentiation between a resident and non-resident
use. He said that staff's recommendation contained in the memorandum clearly falls
outside of the clear language of the Code, and is an improper interpretation that does
not conform with the UDC or with simple logic, and thus is wholly improper. He said
that Mr. McSperrin's use of the garage is a perfectly legal and appropriate use under
the UDC, and that the Board should vacate the September 6, 2018 Notice of Violation
issued to Mr. McSperrin.
Staff Member Hemenway rebutted, stating that the Code defines accessory use as a
use that is incidental, related, appropriate and clearly subordinate to the main use of the
lot or building. He stressed that accessory uses must be related to the residential use
of the lot. He said that accessory uses should not alter the principal use of the subject
lot or affect properties in the district. He said that if a garage is used by a non-resident
then there is no connection between the accessory structure and the residential use on
the property. He stated that using a garage for commercial storage is not listed as a
permitted use in any one of the residential districts. He said it is highly unlikely that
Zoning Board of Adjustment Minutes
January 24, 2019
Page 3
someone would offer valuable garage space on a residential lot to a non-resident
without reimbursement. He said that the use of a garage by a non-resident constitutes
commercial storage. He said that the Code language simply means that on a
residential lot, all storage of vehicles and other materials must be accessory to the
residential use of the lot and only to be used by occupants of the residence. He said
this limitation is placed on residential lots and is intended to protect and preserve the
residential use and character of the neighborhood.
Staff inember Hemenway said that accessory structures are allowed on residential lots
to supplement and enhance the principle structure and the residential use of the
property. He said generally, accessory structures allow for additional storage for those
vehicles and materials typically associated with residential properties, such as
lawnmowers, bicycles, barbeque grills, sports equipment, ladders, tools, gasoline
engines, propane and vehicles that may not be appropriate inside houses or materials
such as ladders and canoes that may not fit within a house. He said that garages also
serve to satisfy the required off-street parking for a residential unit. He said that the
Board's charge is to determine whether the staff's interpretation of the Code language
is accurate and true to the intent of the Ordinance.
Board Members Cremer noted that this had been the first opportunity for the Board to
hear an appeal. He asked for staff to clarify the appeal process. Staff Member
Hemenway noted that any challenge to the Board's decision on the appeal would have
to be heard in District Court.
Chairperson McCoy asked staff if there were any clear criteria for the Board to follow
regarding an appeal. Staff Member Hemenway said that it is the Board's responsibility
is to determine if staffs interpretation of the Code language is true to the intent of the
Ordinance and that there are no set criteria that would apply to that determination.
Mr. Nelson rebutted, stating that staffs contentions are pure speculation regarding what
kind of commercial uses may occur in the garage. He questioned what difference it
makes who is using the garage. He said that if the appellant was using the garage for
commercial activity, such as auto repair, that would be clearly illegal under the Code.
He said; however, that is not what is occurring in the subject garage. He said that all
ambiguity in the Code is construed against the author of the Code. He said that those
who drafted the Code must explicitly indicate that storage on a residential lot for a non-
resident is not allowed.
Board Member Ahlvin asked if the garage is rented. Mr. Nelson said that it was rented.
Board Members asked if this was a paid transaction or a commercial transaction. Mr.
Nelson said that it was simply a transaction. Mr. Nelson said that there is nothing in the
Code that explicitly bolsters staff's contention that a residential garage cannot be rented
to someone who does not live on the property.
Zoning Board of Adjustment Minutes
January 24, 2019
Page 4
Staff Member Hemenway rebutting, noting that Mr. Nelson stated that the current
residents of the property are not using the garage. Staff inember Hemenway said that is
because the garage is not available to them. He said that as there are thousands of
parcels, dozens of zoning districts, and hundreds of uses throughout the community,
and that the Code cannot explicitly address every situation. He said; therefore, the
Board's charge is to determine if staffs interpretation of the Code language is accurate
and true to the intent of the Ordinance. He said that the intent is very important,
because while there may be gray area is some parts of the and Zoning Ordinance, the
intent here is, in his opinion, very clear.
He said the property in question is located in a residential zone and he noted that the
Board's ultimate interpretation would apply to all residential districts within the city. He
noted that the root word in the term "residential" is resident. He said that, in other
words, residential districts are intended to provide areas within the community that are
reserved for the people who live there. The intent, he said, is to limit non-residential
activity, which he said could include commercial activity, such as storage, auto repair, or
any other number of uses. He noted that the Code Enforcement Officer is very busy
regulating this type of illegal activity in residential districts. He said that this kind of
activity can lead to the accumulation of materials, many of which are not typically found
on residential lots. He said that non-residential use of a garage can lead to excessive
noise, odors, and hours of operation that can have a negative effect on the
neighborhood and lead to blight.
He said there are many permitted accessory uses allowed on a residential lot. He
referenced a backyard barbeque that may be held by a resident, noting that just
because a backyard barbeque is permitted, a retail restaurant would not be permitted.
He said the intent of the Ordinance is that residential accessory structures be used by
the residents of the house located on the property. He recommended the Board affirm
the interpretation that storage of vehicles and materials on a residential lot for other
than residents on the premises constitutes illegal commercial activity and is not
permitted in residential districts.
Board Members discussed the request. Board Member Ahlvin said that he does not
see commercial storage listed as a permitted or conditional use in any of the city's
residential districts.
Board Member Cremer said that he felt that the use of a residential garage other than
by the residents on the property does not promote health, safety, and general welfare in
a residential neighborhood. He said therefore he is inclined to affirm staffs
interpretation.
Board Member Golombeski referenced the preamble to the Single-Family Residential
District, noting that it is the most restrictive residential district and is intended to protect
low density residential areas from the encroachment of incompatible uses. She said
Zoning Board of Adjustment Minutes
January 24, 2019
Page 5
that the principle use of the land in this district is for low density single-family dwellings,
noting that a commercial garage would not meet the intent of the single-family district.
Chairperson McCoy said that the use of the garage was clearly a commercial use.
Motion by McCoy, seconded by Golombeski, to affirm staffs interpretation that storage
of vehicles and materials in a residential lot for other than residents on the premises
constitutes illegal commercial storage, and is not permitted in a residential district.
Motion carried by the following vote: Aye — Cremer, Ahlvin, Golombeski and McCoy;
Nay — None.
ITEMS FROM STAFF: None.
ITEMS FROM BOARD: None.
ITEMS FROM PUBLIC: Mr. Nelson further debated the Board's decision and staff
interpretation regarding storage in a residential garage. He said that there are many
activities such as a swimming pool party where those throughout the neighborhood are
utilizing a residential property but are not residents of said property.
Mr. McSperrin said that he disagreed with the Board's interpretation and said there is
nothing in the Ordinance that says he cannot store in a residential garage.
Chairperson McCoy said that he understood Mr. McSperrin's concerns, but the case had
been heard and decided on.
ADJOURNMENT: Motion by McCoy, seconded by Golombeski, to adjourn the January 25,
2019 Zoning Board of Adjustment meeting. Motion carried by the following vote: Aye —
Cremer, Ahlvin, Golombeski and McCoy; Nay — None.
The meeting adjourned at 5:50 p.m.
Respectfully submitted,
Kyle L. Kritz, Associate Planner Adopted