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HomeMy WebLinkAbout1982-05-17-Board of Adjustment MinutesApril 26,1982--cont Moved by Thompson,second by Inman,to appoint Jerome Volkmer as vice- chairman.Carried 4 to O. Mike Aldrich arrived at this point in the meeting. Moved by Thompson,second by Anderson to adjourn.Carried 5 to O. Meet'11J:g"adjourned.::.::::':::::::::: May 17,1982 The May regular Board of Adjustmeftt meeting ,,__2,;,21p.m.Members present were:',Anderson, were:Thompson &Aldrich. was called to order at Inman,Volkmer.Absent Moved by Anderson,second by Volkmer,to approve minutes as read. Carried 3 to O. Moved by Volkmer,second by Anderson,to accept the application and certificate as presented.Carried 3 to O. Moved by Anderson,second by Volkmer to accept by-laws as presented: \VAUKEE,IO\VA BOARD OF ADJUSTI~NT GUIDELINES AND BY-LA\VS INDEX DIVISION I Why a Board of Adjustment ......... DIVISION II Powers and Duties of the Board.......3 DIVISION III Steps for Board Action...........10 DIVISION IV Waukee Board of Adjustment By-Laws ..... May 17--cont DIVISION I mIY A BOARD OF ADJUSTM~NT? A.ZONING ADMINISTRATION.In recent years many cities and towns '"I iv Iowa have adopt~1 a zoning ordinance.The purpose of these ordi- nances which usually consist of a zoning map and text is to carry out a long range land use plan for the community. Getting the ordinance on the books is only the first step.Atten- tion to enforcement of the ordinance is essential.A good ordinance poorly enforced and administered may actually be harmful to the community and its citizens.In fact,how well a zoning ordinance achieves the purposes for which it was adopted depends largely upon how well those responsible for its enforcement and administration do their job. Most zoning ordinances depend for enforcement and administration upon a zoningadmih"isb:a'tor and a'board of 'adjustment (sometimes ~alled a board of zoning appeals). B,ZONING ADMINISTRATOR.The duties of the zoning administrator is clearly defined.Most important are: 1.The inspection of plans and the issuance of permits for proposed construction which meets the requirements of the zoning ordinance,the building code,and other city ordinances,and, 2.The inspection of work in progress to assure that construction complies with the permit as issued. C.BOARD OF ADJUSTMENT.A zoning ordinance cannot provide for all conceivable situations to which it must apply.Provision must be made to temper the strict application of the ordinance and yet achieve the purposes of the land use plan which the ordinances ---_._--es"t5bIishes. The board of adjustment is the safety valve by which practical development problems of the community may be met within the provi- sions of the zoning ordinance.Without this body to decide on such matters,solutions to these development problems could only be accomplished by amendment of the ordinance. -2 -) -3 - May 17,1982---cont Amendments designed to meet these individual situations usually result in piecemeal consideration of zoning nroblems.A front yard is reduced;a single lot is rezoned from residential to business use. Small changes--yes,but taken cumulatively,they can result in defeating the purposes of the land use plan. The board of adjustment is one of the administrative devices which cities may use to provide for special cases where the exact application of the terms of the ordinance would be unduly restric- tive.Its function is to hear and decide upon the interpretation and the application of the provisions of the zoning ordinance to these cases.Although the board has certain discretionary powers in making its decisions,these powers have definite limits.The board must always abide by and comply with the powers granted to it by the local zoning ordinance and the state enabling act. DIVISION II PO"ffiRSAND DUTIES OF THE BOARD A.SOURCE OF PO~RS.The state enabling law which permits cities and counties to adopt zoning ordinances usually contains a pro- vision for the creation of a board of adjustment.These laws also define the powers and duties of the board. When a city adopts a zoning ordinance it creates the board to carry out the functions as set out in the state zoning law.If the state law does not specifically provide for the creation of a board of adjustment,the city or county has no authority to establish one. Sections 414.8 -414.18,Code of Iowa,establishes the pro- cedures for the board of adjustment and the methods of appeal therefrom. B.PO~RS AND DUTIES.The board of adjustment is specifically empowered to hear certain matters,but is limited,by Section 414.12,Code of Iowa,which provides as follows: -4 - May 17,1982--cont 1.To hear and deicde appeals where it is alleged there is error in any order,requirement,decision,or determination made by an administrative offica1.in the enforcement of this chapter I or of any ordinance adopted pursuant thereto.',1 2.To hear and decide special exceptions to the terms of the .I ordinance upon which such board is required to pass under such ordinance. 3.To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest,where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship,and so that the spirit of the ordinance shall be observed and substantial justice done. In performing its functions,the board must accept the zoning ordinance as set forth in the Municipal Code of the City of Waukee. It cannot use its powers to adjust special cases if in so doing the intent of the ordinance is violated.No matter how worth- while the board may believe a proposal to be,it has no power to consider the proposal except within the scope and purposes of the zoning ordinance.Correcting what it may consider to be impro- per zoning is not within its jurisdiction,but is a job for the city council. The board of adjustment never acts except on appeal from a decision of the official responsible for enforcement of the zoning ordinance.In most cases this official will be the zoning gdmiBis~- trator.Before a person can appeal to the board,he must have applied to the zoning administrator for a building permit.If uIlde-r--t-he-previ&ioRSO£-the-erditlance,-the·pe-rm4ct-i-6-ElenieEl,-the . matter may then be appealed to the board of adjustment. The basis upon which the permit has been denied determines the type of appeal made to the board;that is,an appeal will be for an interpretation of the meaning of the ordinance,for a special exception,or for an adjustment. 1.Interpretation.Questions may arise as to the interpretation May 17,1982---cont of a particular provision of a zoning ordinance.All such questions of interpretation are decided by the board of adjustment. EXAMPLES: (a)An ordinance may list specific uses permitted in neighborhood business districts and in addition may permit "any similar business or service which is established for the convenience of neighboring residents."Among the permitted uses listed is a filling station.An applicant requests a permit for a repair garage,claiming that it meets the conditions for this district set forth in the ordinance.The zoning administrator agrees that the garage would be for the "convenience of neighboring residents," but denies that it is similar to a filling station.The permit is refused and an appeal for interpretation is made to the board of adjustment. (b)Another case on which the board takes action may arise when an applicant for a building per~it disagrees with the zoning administrator regarding the location of a boundary line between districts.For examnle,the line between a business and an industrial district may be in question in regard to the applicant's property. An appeal for a decision on the exact location of the district boundary is made to the board. (c)Although most zoning ordinances clearly define the term, "customary home occupations,"they may not list all of the specific uses that can be included in this category.An applicant may appeal for a building permit to remodel a portion of a residence for use as a beauty shop.The applicant,believing this to be as much of a home occupation as dress-making or taking boarders,appeals to the board for a decision. 2.Special Exceptions.Most zoning ordinances provide that certain specific uses may be established only with the approval of the board of adjustment and subject to such conditions as the board may require in order to carry out the purpose of the ordinance. The following quotations illustrate the types of provisions found in zoning ordinances which govern board action in granting special exceptions. -5 - May 17,1982---cont EXAV1.PLES : (a)"Hithin a residential district municipal,county, state,or federal use,public parks,public utilities,cemeteries, hospitals for human care,except primarily for mental cases,philan- thropic institutions;clubs,except a club the chief activity of which is a service customarily carried out as a business;and golf courses are permitted;provided,however,that no permit shall be issued for these uses except with the written approval of the board of adjustment and subject to such conditions as the board may require to preserve and protect the character of the district and otherwise promote the purposes of this ordinance." (b)"In the case of a housing project consisting of a group of two or more buildings to be constructed on a plot of ground of at least two (2)acres not subdivided into the customary streets and lots and which will not be so subdivided or where the existing or contemplated street and lot layout make it impracticable to aoply the requirements of this ordinance to the individual buildings in such housing projects,the application of such requirements to such housing project shall be done by the Board of Adjustment in a manner that will be in harmony with the character of the neighborhood, will insure a density of land use no higher and a stardard of open space at least as high as required by this ordinance in the district in which the proposed project is to be located.In no case shall the Board of Adjustment authorize (1)a project without prior approval of the planning commission and (2)a use of a building height prohibited in the district in which the housing project is to be located." The zoning administrator must deny an application for a building perfil f foY·uses·r equ lr Lng a ·specnn -exceptil:lTI;-"I'he:app-li:catIon IS then referred to the board of adjustment. The board,in reviewing the application for a special exception, will investigate the type of use proposed,the size of the main building and other structures,the amount of yard and open space, and,on the basis of these and other related facts,determines whether or not the use as proposed is in conflict with the zoning ordinance. -6 - 1 Hay 17,1982---cont One important point--uses coming before the board as special exceptions are permitted uses and cannot be prohibited if there is compliance with the conditions which the board may impose. Thus,if the board finds the use as proposed does not conflict with the purpose and intent of the ordinance,it must approve the application for a special exception,and the zoninE administrator must issued the building permit. If the board finds the use as proposed is in conflict with the purposes and intent of the ordinance,it may require that certain conditions be met before approval is given.These conditions may include requirements for a greater amount of open space,the use of mechanical devices to control dust and smoke,or a specific location for entrance and exit drives.The facts of the case must, however,indicate that fulfillment of the conditions required is necessary to carry out the intent of the ordinance.Once the board of adjustment has given written approval to an application for a special exception,the zoning administrator must issue a building permit,subject to the conditions which the board has imposed. 3.Adjustments.The preceding two functions of the board of adjustment--interpretation and special exceptions--are clear cut. However,the function of the board to make adjustments in the application of the ordinance is not well understood.In many cases this may be the principal reason a zoning ordinance loses much of its effectiveness. (a)General Rules for Board Action.In making adjustment, the board may not make any decision which is contrary to the purpose and intent'of the zon'ing'ordin'ance.For examplc,it has no power to permit business establishments to invade residential districts in which such business uses are prohibited.To do so is not an adjustment in the zoning ordinance but an amendment ot it.Amend- ments are made only by the city councilor legislative body. Adjustments permitted under the powers granted to the board are not adjustments of a particular provision of the ordinance.They are,rather,an adjustment in the application of the provision -7 - May 17,1982---cont to a particular parcel of land.For example,an applicant for a building permit in a residence district may find that the 30 ft. front yard requirement of the ordinance cannot be applied to his particular lot if he is to use it for residential purposes.The lot may be too steep to provide the required yard and still utilize practical construction methods.In this case the board of adjust- ment may review the facts relating to the particular lot and con- ceivably could permit the front yard requirement to be reduced. from 30 to 20 feet without destroying the intent of the ordinance. A situation which applies generally throughout an area is not treated as an adjustment.Such matters should be handled through an amendment to the zoning ordinance and not be the wholesale application of the discretionary pwoer of the board of adjustment. There is no basis for granting an adjustment in the provisions of a zoning ordinance unless a particular parcel of land represents peculiar and special conditions. The board may not act unless the zoning ordinance prevents a reasonable use of the property.Each application for an adjust- ment which comes before the board must meet several conditions or tests before the application may be approved. (b)Tests for specific cases.Unnecessary hardship must be proven.There is no hard and fast definition of "unnecessary hardship."It is necessary to hear all of the facts and measure each case on its own merits.There are a number of guides based on legal precedent leading toward the meaning of the phrase.These are: (1)The premises cannot be used in a manner permitted by -----------------------------------------------------------------------_..---- the zoning ordinance unless the adjustment is granted. (2)A strict application of the terms of the zoning ordi- nance will preclude its use for any purpose to which the land is reasonably adapted. (3)Inability to put the property to its most profitable use does not constitute "unnecessary hardship." (4)The hardship must be a compelling force. -8 ,- j -j May 17,1982----cont (5)Mere inconvenience to the auulicant is not sufficient grounds for "unnecessary hardship." (6)Value alone is not the proper criterion in determining "unnecessary hardship"within the meaning of the law. The burden of proof of "unnecessary hardship"rests upon the applicant,and without such proof an adjustment must be denied. Furthermore,the hardship must be peculiar to the lot in question and must not be commons to other properties in the district.If the condition of hardship is common to other property nearby,the corrective measure which should be undertaken is for the city council or legislative body to initiate an investigation of the need for a change in the zoning ordinance.The granting of an adjustment in such a case is improper. The hardship must also be created by the ordinance.If the hardship is caused by actions of the owner,the applicant,or some other person,relief by means of an adjustment may not be granted. Such a situation would arise where hardships result from improvements made in violation of the zoning ordinance,either willfully or innocently,in which case an adjustment may not be granted. (c)The public interest must be served.A major considera- tion in hearing an appeal for an adjustment is whether or not granting of the adjustment will serve the public good.The board may not grant an adjustment when the action would injure and endanger other property or persons.In considering the public inte- rest it is perhaps well to review the purpose of zoning in the state legislation,which generally states that zoning ordinances are to be designed "to less congestion in streets;to secure safety from fire,panic,and other danger;to promote public health and general welfare;to provide adequate light and air;to prevent overcrowding of land;to avoid undue concentration of population;to facilitate adequate provision for transporation,water,sewer schools,parks,and other public requirements;and to encourage the most appropriate use of land." (d)The spirit of the ordinance must be upheld.It is incumbent upon the board of adjustment to see that the granting -9 - May 17,1982---cont of the adjustment will not be contrary to the general land use plan which the ordinance establishes.The board may never,acting within) its powers,destroy the provisions of the ordinance.In granting 1,1 an adjustment the board will wish to assure itself that its action is in harmony with the ordinance. Substantial just'ice In'ustbe done.In its decision on an appeal for an adjustment,it is the duty of the board to see that substantial justice is done to all parties concerned--the applicant,the people directly affected and the general public. DIVISION III STEPS FOR BOARD ACTION A.WHAT TO DO.The board of adjustment may wish to consider taking the following steps in order to prepare itself for its part in the administration of the zoning ordinance. 1.Study State enabling laws.State enabling laws permitting cities to zone generally include a statement on the exact powers given to boards of adjustment.It will also set forth any regular requirements for board organization and rules of procedure.(Section 414.8-15,Code of Iowa). 2.Study local zoning ordinance.Essential to the proper functioning of a board of adjustment is an understanding of the land use plan which the zoning ordinance seeks to promote.Only by understanding the over-all plan for the community will it be possible --fo-r--the'-ho'a¥d-o'f-'-adj-us'tmen't-E'o-'-d'e'E'eFmih'e'--'the'-ptl¥pD:g:efr 'a-nd-in'ten-t -()f the zoning oTainance.(See Waukee Municipal Code and City of Waukee Comprehensive plan.) Perhaps the best way such an understanding can be obtained is to hold a series of meetings with the local planning commission to review the studies undertaken by that board in preparing the zoning ordinance.In such discussion the board of adjustment can review the plans on which the zoning ordinance is based. The board of adjustment may also wish to call on the planning -10 - ] May 17,1982---cont commission for its advice on the relation of the community plan to specific cases coming Defore the board. 3.Establish rules.Definite rules of procedure will help the board to give proper consideration of all cases coming before it. Such rules will assure more uniform treatment of all appeals. All boards should consider the adoption of by-laws which will state specifically how facts are to be presented and how public hearings shall be conducted. Full public information on board actions should help the board to carry out its duties.In addition to the formal legal notices which are required,news stories on facts presented before the board and the basis for board decisions are helpful.Likewise --signs-pracea-on-pr-6peYty-indicatiTig-tha:r-tne-board-rsholiiiTig a:- public hearing to consider a special exception or an adjustment will also promote public understanding of the board's work. 4.Keep records.Actions of the board of adjustment may be subject to court review.It is su?,gested that the board keep complete records of the facts presented to it,the decisions reached by the board,and the reasoning behind the decisions. Most boards of adjustment find that the adoption of standard forms of action procedures reduces the possibility of the board itself going astray.Such standard forms also show a more complete record of board findings. B.CAVEAT -A WORD OF CAUTION.All ac tion of the board of adjustment are subject to review by the courts.It is,therefore, important that the board not exceed the authority granted to it. Generally speaking,a permit issued under a mistake of fact or in violation of law confers no vested right or privilege on the person to whom the permit has been issued.Such a permit may be revoked,notiwthstanding the fact that he may have acted upon it in good faith.Furthermore,expenditures made on the basis of an illegally issued permit are made at the peril of the applicant. In general the dangers of improper action on the part of a board of adjustment can be minimized by the following: -11 - May 17,1982---cont I 1.Adopt and follow by-laws for conducting the business coming before the board. 2.Keep within the authority granted to the board by the state enabling legislation and the local zoning ordinance. 3.Follow the procedures outlined in the state enabling legislation and local zoning ordinance. 4.Carefully identify all cases by the type of appeal being made.Is the appeal for an interpretation,a special exception, or an adjustment?The type of appeal determines the action the board may take. 5.Hold public hearings and notify interested parties in advance of the time and place of the hearing. 6.Act promptly in collecting facts needed for each case and in reaching a decision. Mistakes,errors,and illegal acts on the part of a board of adjustment may result in considerably injustice to the parties involved.Courts have consistently held that permits issued in violation of zoning regulations may be rescinded by a city even though construction may have already commenced.] DIVISION IV ~WAUKEE BOARD OF ADJUSTI1ENT BY-LAHS ARTICLE T.OFFICERS 1.The Board shall organiza and elect a Chairman,Vice-Chairman, and Secretary annually in the month of December. _~._Tb'"_CJlc<igmal1_sllliHpreJLLcJg_<it:aU_I!l"''''t:ing§gnd J"Le?:r::iTill~of the Board;he shall decide all points of order or procedure and shall appoint any committees that may be found necessary. 3.The Vice-Chairman shall assume the duties of the Chairman in his absence. 4.The Secretary shall conduct all official correspondence -12 - 1 1 May 17,1982---cont subject to these rules at the direction of the Board;shall send out all notices required by these rules of procedures;keep the minutes of the Board's proceedings;and keep a file on each case which comes before the Board. ARTICLE II.MEETINGS. 1.A regular meeting of the Board of Adjustment for the hearing of cases shall be held on the third Monday of each month at 7:00 P.M., unless no cases are pending,in which case no meeting shall be held. 2.Special meetings may be called by the Chairman,provided that at least 24 hours notice of such meetings is given each member. 3.A quorum shall consist of three (3)members. 4.The order of business at all regular meetings of the Board shall be as follows: A.roll call, B.reading of minutes of previous meeting, C.unfinished business, D.hearing of cases, E.new business. 5.The Board may adjourn a regular meeting if all applications or appeals cannot be disposed of on the day set,and no further public notice shall be necessary for such a meeting. ARTICLE II 1.PROCEDURE FOR HEARING CASES. 1.Appeals to the Board may be taken by any person affected by any decision of the ZonirigcAdt!linistratorand by applicants for a special exception or for an adjustment.Such appeal shall be filed with the Zoning Administrator on the form provided by the Board of Adjustment.The Zoning Administrator will transmit the appeal to the Secretary of the Board along with all papers constituting the record upon which the action appealed from was taken. 2.The applicant shall provide the Secretary with all information requested by the form prescribed by the Board of Adjustment,and any such additional information and data as may be required to advise the Board fully with reference to the application or appeal,whether such information is called for by the official forms or not.No -13 - A file of all material and decisions relating as part of the records to each case 1I, May 17,1982---cont application or appeal will be considered by the Board unless it is made on the form required. 3.An application or appeal filed according to the above procedure shall be given a case number within ten (10)days from the date filed.Application or appeals will be assigned for hearing in the order in which they are received. 4.The Secretary of the Board shall notify the parties in interest of ~he time scheduled for the public hearing of the case and give fifteen (15)days public notice in a newspaper of general circulation.The time for the hearing shall be within fourty-five (45)days after filing of notice of appeal or application.In all appeals to the Zoning Board of Adjustment reasonable advance notice of the hearing shall be mailed to the owners and occupants of the land within two-hundred feet of the site.The applicant or appellant shall be responsible for providing the names and addresses of persons entitled to mailed notice. 5.At the time of the public hearing the applicant may appear in his own behalf or be represented by counselor agent.The applicant's statement shall be made first,followed by that of the Zoning Admin-I istrator and any private citizen for or against the proposal.The J applicant shall be given an opportunity for final rebuttal. 6.Final decision of any application or appeal to the Board of Adjustment shall be in the form of a resolution which must be approved by a quorum of the membership of the Board. 7.Within thirty (30)days after the hering of the Board shall notify the parties in interest and the Zoning Administrator of its decision. ------------------------------- ARTICLE IV.DECISIONS BY THE BOARD. 1.If the appellant or applicant fails to appear,either in person or by another,to present his appeal or application to the Board on the date hearing is scheduled on the petition,the Board shall automatically deny the appeal or application. ARTICLE V. L RECORDS. shall be kept by the Secretary of Adjustment. 2.All records of the Board shall be a public record. of the Board -14 - May l7---cont E'1>'l71;:;ied3toO, Moved by Anderson,second by Volkmer to adjourn at 7;45 p,m. Carr:ied 3 to 0. **'********************************* Meet:ing adjourned, June 21,1982 The regular June meet:ing of the Board of Adjustment was held on June 21 and called to order at 7:21 p,m,by cha:irman Tom Inman. The follow:ing members were present:Inman,Anderson,Aldr:ich,and Volkmer.Absent:Thompson, Moved by Anderson,second by Volkmer,to approve the m:inutes of the May 17,1982 as read.Carr:ied 5 to 0, Frank Ho:ifeldt,cha:irman of P &Z,spoke to the Board regard:ing the roles of the comm:iss:ion and the Board :in the zon:ing,process, Moved by Aldr:ich,second by Anderson,to adjourn at 7:58 p,m, Carr:ied 5 to 0, Meet:ing adjourned, Tom August 16,1982 A meet:ing of the Board of Adjustment was held on August 16,1982 at 7:00 p,m.w:ith Cha:irman Tom Inman pres:id:ing.Members present were: Florence Anderson,Denn:is Thompson,and M:ike Aldr:ich.Absent was Jerome Volkmer. Guests were:Kay Harms,Don Stifel,Sue St:ifel,Ray Clark,George St:ifel,Tom Clark,Cec:il Reynolds,and Merle Rees. The m:inutes of the prev:ious meet:ing were approved, Kay Harms spoke to the Board concern:ing her var:iance request for a fence on C:ity property, Moved by Anderson,second by Aldr:ich,to d:iscuss Mrs Harms var:iance later.Carr:ied 4 to 0, Ray Clark spoke to the Board concern:ing h:is var:iance request for a garage add:it:ion and a var:iance for foot:ing depth, A d:iscuss:ion was held on both var:iance requests. Moved by Aldr:ich,second by Anderson,to deny the var:iance by Kay Harms for a fence on C:ity property,stat:ing that a fence requ:ires no bu:ild:ing perm:it and the Board could not make a judgement on C:ity property.Carr:ied 4 to 0.