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HomeMy WebLinkAbout2009-09-21-Board of Adjustment MinutesEric Eide presented the applicant's basis for requesting the reconsideration noting that his principle argument for identifying the sale of wine in an agricultural district as a permitted use in the current ordinance is that the sale of wine,the production of wine,and the growing ofthe grapes,when lumped together as a single unit,is agricultural in nature. Mr.Eide identified existing language provided by the State ofIowa that has led him to believe that the sale of wine is a new form of accepted agricultural land use.Mr.Eide recited Iowa Code Section 441.21,subsection 12 which identifies the activities related to MINUTES OF THE SEPTEMBER 21,2009 BOARD OF ADJUSTMENT MEETING Call to Order.The September 21,2009 Board of Adjustment meeting was called to order at 5:30 p.m.by Chairman Oxenford. Roll Call.The Chairman asked for a roll call and the following Board Members were present:Colter,Ellis,Oxenford,Phillips,Drees.Absent:None.Others in attendance: Development Services Director Brad Deets,Code Compliance Officer Dennis Dowell, City Planner,Council Representative Mike Watts. Approve the September 21,2009 Agenda.Motion by Board Member Ellis,seconded by Board Member Phillips to "Approve the agenda for September 21,2009."Ayes: Colter,Ellis,Oxenford,Phillips,Drees.Nays:None.Motion carried. Approve the August 19,2009 Board of Adjustment Minutes.Motion by Board Member Colter,seconded by Board Member Ellis to "Approve the August 19,2009 Board of Adjustment Minutes."Ayes:Colter,Ellis,Oxenford,Phillips,Drees.Nays: None.Motion carried. Request for reconsideration of decision made by the Board of Adjustment regarding the appeal to the Interpretation of Section 301.9 of the Municipal Code related to the permittance ofthe refining,manufacturing,and sale of wine in an Agricultural District.Chariman Oxenford briefly described to the Board the interpretation made on August 19,2009 relating to the permitted refining,manufacturing,and sale of wine in an Agricultural District.Mr.Oxenford then requested clarification as to the requested reconsideration sought by the applicant.Eric Eide,attorney for the applicant,808 Central Avenue,Suite 619,Fort Dodge,Iowa 50501,stated that their request for reconsideration was primarily targeted at the determination related to the sale of wine.Chairman Oxenford requested a motion from the Board to approve reconsideration by the Board related to the decision made regarding the interpretation of Section 301.9 of the Municipal Code.Jim Wine,attorney hired by the City of Waukee,noted that a motion would need to come from one of the three Board Members present at the August 19,2009 meeting.Board Member Ellis stated that he would not initiate the reconsideration. Motion by Board Member Drees,seconded by Board Member Phillips to Approve a reconsideration to the interpretation of Section 301.9 of the Municipal Code made by the Board at the August 19,2009 meeting,specifically focused on the determination related to the permitted sale of wine.Ayes:Colter,Oxenford,Phillips,Drees.Nays:Ellis. Motion carried, the growing,refining,and manufacturing of wine is an agricultural activity.Chairman Oxenford stated that the referenced code stated nothing with regard to the sale of wine. Mr.Eide stated that there was no specific mention of the growing,refining,and manufacturing of wine as a permitted use in Section 301.9 ofthe Waukee Municipal Code,but noted that the Board had interpreted that they were permissible uses in an agricultural district at their August 19,2009 meeting.Chairman Oxenford stated that he believed the Board had come to the stated interpretation at the August 19,2009 meeting with the understanding that retail sales were only permitted by the City Code through means of agricultural products grown on the property and sold only at a roadside stand. Mr.Eide went on to explain that the defmition of agricultural real estate as defmed by the State ofIowa involved property where the production or sale of wine was conducted. Board Member Colter requested clarification as to the abilities ofthe Board of Adjustment.Development Services Director Brad Deets stated that the Board has the ability to grant variances,special use permits,and to provide for an administrative review of the City Code.Mr.Eide stated that if the Zoning Official for the City were to make an interpretation ofthe Code that was disagreed with,a person would have the ability to make an appeal to the Board on the interpretation as was requested by the applicant at the August 19,2009 meeting. Board Member Drees stated that he felt the issue at hand dealt with the portion of the existing Ordinance identifying the retail sale of an agricultural product was only permitted to be done at a roadside stand.Mr.Eide stated that he was not requesting interpretation that the applicant's building could be considered a roadside stand,but was trying to make the Board view the fermenting,manufacturing,and sale of wine out of the applicant's building as a permitted principle use as he was interpreting the City Code. ) The Board debated as to whether any portion of the written code provided adequate justification to come to the determination that the sale of wine was a permitted use in an agricultural district.Mr.Eide continued to question the Board as to their rational based upon the ordinance that led them to the previous conclusion that the sale of wine was not permitted in an agricultural district.Board Member Colter requested that the City's appointed attorney provide his interpretation of the ordinance to the Board as conveyed previously in a written letter.Jim Wine of Ny em aster Goode,attorney hired to represent the City,stated that he did not feel,based upon the way the entire ordinance is written, that retail sales were contemplated as a permitted use in an agricultural district.Mr. Wine further explained that due to the language in the ordinance stating that the only sales allowed in the district would be in the form of a roadway stand,providing that no permanent structures be erected,made it clear that the ordinance was not intended to allow for retail sales in any permanent structure in an agricultural district.Mr.Wine noted that if the Board was to agree with the applicant and interpret the Code as permitting the sale of wine it would then be in an ironic situation that the winery could sell wine,but would not be allowed to use the grapes to make another product to be sold on the property.Mr.Wine provided an example that,while the ordinance permitted nurseries to be located in an agricultural district,the ordinance was not intended to allow for an Earl May type nursery involving retail sales of plantings.Mr.Wine further Chairman Oxenford asked Mr.Schade ifhe had any further discussions with the City as to why the ordinance amendment had been voted down.Mr.Schade explained that he had not been in contact with the City after the meeting and had only heard from the City when he received a cease and assist letter from the City Administrator.Mr.Deets explained to the Board that the City Council had concerns related to traffic impacts this type of operation would have on roads surrounding the property.Mr.Deets noted that only three Council members had been present at the meeting where the ordinance amendment had been voted down.Chairman Oxenford stated his recommendation that Mr.Schade work with the Council to reintroduce the ordinance as the election coming up at the end of the year would provide new members to the Council that might have new ideas and thought relating to the ordinance.Board member Colter stated that he has stressed that the better interpretation of the ordinance was that retail sales were permitted at a roadside stand The Board questioned why the applicant had not been a part of the discussions relating to the ordinance amendment that had been proposed specifically targeted at permitting winery activities in an agricultural district ifhe was interested in being able to sell wine on his property. The applicant,Kurt Schade,1230 Warrior Lane,gave a brief history of how the property has evolved over the years and the steps he followed to communicate his intentions for the property to the City.He stated that in 2007 he met with City staff to discuss his plans for the property and since then has met the City's requirements for his property.He stated that he has wanted to be a resident of the City of Waukee for the past ten years and he wants his property to be a showcase for Waukee.He further stated that he has spent his life time of savings on the property to date and doesn't know what he will do ifhe is not able to continue the operations of the property.Mr.Schade explained that over the period of time that he has been constructing the out building on his property he has met with building inspectors and addressed their concerns throughout the property and has kept communication open with the City every step of the way.He explained that Mr. Deets had contacted him to have him write a letter identifying his intended use of the property.He mentioned that at that time he intended to apply for a Class "C"native wine permit which allows a native winery to sell wine at retail for consumption both on and off winery premises.After some discussion with City staff and the Planning and Zoning Commission,he scaled back his plans to a Class "A"Native Wine Permit which allows him to have a tasting facility,where one once of each type of wine sold can be given to a customer and the customer would have the ability to purchase the wine by the bottle for consumption of premises.He noted that after this process had been done he received a call from the City identifying that they had started a variance to allow for his intended activity.He explained that he did not ask the City to start this process.He stated that he had attended a Planning and Zoning Commission meeting where the Commission had approved an amended ordinance and he had been invited to a meeting with staff at City Hall under what he believed to be false pretenses.He mentioned that at that meeting he had been requested to be open to paying for portions of future roads going around his property which he had not been able to agree with.He stated that he had not been notified of the date of the City Council meeting that was held where the ordinance amendment had been voted down so he was unable lu attend. heard positive interest and community support for Mr.Schade's winery and that he would also recommend that Mr.Schade continue to work with the Council on the ordinance. Chairman Oxenford noted that the Board had received three letters of support from residents of surrounding communities to Waukee,but had not received any correspondence for or against the winery from residents of Waukee.Mr.Eide emphasized his concern that the Board had recommended the applicant go before the Planning and Zoning Commission as the applicant had the right to approach the Board and receive their ruling as an independent body with regard to the review of the interpretation made by the City as he felt that the applicant was not getting a fair appeal from the Board.Mr.Wine stated that the Board was in fact an independent body and explained that then'responsibility at this meeting was not to make an exception or amendment to the ordinance,but to interpret the ordinance in the form it exists today.He stated that he was an independent entity asked to provide guidance to the Board and he felt that,while there could be an argument acknowledging the applicant's out building as a usual agricultural building,the better argument is that retail sales are not a usual agricultural use based upon the existing language identifying the permitted retail sales allowed only for seasonal products sold at a roadside stand.He stated that he did not feel the ordinance would allow for the sale of grapes in a permanent structure as the ordinance did not permit the sale of seasonal products in a permanent structure.Mr.Edie stated that he believes the ordinance does not allow for a permanent roadside stand but does not address a permanent structure other than a roadside stand.Mr.Wine stated that he had not read or interpreted the ordinance to come to that determination. Ron Mark of Sommerset Winery approached the Board and explained that he believed that Mr.Schade should be allowed to sell wine based upon the notion that all farmers have to sell then'products and stated that the eighty existing wineries in Iowa all sell wine at their winery locations.Board Member Colter asked how many of the existing eighty wineries are within a municipality.Mr.Mark stated that there were several including Carroll,Des Moines,Newton,Dubuque,and Osceola.Mr.Wine questioned if Mr.Mark was certain that all of the named wineries were in fact within the city limits of those communities and not on county land adjacent to the cities.Mr.Mark stated that he was uncertain if all of the named winery location were in the city limits.Board Member Drees questioned what zoning the Jasper Winery in Des Moines was under.Mr.Mark stated that he was uncertain,but noted that if it was zoned commercial it would still be taxed as an agricultural use based upon the State regulations.He further stated that if someone pulls up to a farmer and asked for 6 bails of hay and a check is written to the farmer for the bails,that would be sales and it would not be any different than someone asking for a crate of wine and writing a check for the cost.He questioned that if the current ordinance does not preclude sales,why not allow for it.Board Member Ellis stated that it was not up to the Board to write the Code,which is the responsibility of the Planning and Zoning Commission and City Council,but to enforce Code. Diane Larson of Snus Hill Winery,located between Madrid and Slater in Boone County, approached the Board and stated that the Snus Hill Winery has been viewed by residents and visitors of Madrid as a positive to the community.She further stated that she felt the Stan Olson ofPenaoch Winery approached the Board and described his experience both as a farmer and winery owner.He stated that the building being used for his winery had served other agricultural purposes in the past prior to being a place to sell wine.He noted that someone cannot have a winery without having a place to sell the wine and it shouldn't matter if the sale is conducted out of a permanent structure.He further stated that it would probably not be a good thing for Waukee to have wine sold out of a roadside stand.Mr.Olson stated that he believed the Board had the ability to interpret the ordinance in a way that would allow Mr.Schade to sell wine out of his building and that they should interpret it that way.Board Member Colter stated that he liked the fact that the winery could be an attraction for Waukee and that consumption of the wine would not take place on the property which he felt was particularly important due to its proximity to schools in the area.He stated that he felt there was support for the winery in the Waukee community and that the people Mr.Schade should appeal to are the residents of Waukee who might have interest in the project that could voice their opinion to the City Council and direct the Council on how to support the winery.Mr.Schade responded that he felt he had gone about working with the City in most appropriate manner he could and that he did not know of any Waukee resident that was opposed to the winery other than some people in a leadership position.Board Member Colter reinforced that he believed Mr. Schade should engage the citizens of the community in order for the proper direction to be given to Council. Board had the ability to either be obstructionists or visionaries.She noted that the Board had the ability to do something positive for the Waukee community. Board Member Drees questioned if the applicant could come back to the Board with a variance request for the property.Mr.Wine stated that the applicant would have the ability to apply for a variance.He further clarified that if the Board made the interpretation that the sale of wine was a permitted use in an agricultural district that any other winery facility that could locate in Waukee in the future would then be permissible by interpretation and the interpretation was not limited to this specific property.Board Member Drees questioned if their interpretation would be viewed to extend beyond wineries.Mr.Wine stated that he was unsure if it could be interpreted for any other use other than a winery.He further stated that he believed the Board would be interpreting the ordinance as allowing for a winery that has a tasting room and a permanent structure would be allowed to sell wine.It was then restated that the ruling is an interpretation and not a variance request. Board Member Ellis requested clarification from staff asking if the Board voted to approve the appeal permitting sales if it would automatically become the Code or if it would have to be written into the Code.Mr.Deets stated that it would be an interpretation of the ordinance and would not be expressly written.Mr.Eide stated that the appeal was to allow for sales pursuant to a Class A Winery License. Motion was made by Board Member Colter and seconded by Board Member Phillips as to the interpretation of301.9 of the Waukee Municipal Code that the Ordinance does allow for the sale of the wine once it has been made on the premises within the A-I zoning district.Ayes:Colter,Phillips,Ellis.Nays:Oxenford,Drees.Motion approved. Old Business.None New Business.None Adjournment.Motion by Board Member Ellis,seconded by Board Member Drees,to adjourn at 7:02 p.m.Ayes:Drees,Ellis,Oxenford,Colter,Phillips.Nays:None.Motion carried.Meeting adjourned. rd of Adjustment Chairman Attest: Jeff Kooistra,City Administrator/Clerk