HomeMy WebLinkAbout2009-10-19-Board of Adjustment MinutesMINUTES OF THE OCTOBER 19,2009 BOARD OF ADJUSTMENT MEETING
Call to Order.The October 19,2009 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 Ben Landhauser,Council Representative Mike Watts.
Approve the October 19,2009 Agenda.Motion by Board Member Colter,seconded by
Board Member Ellis to "Approve the agenda for October 19,2009."Ayes:Colter,Ellis,
Oxenford,Phillips,Drees.Nays:None.Motion carried.
Request by Board Member Ellis for reconsideration of decision made by the Board
of Adjustment on September 21,2009 regarding the appeal to the Interpretation of
Section 301.9 of the Municipal Code related to the permittance of the refining,
manufacturing,and sale of wine in an Agricultural District.Chariman Oxenford
briefly described to the Board that the reconsideration pertained specifically to the sale of
wine as discussed at the September 21,2009 meeting.Jim Wine of Ny em aster Goode,
attorney hired to represent the City,directed the Board in proceeding with the meeting to
include a motion to reconsider the September 21,2009 decision made by the Board.
Chairman Oxenford requested a motion.Motion by Board Member Ellis,seconded by
Board Member Drees,to reconsider the vote of the September 21,2009 Board of
Adjustment meeting.
Approve the September 21,2009 Board of Adjustment Minutes.Motion by Board
Member Ellis,seconded by Board Member Phillips to "Approve the September 21,2009
Board of Adjustment Minutes."Ayes:Colter,Ellis,Oxenford,Phillips,Drees.Nays:
None.Motion carried.
Eric Eide,attorney representing Kurt Schade,808 Central Avenue,Suite 619,Fort
Dodge,Iowa 50501,requested a discussion with the Board prior to electing to vote on the
reconsideration.Stated that he believed "monkey business"had occurred after the
previous meeting.Questioned why the reconsideration had been requested and asked for
clarification as to the grounds held to reconsider the ruling at the previous meeting,
noting that he did not feel there were grounds unless some kind of fraud or mistake had
been made due to the fact that the Board had used the last meeting to reconsider the topic
and all members of the Board had been present.Mr.Eide asked Board Member Ellis to
explain what he had reviewed further after the September meeting.He expressed concern
that he believed there might have been discussion between members of the Board and
City Staff.Chairman Oxenford noted that he did not appreciate the intimidation of
having a court reporter present for the meeting.He indicated that he had signed the letter
written by Board Member Ellis requesting the reconsideration due to his belief that Board
Member Colter had given the appearance of misunderstanding what the Board had been
asked to vote on at the September meeting.Board Member Colter explained that he had
some initial confusion about the duty given to the Board at the previous meeting,but
understood his vote when it was made.He expressed offense to the implication made by
Mr.Eide that "monkey business"had taken place.Mr.Eide clarified that he had not
implied,but rather had suggested that "monkey business"had taken place.Board
Member Colter explained that he did not feel the descriptive word used mattered,but
indicated that the tone of the discussion should change.
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Mr.Eide explained to the Board that the situation was adversarial due to the fact that the
Board was being asked to reconsider a case that had already been decided.He pointed
out that there is a business opportunity on the line.He requested further clarification
from Board Member Ellis and Chairman Oxenford to identify the grounds for the request
to reconsider.Mr.Wine provided the Board with a letter he wrote explaining their ability
to reconsider.He stated that the Board has a broad authority to determine its rules of
procedure and to fairly conduct proceedings with the public.He explained that there was
reason to believe the Board did not understand its role at the previous meeting.He
indicated that to his knowledge through discussion with the City Administrator that the
Board had never been asked to review an interpretation of the Zoning Administrator
before.He explained that the Board had the ability to affirm,reverse,or modify the
Zoning Administrator's interpretation ofthe municipal code.He identified his
understanding that at the September meeting this had not taken place even though the
Zoning Administrator's decision had been reversed,due to the unclear nature of the
previous ruling.He believed the Board had exceeded its duties and tried to identify what
the ordinance should be instead of what it was.If the Board was to continue to agree
with the winery additional clarification would be needed as to the types of restrictions on
the kind of sales allowed and if events could be held.He indicated that the Board had
grounds to reconsider a topic twice if the first reconsideration included an amendment to
the initial ruling.
Ayes:Ellis,Oxenford,Drees.Nays:Colter,Phillips.None.Motion carried.
Board Member Ellis stated that after further review and interpreting he believed the
Board had overstepped its abilities and had requested the reconsideration.He believed
the action from the previous meeting had positioned the Board as writing the Code
instead of interpreting the Code.Chairman Oxenford stated that he did not have a
problem with the winery,but believed the sale of wine on Mr.Schade's property was not
in the Code.He expressed concern that the property needed to be regulated by a written
ordinance,noting that the previous Board decision was too vague and too open to
interpretation.He also noted that the only sales permitted in the Agricultural District
were temporary roadside stands.Board Member Ellis indicated that he had received
phone calls from residents after submitting his request for reconsideration and had not
commented to those individuals due to his concern for having multiple interpretations out
in the public and had asked those individuals to attend the meeting.Chairman Oxenford
noted that the Board had received a letter from a person in the audience and several
emails that supported the winery.He stated that asking the Board to interpret sales as
into an ordinance that does not adequately address sales is too broad and too vague.
Board Member Colter indicated that he believed some of the problem people had with the
Mr.Eide questioned the basis for reconsideration and asked if new information was
available that had not been available at the previous meeting.Board Member Ellis
explained that although some materials had been available he had not read them prior to
the September meeting.Mr.Eide requested validation as to Chairman Oxenford's
feelings and whether or not they had changed from the initial meeting.Chairman
Oxenford stated that he still felt the same,but had reviewed the Class 'N Native Winery
License afterward and noted that it was not an entitlement to sell wine.He further
explained that entitlement should be done by ordinance,by the City.Mr.Wine objected
winery dealt more with alcohol than everything else being discussed.He stated that he
wanted the community to have an open mind and wanted to fmd a way to make the
business happen.He noted that he was trying to relate wine sales to other agricultural
businesses.Chairman Oxenford stated that he felt all sales businesses should play by the
same rules,Board Member Drees explained his stance on the subject to date noting that
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interpretation.He discussed a trucking garden with the Board as a way of explaining a
portion of his interpretation.He stated that the Board's job was to properly review the
City's interpretation and noted that the applicant should have known that there was a risk
involved with asking for the Board to review the interpretation.Chairman Oxenford
reiterated his concern with the potential of creating an unfair playing field for businesses.
Diane Larson ofSnus Hill Winery,2183 320'h Street,Madrid,Iowa 50156,approached
the Board and noted that her winery had a mile and a quarter of gravel on their property.
She believed that Mr.Schade had done everything had been told to do and that he could
be viewed as a victim.She explained that the Board might have a way to compromise
with Mr.Schade or had the power to allow the business to move forward.She explained
the characteristics and clientele of wineries as a business and tourist attraction.Board
Member Ellis agreed with the statements,but noted that the Board had not been asked to
grant a variance.Chairman Oxenford explained that the Board was taking action on the
interpretation of the Code.City Administrator Jeff Kooistra read a letter addressed to the
Board regarding the winery and the Board's duties out loud.Board Member Ellis stated
that the opinions given by Mr.Kooistra were the same as his,but Mr.Kooistra was not
the source of his words.
Director of Development Services,Brad Deets,approached the Board and explained the
information provided by Mr.Schade to City Staff for a building permit that had been
reviewed.He explained that based on the initial information included on the floor plan
for the outbuilding on the property,Staff had interpreted it as a permitted use.Code
Compliance Officer,Dennis Dowell,stated that the plans for the building had originally
been proposed to be used for storage and use by vineyard workers.Mr.Wine questioned
if the original permit indicated a kitchen or wine tasting bar.Mr.Dowell explained that
they had not been indicated and noted that the only modification made to the plans was to
change an auto wash area originally indicated into an area he understood would be used
for the fermentation of wine.Chairman Oxenford indicated that he did not care about the
building and was only concerned with the vague interpretation of sales in an agricultural
district.He stated that an ordinance needs to be written.
to the individualized questioning by Mr.Eide.Mr.Eide stated that the Board was sitting
in a judiciary capacity and believed he had the right to know the basis for reconsideration
and to clarify the basis.Chairman Oxenford reiterated that he had supported the letter
requesting the reconsideration due to confusion he believed other board members had at
the September meeting.He felt the Board had voted on information they did not
understand.Mr.Wine stated that the Board's job is to interpret the ordinance,which he
felt had not been clearly done at the previous meeting.He read the definition of
agriculture and noted that it did not discuss sales.He stated that the ordinance does not
have proper regulations.He cited an existing case from the state of New York which had
upheld a Board of Adjustment's ruling on interpretiog a winery in an agricultural district.
He clarified some of the details and potential interpretations for what Mr.Schade could
be permitted to do with a Class 'A'Native Iowa Winery License.
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Mr.Eide stated that Mr.Schade's request related to whether a winery with a Class 'A'
License was permitted.Chairman Oxenford stated that the Board was to determine if the
sale of any agricultural product was permitted by ordinance.Board Member Ellis noted
that the Board cannot write the Code.Board Member Phillips questioned why this
request had even been brought to the Board.Mr.Eide explained how he believed the
City's Ordinance permitted the winery and pointed to several examples described to the
Board at the September meeting.Board Member Drees identified a portion of Mr.Eide's
interpretation of the ordinance that he disagreed with and explained that he could
understand how the ordinance could be interpreted both ways,but indicated that the
City's interpretation was the better of the two.Mr.Eide requested the Board's
permission to reference materials provided to the Board at the September meeting which
were not present at the meeting.Chairman Oxenford asked the Board if they had any
questions about the referenced materials.No one commented.Mr.Eide explained how
he believed the New York Case identified by Mr.Wine supported his argument.
)
Kurt Schade,property owner of 1230 Warrior Lane,approached the Board and briefly
explained that he had taken steps since the September meeting toward making wine on
his property.He indicated that the initial plans he had submitted to the City for a
building permit were always intended to be for a winery.He argued that it would not be
typical to have a storage building with two bathrooms,a 1,300 square foot covered patio,
and building wings,which he believed reiterated that the building was always intended to
be used as a winery.He explained that Mr.Deets had asked him to install a car wash pit
due to concern with how the wine would be processed,which he installed.He asked
Councihnember Watts to make sure that he understood all of the facts before discussing
the winery with the public.He explained that the parking concerns identified during the
meeting would be addressed as he planned to have driveway rock poured over the
driveway after all of the construction vehicles were off the site.He indicated that he had
made recent efforts to continue to beautify the property,He explained that he had never
been told that he needed to have an asphalt or concrete driveway.He noted that he
currently has approximately one and one half acres of parking,which he believed would
adequately meet the needs of any visitors.He explained that he had complied with the
City until mid May of 2009 when he was asked if he would participate in a street project )
which had never been told to him to be something he was partially responsible for.He
stated that since that time he has met opposition from the City.
Chairman Oxenford reiterated the Board's duty at the meeting.Councihnember Watts
explained that there was no truth to the accusations made by Mr.Schade and noted that
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voted on.Chairman Oxenford asked the Board Members if they understood what they
were to vote on.Mr.Wine identified potential language for the Board to use in their
motion.
Motion by Board Member Drees,seconded by Board Member Ellis,to approve the City's
interpretation that the sale of wine is not permitted in an A-I Agricultural District.Ayes:
Ellis,Oxenford,Drees.Nays:Colter,Phillips.Motion approved.
Old Business.None
New Business.None
Adjournment.Motion by Board Member Ellis,seconded by Board Member Phillips,to
adjourn at 6:56 p.m.Ayes:Drees,Ellis,Oxenford,Colter,Phillips.Nays:None.Motion
carried.Meeting adjourned.
Jay of Adjustment Chairman
Attest:
Jeff Kooistra,City Administrator/Clerk