6129 Four Pines Vicinity Map

Transcription

BOARD OF ADJUSTMENT
City of Johnston
6221 Merle Hay Road, Johnston, IA 50131
Minutes
October 16, 2014
AGENDA:
1. Call to Order
Hupfer called the meeting to order at 6:30 p.m.
2. Roll Call
Wanderscheid
Present
Absent
Filer
X
Weggen
Peterson
Cleveland
Hupfer
Ostrander
X
X
X
X
X
X
City Staff Present: David Wilwerding, Steven Witmer.
3. Approval of Agenda
Motion by Wanderscheid seconded by Weggen to approve the agenda.
Roll Call Vote:
Wanderscheid
Aye
Nay
Abstain
Filer
X
Weggen
Peterson
Cleveland
Hupfer
Ostrander
X
X
X
X
X
4. Approval of Meeting Minutes: Special Meeting of September 3, 2014.
Motion by Wanderscheid seconded by Weggen to approve the minutes of the Regular Meeting
of September 3, 2014.
Roll Call Vote:
Wanderscheid
Aye
Nay
Abstain
Page 1 of 4
X
Filer
Weggen
Peterson
Cleveland
Hupfer
Ostrander
X
X
X
X
X
5. BOA Docket 14-07; Appeal of a Decision of the Zoning Administrator; Consider a
partial remand from the City Council regarding the Board’s September 3, 2014 ruling on this
item related to the issuance of a building permit for an accessory structure at 6921 NW
Beaver Drive.
David Wilwerding presented the staff report.
Michelle Warnock, Davis Law Firm, advised that she has submitted information prior to the
meeting as requested. She has provided two cases that provide legal precedent to answer the
question of whether the platted setback applies to the accessory structure.
Warnock summarized the Gray case, there was an easement in favor of the neighbors to allow
access that was only illustrated on the plat. The subsequent owner disputed that they were
bound by the easement but the court found that the plat map created an enforceable property
right that the neighboring owners had a right to enforce.
Warnock summarized a 2008 case where the issue looked at depended on whether a
neighborhood had developed in reliance to a plat map.
Warnock stated that the argument that city staff have made that the table in the Zoning
Ordinance would have no utility is incorrect, the table provides the minimum setbacks, however
if greater setbacks are platted those must be followed.
Art Coons, 6921 NW Beaver Drive, stated that Ms. Warnock is comparing easements to
setbacks, and they are completely different. At the time he platted the land it was platted
according to the zoning ordinance at that time. The new zoning setbacks are different and the
old setbacks no longer apply. The setback for accessory structures at the time he built his
home was only two feet from the property line; he has a garage that is 2’ from the side property
line that met the requirements at that time.
Coons stated that because of the argument about the building materials, he has offered to
change the structure to match his home with a hip roof.
Matt Bednar, 7011 Forest Drive, commented that before purchasing his property he consulted
with an attorney and he was told that the 35’ rear yard was a zone where nothing could be built,
a different attorney told him the same thing six years later when he refinanced. Bednar
discussed the definition of yard provided in the City Code. Coons’ plat has not been revised
and so what is shown on it should stand as the requirement.
Mary Bednar, 7011 Forest Drive, the laws are well established and Ms. Warnock has presented
case law. The City Council disagrees with the Board’s decision and has remanded it back
because of concerns about the setback and building a large accessory building next to a home.
It’s clear that their arguments meet City Code and State Law.
Art Slusark commented that they are back before the Board because it is obvious that the city
manager made a mistake in issuing the permit and in allowing the curb cut. The City Council
upheld the Board’s decision on the building materials. Slusark disputed that Coons had
conceded on the building materials at the Council meeting or that he said he would stick build it.
Warnock commented that setbacks and easements are very similar concepts, they are both
restrictive covenants on a property and are enforceable.
Page 2 of 4
Wilwerding explained that the most complete copy of the Zoning Ordinance in city staff’s
possession dates to 1985, it required a setback of 40’ front, 50’ rear and side yard setback of
10 or 12’ depending on size. There are no records in the plat file to explain the discrepancy
between the Zoning Ordinance in effect at the time and rear yard illustrated on the plat
Katherine Lucas, Bradshaw Law Firm, representing the City, commented that it appears that
both party’s interpretation of the case are reasonable and defensible in court should it become
necessary.
Wanderscheid commented that city staff don’t dispute that the platted setback is enforceable,
but the argument is that the platted setback does not apply to accessory structures.
Weggen commented that the plat setbacks address principal structure setbacks, he cannot
think of a single instance where a platted setback was intended to apply to accessory
structures, if that was the case there would be many nonconforming structures throughout the
city. When his company does a plat, they illustrate front, side and rear yard setbacks, but they
never illustrate accessory structure setbacks.
Wanderscheid asked Weggen why Coons’ plat would show a 35’ rear yard which does not
conform to the zoning requirements at the time. Weggen responded that he did not know.
Weggen noted that the original plat also did not illustrate any right-of-way to the west, but now
there is a street there and the lot is now a corner lot, which changes the setbacks.
Wanderscheid noted that the Board’s options are that the Board could amend its previous
decision, affirm it, or take no action.
Motion by Hupfer seconded by Wanderscheid to modify Finding #5 of the September 3rd
Resolution to read that the Board finds that the permitted accessory structure does not meet
the required setbacks and that the platted setback supersedes the setbacks described in
Chapter 166.23.
Roll Call Vote:
Wanderscheid
Aye
Nay
Abstain
Filer
Weggen
Peterson
X
X
X
Cleveland
Hupfer
X
X
Ostrander
X
Hupfer inquired what the options were on a tie vote. Wilwerding responded that the parties can
request to be heard by full Board.
Ostrander asked if a tie is the same as taking no action. Wilwerding responded yes, since
there are not enough votes to carry the motion it has the effect of the motion failing. Parties
can request that the case be heard by the full Board.
Warnock requested that the case be heard by the full board.
6. Other Business.
Page 3 of 4
No other business discussed.
7. Adjournment.
Meeting Adjourned at 7:24 p.m.
__________________________
Chairperson
Page 4 of 4
_________________________
Secretary
Board of Adjustment
COMMUNITY DEVELOPMENT DEPARTMENT
November 20, 2014 Meeting
BOA 14-08:6129 Four Pines Street Special Exception to the maximum height allowed
for solid fences between the building setback line and property line along NW 62nd
Avenue from 2 ½ feet to 6 feet.
PROPERTY
OWNER/APPLICANT:
Matthew Stiles
6129 Four Pines Street
Johnston, IA 50131
SITE LOCATION:
6129 Four Pines Street; Johnston, IA 50131 legally described as:
LOT 38 PINEWOOD GLEN PLAT 2
APPLICANTS
REQUEST:
The applicant owns a corner lot and has requested a special exception to
Chapter 166.27.4.A of the Code of Ordinance which states:
A.
Fences and walls are limited to a maximum height of six feet except
in the following areas where fences and walls shall not exceed 2 ½ feet if
solid or four feet if 70 % transparent, such as a chain link fence:
(1) Between the front property line and the front building setback
line when extended to the full width of the lot.
The Special Exception is requested to allow the construction of a 6 foot tall
privacy fence between the building setback line and property line along
NW 62nd Avenue.
APPLICANTS
RATIONALE:
See attached application.
BOARD OF
ADJUSTMENT
AUTHORITY:
Chapter 166.27.8 provides the Board of Adjustment with the authority to
grant a Special Exception to the above-listed code requirement as follows:
An application to the Board of Adjustment may be made for a special
exception to the provisions of this section. The application shall include a
fee as established by resolution of the Council. The Board shall utilize its
adopted rules and procedures and follow all provisions of Section 166.16
in reviewing and making decisions on special exceptions allowed by this
section, except that notice may be mailed to only adjacent property
owners, unless in the opinion of the Zoning Administrator, a broader
dissemination of notice is appropriate.
H:\Community Development\BOA\2014 BOA\14-08; 6129 Four Pines St Special Exc for Fence Height
Page 1 of 6
A. The Board of Adjustment may consider a special exception to the
restrictions of section 166.27.4(A), (except to the maximum height
requirement of six feet), in instances where:
(1) On a corner lot, where the proposed fence does not affect the
continuity of neighboring front yards.
(2) On a corner lot, where the proposed fence is adjacent to a
collector or major arterial street as defined in the Comprehensive
Plan.
B. The Board of Adjustment may consider the following conditions in the
review and approval of a special exception, but is not limited to these
considerations:
(1) That the proposed use would not adversely affect the health or
safety of neighboring properties or adversely affect their use of
their property.
(2) Compatible with uses permitted in the zoning district under
which it is regulated.
(3) Failure to meet any of the requirements of this section or any
condition imposed by the Board of Adjustment in granting a special
exception is a violation of this chapter and the property owner may
be subject to revocation of the special exception by the Board of
Adjustment after notification in writing to the property owner.
(4) Whether the proposal will be compatible with neighboring
properties in the surrounding neighborhood.
(5) Whether the size, configuration or other unusual characteristics
of the lot requires an exception from the zoning requirements in
order to provide a reasonable fenced area without creating
significant harm to adjacent properties or the neighborhood.
ORDINANCE
QUESTIONS:
The Board is required to make the following findings (in bold), discussion
has been provided by staff following each finding:
That the proposed use would not adversely affect the health or safety
of neighboring properties or adversely affect their use of their
property.
In staff’s opinion, it does not appear the proposed fence will pose any
safety issues.
The proposed use is compatible with uses permitted in the zoning
district under which it is regulated.
Not applicable.
Whether the proposal will be compatible with neighboring properties
in the surrounding neighborhood.
Page 2 of 6
6’ Privacy fences are compatible with residential uses.
Whether the size, configuration or other unusual characteristics of the
lot require an exception from the zoning requirements in order to
provide a reasonable fenced area without creating significant harm to
adjacent properties or the neighborhood.
Unusual characteristics would include proximity to the adjacent arterial
roadway.
Other site characteristics:
The property is adjacent to NW 62nd Avenue, a heavily traveled arterial
roadway. Construction of a privacy fence in would not disrupt continuity
of neighboring front yards, and would be consistent with other yards in the
corridor.
ADJACENT OWNER
COMMENTS:
Notice was sent to all properties within 320 feet of this site. Staff has not
received comment as of the writing of this report.
RECOMMENDATION: Without the benefit of any oral testimony provided at the Board of
Adjustment meeting, staff recommends approval of applicant’s request
based on unusual site characteristics, provided the board finds the proposed
fence does not pose a safety issue for adjacent properties. A suggested
motion is included below and a copy of a proposed resolution is attached.
FINDINGS FOR
APPROVAL:
The Board of Adjustment hereby approves a Special Exception for
6129 Four Pines Street, having made the following findings and
conditions:
1. Matthew Stiles is the owner of property located at 6129 Four Pines
Street, legally described as LOT 38 PINEWOOD GLEN PLAT 2.
2. The property owner submitted an application for a Special
Exception to Chapter 166.27.4.A to allow a 6’ privacy fence
between the front property line along NW 62nd Avenue and the
front building setback line.
3. The proposed 6’ privacy fence does not adversely affect the health
or safety of neighboring properties or adversely affect their use of
their property.
4. The proposed 6’ privacy fence is compatible with neighboring
5. The lot exhibits unusual characteristics which justify an exception
from the zoning requirements in order to provide a reasonable
fenced area, notably, the property exhibits frontage on NW 62nd
Page 3 of 6
Avenue, a heavily traveled arterial roadway in the community.
6. The property owner must obtain a building permit from the City of
Johnston Building Department prior to fence construction.
Attachments:
Vicinity map
Application for Special Exception dated 10/17/14
Neighborhood Mailing Notice and Neighbor list
Sketch of property showing locations of proposed fence
Page 4 of 6
Prepared by and return to: Aaron Wolfe, City of Johnston, P.O. Box 410, Johnston, IA 50131 727-7766
CITY OF JOHNSTON, IOWA;
BOARD OF ADJUSTMENT RESOLUTION
IN THE MANNER OF
(
)
(
BOA Case # 14-08; 6129 Four Pines
St. Special Exception
DATE OF ACTION:
City of Johnston
6221 Merle Hay Road
November 20, 2014
BOARD MEMBERS PRESENT:
APPELLANTS REPRESENTATIVES:
Matthew Stiles
CITY REPRESENTED BY:
Aaron Wolfe, Steven Witmer
Now on the date cited, the Board of Adjustment convened in open public session at 6:30 P.M. The
appellant, board and city were represented as noted. Under the provisions of Chapter 166.27 of the
Johnston Municipal Code and of Chapter 414 of the Code of Iowa, the Board reaches the following
conclusions:
MOTION BY:
SECONDED:
BOARD MEMBERS IN FAVOR:
BOARD MEMBERS OPPOSED:
The Board of Adjustment hereby approves a special exception to allow a
fence up to 6 feet in height to be constructed along Northwest 62nd Avenue between the
front property line and front building setback line subject to the following conditions:
MOTION:
FINDINGS:
1. Matthew Stiles is the owner of property located at 6129 Four Pines Street, legally
described as LOT 38 PINEWOOD GLEN PLAT 2.
2. The property owner submitted an application for a Special Exception to Chapter
166.27.4.A to allow a 6’ privacy fence between the front property line along NW 62nd
Avenue and the front building setback line.
3. The proposed 6’ privacy fence does not adversely affect the health or safety of
neighboring properties or adversely affect their use of their property.
4. The proposed 6’ privacy fence is compatible with neighboring properties in the
surrounding neighborhood.
5.
The lot exhibits unusual characteristics which justify an exception from the zoning
requirements in order to provide a reasonable fenced area.
6.
The property owner must obtain a building permit from the City of Johnston Building
Department prior to fence construction.
Page 5 of 6
DATE OF FILING (ON OR BEFORE):
BOARD OF ADJUSTMENT:
ATTEST:
Michele Nemmers
Chairman
David Wilwerding
Zoning Administrator
Page 6 of 6
6129 Four Pines
Vicinity Map
NW 62nd Avenue
Four Pines St.
6129 Four Pines
-
0
45
90
180
270
360
Feet
Created by City of Johnston Department of Community Development
6221 Merle Hay Road, P.O. Box 410, Johnston, IA, 50131-0410 (515)278-2344 Fax:(515)278-2033
Notice of Public Meeting
November 7, 2014
CITY OF JOHNSTON, IOWA NOTICE OF PUBLIC MEETING/PUBLIC HEARING
The City of Johnston Community Development Department has received a request from
Matthew Stiles for a special exception to construct a 6 foot tall privacy fence between the
building setback line and property line along NW 62nd Avenue. Chapter 166.27.4.A of the
City of Johnston Code of Ordinances limits fences between the front property line and the
front building setback line to 2 1/2 feet if solid or 4 feet if 70% transparent.

Chapter 166.27.8 of the Code of Ordinances grants authority to the Board of
Adjustment to issue a special exception to the above code language.
The Board of Adjustment will hold a Public Hearing to discuss BOA DOCKET NO. 14-08;
6129 Four Pines Street Special Exception application at 6:30 PM on Thursday,
November 20, 2014. The meeting will be held in the Council Chambers of Johnston City
Hall, 6221 Merle Hay Road.
Persons seeking more information or wishing to comment on this appeal may review the application at
City Hall during workdays from 8:00 a.m. to 5:00 p.m., or contact Aaron Wolfe, Senior Planner at
727-7766 or by email at [email protected].
6129 Four Pines Street Mailing List
Name
HARRY ALLENDER
JULIANA JOHNSON
JIN GUI
ALAN YOUDA
CONNIE WARREN
PATRICK REEG
BRIAN SCHWARTZ
KERRY BLIND
TYLER SMITH
KADRIJA SULJIC
CHAD DI MAIO
MARK ELLIOTT
DAVID EVANS
ENRIQUE LUZ JR
JOHN HALLER
LISA LAPREE
KRISTEN POORE
MARK NEMMERS
DALE BOICOURT
MOORE PROPERTIES AND DEVELOPMENT L
ESAD KOLUBDZIC
RYAN GANNON
JAMES HEIRING
PHUONG CONG NGUYEN
HOC THAI NGUYEN
MIRSAD DUBINOVIC
CRYSTAL MC VEY (TRUSTEE)
AJLIN BEJTOVIC
DAVID HANSON
ESEF MUSINOVIC
SEAN MC LEMORE
BRANDON MC DONALD
MICHAEL LANDY
REECE UHLENHOPP
ENES JUPIC
SERGIO VILLARREAL
Address
5100 NW 62ND AVE
5125 NW 62ND AVE
6104 NW 50TH ST
5011 MEADOW CIR
5007 MEADOW CIR
6120 NW 50TH ST
6116 NW 50TH ST
6124 NW 50TH ST
5010 MEADOW CIR
6128 FOUR PINES ST
4904 MEADOW CIR
5015 MEADOW CIR
6128 NW 50TH ST
6144 NW 49TH ST
6108 NW 50TH ST
5006 MEADOW CIR
5014 MEADOW CIR
6121 NW 50TH ST
6132 NW 49TH ST
6125 FOUR PINES ST
6108 FOUR PINES ST
6109 NW 50TH ST
6117 FOUR PINES ST
6121 FOUR PINES ST
6109 FOUR PINES ST
4908 MEADOW CIR
6124 FOUR PINES ST
6113 FOUR PINES ST
6112 NW 50TH ST
4912 MEADOW CIR
5002 MEADOW CIR
6112 FOUR PINES ST
6120 FOUR PINES ST
6116 FOUR PINES ST
5003 MEADOW CIR
4911 MEADOW CIR
City/State/Zip
JOHNSTON, IA 50131‐1033
Board of Adjustment
BOA 14-09: 6300 Merle Hay Road Special Exception to the maximum height allowed
for fences between the building setback line and property line along future NW 63rd
Avenue from 4 feet to 6 feet.
PROPERTY
OWNER/APPLICANT:
Hubbell Realty Company
6900 Westown Parkway
West Des Moines, IA 50266
SITE LOCATION:
6300 Merle Hay Road
Legally described as: Lots 33 and 34 and the south 20 feet of Lot 37;
except the east 17 feet thereof, all in Johnston Acres, an official plat in and
forming a part of the City of Johnston; and Lot 1 Blair Acres Replat, an
official plat in and forming a part of t he City of Johnston; except the
future NW 63rd Street Right-of-Way along the south boundary thereof.
APPLICANTS
REQUEST:
The applicant owns a corner lot and has requested a special exception to
Chapter 166.27.4.A of the Code of Ordinance which states:
A.
Fences and walls are limited to a maximum height of six feet except
in the following areas where fences and walls shall not exceed 2 ½ feet if
solid or four feet if 70 % transparent, such as a chain link fence:
(1) Between the front property line and the front building setback
line when extended to the full width of the lot.
The Special Exception is requested to allow the construction of a 6 foot tall
decorative iron fence between the building setback line and property line
along future NW 63rd Avenue. The fence is intended to surround a pool to
be constructed in conjunction with a multi-family housing project. The
building will be constructed in Johnston’s Mixed Use Center district within
the north Merle Hay Road Corridor Redevelopment Area.
The
development is intended to project an urban feel and, toward that end, will
be constructed as near the street as possible.
APPLICANTS
RATIONALE:
See attached application.
BOARD OF
ADJUSTMENT
AUTHORITY:
Chapter 166.27.8 provides the Board of Adjustment with the authority to
grant a Special Exception to the above-listed code requirement as follows:
An application to the Board of Adjustment may be made for a special
H:\Community Development\BOA\2014 BOA\14-09; 6300 MHR Sp Ex Fence Hgt
Page 1 of 6
exception to the provisions of this section. The application shall include a
fee as established by resolution of the Council. The Board shall utilize its
adopted rules and procedures and follow all provisions of Section 166.16
in reviewing and making decisions on special exceptions allowed by this
section, except that notice may be mailed to only adjacent property
owners, unless in the opinion of the Zoning Administrator, a broader
dissemination of notice is appropriate.
A. The Board of Adjustment may consider a special exception to the
restrictions of section 166.27.4(A), (except to the maximum height
requirement of six feet), in instances where:
(1) On a corner lot, where the proposed fence does not affect the
continuity of neighboring front yards.
(2) On a corner lot, where the proposed fence is adjacent to a
collector or major arterial street as defined in the Comprehensive
Plan.
B. The Board of Adjustment may consider the following conditions in the
review and approval of a special exception, but is not limited to these
considerations:
(1) That the proposed use would not adversely affect the health or
safety of neighboring properties or adversely affect their use of
their property.
(2) Compatible with uses permitted in the zoning district under
which it is regulated.
(3) Failure to meet any of the requirements of this section or any
condition imposed by the Board of Adjustment in granting a special
exception is a violation of this chapter and the property owner may
be subject to revocation of the special exception by the Board of
Adjustment after notification in writing to the property owner.
(4) Whether the proposal will be compatible with neighboring
(5) Whether the size, configuration or other unusual characteristics
of the lot requires an exception from the zoning requirements in
order to provide a reasonable fenced area without creating
significant harm to adjacent properties or the neighborhood.
ORDINANCE
QUESTIONS:
The Board is required to make the following findings (in bold), discussion
has been provided by staff following each finding:
That the proposed use would not adversely affect the health or safety
of neighboring properties or adversely affect their use of their
property.
In staff’s opinion, it does not appear the proposed fence will pose any
safety issues. In fact, the fence is proposed specifically as a safety measure
Page 2 of 6
to protect unauthorized entry into the proposed pool area (a six-foot fence
is required by code around outdoor pool areas).
The proposed use is compatible with uses permitted in the zoning
district under which it is regulated.
Not applicable.
Whether the proposal will be compatible with neighboring properties
in the surrounding neighborhood.
6’ Privacy fences are compatible with residential uses. Ornamental iron
fencing is a commonly-used residential fencing material.
Whether the size, configuration or other unusual characteristics of the
lot require an exception from the zoning requirements in order to
provide a reasonable fenced area without creating significant harm to
adjacent properties or the neighborhood.
The property in question is unique in that it has a unique shape and will
have three street frontages with no neighboring properties on future NW
63rd Avenue.
Other site characteristics:
ADJACENT OWNER
COMMENTS:
Notice was sent to all properties within 320 feet of this site. Staff has not
received comment as of the writing of this report.
RECOMMENDATION: Without the benefit of any oral testimony provided at the Board of
Adjustment meeting, staff recommends approval of applicant’s request
based on unusual site characteristics, provided the board finds the proposed
fence does not pose a safety issue for adjacent properties. A suggested
motion is included below and a copy of a proposed resolution is attached.
FINDINGS FOR
APPROVAL:
The Board of Adjustment hereby approves a Special Exception to
construct a 6’ tall decorative iron fence between the front property
line and front building setback line along future NW 63rd Avenue for
6300 Merle Hay Road, having made the following findings and
conditions:
1. Hubbell Realty Company is the developer of property located at
6300 Merle Hay Road, legally described as: Lots 33 and 34 and
the south 20 feet of Lot 37; except the east 17 feet thereof, all in
Johnston Acres, an official plat in and forming a part of the City of
Johnston; and Lot 1 Blair Acres Replat, an official plat in and
forming a part of t he City of Johnston; except the future NW 63rd
Street Right-of-Way along the south boundary thereof.
Page 3 of 6
2. Hubbell Realty Company has submitted an application for a Special
Exception to Chapter 166.27.4.A to allow a 6’ decorative iron fence
between the front property line along future NW 63rd Avenue and
the front building setback line.
3. The proposed fence does not adversely affect the health or safety of
neighboring properties or adversely affect their use of their
property.
4. The proposed fence is compatible with neighboring properties in
the surrounding neighborhood, as iron fencing is a typical material
used in the construction of ornamental fencing.
5. The lot exhibits unusual characteristics which justify an exception
from the zoning requirements in order to provide a reasonable
fenced area.
6. The property owner must obtain a building permit from the City of
Johnston Building Department prior to fence construction.
Attachments:
Vicinity map
Application for Special Exception dated 10/23/14
Neighborhood Mailing Notice and Neighbor list
Sketch of property showing locations of proposed fence
Page 4 of 6
Prepared by and return to: Aaron Wolfe, City of Johnston, P.O. Box 410, Johnston, IA 50131 727-7766
IN THE MANNER OF
(
)
(
BOA Case # 14-09; 6300 Merle Hay Rd.
Special Exception
DATE OF ACTION:
City of Johnston
6221 Merle Hay Road
November 20, 2014
BOARD MEMBERS PRESENT:
Hubbell Realty Company
CITY REPRESENTED BY:
Aaron Wolfe, Steven Witmer
Now on the date cited, the Board of Adjustment convened in open public session at 6:30 P.M. The
appellant, board and city were represented as noted. Under the provisions of Chapter 166.27 of the
Johnston Municipal Code and of Chapter 414 of the Code of Iowa, the Board reaches the following
conclusions:
MOTION BY:
SECONDED:
BOARD MEMBERS IN FAVOR:
BOARD MEMBERS OPPOSED:
The Board of Adjustment hereby approves a Special Exception to construct a
6’ tall decorative iron fence between the front property line and front building setback line
along future NW 63rd Avenue for 6300 Merle Hay Road, having made the following
findings and conditions:
MOTION:
FINDINGS:
1. Hubbell Realty Company is the developer of property located at 6300 Merle Hay Road,
legally described as: Lots 33 and 34 and the south 20 feet of Lot 37; except the east 17
feet thereof, all in Johnston Acres, an official plat in and forming a part of the City of
Johnston; and Lot 1 Blair Acres Replat, an official plat in and forming a part of t he City
of Johnston; except the future NW 63rd Street Right-of-Way along the south boundary
thereof.
2. Hubbell Realty Company has submitted an application for a Special Exception to Chapter
166.27.4.A to allow a 6’ decorative iron fence between the front property line along
future NW 63rd Avenue and the front building setback line.
3. The proposed fence does not adversely affect the health or safety of neighboring
properties or adversely affect their use of their property.
4. The proposed fence is compatible with neighboring properties in the surrounding
neighborhood, as iron fencing is a typical material used in the construction of ornamental
fencing.
Page 5 of 6
5. The lot exhibits unusual characteristics which justify an exception from the zoning
requirements in order to provide a reasonable fenced area.
6. The property owner must obtain a building permit from the City of Johnston Building
Department prior to fence construction.
ATTEST:
Justin Hupfer
Chairman
David Wilwerding
Page 6 of 6
Merle Hay Road
Cadence Apartments
Vicinity Map
Johnston Middle School
City Hall
NW 62nd Avenue
-
0
185
370
740
1,110
1,480
Feet
Notice of Public Meeting
November 7, 2014
CITY OF JOHNSTON, IOWA NOTICE OF PUBLIC MEETING/PUBLIC HEARING
The City of Johnston Community Development Department has received a request from
Hubbell Realty Company for a special exception to construct a 6 foot tall iron fence
between the building setback line and property line along future NW 63rd Avenue.
Chapter 166.27.4.A of the City of Johnston Code of Ordinances limits fences between the
front property line and the front building setback line to 2 1/2 feet if solid or 4 feet if 70%
transparent.

Chapter 166.27.8 of the Code of Ordinances grants authority to the Board of
Adjustment to issue a special exception to the above code language.
The Board of Adjustment will hold a Public Hearing to discuss BOA DOCKET NO. 14-09;
6300 Merle Hay Road Special Exception application at 6:30 PM on Thursday,
November 20, 2014. The meeting will be held in the Council Chambers of Johnston City
Hall, 6221 Merle Hay Road.
Persons seeking more information or wishing to comment on this appeal may review the application at
City Hall during workdays from 8:00 a.m. to 5:00 p.m., or contact Aaron Wolfe, Senior Planner at
727-7766 or by email at [email protected].
6300 MHR Special Exception Request Mailing List
MailingName
City of Johnston
Maxine Litchkey
Carson Trust
Susan House
Andrew Christenson
Kenneth Foshe
Violet Robinson
Dennis G Meyer
Messiah Lutheran Church
St. Paul Presbytrian Church
St. Paul Presbytrian Church
Andrew Christenson
Stanley Hyde (Trustee)
Johnston Police
Cornerstone Commons LLC
Mailing Address
6318 Merle Hay Road
5630 NW 63rd Pl.
6305 NW 59th Ct.
4226 Panorama Dr.
5300 NW 55th Ave.
5518 Kensington Cir.
505 36th St. Unit 101
6330 Merle Hay Road
6270 Merle Hay Road
POB 158
POB 158
5300 NW 55th Ave.
6315 NW 59th Ct.
POB 410
7447 University Ave. Ste. 210
Mailing CityStateZip
Johnston, IA 50131
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Middleton, WI 53562
Board of Adjustment
BOA 14-07: Consider a partial remand from the City Council regarding the Board of Adjustment’s
September 3, 2014 ruling on BOA Case # 14-07 an Appeal of a Zoning Administrator decision related
to the issuance of a building permit for an accessory structure at 6921 NW Beaver Drive.
REMAND:
On August 21 and September 3, 2014, the Board of Adjustment considered
an appeal of a decision of the zoning administrator related to the issuance
of a building permit for an accessory structure at 6921 NW Beaver Drive.
In their findings, the Board repealed the issuance of a building permit
noting the architecture of the proposed accessory building was not common
to the area. A copy of the September 3, 2014 Resolution is attached.
On September 15, 2014, the City Council reviewed the Board’s action
based upon Chapter 166.16(6) (cited below) and approved a motion to
partially remand the decision back to the Board for further study. Minutes
from the September 15, 2014 meeting are attached, and note the following
motion was approved, “to remand the Board of Adjustment’s decision and
direct the Board of Adjustment to look specifically at item 5, the setback
requirements, for further review.”
Chapter 166.16(6) states (in part),
“6. Decisions of the Board of Adjustment. In exercising the powers
enumerated in this Code of Ordinances, the Board may, in conformity with
the provisions of law, reverse or affirm, wholly or partly, or modify the
order, requirement, decision, or determination appealed from, and may
make such order, requirement, decision, or determination as it believes
proper. … The City Council may review appeals, variances, exceptions or
other requests granted by the Board before their effective date and may
remand a decision to grant an appeal, variance, exception or other
request to the Board for further study. Upon City Council action to
remand a decision by the Board, the effective date of the decision shall be
delayed for thirty (30) days from the date of the remand. Any taxpayer;
any officer, department, board, or bureau of the City of Johnston; or any
person or persons jointly or severally aggrieved by any decision of the
Board may present to a court of record a petition, duly verified, setting
forth that such decision is illegal, in whole or in part, specifying the
grounds of the illegality. Such petition shall be presented to the court
within thirty (30) days after the filing of the decision in the office of the
Board, in accordance with the Code of Iowa.”
Page 1 of 3
Thus, based upon the City Council’s remand, a meeting was held on
October 16, 2014 where the following motion failed to pass by a vote of 33:
“Motion by Hupfer seconded by Wanderscheid to modify Finding #5 of the
September 3rd Resolution to read that the Board finds that the permitted
accessory structure does not meet the required setbacks and that the platted
setback supersedes the setbacks described in Chapter 166.23.”
Since the motion failed, the representative of the aggrieved parties
requested reconsideration before the full Board, thus this meeting was
scheduled. As with the October 16, 2014 meeting, this meeting is to
specifically review finding # 5 from the Board’s September 3, 2014
Resolution which states, “The Board finds that the permitted accessory
structure meets the setback requirements for accessory structures as
specified in Chapter 166.23(4) as the proposed side and rear setbacks of 12
feet exceed the minimum 10 feet requirement.”
A remand of a Board of Adjustment action in no way changes or modifies
the Board’s previous action; it simply is a request from the City Council to
review the previous action. Since this remand was specific to item # 5 of
the September 3rd Board Resolution, the rear yard setback for the accessory
structure, any discussion, testimony, evidence, etc. should be limited to
only that issue.
The
Board
has
three
courses
of
action
that
can
be
taken:
1. Take No Action. No action at this hearing would leave in place the
September 3, 2014 Resolution and its findings and conditions as
adopted.
2. Affirm finding # 5 of the September 3, 2014 Resolution. Such an
affirmation could be done in the form of a motion. Sample motion
is provided below.
3. Modify finding # 5 of the September 3, 2014 Resolution. Such a
modification could be done in the form of a motion and would only
modify finding # 5. Sample motion is provided below.
It is up to the Board what additional information, testimony or evidence
they would like to take in considering this partial remand. Attached to this
staff report is a September 3, 2014 memo from Staff which addresses the
setback issue, the entire September 3, 2014 Board of Adjustment staff
report and attachments. Also attached is a letter from Michele Warnock
dated October 13, 2014 representing the aggrieved parties and Steve
Wandro representing the property owner which was provided prior to the
September 3, 2014 meeting.
Page 2 of 3
NEIGHBOR NOTICE:
A notice was mailed to all properties within 250 feet of the property on
which the appeal was filed and other property owners in the area who had
provided addresses at previous meetings.
Written correspondence
provided to date is attached.
FINDINGS
AFFIRMING
SEPTEMBER 3, 2014
BOARD ACTION:
Sample motion provided for the Board’s Consideration:
FINDINGS FOR
MODIFYING THE
BOARD’S
SEPTEMBER 3, 2014
ACTION:
Sample motion provided for the Board’s Consideration:
The Board of Adjustment hereby affirms Finding # 5 of the September
3, 2014 Board of Adjustment Resolution regarding an Appeal of the
Zoning Administrator’s Decision regarding the issuances of a building
permit for an accessory structure at 6921 NW Beaver Drive.
The Board of Adjustment hereby modifies Finding # 5 of the
September 3, 2014 Board of Adjustment Resolution regarding an
Appeal of the Zoning Administrator’s Decision in the issuance of a
building permit for an accessory structure at 6921 NW Beaver Drive
to be rewritten as follows:
“The Board finds that the permitted accessory structure does not meet the
required setbacks and that the platted setback supersedes the setbacks
described in Chapter 166.23.”
Attachments:
Page 3 of 3
September 3, 2014 Board of Adjustment Resolution
September 15, 2014 City Council Minutes
September 3, 2014 Memo from Staff regarding Rear Yard Setback
October 13, 2014 Letter from Michele Warnock, Davis Brown Law Firm
regarding Rear Yard Setback
September 3, 2014 Letter from Steve Wandro, Wandro Law Firm
regarding Rear Yard Setback
September 3, 2014 Board of Adjustment Packet and all attachment
JOHNSTON CITY COUNCIL
COUNCIL MEETING NO. 14-18
Johnston City Hall, 6221 Merle Hay Road
September 15, 2014
7:00 p.m.
1. CALL TO ORDER
Mayor Dierenfeld called the meeting to order at 7:01 p.m.
2. ROLL CALL
Present:
Absent:
Clabaugh, Lindeman, Brown, Cope, Temple
None
3. WELCOME
Mayor Dierenfeld welcomed residents and guests to the meeting.
4. AGENDA APPROVAL
City Administrator Jim Sanders noted that item 7V had been added to the agenda on Friday. He also
noted that item 7J would be removed from the Consent Agenda for separate consideration.
Motion by Clabaugh second by Lindeman to approve the Agenda as noted.
ROLL CALL:
Aye:
Nay:
Motion Approved:
Lindeman, Brown, Cope, Temple, Clabaugh
None
5-0
5. PUBLIC COMMUNICATIONS
a. Request from Mr. Art Slusark to address the Council regarding the challenge to approving a second
curb cut for the property at 6921 NW Beaver Drive.
Mayor Dierenfeld noted that as this was related to item 7J, comments would be received when the
item was up for consideration.
George Wood, candidate for Broadlawns Hospital Trustee, introduced himself to the Council and
asked for their support at the November 4 election.
6. PUBLIC HEARINGS
a. Conduct a Public hearing and consider the following items related to the Preliminary and Final Plats
for the Enclave Plat 2, east of NW Beaver Drive and north of NW 78th Avenue:
 Resolution No. 14-230 – Vacating a portion of an Overland Flowage and Conservation Easement
located near the northeast boundary of The Enclave Plat 1;
 Resolution No. 14-231 – Approving the Preliminary and Final Plat for The Enclave Plat 1.
The Public Hearing opened at 7:05 p.m.
Senior Planner Aaron Wolfe reviewed the proposed project, noting the need for the vacation of the
easement.
No public comments were received.
The Public Hearing closed at 7:08 p.m.
Motion by Cope second by Brown to approve Resolution No. 14-230.
ROLL CALL:
Aye: Brown, Cope, Temple, Clabaugh, Lindeman
Nay: None
Motion Approved:
5-0
Motion by Cope second by Temple to approve Resolution No. 14-231.
ROLL CALL:
Aye:
Nay:
Motion Approved:
Cope, Temple, Clabaugh, Lindeman, Brown
None
5-0
b. Conduct a Public Hearing and consider Resolution No. 14-223 – Approving and authorizing
execution of a Development Agreement with E.I. DuPont de Nemours and Company, and its whollyowned subsidiary, Pioneer Hi-Bred International, Inc. (Mendel Expansion, Insectary Improvements,
Reid B, C & D Remodel and Seed Treating Facility)
City Administrator Jim Sanders noted that the Council had discussed this possible request in
November, 2013.
Sanders advised that this would be a $28,000,000 project with an anticipated increase of
$14,000,000 in valuation. He also noted that the project was anticipated to add 105 jobs at Pioneer.
Council Member Temple inquired as to whether the project areas were in one TIF District. Sanders
advised the area was in two districts, but only one Development Agreement was needed.
Mayor Dierenfeld noted the positive economic development occurring with the significant expansion
project.
Motion by Cope second by Clabaugh to approve Resolution No. 14-223.
ROLL CALL:
Motion Approved:
Aye:
Nay:
Temple, Clabaugh, Lindeman, Brown, Cope
None
5-0
c. Conduct a Public Hearing and consider the following items related to the City Hall HVAC Upgrade
project:
 Resolution No. 14-220 – Adopting plans, specifications, form of contract, and estimate of costs;
 Consideration of construction bids;
 Resolution No. 14-221 – Making award of the construction contract to Proctor Mechanical
Corporation.
City Administrator Jim Sanders noted that there were 4 bids received on this project and that the
bids were in line with the engineer’s estimate.
Council Member Cope noted that staff should make every effort to include a bid tab in the materials
when possible.
Motion by Clabaugh second by Lindeman to approve Resolution No. 14-220.
ROLL CALL:
Aye:
Nay:
Motion Approved:
None
5-0
Motion by Lindeman second by Clabaugh to approve Resolution No. 14-221.
ROLL CALL:
Aye:
Nay:
Motion Approved:
Lindeman, Brown, Cope, Temple, Clabaugh
None
5-0
d. Consider the following items related to the NW Beaver Drive Water Meter Vault Relocation project:
 Consideration of construction bids
 Resolution No. 14-228 – Rejecting all bids.
Water/Wastewater Superintendent Shane Kinsey noted that a Public Hearing had been scheduled for
this project, but as the bids were being rejected, no Public Hearing is needed.
Kinsey advised that the bids on the project came in approximately 38% over the engineer’s estimate
and as such the bids were being rejected. He also noted that the project would come up for bid again
in the future when the bidding climate was more favorable to the city.
Motion by Cope second by Lindeman to approve Resolution No. 14-228.
ROLL CALL:
Motion Approved:
Aye:
Nay:
Brown, Cope, Temple, Clabaugh, Lindeman
None
5-0
7. CONSENT AGENDA
a. Consider Minutes of September 2, 2014 Worksession.
b. Consider Minutes of September 2, 2014 Meeting.
c. Consider approval of a Security Services Agreement with Strauss Security Solutions for Card
Access software and software maintenance.
d. Consider the renewal of a Class C Liquor License, including Outdoor Service, and Sunday sales for
El Mariachi Restaurant, 5825 Merle Hay Road.
e. Consider the renewal of a Class C Beer Permit, including Sunday sales, for Casey’s General Store
#2635, 10010 NW 62nd Avenue.
f. Consider Resolution No. 14-214 – Approving the executed City of Johnston, Iowa Title VI
Nondiscrimination Agreement with the Iowa Department of Transportation and the Standard Iowa
Department of Transportation Title VI Assurances Statement.
g. Consider Resolution No. 14-213 – Approving the Street Finance Report for Fiscal Year 2013/2014
for the City of Johnston.
h. Consider Resolution No. 14-227 – Acceptance of the Construction of Public Improvements within
the Pinewood Glen Plat 4 subdivision.
i. Consider Pay Request No. 1 from MPS Engineers in the amount of $34,200.00 for construction work
on the NW Beaver Drive Trail project.
k. Consider Resolution No. 14-224 – Not remanding BOA Case No. 14-06, application for a variance
to the open space landscape requirements of Chapter 166.32 of the Johnston Code of Ordinances.
l. Consider approval of the purchase of two (2) marked police patrol vehicles.
m.Consider Resolution No. 14-215 – Accepting the Official Zoning Map for the City of Johnston in
accordance with the Johnston Code of Ordinances.
n. Consider Resolution No. 14-216 – Approving Change Order No. 1 for the East of Merle Hay Road
Sanitary Trunk Sewer Extension Phase 1A – NW Johnston Drive to NW 57th Avenue project.
o. Consider approval of Pay Request No. 1 from TK Concrete in the amount of $17,693.63 for work
completed as of August 31, 2014 on the Beaver Creek Bank Stabilization project.
p. Consider approval of Pay Request No. 1 from MPS Engineers in the amount of $163,410.50 for
work completed as of September 5, 2014 on the 2014 Stormwater Remediation Improvements
project.
q. Consider approval of Pay Request No. 8 from Elder Corp. in the amount of $150,050.03 for work
completed as of September 4, 2014 on the NW Beaver Drive Reconstruction project.
r. Consider Resolution No. 14-217 – Approving Change Order No. 3 for the NW 78th Avenue Sanitary
Sewer Extension project.
s. Consider Resolution No. 14-218 – Approving Change Order No. 1 for Beaver Creek Bank
Stabilization #1 beginning 500 feet south of NW 62nd Avenue.
t. Consider a Purchase Order to TK Concrete for the Merle Hay Road Trail Repair project for
$75,600.00
u. Consider the following reports:
1. Bank Reconciliation Report – August 31, 2014
2. Treasurer’s Investment Report – August 31, 2014
3. Year-to-Date Treasurer’s Report – August 31, 2014
4. Monthly Report Summarization – August 31, 2014
5. Senior Citizens Report – August 31, 2014
6. Planning & Zoning Commission Meeting Minutes – August 25, 2014
7. Planning and Zoning Commission Meeting Minutes – September 8, 2014
8. Board of Adjustment Meeting Minutes – August 21, 2014
9. Board of Adjustment Meeting Minutes – September 3, 2014
10. Monthly Water Consumption Record – June 2014
11. Street Division Monthly Operations Report – August 2014
12. Water Department Monthly Operations Report – August 2014
v. Consider approval Pay Request No. 24 from CMPI Construction, LC in the amount of $150,978.03
for work completed as of August 31, 2014 on the Public Safety Building.
Motion by Temple second by Clabaugh to approve the Consent Agenda.
ROLL CALL:
Motion Approved:
Aye:
Nay:
Brown, Cope, Temple, Clabaugh, Lindeman
None
5-0
8. NON-CONSENT AGENDA
7J. Consider Resolution No. 14-219 – Not remanding BOA Case No. 14-07, an Appeal of a Decision
of the Zoning Administrator related to the issuance of a building permit for an accessory structure at
6921 NW Beaver Drive.
Community Development Director David Wilwerding reviewed the action presented for Council
consideration. He noted that the Board of Adjustment had voted to repeal the building permit issued
for the construction of an accessory structure at 6921 NW Beaver Drive. He advised that the Council
has the ability to review the action and then vote to remand or not remand the issue back to the Board
of Adjustment. He also noted that Patrick Smith, an attorney representing the city on this issue was
recommending not remanding back to the Board of Adjustment.
Wilwerding advised that the Board of Adjustment repealed the Building Permit due to their
determination that the proposed architecture of the structure was not common to the area. He read from
the Board’s resolution, item 4, which provided additional information on their review and decision. He
also noted that the “common area” noted in the Code, was not defined as a specific distance from other
structures but that it had been applied historically as within the city. He noted that metal siding had
been an approved accessory structure building material over a number of years. Wilwerding also
provided clarification on the covenants in the neighborhood, noting the property at 6921 NW Beaver
Drive is not part of the plat as it existed prior to the platting. The required setbacks were discussed.
Council Member Temple and Mayor Dierenfeld noted that perhaps the building permitting process and
curb cut process should be looked at further.
The following residents addressed the Council:
Art Slusark, 7010 Forest Drive. Noted his opinion that the variance process should have been used for
the accessory structure. Also noted safety and environmental concerns over the curb cut on the site as
well as his concern regarding the process for repealing a curb cut.
Matt Bednar, 7011 Forest Drive. Voiced his concern over the decrease in property values in the
neighborhood related to the proposed accessory structure. Also noted his discontent with the
interpretation of the city code related to common materials allowed as building materials.
Mary Bednar, 7011 Forest Drive. Noted that her home abuts the property in question which is at the
entrance of the subdivision. She advised that she was in attendance to protest the process that the city
used for the permit and that she would like to see the code changed and additional notification to
neighbors when permits are issued.
Art Coons, 6921 NW Beaver Drive. Voiced his opinion that no variance was needed. He also noted
that he did not receive approval for an additional curb cut until the building permit had been granted,
and that once the permit had been received he obtained the necessary permits to have the work
completed. He advised that he would not be appealing the Board’s decision but would reapply for a
permit using different building materials and design that would more closely match his home.
Larry Gulleen, 7050 Forest Drive. Noted that the proposed structure was a pole barn, thus having a
commercial look in a residential area and not keeping with the character of the neighborhood. He also
advised that one of the Board of Adjustment members had to seek a variance to erect a pole barn and
that he didn’t understand why the process was arbitrary. He noted his concern about the potential
driveway materials that may be used on the project.
Jeff Anderson, 7000 Forest Drive. Noted concern that setbacks were not properly addressed during the
Board’s review and that he would like to have the Board discuss the setback requirements.
Mayor Dierenfeld thanked those in attendance and noted that she appreciated their comments as they
would be helpful in reviewing the processes used for building permits and curb cuts.
Motion by Clabaugh second by Brown to approve Resolution No. 14-219.
ROLL CALL:
Aye:
Nay:
Motion Fails:
Brown
Clabaugh, Lindeman, Cope, Temple
1-4
Motion by Cope second by Temple to remand the Board of Adjustment’s decision and direct the Board
of Adjustment to look specifically at item 5, the setback requirements, for further review.
ROLL CALL:
Aye:
Nay:
Motion Approved:
Lindeman, Cope, Temple, Clabaugh
Brown
4-1
a. Consider Resolution No. 14-222 – Establishing deer management zones on private property for the
2014/2015 urban bow hunt program.
Sanders noted that the properties encompassed in the resolution had been hunted before and that no
comments were received from the adjoining properties.
Motion by Temple second by Lindeman to approve Resolution No. 14-222.
ROLL CALL:
Aye:
Nay:
Motion Approved:
None
5-0
b. Consider Resolution No. 14-229 – Approving the Final Plat for Chesterfield Heights Plat 1,
subdividing 22.16 acres into thirty-three single-family lots north of NW 78th Avenue and
approximately 1,350 feet west of NW 100th Street.
Senior Planner Aaron Wolfe reviewed the request, noting that the Plat had been previously approved
but a utility easement change necessitated another approval.
Motion by Temple second by Lindeman to approve Resolution No. 14-229.
ROLL CALL:
Aye:
Nay:
Motion Approved:
None
5-0
c. Consider approval of Claims in the amount of $1,353,751.80
Motion by Clabaugh second by Temple to approve Claims as presented.
ROLL CALL:
Motion Approved:
Aye:
Nay:
None
5-0
9. CITY ADMINISTRATOR/STAFF COMMENTS
a. Update on the 2014 Greenwood Hills Greenbelt – Phase 2 Grading and Utilities project.
Wilwerding noted that he wanted to update the Council on the project as the heavy August rain
revealed an area of unstable bank that hadn’t been included in the project area.
Sanders noted that there would not be a special event for City Week, but that staff would be
highlighting departments throughout the week on social media and the city’s website. He also noted
that the recognition of Board and Commission members would be held at the October 6 meeting.
10. CITY COUNCIL COMMENTS
Mayor Dierenfeld thanked staff for their efforts in putting on the Night with the Neighbors event.
11. UPCOMING MEETINGS
October 6, 2014
October 20, 2014
City Hall
City Hall
Worksession 6:00 p.m.
Meeting 7:00 p.m.
Worksession 6:00 p.m.
Meeting 7:00 p.m.
12. ADJOURNMENT
The meeting adjourned at 8:57 p.m.
__________________________
Paula S. Dierenfeld, Mayor
ATTEST:
___________________________
Cyndee D. Rhames, City Clerk
City of Johnston, Iowa
DATE:
September 3, 2014
TO:
Johnston Board of Adjustment
FROM:
Community Development Department Staff
SUBJECT:
BOA DOCKET 14-07
On September 2, 2014, City Staff provided a copy of an August 29, 2014 letter from Ms.
Michele Warnock representing the aggrieved parties in BOA Docket Case 14-07 regarding the
issuance of a building permit for an accessory structure for Mr. Art Coons at 6921 NW Beaver
Drive. Staff wanted to provide additional background information into the issues raised in the
letter ahead of tonight’s special Board of Adjustment meeting which is scheduled to begin at
7:30 p.m.
In the August 29th letter Ms. Warnock discussed the 35 foot rear yard setback shown on the
Coons Heights Plat and notes that Chapter 166.20 states, “whenever the plat of a land
subdivision approved by the City Council and on record in the offices of the county recorder and
county auditor shows a minimum setback along any frontage . . . or other building setback line,
the building line thus shown shall apply along such frontage in place of any other yard line
required in this ordinance unless specific yard requirements in this ordinance require a greater
setback.” She thereby argues that the plat requires a minimum setback of 35 feet along the
north property line of Lots 1 and 2 of Coons Heights for an accessory structure.
Staff would concur with this interpretation that the plat can require setbacks greater than those
provided for in the Zoning Ordinance, for primary structures. However, Chapter 165.04(44)
contains the following definition ““Building Setback Line” means the extreme overall dimensions
of a lot beyond which buildings and structures are not allowed. … A lot may have multiple
building setback lines for primary structures, accessory structures, decks, etc.” If
Chapter 166.20 is interpreted as the aggrieved party’s suggest, the table of bulk regulations in
Chapter 166.23(4) for accessory structures would be unnecessary and all structures, primary
and accessory, would have to meet the same setbacks. It is a very common practice for plats
to regularly contain and display both front and rear setback information, with those setbacks on
the plat reflecting the minimum requirements for a primary structure as defined in the
applicable Zoning District. Clearly the intent of Chapter 166.23(4) was to allow a less restrictive
setback standard for accessory structures, and as such 165.05(44) notes multiple building
setback lines can exist on a property.
There have been questions and discussion pertaining to the intended street alignment of Forest
Drive at the time Coons Heights was platted in 1987, while we believe this is largely irrelevant to
the case staff has researched the issue to provide some background. While the files are
1
somewhat incomplete, staff has found documentation that the original property intended to be
“The Forest” did not have access to NW Beaver Drive. Thus a street connection was envisioned
via Coburn Lane and NW 70th Place through The Wilderness subdivision to the east which was
met with concern from existing residents of The Wilderness. Ultimately, additional land was
purchased so Forest Drive could extend southerly directly to NW Beaver Drive. No connection
th
was made to NW 70 Place. A concept plan showing this configuration dated November 1987
is attached as SR Exhibit H. The final layout of The Forest converted Lot 1 of Coons Heights
from a typical lot to a corner lot, resulting in a required front yard setback along NW Beaver
Drive and Forest Drive. Since this happened after the filing of Coons Heights, the front yard
setback along Forest Drive was not shown as an encumbrance on Lot 1.
In researching ordinance requirements in place at the time of platting, staff reviewed a copy of
the Zoning Ordinance from 1985 (the only full copy available prior to the 1987 platting), at the
time of platting of Coons Heights the property was zoned R-1, which according to the 1985
ordinance required the following bulk regulations: Front Yard Setback 40, Rear Yard Setback
50, Side Yard Setback 10 or 12 feet (depending on 1, 1 ½ or 2 story home). The Coons
Heights plat noted a front yard setback of 80 feet and a rear yard setback of 35 feet, there are
no notes detailing the setback discrepancy between the plat/ordinance. The property (and all
other R-1 zoned properties in the City) was rezoned in 1995 after adoption of a new zoning
ordinance. The Coons Heights and The Forest areas were both rezoned to R-1(100) as they
exist today. The 1985 ordinance also including provisions allowing for accessory structures
allowing accessory structures to be constructed in the rear yard with reduced setbacks of 2 feet
from a property line. The R-1 and Accessory Ordinance provisions from the 1985 Zoning
Ordinance are attached as SR Exhibit I. While the setbacks for primary and accessory
structures and the zoning district have changed over time, this information is provided a
historical perspective that intent of the 1985 Zoning Ordinance was to allow multiple building
setbacks for both primary and accessory structures.
2
SR Exhibit H
Coons Heights
SR Exhibit I
Chapter 17.04.050(C)
REPLY TO DES MOINES OFFICE
October 13, 2014
City of Johnston Board of Adjustment
Johnston City Hall
6221 Merle Hay Road
Johnston, Iowa 50131
RE:
BOA Docket 14-07
Dear Board of Adjustment:
I am writing to provide a written summary of the legal arguments supporting my clients’
appeal. In accordance with the Board’s mandate, I am submitting this document by noon on
October 13, 2014 to allow sufficient consideration in advance of the October 16th meeting.
My remarks will be limited to the specific issue of the 35’ setback on Coons’ plat map
and the legal effect of the same. I will not repeat the arguments previously made regarding the
fact that the more restrictive covenant applies, under both Iowa law and the City Code, but have
attached my previous correspondence which sets forth the specific legal support for that
conclusion. See exhibit A.
It appears the question at hand is:
Does an approved and recorded plat map, containing a a 35’ setback apply when the
City Code’s general setback rule for accessory structures is 10’?
Both the Iowa Supreme Court and the Iowa Court of Appeals have answered this question,
“YES.” In Iowa, a plat map that is approved and recorded creates an enforceable setback, and is
enforceable by adjoining neighbors. Gray v. Osborn, 739 N.W.2d 855, 860 (Iowa 2007) (exhibit
B); Middle Road Developers v. Windmiller Design & Develop., 746 N.W.2d 279, 2008 WL
141658, at *3 (Iowa Ct. App. 2008) (exhibit C).
In 2007, on further review, the Iowa Supreme Court answered “YES” and ruled in favor
of an adjoining neighbor who asked the Court to enforce a 50’ ingress-egress easement, only
shown on the approved and recorded plat map of a landowner. The owner of the property built a
fence through the 50’ ingress-egress area, preventing his neighbor from access and ignoring the
language on his plat map. The Supreme Court agreed with the neighbor finding the plat map’s
limitations cannot be ignored by the landowner. Id. at 861. The legal issue was that the easement
was only on the plat map and nowhere else. The Iowa Supreme Court ruled that “the plat for the
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Page 2
[landowner] alone creates an express easement across the [landowner’s] property in favor of the
[neighbors].” Id. Easements, like setbacks, are validly created by plats.
Here, the situation is nearly identical. The aggrieved parties are the neighbors seeking to
enforce a setback found on the landowner, Mr. Coons’ recorded and approved plat. See exhibit
D. Mr. Coons would like to ignore the plat and build based upon the “minimums” found in the
City Code. Like the Iowa Supreme Court in the Gray case, this Board must find that under Iowa
law, a plat map creates a legally valid and enforceable restraint on the use of property.
In 2008, the Iowa Court of Appeals also answered “YES.” Relying on the Gray decision,
the Iowa Court of Appeals said, “The recent case of Gray v. Osborn makes it clear that the plat
map alone can provide the necessary language to bind successive owners of real estate to
restrictions or limitations on its use.” Middle Road, 2008 WL 141658 at *3. Expanding Iowa
law, the Court of Appeals stated that the “same reasoning [in Gray] applies to this case and hold
that the note on the plat map establishes use restrictions.” Id. The Johnston City Code section
166.20 clearly agrees and is in accord with these legal precedents.
Interestingly, in the Middle Road case, the Court found it important that subsequent
building expansions and development relied upon the recorded and approved plat map. It is
common sense that is common enough for the judiciary, as well. Quite plainly adjoining
neighbors and future expansion rely on these recorded documents, approved by the City and
recorded by the County.
In short, setbacks and easements are created by plat maps. Here, an enforceable setback
was created by the recorded and approved plat map. Pursuant to Iowa law, Coons, or any
subsequent owner, cannot build anything in the 35’ setback no more than the landowner in Gray
could build a fence.
Like the Courts, this Board should place value on the original intent of the setback platted
in 1987. Attached to this letter is correspondence from Larry Gulleen. See exhibit E. Mr. Gulleen
recalls a road between Bednar and Coons’ properties in the early 1980’s. Many residents recall
discussion that a more permanent road was envisioned and anticipated. The City Staff attempted
to bring some historical information as to this issue at the last meeting. It was clear that many
roads were envisioned in the growing area that was to be developed (now, the Forest, the
Wilderness and Coburn). It is also clear that the historical records are incomplete and personal
recollections can fill the gaps in history. Mr. Coons has offered several reasons for the 35’
setback. At least one of his many reasons was that there was to be a road developed. Thus, as all
the evidence, guided by the law reveals—the 35’ setback is not extraneous. Originally, it was for
a road; now it has been relied upon by subsequent development and continues to have meaning.
It has meaning and, under Iowa law, that meaning must be enforced.
The remaining argument against enforcement of the setback in this case is whether it
applies to primary structures only, or all structures. The City Staff argued that it might apply only
to primary structures in its memorandum at the last meeting, but failed to identify any legal
Page 3
grounds for that conclusion. The Johnston City Code defines building setback lines in section
165.04(44). Clearly, building setback lines may apply to both or either primary or accessory
structures. The term “setback” is also defined more broadly:
165.04(206) “Setback” means the required minimum horizontal distance permitted
between the building line and the related front, side, or rear property line.
42. “Building line” means the extreme overall dimensions of a building as determined
from its exterior walls or any part of a structural support or component that is nearest to
the property line, other than usual uncovered steps and patios.
39. “Building” means any structure having a roof supported by walls or by columns
intended for enclosure, shelter or housing of persons, animals, or chattel. When any
portion thereof is entirely separated by walls in which there are no common walls
connecting doors or windows or any similar opening, each portions so separated shall be
deemed a separate building.
Reading these definitions, there is nothing in the City Code that suggests the phrase “35’
setback” as shown on the plat map should be limited to primary structures. The setback on the
plat map, by its very language, does not limit its application to primary structures. This makes
sense when thought of in the relevant historical context. In 1987, there was a road and/or an
intended road. Thus, a general setback was appropriate to allow future expansion. Additionally,
it bears mention that the accessory structure envisioned is not a mere outbuilding for tools or
lawn equipment. The footprint of the proposed structure exceeds 1,300 square feet and would be
constructed in such a way that it cramps the property line and the adjoining neighbor.
In summary, our clients ask that you reconsider the decision to nullify and erase words
from the plat map. We ask that you also answer “YES” that the Coons’ plat map plainly creates
a 35’ setback applicable to all buildings (primary and accessory) that cannot be ignored. We ask
that you answer “no” to issuing any permits related to 6921 N.W. Beaver Drive which violate the
35’ setback, relied upon by subsequent developers when building.
I am happy to answer any additional questions or explain my clients’ positions further at
the hearing on October 16, 2014. Thank you for your continued attention to these very important
matters.
Very truly yours,
DAVIS, BROWN, KOEHN, SHORS & ROBERTS, P.C.
Michele L. Warnock
REPLY TO DES MOINES OFFICE
August 29, 2014
City of Johnston Board of Adjustment
Johnston City Hall
6221 Merle Hay Road
Johnston, Iowa 50131
Re:
6921 NW Beaver Drive Permit; BOA Docket 14-07
Dear Board of Adjustment Members:
My name is Michele Warnock and I represent the aggrieved persons in this appeal
hearing. As a threshold matter, my clients appreciate the entire Board convening to consider this
matter. My clients appealed and asserted five separate arguments. I am writing on behalf of my
clients to set forth certain statutory requirements relating to two points of this appeal: setback
and building materials.
THE PLAT MAP REQUIRES A 35’ SETBACK AND JOHNSTON CITY CODE REQUIRES THE MOST
RESTRICTIVE COVENANT APPLIES.
The enclosed plat map for Coons Heights, publically filed June 5, 1987, reflects a “35’
rear yard” setback. Section 165.03 of the Code, “Interpretation of Standards” states: [i]n their
interpretation and application, the provisions of this ordinance shall be held to be minimum
requirements. Where this ordinance imposes a greater restriction than is imposed or required by
other provisions of law or by other rules or regulations or ordinances, the provisions of this
ordinance shall control. Section 165.03 tells us that the more restrictive terms govern.
Additionally, section 166.20 applies directly to plat maps and states, “whenever the plat
of a land subdivision approved by the City Council and on record in the offices of the county
recorder and county auditor shows a minimum setback along any frontage . . . or other
building setback line, the building line thus shown shall apply along such frontage in place
of any other yard line required in this ordinance unless specific yard requirements in this
ordinance require a greater set back.
Here, the ordinance, specifically 166.23(4) provides a minimum setback of 10’. The
property owner, Mr. Coons intends to build 12’ from the property line, according to his
statements at the August 21 Board of Adjustment hearing. This violates the 35’ rear setback and
section 165.03 of the Code and ignores the plain language in section 166.20. At the August 21
Board hearing, the Board asked whether the Johnston City Code required the greater setback,
found in the plat map, to be enforced. As set forth above, sections 165.03 and 166.20 plainly
DAVIS BROWN KOEHN SHORS & ROBERTS P.C.
PHONE 515.288.2500 FIRM FAX 515.243.0654
WEB WWW.DAVISBROWNLAW.COM
EXHIBIT A
THE DAVIS BROWN TOWER
215 10th STREET, STE. 1300
DES MOINES, IA 50309
THE HIGHLAND BUILDING
4201 WESTOWN PKWY, STE. 300
WEST DES MOINES, IA 50266
THE AMES OFFICE
2605 NORTHRIDGE PKWY, STE. 101
AMES, IA 50010
Page 2
require this Board enforce the 35’ setback.
THE JOHNSTON CITY CODE REQUIRES THE BUILDING MATERIALS TO BE COMMON TO THE
AREA, NOT TO THE CITY, AS A WHOLE.
Johnston City Code 166.23(3) states:
Accessory Structure Building Materials.
Accessory buildings must be constructed of
common residential exterior materials, excluding corrugated metal or other similar
materials not common to the area or not generally used in residential dwellings.
The City’s position is that the “area” means the “city.” If that were the case, then zoning
rules would be useless. The City of Johnston is divided into several zoning areas. There is
commercial, residential, and mixed zoning. There are areas, such as 86th Street and Merle Hay
where only brick exteriors are permitted.
For example, section 166.01 states:
In order to classify, regulate and restrict land use, the location of trades and industries, and the
location of buildings designed for specified uses, to regulate and limit the height, bulk,
architecture and construction of buildings hereafter erected or altered; to regulate and limit the
intensity of the use of lot areas, and to regulate and determine the area of yards, courts, and
other open spaces within and surrounding such buildings, the City is hereby divided into the
following classes of zoning districts. The use, height, area, and construction regulations are
uniform in each class of district. . . .
As a result, it is not a defensible position that the Code is looking at the entire city of Johnston to
determine what is or is not “common to the area.” This is the very reason why the City sends notice to
residents within 250 yards of the subject property when hearing requests for variances—it is the
neighbors who are in close vicinity who are most impacted. This is the “area” that should be considered.
The City of Johnston is diverse with its rural, urban, commercial and residential areas. If this is the
standard of what is “common to the area”, then there would be no limit on what one could build on their
property. The Code, as written, does not permit this type of structure in this area. If Mr. Coons seeks an
exception to this rule, then he should follow the rules in the Code to seek a variance.
In conclusion, my clients and I appreciate the opportunity to be heard and for your consideration
and request that the Board reverse the Zoning Administrator’s decision to issue a permit, without a
variance.
Page 3
Very truly yours,
DAVIS, BROWN, KOEHN, SHORS & ROBERTS, P.C.
Michele L. Warnock
CC:
CC:
Pat Smith, Attorney City of Johnston
David Wilwerding
Page 1
739 N.W.2d 855
(Cite as: 739 N.W.2d 855)
Supreme Court of Iowa.
Stephen GRAY and Shelly Gray, Husband and
Wife, Appellants
v.
James R. OSBORN, III, Appellee,
Tamra Randall, Intervenor-Appellee.
Tamra Randall, Appellee
v.
Stephen Gray and Shelly Gray, Appellants,
Joan K. Peck and Marjorie A. Thirkettle, Intervenors-Appellees.
No. 05-1850.
Oct. 5, 2007.
Background: Subdivision lot owners brought action against neighbor for temporary and permanent
injunction, claiming trespass and seeking damages
for destruction of fence, cleanup costs, and the cost
to rebuild the fence. Neighbor filed counterclaim
for declaratory relief, seeking a declaration of the
existence of an easement over the lot. Adjoining
landowners intervened, claiming an interest in the
easement, and grantor also intervened. The District
Court, Benton County, Kristin L. Hibbs, J., entered
judgment for neighbor, and lot owners appealed.
After transfer, the Court of Appeals reversed and
remanded. The Supreme Court granted further review.
Holdings: The Supreme Court, Appel, J., held that:
(1) Court would review for errors of law rather than
de novo, and
(2) subdivision plat created an express ingress and
egress easement across subdivision lot in favor of
neighbors.
Decision of the Court of Appeals vacated; District Court judgment affirmed.
West Headnotes
[1] Appeal and Error 30
846(1)
30 Appeal and Error
30XVI Review
30XVI(A) Scope, Standards, and Extent, in
General
30k844 Review Dependent on Mode of
Trial in Lower Court
30k846 Trial by Court in General
30k846(1) k. In General. Most
Cited Cases
Appeal and Error 30
893(1)
30 Appeal and Error
30XVI Review
30XVI(F) Trial De Novo
30k892 Trial De Novo
30k893 Cases Triable in Appellate
Court
Cited Cases
Declaratory Judgment 118A
393
118A Declaratory Judgment
118AIII Proceedings
118AIII(H) Appeal and Error
118Ak392 Appeal and Error
118Ak393 k. Scope and Extent of Review in General. Most Cited Cases
Supreme Court would review easement dispute
for errors of law rather than de novo; lot owners'
original action was filed as a “petition at law,”
while neighbor counterclaimed for declaratory
judgment, and the parties made evidentiary objections during trial, some of which were sustained.
[2] Declaratory Judgment 118A
253
118A Declaratory Judgment
118AIII Proceedings
118AIII(A) In General
118Ak252 Nature and Form
118Ak253 k. Legal or Equitable. Most
Cited Cases
Whether a declaratory judgment action is con-
EXHIBIT B
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
739 N.W.2d 855
(Cite as: 739 N.W.2d 855)
sidered legal or equitable in nature is determined by
the pleadings, the relief sought, and the nature of
each case.
findings are ambiguous they will be construed to
uphold, not defeat, the judgment.
[5] Easements 141
30 Appeal and Error
30XVI Review
30XVI(A) Scope, Standards, and Extent, in
General
30k844 Review Dependent on Mode of
Trial in Lower Court
30k845 In General
Cited Cases
The Supreme Court generally hears a case in
the same manner in which it was tried to the district
court.
1008.1(2)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and
Findings
30XVI(I)3 Findings of Court
30k1008 Conclusiveness in General
30k1008.1 In General
30k1008.1(2) k. Same Effect as
Verdict. Most Cited Cases
Appeal and Error 30
17(4)
845(1)
1010.1(6)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and
Findings
30XVI(I)3 Findings of Court
30k1010 Sufficiency of Evidence in
Support
30k1010.1 In General
30k1010.1(6) k. Substantial
Evidence. Most Cited Cases
On review for errors of law, the trial court's
findings carry the force of a special verdict and are
binding if supported by substantial evidence; if the
141 Easements
141I Creation, Existence, and Termination
141k15 Implication
141k17 Ways in General
141k17(4) k. Sale of Platted Land in
General. Most Cited Cases
Subdivision plat created an express ingress and
egress easement across subdivision lot in favor of
neighbors, although plat did not specify which
property was the dominant estate; easement's location and dimension was specifically delineated on
the plat, term “easement” was used, and easement's
ingress and egress purpose was explicitly noted,
easement connected to public roadway to which lot
already had access, grantor testified that purpose in
creating easement was to benefit the eastern half of
her property, plat for second subdivision filed by
grantor explicitly pointed to neighbors' lots as the
dominant estate, and lot owners had notice of the
easement and placed fence on southern border of
easement.
[6] Easements 141
1
141 Easements
141k1 k. Nature and Elements of Right. Most
Cited Cases
An easement is a restriction on another person's
property rights.
[7] Easements 141
12(1)
141 Easements
141k12 Express Grant
141k12(1) k. In General. Most Cited
Cases
Easements 141
14(1)
141 Easements
Page 3
739 N.W.2d 855
(Cite as: 739 N.W.2d 855)
141k14 Exception or Reservation
Cases
Express grant or reservation is one of the ways
an easement may be created.
[8] Frauds, Statute Of 185
60(1)
185 Frauds, Statute Of
185VI Real Property and Estates and Interests
Therein
185k60 Creation of Easements
Cases
Because an easement is an interest in real property, any express easement falls within the statute
of frauds and must be in writing. I.C.A. § 622.32.
[9] Easements 141
17(4)
141 Easements
141k15 Implication
141k17 Ways in General
141k17(4) k. Sale of Platted Land in
General. Most Cited Cases
An easement created via a plat map is valid under Iowa law.
[10] Easements 141
12(2)
141 Easements
141k12 Express Grant
141k12(2) k. Sufficiency of Words of
Conveyance in General. Most Cited Cases
No magic words or terms of art are necessary
to create an easement.
[11] Easements 141
1
141 Easements
141k1 k. Nature and Elements of Right. Most
Cited Cases
In determining the existence of an easement,
the intention of the parties is of paramount importance. Restatement Third of Property (Servitudes) §
2.2.
[12] Easements 141
27
141 Easements
141k27 k. Merger. Most Cited Cases
Easements are extinguished when the dominant
and servient estates merge.
*857 Gregory J. Epping of Terpstra, Epping & Willett, Cedar Rapids, for appellants.
Mark E. Mossman of Mossman & Mossman,
L.L.P., Vinton, for appellees Osborn and Randall.
Vernon P. Squires of Bradley & Riley, P.C., Cedar
Rapids, for intervenors-appellees Peck and Thirkettle.
APPEL, Justice.
In this case, we consider whether landowners
have an easement across the property of an adjoining landowner or whether they committed trespass
when they attempted to exercise rights pursuant to
the claimed easement. The district court found that
an express easement existed and dismissed claims
for trespass and injunctive relief. The court of appeals reversed, and we granted further review. For
the reasons expressed below, the decision of the
court of appeals is vacated and the decision of the
district court is affirmed.
I. Factual Background and Proceedings.
The facts in this case are generally undisputed.
Tamra Randall owned undeveloped property in rural Benton County. In September 1996, Randall recorded the consent and dedication agreement and
plat for what is now known as Maple Ridge Estates
I. The plat called for the subdivision of the land into five lots. The plaintiffs, Stephen and Shelly
Gray, currently own Lot 5.
The plat for Maple Ridge Estates I states that
Page 4
739 N.W.2d 855
(Cite as: 739 N.W.2d 855)
an ingress-egress easement runs across the northern
border of Lot 5. The easement is indicated by a dotted line running parallel to the northern border of
the property with the phrase “50' ingress egress
easement” placed in the middle of the area between
the northern border of Lot 5 and the dotted line.
The easement abuts a public roadway, 59th Street
Trail, on its western end. The eastern end of the
easement connects with property that is not de-
scribed on the plat. In the words familiar to those
experienced in real estate transactions, the dominant estate was not specifically identified or described with particularity on the plat.
*858
The consent and dedication agreement,
however, did not explicitly refer to an ingress-
Page 5
739 N.W.2d 855
(Cite as: 739 N.W.2d 855)
egress easement across Lot 5. The only restriction
concerning building in the subdivision is a setback
restriction, requiring all buildings to be at least fifty
feet from any public roadway and no closer than
twenty feet from any side lot line.
These documents also did not mention the existence of a private gravel road which lay north of
the easement and connected 59th Street Trail to
lands to the east. At the time of the September 1996
filings, Randall was enmeshed in a dispute with her
northern neighbors, Kenneth and Marcia Rick, regarding the ownership of the gravel road. The Ricks
claimed ownership*859 to the northern two-thirds
of the gravel road, and litigation commenced regarding the precise boundary between the two properties. Prior to the dispute, Randall had been using
the road to access property she owned to the east of
Maple Ridge Estates I.
Randall decided that in light of the boundary
dispute, she needed to designate a fifty-foot easement, on what was indisputably her property, across
the northern boundary of Lot 5. Thus, in the event
she was unsuccessful in her litigation with the
Ricks, Randall would continue to have secure access to her eastern property through the easement.
If unsuccessful, she intended to relocate the road
across the fifty-foot easement reserved in the plat
for Maple Ridge Estates I.
In January 1998, Randall prevailed in her litigation with the Ricks. As a result of her success,
Randall could still access her eastern property by
way of the gravel road. She took no action at that
time, therefore, to relocate the gravel road onto the
easement.
In early 2000, Randall filed a plat for Maple
Ridge Estates II. At the time she recorded this plat,
she was still the owner of Lot 5 in Maple Ridge Estates I. Maple Ridge Estates II subdivides property
located to the east of Maple Ridge Estates I. The
plat for Maple Ridge Estates II shows the same
fifty-foot, ingress-egress easement along the northern border of Lot 5 of Maple Ridge Estates I. The
Maple Ridge Estates II plat does not alter the location, dimension, or purpose of the easement.
As with the Maple Ridge Estates I plat, Randall
also filed covenants related to Maple Ridge Estates
II. The restrictive covenants convey a fifty-foot
easement to the owners of Lots 3 and 4 “over and
upon the road shown on the plat for Maple Ridge
Estates II....”
After these documents related to Maple Ridge
Estates I and Maple Ridge Estates II were recorded,
a series of land transactions occurred. Ultimately,
Stephen and Shelly Gray, the plaintiffs in this case,
became owners of Lot 5 in Maple Ridge Estates I.
The Grays' deed specifically noted that their purchase was subject to all covenants, restrictions, and
easements of record. In adjoining Maple Ridge Estates II, Joan K. Peck and Marjorie A. Thirkettle
became owners of Lot 3 and James R. Osborn III
became owner of Lot 4.
Prior to the purchase of their interest in Maple
Ridge Estates I, Lot 5, the Grays obtained an abstract of title and a title opinion. The Grays were
further provided with a copy of the plat for Maple
Ridge Estates I by their realtor. The Grays saw the
wording related to the easement on the plat, but
professed to have difficulty reading it because of
the copy's poor, fuzzy quality. The Grays claim to
have been told by someone that the easement was
for utility purposes only.
After purchasing the property, the Grays decided to construct a fence for their horses. Worried
about possible restrictions, Stephen Gray questioned Randall as to the fence's proper location. At
trial, Randall testified that she told Gray not to construct any type of permanent fence within the fiftyfoot easement. Gray disputed this testimony, claiming that there was no mention of the easement. In
any event, the Grays' fence essentially follows the
southern line of the fifty-foot easement.
After Osborn constructed his home on Maple
Ridge Estates II, Lot 4, Peck and Thirkettle became
Page 6
739 N.W.2d 855
(Cite as: 739 N.W.2d 855)
concerned about the proximity of their home on Lot
3, to the driveway used by Osborn to reach his residence. Osborn, Peck, and Thirkettle were utilizing
the gravel road, which lay north of the easement, to
access their property. *860 The end of the road,
however, veered south and crossed onto the Peck/
Thirkettle lot in order to connect to Osborn's lot.
After considerable discussion, Osborn agreed to
change his manner of access by constructing a
driveway “spur” on the Grays' land, which he believed was subject to the ingress-egress easement.
No one contacted the Grays before construction
began on Osborn's new access. From here, the dispute escalated. The Grays built a temporary and
later a permanent fence blocking access to the new
driveway. Osborn reacted by destroying the fence
with a skid loader.
Shortly after the destruction of the Grays'
fence, they filed an action in district court for temporary and permanent injunction, claiming trespass
and seeking damages for the destruction of the
fence, cleanup costs, and the cost to rebuild the
fence. Osborn filed a counterclaim for declaratory
relief, seeking a judicial declaration of the existence and validity of a fifty-foot, ingress-egress
easement over Lot 5. Peck and Thirkettle intervened, claiming an interest in the easement as adjoining landowners. Randall also intervened as a
portion of the claimed easement lays on her property directly north of the Grays.
In June 2004, the district court denied the application for a temporary injunction, but ordered
Osborn not to expand the spur and ordered that no
one exercise additional use of the easement. At trial, the Grays claimed Osborn violated the order by
using the easement as a parking lot during his Halloween party and sought monetary damages for this
violation. Osborn, in turn, alleged that the Grays
constructed a shed on the easement in violation of
the court's order.
The matter came to trial on May 9, 2005. On
October 10, 2005, the district court found in favor
of Osborn and the other parties aligned with him.
According to the district court, the recorded documents demonstrated the existence of an express
fifty-foot easement over the northern boundary of
the Grays' lot. The district court further found that
the easement was for the benefit of Lots 3 and 4
owned by Peck, Thirkettle, and Osborn in Maple
Ridge Estates II. The Grays filed a timely notice of
appeal.
We transferred the case to the court of appeals.
The court of appeals found that the two filed plats
were insufficient to create an easement because
they were made at different times and because the
language of the second plat cannot be used to create
an easement over the Grays' land. The court of appeals reversed the district court order and remanded
the case for consideration of the Grays' claims for
trespass and injunctive relief. We granted further
review.
II. Standard of Review.
[1][2][3][4] The parties do not agree on the appropriate standard of review. The Grays contend
our review is de novo as the determination of easement rights is equitable. Osborn and aligned parties
assert our review is for errors of law. We agree.
The original action was filed by the Grays as a
“petition at law,” while Osborn counterclaimed for
declaratory judgment. Whether a declaratory judgment action is considered legal or equitable in
nature is “determined by the pleadings, the relief
sought and the nature of each case.” Bjork v. Dairyland Ins., 174 N.W.2d 379, 382 (Iowa 1970). Further, the parties made evidentiary objections during
trial, some of which were sustained, which suggests
a trial at law. Because we generally hear a case in
the same manner in which it was tried to the district
court, our review is for errors of law. Johnson v.
Kaster, 637 N.W.2d 174, 177 (Iowa 2001). “The
*861 trial court's findings carry the force of a special verdict and are binding on us if supported by
substantial evidence. If the findings are ambiguous
they will be construed to uphold, not defeat, the
judgment.” Id.
Page 7
739 N.W.2d 855
(Cite as: 739 N.W.2d 855)
III. Discussion.
[5] In their review, the court of appeals addressed the issue of whether two successive plats
could be read together to create an express easement. Whether two successively filed documents
may be read together to create an easement appears
to be a matter of first impression. We believe,
however, that there is an antecedent legal question
that is wholly dispositive. For the reasons discussed
below, we hold that the plat for Maple Ridge Estates I alone creates an express easement across the
Grays' property in favor of Osborn and the aligned
parties.
[6][7][8] An easement is a restriction on another person's property rights. Indep. Sch. Dist. of
Ionia v. De Wilde, 243 Iowa 685, 692, 53 N.W.2d
256, 261 (1952). Express grant or reservation is one
of the ways an easement may be created. Nichols v.
City of Evansdale, 687 N.W.2d 562, 568 (Iowa
2004). Because an easement is an interest in real
property, any express easement falls within the statute of frauds and must be in writing. See Iowa Code
§ 622.32 (2007).
[9][10][11] An easement created via a plat map
is valid under Iowa law. Maddox v. Katzman, 332
N.W.2d 347, 351 (Iowa Ct.App.1982). Today, no
magic words or terms of art are necessary to create
an easement. In determining the existence of an
easement, the intention of the parties is of paramount importance. Restatement (Third) of Property: Intent to Create a Servitude § 2.2 cmt. d
(2000).
The recorded plat for Maple Ridge Estates I
clearly denotes an intention to create an easement
along the northern border of Lot 5. Not only is the
easement's location and dimension specifically delineated, the precise term “EASEMENT” is used.
Moreover, the easement's purpose-ingress and
egress-is explicitly noted. See Iowa Code § 354.6
(2) (“Easements necessary for the orderly development of the land within the plat shall be shown and
the purpose of the easement shall be clearly
stated.”). The Grays' reliance on Maddox's require-
ment of a detailed description of the easement's
purpose, therefore, is without merit as ingress
egress is sufficiently comprehensive.
Nevertheless, plaintiffs argue that the easement
must fail because the plat does not specifically state
which property is to be the easement's dominant estate. Where there is a technical deficiency in a land
transaction, however, we have held the ambiguity
may be resolved by resorting to the intention of the
parties as gleaned from the instrument itself and the
surrounding circumstances, including subsequent
conduct by the parties. Goss v. Johnson, 243
N.W.2d 590, 595 (Iowa 1976) (citing Flynn v.
Michigan-Wisconsin Pipeline Co., 161 N.W.2d 56,
64-65 (Iowa 1968)).
[12] The instrument and the surrounding circumstances clearly show that the property abutting
the east end of the easement is the dominant estate.
First, the plat states that the easement's purpose is
for ingress and egress and the easement itself connects the eastern property to a public roadway-59th
Street Trail. Thus, on its face, the easement explicitly is designed to provide access to the public
highway. This articulated purpose is irreconcilable
with the Grays' claim that Lot 5 serves as both the
servient and dominant estate. Lot 5 already has direct access to *862 59th Street Trail, so it would
glean no benefit from the easement. Moreover, as
easements are extinguished when the dominant and
servient estates merge, it would be both illogical
and impossible to create an easement for the benefit
of the same land which the easement burdens. The
plat's obvious import, therefore, is that the property
to the east of Lot 5, unconnected to the roadway, is
the dominant estate.
Second, Randall testified at trial that her purpose in creating an easement on Maple Ridge Estate
I plat was to benefit the eastern half of her property.
This testimony is consistent with her contemporaneous boundary dispute with the Ricks. Had Randall
not prevailed, she would not have had access to her
property east of Lot 5.
Page 8
739 N.W.2d 855
(Cite as: 739 N.W.2d 855)
Third, the plat for Maple Ridge Estates II explicitly points to Lots 3 and 4 as the dominant estates. It may be true, as the Grays claim, that
“construing together deeds and mortgages made at
different times, by different parties, with different
objects, having nothing in common except that they
refer to some one or more of adjoining lots with
which they are concerned” is ordinarily not sufficient to create an easement. 28A C.J.S. Easements
§ 57 at 235-38 (2007). In this case, however, both
plats were filed by a common owner, Randall, prior
to her sale of Lot 5, only a few years apart, and for
arguably the same purpose. If nothing else, the
second plat evidences Randall's intent, as subsequent conduct by the parties, to create an easement over Lot 5 for the benefit of her eastern property.
Finally, it is clear that the Grays are chargeable
with actual notice of the easement. Stephen Gray
testified that at the time of his purchase of Lot 5 he
was provided a copy of the plat for Maple Ridge
Estates I. He stated that although an easement was
clearly visible on the plat, he could not read the
words “ingress” and “egress” because their copy
was difficult to read. The Grays mistakenly believed that the easement was for utility purposes
only. This court held long ago, however, that
Because we hold that the Maple Ridge Estates I
plat established an express easement, we need not
address the question of whether an express easement is created by two separate documents under
the facts and circumstances presented in this case.
IV. Conclusion.
By specifically providing the location, dimension, and purpose of the easement, the plat for
Maple Ridge Estates I created an express easement
over the plaintiffs' lot. Any ambiguity, moreover, as
to the easement's dominant estate is resolved by resort to the intention of the parties. Both the instrument itself and the surrounding circumstances support a finding of a valid easement.
*863 DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT
AFFIRMED.
Iowa,2007.
Gray v. Osborn
739 N.W.2d 855
END OF DOCUMENT
[o]ne who purchases land with knowledge of
facts as would put a prudent person upon inquiry,
which, if prosecuted with ordinary diligence,
would lead to actual notice of rights claimed adversely by another, is chargeable with the actual
notice he would have received.
Johnson v. Chicago B. & Q. R.R., 202 Iowa
1282, 1288-89, 211 N.W. 842, 846 (1927). At the
very least, the plat for Maple Ridge Estates I clearly
put the Grays on inquiry notice. Additionally, although Stephen Gray denied Randall's testimony
that she specifically informed him of the easement
during their telephone conversation, the fact that
the Grays ultimately placed their fence on the
southern border of the easement is strongly suggestive of actual knowledge.
Page 1
746 N.W.2d 279, 2008 WL 141658 (Iowa App.)
(Table, Text in WESTLAW), Unpublished Disposition
(Cite as: 746 N.W.2d 279, 2008 WL 141658 (Iowa App.))
(The Court's decision is referenced in a “Decisions
Without Published Opinions” table in the North
Western Reporter.)
Court of Appeals of Iowa.
MIDDLE ROAD DEVELOPERS, L.C., Richard W.
Curtis, Tracey L. Curtis, Rino C. Della Vedova,
Curtis A. Schnell and Benna Lea Schnell,
Plaintiffs-Appellees,
v.
WINDMILLER DESIGN AND DEVELOPMENT
COMPANY, an Iowa Corporation and City Of
Bettendorf, Iowa, an Iowa Municipal Corporation,
Defendants-Appellants.
No. 07-0425.
Jan. 16, 2008.
Appeal from the Iowa District Court for Scott
County, Mary Howes, District Associate Judge.
Defendants-appellants appeal from a district court
order enjoining the development of a parcel of land.
AFFIRMED.
Tricia Spratt Fairfield of Vollertsen, Britt & Gorsline, Davenport, for appellant, Windmiller Design
and Development Company.
Michael Walker and Patrick Vint of Hopkins &
Huebner, P.C., Davenport, for appellant, City of
Bettendorf.
Terry Giebelstein and Wendy Meyer of Lane &
Waterman, L.L.P., Davenport, for appellees.
Considered
by
SACKETT,
VAITHESWARAN and BAKER, JJ.
C.J.,
and
BAKER, J.
*1 In this case, we consider whether a note on
a plat map can create a use restriction running with
the land, thereby preventing a city from selling a
parcel of land to a developer without the use restrictions noted on the plat map. For the reasons expressed below, we affirm the trial court's injunction.
I. Background and Facts
Appellee Middle Road Developers, L.C., is the
owner of real estate platted as Century Heights
Twelfth Addition in the city of Bettendorf. At the
time the area was being developed, Robert Fick,
principal developer for Middle Road, was told by
Bettendorf's planning staff that the city required
outlots be set aside in the creek area of the addition
for use as a stormwater detention area. The dedication of the stormwater management area in the addition was part of a larger regional stormwater detention facility created by the city and was consistent with the city's comprehensive use map.
Middle Road did not resist the city's requirement of the outlots for green space. In February of
2003, Middle Road conveyed outlot A to the city
via a warranty deed, for $27,240, which was below
the market price of the land. The deed was prepared
by the city's attorney.
The general notes on the plat map of the
Twelfth Addition include the following recitation:
ALL OF OUTLOT A IS A SEWER, DRAINAGE
AND DETENTION BASIN EASTMENT. OUTLOT A IS DEDICATED TO THE CITY OF
BETTENDORF, IOWA, FOR STORMWATER
MANAGEMENT PURPOSES. IT SHALL BE
USEDASARECHARGEINFILTRATION-DETENTION AREA WITH NATIVE VEGETATION
MAINTAINED BY THE CITY OF BETTENDORF, IOWA.
In addition to being consistent with the city's
requirements, the designation of outlot A made the
residential housing lots adjacent to outlot A more
valuable than other lots in the area.
Appellees Richard and Tracey Curtis purchased
EXHIBIT C
Page 2
746 N.W.2d 279, 2008 WL 141658 (Iowa App.)
lot 21 in Century Heights Eleventh Addition, which
backed up to outlot A, in May 2001. At that time,
Richard Curtis spoke with head city planner, Mark
Brockway, about outlot A. Brockway told Curtis
that the green space area would remain in its natural state and the city could not change that designation. In May of 2005, the Curtises contacted Fick
about building a larger home on lot 16 of Century
Heights Sixteenth Addition, which adjoins outlot A.
At that time, Tracey Curtis spoke with city planner,
Gregory Beck, who assured her outlot A was for
water retention only and nothing could be built on
it.
Appellee Rino Della Vedova owns lot 17 of
Century Heights Twelfth Addition, which adjoins
outlot A. He purchased the lot from Craig Windmiller of Windmiller Design and Development
Company, who also built Della Vedova's home on
the lot. Prior to the purchase, he viewed the plat
map of the Twelfth Addition, including the dedication language regarding outlot A. Windmiller also
told him that outlot A was to remain green space.
Appellees Curtis and Benna Lea Schnell own
lot 16 of Century Heights Twelfth Addition, which
adjoins outlot A. Benna Lea testified that they paid
a premium for the lot because it adjoined outlot A,
they built a house that architecturally takes advantage of the green space, and their use and enjoyment
of the property would be drastically affected by a
house being built on outlot A.
*2 In mid 2005, Windmiller approached the
city about buying all or a portion of outlot A because he had a buyer interested in building there.
The city determined that outlot A was larger than
necessary for stormwater management. The city
published a notice regarding the proposed sale in
the August 25, 2005 Bettendorf News, but did not
otherwise notify any of the surrounding homeowners of the proposed sale.
On September 6, 2005, the city sold the eastern
portion of outlot A to Windmiller, who owned a
contiguous lot, for the same amount the city had
purchased it from Middle Road. Windmiller subsequently requested the land be re-platted as part of
a lot in Fieldstone Pointe Second Addition, intending to build a single family residence on the land.
The city approved the re-platting.
In the fall of 2005, Windmiller regraded the
eastern portion of outlot A, causing the native vegetation to be removed from the property. It was at
this time that the appellees discovered the eastern
portion of outlot A had been sold.
On November 16, 2005, appellees Middle
Road, Curtis, Della Vedova, and Schnell filed a petition for temporary and permanent injunction
against Windmiller. On March 2, 2006, the appellees amended the petition to include the City of
Bettendorf. Following a December 5-6, 2006 trial,
the court issued an order enjoining Windmiller and
the city from using any portion of outlot A for any
purpose other than as a recharge-infiltration-detention area with native vegetation. Windmiller and the city appeal.
II. Merits
Because “[a] request for an injunction invokes
the court's equitable jurisdiction,” our review is de
novo. Matlock v. Weets, 531 N.W.2d 118, 121
(Iowa 1995). Although we are not bound by them,
we give weight to the trial court's fact findings, especially concerning the credibility of witnesses. Id.
We review a decision by the trial court to allow an
exception to the statute of frauds and admit oral
evidence of a contract for correction of errors at
law. Kolkman v. Roth, 656 N.W.2d 148, 151 (Iowa
2003).
A. Use Restriction/Covenant Running with the
Land
The appellants argue the note on the plat map
does not create a covenant or use restriction running with the land. Windmiller also argues a strict
test should be applied in construing agreements that
restrict the free use of property.
It is well settled that “restrictions on the free
Page 3
746 N.W.2d 279, 2008 WL 141658 (Iowa App.)
use of property are strictly construed against the
party seeking to enforce them, ... and doubts will be
resolved in favor of the unrestricted use of property.” Stockdale v. Lester, 158 N.W.2d 20, 22 (Iowa
1968) (citations omitted). This strict rule of construction, however, “ ‘should never be applied in
such a way as to defeat the plain and obvious purpose of the restriction.’ “ Leverton v. Laird, 190
N.W.2d 427, 432 (Iowa 1971) (quoting Jones v.
Haines, Hodges & Jones Bldg. & Dev. Co., 371
S.W.2d 342, 344 (Mo.Ct.App.1963)). “[T]he true
rule is that the intention of the parties may be ascertained from the language of the instrument or may
be implied from the surrounding circumstances.”
Id. (citation omitted). A more liberal approach recognizes building restrictions “more as a protection
to the property owner and the public rather than as
a restriction on the use of property.” Id. at 431
(citations omitted).
*3 While it may have been previously unclear
whether a plat map could create a covenant or use
restriction running with the land, the recent case of
Gray v. Osborn, 739 N.W.2d 855 (Iowa 2007),
makes it clear that the plat map alone can provide
the necessary language to bind successive owners
of real estate to restrictions or limitations on its use.
In Gray, noting that “[a]n easement created via a
plat map is valid under Iowa law,” the court looked
to the intention of the parties to determine the existence of an easement. Gray, 739 N.W.2d at 861 (
citing Maddox v. Katzman, 332 N.W.2d 347, 351
(Iowa Ct.App.1982)). The court held that, because
the plat clearly denoted an intention to create an
easement, and the purchasers had notice, the plat
established an easement. Id. at 861-62.
We believe the same reasoning applies to this
case and hold that the note on the plat map establishes use restrictions. “[W]hen land is dedicated
with limitations on the dedication and the city accepts the plat as dedicated, such action is not void
and the limitations have been recognized.” Leverton, 190 N.W.2d at 433. The city bought outlot A at
below market value for the dual purpose of provid-
ing a drainage basin and green space. The purposes
were clearly noted on the plat. Because the plat
map clearly denoted an intention to create use restrictions and Windmiller had notice of the restrictions, the plat established the use restrictions, which
survive the city's ownership and are applicable to
Windmiller. See id. at 434 (“[Use] restrictions survive public ownership by the city and are applicable to its grantees.”).
B. Admission of Oral Evidence
The appellants also argue that the trial court
erred in allowing oral evidence of the plaintiffs' discussions with city employees because the statute of
frauds renders evidence of an oral promise creating
an interest in land inadmissible.
[T]he erroneous admission of evidence does not
require reversal unless a substantial right of the
party is affected. In other words, the admission of
evidence must be prejudicial to the interest of the
complaining party. This requires a finding that it
is probable a different result would have been
reached but for the admission of the evidence or
testimony.
Mohammed v. Otoadese, 738 N.W.2d 628, 633
(Iowa 2007) (internal citations and quotations omitted). Because we hold that the language on the plat
itself establishes use restrictions, evidence regarding the plaintiffs' discussions with city employees is
irrelevant to the outcome of this case. Therefore,
we need not consider this issue on appeal.
C. Proper Procedure for Sale of Outlot
The appellants also argue that the city properly
sold a portion of outlot A to Windmiller without the
restrictions because it properly followed Iowa Code
section 354.23 (2005) for vacation and sale of the
land. The determination of whether the city followed the proper procedure involves two questions:
(1) whether the sale procedure was proper under
Iowa Code section 364.7 and (2) whether the city
could vacate the use restrictions under section
354.23 as part of the sale. We find that the sale procedure was appropriate but could not be done
Page 4
746 N.W.2d 279, 2008 WL 141658 (Iowa App.)
without the use restrictions.
*4 Pursuant to section 354.23, a city “may vacate part of an official plat that had been conveyed
to the city ... or dedicated to the public which is
deemed by the governing body to be of no benefit
to the public.” See also Carson v. State, 240 Iowa
1178, 1189, 38 N.W.2d 168, 175 (1949) (“[W]here
land, already publicly owned, is designated for
some particular public use no contractual trust
arises in favor of the general public that precludes
subsequent diversion of it by proper legislative authority to some other and different public use.”).
pose other than as a recharge-infiltration-detention
area with native vegetation.
AFFIRMED.
Iowa App.,2008.
Middle Road Developers, L.C. v. Windmiller
Design and Development Co.
746 N.W.2d 279, 2008 WL 141658 (Iowa App.)
END OF DOCUMENT
Once the city determined it did not need the
portion of outlot A, it was empowered to sell it. See
Leverton, 190 N.W.2d at 434. The city could not,
however, sell the land free of the restrictions contained in the plat. Where “each lot owner is presumed to have bought with notice of and in reliance
on the material in the plat dedication, [p]rivate
rights have arisen.” Id. Although the city can sell
the land, “in doing so it should not be allowed to
destroy the original scheme of restrictive covenants
applicable to all of the other land.” Id. The appellants knew the user restrictions were in the plat and
also knew of the prior position of adjoining
landowners. Further, the adjoining landowners acquired rights to the restrictions because of the increased value and desirability of their properties because of those restrictions. Even if we were to hold
that the attempted release of the restriction was a
vacation of public lands, this case turns on the
rights created at the time outlot A was conveyed to
the city and is not controlled by the city's later attempted nullification of the restriction. The sale of
the land was proper; the attempted release of the restrictions was not.
III. Conclusion
The plat map clearly creates use restrictions,
and Windmiller had notice of the restrictions. The
city could sell outlot A but not free of the restrictions contained in the plat. We affirm the trial
court's injunction prohibiting Windmiller and the
city from using any portion of outlot A for any pur-
EXHIBIT D
October 10, 2014
TO: Johnston Board of Adjustment
RE: Building permit number 2014000323 was issued to Art Coons, 6921 NW Beaver Drive
To Whom It May Concern,
I have attached a map from the 1956 USGS map with my approximation of where the Coons
property lines eventually have been drawn. Notice that there was a road on the back side of the
Coons property. I remember driving on that road in the early 80’s. Mr. Coons told me and two
others that he was originally planning to subdivide his property and build other houses with access
from that back road. Hence, it makes sense that Mr. Coons’ lot was originally considered a double
frontage lot.
Code section 166.17 (3) says:
Double Frontage Lots. Buildings on double frontage lots extending through from street to street
shall provide the required minimum front yard setback on the street side where the City may
determine access is permitted, and shall provide the required minimum rear yard setback on the
street frontage where the City may determine that no vehicle access shall be permitted. The City
may also require an additional buffer adjacent to thoroughfares through the subdivision
regulations.
I was not a part of the original conversation on the platting of the Coons lot, but section 177.17 (3)
gives a logical reason for the original 35' setback, a standard front yard setback, that was drawn on
the back side of the Coons lot. It gives logic to why the required setback line was labeled rear yard
– in accordance with the code that indicates that the city will determine which frontage is
accessible by vehicles and which one is not.
Because the 35’ setback line was platted, the Bednars relied on that plat map when they decided to
purchase their house. Ignoring the clear platting of the setback line will damage the Bednar’s property
value. I believe that ignoring the plat lines exceeds the authority of the city manager.
Now Mr. Coons has another type of double front lot – a corner lot. A corner lot requires a significant
setback for on both the Beaver Drive and Forest Drive sides of his house according to 166.23 (4).
“In districts R-1, R-1A, R-E and R-2, no detached accessory structures shall be located between
the front lot line and the principal structure’s front building line. In cases of a corner lot, the
above provision shall apply to both lot lines abutting a public street. A detached structure of less
than 120 square feet in floor area may be placed within 3 feet of the property line if located in the
side or rear yard.”
Therefore, I believe any outbuilding that Mr. Coons proposes must be farther than 35’ from the
Bednar property line and set back from Forest Drive at least as far as the side of Mr. Coon’s house.
Respectfully submitted,
Larry Gulleen
7050 Forest Drive
Johnston, IA 50131
EXHIBIT E-1
Approx.
position of
Coons Lot
NW 70th
Merle Hay Road
Beaver
From 1956 United States Geological Survey map. This section of the map shows the intersection of Merle Hay Road and NW 70 th, where NW 70th
intersects Beaver in the middle, and the access roads for the old shack and some older houses extending to the east from NW 70th. Road Labels
have been added to this smaller section for clarity.
EXHIBIT E-2
Board of Adjustment
September 3, 2014 Meeting
BOA 14-07: Reconsider an Appeal of a Zoning Administrator decision related to the issuance of a
building permit for an accessory structure at 6921 NW Beaver Drive.
UPDATE FROM
AUGUST 21, 2014
MEETING:
A public hearing regarding this item was conducted on August 21, 2014.
Following the hearing, the Board by a vote of 3-2, voted to repeal the
decision of the Zoning Administrator related to the issuance of a building
permit for an accessory structure at 6921 NW Beaver Drive, subject to the
following findings:
1. Arthur and Susan Coons are the owners of property at 6921 NW
Beaver Drive, legally described as Lot 1, Coons Heights.
2. Art Coons received a building permit for a 1,376 square foot
accessory structure on the property located at 6921 NW Beaver
Drive on June 24, 2014.
3. William E. Hanigan and Michele L. Warnock of the Davis Brown
Law firm representing aggrieved parties, Arthur and Mary Slusark,
7010 Forest Drive; Matthew and Mary Bednar, 7011 Forest Drive;
Gregory and Christina Ceraso, 7030 Forest Drive; Mary Ellen
Anderson, 7040 Forest Drive; Michael and Janice Gentile, 7070
Forest Drive on July 3, 2014 alleging the noted building permit was
not in conformance with the following provisions of the Zoning
Ordinance: Building Materials (Chapter 166.23(3)), Setbacks (no
Chapter cited), Drainage (no Chapter cited), Height (Chapter
166.23(4)), Process (no Chapter cited).
4. The Board finds that the permitted accessory structure’s building
architecture consisting of metal siding, is not in conformance with
Chapter 166.23(3) because such material is not common to the
area.
5. The Board finds that the permitted accessory structure meets the
setback requirements for accessory structures as specified in
Chapter 166.23(4) as the proposed side and rear setbacks of 12 feet
exceed the minimum 10 feet requirement.
6. The Board finds that the permitted accessory structure is not in
violation of any Zoning Ordinance provision related to drainage or
stromwater management as there are no Zoning Ordinance
provisions related to drainage or stormwater management for an
accessory structure.
7. The Board finds that the permitted accessory structure at 14 ½ feet
tall meets the building height requirements for accessory structures
H:\Community Development\BOA\2009 BOA\09-01; 5758 NW 55th Ave Zoning Appeal
Page 1 of 16
as specified in Chapter 166.23(4) which allows a building height of
15 feet, provided such building height would be verified during the
building inspection process.
8. Based upon the findings noted above, the Board hereby repeals the
Zoning Administrator’s decisions in issuance of a permit for an
accessory structure at 6921 NW Beaver Drive. Nothing in these
findings would prohibit the property owner for seeking issuance of
another building permit for an accessory structure provided such is
in conformance with all City Ordinances and these findings.
After the vote, staff noted Chapter 166.16(6) required the concurring vote
of four members of the Board to reverse a decision of the Zoning
Administrator, as such the motion failed. The counsel for the aggrieved
parties then requested the item be reconsidered before the full Board since
two members were absent. Thus, this special meeting was scheduled to
reconsider the item.
At the meeting staff will provide a brief synopsis of the appeal and it will
be up to the Board if they would like to accept any new evidence or public
comments. Minutes and audio from the August 21, 2014 meeting have
been made available to the Board members who were not in attendance.
AGGRIEVED
PARTIES:
William E. Hanigan and Michele L. Warnock of the Davis Brown Law
firm representing:
Arthur and Mary Slusark, 7010 Forest Drive;
Matthew and Mary Bednar, 7011 Forest Drive;
Gregory and Christina Ceraso, 7030 Forest Drive;
Mary Ellen Anderson, 7040 Forest Drive;
Michael and Janice Gentile, 7070 Forest Drive.
PROPERTY OWNER:
Arthur and Susan Coons
SITE LOCATION:
6921 NW Beaver Drive
Lot 1 Coon Heights
ZONING:
The property is zoned R-1(100) Single Family Residential.
APPLICANTS
REQUEST:
Appeal decision of Zoning Administrator contending the issuance of the
building permit for a 1,376 square foot accessory structure was not in
conformance with the following provisions of the Zoning Ordinance:
Building Materials (Chapter 166.23(3)), Setbacks (no Chapter cited),
Drainage (no Chapter cited), Height (Chapter 166.23(4)), Process (no
Chapter cited).
Page 2 of 16
APPLICANTS
RATIONALE:
See attached Staff Report (SR) Exhibit A, an appeal form and
documentation dated July 3, 2014 including Exhibits 1-12. Specifically, see
Exhibit 11 of SR Exhibit A, which contains narrative with explanations for
each of the arguments, noted above and is hereinafter referred to as Exhibit
11.
SYNOPSIS:
On June 24, 2014 the City of Johnston issued a building permit to Art
Coons for a 1,376 square foot (32’ x 43’) accessory structure proposed to
be located in the rear of his property at 6921 NW Beaver Drive. The noted
aggrieved parties took issue with the proposed construction and on July 3,
2014, filed the appeal noted in this staff report and also filed a Petition for
Certiorari seeking Temporary and Permanent Injunctive Relief to prevent
the construction of the proposed accessory building. On July 16, 2014 the
aggrieved parties withdrew their Petition for Certiorari pending the
outcome of this appeal of the Zoning Administrator’s decision. Also on
July 16, 2014, the City issued a letter to Mr. Coons noting the building
permit had been temporarily revoked pending the outcome of a hearing
before the Board of Adjustment. This action was taken pursuant to Section
166.16(3) of the Code of Ordinances, which requires a stay of all
proceedings when an appeal is pending.
BOARD OF
ADJUSTMENT
AUTHORITY:
Section 166.16.3 Appeals
Appeals to the Board may be made by any person grieved by
any officer, department, board, or commission of the City
pertaining to the enforcement of this zoning ordinance. Such
appeal shall be made within ten (10) days by filing with the Zoning
Administrator a notice of appeal specifying the grounds thereof.
The Zoning Administrator shall forthwith transmit to the Board all
papers constituting the record upon which the action appealed from
is taken. An appeal stays all proceedings in furtherance of the
action appealed from, unless the Zoning Administrator certifies to
the Board, after notice of appeal shall have been filed with him, that
by reason of the facts stated in the certificate, a stay would, in
his/her opinion, cause imminent peril to life or property. In such
case, proceedings shall not be stayed otherwise than by a restraining
order which may be granted by the Board or by a court of record on
application, on notice to the Zoning Administrator and on due cause
shown. The Board shall fix a reasonable time for the hearing on the
appeal, give public notice thereof as well as due notice to the
petitioner and adjoining property owner, and decide the same
within a reasonable time. At the hearing any party may appear in
person or by agent or attorney.
It should be noted that the aggrieved party’s application noted an appeal
related to the granting of a curb cut and granting of a right of way permit,
in addition to the granting of the building permit. Chapter 166.16(5)(A)
Page 3 of 16
grants the Board of Adjustment the authority to:
“To hear and decide appeals where it is alleged there is an error in
any order, requirements, decision, or determination made by the
Zoning Administrator in enforcement of the ordinance.”
The ordinance noted above refers to the Zoning Ordinance, Chapter 165173 of the Johnston Municipal Code.

The regulations dictating the granting of a curb cut are contained in
Chapter 140 of the Municipal Code and are outside of the authority
of the Zoning Administrator and Board of Adjustment.

The regulations dictating the granting of a right of way permit are
contained within Chapter 141 of the Municipal Code and are
outside of the authority of the Zoning Administrator and Board of
Adjustment.
The regulations dictating the granting of a building permit are
contained within Chapters 155-159 of the Municipal Code are
outside the authority of the Zoning Administrator and Board of
Adjustment, unless evidence is provided that the permit issued was
not in conformance with a provision or requirement of the Zoning
Ordinance.

The applicant’s Exhibit 11 contains arguments that the building permit was
issued in violation of the following items, Building Materials (Chapter
166.23(3)), Setbacks (no Chapter cited), Drainage (no Chapter cited), Height
(Chapter 166.23(4)), Process (no Chapter cited). At least three of the above are
related to the provisions of the Zoning Ordinance, thus the following section
details the applicable ordinance provisions and facts used by City Staff in
issuance of the building permit.
PLEASE NOTE – the arguments made regarding the granting of a curb cut
and granting of a right of way permit are outside the authority of the Board
of Adjustment and should not be considered or discussed in the Board’s
review of this appeal.
APPLICABLE
ORDINANCE
PROVISIONS:
Building Materials (Chapter 166.23(3))
Chapter 166.23(3) States, “Accessory Structure Building Materials. Accessory
buildings must be constructed of common residential exterior materials,
excluding corrugated metal or other similar materials not common to the area or
not generally used in residential dwellings.”
The aggrieved party’s Exhibit 11 contends that “metal siding and/or pole
barn metal are not common to the area, nor are they generally used in
residential dwellings.”
Page 4 of 16
Staff Report (SR) Exhibit B is attached which contains the building permit and
all associated attachments. Included in the attachments is a building elevation
showing a building with vertical metal siding.
Metal siding is a common material found in residential construction used both as
siding and roofing material. Furthermore accessory buildings with similar
architecture (metal siding) to that proposed in this instance have long been
considered acceptable and in conformance with the provision noted above,
provided the metal siding is painted in a residential color. There are examples of
buildings constructed similar to what is proposed throughout the entire City. At
the August 21, 2014 hearing it was noted that absent a definition for “area” in the
requirement above, staff interpreted “area” to be all residentially zoned district
where accessory structures are permitted so all properties would be treated
equally.
Additionally, there have been at least five instances since 2010 where the Board
of Adjustment has considered and granted approval of a variance or special
exception for an accessory building in which the buildings were proposed of
similar architecture (metal siding). While the architecture in each of those cases
was not the basis for the variance or special exception, the Board had the
authority to impose conditions relating to architecture and did not elect to do so.
Those cases include BOA 14-04, 5490 NW 57th Avenue; BOA 13-02, 7365 NW
107th Street; BOA 12-09, 5202 NW 62nd Avenue; BOA 12-01, 7862 NW 103rd
Lane; BOA 10-04, 7344 NW 86th Street.
Setbacks (no Chapter cited)
Chapter 166.23 contains the following table which regulates the setbacks
for accessory structures, the subject property is zoned R-1(100) (pertinent
sections highlighted):
Page 5 of 16
The aggrieved party’s Exhibit 11 contends that a rear yard setback of 35
feet was required (no Chapter cited) and that, “Coons’ building permit
application did not contain a site plan, measurements, lot lines and
setbacks.”
SR Exhibit B contains Mr. Coons building permit including all
attachments. One attachment contains a site plan drawn over an aerial
photograph which notes the placement of the structure on the property, and
includes annotations that the structure would be 12 feet from the rear and
side property lines. The bulk requirements for a primary structure in R1(100) require front and rear yard setbacks of 40 feet and a side yard
setback of 10 feet. Garages, storage buildings, etc. when not attached to a
house or primary structure are considered accessory buildings. As noted
above in the table, the rear and side yard setbacks for an accessory structure
are 10 feet. As proposed, the structure meets the setback requirements of
Chapter 166.23.
There are no additional Zoning Ordinance or Building Code regulations
that require an engineered site plan for construction of an accessory
structure.
Page 6 of 16
The aggrieved party’s Exhibit 11 contains additional extensive narrative
related to the granting of a curb cut. As previously noted, those regulations
are contained in Chapter 140 and outside the authority of the Board of
Adjustment.
Drainage (no Chapter cited)
The Zoning Ordinance contains no provisions requiring a drainage plan or
other stormwater management information prior to the issuance of a
building permit for an accessory structure.
Such a drainage
plan/stormwater management plan is only required when a site plan is
required for a commercial structure (Chapter 171) or when a property is
subdivided for commercial or residential uses (Chapter 180).
The aggrieved party’s Exhibit 11 contends (in part – see Exhibit 11 for full
text) that there is no information identifying, “…the amount of cement to
be used. There is no information in the permits that identify the impact of
the steel roof…The Board of Adjustment’s role is enforce zoning
regulations…Given the location and nearness to adjoining neighbors, this
amount of paving/cement and steel roof structure have the ability to alter
water flow and drainage. The Board of Adjustment must consider this
when validating permits to build.”
As noted above, there are no Zoning Ordinance regulations requiring a
drainage or stormwater management plan for an accessory structure. Staff
would also note that it’s not the Board of Adjustment’s role to enforce
zoning regulations or validate permits. The Board’s role is clearly defined
under the “Board of Adjustment Authority” portion of this staff report.
Height (Chapter 166.23(4))
Chapter 166.23 contains the following table (as previously cited) which
regulates the height for accessory structures, the subject property is zoned
R-1(100) (pertinent sections highlighted):
Page 7 of 16
Additionally, Chapter 165.04 (41), defines building height as:
““Building, height of” means the vertical distance from the average ground
elevation at the building lines, to the highest point of the coping of a flat roof, or
to the deck line of a mansard roof, or to the average height of the highest gable of
a pitch or hip roof.”
The aggrieved party’s Exhibit 11 contends a crushed rock building pad,
which has already been installed will elevate the structure, as depicted in
the aggrieved party’s Exhibit 5.
SR Exhibit B contains an attachment showing a wall height of 11 ½ feet,
plus an additional 3 feet to the midpoint between the highest gable and
soffit for a total height of 14 ½ feet. This height is 6 inches less than the
total allowed height of 15 feet. Prior to the temporary revocation of the
building permit, the property owner had graded a level pad for the
structure; such a level pad would be required for the construction of any
structure. As noted, as permitted the accessory structure meets the building
height requirements. Final verification of that building height, as with any
structure, would be field verified during the building inspection process.
Page 8 of 16
Process (no Chapter cited)
Chapter 166.16(6) states in part:
“Decisions of the Board of Adjustment. In exercising the powers enumerated in
this Code of Ordinances, the Board may, in conformity with the provisions of
law, reverse or affirm, wholly or partly, or modify the order, requirement,
decision, or determination appealed from, and may make such order, requirement,
decision, or determination as it believes proper. The concurring vote of four (4)
members of the Board shall be necessary to reverse any order, requirement,
decision, or determination of the Zoning Administrator, or to decide in favor of
the applicant on any matter upon which it is required to pass under this
section;…”
text), “Coons’ applications are deficient.”
Staff will note that it was believed that the building permit and all
attachments were provided to one of the aggrieved parties, and
communicated such to the aggrieved parties counsel, see SR Exhibit A –
Exhibit 6. Upon closer review it was noted that the site plan the aggrieved
party’s counsel attached to SR Exhibit A was not the site plan reviewed or
approved with the issuance of a building permit. As such, staff provided
counsel with the building permit and all attachments on July 21, 2014 (SR
Exhibit C).
text), “The aggrieved members of the community respectfully request this
Board vacate the previously issued permits and the decision made to issue
the permits. This Board has jurisdiction to overturn the decision to issue
the building permit in violation of zoning ordinances…At this time the
aggrieved members of the community ask that the Board of Adjustment
require the permit holder, Coons to remove the crushed rock/gravel situated
in the rear lot of 6921 NW Beaver Drive and to restore the sidewalk and
curb to its previous condition, and to cease all further construction.”
Staff would clarify the Board’s decision making power outlined in Chapter
166.16(6) states, “in conformity with the provisions of law, reverse or affirm,
wholly or partly, or modify the order, requirement, decision, or determination
appealed from, and may make such order, requirement, decision, or determination
as it believes proper.” Thus, the Board’s power is limited to reviewing the
specific Zoning Ordinance provisions noted in this report and determining
whether or not the staff’s interpretation of those ordinance consistent with those
provisions. Should the Board find error in the Zoning Administrator’s
decision(s), following such decision the applicant would have the ability to seek a
building permit in conformance with the Board’s findings. As such, the Board
doesn’t have the authority to “cease all further construction.”
Page 9 of 16
NEIGHBOR NOTICE:
Prior to the August 21, 2014 meeting a notice was mailed to all properties
within 250 feet of the property on which the appeal was filed and published
notice in the Johnston Register. The Board of Adjustment Rules of
Procedure require only a minimum of 48 hour notice prior to a Special
Meeting, however, neighbor notices were mailed to all properties within
250 feet on August 27, 2014. Written correspondence provided to date is
attached. Prior to the August 21, 2014 meeting, one inquiry was made
seeking individual Board of Adjustment contact information, however,
pursuant to Board of Adjustment Rules of Procedure that information was
not provided as the Rules prohibit ex-parte communication between the
Board and appellants on items pending before the Board.
RECOMMENDATION:
As noted throughout this staff report, staff does not believe any evidence
has been presented which indicates that there was an error in any Zoning
Administrator decision and as such the permit was properly issued. Based
upon the information presented, the staff recommends the Board affirm the
decision of the Zoning Administrator and provides the following findings
for the Board’s consideration. Based upon a review of this report and all
applicable Zoning Ordinances Patrick Smith the City’s attorney on this
matter also concurs with this recommendation. A draft resolution is
attached.
FINDINGS
AFFIRMING
DECISION OF
ZONING
ADMINISTRATOR:
The Board of Adjustment hereby affirms the decisions of the Zoning
Administrator in the issuance of a building permit for an accessory
structure at 6921 NW Beaver Drive subject to the following findings:
Forest Drive filed an appeal of the Zoning Administrator’s decision
on July 3, 2014 alleging the noted building permit was not in
conformance with the following provisions of the Zoning
architecture consisting of metal siding, is in conformance with
Chapter 166.23(3) provided the siding is painted a residential color
and is not unfinished corrugated metal.
Page 10 of 16
5. The Board finds that the permitted accessory structure meets the
setback requirements for accessory structures as specified in
Chapter 166.23(4) as the proposed side and rear setbacks of 12 feet
exceed the minimum 10 feet requirement.
6. The Board finds that the permitted accessory structure is not in
violation of any Zoning Ordinance provision related to drainage or
stromwater management as there are no Zoning Ordinance
provisions related to drainage or stormwater management for an
accessory structure.
7. The Board finds that the permitted accessory structure at 14 ½ feet
tall meets the building height requirements for accessory structures
as specified in Chapter 166.23(4) which allows a building height of
15 feet, provided such building height would be verified during the
building inspection process.
8. Based upon the findings noted above, the Board hereby affirms the
accessory structure at 6921 NW Beaver Drive and removes the
Zoning Administrator’s temporary revocation of Permit
#2014000323.
FINDINGS FOR
REPEAL OF
DECISION OF
ZONING
ADMINISTRATOR:
Should the Board determine that there was an error in the Zoning
Administrator’s decision to issue the building permit pertaining to one or
more of the ordinance provisions noted in this report, such findings shall be
clearly defined and contained in the Board’s resolution. Staff has provided
the framework for such findings. Please note the basis for the findings will
need to be enumerated by the Board as part of the motion to repeal the
decision. A draft resolution is attached.
The Board of Adjustment hereby repeals the decisions of the Zoning
Administrator in the issuance of a building permit for an accessory
structure at 6921 NW Beaver Drive subject to the following findings:
Forest Drive filed an appeal of the Zoning Administrator’s decision
on July 3, 2014 alleging the noted building permit was not in
conformance with the following provisions of the Zoning
Page 11 of 16
architecture consisting of metal siding, is not in conformance with
Chapter 166.23(3) based upon
4. The Board finds that the permitted accessory structure does not
meets the setback requirements for accessory structures as specified
in Chapter 166.23(4) based upon
5. The Board finds that the permitted accessory structure is in
violation of Chapter _________ of the Zoning Ordinance related to
drainage or stromwater management.
6. The Board finds that the permitted accessory structure does not
meets the building height requirements for accessory structures as
specified in Chapter 166.23(4), based upon
7. Based upon the findings noted above, the Board hereby repeals the
accessory structure at 6921 NW Beaver Drive. Nothing in these
findings would prohibit the property owner for seeking issuance of
another building permit for an accessory structure provided such is
in conformance with all City Ordinances and these findings.
Attachments:
SR Exhibit A – Application to Appeal Decision of Zoning Administrator dated July 3, 2014
including Exhibits 1-12.
SR Exhibit B – Building Permit #2014000323 including attachments.
SR Exhibit C – Email from David Wilwerding to Michele Warnock
SR Exhibit D – Neighbor Mailing Notice
SR Exhibit E – Neighbor Mailing List
SR Exhibit F – Vicinity Map
SR Exhibit G – Written Correspondence Received
Page 12 of 16
IN THE MANNER OF
BOA Case # 14-07; 6921 NW
Beaver Drive
(
)
(
City of Johnston
6221 Merle Hay Road
DATE OF ACTION: September 3, 2014
CITY REPRESENTED BY: Patrick Smith, Bradshaw Law Firm,
David Wilwerding, Aaron Wolfe, Steven Witmer, City of Johnston
Now on the date cited, the Board of Adjustment convened in open public session at 6:30 P.M. The appellant, board
and city were represented as noted. Under the provisions of Chapter 2.52 and of Title 165-173 of the Johnston
Municipal Code and of Chapter 414 of the Code of Iowa, the Board reaches the following conclusions:
MOTION BY:
___
SECONDED:
___
MOTION:
The Board of Adjustment hereby affirms the decisions of the Zoning Administrator in the
issuance of a building permit for an accessory structure at 6921 NW Beaver Drive subject to the following
findings:
1.
2.
3.
4.
5.
6.
7.
8.
Arthur and Susan Coons are the owners of property at 6921 NW Beaver Drive, legally described as Lot 1,
Coons Heights.
Art Coons received a building permit for a 1,376 square foot accessory structure on the property located at
6921 NW Beaver Drive on June 24, 2014.
William E. Hanigan and Michele L. Warnock of the Davis Brown Law firm representing aggrieved parties,
Arthur and Mary Slusark, 7010 Forest Drive; Matthew and Mary Bednar, 7011 Forest Drive; Gregory and
Christina Ceraso, 7030 Forest Drive; Mary Ellen Anderson, 7040 Forest Drive; Michael and Janice Gentile,
7070 Forest Drive filed an appeal of the Zoning Administrator’s decision on July 3, 2014 alleging the noted
building permit was not in conformance with the following provisions of the Zoning Ordinance: Building
Materials (Chapter 166.23(3)), Setbacks (no Chapter cited), Drainage (no Chapter cited), Height (Chapter
The Board finds that the permitted accessory structure’s building architecture consisting of metal siding, is
in conformance with Chapter 166.23(3) provided the siding is painted a residential color and not unfinished
corrugated metal.
The Board finds that the permitted accessory structure meets the setback requirements for accessory
structures as specified in Chapter 166.23(4) as the proposed side and rear setbacks of 12 feet exceed the
minimum 10 feet requirement.
The Board finds that the permitted accessory structure is not in violation of any Zoning Ordinance provision
related to drainage or stromwater management as there are no Zoning Ordinance provisions related to
drainage or stormwater management for an accessory structure.
The Board finds that the permitted accessory structure at 14 ½ feet tall meets the building height
requirements for accessory structures as specified in Chapter 166.23(4) which allows a building height of 15
feet, provided such building height would be verified during the building inspection process.
Based upon the findings noted above, the Board hereby affirms the Zoning Administrator’s decisions in
issuance of a permit for an accessory structure at 6921 NW Beaver Drive and removes the Zoning
Administrator’s temporary revocation of Permit #2014000323.
Page 13 of 16
September 3, 2014
ATTEST:
Justin Hupfer
Chairman
David Wilwerding
Page 14 of 16
(
IN THE MANNER OF
BOA Case # 14-07; 6921 NW
Beaver Drive
City of Johnston
)
(
6221 Merle Hay Road
DATE OF ACTION: September 3, 2014
CITY REPRESENTED BY: Patrick Smith, Bradshaw Law Firm,
David Wilwerding, Aaron Wolfe, Steven Witmer, City of Johnston
Now on the date cited, the Board of Adjustment convened in open public session at 6:30 P.M. The appellant, board
and city were represented as noted. Under the provisions of Chapter 2.52 and of Title 165-173 of the Johnston
Municipal Code and of Chapter 414 of the Code of Iowa, the Board reaches the following conclusions:
MOTION BY:
___
SECONDED:
___
MOTION:
The Board of Adjustment hereby repeals the decisions of the Zoning Administrator in the
issuance of a building permit for an accessory structure at 6921 NW Beaver Drive subject to the following
findings:
9.
10.
11.
12.
13.
14.
15.
16.
Arthur and Susan Coons are the owners of property at 6921 NW Beaver Drive, legally described as Lot 1,
Coons Heights.
Art Coons received a building permit for a 1,376 square foot accessory structure on the property located at
6921 NW Beaver Drive on June 24, 2014.
William E. Hanigan and Michele L. Warnock of the Davis Brown Law firm representing aggrieved parties,
Arthur and Mary Slusark, 7010 Forest Drive; Matthew and Mary Bednar, 7011 Forest Drive; Gregory and
Christina Ceraso, 7030 Forest Drive; Mary Ellen Anderson, 7040 Forest Drive; Michael and Janice Gentile,
7070 Forest Drive filed an appeal of the Zoning Administrator’s decision on July 3, 2014 alleging the noted
building permit was not in conformance with the following provisions of the Zoning Ordinance: Building
Materials (Chapter 166.23(3)), Setbacks (no Chapter cited), Drainage (no Chapter cited), Height (Chapter
The Board finds that the permitted accessory structure’s building architecture consisting of metal siding, is
not in conformance with Chapter 166.23(3) based upon
The Board finds that the permitted accessory structure does not meets the setback requirements for
accessory structures as specified in Chapter 166.23(4) based upon
The Board finds that the permitted accessory structure is in violation of Chapter _________ of the Zoning
Ordinance related to drainage or stromwater management.
The Board finds that the permitted accessory structure does not meets the building height requirements for
accessory structures as specified in Chapter 166.23(4), based upon
Based upon the findings noted above, the Board hereby repeals the Zoning Administrator’s decisions in
issuance of a permit for an accessory structure at 6921 NW Beaver Drive. Nothing in this findings would
prohibit the property owner for seeking issuance of another building permit for an accessory structure
provided such is in conformance with all City Ordinances and these findings.
Page 15 of 16
September 3, 2014
ATTEST:
Justin Hupfer
Chairman
David Wilwerding
Page 16 of 16
SR Exhibit A
SR Exhibit B
SR Exhibit C
David Wilwerding
David Wilwerding
Monday, July 21, 2014 1:29 PM
'Warnock, Michele L.'; Patrick D. Smith
Hanigan, Bill E.
RE: {Bednar, Matthew and Mary, et al v City of Johnston, et al}
Coon Building Permit.pdf; Coon Letter 7-16-14.pdf
From:
Sent:
To:
Cc:
Subject:
Attachments:
Ms. Warnock, I was under the understanding that your clients had been provided a full copy of the building permit information. However, in reviewing the information you provided on Friday, I noted that the site plan is not reflective of the site plan that was submitted with the building permit. Thus I wanted to make sure you have all of the information. Attached is the full building permit and attachments. We are proceeding toward a Board of Adjustment hearing on August 21st at 6:30 p.m. if that date/time changes I will let you know. Mr. Coons has been notified that his permit has been temporarily rescinded pending the hearing before the Board. Please let me know if you have any questions. David R. Wilwerding, AICP Community Development Director City of Johnston 6221 Merle Hay Road ‐ P.O. Box 410 Johnston, IA 50131 515‐727‐7775 Office 515‐201‐3280 Cell [email protected] www.facebook.com/cityofjohnstoniowa @cityofjohnston on Twitter www.cityofjohnston.com From: Warnock, Michele L. [mailto:[email protected]]
Sent: Wednesday, July 16, 2014 3:57 PM
To: David Wilwerding; Patrick D. Smith
Cc: Hanigan, Bill E.
Subject: RE: {Bednar, Matthew and Mary, et al v City of Johnston, et al}
Thank you. I will wait to hear from you regarding any additional information located in your review of files/emails. Michele L. Warnock | Attorney | Telephone: 515-288-2500 | www.DavisBrownLaw.com
The Davis Brown Tower | 215 10th St., Suite 1300 | Des Moines, IA 50309 | Fax: 515-471-7854
1
From: David Wilwerding [mailto:[email protected]]
To: Warnock, Michele L.; Patrick D. Smith
Cc: Hanigan, Bill E.
Ms. Warnock, I’m not personally aware of any emails or additional correspondence, but we are reviewing files/emails and will provide you with copies of any additional correspondence/files. Thank you, David R. Wilwerding, AICP Community Development Director City of Johnston 6221 Merle Hay Road ‐ P.O. Box 410 Johnston, IA 50131 515‐727‐7775 Office 515‐201‐3280 Cell [email protected] www.facebook.com/cityofjohnstoniowa @cityofjohnston on Twitter www.cityofjohnston.com From: Warnock, Michele L. [mailto:[email protected]]
To: Patrick D. Smith
Cc: David Wilwerding; Hanigan, Bill E.
I have another question – I can send a FOIA request, if necessary, but we would like to know if there is more to Coons’ applications for the permits/curb cuts. For example, I assume he submitted in writing to Mr. Sanders in order for Mr. Sanders to grant the exception? See 140.08. Are there more documents? Including correspondence/emails exchanged with Coons regarding this project/request? Please advise if you are willing to provide this documentation or confirm that no such documents exist. I’m happy to make a FOIA request, if that is necessary. Michele L. Warnock | Attorney | Telephone: 515-288-2500 | www.DavisBrownLaw.com
From: Warnock, Michele L.
Sent: Wednesday, July 16, 2014 11:28 AM
To: 'Patrick D. Smith'
Cc: David Wilwerding ([email protected]); Hanigan, Bill E.
2
Mr. Wilwerding and/or Pat – I have a couple of questions: 1. Do you need us to tender another $50 filing fee for the amended appeal to the zoning administrator? My inclination is “no”, but please confirm. 2. Are you agreeing to have the right of way/curb cut reviewed by the Board of Adjustment, as well? The City Code states it is reviewable by the Board of Appeals (who convenes for this purpose, apparently). We are within 30 days of the grant of the right of way/work permit. We can file with the Board of Appeals, as well to preserve that claim. If we need to file with the Board of Appeals, is there a form that the City provides? If so, please send it to me. Sincerely, Michele L. Warnock | Attorney | Telephone: 515-288-2500 | www.DavisBrownLaw.com
From: Patrick D. Smith [mailto:[email protected]]
Sent: Wednesday, July 16, 2014 10:44 AM
To: Warnock, Michele L.
Cc: David Wilwerding ([email protected])
Subject: {Bednar, Matthew and Mary, et al v City of Johnston, et al}
Michele, I am informed that this Friday (July 18) is the deadline for sending out notices relating to the August 21 Board of Adjustment meeting. So that we can avoid any further arguments about the propriety of the appeal, your clients should submit additional information with the grounds for the appeal and any evidence in support thereof by Friday. Please submit them directly to the zoning administrator, David Wilwerding, who is copied on this e‐mail. Feel free to communicate directly with Mr. Wilwerding for the purpose of exchanging information. However, contrary to what I told you this morning, please keep me in the loop on all communications concerning the appeal. Thank you. Patrick D. Smith
Attorney at Law Bradshaw, Fowler, Proctor & Fairgrave, P.C. 801 Grand Avenue, Suite 3700 Des Moines, IA 50309‐8004 Phone: (515) 246‐5891 Fax: (515) 246‐5808 E‐Mail: [email protected] Web: www.bradshawlaw.com
Notice: This e‐mail (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510‐2521, is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to the sender that you have received this communication in error, then delete it from your computer system. The Davis Brown Law Firm is committed to providing Exceptional Client Service. For a review of the
supporting principles, go to www.davisbrownlaw.com/exceptional.
3
This email message is for the sole use of the intended recipient(s) and may contain confidential and
privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the
intended recipient, please contact the sender by reply E-mail and destroy all copies of the original message.
To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that, unless we
expressly state otherwise in this communication (including any attachments), any tax advice contained in this
communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding
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HEALTHCARE PRIVACY STATEMENT: This message may contain protected health information that is
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otherwise permitted by law. Unauthorized disclosure may be subject to federal and state penalties.
4
SR Exhibit D
August 8, 2014
CITY OF JOHNSTON, IOWA NOTICE OF PUBLIC HEARING
The Johnston Board of Adjustment will hold a Public Hearing at 6:30 P.M. on
Thursday, August 21, 2014, in the Council Chambers of Johnston City Hall,
6221 Merle Hay Road to consider the following items:
BOA DOCKET NO. 14-07; 6921 NW Beaver Drive Appeal of a Decision of
the Zoning Administrator
Art Coons, 6921 NW Beaver Drive applied for and received a building permit for
a 1,376 square foot accessory building. An appeal of a decision of the Zoning
Administrator was filed by William E. Hanigan and Michele Warnock on behalf
of aggrieved parties Matthew and Mary Bednar, Arthur and Mary Slusark,
Michael and Janice Gentile, Mary Ellen Anderson and Larry Anderson
contending the issuance of the building permit was not in conformance with the
following provisions of the Zoning Ordinance: Building Materials (Chapter
166.23(3)), Setbacks (no Chapter cited), Drainage (no Chapter cited), Height
(Chapter 166.23(4)), Process (no Chapter cited). Chapter 166.16(3) of the
Zoning Ordinance allows persons aggrieved by a decision of the Zoning
Administrator to appeal such decision to the Board of Adjustment for a Public
Hearing.
Persons seeking more information or wishing to comment on this request may
review the application at City Hall during workdays from 8:00 a.m. to 5:00 p.m.,
or contact David Wilwerding, Community Development Director at 727-7775 or
by email at [email protected].
SR Exhibit E
First
NANCY
DANIEL
GREGORY
MARK
KRISTINE
CATHLEEN
THOMAS
RUSSEL
BRUCE
KRISTINE
RICHARD
BILLY
JACK
BENSON
WHITEY
BRAD
BRUCE
ARTHUR
MATTHEW
MARY ELLEN
LISA
Last
KNAPP (TRUSTEE)
HANNAN
CERASO (TRUSTEE)
YOCUM
FLYNN
MENG
EVANS
GERKE
ILER
FLYNN
GRADOVILLE
BROWN
DAVIS
ASHMEAD
STANGE
MOCK
ILER
SLUSARK
BEDNAR
ANDERSON
SOLDAT
BOA 14-07 Mailing List
Address
5221 NW 70th PL
7041 FOREST DR
7030 FOREST DR
7021 FOREST DR
5251 NW 70th PL
7031 FOREST DR
7005 NW BEAVER DR
6915 NW BEAVER DR
6960 NW BEAVER DR
5251 NW 70th PL
5220 NW 70th PL
6910 NW BEAVER DR
6917 NW BEAVER DR
6885 NW BEAVER DR
7020 FOREST DR
6980 NW BEAVER DR
6970 NW BEAVER DR
7010 FOREST DR
7011 FOREST DR
7000 FOREST DR
6940 NW BEAVER DR
City, State, Zip
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
JOHNSTON, IA 50131
Fo
re
st
Dr
ive
BOA 14-07 Vicinity Map
SR Exhibit F
W
N
er
av
Be
e
riv
D
-
Legend
Subject Property
Parcels
0
25
50
100
150
200
Feet
SR Exhibit G
David Wilwerding
From:
Sent:
To:
Cc:
Subject:
Paula S. Dierenfeld [[email protected]]
Wednesday, August 20, 2014 11:25 AM
David Shaw
[email protected]; David Wilwerding; Jim Sanders
RE: Huge Construction Issue in My Neighborhood
David Thank you for sharing your concerns with me regarding the matter involving the Coons' property that is presently before
the Board of Adjustment (BOA). I have forwarded your email to Dave Wilwerding, our Community Development Director
and he will share it with the BOA members, as appropriate. I have the BOA meeting on my calendar and am planning to
attend.
Thanks,
Paula
From: David Shaw [[email protected]]
Sent: Tuesday, August 19, 2014 6:34 PM
To: Paula S. Dierenfeld
Cc: [email protected]
Subject: Huge Construction Issue in My Neighborhood
Dear Mayor,
I don't have the email addresses for the Board of Adjustment members. I hope you will read and consider this
as well as pass it on to the board members. I am out of town and there is a public hearing on this matter set for
Thursday.
I live off Beaver Drive at 7101 Forest Drive in Johnston. Art Coons, the owner at 6921 NW Beaver Drive has
applied and received approval to construct at 1,400 square foot and nearly 20 foot high "pole-barn" type
building on his property. This structure would be made of corrugated steel! I can't believe such a structure
could get approved in my community!
The city granted the Coons a building permit - including a curb cut at the top of Forest Drive for a second
driveway without letting anyone in my neighborhood know. This got approved even though city code does not
allow a second curb cut for residential property.
None of this makes sense and violates existing code in many ways. Accessory buildings must be constructed of
common residential exterior materials, excluding corrugated metal or other similar materials not common to the
area or not generally used in residential dwellings.
We live in a beautiful tree lined community. This would be the first thing residents see when entering our
community. It is totally out of character with our community and will no doubt effect property values.
I'm sure you would be upset to see such a structure built in your community. Please work with us to stop this
building from being constructed!
Respectfully,
David Shaw
1
7101 Forest Drive
Johnston, IA 50131
515-314-8029
2
DENNIS R. LOLL, SRA
Real Property Appraiser & Consultant
August 19, 2014
Matthew & Mary Bednar
7011 Forest Dr.
Johnston, IA 50131-1284
Pursuant to your request, I have on August 12, 2014, made personal observations of the site
and surrounding neighborhood of the single unit property located at 7011 Forest Drive,
Johnston, Iowa. The purpose of these observations was to form an opinion of the affect that a
metal sided and roofed outbuilding/garage will have on the property located at 7011 Forest
Drive. I will also use the data collected and summarized in this report to base an opinion on the
effect on "The Forest" development in general. Following is a summary of my findings and
conclusions.
This valuation assignment is an appraisal and will be completed to meet USPAP, the Uniform
Standards of Professional Appraisal Practice. The report will be in an Appraisal Report Format.
The report is expected to be used by the client of this report in assisting with decisions regarding
the subject property and possible support for future legal proceedings.
Market Value is defined as: The most probable price, as of a specified date, in cash, or in terms
equivalent to cash, or in other precisely revealed terms, for which the specified property rights
should sell after reasonable exposure in a competitive market under all conditions requisite to
fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest,
and assuming that neither is under undue duress. The Appraisal of Real Estate, Thirteenth
Edition, 2008, Page 23.
The subject is not currently listed for sale and does not have any agreements of sale pending at
the time of this report. The subject was purchased by the current occupant on 4/18/1990, for
$250,000, according to the courthouse records.
No personal property is included or given value in this valuation.
I have not appraised or performed any services regarding the subject property during the past 3
years.
Date of Value: August 12, 2014
Date of Report: August 19, 2014
Description of the Appraisal Problem
The property that is the subject of this assignment is a typical single family residence for the
neighborhood. The subject is located in Johnston, Iowa, a suburb of Des Moines and located on
the northwest corner of the metro area. The subject is located in a somewhat secluded area, in
a subdivision called "The Forest". Most properties in the area are heavily wooded and have
Des Moines Real Estate Services
919 Redwood Drive, Norwalk, IA 50211
views of single family residential properties that are similar in quality and condition to the
subject. There is a proposed construction on the property adjoining the subject property to the
south. This report is based on the assumption that the outbuilding/garage will be metal sided
and roofed with side walls being approximately eleven and a half feet in height.
I will first form an opinion regarding if there is a detriment or effect on the subject property for the
proximity of this outbuilding. If an effect is found, measure what the affect is on the subject
property.
Lastly, form an opinion of affect on the subdivision and property across the street from the
outbuilding/garage.
Scope of Work
In preparing this appraisal, I have researched subject's neighborhood and market area for
residential properties that have a similar proximity to similar structures. In attempting to form an
opinion of the affect on value and market appeal, I have examined sale prices, listing prices,
marketing times, and sale to list price ratios.
Description of Neighborhood
The immediate area around the subject is made up of a mixture of residential properties along
Beaver Road. These range from older homes that were built in the 1960's and 1970's to newer
homes that were built during the past 20 years. Several residential developments were
constructed around 1990, including the subject development. These developments were
located with access off of Beaver Road. The developments were built in wooded areas and are
mostly on lots that are from 1/2 to 1 acre in size. Most of the homes are similar in quality to the
subject and are considered to be good to very good in quality of construction.
Other competing areas around the metro are felt to include subdivisions in Ankeny, Urbandale,
West Des Moines, and Clive. Similar subdivisions are considered to be those with homes that
are good to very good quality construction and have larger lots. The subject would compete with
developments with mature landscaping and trees.
Details Regarding the Subject Property and Proposed Outbuilding/Garage
The subject dwelling consists of a 2 story single unit dwelling with 3,000 sf of total gross living
area according to the Polk County Assessor Records. The subject has an assessed value of
$320,900 for 2013. The subject improvements were constructed in 1989. The improvements
are considered to be good to very good quality construction and in typical condition for the area.
The proposed outbuilding/garage on the adjoining property is a metal sided and roofed pole
building. The building is expected to be 32'x43' for a total area of 1,376 sf, with 11.5' sidewalls.
This type of construction is not consistent with the subject's development and immediate area.
This would be considered to be a fair (below average) quality improvement. According to the
notes and paperwork given the appraiser and used for this appraisal, the proposed
outbuilding/garage would be built 12' from both the east and north property lines. According to
the Final Plat of Coons Heights that was given to the appraiser, the north lot line has a 35'
setback.
Because the outbuilding is being constructed within this setback area, the building is
encroaching on the subject property.
Based on my observations, it appears that the view of the subject would be significantly
hampered if the building was constructed "as described". The view from the main floor south
windows would look onto the building, the upper level south windows would look into the side
and over the roof of the building, and it appears that much of the view from the rear yard and
deck would be altered when facing southwest.
Market Data and Valuation
Market data on similar properties is very limited which shows the uniqueness of this type of
situation. It is much more common for smaller and lower quality homes to have an adverse
view, but for this quality and size home, an adverse view is much more unique.
Two other trends noted while researching the market for this valuation problem.
1. Properties that have a detrimental view, have a higher percentage of REO and
foreclosure sales than those properties without a detrimental view.
2. Properties with a detrimental view have longer marketing times and generally a lower
sale to list price ratio.
The most similar property to the subject, that has sold, is located at 4507 160th Street,
Urbandale. This property is similar to the subject in that it is good quality construction and is
located in a residential development. This property backs to a property that had a couple of
outbuilding/garages that have metal roofing and a similar appearance as the proposed building.
These outbuildings/garages are located further from this property than the subject and the
proposed building, but is still felt to be similar in view. This property sold on 3/16/2009, for
$310,000, and contained a total of 1,802 sf and 1,562 sf of basement finish according to the
Dallas County Courthouse Records. During the same time period, two other similar properties
were selling, both of which had a similar residential view. The first property was located at 4521
NW 164th St, Clive, and is a similar ranch style dwelling, and sold on 10/22/2009, for $322,112.
This property has a total living area of 1,714 sf and 1,180 sf of finished basement area. A
second property in the immediate development sold in July of 2009, and was located at 15606
Aurora Ave. This property had total gross living area of 1,941 sf and 1,300 sf of finished
basement area. The Aurora property was superior in quality of construction and had extra
features and higher quality finish overall.
To extract the market effect of the outbuilding view of 4507 160th St, a paired sales analysis is
completed. The paired sales analysis table has been completed and is given on the following
page to support the market affect of the outbuilding/garage view.
Paired Sales Analysis
Subject
4507 160th St
Address
Comp 1
4521 NW 164th St
Comp 2
15606 Aurora Ave
Adj.
Sale Price
Sale Date
Sale:Original List %
Days on Market
Gross Living Area
Quality
Basement Finish
$310,000
Mar-09
91.20%
321
1,802
Gd/VeryGd
1,562
$322,112
Oct-09
100.00%
0
1714
Gd/VeryGd
1,180
$4,400
$5,730
Adj.
$375,500
Jul-09
93.88%
132
1941
Very Good
1,300
-$6,950
-$25,000
$3,930
Net Adjustment
Adjusted Price
$10,130
$332,242
-$28,020
$347,480
Extracted Detriment
$22,242
$37,480
7.17%
12.09%
% of Detriment
The above table shows that Comp 1, if containing all of the physical characteristics of the
subject (4507 160th St), but without the outbuilding/garage view would have sold for $332,242.
This adjusted price has a difference in sale price of $22,242 which is 7.17% higher than the
actual sale price of 4507 160th St. Comp 2 shows an adjusted price of $347,480, a difference of
$37,480, 12.09% higher than the actual sale price.
Reconciliation of Detriment
Based on the market data researched and included in this report, I have come to the conclusion
that if the outbuilding/garage were built to the south of subject property as described above and
as shown in maps and drawings given to the appraiser, a detriment and reduction in the market
value of the subject property would result. The outbuilding/garage is an encroachment
(Encumbrance) on the subject property due to being built within the setback area, and due to
this close proximity, as well as the lower quality of construction (not consistent with surrounding
improvements), a detriment does exist.
To measure the amount of the detriment, I have found a property that has a somewhat similar
view. This is a good quality home that has a view of a metal roofed and lower quality
outbuilding/garage. This comparable property does not have the outbuilding/garage as close to
the property as the subject, but is similar with a direct view to the rear. A paired sales analysis
was completed and included in this report and indicates a detriment to the subject of between
7.17% and 12.09%. Based on the proximity of the proposed outbuilding/garage and the
encroachment of the outbuilding into the setback area, my opinion is that the detriment will be
toward the top end of the range, between the 10-12% range. The subject would also have
longer marketing times.
The detriment to the remaining properties in the development would be much less. However,
properties that have an entrance with a less than desirable view do see a decline in market
appeal. The overall detriment would be less than what would be expected by the subject of this
report. Most of the detriment would be seen in an increase in marketing time, but a market
value detriment of between 0-2% could be seen. The top of the range being for properties that
have a direct view of the outbuilding such as the property located at 7000 Forest Dr.
This has been an interesting appraisal assignment, and if you should have any questions
concerning the derivation of the opinion of market value, please feel free to contact this office at
your convenience.
Respectfully,
Dennis R. Loll, SRA
Iowa Certified General Real Property Appraiser
Assumptions and Limiting Conditions
Market Value is defined as: The most probable price, as of a specified date, in cash, or in terms
equivalent to cash, or in other precisely revealed terms, for which the specified property rights
should sell after reasonable exposure in a competitive market under all conditions requisite to
fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest,
and assuming that neither is under undue duress. The Appraisal of Real Estate, Thirteenth
Edition, 2008, Page 23.
That the date of value to which the opinions expressed in this report applies is set forth in this
report. The appraiser assumes no responsibility for economic or physical factors occurring at
some later date which may affect the opinions herein stated.
That no opinion is intended to be expressed for legal matters or that would require specialized
investigation or knowledge beyond that ordinarily employed by real estate appraisers.
This appraisal expresses the opinion of the signer and has in no way been contingent upon the
report of a predetermined or specified value, nor any finding to be reported.
That no opinion as to title is rendered. Data on ownership and the legal description were
obtained from sources generally considered reliable. Title is assumed to be marketable and free
and clear of all liens and encumbrances, easements, and restrictions except those specifically
discussed in the report. The property is appraised assuming it to be under responsible
ownership and competent management and available for its highest and best use.
That no engineering survey has been made by the appraiser. Except as specifically stated,
Data relative to size and area were taken from sources considered reliable, and no
encroachment of real property improvements is assumed to exist.
That no opinion is expressed as to the value of subsurface oil, gas, or mineral rights and that the
property is not subject to surface entry for the exploration or removal of such materials except as
is expressly stated.
That testimony or attendance in court or at any other hearing is not required by reason of
rendering this appraisal unless such arrangements are made a reasonable time in advance.
That, because no title report was made available to the appraiser, he/she assumes no
responsibility for such items of record not disclosed by his/her normal investigation.
That no detailed soil studies covering the subject property were available to the appraiser.
Therefore, premises as to soil qualities employed in this report are not conclusive but have been
considered consistent with information available to the appraiser.
Neither all nor any part of the contents of this report (especially any conclusions as to value, the
identity of the appraiser or the firm with which he is connected, or any reference to the Appraisal
Institute or to the M.A.I., R.M., S.R.A., or S.R.P.A. designation, shall be disseminated to the
public through advertising media, public relations media, news media, sales media, or any other
public means of communication without the prior written consent and approval does not apply to
Governmental Agencies who disclose appraisals and appraised values through their normal
business functions.
This contract for the appraisal of said premises is fulfilled by the signer hereto upon delivery of
this appraisal executed.
That the appraiser has personally inspected the subject property and finds no obvious evidence
of structural deficiencies except as stated in this report; however, no responsibility for hidden
defects or conformity to specific governmental requirements, such as fire, building and safety,
earthquake, or occupancy codes, can be assumed without provision of specific professional or
government inspections.
That, because no termite inspection report was available, the appraiser assumes no evidence of
termite damage or infestation unless so stated.
No personal property was given value in this appraisal.
That, unless stated otherwise, the appraiser did not observe and was not aware of the existence
of hazardous or toxic materials or wastes at subject property. The existence of such materials
may have an effect on the value of subject property. The client should retain an expert in these
fields, if desired.
Certification
The statements of fact contained in this report are true and correct.
The reported analyses, opinions, and conclusions are limited only by the reported assumptions
and limiting conditions and are my personal, impartial, and unbiased professional analyses,
opinions, and conclusions.
I have no present or contemplated future interest in the real estate that is the subject of this
appraisal report, and the compensation for making the appraisal is in no manner contingent
upon the value reported.
I have no personal interest or bias with respect to the subject matter of this appraisal report or
the parties involved.
I have NOT performed any services, as an appraiser or in any other capacity, regarding the
property that is the subject of this report within the three-year period immediately preceding
acceptance of this assignment.
My analysis, opinions, and conclusions were developed, and this report was prepared, in
conformity with the Uniform Standards of Professional Appraisal Practice, as well as the Code of
Professional Ethics and the Standards of Professional Practice of the Appraisal Institute.
I certify that the use of this report is subject to the requirements of the Appraisal Institute relating
to review by its duly authorized representatives.
The subject property has been inspected from the exterior by Dennis R. Loll, SRA. I viewed the
interior of the subject only in regards to the view to the south.
As of the date of this report, I have completed the requirements of the continuing education
program of the Appraisal Institute.
No one other than the undersigned appraiser prepared the analyses, conclusions and opinions
concerning real estate that are set forth in this appraisal report.
Date of Valuation:
Detriment Conclusion
August 12, 2014
10-12%
Dennis R. Loll, SRA
Iowa Certified General Real Property Appraiser
Dennis R. Loll, SRA
(515) 240-3439
[email protected]
SUMMARY OF QUALIFICATIONS
 Certified General Real Property Appraiser in Iowa.
 AQB Certified USPAP Instructor.
 Approved Instructor for the Appraisal Institute.
 Investigative Review Appraiser for the State of Iowa Appraisal Licensing Board.
 Expert witness in District Court.
 Past President of the Iowa Chapter of the Appraisal Institute.
Education






Advanced Concepts & Case Studies, 2013.
General Appraiser Report Writing and Case Studies, 2011.
Advanced Income Capitalization, 2011.
General Appraiser Market Analysis & Highest and Best Use, 2010.
Master of Science, Iowa State University, Ames, Iowa 1987.
Bachelor of Science, Iowa State University, Ames, Iowa 1983.
Experience



Owner and Real Property Appraiser
Loan Quality and Risk Consultant
Nationwide Advantage Mortgage
President and Real Property Appraiser
Iowa Residential Appraisal Company
2000-Present
2011-2013
1988-2000
LICENSURE
 Certified General Real Property Appraiser
State of Iowa, Current.
AFFILIATIONS

SRA, Member of the Appraisal Institute.
David Wilwerding
From:
Sent:
To:
Subject:
Thursday, August 21, 2014 5:26 PM
David Wilwerding; Jim Sanders
Fwd: Tonight's Board of Adjustment Meeting
Sent from my iPhone
Begin forwarded message:
From: <[email protected]>
Date: August 21, 2014, 3:14:51 PM CDT
To: <[email protected]>
Subject: Tonight's Board of Adjustment Meeting
Dear Paula:
This letter is being written to express my opposition to the approval of a permit to construct a pole barn at
6921 NW Beaver Drive (corner of Forest Drive and NW Beaver) by the City of Johnston. It is my
understanding that this building will be used to repair motor vehicles ranging from RV's, to old cars, and
motorcycles. As traffic has increased yearly on NW Beaver, the corner at Forest Drive has become a real
traffic hazard. The construction of this building and it's driveway access on Forest Drive just a few yards
from the intersection would significantly impact this already dangerous situation. A pole barn does not
belong in our neighborhood with its beautiful trees, children playing on lawns and driveways, friendly
neighbors, who chat and wave at each other. Please don't allow Forest Drive's energy to be disturbed by
allowing this commercial barn to be built. There are far more appropriate locations for Mr. Coons to work
on his automotive projects.
Mary K. Baker
5330 NW 71st Place
(515) 278-1608
1
David Wilwerding
Thursday, August 21, 2014 7:19 PM
David Wilwerding; Jim Sanders
Fwd: August 21 Johnston Board of Adjustment Meeting --Board Input
From:
Sent:
To:
Subject:
Sent from my iPad
Begin forwarded message:
From: Michael <[email protected]>
Date: August 21, 2014 at 2:52:26 PM CDT
To: <[email protected]>
Subject: August 21 Johnston Board of Adjustment Meeting --Board Input
The purpose of this letter is to express our strong opposition and dismay at your initial approval of a “pole barn” proposed for construction at 6921 NW Beaver Drive. This is a total insult to the good citizens in this neighborhood who pay their taxes and dutifully follow the rules and laws of our fair city. To even consider a structure, let alone a business of this type in this location in a residential neighborhood is ludicrous ! This is a peaceful and quiet neighborhood with many small children openly playing on the block. The corner of Forest Dr. and Beaver is inherently dangerous and was very poorly designed in the first place. To add a business to a corner like this makes absolutely no since whatsoever . Allowing a “business” in a non‐commercial residential neighborhood is insane. Why do we have zoning laws if they are not complied with? We, the residents of this neighborhood deserve a comprehensive review and timeline of just exactly what and when the events of this process transpired. I found out about this yesterday 20 August 2014. No prior notification, no hearings, no advertised forums for debate—certainly not an example of open and fair government by and for the people. Local government’s purpose is to provide for the health and safety of our citizens welfare. The process in this case is seriously flawed and needs to be corrected now. If this is any example of how the city does business on a regular basis the entire administration needs a good scrubbing!
Michael L Mc Cloud
5330 NW 71st Pl.
515.278.5720
1

6129 Four Pines Vicinity Map

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