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Home My WebLink AboutMemo - Read Before Packet - 7/21/2015 - Memorandum From Tom Leeson And Laurie Kadrich Re: 201 E. Elizabeth Street Staff Presentation - Agenda Item #20Fraternity Use Appeal, 201 E Elizabeth Street Tom Leeson Interim Community Development and Neighborhood Services Director Agenda Item #20: Revised Presentation Fraternity Use Appeal Recent Actions: • On May 14th, 2015 Zoning Board of Appeals (ZBA) approved the motion to uphold the decision of the Community Development and Neighborhood Services (CDNS) Director in approving the change of use, of the property located at 201 E Elizabeth Street, to a Fraternity. • Three separate appeals of the ZBA’s decision were filed. 2 Fraternity Use Appeal Appellant Parties: • McGrew Appeal: Aaron McGrew, Ashley McGrew, Joseph Piesman, Ray Frush, Lisa Moravan, and Mark Havens • Snyder Appeal: John Snyder • Laupa Appeal: Cindy Laupa and John Laupa (represented by Jamie Baker Roskie, Attorney at Law) 3 Fraternity Use Appeal Background: • April 15th, 2015 the CDNS Director issued a permit to change the use of the property located at 201 E Elizabeth Street to Fraternity, with the following conditions: • The building shall be limited to 18 occupants • No Fraternity meeting shall exceed 18 attendees • 8 off-street parking spaces are provided as shown on the site plan dated 03/26/2015 4 Fraternity Use Appeal Background: Approved 1978 Site Plan 5 Fraternity Use Appeal Background: Site Plan dated 03/26/2015 6 Fraternity Use Appeal Grounds for Appeal: • Collectively, the 3 appealing parties (McGrew, Snyder and Laupa) have filed 8 allegations. • 2 Allege: Failure to conduct a fair hearing in that the Board exceeded its authority or jurisdiction. • 3 Allege: Failure to conduct a fair hearing in that the Board considered evidence relevant to its findings that was substantially false or grossly misleading. • 3 Allege: Failure to properly interpret and apply relevant provision of the Land Use Code. 7 Fraternity Use Appeal Grounds for Appeal: Failure to conduct a fair hearing in that the Board exceeded its authority or jurisdiction. • Snyder Appeal alleges a fair hearing was not conducted in that the Board exceeded its authority or jurisdiction. • This appeal only checked the box on the application and did not provide an argument. • Therefore, no further information is provided from the record of hearing. 8 Fraternity Use Appeal Grounds for Appeal: Failure to conduct a fair hearing in that the Board exceeded its authority or jurisdiction. • Laupa Appeal alleges a fair hearing was not conducted in that the Board exceeded its authority or jurisdiction. This appeal contends that compliance with Section 3.8.25 of the Land Use Code was not the CDNS Director’s decision to make. 9 Fraternity Use Appeal Grounds for Appeal: Failure to conduct a fair hearing in that the Board considered evidence relevant to its findings that was substantially false or grossly misleading. • McGrew Appeal alleges a fair hearing was not conducted in that the Board considered evidence which was substantially false or grossly misleading. This is in regards to testimony given by Paul Milewski in reference to the neighbors welcoming or showing appreciation toward fraternity members. 10 Fraternity Use Appeal Grounds for Appeal: Failure to conduct a fair hearing in that the Board considered evidence relevant to its findings that was substantially false or grossly misleading. • Snyder and Laupa Appeals contend that the1978 Certificate of Occupancy for fraternity use is not valid. • In the verbatim minutes City Staff stated “I did review with Mike Gebo, the Chief Building Official, …what the current Certificate of Occupancy is, and he did say it is the fraternity occupancy.” 11 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • McGrew Appeal alleges the Land Use Code was improperly interpreted and applied, specifically section 2.2.10(A)(1)(a) through(g). This section of the Land Use Code is titled ‘Amendments’. • The approval to change the use was not reviewed through a Minor Amendment. Therefore, this allegation was not addressed in the record of hearing. 12 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • McGrew Appeal alleges sections of the East Side Neighborhood Plan (ESNP) was not properly interpreted and applied. • In the verbatim minutes City Staff stated “ There was mention of plans that were approved, Eastside/Westside Plans…when we do the application review, we look at the Land Use Code, not necessarily the Plans of neighborhoods.” • This allegation was not addressed further in the record of hearing. 13 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • Snyder Appeal alleges that 3.8.25 was not properly interpreted and applied, by not requiring a Project Development Plan outlined in Article 2 of the Land Use Code, and also by not requiring the property to be brought up to current building code. • No argument of this allegation was included in the appeal application. • Therefore, no information is provided from the record of hearing. 14 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • Laupa Appeal alleges that Section 3.8.25 of the Land Use Code pertaining to “abandonment” and Section 4.9(B)(3) pertaining to the permitted uses in the N-C-B zone district were improperly interpreted and applied. Continued Next Slide 15 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • In the verbatim minutes Deputy City Attorney Paul Eckman’s statement reads “The Land Use Code lists fraternities as a permitted use in this zone district. If it were a new fraternity, having never existed as a fraternity ever before, then I believe… that that would be a matter that would come before the Planning and Zoning Board for approval.” 16 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • Laupa Appeal alleges that Section 1.7.2 of the Land Use Code was improperly interpreted or applied. This section is titled ‘Conflict with Other Laws’ • Sec. 1.7.2: “…if the provisions of this Land Use Code are internally conflicting…the more specific standard, limitation or requirement shall govern or prevail to the extent of the conflict.” 17 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • Laupa Appeal alleges Definitions of Article 5.1.2 were improperly interpreted or applied (Extent Reasonably feasible): Alleges Director provided no explanation how this was applied. • “Extent reasonably feasible shall mean that, under the circumstances, reasonable efforts have been undertaken to comply with the regulation, that the costs of compliance clearly outweigh the potential benefits to the public…. Continued on next Slide 18 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • …or would unreasonable burden the proposed project, and reasonable steps have been undertaken to minimize any potential harm or adverse impacts resulting from noncompliance with regulation.” 19 Fraternity Use Appeal Grounds for Appeal: Failure to properly interpret and apply relevant provision of the Land Use Code. • Snyder Appeal alleges that the property should be brought up to current Building Code regulations. • Detailed discussion of compliance with the Building Code are not addressed in the record of hearing. 20