B of A chair resigns in protest by Rick DeClue · News · November 01, 2013
The chairman of the Board of Adjustments resigned in protest last week over what he called an “illegal” vote regarding a retaining wall, and the City Council narrowly rejected an idea to take the Board of Adjustment to court over the issue.
And in a third split vote, the city council refused to accept the resignation of the board chairman, Jim Huber, who took strong exception to the Board of Adjustment’s vote.
“It is my view that the Board’s decision on this matter was illegal and extremely detrimental to the enforcement of zoning regulations in the city,” he wrote.
Upon review of the board’s action, city attorney Kevin Olson and the city staff prepared initial paperwork to take the Board to district court to overturn the approval. This is a fairly rare step, Olson said.
The council, however, declined to sue its own board. The vote failed 3-to-2, with council members Jim Oaks, Colton Miller and Dick Stoolman voting no, and members Jordan Ellyson and Mary Beth Stevenson voting yes.
The issue in question was a variance granted by the board on Sept. 30 for a retaining wall built in a side yard. The property, 203 Ridge View Drive, in the new Meadows subdivision, is owned by Cory and Angela Kessler.
The retaining wall was constructed to level the Kessler’s yard. The four-foot wall was built within 16 inches of neighboring property. After the city cited the wall in violation of the city’s building ordinance covering permitted obstructions in side yards, the Kesslers appealed to the board for a variance.
Huber, predicting a divided Board of Adjustments, asked the city attorney to attend the meeting.
Olson told the council that, in his opinion, the request met none of the requirements necessary under Iowa law for the Board of Adjustments to grant a variance.
He said he made this clear to the board before they voted.
However, the board approved the variance by a 3-to-2 vote, with member Craig Walker joining Huber in opposition, while members Craig Cochran, Wayne Frauenholtz and Wilburn Bass voted to approve.
According to Frauenholtz, the board considered the overall terrain of the Meadows subdivision and believed many homeowners would need what he considered a “terrace.”
He added the board had approached the council in September to ask for direction on this particular retaining wall issue.
During the council discussion on Oct. 21, Mayor Mark Worrell remembered this prior request and reminded the council they had sent the decision back to the board, indicating that it seemed to be clear in the code.
Worrell and Miller said the problem was not the Kesslers’ wall, but the board vote.
“Not enforcing this makes our codes look like they are worth nothing,” Worrell said.
The council then had an extensive discussion about precedents, neighbors and other problem retaining walls in the city known to members.
Miller said he thought the city should look at the code for retaining walls and side yards to consider changing the ordinance.
Olson had asked the city council not to change the code after moving forward with enforcement in this case. After the council voted down going to court, however, Olson acknowledged that the council probably needs to change the code.
Council members Ellyson, Stoolman and Stevenson expressed their concern to the council and to Huber directly about his resignation. They noted his many years of service to the city, and the impact this episode might have on the city’s ability to continue to attract the many volunteers needed for its various boards and commissions.
Council members Oaks, Ellyson and Stoolman voted not to accept the resignation, a decision Worrell also supported. Members Stevenson and Miller voted to accept.
Subsequent to the Oct. 21 meeting, Huber made it clear that he would not continue as a member of the Board.
City administrator Matt Muckler said Huber’s resignation letter will be brought up again at the Nov. 4 council meeting.
The posted agenda for a Nov. 7 Board of Adjustments meeting includes an item to choose a new chairman, as well as a request for a variance for a retaining wall in a side yard at 200 Ridge View Drive.
Cory Kessler is a son of the late Mayor Don Kessler and is currently a candidate for the upcoming city council election on Nov. 5.
There are five people running for two four-year seats, and three of Kessler’s opponents are current members of the council: Oaks, Stevenson and Stoolman.
At the time this story went to print, the Kesslers had not responded to a request for comments.