No wall change after resignation by Rick DeClue · News · November 08, 2013
After the Zoning Board of Adjustments chairman resigned in protest after a vote on a retaining wall, the West Branch City Council on Monday decided to leave the retaining wall ordinance untouched.
The council also voted 4-to-1 to accept Board of Adjustment Chairman Jim Huber’s letter of resignation. Council member Dick Stoolman, who had expressed his thoughts on Huber’s integrity and long service to the city at the last meeting, voted “no.”
Jennie Embree was appointed to replace Huber on the Board, which will choose a new chairperson at its Nov. 7 meeting.
Huber submitted his resignation after a vote in September where the Board of Adjustment decided 3-2 to grant a variance for a retaining wall to remain at 203 Ridge View Drive, at the home of Cory and Angela Kessler. Huber heavily criticized the vote in his resignation letter, at one point calling it “illegal” after the city attorney said it met none of the requirements necessary under Iowa law for the Board of Adjustments to grant a variance.
Retaining walls in side yards will continue to be prohibited under West Branch zoning and building codes.
“If I can’t get a motion, I’ll kill this right here,” Mayor Mark Worrell said.
Worrell, who as mayor could not vote on the issue, had made his views clear in support of not changing the code.
He said that “for some unknown reason” the Board of Adjustments chose not to enforce the code in its September decision to grant a variance for a retaining wall located at 203 Ridge View Drive.
“This was a mistake,” he added. “We just need to move on.”
Council member Jim Oaks described the Board’s action as an exercise of discretion. He compared it to a police officer choosing not to write a ticket for someone driving 28 mph in a 25 mph zone.
“The ordinance is there, but the officer has the power to bend the rules,” said Oaks.
When he asked West Branch Police Chief Mike Horihan if that was accurate, Horihan hedged by saying he would have to evaluate the comparison.
He then smiled and added, “I would have to consult legal counsel.”
Oaks smiled back and apologized for putting Horihan on the spot.
Council member Mary Beth Stevenson said that the retaining wall was not the same as the exercise of discretion in whether or not to issue a speeding ticket because the retaining wall represented a permanent structure on the property.
“There is nothing wrong with the code,” council member Jordan Ellyson said. “The council should not be forced into changes just because the Board had broken the law (in making its decision).”
She later called it an “inappropriate decision” by the Board.
Member Colton Miller said that he does not consider a retaining wall a permanent structure.
He then responded to Ellyson’s comments by saying the Board’s job was to interpret the code. “You can’t object just because you disagree with their interpretation. That’s just saying we can’t have retaining walls anymore,” he said.
Miller concluded his comments by adding, “the process was just out of order.”
Worrell, Miller and Ellyson agreed that this situation arose largely because of timing. This particular retaining wall was built after site plan approval and permits had already been granted for construction of the home.
Worrell suggested that instead of changing the code, the council should direct city staff to review planning and zoning processes, issuing building permits and city inspection procedures to ensure that any desired retaining walls are discussed up-front. Variances would then be granted or not before the city was put in a similar situation.
After the lack of a motion on the changes to code, Mary Beth Stevenson asked that the issue be put on the next council agenda after staff review and recommendations.