27
Aug
2002
There are several components to Davenport's zoning function: the city's Plan & Zoning Department (PZD); the Plan & Zoning Commission (PZC), which is a recommending body made up of citizens; and the Zoning Board of Adjustments (ZBA), which is a quasi-judicial body of citizens with the authority to decide certain zoning issues.
Currently there is just such an issue before the ZBA that bears discussion because it is a perfect example of stretching the limits of the law. Attorney Steve Schalk is appealing an administrative decision by the PZD that affirms the city's 30-year zoning criteria for C2. The city is maintaining that C2 does not include outside storage of heavy equipment. Schalk is representing Altorfer Company, a Caterpillar rental agency that wants to put a retail outlet on property located in the North Brady corridor where H&W Trucking has been since its annexation into Davenport's city limits. H&W was grandfathered as a legal non-conforming use, and by the city's zoning criteria is considered to be a C4 use. However, the zoning for that particular property remains R1 and would require new zoning for Altorfer to operate. A significant portion of Altorfer's business includes the lease or sale of heavy industrial equipment. This type of industrial use for a property is considered to be M1, according to the city's current zoning laws. The PZC recently approved C2 for the H&W property, with the condition that no outside storage is allowed. It will now go before the city council for approval. It will be introduced at this Thursday's Community Development committee meeting,
Meanwhile, Schalk has appealed to the ZBA for a ruling to include outside storage as part of C2 zoning overall. The objectionable part of this strategy is that such a ruling by the ZBA will not only impact the H&W property, but all C2 property throughout the city. In other words, as protesting neighbors' attorney Mike Meloy so succinctly stated, "The entire city of Davenport could be compromised to accommodate one property owner."
After witnessing the proceedings at the ZBA meeting last Wednesday, it is apparent that such a travesty might just occur with the cooperation of at least three of the ZBA's five members, namely chairperson Ken Hopper and commissioners Bill Holgersen and Wayne Hammes. In the case of Hopper and Holgersen, their minds appeared to be made up before they even heard the evidence that strongly refutes Schalk's appeal.
A substantial 49 percent of the neighboring property owners have protested Altorfer's proposed use, claiming that outside storage of heavy equipment is an industrial use, which is contrary to the commercial corridor that has re-developed into low-impact retail use, such as a copy center, Walnut Shopping Center, a day-care across the street, and several restaurants, with A.G. Edwards brokerage firm and Rhomberg Furriers directly adjacent to the proposed site. Obviously a heavy-equipment-rental operation, with a retail shop for smaller equipment rentals, is no longer a desirable use for Brady Street.
During the ZBA meeting, PZD's Ken Osterich made a compelling case against the appeal, reiterating the staff recommendation that should the appeal be granted, outside storage of heavy industrial equipment would be allowed in C2 areas throughout the city, including downtown Davenport. Schalk's response to this was that, once the appeal was granted, the city could re-write the zoning ordinance to disallow such use, after his client was grandfathered in. In other words, waive the rules for this particular client, and then re-establish the zoning that is already in place. Meanwhile, Schalk suggested that the council could stop other petitions that come forward to implement outside storage under the newly defined use. Can it get more absurd than this?
Another problem is that at least one ZBA commissioner, Bill Holgersen, has what most would consider to be a conflict of interest in this matter but refuses to recuse himself from voting. Holgersen spoke in favor of the proposed use at a PZC meeting on July 2, and witnesses claim he has lobbied other commissioners, as well as protesting neighboring property owners, in an effort to persuade them to drop their protests. This is considered ex parte communication and should be sanctioned. At a minimum, Holgersen should abstain in this matter.
Add this to PZC chairperson Donna Buschek's highly questionable conduct at last Tuesday's meeting, when she denied a commissioner's motion to table the matter of rezoning the H&W property. Buschek needs to revisit the concept of team spirit, as well as procedural rules. There was a legitimate motion on the table, with a second, and she refused to acknowledge it. This should also be sanctioned. Commissioners state that Buschek instructed her committee that it was not to consider "the use" of the property, only the zoning of such. This is also absurd, of course, because the intended use of property is germane to any zoning recommendation. Buschek needs to account for this conduct, and the public deserves to know if she has some personal interest or agenda that would cause her to behave in such a manner.
In spite of Buschek's tactics, the PZC admirably approved C2 zoning with a strict covenant that no outside storage be allowed. This action helped to further protect the entire corridor from an industrial use that would likely decrease property values all around it, and keep development of the corridor akin to that which has attracted millions in investment dollars in recent years.
The following evening, the chair of the ZBA, Ken Hopper, asked if his board could grant Schalk's appeal for just the H&W property instead of impacting the entire city. Obviously he was not entirely tracking the enormity of what was before the board, and was more interested in granting Schalk's appeal for Altorfer's sake alone. Holgersen, who asked dozens of questions of the petitioner who appeared prior to Schalk and his party, didn't utter a single one during this particular proceeding. It smacked of a stacked deck. Meloy said that Schalk claimed that he had three votes before entering the room that day. How can that be if the ZBA commissioners had not heard all sides of the issue?
While it could be argued that several of the ZBA commissioners should be removed from the ZBA, one member, Mark Forester, should be commended as the board's voice of reason. He was able to draw out the fact that far more than just small equipment would be present on the property. Schalk made the comment that most of the equipment present on the property could be hauled in the back of a pickup truck. He neglected, even avoided, the fact that other equipment to be present on the property included excavators, backhoe loaders, track-type tractors, skid steer loaders, cranes with 100-foot booms, etc. Schalk showed pictures of the inside of the retail store with neatly stacked shelves of consumer products as evidence of its proposed use, while the protestors showed photos of the company's outside yards that included the above mentioned equipment, including barbed-wire fencing to contain it.
All parties repeatedly qualified their positions with hearty approval of Altorfer as a desirable company that was both wanted and welcome in Davenport. The protesting neighbors, as well as PZD's Ken Osterich, were adamant on this point. Protestors suggested looking into other areas of the city where the industrial use would be more appropriate without compromising the current zoning ordinances and commercial development. It is rumored that the attraction for Altorfer to the H&W property is that it comes with hydraulics already installed on the property. Altorfer also rebuilds diesel engines, and this would be an enormous cost savings, and no one can fault them for trying. However, this type of use is no longer appropriate for this re-developed corridor, regardless of the pre-existing conditions. H&W was grandfathered when its property was annexed by the city. Today, if it were a new business locating in Davenport, it would have to look elsewhere for its operation.
Finally, the public needs to express its disapproval for any commissioners that would compromise an entire city for the benefit of one property owner. Attorneys are charged with vigorously representing their clients as part of their fiduciary responsibility, so the only thing that allows this kind of abuse to occur is the lack of integrity of elected officials and appointed commissioners who serve the public in these positions. The PDC and the ZBA are supposed to function as watchdogs and protectors of all property owners, taxpayers, and the public in general. The minute they become stewards for special interests, the system breaks down and the rest of us lose.
Currently there is just such an issue before the ZBA that bears discussion because it is a perfect example of stretching the limits of the law. Attorney Steve Schalk is appealing an administrative decision by the PZD that affirms the city's 30-year zoning criteria for C2. The city is maintaining that C2 does not include outside storage of heavy equipment. Schalk is representing Altorfer Company, a Caterpillar rental agency that wants to put a retail outlet on property located in the North Brady corridor where H&W Trucking has been since its annexation into Davenport's city limits. H&W was grandfathered as a legal non-conforming use, and by the city's zoning criteria is considered to be a C4 use. However, the zoning for that particular property remains R1 and would require new zoning for Altorfer to operate. A significant portion of Altorfer's business includes the lease or sale of heavy industrial equipment. This type of industrial use for a property is considered to be M1, according to the city's current zoning laws. The PZC recently approved C2 for the H&W property, with the condition that no outside storage is allowed. It will now go before the city council for approval. It will be introduced at this Thursday's Community Development committee meeting,
Meanwhile, Schalk has appealed to the ZBA for a ruling to include outside storage as part of C2 zoning overall. The objectionable part of this strategy is that such a ruling by the ZBA will not only impact the H&W property, but all C2 property throughout the city. In other words, as protesting neighbors' attorney Mike Meloy so succinctly stated, "The entire city of Davenport could be compromised to accommodate one property owner."
After witnessing the proceedings at the ZBA meeting last Wednesday, it is apparent that such a travesty might just occur with the cooperation of at least three of the ZBA's five members, namely chairperson Ken Hopper and commissioners Bill Holgersen and Wayne Hammes. In the case of Hopper and Holgersen, their minds appeared to be made up before they even heard the evidence that strongly refutes Schalk's appeal.
A substantial 49 percent of the neighboring property owners have protested Altorfer's proposed use, claiming that outside storage of heavy equipment is an industrial use, which is contrary to the commercial corridor that has re-developed into low-impact retail use, such as a copy center, Walnut Shopping Center, a day-care across the street, and several restaurants, with A.G. Edwards brokerage firm and Rhomberg Furriers directly adjacent to the proposed site. Obviously a heavy-equipment-rental operation, with a retail shop for smaller equipment rentals, is no longer a desirable use for Brady Street.
During the ZBA meeting, PZD's Ken Osterich made a compelling case against the appeal, reiterating the staff recommendation that should the appeal be granted, outside storage of heavy industrial equipment would be allowed in C2 areas throughout the city, including downtown Davenport. Schalk's response to this was that, once the appeal was granted, the city could re-write the zoning ordinance to disallow such use, after his client was grandfathered in. In other words, waive the rules for this particular client, and then re-establish the zoning that is already in place. Meanwhile, Schalk suggested that the council could stop other petitions that come forward to implement outside storage under the newly defined use. Can it get more absurd than this?
Another problem is that at least one ZBA commissioner, Bill Holgersen, has what most would consider to be a conflict of interest in this matter but refuses to recuse himself from voting. Holgersen spoke in favor of the proposed use at a PZC meeting on July 2, and witnesses claim he has lobbied other commissioners, as well as protesting neighboring property owners, in an effort to persuade them to drop their protests. This is considered ex parte communication and should be sanctioned. At a minimum, Holgersen should abstain in this matter.
Add this to PZC chairperson Donna Buschek's highly questionable conduct at last Tuesday's meeting, when she denied a commissioner's motion to table the matter of rezoning the H&W property. Buschek needs to revisit the concept of team spirit, as well as procedural rules. There was a legitimate motion on the table, with a second, and she refused to acknowledge it. This should also be sanctioned. Commissioners state that Buschek instructed her committee that it was not to consider "the use" of the property, only the zoning of such. This is also absurd, of course, because the intended use of property is germane to any zoning recommendation. Buschek needs to account for this conduct, and the public deserves to know if she has some personal interest or agenda that would cause her to behave in such a manner.
In spite of Buschek's tactics, the PZC admirably approved C2 zoning with a strict covenant that no outside storage be allowed. This action helped to further protect the entire corridor from an industrial use that would likely decrease property values all around it, and keep development of the corridor akin to that which has attracted millions in investment dollars in recent years.
The following evening, the chair of the ZBA, Ken Hopper, asked if his board could grant Schalk's appeal for just the H&W property instead of impacting the entire city. Obviously he was not entirely tracking the enormity of what was before the board, and was more interested in granting Schalk's appeal for Altorfer's sake alone. Holgersen, who asked dozens of questions of the petitioner who appeared prior to Schalk and his party, didn't utter a single one during this particular proceeding. It smacked of a stacked deck. Meloy said that Schalk claimed that he had three votes before entering the room that day. How can that be if the ZBA commissioners had not heard all sides of the issue?
While it could be argued that several of the ZBA commissioners should be removed from the ZBA, one member, Mark Forester, should be commended as the board's voice of reason. He was able to draw out the fact that far more than just small equipment would be present on the property. Schalk made the comment that most of the equipment present on the property could be hauled in the back of a pickup truck. He neglected, even avoided, the fact that other equipment to be present on the property included excavators, backhoe loaders, track-type tractors, skid steer loaders, cranes with 100-foot booms, etc. Schalk showed pictures of the inside of the retail store with neatly stacked shelves of consumer products as evidence of its proposed use, while the protestors showed photos of the company's outside yards that included the above mentioned equipment, including barbed-wire fencing to contain it.
All parties repeatedly qualified their positions with hearty approval of Altorfer as a desirable company that was both wanted and welcome in Davenport. The protesting neighbors, as well as PZD's Ken Osterich, were adamant on this point. Protestors suggested looking into other areas of the city where the industrial use would be more appropriate without compromising the current zoning ordinances and commercial development. It is rumored that the attraction for Altorfer to the H&W property is that it comes with hydraulics already installed on the property. Altorfer also rebuilds diesel engines, and this would be an enormous cost savings, and no one can fault them for trying. However, this type of use is no longer appropriate for this re-developed corridor, regardless of the pre-existing conditions. H&W was grandfathered when its property was annexed by the city. Today, if it were a new business locating in Davenport, it would have to look elsewhere for its operation.
Finally, the public needs to express its disapproval for any commissioners that would compromise an entire city for the benefit of one property owner. Attorneys are charged with vigorously representing their clients as part of their fiduciary responsibility, so the only thing that allows this kind of abuse to occur is the lack of integrity of elected officials and appointed commissioners who serve the public in these positions. The PDC and the ZBA are supposed to function as watchdogs and protectors of all property owners, taxpayers, and the public in general. The minute they become stewards for special interests, the system breaks down and the rest of us lose.
