March 9, 2010
Minutes of the Planning & Zoning Commission’s 2nd hearing for Gerald Bill to rezone 3.02 acres of property located at 1549 Rampart Avenue in the NE¼ of Section 14-T96N-R16W, Floyd County, Iowa, from AG to C-1 for the purpose of maintaining a trucking operation that exists on the subject property.
Board members present were Thomas Schwab, Duane Koch, Michael Goddard, Dean Tjaden & Susan Nelson. Also present were County Attorney Norm Klemesrud, Jeff Sherman-Administrator and Misty Day, Assistant. Roll call of Board members was taken and all (5) members were present. Applicant Gerald Bill, Anthony Bill, attorney Ralph Smith, and Connie Parson were also present, along with approximately 40 neighbors and interested parties from the community. Attorney Ralph Smith presented the Zoning Commission with his brief in support of the rezoning request and a petition in support of the rezoning request that was signed by 45 neighbors and interested parties from the community.
Chair Schwab opened the meeting by informing the Commission and those in attendance that he had spoken to Ralph Smith, attorney for Anthony Bill, after the January 12th meeting and that nothing was discussed on the issues. It was about procedure and Mr. Smith advised Chair Schwab that he would be present and that he had a particular format in mind. Additionally, Chair Schwab requested that the January 12th meeting be a part of the record of this current hearing and inquired as to the Commission’s thoughts concerning this request. All Commission members agreed the record from the January 12, 2010, hearing should be a made a part of this record.
Applicant Gerald Bill’s son, Anthony Bill, gave a presentation of his request on behalf of Applicant Gerald Bill through a series of questions directed by their attorney, Ralph Smith. The applicants began, through their attorney, by apologizing to the Commission for having to reconvene on this issue, as the applicants were not aware of the nature of the first proceeding like they should have been. Attorney Smith also stated that Anthony Bill has been in business at the subject location, which is owned by his father and applicant, Gerald Bill, for approximately eighteen (18) years and has never had any intention to avoid compliance with the law, which is evidenced by the fact that in 2004 Anthony Bill built a structure on the subject property and requested the Zoning Administrator to come out to make sure the building would not interfere with the road right of way and Jeff Sherman, the current Zoning Administrator and Sanitarian, came out in 2007 and inspected a septic system that was installed on the property. Attorney Smith stated that this application came from a determination by the County that due to the nature of the business, Mr. Bill should have a different classification at which time Anthony filed the application to rezone so he was in compliance with the County Zoning laws. Attorney Smith also stated that testimony will show that Anthony and his operation are a positive influence in the community and that Anthony is a good employer who provides employment & a lot of assistance to people in the area with very little impact on his neighbors. Additionally, Attorney Smith stated that the current use of the property is not terribly inconsistent with the Agricultural zone that surrounds it, which includes uses that involve heavy equipment, trucks, and farm implements and therefore, the location is good for this business and is not incompatible with those kinds of uses. Attorney Smith then provided the Commission with legal authority through his brief. Attorney Smith stated that he is a City Attorney and is very familiar with City zoning laws, and was surprised to learn that even though this application presents a spot zoning issue, Boards of Supervisors were much more open to spot zoning then cities particularly for uses that provide economic benefit to the County and the Iowa Supreme Court has been much more open to spot zoning for that same reason, noting in most of their opinions that they are not dealing with a situation in a city where everyone is tightly located together and every use directly impacts another use, but instead in an Agricultural area that is much more wide open. Attorney Smith also stated that Commission members are supposed to consider their Comprehensive Plan when addressing zoning issues. Attorney Smith stated that he received a copy of the County Comprehensive Plan which dates back to 1980 and attached portions of said plan to his brief, which outlines the theme of the plan that is concerned with declining populations, job opportunities and economy and has a strong emphasis for economic development and retaining employment. Attorney Smith stated that he feels the Bills’ use of the subject property is very compatible with the emphasis outlined in the County Comprehensive Plan.
Through Attorney Smith’s questioning, Anthony Bill stated that Anthony Bill Trucking is a sole proprietorship owned by Anthony Bill and his wife, Pamela Bill, and is situated on his father, Gerald Bill’s property. Anthony Bill and Applicant Gerald Bill have drawn up a written lease following the January 12th meeting, allowing Anthony to lease the property in five (5) year increments with the option to purchase the property if Gerald Bill ever sells same. Prior to this lease, the agreement between Anthony Bill and Gerald Bill was informal. Anthony Bill started his operation in 1992 with one (1) truck and added a second (2nd) truck later that same year. Anthony was initially hauling for Purina Mills until they closed their plant in Lake Mills, at which time Purina offered Anthony the chance to haul for their other plants. In 1997-1998 Anthony added four (4) more trucks to his operation. After Purina filed bankruptcy, Anthony began diversifying further, started an over-the-road division, and the business began to steadily grow. Anthony has added a few trucks each year as the companies offer him more business. Currently, Anthony Bill has 35 trucks. Three (3) trucks are back-up trucks and five (5) trucks run locally with three (3) of the trucks going home with the drivers each night. The over-the-road division trucks are gone for five (5) days at a time and are back in for two (2) days for servicing. The trucks start coming in on Wednesday, Thursday & Friday and start leaving Saturday, Sunday and Monday. There is one large shed for the service facility which is 60’ x 140’, two parts buildings that are 40’ x 40’ and 24’ x 60’, and one shed for tires which is 24’ x 38’ that is used by Anthony Bill Trucking. The large shed was built in 2004 with the Zoning Administrator’s knowledge and was referenced by Attorney Smith at the opening of the hearing. Anthony has invested $100,000.00 into this building and erected it because all of the truck servicing was taking place outside and he was concerned that the lights and the noise from the air tools were being intrusive to the neighbors. Anthony has 33 full time employees, not including Anthony or his wife, with all but three (3) residing within Floyd County. His payroll is $1.5 million and he also pays health insurance, vacation and holiday pay for his employees. Anthony also provides parts to the Floyd Fire Department for no charge and has donated $5,000.00 toward their new water truck. Anthony stated that he has only received one complaint prior to these proceedings. Mr. Gene Henely had asked Anthony to have the drivers turn off their lights when coming out of the driveway or leave from a different driveway as the lights were shining into his house. Anthony took care of the problem for Mr. Henely. Anthony stated that he was aware that his taxes will increase should the zoning request be approved and is willing to accept that increase. Anthony stated that he only requested 3.02 acres to be rezoned as a way to restrict how big his operation can get. Currently, 3.02 acres is enough room to accommodate his operation at its current size. If he were to grow any bigger, he would only be able to do so by purchasing existing truck terminals in other locations. Anthony stated that he is aware that the County will take action to shut down his business if the zoning request is denied.
Commission Member Duane Koch inquired as to how many trailers were owned by Anthony. It was determined that Anthony owns 52 trailers with 15 trailers that currently sit on the property due to the loss of a contract from a bidding war. Chair Schwab inquired as to whether Anthony considered his current operation a terminal. Anthony stated that he did not because a terminal is typically larger then thirty (30) trucks, and generally have 75 to 100 trucks. Commission Member Susan Nelson inquired as to whether or not there were any other differences then the number of trucks. It was determined that a terminal would be a delivery point and would contain the corporate office in the same facility. Attorney Smith stated that he talked with the County Attorney concerning this classification and it was the County Attorney’s opinion that this operation would not be considered a terminal. Commission Member Nelson inquired as to whether the dispatch operation was taking place in the house. It was determined that the dispatch is in the service facility shop, although Anthony’s mother does work in the home taking calls for the operation. Commission Member Nelson inquired as to what percentage of the subject property contained the operation’s buildings. It was determined that the buildings occupy 7.2% of the subject property. Discussion was had concerning the Plat of Survey and where in relation to the surveyed parcels the employees park. It was determined that Anthony is asking that Parcel F be rezoned and that the employees park in an old cattle yard which is not included in either of the surveyed parcels. Anthony indicated where the employees park by drawing it on the Plat of Survey, which is attached and made a part of the record by this reference herein. Chair Schwab inquired as to where the trucks would end up in the event there was a spike in fuel and all of the trucks could not be on the road. It was determined that this would not be a concern because there are fuel surcharges in place with these companies that would offset any fuel spikes. It would take a company filing bankruptcy for the company to not be able to pay the fuel surcharges. Commission Member Duane Koch asked if there were any other business uses other then employee parking that was taking place outside of Parcel F. Anthony stated that there was not and that the reason they did not include the employee parking area in Parcel F was because there are farm bins between Parcel F and the parking lot that are used by Gerald Bill in his farming activities. The farm bins are also identified on the Plat of Survey that is attached hereto. Commission Member Nelson inquired as to Charles Perry’s statement at the last hearing concerning burning tires and a complaint made to the DNR concerning tires in a waterway to the North of the property. It was determined that the tires were not buried and that Iowa Code allows tires to be used in washout areas to prevent erosion. The tires were placed out there but the ground froze before Anthony could properly place them and someone reported them to the DNR. The DNR came out and explained how to properly place the tires in accordance with Iowa Code, giving them until May to get it done. The DNR came back out and checked to make sure they complied with the Iowa Code. Anthony also stated that he does not burn tires, he disposes of his tires through Graham Tire who refurbishes what they can and scraps the rest. Anthony stated that he does burn cardboard and wrappers from the parts he orders, and that he has talked to Jendro about getting a container so they can recycle the cardboard instead of burning it or sending it to the landfill. Commission Member Koch inquired as to where he was burning at. Anthony stated he was burning in the ditch on the NE corner of the house. Anthony also stated that he has an oil furnace that burns all of the used oil for heat, which may be what some of the neighbors smell. He uses a synthetic oil that gives off a different smell then regular oil. Chair Tjaden inquired as to whether those furnaces were approved by EPA and it was determined that they are. Discussion was had concerning the lease and it was determined that the tenant has the responsibility of the care and maintenance of the property, as well as the utilities. Discussion was had concerning case law and spot zoning between Commission Member Nelson and Attorney Smith. It was determined that there is a 3 prong test outlined in Attorney Smith’s brief that needs to be used in determining spot zoning cases, including 1.) whether the new zoning is germane to an object within the police power; 2.) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and 3.) whether the rezoning is consistent with the comprehensive plan.
Chair Schwab then invited neighbors in support of the rezoning request to speak. Leonard Bornstein spoke in support stating that the truck traffic comes more from the Ethanol plant then the Anthony Bill Trucking operation and feels that Anthony is an asset to this community and area. Lyle Wendland also spoke is support stating that a justified concern would have been how big this operation would get but was satisfied to hear that Anthony limited this request to 3 acres to limit how big he can grow which eased any concern he may have had. Jerry Chatfield Sr., Eleanor Bornstein, and Gene Henely also spoke in support of the zoning request.
Richard Schultz objected to the zoning request stating that he spoke to attorney Rod Mulcahy to get his opinion, who pointed out that a decision was made in January and the proper procedure would be an appeal and not a rehearing on the zoning request and questioned that this proceeding was even proper. Mr. Schultz also stated that Charles City Area Development claims that Bill Trucking purchases all of their fuel, insurance, banking, replacement parts, and labor locally, but Mr. Schultz is of the opinion that this operation purchases $300,000.00 worth of tires and after conducting a personal survey determined that these tires are in fact bought out of the County and are not purchased locally. Additionally, from personal experience, Mr. Schultz stated that he can not purchase John Deere diesel engine parts anywhere in this County and has to purchase them in Mitchell County. Commission Member Nelson inquired as to how this operation impacts Mr. Schultz as a neighbor. Mr. Schultz stated that the operation decreases the value of his property because it is unsightly and the appearance is undesirable which would affect the value of this property. Mr. Schultz did submit a letter to the Commission stating that there were tires along his property line. Commission Member Nelson inquired as to whether these tires were there today and it was determined that they were, but if they are being used for erosion control per earlier testimony and if the DNR approves that type of usage then Mr. Schultz stated that he could not argue with that. Chair Schwab inquired as to whether Mr. Schultz had contacted the DNR concerning the tires on the fence line and it was determined that he had not.
Stephanie Michalson also objected to the zoning request stating that they have a tree buffer that blocks the site issues connected with this operation, but they do hear the trucks coming and going. Mrs. Michalson stated that when she and her husband first purchased their house in 1996, Gerald and his wife were in the cattle business and even rented pasture from them, and then they started noticing the trucks and asked around and were told that the trucks were acceptable under the AG district. Mrs. Michalson stated that when she goes outside when it’s cold or there is not a lot of air, her eyes water from the fumes and smells coming from the trucking operation. Mrs. Michalson also stated that there are 15 to 20 trucks that park on the Bills’ property during the weekends and idle when it’s cold outside. Mrs. Michalson stated that their house is currently for sale and that this operation has affected their property value. Mrs. Michalson stated that she owned a small business herself and had to follow a lot of rules and regulations and around 2002 when Anthony’s operation transitioned into a trucking firm, she again asked around and was again told that it was acceptable under the AG classification. Commission Member Nelson inquired as to how Mrs. Michalson knew this operation affects her property value. Mrs. Michalson asked her realtor, Dean Stewart, to answer the question. Dean Stewart stated that in order to consider value one needs a paired sales analysis, what does a property sell for next to a trucking firm on 155th Street and what does it sell for without a trucking firm next to it on 155th Street and that he did not have any comparisons for that. Mr. Stewart stated that he has no data that says it adds to the value or subtracts from the value, but when you are showing the house people consider it. Mr. Stewart stated that he can not tell the Commission that this facility enhances the property because it doesn’t, he can not tell them that it will sell for less or take longer to sell because of this facility but it will more likely then not.
Attorney Ralph Smith then spoke concerning the legal issues identified by Mr. Schultz. Attorney Smith stated that he spoke to both the County Attorney and Jeff Sherman and they could have appealed the decision, but it would not have done any good because there was no record or factual presentation made by the Bills for an appellate court to make a decision on. Attorney Smith stated that he and County Attorney looked at the ordinance and there was nothing prohibiting them from initiating a 2nd proceeding and decided it was permissible, and the benefit is that a full and complete disclosure of the facts is presented to the Zoning Commission and the Board of Supervisors so they can make an informed decision. Chair Schwab stated that he thinks it is wrong that the Commission is meeting a second time and that an appeal process would have been the correct methodology and that this is his personal opinion and not the opinion of the Commission. Commission Member Nelson stated that she was also concerned with this proceeding and inquired as to where you would draw the line, making the decision final. It was determined that the Zoning Ordinance is being updated and this specific issue will be addressed and corrected giving timeframes by which an applicant must wait to re-file an application. Attorney Smith stated that he wants a decision based on the facts and the merits of the case and with this hearing he feels he will have it and would then have a record to appeal an unfavorable decision, as well as that it would be foolish to bring this matter before the Commission a third time.
Mr. Schultz requested that the Commission’s decision be tabled to allow his attorney to be present. Commission Member Nelson inquired as to whether anyone from that office had contacted the Zoning Administrator’s office prior to this hearing to ask for a stay or continuance and Assistant Day stated that no one had contacted them. It was determined that the Commission would not table their decision.
Attorney Ralph Smith then asked Connie Parson a series of questions concerning her opinion of the impact this trucking firm has on surrounding property values. Mrs. Parson spoke of a neighbor, Al Calhoun, across the road from the trucking operation who purchased a 10 acre parcel in 2008, built a shed, and will be building a new house this upcoming year. Mrs. Parson stated that Mr. Calhoun saw the trucking operation as it currently is today and any depreciation in value would have occurred in his mind when he bought the property and the fact that he saw the operation, bought the property, and is still planning on making a rather large investment in this property is the best indication that she can have that this trucking operation is not destroying this neighborhood by being there. Mrs. Parson stated that in her opinion that its hard to say this trucking firm has caused any depreciation in this area as most of the residents purchased their properties after this trucking firm was already there. Mrs. Parson stated that she did agree with Dean Stewart in that maybe these properties are not appreciating in value quite as much as they would if the trucking firm were not there, but that no one other then the Michalsons and Mr. Calhoun are even close enough to say their value has depreciated because of this trucking firm.
Jerry Peters from Floyd Fire Department, Brian Chatfield, Doug Lindaman, Gordon Boge, and Vince Baltermann all spoke on behalf of Anthony Bill Trucking stating various reasons from job and economic opportunities to neighbors settling complaints with neighbors instead of reporting them to authorities. A gentleman who did not state his name also spoke on behalf of Anthony Bill Trucking, questioning whether this business should even be rezoned because it’s an Agricultural business. Commission Member Nelson stated that she also questions whether we have the correct zoning classification. Discussion was had concerning the AG district and the conditional uses allowed under that district. Administrator Sherman stated that it was determined that the trucking operation falls under the C-1 District as a automobile, truck, trailer, or farm implement and Assistant Day pointed out that they have 33 employees they pay benefits for which played a role in their decision as to which classification it would fall under. Attorney Smith stated that it was a judgment made by the County Attorney and Jeff to be in a C-1 district and he does not feel that zoning classification is an irrational or unreasonable determination. Commission Member Nelson still questioned the I-1 district and whether this operation would actually be defined as a terminal and therefore, would belong in the I-1 district. Assistant County Attorney Norm Klemesrud stated that until you start offloading freight and storing freight you do not have a terminal, and Bills do not have a terminal from what he understood of their business. Lawrence Squier stated that there used to be four (4) terminals in Floyd County but that there are no terminals in the County today. Chair Schwab stated that a terminal may be in the eye of the beholder, as he did independent research of properties that were listed by a real estate brokers as light industrial and they were similar to this operation. Commission Member Nelson stated that some of the letters received by the Commission eluded to conditions being placed on the business should the zoning request be approved, and inquired as to whether Anthony would be willing to offer some acceptable conditions he would be willing to operate by. Attorney Ralph Smith stated that he did not see any conditions other then the 3.02 acres Anthony limited himself to that would be applicable to this operation. Commission Duane Koch pointed out that there is employee parking and trailers that are parked outside of the 3.02 acres subject to the zoning request. Attorney Smith stated that would be an enforcement issue and if the County Attorney felt Anthony was operating in a manner that is in violation of the law the County Attorney would have the ability to enforce that.
Commission Member Nelson inquired about a letter from Mr. Tim Fox from Charles City Area Development about relocating his business. Anthony stated that their intention is to remain on the property and that they only worked with Tim Fox after the last meeting to see if there was any possibilities. Anthony stated that it would be very cost prohibitive to relocate, spending money on the operation and turning around and borrowing more for the same venture is futile, and towns do not want this type of operation in town limits for safety reasons. Commission Member Nelson asked if Mr. Fox had anything to add to Anthony’s comments. Mr. Fox stated that relocating the operation to one of the locations in Charles City would cause the same types of complaints that are being generated here only more people would be affected, Schwartzrock is a good location but the land is not cheap and he is not sure who would offset Anthony’s costs of having to relocate there and the location has a much better use then a trucking operation. Commission Member Dean Tjaden pointed out that if the business were to be shut down, surrounding counties would be throwing deals at Anthony to relocate to their county. Anthony stated that if the zoning request were denied he would have no choice but to close his business because of the expense that would be involved to moving to another location, even if the location were in another county, and all of his employees would loose their job.
The Zoning Commission moved into discussion, ending all public comment on the matter. Commission Member Koch stated that a major issue he has is that he does not feel that this hearing was the right way to go and has a lot of reservations on this issue specifically. Assistant County Attorney Klemesrud stated that our planning & zoning code is so badly out of date and there is nothing that prohibits a reapplication and there is nothing that says what is being done today is illegal. Commission Member Tjaden stated that we need to use a little common sense, do we deny the reapplication and make them appeal it or do we get fully informed and make an educated, informed decision. Commission Member Nelson stated that she agrees we have more information but no new information was presented, it’s just an expansion of the first hearing. Commission Member Tjaden stated that he can not make a motion to deny this application and look at the business that would be lost, and what would that say for the County – yeah we have a business, but we’re going to shut it down. Commission Member Nelson and Schwab again stated they were not comfortable that this shouldn’t be in the I-1 district versus C-1 district. Discussion was also had concerning the Agricultural businesses versus this operation.
Six people submitted letters; three (3) in support from Charles City Area Development, Gene Henely, and Donna Allen & Virginia Neeley; two (2) in opposition from Richard Schultz and Erik Michalson; and one (1) from Charles Perry rescinding a prior objection letter that was submitted. All parties were present for the hearing except Charles Perry and Donna Allen & Virginia Neeley.
A motion to approve Gerald Bill’s request to rezone 3.02 acres of property located at 1549 Rampart Avenue in the NE¼ of Section 14-T96N-R16W, Floyd County, Iowa, from AG to C-1 for the purpose of maintaining a trucking operation that exists on the subject property was made by Dean Tjaden and was seconded by Michael Goddard. Roll call vote was made, Dean Tjaden and Michael Goddard voted to approve and Thomas Schwab, Susan Nelson and Duane Koch voted to deny thus meeting a quorum vote. The request to rezone was denied 3:2.
Jeff D. Sherman