Marquette councilwoman: BOA was allowed to issue variance in Evans case

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By Audrey Posten, North Iowa Times Editor

Marquette councilwoman Pam Brodie-Fitzgerald says the city’s board of adjustment (BOA) could have issued a variance to property owner Dave Evans in order to temporarily keep a mobile home on his property at the Timber Ridge subdivision while he finishes building a permanent home. That’s contrary to what Marquette city attorney Jim Garrett told BOA members, when he said they did not have the authority to do so, noted Brodie-Fitzgerald. 

The city has asked Evans to remove the mobile home and began issuing municipal infractions against him several months ago, the first for placing a mobile home in an area that is not zoned for the purpose. The other municipal infractions were for placing the mobile home without a building permit and constructing stairs off the mobile home without a building permit. The final infraction cited Evans’ failure to place the mobile home on a permanent frost free foundation.

The first citation was dismissed, as was the one regarding the stairs, while Evans was ordered to pay a $500 fine for placing the mobile home without a permit. It was also ordered that Evans apply for and be awarded the proper and appropriate permits as to be allowed to complete the project and then remove the temporary structure in a timely manner.

At the council’s January meeting, Garrett stated that issuing a permit goes against city code and state law. He also noted that the city would likely win the appeal since he felt the magistrate did not have the authority to make the city issue a permit.

Rather than choosing to appeal the ruling, Brodie-Fitzgerald and her fellow councilwomen, Cindy Halvorson and Eleanor Soulli, opted not to enforce the city’s zoning in this instance, naming the court order as their reasoning. Then-councilwoman Rinda Ferguson voted against them, while councilman John Ries was absent.

Brodie-Fitzgerald cited state codes as to why the BOA could have issued a variance, including 414.7, which says: “…said board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinances in harmony with its general purpose and intent and in accordance with general or specific rules therein contained and provide that any property owner aggrieved by the action of the council in the adoption of such regulations and restrictions may petition the said board of adjustment direct to modify regulations and restrictions as applied to such property owners…”

In addition, she cited 414.12, which states the board of adjustment has the power to: “1) hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto; 2) hear and decide special exceptions to the terms of ordinance upon which such board is required to pass under such ordinance; and 3) authorize upon appeal in specific cases such as variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.”

Aside from the code, Brodie-Fitzgerald referred to the Timber Ridge protective covenants, noting that Evans’ property is zoned A-1 (limited agriculture) and exempt from the covenant that says “no structure shall be erected on any residential lot other than one single-family dwelling or one residential duplex.”

In the case for which the city was ordered to award a permit to Evans, Brodie-Fitzgerald said it was also noted that “The Marquette City Code does allow for variances to accommodate its citizens and said variances, if granted, would resolve most if not all of the alleged violations.”

“The majority of the council interpreted the codes differently,” Brodie-Fitzgerald explained. “We were also concerned about the money and time it would take to continue to pursue.”

If the council had appealed the decision, and it was overturned, Evans would have likely appealed it, she said. By that time, his house would be complete and the trailer removed, she added.

“It would be a moot point; we’d be chasing our tails,” Brodie-Fitzgerald noted. “The BOA has the authority to grant a variance. If they do, then we’re set and done.”

Some residents are unhappy with the council’s decision and have issued a petition of no confidence, calling on Brodie-Fitzgerald, Halvorson and Soulli to immediately resign, but Brodie-Fitzgerald said they’ll do no such thing.

“We are not quitting. That’s not happening,” she said. “Intimidation is not going to get us to quit.”

Brodie-Fitzgerald also responded to another petition, which is calling for the city to hold a special election for mayor and one council seat. David Schneider resigned as mayor and Ferguson as councilwoman at the end of January, citing the council’s decision not to uphold city zoning. Last week, Larry Breuer was appointed mayor, while Steve Eagle was appointed to the council.

“If people want a special election, we’ll have one and go from there,” she said. “We’re going to keep doing what we’re doing and take care of the city’s business. They can say what they want.”

Brodie-Fitzgerald said a third petition is also making its way around the community, but this one voices support for herself, Halvorson and Soulli.

“I think it’s fantastic,” she said. “So many people are signing it, and it makes us feel good that people are sticking up for us.”

Getting people involved is what she and others on the council want, Brodie-Fitzgerald said.

“Everyone is welcome at meetings and for the audience address,” she said. “The people are part of government.”

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