Court ruling finds property owner of former Magic Bus location violated city code

A court ruling has found the property owners of 817 Melrose Avenue in Iowa City, the former site of the popular Magic Bus tailgate, violated city code after offering commercial parking and holding an unauthorized tailgate at the location.

Outside Properties, Inc. was given two citations by the City of Iowa City between Oct. and Dec., 2010 for violating city code. The violations were handed out after months of debate between the property owners and city officials as to how the property could be used and maintained.

Property owners Jeff Clark and Tracy Barkalow argued city officials used “selective enforcement” when citing activities at 817 Melrose while the same activities were going on at several nearby locations. After deliberation, it was ruled discriminatory enforcement cannot be proven by showing non-enforcement against persons similarly situated.

The conflict began after Outside Properties bought the land at 817 Melrose Avenue on Aug. 26, 2009. The location had previously been the site of a popular tailgate spot known as the Magic Bus for several years.

Soon after the purchase, Outside Properties covered the back yard of the property with concrete, creating a parking lot. The company began leasing parking spaces in the lot as demand for parking within close proximity to the University of Iowa Hospitals and Clinics is very high.

In the spring of 2010, Jann Ream, code enforcement assistant with Iowa City's Housing and Inspection Services, received a complaint regarding signs advertising parking spaces at the 817 Melrose location.

Ream eventually determined commercial parking at the location was a violation of city code. She said the lot was in a “low density, residential, single family zone” as described by the city code. The only permitted use in such an area is for single family dwellings. Because Ream discovered Outside Properties was advertising parking with signs and with an ad on Craig's List, it was in violation of city code.

Outside Properties was sent a notice saying they either had to remove the lot or create a barrier so no more than eight spaces were available for parking. She also testified the lot itself was not a violation, but only its use for leasing parking spots.

Around the same time the parking issue was being addressed, Barkalow proposed a new tailgate venture to the city that would be located at 817 Melrose called Stadium Club. The Stadium Club planned to charge for entry and have live music, television and beer.

Director of Housing Doug Boothroy sent Barkalow an e-mail on July 16, 2010 notifying him he would need to acquire a liquor license and Inspection Services would not join in approving the license due to the site violating city code as they were still providing commercial parking.

Despite the notification, Outside Properties submitted an application for a temporary use permit for Stadium Club to city officials on July 23. On Aug. 11, Boothroy e-mailed Barkalow denying their request for a temporary use permit.

Boothroy's reasoning behind the denial was that a liquor license would not be approved due to the parking code violation and because the company had added pavement and fencing to the site, which were considered permanent improvements. The permanent improvements would counter the temporary nature of a temporary use permit.

Outside Properties again submitted an application for temporary use with minor adjustments to its plan and was again denied on Sept. 1, just three days before the 2010 football season was to begin.

During a home football game on Sept. 25, Ream was near the location of 817 Melrose and found a sign promoting the Stadium Club. Ream testified she did not enter the area, but observed a unauthorized tailgate may have been going on.

Iowa City police detective Kevin Bailey was asked to assist in an investigation into possible bootlegging at the Stadium Club. On Oct. 2 and Oct. 23, Bailey went to the site and was required to pay $10 to enter.

According to a criminal complaint from the investigation, beer was available in a keg and in cans in a large metal container. Barkalow was present and said he was responsible for the activities at the Stadium Club. On Oct. 23, Barkalow provided a plastic cup to a plainclothes officer, according to the complaint.

Bailey testified the Stadium Club appeared to be “an appropriate tailgate” and was not different from any of the others in the area.

Even so, Barkalow was charged with two counts each of bootlegging and nuisances, both serious misdemeanors, after the investigation. He is currently scheduled for trial on March 14.

The city then filed citations against Outside Properties for operating a commercial parking lot illegally and for operating a commercial use in a residential zone without a temporary use permit.

During a hearing on the citations, Outside Properties provided several photos and video of other locations around Kinnick Stadium that are in violation of the city's commercial parking code, but the city has elected not enforce the rules on them. It was made clear the city has overlooked many violations over the course of many years.

In response to Outside Properties' claim that the city was using discriminatory practices, the city provided evidence that exceptions had been provided to commercial parking areas in business zones, providing those property owners with “letters of understanding.”

Outside Properties also tried to argue they should have been given a notice before being handed a citation, but it was ruled after being denied a temporary use permit twice before the football season, the company was aware they were violating city code.

Ream said the issue of residential locations providing commercial parking is something that needs to be addressed and city officials are working on a plan on how to approach enforcement. She said the city has turned the other way for too long.

“It took us about six months with [Outside Properties] so the process is very time consuming,” she said. “We haven't come up with a game plan yet, but we are going to be methodical and address the issue.”

Ream added city council will likely begin discussing stricter enforcement for commercial venues around Kinnick Stadium during home games sometime in the spring. Technically every venue is required to possess a temporary use permit, but many set up shop without them anyway.

Outside Properties was ordered to pay $250 for each infraction. They were also ordered to cease entering into lease agreements to rent parking spaces to people who do not reside at 817 Melrose.

Barkalow said he did not want to comment on the ruling. Outside Properties can file an appeal no later than Jan. 30.